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Saint Louis University - College of Law

Comprehensive Reviewer in Persons and Family Relations


By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

PERSONS AND FAMILY RELATIONS C. According to force and effect:


1. Mandatory or Prohibitive Laws - those which
I. INTRODUCTION have to be complied with because they are
expressive of public policy.
LAW – is a rule of conduct promulgated by a 2. Permissive or Suppletory Laws – those
legitimate authority for the common good and which may be deviated from if the individual
observance of all. so desires.

CLASSIFICATION OF LAW CIVIL LAW – mass of precepts which determines


a.) Natural Law – promulgated impliedly in human and regulates the relations of assistance, authority
body and conscience. and obedience existing among members of family as
1. Natural Moral Law – applies to our higher well as among members of society for the protection
faculties (do good and avoid evil). of private interest, family relations and property
2. Law of Nature – applies to both our higher rights.
and lower faculties (law of gravity).
CIVIL CODE – collection of laws which regulates the
b.) Positive Law – promulgated expressly or private relations of civil society, determining their
impliedly. respective rights and obligations with reference to
1. Divine Positive Law – like The Ten persons, things, and civil acts.
Commandments.
2. Divine – Human Positive Law – like The Sources of the Civil Code of the Philippines
Commandments of the Catholic Church. (REPUBLIC ACT NO. 386)
3. Human Positive Law – like Congressional 1. Civil Code of Spain of 1889
Statutes or Executive Orders. 2. Codes and laws of other countries
3. Judicial decisions of the Supreme Court of the
CONCEPT OF LAW AS “DERECHO” AND “LEY” Philippines and of various states
4. Philippine laws and statutes
Derecho is the general or abstract concept of law 5. Works of jurists and commentators of various
which defines law as the science of moral rules nations
founded on rational nature of man, demandable and 6. Filipino customs and traditions
reciprocal, and governs the free activity of man for 7. Code Commission itself
the realization of the individual and social ends.
Effectivity of the Civil Code of the Philippines
Ley is the specific or material concept of law which
defines law as a rule of human conduct, just, The Civil Code of the Philippines took effect on
obligatory, promulgated by legitimate authority, and August 30, 1950. This date is exactly one year after
of common observance and benefit. the Official Gazette publishing the Code was
released for circulation, the said release having been
HUMAN POSITIVE LAW - is a reasonable rule of made on August 30, 1949. (Lara v. Del Rosario, 94
action, expressly or directly promulgated by Phil 778)
competent human authority for the common good,
and usually, but not necessarily, imposing a sanction
in case of disobedience.

Essential Elements of Human Positive Law


a.) reasonable rule of action
b.) due promulgation
c.) promulgation by competent authority
d.) a sanction imposed for disobedience.

Classification of Human Positive Law

A. According to whether a right is given or


merely the procedure for enforcement is laid
down:
1. Substantive Law – that which establishes
rights and duties.
2. Remedial or Procedural Law – that which
prescribes the manner of enforcing legal
rights and claims.

B. According to the scope or content of the law:


1. Private Law – that which regulates the
relations of the members of a community
with one another. (Civil and Commercial
Laws )
2. Public Law – that which governs the
relations of the individual with the State or
ruler or community as a whole. (Political,
Criminal and Remedial Laws )

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

II. EFFECT AND APPLICATION OF LAWS


Not Covered By Publication Requirement
EFFECTIVITY OF LAWS
INTERPRETATIVE REGULATIONS AND THOSE
Laws shall take effect after 15 days following the LAWS OR RULES WHICH ARE MERELY
completion of their publication in the Official Gazette, INTERNAL IN NATURE, that is, regulating only the
or in a newspaper of general circulation, unless personnel of the administrative agency and not the
otherwise provided. (Article 2, NCC as amended by public, need not be published.
E.O. 200, 18 June 1987).
Neither is publication required of the so-called LOI
General Rule: Laws shall take effect after 15 days issued by administrative superiors concerning the
following the completion of their publication in the rules or guidelines to be followed by their
Official Gazette, or in a newspaper of general subordinates in the performance of their duties.
circulation.

Exception: When the law provides for its own IGNORANTIA LEGIS NON EXCUSAT
affectivity, less than or greater than 15 days after
publication. Ignorance of the law excuses no one from
compliance therewith. (Art. 3, NCC)
Publication Is Mandatory
Concept
The phrase “UNLESS OTHERWISE PROVIDED”
refers to the date of effectivity and not to the This rule is a conclusive presumption of law. It is
requirement of publication, which cannot in any based on expediency as well as public policy and
event be omitted. It does not dispense the necessity. So that ignorance of the law cannot be
requirement of publication. PUBLICATION is used as a valid defense in favor of one who violated
INDISPENSABLE. (Tanada v. Tuvera, 146 SCRA a law. The rule refers only to mistakes of the
446) It is the prerogative of Congress to shorten or existence of a law rather than to mistakes with
lengthen the period of publication. HOWEVER, when regard to the application and interpretation of law.
the law is penal in character, the 15-day period shall The latter is called mistake of law which may be a
not be shortened. valid defense like mistake of fact.

Omission would offend DUE PROCESS insofar as it Application: All domestic laws, mandatory or
would deny the public the knowledge of the laws that prohibitive, and whether substantive or remedial on
are supposed to govern them. Section 6 of the Bill of grounds of expediency, policy, and necessity, to
Rights recognizes "the right of the people to prevent evasion of the law.
information on matters of public concern."
Exceptions:
How Publication be Made 1. Permissive or suppletory laws.
2. Foreign Laws
PUBLICATION MUST BE IN FULL or it is no Ignorance of foreign law is not ignorance of the
publication at all since its purpose is to inform law but ignorance of fact because foreign laws
the public of the contents of the laws. must be alleged and proved as matters of fact,
there being, as a rule, no judicial notice of said
Where Publication be Made foreign laws.

In the Official Gazette or in a newspaper of general Processual Presumption - if the foreign law is not
circulation, it is NOT required that laws be published properly alleged and proved, the presumption is that
in both. it is the same as our law.

What Must be Published


LEX PROSPICIT, NON RESPICIT
Laws of general application especially those penal or
punitive in character whether in the form of statutes, Laws shall have no retroactive effect, unless the
Presidential Decrees, Executive Orders, contrary is provided. (Art. 4, NCC)
Administrative Rules and Regulations.
GENERAL RULE: Laws are prospective, not
Rules and regulations must also be published if their retroactive.
purpose is to ENFORCE or IMPLEMENT EXISTING
LAW. REASON: If the rule was that laws were retroactive,
grave injustice would occur as they would punish
The circulars issued by the MONETARY BOARD individuals for violations of laws not yet enacted.
must be published if they are meant not merely to While ignorance of the law does not serve as an
interpret but to "FILL IN THE DETAILS" of the excuse, such ignorance refers only to laws that have
Central Bank Act. already been enacted.

The charter of a city must be published EXCEPTIONS: PIERCER


notwithstanding that it applies to only a portion of the  PENAL statutes favorable to the accused and
national territory and directly affects only the that the accused is not a habitual delinquent and
inhabitants of that place. Local Ordinances passed that the law does not provide for its non-
by local legislative bodies must also be published. retroactive application.
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

solemnized by a person without legal authority;


 INTERPRETATIVE statutes W who got married within 300 days after death
of H)
 statute EXPRESSLY provides for retroactivity d.) When the law makes the act itself void but
(e.g. Art 256 of the Family Code) recognizes legal effects flowing therefrom. (e.g.
children of void marriage are illegitimates but
Limitations: they have rights recognized under the law)
 Ex post facto law
 Impairment of obligation and contracts
WAIVER OF RIGHTS
Illustration:
FACTS: Illegitimate children, born before the Rights may be waived, unless the waiver is contrary
effectivity of the FC were claiming illegitimate to law, public order, public policy, morals, or good
filiation with the putative deceased father under customs, or prejudicial to a third person with a right
the old civil law stating that the right to be recognized by law. (Art. 6, NCC)
recognized vests from the moment of birth and
succession vests from the moment of death of Rules for the Waiver of Rights
the owner of property. The legal heirs of the
dececeased countered that their action is General rule: Rights can be waived.
already barred by the FC because the action for Exception: CPAN
illegitimate filiation based on open and 1. When the waiver is Contrary to law, public order,
continuous possession of the status of public policy, morals, or good customs.
illegitimate children shall be filed during the 2. If the waiver is Prejudicial to a 3rd person with a
lifetime of the putative father. HELD: The action right recognized by law.
is not barred because the rights of the 3. Alleged rights which do not yet exist.
illegitimate children were already vested under 4. If the right is a Natural right such as right to be
the old Civil Code. Rights of the illegitimate supported, political rights, future inheritance
children already vested under the old civil code when intended to prejudice creditors.
shall not be impaired. (Aruego, Jr. v. CA, 254 S
711; Bernabe v. Alejo, 21 January 2002) RIGHTS – the power or privilege given to one
person and as a rule demandable of another. It may
 REMEDIAL statutes, as there is no vested right in be:
procedural laws. a. Real Rights (jus in rem) – enforceable against
the whole world. (Absolute rights)
NO retroactive effect, however, if it disturbs final b. Personal Rights (jus in personam) – enforceable
judgments or if it is more onerous to party against a particular individual. (Relative Rights)
litigants.
Note: Inherent, constitutional or fundamental rights
 CURATIVE statutes, that is to cure defects or are, as a rule, not subject to contractual waivers.
imperfections in judicial or administrative Constitutional rights to be waived must comply with
proceedings. the constitutional requirements. Statutory rights are
subject to waivers.
 EMERGENCY laws as they are authorized by the
police power of the state. WAIVER – the intentional or voluntary
relinquishment of a known right, or such conduct as
 If a substantive RIGHT be declared for the first warrants an inference of the relinquishment of such
time, unless vested rights are impaired. (e.g. right.
Law that allows the illegitimates to use the
surname of the father) Requisites of Valid Waiver CCA-FORNO
1. The person waiving must be Capacitated to
make the waiver.
MANDATORY / PROHIBITORY LAWS 2. The waiver must be made Clearly, but not
necessarily express.
Acts executed against the provisions of mandatory 3. The person waiving must Actually have the right
or prohibitory laws shall be void, except when the which he is renouncing.
law itself authorizes their validity. (Art. 5, NCC) 4. In certain instances, the waiver must comply
with certain FORmalities.
Effect of Violation of Mandatory or Prohibitory 5. The waiver must NOt be contrary to law, public
Laws: order, public policy, morals or good customs, or
prejudicial to others with a right recognized by
GENERAL RULE: Acts executed against the law.
provisions of mandatory or prohibitory laws shall be
VOID. Illustration:
HELD: There was a void waiver in this case
EXCEPTIONS: because there was nothing to be waived. By the
a.) When the law itself authorizes their validity. (e.g. time the right was waived, no definite
lotto, sweepstakes) relationship between the children vis-à-vis
b.) When the law makes the act merely voidable. deceased. Assuming the waiver is valid, mother
Thus, subject to ratification. has no authority to waive such rights of children
c.) When the law makes the act valid but subjects because she did not avail of judicial approval.
the wrongdoer to liability. (e.g. marriage (Guy vs. CA, 502 SCRA 151)
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

The judge must impose death penalty though


JUDICIAL APPLICATION AND INTERPRETATION contrary to his personal/religious belief. (Pp. v.
OF LAWS Veneracion, 249 S 251)

Judicial decisions applying or interpreting the laws or 2. If the Law is not so Clear
the Constitution shall form a part of the legal system
of the Philippines. (Art. 8, NCC) In case of doubt in the interpretation or
application of laws, it is presumed that the
Are Judicial Decisions Laws? lawmaking body intended right and justice to
prevail. (Art. 10, NCC)
Judicial decisions, though not laws, are evidence,
however, of what the laws mean and this is why they “Interpret not by the letter that kill but by the
are part of the legal system of the Philippines. The spirit that gives life”
interpretation placed upon the written law by
competent court has the force and effect of law. Cessante Ratione Cessat Ipsa Lex in
Criminal Law - When the reason for the law
ceases, the law automatically ceases to be one.
RULES ON APPLICATION AND
INTERPRETATION OF LAWS Computation of Periods

No judge or court shall decline to render judgment 1 day – 24 hours; 1 month – actual number of days;
by reason of the silence, obscurity or insufficiency of 1 year – be computed based on 12 calendar
the laws. (Art. 9, NCC) months. (Art. 13, NCC as Repealed by
Administrative Code; CIR v Primetown, Aug 28,
Duty of the Court to Render Judgment 2007)

The court must give a decision, even if the law is Calendar month: if months are designated by their
silent, obscure, or insufficient. name, they shall be computed by the number of
days which they respectively have.
Stare Decisis Non Quieta Movere (adherence
to precedents) – once a case has been decided Computation of periods: the first day shall be
one way, then another case, involving exactly excluded, and last day included, unless the latter is a
the same point at issue, should be decided in Sunday or a legal holiday, in which event, the time
the same manner. Judicial decisions interpreting shall run until the end of the next day which is
the law shall form part of the legal system of the neither a Sunday or a legal holiday.
Philippines. Only SC can establish stare decisis
or legal doctrines. CA may in rare cases NOTE: When the act and the period are
establish stare decisis CONTRACTUAL, the act must be done on the last
day, even if the latter is a Sunday or a legal holiday.
Ratio Decidendi – final judgment which states
the reason for such judgment.
APPLICABILITY OF CUSTOMS (Arts. 11 and 12,
Obiter Dictum – opinions not necessarily to the NCC)
determination of a case. They are not binding
and cannot have the force of judicial precedents. Custom - is a rule of human action/conduct
established by repeated acts and uniformly observed
Effect of Silence, Obscurity or Insufficiency of or practiced as a rule of society, thru the implicit
Laws approval of the lawmakers, and which is obligatory
and legally binding.
The court may apply any rule he desires as long as
the rule chosen is in harmony with general interest, Requisites:
order, morals and public policy. a. A custom must be proved as a fact, according to
the rules of evidence.
Judicial Aids b. The custom must not be contrary to law, public
a. Customs which are not contrary to law, public order or public policy.
order, and public policy; c. There must be a number of repeated acts
b. Equity and justice; (plurality of use).
c. Decisions of foreign and local courts on similar d. The repeated acts must have been uniformly
cases; performed.
d. Opinions of highly qualified writers and e. There must be a juridical intention to make a
professors; rule of social conduct.
e. Rules of statutory construction; f. There must be a sufficient lapse of time.
f. Principles laid down in analogous instances.
Custom Propter Legem v. Custom Contra Legem
Rules on Interpretation of Laws
Custom propter legem – not contrary to law.
1. If the Law is Clear – apply the law as it is. Dura
Lex Sed Lex - “The law may be hard, but it is Custom contra legem – contrary to law
still the law.”

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

HOW LAWS LOSE THEIR EFFECTIVITY (Art. 7, General Rule: Laws are enforceable within the
NCC) territorial jurisdiction of the Philippines.

1. Lapse of a Law - laws which, without any Exceptions:


repeal, cease to have effect because they lapse 1. Ex-territoriality - When the acts referred to
by their own terms. A law may expressly provide are executed before the diplomatic or
that it shall be effective only for a fixed period. consular officials of the Republic of the
Philippines in a foreign country, the
2. Repeal - annulment of a law by a subsequent solemnities established by Philippine laws
one. shall be observed in their execution.
2. Extra-territoriality – laws of the Philippines
Express Repeal and Implied Repeal is applicable outside its territory. (e.g. Art. 2,
RPC)
Express Repeal – when the subsequent law
expressly provides that the prior law is repealed Generality - Penal laws and those of public security
(there is repealing clause). and safety shall be obligatory upon all who live or
sojourn in Philippine territory, subject to the
Implied repeal – when there are inconsistencies principles of public international law and to treaty
or irreconcilable differences between the prior stipulation.
and the subsequent law.
General Rule: Laws are binding upon those
Note: In both cases, the later enactment who live or sojourn in the Philippines.
prevails.
Exceptions:
Effect of Repeal of Repealing Law on Law a. Principles of Public International Law.
First Repealed b. Treaty stipulations (e.g. VFA)
1. When a law which expressly repeals a prior c. Laws of preferential application (e.g. those
law is itself repealed, the repeal of the under RA 75)
repealing law does not revive the first law
repealed, unless expressly so provided.
2. When a law which impliedly repeals a prior THEORY OF STATUTES/CONFLICT OF LAW
law is itself repealed, the repeal of the RULES
repealing law revives the prior law, unless
the language of the repealing law provides Persons: NATIONALITY PRINCIPLE
otherwise.
Laws relating to family rights and duties, or to
3. Declaration of Unconstitutionality the status, condition and legal capacity of
persons are binding upon citizens of the
Generally, an unconstitutional law confers no Philippines, even though living abroad. (Art. 15,
right, creates no office, affords no protection and NCC)
justifies no acts performed under it, there are
instances when the operation and effects of the Nationality/Personal Theory - the status and
declaration of its unconstitutionality may be capacity of an individual are generally governed
relaxed or qualified because the actual by the law of his nationality.
existence of the law prior to such declaration is
an operative fact and may have consequences Status - the sum total of a person’s rights,
which cannot justly be ignored. duties, and capacities.

Constitution – the fundamental law of the land Characteristics of Status:


to which all other laws must conform. a. It is inalienable.
b. It is imprescriptible.
Supremacy of the Constitution c. It cannot be the object of compromise.
d. The action to claim it cannot be renounced.
When the courts declare a law to be inconsistent e. The rights arising from it cannot be
with the Constitution, the former shall be void exercised by creditors.
and the latter shall govern. It is not supremacy
of the Supreme Court but supremacy of the Legal Capacity – power to do acts with legal
Constitution. This is pursuant to judicial power of effects.
the court.
Protective Principle - prohibitive laws
concerning persons, their acts or property, and
BINDING EFFECT OF LAWS (Art. 14, in relation to those which have for their object public order,
Art. 2, Revised Penal Code) public policy and good customs shall not be
rendered ineffective by laws or judgments
Territoriality - Penal laws and those of public promulgated, or by determinations or
security and safety shall be enforceable throughout conventions agreed upon in a foreign country.
the territorial jurisdiction of the Philippines, subject to (Art. 17, par. 3, NCC)
the principles of public international law and to treaty
stipulation. Domiciliary Theory - The basis for determining
personal law of an individual is his domicile.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Renvoi - It literally means a “referring back”. It


arises when one state follows the nationality
theory and the other the domiciliary theory, the
problem may be referred back to the law of the
first state. (See Discussion in Private
International Law)

Property: LEX REI SITAE (Mobilia Sequntur


Personam abandoned)

General Rule: Real property as well as personal


property is subject to the law of the country
where it is situated. (Art. 16 par 1, NCC)

Exception: Intestate and testamentary


SUCCESSION (capacity to succeed), order of
succession, amount of successional rights; and
intrinsic validity of testamentary provisions shall
be regulated by the NATIONAL LAW of the
person whose succession is under
consideration, whatever maybe the nature of the
property and regardless of the country wherein
said property may be found. (Art 16 Par 2, NCC)
Thus, the property of a deceased Filipino shall
be included in his estate.

Forms and Solemnities of Contracts and Wills:


LEX LOCI CELEBRATIONIS

It is a principle which applies the law of the place


where the contract was executed as far as the
formalities and solemnities (extrinsic validity) are
concerned.

General Rule: The forms and solemnities of


contracts, wills and other public instruments
shall be governed by the laws of the country in
which they are executed. (Art. 17, NCC)

Exceptions:
a. Lex loci voluntatis - The intrinsic validity of
contracts shall be governed by the law of the
place voluntarily selected. In case of
controversy, the court shall apply the court
of the forum.
b. Lex loci intentionis - The intrinsic validity of
contracts shall be governed by the law of the
place intended by the parties to the contract.

Lex Nationalis Lex rae sitae Lex loci


Art 15 Art 16 Celebrationis
Art. 17
Basis: Basis: Law of Basis: Law of
Nationality the place where the place where
the property is the contract
situated was executed
Covers: family Covers: Real Covers: forms
rights and and personal and solemnities
duties, status, properties (extrinsic
condition and validity)
legal capacity
Exception: Art Exceptions: Art Exception: Art
26 par 2, FC 16 par 2, NCC 26 par 1, FC

SUPPLETORY APPLICATION OF THE CIVIL


CODE OF THE PHILIPPINES

In matters which are governed by the Code of


Commerce and special laws, their deficiency shall
be supplied by the provisions of this Code. (Art. 18,
NCC)
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

III. HUMAN RELATIONS 2. Where a person exercises his rights but does so
arbitrarily or performs his duties in a manner that
FUNDAMENTAL HUMAN RIGHTS is not in keeping with honesty and good faith, he
a. right to life opens himself to liability.
b. right to liberty
c. right to property INJURY - It refers to the legal wrong to be
redressed.
CHARACTERISTICS/ATTRIBUTES OF HUMAN
RIGHTS DAMAGE - It refers to the amount of money
a. inalienable – it cannot be passed by the State or awarded by the court to compensate for the loss or
through certain contract. injury suffered.
b. Inherent – innate to human existence.
c. Indivisible Purpose: It is awarded to compensate the
plaintiff for the loss or damage that he suffered,
STANDARDS/NORMS OF HUMAN RIGHTS (Art not to enrich him, or to impose a penalty on the
19, NCC) wrongdoer.

Every person must, in the exercise of his rights and Kinds: (MANTLE)
in the performance of his duties, act with justice, give a. moral damages
everyone his due, and observe honesty and good b. actual or compensatory damages
faith. (Article 19, NCC) c. nominal damages
d. temperate damages
NOTE: It is considered as cardinal law on human e. liquidated damages
conduct. It abolished the old rule which states that: f. exemplary damages
“He who uses a right injures no one.”

Principle of Abuse of Right LIABILITY EX-MALEFICIO OR EX-DELICTO (Art.


20 in rel. to Art. 100 of the Revised Penal Code)
He who acts with abuse, his right ceases, and his
act becomes illicit, giving rise to liability. The term Every person who, contrary to law, willfully (dolo) or
refers to acts which are not illegal but nevertheless negligently (culpa) causes damage to another, shall
make the actor liable for damages. indemnify the latter for the same. (Article 20, NCC)

Elements of Abuse of Right Negligence – failure to observe for the protection of


1. there is a legal right or duty (what right has been the interest of another person that degree of care,
abused?); precaution and vigilance which the circumstances
2. the exercised of such right is in bad faith (Bad greatly demand.
faith does not only connote bad judgment or
negligence; it imparts a dishonest purpose and Willful Act – if it is done with knowledge of its
conscious doing of wrong); and injurious effect. It is not required that the act be done
3. there is an intent to prejudice or injure others purposely to produce the injury. The act need not be
(what is the intention?). committed against the person injured.

Standards to be Observed to Avoid Abuse of Civil Liability for Delict


Rights:
1. to act with justice Every person criminally liable for a felony is also
2. to give everyone his due civilly liable. (Art. 100, RPC)
3. to observe honesty and good faith
Civil liability for Quasi-delict
Justice – acts must be done in accordance with
law. Whoever by act or omission causes damage to
another, there being fault or negligence, but no pre-
Honesty – careful regard for other’s rights and existing contractual relation between the parties, is
property. obliged to pay for the damage done (Art. 2176,
NCC).
Good Faith – honest intention to avoid taking
undue advantage of another.
ACTS CONTRARY TO MORALS, GOOD
Some Rules Observe Under Article 19 CUSTOMS OR PUBLIC POLICY
1. Where a person exercises his rights or performs Any person who willfully causes loss or injury to
his duties, observing the standards under Article another in a manner that is contrary to morals, good
19, but still causes damage to another. customs or public policy shall compensate the latter
for the damage. (ARTICLE 21, NCC)
a. actor benefited – liable but not beyond such
benefit and damage by virtue of equity. Note: This refers to acts “CONTRA BONUS
b. actor did not benefit – no liability is created MORES.”
by virtue of damnum absque injuria (damage
but no legal injury). Coverage: Any act or omission not contrary to law
but contrary to morals, good customs and public
policy.
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Qualified Seduction vs Simple Seduction


Elements of Contra Bonus Mores a. In qualified seduction there is a moral
1. there must be an act which is legal; ascendancy, while in simple seduction there
2. the act must be contrary to morals, good is no moral ascendancy.
customs, public order or public policy; and b. In the first the victim is virgin, while in the
3. the act is done willfully with intent to injure. second the victim is no longer virgin but has
a high reputation.
Kinds
1. Breach Of Promise To Marry 2. Malicious Prosecution

General rule: Not an actionable wrong. Malicious Prosecution is one that is instituted
just to vex and humiliate the defendant despite
Exceptions: the absence of a cause of action or probable
When there has been sexual intercourse cause against him.
a. The aggrieved party becomes pregnant and
subsequently delivers, she may ask the Malicious prosecution in criminal cases,
other to RECOGNIZE THE CHILD, should elements
there be one, and PROVIDE SUPPORT to c. the fact of the prosecution and the further
said child. She can also recover fact that the defendant was himself the
compensatory damages and hospitalization prosecutor, and that the action was finally
expenses as well as attorney’s fees. terminated with acquittal;
b. Sue for MORAL DAMAGES if there be d. that in bringing the action, the prosecutor
criminal or moral seduction, but not if the acted without probable cause; and
intercourse was due to mutual lust; if the e. the prosecutor was actuated or impelled by
cause be the promise to marry, and the legal malice.
effect be the carnal knowledge, there is
criminal or moral seduction. Malicious prosecution in civil cases,
c. Sue for MORAL DAMAGES if the act of the elements
defendant constitutes a tort under Art 21. a. the defendant previously filed a civil action
d. Sue for ACTUAL DAMAGES, should there against the plaintiff;
be any, such as advanced money or b. the action was dismissed for being lack of
property upon the faith of the promise to merit or for being baseless, unfounded and
marry or expenses for the wedding malicious;
preparations on the ground that no person c. the defendant who filed the previous
can enrich himself unjustly at the expense of complaint as plaintiff was motivated by ill-will
another. or sinister design;
d. the present plaintiff suffered injury or
When there was no sexual intercourse damage by reason of the previous complaint
a. Sue for MORAL DAMAGES in case there against him.
has been a deliberate desire to inflict loss or
injury or there has been an evident abuse of Misconduct - implies a wrongful intention and not
right. merely error in judgment.
b. Sue for MORAL DAMAGES if the act of the
defendant constitutes a tort under Art 21. Article 20 and Article 21, Distinguished
c. Sue for ACTUAL DAMAGES, should there
be any, such as advanced money or Article 20 Article 21
property upon the faith of the promise to The act is contrary to The act is contrary to
marry or expenses for the wedding law morals, good customs or
preparations on the ground that no person public policy
can enrich himself unjustly at the expense of The act is done either The act is done willfully
another willfully or negligently

Notes:
Moral seduction, although not punishable, UNJUST ENRICHMENT
connotes the idea of deceit, enticement, superior
power or abuse of confidence on the part of the Basis: Equity
seducer to which the woman has yielded
(Gashem Shokat Baksh vs CA) Article 22. Every person who through an act or
performance by another, or any other means,
Sexual intercourse is not by itself a basis for acquires or comes into possession of something at
recovery; damages could only be awarded if the the expense of the latter without just or legal ground,
sexual intercourse is not a product of shall return the same to him.
voluntariness or mutual desire.
Stated in another way, “No person shall unjustly
Civil seduction is different from criminal enrich himself at the expense of another.” One has
seduction. In civil seduction, age of the victim is the duty to return what was acquired unjustly or
immaterial. illegally EXCEPT when there is a legal right or
entitlement thereto (final judgment) or when there is
Moral fault is something that works inside of a no causal relation between the one’s enrichment and
man. Thus, it is not an actionable wrong. the other’s impoverishment.
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Unjust enrichment and quasi-contracts have a Extent of Liability


merger. Under Art. 22, the enrichment of the Indemnify the damage caused to the extent of
defendant must acquire or come into possession of enrichment. The indemnity does not include
something at the expense of another. Unjust unrealized profits because defendant’s enrichment
enrichment not due to acquisition or delivery of is the limit of his liability. Plaintiff has the burden of
something may still be recovered under quasi- proving the extent of the benefit or enrichment of the
contract. defendant.

Enrichment is every patrimonial physical or moral


advantage, so long as appreciable in money. UNFAIR COMPETITION

Requisites of accion in rem verso ARTICLE 24. protection of the underdog: In all
1. One party must be enriched; contractual, property or other relations, when one of
2. The other party suffered a loss; the parties is at a disadvantage on account of his
3. There must be a causal relation between the moral dependence, ignorance, indigence, mental
two; weakness, tender age of other handicap, the courts
4. The enrichment must not be justifiable; must be vigilant for his protection.
otherwise, there can be no recovery;
5. There must be no other way to recover such as NOTE: Such protection is only applicable in case of
those based on contract, quasi-contract or DOUBT as to the interpretation of law governing the
quasi-delict; and conflict between parties where one is at the
6. The indemnity cannot exceed the loss or disadvantage.
enrichment, whichever is less.
Rationale of the Article
NOTES:
 The incapacity of the defendant to enter into The law is intended to protect the weak and ignorant
contracts does not bar the accion in rem verso, in the face of rigid and classical principle of equality
so long as he has been unjustly enriched. before the law. The government acts as parent of the
 The indemnity does not include unrealized people which is in consonance with the promotion of
profits because defendant’s enrichment is the social justice.
limit of his liability.
 Just or legal cause is always presumed, the Doctrine Of Parens Patriae
plaintiff has the burden of proving its absence.
 If a plaintiff delayed his action under the Literally means father or parent of his country. It
contract, quasi-contract, crime or quasi-delict refers to the inherent power of the state and
and prescription had barred the action, he could authority of the State to provide protection of the
no longer have recourse to accion in rem verso. person and property of a person non sui juris. It is
the sovereign power of the state in safeguarding the
Classification of Unjust Enrichment rights of person under disability. It is the obligation to
1. Enrichment through the act of the injured party minimize the risk to those who, because of their
(e.g. payment of a debt which does not exist; disability, are as yet unable to take care of
payment by virtue of a contract which is void) themselves.

2. Enrichment without the act of the injured party Vigilant for his Protection - means that in case of
(e.g. defendant stealing the plaintiff’s property) doubt, the doubt must be resolved in favor of the
underdog.
Accion in Rem Verso and Solutio Indebiti,
Distinguished ARTICLE 28. Prohibited competition: Unfair
competition in agricultural, commercial or industrial
In accion in rem verso there is NO mistake; while in enterprises or in labor through the use of force,
the quasi-contract of solution indebiti (undue intimidation, deceit, machination or any other unjust,
payment) it is essential that there is mistake. Under oppressive or high-handed method shall give rise to
Article 2154, “If something is received and there is a right of action by the person who thereby suffers
no right to demand it, and it was duly delivered damages.
through mistake, the obligation to return it arises.” In
case of solution indebiti, the remedy is Restitution, Rationale of the Article
that is, to return the thing acquired by mistake or
without legal ground to possess. To promote free enterprise and to avoid monopoly in
business through unjust means.

ARTICLE 23. Even when an act or event causing Characteristics


damage to another’s property was not due to the 1. it must involve an injury to a competitor or trade
fault or negligence of the defendant, the latter shall rival; and
be liable for indemnity if through the act or event, he 2. it must involve acts which are characterized as
was benefited. “contrary to good conscience” or unlawful.

NOTE: This pertains to the duty of a person to Test of Unfair Competition


indemnify even without fault provided he benefited.
The basis of which is equity. Whether certain goods have been intentionally
clothed with an appearance which is likely to deceive
the ordinary purchaser exercising ordinary care.
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

a. Appropriation for the defendant’s benefit, of


Principle of Cutthroat Competition, Not Allowed the plaintiff’s name or likeness;
b. Intrusion upon the plaintiff’s solitude as by
It exists when a person starts an opposing place of invading his home;
business, not for the sake of profit to himself, but c. Public disclosure of private facts, consisting
regardless of loss, and for the sole purpose of of a cause of action in publicity, of a highly
driving his competitor out of business so that later objectionable kind, given to private
on, he can take advantage of the effects of his information about the plaintiff, even though it
malevolent purpose. is true and no action would lie to defamation;
d. Publicity which places the plaintiff in a false
light in the public eye.
THOUGHTLESS EXTRAVAGANCE
Spheres of Privacy:
ARTICLE 25. Thoughtless extravagance in a. person
expenses for pleasure or display during a period of b. home/dwelling/residence
acute public want or emergency may be stopped by c. papers and effects
order of the courts at the instance of any d. correspondence
government or private charitable institution. e. bank deposits

Rationale of the Article 2. Meddling with or disturbing the private life or


family relations of another.
Thoughtless extravagance during emergencies may
incite the passions of those who cannot afford to A stranger would be liable irrespective of his
spend. good motives, if he interferes with family
relations, whereas a parent or close relative
Remedy: Injunction would not be liable unless there is malice proven
by the plaintiff. A distant relative could escape
Filed by: Charitable Institution (either government or liability if he proves good faith and honest
private) motives.

It includes alienation of the affections of the


RESPECT FOR PERSONALITY AND DIGNITY OF husband or the wife.
OTHERS
Alienation of Affection, When Actionable
ARTICLE 26. Rights protected: Every person shall
respect the personal dignity, personality, privacy, When the following elements concur:
peace of mind, personal security, family relations, a. Wrongful conduct of the defendant. The
and social intercourse. defendant should have done acts calculated
to alienate affections of the husband or wife.
Remedies In Case Of Violation: damages; In a sense, the defendant must be a
prevention; other relief. The action may be pursuer, not merely the pursued.
dependent upon a criminal action like in defamation. b. Loss of affection or consortium.
It may be independent action as it is covered by c. Causal connection between such conduct
quasi-delict. and loss.

Prohibited Acts: PMI-VO 3. Intriguing to cause another to be alienated from


1. Prying into the privacy of another’s residence. his friends.
Includes respect for one’s name, picture or 4. Vexing or humiliating another on account of his
personality EXCEPT insofar as is needed for religious beliefs, lowly station in life, place of
publication of information and pictures of birth, physical defect, or other personal
legitimate news value. condition.
5. Other similar acts.
PRIVACY - is the right of an individual to be
alone or to be free from unwarranted publicity, or Some Acts Against Personal Security
to live without unwarranted interference by the 1. Assault - an intentional, unlawful offer of physical
public in matters which the public is not injury to another by force unlawfully directed
necessarily concerned. toward the person of another, under such
circumstances as will create a well-founded fear
Limitations on Privacy of imminent peril, coupled with the apparent
a. The right to privacy is limited whenever the present ability to effectuate the attempt if not
circumstances show a reasonable interest prevented.
on the part of the public in the conduct or 2. Battery - actual infliction of any unlawful or
affairs of persons who have become public unauthorized violence on the person of another,
characters. irrespective of its degree.
b. Also, the right to privacy is limited by the
privilege similar to that of “fair comment” in
the law of defamation. NEGLECT OR REFUSAL OF PUBLIC SERVANT

ARTICLE 27. Non-feasance: Any person suffering


Torts Invading the Right to Privacy material or moral loss because a public servant or
employee refuse or neglects, without just cause, to
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

perform his official duty may file an action for to answer for damages in case the complaint
damages and other relief against the latter, without should be found to be malicious.
prejudice to any disciplinary administrative action
that may be taken. Duty Of The Court: If in a criminal case, the
judgment of acquittal is based upon reasonable
Reason for the Article doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be
To promote public office as a public trust. inferred from the text of the decision whether or
not the acquittal is due to that ground.
Requisites for Action
1. The defendant is a public official charged with Kinds of Acquittal
the performance of official duties. a. Acquittal based on reasonable doubt – when
2. The public servant or employee refuses or the guilt of the accused has not been proven
neglects to perform his official duty; beyond reasonable doubt.
3. There is no valid reason for the refusal or b. Acquittal based on innocence – when the
neglect to perform official duty. accused is not the author of the crime;
4. There is injury suffered by the plaintiff. c. Acquittal when the crime complained of did
not exist.
Non-feasance, Misfeasance, Malfeasance,
Distinguished Effects of Acquittal

Non-feasance – is the omission of some act which a. Acquittal which Bars Civil Action
ought to be performed; total neglect of duty. 1. whenever the accused has been found
to be not the author of the act;
Misfeasance – is the improper performance of some 2. that the supposed act attributed to the
act which might lawfully be done. accused did not exist;
3. if there is a finding that in the final
Malfeasance – is the performance of some act which judgment in the criminal action that the
ought not to be done. act or omission from which the civil
liability may arise did not exist. (Note:
Excuses for non-performance Republic v. Patanao: Tax liability is not
1. impossibility of performance; a mere civil liability arising from a crime
2. contributory negligence of the plaintiff; that could be wiped out by the judicial
3. ministerial officer acting in obedience to orders declaration of non-existence of the
of superiors; criminal acts charged).
4. officer with discretionary function, UNLESS, he 4. If due to justifying circumstances, civil
acted in arbitrary manner or with gross neglect. liability is extinguished. Except:
Avoidance of greater evil, in which case,
NOTE: Good faith or absence of malice is not a civil liability remains. (State of
defense for non-performance. It is only a mitigating Necessity)
factor.
Note: Acquittal in a criminal case bars
prosecution for the same offense, thus
DEPENDENT CIVIL ACTIONS / ACTIONS FOR appeal assailing the verdict of acquittal is
DAMAGES BASED ON CRIME/DELICT not warranted because of double jeopardy.
However, the civil aspect of the crime may
1. ARTICLE 29. Civil action not barred by be appealed or even the subject of a
acquittal: When the accused in a criminal separate civil action provided the acquittal is
prosecution is acquitted on the ground that his based on reasonable doubt.
guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same b. Acquittal which Does not Bar Civil Action
act or omission may be instituted. 1. the acquittal is based on reasonable
doubt, if the civil case has been
Reason: Difference in the proceedings. reserved; if there is reservation, the
judgment shall make a finding on the
Basis Criminal action Civil action civil liability of the accused;
Parties State v. Offended 2. if the decision contains a declaration
involved defendant party v. that the liability of the accused is not
defendant criminal but only civil in nature;
Rules Criminal Civil 3. the civil liability is not derived from or
involved procedure/penal procedure/ci based on the criminal act of which the
code vil code accused is acquitted.
Quantum of Proof beyond Prepondera 4. If due to exempting circumstances, civil
evidence reasonable nce of liability remains. Except: Paragraphs 4
doubt evidence (injury by mere accident) and 7 (lawful
Purpose For punishment For cause) of Article 12.
of the offender reparation of
damages 2. ARTICLE 20 (see discussion above)
3. ARTICLE 30 (civil action even if there is no
Filing Of Bond: Upon motion of the defendant, criminal action instituted)
the court may require the plaintiff to file a bond,
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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

When a separate civil action is brought to


demand civil liability arising from a criminal INDEPENDENT CIVIL ACTIONS
offense, and no criminal proceedings are
instituted during the pendency of the civil case, a Concept and Rationale
preponderance of evidence shall likewise be
sufficient to prove the act complained of. It is one that is brought distinctly and separately from
a criminal case allowed for considerations of public
4. ARTICLE 35 (civil action even if there is no policy regardless of the result of the criminal case.
independent civil action and criminal action It is for the purpose of allowing the citizen to
instituted) enforce his rights in a private action.

When a person, claiming to be injured by a Evidence Required: Preponderance of Evidence.


criminal offense, charges another with the same,
for which no independent civil action is granted Independent and dependent Civil Actions,
in this Code or any special law, but the court Distinguished
finds no reasonable grounds to believe that a
crime has been committed, or the prosecutor INDEPENDENT DEPENDENT
refuses or fails to institute criminal proceedings, Not based on delict. Based on delict.
the complainant may bring a civil action for No reservation is Reservation is upon the
damages against the alleged offender. required. discretion of the offended
party.
If during the pendency of the civil action, an Can proceed Can proceed
information should be presented by the simultaneously and simultaneously with the
prosecutor, the civil action shall be suspended separately from the criminal action ONLY
until the termination of the criminal proceedings. criminal action when no waiver,
regardless of the reservation, or prior filing
Upon motion of the defendant, the court may outcome of the latter. of the civil action is done.
require the plaintiff to file a bond, to answer for It may be filed before the It may be filed prior to
damages in case the complaint should be found institution of the criminal the institution of the
to be malicious. action and it cannot be criminal action but it will
suspended when the be suspended once the
Rule 111, Section 1, 2000 Rules of Criminal latter is instituted. criminal action is
Procedure: instituted until final
judgment in the criminal
When the criminal action is instituted, the civil action has been
action for the recovery of civil liability arising rendered.
from the offense charged shall be deemed
instituted UNLESS the offended party waives the 1. ARTICLE 31. When the civil action is based on
civil action, reserves the right to institute it an obligation not arising from the act or omission
separately or institutes the civil action prior to complained of as a felony, such civil action may
the criminal action. proceed independently of the criminal
proceedings and regardless of the result of the
Suspension of Separate Civil Action: Rule latter.
111, Section 2, 2000 Rules of Criminal
Procedure Civil Action Based on Other Sources of
Obligation Other than Delict – law, contract,
After the criminal action has been commenced, quasi-contract, quasi-delict
the separate civil action arising therefrom cannot
be instituted until final judgment has been 2. ARTICLE 32. Breach Of Constitutional Rights
entered in the criminal action. / Civil Liability for Violation of Constitutional
Rights
If the criminal action is filed after the said civil
action has already been instituted, the latter Persons Liable
shall be suspended in whatever state it may be 1. any public officer or employee
found before judgment on the merits. The 2. any private individual even if in good faith
suspension shall last until final judgment is
rendered in the criminal action… Limited liability / When Responsibility
Demandable from a Judge
During the pendency of the criminal action, the
running period of prescription of the civil action General Rule: The responsibility herein set forth
which cannot be instituted separately or whose is not demandable from a judge.
proceeding has been suspended shall be tolled.
Exception: Unless his act or omission
The extinction of the penal action does not carry constitutes a violation of the Penal Code or other
with it extinction of the civil action. However, the penal laws (see Art. 204 – 207 of the Revised
civil action based on delict shall be deemed Penal Code).
extinguished if there is a finding in a final
judgment in the criminal action that the act or NOTES:
omission from which the civil liability may arise  It is not necessary that the defendant should
did not exist. have acted with malice/bad faith to be liable.
Although the same normally involves
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

intentional acts, it can be committed through the parties, is called a quasi-delict and is
negligence. governed by the provisions of this Chapter.”
 Public officer who is a defendant cannot
escape liability under the doctrine of state Note: It is not limited to culpa-aquiliana cases
immunity; the said doctrine applies only if but covers also intentional acts.
acts involved are done by officers in the
performance of their official duty within the Defenses that can be interposed in quasi-
ambit of their powers. delict:
 It only requires a preponderance of evidence a. Doctrine of Last Clear Chance - where
and the aggrieved party may ask for moral both parties are negligent but the negligent
and exemplary damages but in the latter of one succeeds that of the other by an
case, it depends upon the discretion of the appreciable interval of time, the one who
court. has the last reasonable opportunity to avoid
the impending harm and fails to do so, is
3. Art. 33. Civil Liability for Defamation, Fraud, chargeable with the consequences, without
Physical Injuries (In generic sense). In cases reference to the prior negligence of the other
of defamation, fraud, and physical injuries, a civil b. Contributory Negligence - the defendant
action for damages, entirely separate and may claim that plaintiff’s own negligence
distinct from the criminal action, may be brought contributed to the injury. This defense will
by the injured party. merely mitigate the award of damages.
c. Proximate Cause of the Loss or Injury is
Defamation – is an invasion of the interest in the Negligence of Plaintiff.
reputation and good name, by communication to d. Defense of Due Diligence in the Selection
others which tend to diminish the esteem in and Supervision of Employees: Only
which the plaintiff is held, or to excite adverse applicable in culpa aquiliana.
feelings or opinion against him. It is any act, e. Assumption of Risk: It will absolve the
writing or utterance which tend to prejudice or defendant from liability.
humiliate another. It includes libel and slander. Requisites:
a. there must be knowledge as to the
Physical Injuries – covers all kinds of physical existence of the danger
injuries including attempted, frustrated or b. there must be an understanding and
consummated homicide. If resulted because of appreciation of the risk of such danger
negligence or imprudence, they are already by the plaintiff.
covered by Article 2176 of the Civil Code. c. the plaintiff voluntarily expose
himself to such danger.
Fraud - intentional deception to induce another f. Prescription: If the action is filed beyond
to part with something of value or to surrender a four years from loss or injury.
legal right, like, estafa or swindling.
Res Ipsa Loquitor - The thing speaks for itself.
4. Art. 34. Civil Liability of Member of Municipal
or City Police A Rule of Evidence. The fact of the injury is
prima facie evidence of negligence. It can not be
Primary liability: When a member of a city or used with contributory negligence.
municipal police force refuses or fails to render
aid or protection to any person in case of danger Requisites:
to life or property, such police officer shall be a. the accident is one of a kind which
primarily liable for damages. does not ordinarily occur unless someone is
negligent,
Requisites b. that the instrumentality or agency
1. there is danger to life or property of a which caused the injury was under the
person; exclusive control of the person charged with
2. a member of a city or municipal police force negligence,
who is present in the scene refused or failed c. that the injury suffered must not
to render aid or protection to the person; have been due to any voluntary action or
3. damages are caused to the person or contribution on the part of the person
property. injured.

Subsidiary liability: The city or municipal


government shall be subsidiarily responsible in PREJUDICIAL QUESTIONS (Art 36, NCC)
case of insolvency of said police officer.
Prejudicial question - one which must be decided
Note: The defense of exercise of due diligence before any criminal prosecution may be instituted or
in the selection and supervision of its may proceed, because a decision therein is vital to
employees, as provided under Art. 2180, cannot the judgment in the criminal case. It is a question
be used as this is available only to private which arises in a case, the resolution of which is a
employers. logical antecedent of the issue involved in said case,
5. Art. 2176. QUASI-DELICT. “Whoever by act or and the cognizance of which pertains to another
omission causes damage to another, there being tribunal.
fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there Petition for Suspension by reason of prejudicial
is no pre-existing contractual relation between question, Where Filed
13 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

A petition for suspension of the criminal action


based upon the pendency of a prejudicial question in
a civil action may be filed in the office of the
prosecutor or the court conducting the
preliminary investigation. When the criminal action
has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at
any time before the prosecution rests. (Rule 111,
Sec. 6 of 2000 Rules of Criminal Procedure)

Elements:
1. The previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action.
2. The resolution of such issue determines whether
or not the criminal action may proceed.
3. The jurisdiction to try said question must be
lodged in another tribunal. (See Rule 111, Sec. 7
of 2000 Rules of Criminal Procedure)

Effect: It will suspend the proceeding in the criminal


action.

NOTE: Prejudicial questions shall be governed by


the Rules of Court which the Supreme Court shall
promulgate and which shall not be in conflict with the
Civil Code.

Illustrations:
a. FACTS: H and W1 are separated in fact. H
contracted a subsequent marriage with W2. W1
filed a case for bigamy against H. H filed a civil
action for the declaration of nullity of the 2 nd
marriage on the ground of lack of license.
HELD: NO prejudicial question because the 2nd
marriage is ostensibly valid. Besides, the 1st
marriage still exists.
b. FACTS: Same with the first but this time, the civil
action filed by the husband is for the declaration
of nullity of the 1st marriage for lack of license.
HELD: NO prejudicial question because of
violation of Art 40 of FC.
c. FACTS: H and W are legally married. H has an
illegal affair with GF. W filed a criminal case for
concubinage. H filed a civil action for the
declaration of nullity of the marriage on the
ground of lack of license. HELD: NO prejudicial
question because the marriage is presumed to
be valid and existing.
d. FACTS: H and W are legally married. H
contracted a subsequent marriage with GF. W
filed a criminal case foe bigamy. H filed an action
for annulment of the 2nd marriage on the ground
that his consent was vitiated. HELD: There is
prejudicial question because the civil case is
determinative of whether the criminal action will
prosper.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

IV. PERSONS AND PERSONALITY


PERSON - Any being, natural or artificial, capable of
CIVIL PERSONALITY - the aptitude of being the possessing legal rights and obligations.
subject, active or passive, of rights and obligations.
Classes of Persons
Juridical Capacity and Capacity to Act (Art. 37,
NCC) 1. NATURAL PERSONS - human beings created
by God through the intervention of parents.
JURIDICAL CAPACITY - the fitness to be the
subject of legal relations; it is inherent in every Personality:
natural person and is lost only through death.
a. Presumptive Personality (Art. 40, NCC)
CAPACITY TO ACT - the power to do acts with legal
effect; it can be acquired and may be lost. Personality begins at conception; the
conceived child shall be considered born for
Juridical capacity Capacity to act all purposes that are favorable to it, provided
Passive Active it be born later with the conditions specified
Inherent Acquired (upon in Art. 41.
reaching the age of
majority)  The personality in this case is
Lost only through death Lost through death and essentially limited and it is provisional or
other means conditional.
Can exist even without Always exist with
capacity to act juridical capacity b. Actual personality - Personality begins at
Unlimited/cannot be Limited/can be birth.
restricted restricted by
circumstances Birth - the removal of the foetus from the
mother’s womb who must be alive at the
THEORIES OF CAPACITY TO ACT time of complete separation; before birth,
the foetus is not a person, but merely a part
Theory of General Theory of Special
of the internal organs of the mother.
Capacities Capacities
However, because of the expectancy that it
Applies to natural Applies to juridical
may be born, the law protects it and
persons persons
reserves its rights, making its legal
One has the ability to act Powers of juridical existence, if it should be born alive, retroact
with legal effects except persons limited to those to the moment of its conception.
when capacity to act is expressly conferred and
restrained those which can be Legal Conditions (Art 41, NCC):
implied therefrom or
incidental thereto. 1. Ordinary Birth - with an intra-uterine
life of at least seven months. For civil
Restrictions or Modifications on Capacity to Act purposes, the fetus is considered born if
(Arts. 38 – 39, NCC) MIS-PC-FAAIT it is alive at the time it is completely
a. Minority (below 18) delivered from the mother’s womb.
b. insanity or imbecility 2. Extra-ordinary Birth: with an intra-
uterine life of less than seven months.
Note: There is a need for judicial declaration of For civil purposes, it is not deemed born
insanity because sanity is presumed. If there is if it dies within 24 hours after its
declaration of insanity, the capacity to act is complete delivery from the maternal
possessed by the guardian. womb.
c. state of being deaf-mute Elements:
d. prodigality (state of squandering money or a. Child must be alive at the time of
property to the prejudice of another) complete separation; and
e. civil interdiction b. Must be alive within 24 hours
f. family relations thereafter.
g. alienage
h. absence Note: Only one with juridical personality can
i. insolvency die. Thus, the aborted child never died
because it never acquired a juridical
Note: There is also a need for judicial personality. Hence, the action for damages
declaration. under Art 2206 of NCC by the husband will
not prosper. At most, he can recover
When Insolvency Reckoned damages arising from frustration of parental
1. Involuntary Insolvency – from the time of expectation. (Geluz v. CA, 2 S 801)
adjudication and not from the time of filing
by the creditors. Extinguishment of Civil Personality
2. Voluntary Insolvency – at the time of filing by
the instant debtor. Death - refers to natural or physical death. It
extinguishes civil personality. (Art. 42, NCC)
j. trusteeship

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

The effect of death upon civil personality is first, and there are no particular
determined by law, contract or will. circumstances from which it can be inferred,
the survivorship is presumed from the
Note: The rule that death extinguishes civil probabilities resulting from the strength and
personality is not absolute. The estate of a age of the sexes, according to the following
deceased is a person that may continue the rules:
personality of the deceased for the purpose of 1. If both were under the age of fifteen
settling debts. Thus, the estate is an extension years, the older is presumed to have
of civil personality of a decedent which comes survived;
into being at the moment of his death. There is 2. If both were above the age of sixty, the
no need of judicial declaration to that effect. younger is presumed to have survived;
Once the liabilities of the estate have been 3. If one is under fifteen and the other
settled and distribution of the residue to the heirs above sixty, the former is presumed to
has been effected, the estate ceases to exist have survived;
ipso facto. 4. If both be over fifteen and under sixty,
and the sexes be different, the male is
Corpse is not a person because juridical presumed to have survived; if the sexes
personality is extinguished by death. be the same, then the older;
5. If one be under fifteen or over sixty, and
Effects of Death On Rights the other between those ages, the latter
is presumed to have survived.
Upon the death of a person, the subject of legal
relations disappears. Some of his rights and (kk) If there is a doubt, as between two or more
obligations are completely extinguished, while persons who are called to succeed each
others are transmitted to his successors. other, as to which of them died first, whoever
alleges the death of one prior to the other,
Illustrations: shall prove the same; in the absence of
 FACTS: X, charged with the crime of Rape. proof, it is presumed that they died at the
Pending trial, he died. HELD: His criminal same time.
liability and his civil liability arising from
crime are extinguished. (Pp. v. Bayotas, 236 Elements On Survivorship under the Rules of
S 239) Court
 FACTS: In the same problem, supposed a. There is no proof which of 2 persons died
there has been judgment convicting X of the first;
crime of rape. Pending appeal, he died. b. They must have died during a calamity; and
HELD: His criminal liability and civil liability c. They are not called to succeed each other.
arising from crime are extinguished.
 FACTS: In the same set of facts, supposed
the judgment of conviction becomes final
and executor for failure of X to appeal. 2. JURIDICAL PERSONS: Theory of Special
During service of sentence, X died. HELD: Capacities
The criminal liability is extinguished but the
civil liability is not extinguished, thus, may CORPORATION - It is an artificial being created
be recovered against the estate of the by operation of law, having the right of
deceased on the basis of the final judgment. succession and the powers, attributes, and
properties expressly authorized by law or
Rule on Survivorship under Art. 43, NCC incident to its existence.

Burden of proof: If there is a doubt, as Classification (Art 44, NCC):


between 2 or more persons who are called 1. The State and its political subdivisions -
to succeed each other, as to which of them governed by the laws creating or
died first, whoever alleges the death of one recognizing them. (Art. 45, NCC)
prior to the other, shall prove the same. 2. Juridical persons for public interest or
purpose, created by law - their personality
Presumption: In the absence of proof, it is begins as soon as they have been
presumed that they died at the same time. constituted according to law; governed by
the laws creating or recognizing them. (Art.
Effect of presumption: There shall be no 45, NCC)
transmission of rights from one to the other.
In case of dissolution, their property and
Elements of Art 43: other assets shall be disposed of in
a. There is no proof which of 2 persons pursuance of law or the charter creating
died first; and them. If nothing has been specified on this
b. They are called to succeed each other. point, the property and other assets shall be
applied to similar purposes for the benefit of
Rule 131(jj)and (kk) of the Revised Rules of the LGUs which during the existence of the
Court on presumptions on survivorship. institution derived the principal benefits from
the same. (Art. 47, NCC)
(jj) When two persons perish in the same
calamity, such as wreck, battle, or 3. Juridical persons for private interest or
conflagration, and it is not shown who died purpose - their personality begins from the
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

moment a certificate of incorporation is


granted and issued by the SEC; Regulated
by laws of general application on the
subject. (Art. 45, NCC)

Partnerships and associations for private


interest or purpose are governed by the
provisions of this Code concerning
partnerships. (Art. 45, NCC)

In case of dissolution, see the Corporation


Code.

4. The Roman Catholic Church.

5. The estate of a deceased person.

Governing Law (Art. 45, NCC)

Nationality test - The nationality of a


corporation is generally determined by the place
of its incorporation.

Control test - The nationality of a corporation is


determined by the nationality of the controlling
stockholders.

For the grant of the rights in the Constitution to


the operation of public utilities, and for the
acquisition of land and other natural resources,
a corporation, even if incorporated in the
Philippines, cannot acquire said rights unless
60% of its capital be Philippine-owned.

During war, for the purpose of determining an


enemy corporation, by piercing the veil of
corporate entity, and going to the very nationality
of the controlling stockholders, regardless of
where the incorporation had been made.

Rights and obligation of a juridical person


(Art. 46, NCC):

Juridical persons may:


a. acquire and possess property of all
kinds, (subject to limitations under Art. 12,
Sections 2-3 of the 1987 Constitution)
b. incur obligations
c. bring civil or criminal actions.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

V. DOMICILE Illustration:
FACTS: X, a former Filipino, went to US and became
DOMICILE - place of a person’s habitual residence. a naturalized US citizen. Because he violated a law
in US, X was denaturalized. He came back to the
Domicile Residence Phils and started to establish his residence here. He
more or less permanent more or less temporary ran for mayor and won. His wife filed a civil case
a person can have a person can have involving personal rights and obligations. X
generally only one several places of contended that national shall not be applied because
domicile residence he is a stateless person. HELD: Domiciliary theory is
denotes a fixed denotes a place of abode called upon to operate because X is a stateless
permanent residence to (physical relation to a person. Nationality principle cannot be applied.
which when absent, one place) Thus, X is still liable under Philippine Law.
has the intention of
returning (legal relation Domicile of natural persons
to a place)
domicile is residence residence is not domicile For the exercise of civil rights and the fulfillment of
coupled with the civil obligations, the domicile of natural persons is
intention to remain for an the place of their habitual residence. (Art. 50, NCC)
unlimited time
Domicile of juridical persons
Note: Residence as used in the Constitution must be
understood to mean domicile. The domicile of juridical persons is
i. the place provided for in the law creating or
Kinds of Domicile recognizing them or in their articles of
agreement;
 Domicile Of Origin - it is assigned to him by the ii. when the law creating or recognizing them, or
law at the moment of birth. any other provision does not fix the domicile of
juridical persons, the same shall be understood
In case of a foundling, his domicile is the country to be the place where their legal representation
where he was found. is established or where they exercise their
principal functions. (Art. 51, NCC)
Can a person be devoid of domicile? NO,
because a person always have domicile of origin Domicile vs Citizenship/Nationality
which is granted at the moment of birth. No
natural person must ever be without a domicile. Domicile is a place of abode. While
citizenship/nationality indicates ties, allegiance and
 Constructive Domicile/Domicile By Operation loyalty to the government.
Of Law - it is assigned to him by the law after
birth on account of a legal disability caused for Q: Can a Person be Devoid of Nationality or
instance by minority, insanity or marriage in case citizenship?
of a woman.
A: Yes, because citizenship is merely a privilege
 Domicile Of Choice - the place freely chosen by which can be taken anytime on valid grounds.
a person so that whenever he is absent, he Besides, there are those stateless persons whose
intends to return. nationality or citizenship was taken from them.

Elements:
1. Physical presence in a fixed place.
2. Intention to remain permanently (animus
manendi).
3. Intention to abandon the old domicile
(animus non revertendi).

Intention without physical presence or physical


presence without intention will not suffice for the
acquisition of domicile, but will be sufficient for
the retention of an existing domicile.

Who Can Establish a Domicile

One who has the legal capacity. Thus, a person


with civil interdiction or suffering from penalty of
law cannot establish domicile because his act is
limited.

Domiciliary Theory – the status, condition, rights,


obligations and capacity of a person should be
governed by the law of his domicile.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

VI. MARRIAGE
REQUISITES OF A VALID MARRIAGE
The Family Code of the Philippines
Essential Requisites (Art 2, FC):
Effectivity Date: 3 August 1988
1. Legal Capacity of the contracting parties
Retroactive Application who must be a male and a female.

The code shall have retroactive effect insofar as it Includes:


does not prejudice or impair vested or acquired a. Age – at least 18 years of age at the time of
rights in accordance with the Civil Code or other celebration of marriage. Be it remembered
laws. (Article 256) that formerly, the marriageable age was 14
years for females and 16 years for males.
MARRIAGE - is a special contract of permanent
union between a man and a woman entered into in Note: With the SC’s decision in CIR vs
accordance with law for the establishment of Primetown amending Art 13 of NCC, did you
conjugal and family life. It is the foundation of the really become 18 years old at your 18 th
family and an inviolable social institution whose birthday?
nature, consequences, and incidents are governed
by law and not subject to stipulation, except that b. Sex – must be a male and a female.
marriage settlements may fix the property relations
during the marriage within the limits provided by this Illustration:
Code. (Art 1, FC) FACTS: X, a Filipino male. In his certificate
of live birth, it was indicated that he is male.
Marriage vs. Ordinary Contract Later, he publicly represented himself as a
1. Marriage is a special contract; and ordinary woman. Eventually, he underwent sex
contract is just a mere contract. reassignment. He now anatomically
2. Marriage is governed by law on marriage; an possessed of genetalia of a woman. He then
ordinary contract is governed by law on filed a petition for the correction of entry so
contacts. that male will be change to female so that he
3. Marriage is an inviolable institution; an ordinary could marry another male. Will the petition
contract is not. for correction of entry be granted? HELD:
4. Marriage is not subject to stipulation except only NO, because there is no mistake of entry to
with regard to marriage settlement which the speak of. The law does not recognize
parties may agree upon before the marriage; an correction of entries on the ground of sex
ordinary contract is subject to stipulation. reassignment, otherwise, such may disturb
5. In marriage, the contracting parties must only be public interest and policy. Besides, there is
2, one is a male and the other is a female; in no law regulating sex reassignment.
ordinary contract, there can be 2 or more parties (Silverio vs. Republic, October 22, 2007)
and the difference of gender is not material.
6. Marriage is terminated by death or annulment Note: Civil Registry – historical record of all
due to legal cause, i.e., it cannot be terminated acts, events, judicial decrees that affects
without the consent of the state; an ordinary rights, duties, status, condition, and legal
contract is terminated upon expiration of the capacity of persons. Birth Certificate is a
term of the contract, upon fulfillment of the historical record of facts at birth. What may
condition for which it was entered into, be changed are clerical or typographical
rescission, mutual agreement of the parties or errors, ridiculous name, etc.
through other causes.
c. Absence of legal impediment
Presumption in Favor of Existence and Validity
of Marriage Examples of Legal Impediment
c.1. Prior subsisting marriage
A man and a woman deporting themselves as c.2. Relationship - Incestuous marriages
husband and wife have entered into a lawful contract (Art. 37) and Quasi-incestuous
of marriage. This legal presumption may be rebutted marriages (Art. 38)
by evidence showing that marriage did not actually c.3. Public Policy (e.g. last par of Art 38)
take place.

Elements of Presumption of Marriage Legal Capacity to Contract Marriage by


1. Cohabitation of man and woman Foreigners, Stateless Persons, Refugees
2. Accompanied with intent to dispose marital
obligations When either or both of the contracting parties
3. Public deportment or representation as husband are CITIZENS OF A FOREIGN COUNTRY, it
and wife. shall be necessary for them before a marriage
license can be obtained, to submit a
Proof to Disprove the Presumption CERTIFICATE OF LEGAL CAPACITY TO
CONTRACT MARRIAGE, issued by their
The fact that there was no record of the marriage is respective diplomatic or consular officials. (A21,
not sufficient to prove that there is no marriage. To FC)
overcome the presumption, one or both are in fact
married to another.
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Saint Louis University - College of Law
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STATELESS PERSONS OR REFUGEES FROM Requisites for authority of a priest to


OTHER COUNTRIES shall, in lieu of the solemnize marriage:
certificate of legal capacity herein required, a. He must have written authority to
submit an AFFIDAVIT SHOWING SUCH solemnize marriages given by his
CAPACITY TO CONTRACT MARRIAGE. (A21, church or religious sect.
FC) b. He must be registered in the office of the
Civil Registrar General (not the local
The legal capacity of a foreigner to marry, as civil registrar).
determined by the law of the country of which he c. He must act within the limits of such
is a citizen, is recognized by our laws. This is in authority.
accordance with the nationality theory under d. Both or one of the parties to the
Article 15 of the Civil Code. marriage must belong to his church or
sect.
Under Article 35(1): a marriage contracted by
any party below 18 years of age EVEN with the c. Any ship captain or airplane chief (only
consent of parents or guardians shall be void ab in cases mentioned in Art 31)
initio.
Requisites:
2. Consent freely given in the presence of the 1. the marriage must ne in articulo mortis
solemnizing officer. (at least 1 is at the point of death)
2. the marriage must be between
Freely given before a solemnizing officer and in passengers or crew members;
the presence of at least two witnesses of legal 3. generally, the ship must be at sea or the
age. The consent is real and not vitiated or plane must be in flight.
rendered defective by any of the vices of
consent. It must be free, voluntary, intelligent Notes: Assistant pilot has no authority.
and personally given.
Marriages may be solemnized during
Consent need not be expressed in any special stopovers at ports of call.
manner or particular form so long as there is a
manifestation that the contracting parties take d. Any military commander of a unit (only in
each other as husband and wife. cases mentioned in Art 32)

Total absence of consent makes the marriage Requisites:


void ab initio. 1. he/she must be a military commander of
a unit;
Hence, the marriage may be annulled if the 2. he/she must be a commissioned officer
consent of either party was obtained by fraud, (his/her rand should start from a second
(Art. 45, par. 3), or if the consent of either party lieutenant);
was obtained by force, intimidation or undue 3. he/she must be assigned to such unit;
influence (Art. 45, par. 4). 4. the said chaplain must be absent at the
time of marriage;
5. the marriage must be one in articulo
Formal Requisites (Art 3, FC): mortis;
6. the contracting parties, whether members
1. Authority of the solemnizing officer. of the armed forces or civilians must be
within the zone of military operation.
It is not the absence or presence of the
solemnizing officer which constitute a formal Notes: The authority of the chaplain to
requirement but it is the absence or presence of solemnize is based on Art 7.
authority.
Of course, other people like a judge or a
Marriage may be solemnized by (Art 7, FC): consul, can perform a marriage in articulo
mortis.
a. Any incumbent member of the judiciary
within the court’s jurisdiction. e. Any consul-general, consul, or vice-
consul.
Conditions:
i. during incumbency Marriages between Filipino citizens abroad
may be solemnized by a consul-general,
If on leave – still have the authority consul or vice-consul of the Philippines.
(A10, FC)
On Sundays, Saturdays, holidays – still
have the authority. The duties of the solemnizing officer with
regard to the celebration of marriage shall
ii. within territorial jurisdiction be performed by the consular official. (A10,
FC)
b. Any priest, rabbi, imam or minister of any
church or religious sect Notes: Only if the contracting parties are
both Filipino citizens. If one is foreigner,
marriage is void.
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

g. Degree of relationship of the


They don’t have authority to solemnize contracting parties;
marriage within the territory of the Phils. h. Full name, residence, and
citizenship of the father;
f. Incumbent Mayor of a city/municipality i. Full name, residence, and
(See secs. 444 and 445 of the Local citizenship of the mother; and
Government Code). j. Full name, residence and citizenship
of the guardian or person having
Conditions: charge, in case the contracting party
i. During incumbency has neither father nor mother and is
ii. Within territorial jurisdiction under the age of twenty-one years.

Note: It has been held that the Vice Mayor NOTE: The applicants, their parents or
has the authority to solemnize marriages guardians shall not be required to exhibit
because if the vice mayor assumes the their residence certificates in any formality in
powers and duties of the office of the mayor, connection with the securing of the marriage
when proper, it is immaterial whether he is license.
the Acting Mayor or merely acting as mayor,
for in both cases, he discharges all the 2. Original birth certificates or, in default
duties and wields the powers appurtenant to thereof, the baptismal certificates of the
said office. (Pp. vs Bustamante, 105 P 64) contracting parties or copies of such
documents duly attested by the persons
Effect if Solemnizing Officer NO Authority; having custody of the originals. (A12 par 1,
Exception (Effect of Good Faith) FC)

The marriage shall be VOID if it shall be These certificates or certified copies of the
solemnized by any person not legally authorized documents by this Article need not be sworn
to perform marriages, UNLESS such marriages to and shall be exempt from the
were contracted with either or both parties documentary stamp tax. The signature and
believing in good faith that the solemnizing official title of the person issuing the
officer had the legal authority to do so. (A35[2], certificate shall be sufficient proof of its
FC) authenticity. (A12 par 1, FC)

When Original Birth Certificate or


2. A valid marriage license EXCEPT in the Baptismal Certificate Need Not be
cases provided for in Articles 27, 28, 31 – 34. Presented

Purpose of the Marriage License The presentation of birth or baptismal


certificate shall not be required if the parents
It is the best proof of the presence of legal of the contracting parties appear personally
capacity of the contracting parties. before the local civil registrar concerned and
swear to the correctness of the lawful age of
Where to apply? said parties, as stated in the application, or
when the local civil registrar shall, by merely
A marriage license shall be issued by the Local looking at the applicants upon their
Civil Registrar of the city or municipality where personally appearing before him, be
either contracting party habitually resides except convinced that either or both of them have
in marriages where no license is required in the required age. (A12 par 3, FC)
accordance with Chapter 2 of this Title. (A9, FC)
3. If either of the contracting parties is unable
If a marriage between Filipino citizens will be to produce his birth or baptismal certificate
celebrated abroad to be solemnized by a consul- or a certified copy of either because of the
general, consul or vice-consul of the Republic of destruction or loss of the original or if it is
the Philippines, the issuance of the marriage shown by an affidavit of such party or of any
license shall be performed by said consular other person that such birth or baptismal
official. (A10, FC) certificate has not yet been received though
the same has been required of the person
Requirements for Application having custody thereof at least fifteen days
prior to the date of the application, such
1. Separate sworn application which shall party may furnish in lieu thereof his
specify the ff.: (Art. 11, FC) CURRENT RESIDENCE CERTIFICATE or
an instrument drawn up and sworn to before
a. Full name of the contracting party; the local civil registrar concerned or any
b. Place of birth; public official authorized to administer oaths.
c. Age and date of birth; Such instrument shall contain the sworn
d. Civil status; declaration of two witnesses of lawful age,
e. If previously married, how, when setting forth the full name, residence and
and where the previous marriage was citizenship of such contracting party and of
dissolved or annulled; his or her parents, if known, and the place
f. Present residence and citizenship; and date of birth of such party. The nearest
of kin of the contracting parties shall be
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Saint Louis University - College of Law
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preferred as witnesses, or, in their default, advice has been sought, together with the
persons of good reputation in the province written advice given, if any, shall be attached
or the locality. (A12 par 2, FC) to the application for marriage license. (it
can be manifested in writing or actual
4. In case either of the contracting parties has presence of the parents and such shall be
been previously married, the applicant shall noted by the LCR)
be required to furnish, instead of the birth or
baptismal certificate required in the last Should the parents or guardian refuse to
preceding article, the DEATH CERTIFICATE give any advice, this fact shall be stated in
of the deceased spouse or the (authentic) the sworn statement.
JUDICIAL DECREE OF THE ABSOLUTE
DIVORCE, or the (authentic) JUDICIAL If they do not obtain such advice, or if it be
DECREE OF ANNULMENT or unfavorable, the marriage license shall not
DECLARATION OF NULLITY of his or her be issued till after 3 months following the
previous marriage. (A13 par 1, FC) completion of the publication of the
application therefor.
In case the death certificate cannot be
secured, the party shall make an affidavit 7. Marriage counseling (A16, FC)
setting forth this circumstance and his or her
actual civil status and the name and date of In the cases where parental consent or
death of the deceased spouse. (A13 par 2, parental advice is needed, the party or
FC) parties concerned shall, in addition to the
requirements of the preceding articles,
Note: In case there is a valid divorce decree, attach a certificate issued by a priest, imam
there must first be a Petition For or minister authorized to solemnize
Recognition Of Divorce Decree because marriage under Article 7 of this Code or a
our courts do not take judicial notice of marriage counsellor duly accredited by the
foreign judgments for they must be alleged proper government agency to the effect that
and proved. the contracting parties have undergone
MARRIAGE COUNSELLING.
5. Parental Consent
Failure to attach said certificates of marriage
When Necessary (A14, FC) counselling shall suspend the issuance of
the marriage license for a period of 3
In case either or both of the contracting months from the completion of the
parties, not having been emancipated by a publication of the application.
previous marriage, are between the ages of
18 and 21, shall exhibit to the local civil Issuance of the marriage license within the
registrar, the consent to their marriage of prohibited period shall subject the issuing
their father, mother, surviving parent or officer to administrative sanctions but shall
guardian, or persons having legal charge of not affect the validity of the marriage.
them, in the order mentioned.
Should only one of the contracting parties
Such consent shall be manifested in writing need parental consent or parental advice,
by the interested party, who personally the other party must be present at the
appears before the proper local civil counselling referred to in the preceding
registrar, or in the form of an affidavit made paragraph.
in the presence of two witnesses and
attested before any official authorized by Publication/Posting Requirement (A17, FC)
law to administer oaths. The personal
manifestation (by parents) shall be recorded The local civil registrar shall prepare a notice
in both applications for marriage license, which shall contain the full names and
and the affidavit, if one is executed instead, residences of the applicants for a marriage
shall be attached to said applications. license and other data given in the applications.

Note: Absence of consent will render the The notice shall be POSTED for 10 consecutive
marriage voidable. days on a bulletin board outside the office of the
local civil registrar located in a conspicous place
It is submitted that parental consent is within the building and accessible to the general
required if any or both parties are between public.
the ages of 18, 19, and 20.
This notice shall request all persons having
6. Parental Advice knowledge of any impediment to the marriage
to advise the local civil registrar thereof.
When Necessary (A15, FC)
The marriage license shall be issued after the
Any contracting party between the age of 21 completion of the period of publication.
and 25 shall be obliged to ask their parents
or guardian for advice upon the intended Duties of Local Civil Registrar
marriage. A sworn statement by the 1. Receive the application for marriage
contracting parties to the effect that such license.
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2. Require the presentation of original Suspension of the Issuance of the Marriage


birth/baptismal certificates except when License
presentation of this certificates shall not be
required. If parental advice is required and the parties do
3. Require to furnish, instead of this certificate, not obtain such advice, or if it be unfavorable,
the death certificate of the deceased the marriage license shall not be issued till after
spouse or the judicial decree of annulment 3 months following the completion of the
or declaration of nullity of his or her previous publication of the application therefor.
marriage. In case of default, an affidavit for
such matter shall suffice. Failure to attach certificates of marriage
4. In case of default to present such birth counseling, if required, shall suspend the
certificates, such party may furnish in lieu issuance of the marriage license for a period of
thereof his current residence certificate or 3 months from the completion of the publication
an affidavit for such matter. Such of the application.
instrument shall contain the sworn
declaration of 2 witnesses of lawful age. Enforceability/Validity of the License (A20,
5. The local civil registrar shall prepare a FC)
notice and post the same for 10
consecutive days. The license shall be valid in any part of the
6. In case of any impediment known to the Philippines for a period of 120 days from the
local civil registrar or brought to his DATE OF ISSUE, and shall be deemed
attention, he shall note down the particulars automatically cancelled at the expiration of said
thereof and his findings thereon in the period if the contracting parties have not made
application for a marriage license, but shall use of it.
nonetheless issue said license after the
completion of the period of publication, The expiry date shall be stamped in bold
UNLESS ordered otherwise by a competent characters on the face of every license issued.
court at his own instance or that of any
interested party (the oppositor may file an The date of issue is the date of signing of the
injunctive action because LCR has only marriage license by the Local Civil Registrar
ministerial function). No filing fee shall be
charged for the petition nor a corresponding An expired license is a void license. A void
bond required for the issuance of the order. license cannot validate a marriage.
(A18, FC)
7. The local civil registrar shall require the 3. A marriage ceremony which takes place with
payment of the fees prescribed by law or the appearance of the contracting parties before
regulation before the issuance of the the solemnizing officer and their personal
marriage license. No other sum shall be declaration that they take each other as
collected in the nature of a fee or tax of any husband and wife in the presence of not less
kind for the issuance of said license. It shall, than 2 witnesses of legal age. (A3, FC)
however, be issued free of charge to
indigent parties, that is, those who have no Form – No prescribed form or religious rite for
visible means of income or whose income is the solemnization of the marriage is required. It
insufficient for their subsistence, a fact shall be necessary, however, for the contracting
established by their affidavit or by their oath parties to appear personally before the
before the local civil registrar. (A19, FC) solemnizing officer and DECLARE in the
8. Prepare the documents required and to presence of not less than 2 witnesses of legal
administer oaths to all interested parties age that they take each other as husband and
without any charge in both cases. The wife. This declaration shall be contained in the
documents and affidavits filed in connection marriage certificate which shall be signed by
with the applications for marriage licenses the contracting parties and attested by the
shall be exempt from documentary stamp solemnizing officer. (A6 par 1, FC)
tax.
9. The local civil registrar concerned shall In case of a marriage in articulo mortis, when the
enter all applications for marriage licenses party at the point of death is unable to sign the
filed with him in a registry book strictly in the marriage certificate, it shall be sufficient for one
order in which the same are received. of the witnesses to the marriage to write the
10. Issue the License after publication unless name of said party, which fact shall be attested
ordered otherwise by a competent court. by the solemnizing officer. (A6 par 2, FC)
11. Proper receipts shall be issued by the LCR
to the solemnizing officer transmitting copies Authorized Venues for Marriages
of the marriage certificate. GENERAL RULE: The marriage shall be
solemnized publicly, and not elsewhere:
Note: If Marriages between Filipino citizens 1. In the chambers of the judge;
abroad be solemnized by a consul-general, 2. In open court;
consul or vice-consul of the Philippines, The 3. In the church, chapel or temple;
duties of the local civil registrar with regard to 4. In the office of the consul-general, consul or
the celebration of marriage shall be performed vice consul, and not elsewhere.
by the consular official. (A10, FC)
EXCEPT:

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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

1. In marriages contracted at the point of Duties Of The Solemnizing Officer:


death; 1. To prepare marriage certificate: the original
2. In remote places; for the contracting parties (either of them); 2
3. Marriage at a house or place designated by (duplicate and triplicate) for the LCR not later
the parties in a sworn statement upon their than 15 days after the celebration of the
written to the solemnizing officer. marriage; one (quadruplicate) shall be retained
4. All marriages solemnized OUTSIDE the by the solemnizing officer.
Philippines in accordance with the laws in
force in the country where they were 2. In the cases provided under Art. 27 (marriage in
solemnized and valid there as such, shall articulo mortis) and 28 (marriage in remote
also be valid in this country, except those places), the solemnizing officer shall state in an
void foreign marriages. (A8, FC) affidavit executed before the local civil registrar
or any other person legally authorized to
Marriage by proxy: administer oaths that the marriage was
a. If performed here in the Philippines, the performed under such circumstances stated in
marriage is void because physical presence said articles, and that the officer took the
of both parties is required. necessary steps to ascertain the ages and
b. If performed abroad, whether between relationship of the contracting parties and the
Filipinos or foreigners or mixed, and valid absence of a legal impediment to the marriage.
there as such, the marriage should be
considered valid in the Philippines as The affidavit of the solemnizing officer required
mentioned under Art. 26. by this article takes the place of the marriage
license and constitutes an assurance that the
MARRIAGE CERTIFICATE – proof of marriage in parties are of the proper ages and that there is
which the parties declare that they take each other no impediment to their marriage.
as husband and wife.
3. The original of the affidavit required above,
Contents of Marriage Certificate together with a legible copy of the marriage
contract, shall be sent by the person
The marriage certificate, in which the parties shall solemnizing the marriage to the LCR of the
declare that they take each other as husband and place where it was performed within the period
wife, shall also state: of 30 days after the performance of the
marriage.
(1) The full name, sex and age of each contracting
party; LCR has the duty to record the marriage
certificate. Failure to record will not invalidate
(2) Their citizenship, religion and habitual residence; the marriage because it is merely an
administrative requirement.
(3) The date and precise time of the celebration of
the marriage; 4. For marriages involving ratification of marital
cohabitation, the solemnizing officer shall state
(4) That the proper marriage license has been under oath that he ascertained the
issued according to law, except in marriage qualifications of the contracting parties and
provided for in Chapter 2 of this Title; found no legal impediment to the marriage.

(5) That either or both of the contracting parties Distinguished From Marriage License
have secured the parental consent in
appropriate cases; 1. Marriage license is a formal requisite of
marriage, while marriage certificate is not.
(6) That either or both of the contracting parties 2. Marriage license is issued before celebration of
have complied with the legal requirement marriage, while marriage certificate is issued
regarding parental advice in appropriate cases; after the celebration of marriage.
and 3. Marriage license shows the authority to contract
marriage, while marriage certificate shows facts
(7) That the parties have entered into marriage of celebration.
settlement, if any, attaching a copy thereof. 4. Absence of marriage license renders the
(A22, FC) marriage void, while absence of marriage
certificate will not invalidate marriage.
Purpose and Value of Marriage Certificate

The primary or best evidence of a marriage is the ABSENCE, DEFECT OR IRREGULARITY IN THE
marriage contract or marriage certificate. REQUISITES

Since marriage certificate is neither an essential nor Effect of ABSENCE of Essential and Formal
a formal requisite, an unsigned or unattested Requisites
marriage certificate does not invalidate the marriage.
GENERAL RULE: The absence of any of the
Who Issues Marriage Certificate: Solemnizing essential or formal requisites shall render the
Officer marriage void ab initio. (A4 par 1, FC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Absence is a mere ground for declaration of nullity of Lack of Marriage Ceremony


marriage. Thus, if there is no judicial declaration of
nullity of marriage, the marriage is presumed valid EXCEPT: Lex Loci Celebrationis
and existing.
Illustration:
Instances of Absence of Legal Capacity FACTS: H and W got married in the Philippines.
a. Any or both contracting parties are below 18 W went to Canada where she obtained a
at the time of celebration of marriage. (Art divorce. H contracted subsequent marriage with
35 par 1, FC) W2. H then filed a petition for declaration of
nullity of his 1st marriage on the ground of the
This is true notwithstanding the fact that the existence of divorce and that there was no
marriage was celebrated abroad and valid marriage ceremony. The fiscal charged him with
there as such, shall not be valid in the bigamy for which he was convicted. Pending
Philippines because it falls under the appeal of the judgment of conviction, the
exception of lex loci celeracionis. (Art 26, marriage was declared void in the petition for
par 1, FC) declaration of nullity on the ground that there
was no marriage ceremony took place. CA
b. Bigamous/Polygamous marriages (Art 35 affirmed the conviction. HELD: SC reversed the
par 4, FC) – see Discussion Below judgment. H cannot be held liable for bigamy
because the 1st marriage is not ostensibly valid.
c. Void marriage because of no compliance (Morigo vs Pp, 422 S 376)
with Art 53 (Art 35[6], FC) – see Discussion
Below
Effect of Defect in Essential Requisites
d. Incestuous Marriages (Art 37, FC)
A defect in any of the essential requisites shall
e. Quasi-Incestuous Marriages/Void Marriages render the marriage voidable as provided in Art. 45.
by Reason of Public Policy (Art 38, FC) (A4 par 2, FC)

Instances of Absence of Consent Effect of Irregularity in Formal Requisites


a. If one or both are suffering from
psychological incapacity at the time of An irregularity in the formal requisites shall not affect
marriage even if becomes manifest after the the validity of the marriage but the party or parties
celebration. (Art 36, FC; see discussion responsible for the irregularity shall be held civilly,
below) criminally or administratively liable. (A4 par 3, FC)
b. When there is mistake of identity (Art 35 [5],
FC) This is a three-fold liability.
c. Marriage by proxy (no consent/no
declaration) EXCEPT when celebrated Examples of Irregularity of in Formal Requisites:
abroad and valid there as such. 1. Marriage solemnized outside territorial
jurisdiction of the judge – irregularity of the
formal requisite of authority of the solemnizing
No Authority of the Solemnizing Officer – the officer.
marriage is void, provided both parties are in 2. Marriage solemnized in places other than those
bad faith, that is, they did not intend to be bound authorize venues – irregularity in marriage
by the marriage, thus marriage is a sham. ceremony.
3. A marriage contracted by a party who is 21-25
EXCEPT: years old without parental advice – irregularity in
1. Either or both parties believing in good faith securing a valid marriage license.
that the solemnizing officer had the legal 4. Failure to post the application for marriage
authority to do so; (A35[2], FC) license – irregularity in securing a valid marriage
2. Lex Loci Celebrationis license.
5. Absence of 2 witnesses of legal age –
Lack of Marriage License - Marriage license is irregularity in marriage ceremony.
a prerequisite to the celebration of marriage, 6. Absence of marriage certificate.
thus absence of which renders the marriage 7. Unsworn application for marriage license.
void.

EXCEPT: MARRIAGES CELEBRATED OUTSIDE THE


1. Lex Loci Celebrationis PHILIPPINES

Marriages solemnized outside the GENERAL RULE: All marriages solemnized outside
Philippines where no marriage license is the Philippines, in accordance with the laws in force
required by the country where it is in the country where they were solemnized, and
solemnized and valid there as such, shall valid there as such, shall also be valid in this
also valid here. country (LEX LOCI CELEBRATIONIS). (A26 par 1,
FC)
2. Marriages Under Exceptional Circumstances
(A27-34, FC; See discussion below) EXCEPTIONS:
a. Either or both parties did not have the legal
capacity to get married. (A35[1], FC)
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

spouse capacitating him or her to remarry, the


Art 15 of NCC provides that laws relating to legal Filipino spouse shall likewise have capacity to
capacity of persons are binding upon citizens of remarry under Philippine law. (A26 par 2, FC, as
the Phils, even though living abroad. Art. 26 of amended by EO 227)
FC and Art 15 of NCC express the extra-
territorial effect of the exception. Moreover, Art Note: This is a limited recognition of divorce.
17 par 3 of NCC provides that prohibitive laws
concerning persons, their acts or property, and REQUISITES:
those which have for their object public order, 1. Marriage between a Filipino citizen and a
public policy and good customs shall not be foreigner is validly celebrated (textually
rendered ineffective by laws or judgments mixed marriage);
promulgated, or by determinations or 2. Alien spouse obtained a divorce against the
conventions agreed upon in a foreign country. Filipino spouse;
3. Divorce is VALID under the national law of
b. The marriage is immoral being bigamous or the alien spouse;
polygamous not falling under Art 41. (A35[4], 4. The divorce dissolves the marital bonds;
FC) 5. The divorce capacitates the alien spouse to
c. Consent of one party is lacking because of remarry.
mistake as to the identity of the other. (A35[5],
FC) TRADITIONAL RULE: Art 26 par 2 applies when
d. Subsequent marriages which are considered parties at the time of celebration are a Filipino
void due to lack of recording under Art. 53. and an alien.
(A35[6], FC)
e. One of the parties is psychologically BUT UNDER RECENT JURIPRUDENCE, a
incapacitated at the time of the marriage. (A36, divorce obtained by a former Filipino who had
FC) been naturalized in another country after his
f. Incestuous marriage. (A37, FC) naturalization is NOW recognized.
g. Void marriages by reason of public policy. (A38,
FC) The validity of divorce is determined by the
nationality of the party who obtained it. (San
Note: Common-law marriages obtained abroad by Luis vs. San Luis, February 2007)
Filipinos are also not valid in the Philippines.
Mitigation of Consequences Principle

FOREIGN DIVORCES For as long as divorce is valid and even if the


Philippines does not recognized it, nevertheless,
Absolute Divorce by a Filipino Spouse it would mitigate the effects of divorce in favor of
the Filipino spouse.
Divorce initiated by a Filipino is against public policy,
thus, cannot be recognized. Art 15 of NCC provides The intent of said provision (Art 26, par 2, FC) is
that laws relating to family rights and duties or to to avoid the absurd situation where the Filipino
status, condition and legal capacity of persons are spouse remains married to the alien spouse,
binding upon citizens of the Phils, even though living who after obtaining a divorce, is no longer
abroad. Moreover, Art 17 par 3 of NCC provides that married to the Filipino spouse. Taking into
prohibitive laws concerning persons, their acts or consideration the legislative intent, the provision
property, and those which have for their object public should be interpreted to include cases involving
order, public policy and good customs shall not be parties who, at the time of celebration of the
rendered ineffective by laws or judgments marriage, were Filipino citizens, but later one of
promulgated, or by determinations or conventions them becomes naturalized as a foreign citizen
agreed upon in a foreign country. A Filipino is and obtains a divorce decree. The Filipino
governed by his national law wherever he goes. spouse should likewise be allowed to remarry as
if the other party was a foreigner at the time of
HOWEVER, insofar as the foreigner is concerned, the solemnization of the marriage. To rule
the divorce obtained by the Filipino spouse will be otherwise would be to sanction absurdity and
recognized because of the Philippine’s adherence to injustice. (Republic v Obrecido, Oct 5, 2005;
the nationality rule. Thus, the foreigner spouse Republic v Iyoy, Sept 21, 2005) The other
cannot claim that he/she still has an interest in the reason for this is the application of nationality
property acquired by the Filipino after the divorce. As theory for a former Filipino is no longer governed
to the foreigner, he/she shall be considered by Philippine Law.
divorced. Foreigner cannot also file a criminal case
of adultery/concubinage against the Filipino spouse
because while the latter is considered married to MARRIAGES UNDER EXCEPTIONAL
him/her, the foreign spouse is no longer married to CIRCUMSTANCES
the Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil
Case) a. Marriage in Articulo Mortis

Divorce by Foreigner Spouse Art. 27: marriage in articulo mortis; remains valid
even if the ailing party subsequently survives.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
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Saint Louis University - College of Law
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Duty of the Solemnizing Officer d. Convalidation of Cohabitation/Ratification of


Marital Cohabitation
The solemnizing officer shall state in an
AFFIDAVIT executed before the LCR or any Art. 34: Marriage of a man and a woman who
other person legally authorized to administer have lived together as husband and wife for at
oaths that the marriage was performed in least five years and without any legal
articulo mortis. (A29, FC) impediment to marry each other.

The original of the affidavit required together Requisites of ratification of marital


with the legible copy of the marriage cohabitation:
contract, shall be sent by the person 1. The contracting parties must have been
solemnizing the marriage to the LCR of the living together as husband and wife for at
municipality where it was performed within least 5 years before the marriage.
the period of 30 days after the performance 2. The parties must have no legal impediment
of the marriage. (A30, FC) to marry each other during the cohabitation.
3. The contracting parties shall state the
Art. 31: marriage in articulo mortis between foregoing facts in an affidavit before any
passengers or crew while the ship is at sea or person authorized by law to administer
the plane is at flight, and during stopovers at oaths.
ports of call. 4. The solemnizing officer shall also state
under oath that he ascertained the
Art. 32: marriages in articulo mortis between qualifications of the contracting parties are
persons within the zone of military operation, found no legal impediment to the marriage.
whether members of the armed forces or
civilians. Status of the Marriage

Who May Solemnize The marriage is valid even if celebrated without


marriage license.
All those authorized under Article 7 of the Family
Code and the Mayor. Compliance with other Marriages solemnized without license are void from
requirements before they can solemnize is the beginning, except those Marriages under
necessary exceptional circumstances. (A35[3], FC)

b. Marriages in Remote Place Marriage license is a formal requisite of marriage


EXCEPT those marriages under exceptional
Art. 28: marriage in remote places (no means of circumstances. (A3[2], FC)
transportation to personally appear to the LCR).

Duty of the Solemnizing Officer VOID AB INITIO MARRIAGES

The solemnizing officer shall state in an VOID MARRIAGES – marriage which is not valid
affidavit executed before the local civil from its inception.
registrar or any other person legally
authorized to administer oaths that the Declaration of Nullity Divorce
residence of either party, specifying the Cause of nullification Cause exists after the
barrio or barangay, is so located that there is exists from the beginning marriage.
no means of transportation to enable such of marriage.
party to appear personally before the LCR One recognized in the Not recognized in the
and that the officer took the necessary steps Phils which allows the Phils EXCEPT when
to ascertain the ages and relationship of the parties to remarry. obtained by foreigners
contracting parties and the absence of legal and valid in their country.
impediment to the marriage. (A29, FC)
Void Marriages Under the FC:
The original of the affidavit required together 1. Between minors (below 18) even with consent
with the legible copy of the marriage of parents or guardians. (A35[1], FC)
contract, shall be sent by the person
solemnizing the marriage to the LCR of the 2. Solemnized by unauthorized officer, EXCEPT
municipality where it was performed within good faith of one or both of the parties. (A35[2],
the period of 30 days after the performance FC)
of the marriage. (A30, FC)
3. Solemnized without marriage license, except
under Art. 27, 28, 31–34(marriages exempt from
c. Marriages among Muslims or among marriage license). (A35[3], FC)
Members of the ethnic cultural communities.
4. Bigamous/polygamous
Art. 33: Marriages among Muslims or among
members of the ethnic cultural communities Requisites of Bigamy
provided that they are solemnized in accordance a. There is a prior subsisting marriage;
with their customs, rites or practices. b. Prior marriage not validly terminated;
c. Spouse contracted a 2nd or subsequent
marriage;
27 | P a g e
Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. 2nd or subsequent marriage would have actual physical search of the places
been valid were it not for prior subsisting where the absent spouse is possibly be.
one.
c. Spouse present must institute a
GENERAL RULE: A marriage contracted by any summary proceeding (NOT a special
person during the subsistence of a previous proceeding) for the judicial declaration
marriage is VOID. of presumptive death (by way of
petition) of the absentee, without
EXCEPTIONS: prejudice to the effect of reappearance
a. Code of Muslim Personal Laws of the absent spouse.

Muslim men in the Philippines are allowed Note: Courts usually refuses to make
maximum of 4 marriages even if the prior judicial declaration of presumptive death
marriage/s are still subsisting. Such privilege because it is not conclusive. Unlike in
is not granted among Muslim women. Arts 390 and 391, NCC, it is only in Art
41 of FC that a judicial declaration of
b. Art. 41: a marriage contracted by any presumptive death is mandatorily
person during the subsistence of a previous required for the purpose of capacitating
marriage in cases where the prior spouse the present spouse to remarry. It is also
had been absent; (A35[4], FC) required in cases of settlement of
estate.
Valid Bigamous Marriage - before the
celebration of the subsequent marriage, the RECENT JURISPRUDENCE ruled that
prior spouse had been absent for 4 the judicial declaration of presumptive
consecutive years and the spouse present death is immediately final and executory,
had a well-founded belief that the absent thus not subject to appeal.
spouse was already dead. In case of
disappearance where there is danger of The judicial declaration must be
death under the circumstances set forth registered with the LCR.
under Art. 391 of the Civil Code, an absence
of only 2 years shall be sufficient. Effect of registration:
a. The effects of 1st marriage is merely
For the purpose of contracting the suspended.
subsequent marriage, the spouse present b. 2nd marriage is conditional, that is,
must institute a summary proceeding for the dependent on the confirmation of
declaration of presumptive death of the death and reappearance.
absentee, without prejudice to the effect of
reappearance of the absent spouse: this Effects of Subsequent Marriage
provision is intended to protect the present
spouse from a criminal prosecution for IF BOTH PARTIES IN GOOD FAITH –
bigamy because with the judicial declaration marriage is valid. If the absent spouse
that the missing spouse is presumptively reappeared and he/she or any interested
dead, the good faith of the present spouse person does not file an affidavit with the civil
in contracting a second marriage is already registrar of the fact of reappearance, 2 valid
established. marriages exist (valid bigamous marriage).

Requisites (A41, FC): IF BOTH SPOUSES OF THE


a. Before the celebration of the SUBSEQUENT MARRIAGE ACTED IN BAD
subsequent marriage, the prior spouse FAITH – marriage shall be void ab initio (for
had been absent for FOUR consecutive being bigamous) and all donations by
years (In case of disappearance where reason of marriage and testamentary
there is danger of death under the dispositions made by one in favor of the
circumstances set forth in the provisions other are revoked by operation of law. (A44,
of Article 391 of the Civil Code, an FC) An example of this is when both parties
absence of only TWO YEARS shall be to the 2nd or subsequent marriage know the
sufficient); whereabouts of the absent spouse.

b. the spouse present has a WELL- Cause of Termination of Subsequent


FOUNDED BELIEF that the absent Marriage
spouse was already dead.
The subsequent marriage shall be
In Republic vs Nolasco, this requirement automatically terminated (terminated ipso
is satisfied if serious and diligent efforts facto) by the recording of the affidavit of
is exerted to locate the whereabouts of reappearance of the absent spouse
the absent spouse. If there is police (constitute as a notice in rem, UNLESS
assistance, thus the disappearance there is a judgment annulling the previous
must be reported to the police. There marriage or declaring it void ab initio.
must also be sending of letters to the
relatives or known acquaintances of the A sworn statement of the fact and
absent spouse. And there must be circumstances of reappearance shall be
recorded in the civil registry of the residence
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

of the parties to the subsequent marriage at 6. Subsequent marriages in violation of Arts 40,
the instance of any interested person, with 52 and 53
due notice to the spouses of the subsequent
marriage and without prejudice to the fact of Art. 40. The absolute nullity of a previous
reappearance being judicially determined in marriage may be invoked for purposes of
case such fact is disputed. (A44, FC) remarriage on the basis solely of a final
judgment declaring such previous marriage
This is the only instance where a marriage is void.
terminated extra-judicially EXCEPT when
reappearance is disputed. Pp vs Aragon, Feb 28, 1957 – no need of judicial
declaration.
Effects of Termination of Subsequent
Marriage Gomez vs Lipana, June 30, 1970 – there was a
need for a judicial declaration.
The termination of the subsequent marriage
referred to in the preceding Article shall Odayat vs Amante, June 2, 1977 – no need for
produce the following effects (Art. 43, FC): judicial delaration.

(1) The children of the subsequent marriage Weigel vs. Sempio Diy, Aug 19, 1986 – there
conceived prior to its termination shall was a need for judicial declaration.
be considered legitimate;
Yap vs CA, Oct 28, 1986 – no need for a judicial
(2) The absolute community of property or declaration.
the conjugal partnership, as the case
may be, shall be dissolved and Family Code, Aug 3, 1988 – there is a need for
liquidated, but if either spouse judicial declaration.
contracted said marriage in bad faith,
his or her share of the net profits of the Purpose/Aim of Art 40
community property or conjugal
partnership property shall be forfeited in The aim is to do away with any continuing
favor of the common children or, if there uncertainty on the status of the 2nd marriage.
are none, the children of the guilty The 2nd marriage shall likewise be void. The
spouse by a previous marriage or in parties to a marriage should not be allowed to
default of children, the innocent spouse; assume that there marriage is void even if such
be the fact but must first secure a judicial
(3) Donations by reason of marriage shall declaration of the nullity of their marriage. Before
remain valid, except that if the donee such declaration, the person who marries again
contracted the marriage in bad faith, can be charged with bigamy. (Mercado Case)
such donations made to said donee are
revoked by operation of law; Distinguished From Bigamous Void Marriage

(4) The innocent spouse may revoke the In bigamous void marriage, the subsisting
designation of the other spouse who first marriage is valid, while in Art 40, the
acted in bad faith as beneficiary in any subsisting marriage is void. Thus, if a person
insurance policy, even if such remarries without a judicial declaration of nullity
designation be stipulated as irrevocable; of the first marriage, the subsequent marriage is
and void not because it is bigamous but because it
violates Art 40.
(5) The spouse who contracted the
subsequent marriage in bad faith shall Distinguished From Criminal Bigamy
be disqualified to inherit from the
innocent spouse by testate and intestate The crime of bigamy contemplates a situation
succession. where the first marriage is valid, or at least
annullable and not void from the beginning.
Exception to the Exception: If both the
spouses of the subsequent marriage acted HOWEVER, in the case of Mercado vs.
in bad faith, such marriage is void ab initio. Mercado, Aug 1, 2000, SC held that bigamy is
(Art 44) committed for as long as a subsequent marriage
was contracted without judicial declaration of
c. Art 26 par 2, FC – Valid Foreign Divorce nullity of the first marriage pursuant to Art 40 in
(see Discussion Above) relation to Arts 52 and 53 of FC. (But see
dissenting opinion of Justice Vitug) This ruling, in
5. Contract by Mistake In identity – the mistake effect, states that criminal bigamy is determined
here is with regard to the physical identity of one not by the fact that the first marriage is really
of the parties and not with regard merely to the legally void but by the fact that no judicial
character, health, rank, fortune, or chastity of declaration of nullity of the first marriage was
one party to the marriage. This is tantamount to obtained prior to the subsequent marriage.
absence or lack of consent which makes the
marriage void. (A35[5], FC) Note: Although the first marriage is judicially
declared void, any subsequent marriage may

29 | P a g e
Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

still be considered void because of the failure to average couple existing under ordinary
comply with Arts. 52 and 53. circumstances of life and work.
b. Juridical Antecedent - if the roots of the
Art. 52. The judgment of annulment or of trouble can be traced to the history of the
absolute nullity of the marriage, the partition and subject before the marriage although its
distribution of the properties of the spouses and overt manifestations appear only after the
the delivery of the children's presumptive wedding.
legitimes shall be recorded in the appropriate c. It must Permanent and Incurable - if
civil registry and registries of property; treatments required exceed the ordinary
otherwise, the same shall not affect third means of the subject, or involve time and
persons. expense beyond the reach of the subject.

Final Judgment of Nullity of Marriage is binding Jurisprudential Guidelines in Interpreting


only between the parties, the effect of which is and Applying Article 36 – BREIGOIC
terminating the marriage bond. (Republic v. Molina)

GENERAL RULE: Judgment NOT binding a. The burden of proof to show the nullity of
against 3rd persons. the marriage belongs to the plaintiff, and any
doubt must be resolved in favor of the
EXCEPT: When there is registration of the existence of the marriage and against its
judgment. nullity.

Where to Register: Appropriate civil registry and b. The root cause of the psychological
registries of property. incapacity must be:

Art. 53. Either of the former spouses may marry 1. Medically or clinically identified
again after compliance with the requirements of
the immediately preceding Article; otherwise, the 2. Alleged in the complaint
subsequent marriage shall be null and void.
It has been relaxed, thus it need not be
Note: The recording is NECESSARY to bind 3 rd alleged in the complaint.
persons and for the parties to be able to validly
contract a subsequent marriage. 3. Sufficiently proven by experts

The fact of registration restores legal capacity to In the case of Marcos vs Marcos,
contract a subsequent marriage. October 19, 2000, it is not indispensable
to undergo psychiatric evaluation, it is
sufficient that one is assessed by expert
7. Art. 36: Those contracted by a party who at the for purposes of the petition.
time of the celebration of marriage was
psychologically incapacitated to comply with Expert testimony is no longer
the marital obligations even if such incapacity indispensable.
becomes manifest only after its solemnization.
Under present jurisprudence, the
Psychological incapacity - the condition of a incapacity must be proven based on the
person who does not have the mind, will, and totality of evidence presented.
heart for the performance of essential
marital/parental obligations. It is the inability to In Ferraris vs Ferraris, 495 SCRA 396,
understand the marital obligations leading to SC held that the marriage cannot be
non-performance of the same. voided on the ground of psychological
incapacity because of the failure to
It has no exact definition but is restricted to prove the existence of the same. SC
psychological incapacity to comply with the also discussed in this case the probative
essential marital obligations of marriage. It weight of the expert testimony to the
involves a senseless, protracted, and constant effect that the doctor failed to prove the
refusal to comply with the essential marital existence of mixed personality disorder
obligations by one or both of the spouses of the husband. The testimonies of the
although he/she or they are physically capable doctor were just her assumptions and
of performing such obligations. (Chi Ming Tsoi vs based on what the plaintiff confined to
CA) her, thus hearsay. There was failure to
obtain collateral information.
It must be adjudged on a case to case basis. It
should refer to no less than a mental (not However, if there are independent
physical) incapacity. evidence to show the incapacity, then
the marriage may be declared void.
General characteristics of psychological
incapacity: Expert testimony is only indispensable
a. It must be Grave - if the subject cannot when no other evidence was presented,
carry out the normal and ordinary duties of otherwise, such will only be considered
marriage and family, shouldered by any cumulative or corroborative.

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Dick Francisco Fernandez & Claryl-Anne D. Laminato

4. Clearly explained in the decision


Note: The favorable recommendation of
c. The incapacity must be proven to be OSG has been relaxed. There must be an
existing at the time of the celebration of independent judgment of the court.
the marriage although the manifestation
need not be perceivable at such time. The Following Do Not Constitute
Psychological Incapacity
d. The incapacity must also be shown to be 1. Drunkenness / habitual alcoholism
medically or clinically permanent or 2. Joblessness
incurable, although the incurability may be 3. Mere sexual infidelity or perversion
relative only in regard to the other spouse, 4. Abandonment
not necessarily absolutely against everyone 5. Immaturity
of the same sex. 6. Irresponsibility
7. Refusal to give support
Incurability may be absolute as when the 8. Infliction of physical violence
incapacity persists in all relationships. It may
also be relative as when the incapacity is Note: While these may not constitute
only with the present spouse. psychological incapacity, they may be
considered as manifestations.
e. Such illness must be grave enough to
bring about the disability of the party to 8. Incestuous Marriages (Art 37, FC)
assume the essential obligations of
marriage. Marriages between the following are incestuous
and void from the beginning, whether the
This means that there must be a serious relationship between the parties be legitimate or
mental and personality disorder which illegitimate:
renders him or her incapable of 1. Between ascendants and descendants of
understanding his/her marital obligations. any degree.
2. Between brothers and sisters, whether of
If the mental disorder is not connected with the full or half-blood.
the failure to perform marital obligations, it is
considered merely as a difficulty. Rationale for the Ban on Incestuous Marriage

f. The essential marital obligations must be In the first place, they are abhorrent to the
those embraced by Arts. 68 –71 and Arts. nature, not only of civilized men, but of
220 - 225 of the Family Code, with regard to barbarous and semi-civilized people and, in the
parents and children. Such non- second place, tend to the confusion of rights and
compliance must also be state in the duties incident to family relations. Also, a child of
petition, proven by evidence, and included in incestuous union creates a special problem of
the text of the decision. social placement, because its status is so
confused, as is that of its parents. In addition,
Essential marital obligations: science and experience have established
Art. 68: the husband and wife are obliged to beyond cavil that such intermarriages very often
live together, observe mutual love, respect result in deficient and degenerate offspring,
and fidelity, and render mutual help and which if occurring to any great extent, would
support. amount to a serious deterioration of the race.
Art. 220: parental authority over the person Finally, social prohibitions against incest
of their unemancipated children. promote solidarity of the nuclear family.
Art. 225: parental authority over the
property of their unemancipated children. 9. Quasi-incestuous Marriages / Void by
Reason of Public Policy (ART 38, FC)
g. Interpretations given by the National
Appellate Matrimonial Tribunal of the These marriages are void from the beginning for
Catholic Church, while not controlling, reasons of public policy:
should be given great respect by our courts. 1. Between collateral blood, whether legitimate
or illegitimate, up to the fourth civil degree.
When the marriage is annulled by the 2. Between step-parents and step-children.
NAMT, still, the marriage under the civil law 3. Between parents-in-law and children-in-law.
is valid and existing. 4. Between the adopting parent and the
adopted child.
h. The trial court must order the fiscal and the 5. Between the surviving spouse of the
Solicitor general to appear as counsel for adopting parent and the adopted child.
the State. No decision shall be handed down 6. Between the surviving spouse of the
unless the Solicitor general issues a adopted child and the adopter.
certification, which will be quoted in the 7. Between an adopted child and a legitimate
decision, briefly stating his reasons for his child of the adopter.
agreement or opposition to the petition. The 8. Between adopted children of the same
Solicitor General and the fiscal shall submit adopter.
such certification to the court within 15 days 9. Between parties where one, with the
from the date the case is submitted for intention to marry the other, killed that
resolution. other person’s spouse, or his or her own
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

spouse; in this case, there is no need for Where to File:


conviction of the guilty party.
The petition shall be filed in the Family Court of the
Reasons for the Prohibition province or city where the petitioner or the
respondent has been residing for at least 6 months
They are against public policy. It is the policy of prior to the date of the filing or in the case of non-
the state to foster a normal, peaceful and resident respondent, where he may be found in the
wholesome integral nuclear family unit which Philippines, at the election of the petitioner. (S2[b],
would constitute the very foundation of society. AM 02-11-10-SC)

Other relationships which are not Prescriptive Period


impediments to marriage:
1. Brother-in-law and sister-in-law The action or defense for the declaration of absolute
2. Stepbrother and stepsister nullity of a marriage shall not prescribe. (Art 39, FC;
3. Guardian and ward S2[c], AM 02-11-10-SC)
4. Adopted and illegitimate child of the adopter
5. Adopted son of the husband, and adopted Note: RA 8533 amended Art. 39, eliminating the
daughter of the wife second sentence thereof which states the
prescriptive period of 10 years in case of marriages
NOTE: RA 6995 (Mail Order Bribe Act) declares celebrated before the affectivity of FC which fall
as unlawful the practice of matching Filipino under Art 36 .
women for marriage to foreign nationals on a
mail order basis and other similar practices Appearance of the State/Prohibition vs. Default
including the advertisement, publication, printing Judgment
or distribution of brochures, fliers and other
propaganda materials in furtherance thereof. Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order
Action For Declaration Of Nullity Of Marriage the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
Who may Bring prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.
A petition for the declaration of absolute nullity of
void marriage may be filed SOLELY by the husband In the cases referred to in the preceding paragraph,
or the wife.” (S2[a], AM 02-11-10-SC) no judgment shall be based upon a stipulation of
facts or confession of judgment.
Petition for declaration of nullity of marriage, in the
case of Catalan vs CA, February 2, 2007, is If the defendant fails to answer within 15 days from
considered as an ordinary civil action, thus any receipt of the summons, he or she cannot be
proper party who has legal interest may file the declared in default unlike in ordinary civil cases, and
petition. In this case, SC recognized the legal the court will order the full-blown (not summary)
capacity of the 1st wife to institute the petition. hearing of the case.

Petition for declaration or annulment of marriage If the answer admits the allegations of the petition,
shall be filed by the aggrieved spouse and such is judgment on the pleadings cannot be decreed.
personal to him/her while he/she is still living. After Material facts alleged in the petition shall always be
death, the heirs may assail the validity of marriage in proved.
the settlement proceedings. (Enrico Case, 534
SCRA 418) In effect, the settlement court can decide Note: Appearance of the OSG is no longer
on the validity of marriage whose decision is final indispensable if the State is already protected by the
and inappealable. appearance of the prosecutor.

Moreover, in the case of Ninal vs Bayadog, March Reason for the Appearance of the State
14, 2000, SC recognized the right of the heirs of the
deceased father assailing the validity of his marriage The reason for the duty is because marriage is not
with their step-mother in a settlement proceeding. just a contract between the parties but a social
They have legal interest to determine their institution, in the preservation of which, the State is
successional right to the exclusion of the step- interested.
mother.
COLLUSION – one which occurs where, for
The pleading may be in the form of petition or purposes of getting an annulment or nullity decree,
complaint where all grounds must be alleged. In one the parties come up with an agreement making it
case, there was a petition filed for declaration of appear that the marriage is defective due to the
nullity of marriage under Art 36. The court dismissed existence of any of the grounds for annulment or
the case. On appeal, one new ground is included nullity and agreeing to represent such false or non-
which is lack of license. SC held that the new ground existent cause of action before the proper court with
should be disregarded. All grounds must be alleged. the objective of facilitating the issuance of a decree
Further, SC held that the judgment can no longer be of annulment of nullity of marriage.
reversed because parties are estopped from citing
the new ground. Neither the party can file a 2 nd The Following Warrants the Conduct of Investigation
petition for nullity by reason of res judicata. a. If defendant does not tender an answer.
b. If there is an answer but no further appearance.
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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

c. If either of the parties withdraw from the case. Liquidation only happens after finality of
judgment. In US, they call it “bifurcated process.”
If there is collusion, dismissal of the petition is
warranted. The liquidation is subject to the rule on forfeiture.
Thus, if either spouse contracted said marriage
HOWEVER, even if there is an agreement to file the in bad faith, his or her share of the net profits of
annulment or nullity case, collusion will not exist if the community property or conjugal partnership
the grounds relied upon truly exist and are not just property shall be forfeited in favor of the
concocted. common children or, if there are none, the
children of the guilty spouse by a previous
STIPULATION OF FACTS – admission by both marriage or in default of children, the innocent
parties made in court agreeing to the existence of spouse.(Art 43 [2], FC)
the act constituting the ground for annulment or
nullity. SC held that in bigamous marriages along with
adulterous relationships, relationships in a state
CONFESSION OF JUDGMENT – admission made of concubinage, relationships with prior existing
in court by the defendant admitting fault as invoked marriages, or multiple marriages of married
by the plaintiff to sever the marriage ties. man, Article 148 of the FC on Rule of Limited
Co-ownership shall apply. In such case, there is
Right To Support And Custody During The no presumption of equal sharing. Thus, co-
Pendency Of The Action ownership extends during relationship upon
proof of actual acquisition. (Atienza vs De
Art. 49. During the pendency of the action and in Castro)
the absence of adequate provisions in a written
agreement between the spouses, the Court shall 5. Donations by reason of marriage shall remain
provide for the support of the spouses and the valid, except that if the donee contracted the
custody and support of their common children. The marriage in bad faith, such donations made to
Court shall give paramount consideration to the said donee are revoked by operation of law. (Art
moral and material welfare of said children and their 43 [3], FC)
choice of the parent with whom they wish to remain 6. The innocent spouse may revoke the
as provided to in Title IX (See Art 213). It shall also designation of the other spouse who acted in
provide for appropriate visitation rights of the other bad faith as beneficiary in any insurance policy,
parent. even if such designation be stipulated as
irrevocable; (Art 43 [4], FC) and
Art. 213. In case of separation of the parents, 7. The spouse who contracted the subsequent
parental authority shall be exercised by the parent marriage in bad faith shall be disqualified to
designated by the Court. The Court shall take into inherit from the innocent spouse by testate and
account all relevant considerations, especially the intestate succession. (Art 43 [5], FC)
choice of the child over seven years of age, unless 8. If both spouses of the subsequent marriage
the parent chosen is unfit. acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage
No child under 7 shall be separated from the mother, and testamentary dispositions made by one in
unless the court finds compelling reasons to order favor of the other are revoked by operation of
otherwise. law. (Art 44, FC)

Necessity of Final Judgment / Requirement for NOTES:


Remarriage (Art 40 in rel to Arts. 52 and 53 – see  The final judgment in such cases shall provide for
discussion above) the liquidation, partition and distribution of the
properties of the spouses, the custody and
Effects of Declaration of Nullity support of the common children, and the
1. No more marriage ties between the parties. No delivery of third presumptive legitimes, unless
obligation to support one another. Duty to such matters had been adjudicated in previous
perform marital obligations is extinguished. judicial proceedings. (A51, FC)
2. Children conceived and born during the
marriage is downgraded to the status of All creditors of the spouses as well as of the
illegitimate. The finality of judgment makes the absolute community or the conjugal partnership
children illegitimate ipso facto. An exception to shall be notified of the proceedings for
this rule id Art 35[6] and Art 36 of the FC. liquidation.
3. Children are entitled to support. If the matter of
custody is not yet resolved, apply the rules on In the partition, the conjugal dwelling and the lot
custody. There is grant of physical custody to be on which it is situated, shall be adjudicated in
exercised by one party and visitation rights to be accordance with the provisions of Articles 102
exercised by the other. and 129.
4. There is dissolution and liquidation of co-owned
property under the rule on co-ownership under Unless otherwise agreed upon by the parties, in
Art 147. the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall
The property will be divided in equal share be adjudicated to the spouse with whom the
unless there is proof to the contrary. majority of the common children choose to
remain. Children below the age of 7 years are
deemed to have chosen the mother, unless the
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Court has decided otherwise. In case there is no


such majority, the Court shall decide, taking in to VOID VOIDABLE
consideration the best interests of said children. Invalid/void from the Valid until annulled.
beginning.
 Art. 51. In said partition, the value of the Never be ratified. Susceptible of
presumptive legitimes of all common children, ratification.
computed as of the date of the final judgment of Children, illegitimate Children, legitimate.
the trial court, shall be delivered in cash, EXCEPT Arts. 36 & 53.
property or sound securities, unless the parties, Liquidation of property, Based on property
by mutual agreement judicially approved, had co-ownership under Art regime.
already provided for such matters. 147 and if bigamous
marriage Art 148.
The children or their guardian or the trustee of Can be collaterally Direct attack.
their property may ask for the enforcement of attacked EXCEPT for
the judgment. purposes of remarriage,
or revocation of donation
The delivery of the presumptive legitimes herein propter nuptias.
prescribed shall in no way prejudice the ultimate Nullification is There is prescription.
successional rights of the children accruing upon imprescriptible.
the death of either of both of the parents; but the Any party who has legal Parties are only those
value of the properties already received under interest may impugn the provided by law.
the decree of annulment or absolute nullity shall validity of marriage.
be considered as advances on their legitime. Judicial decree of nullity Judicial declaration is
is necessary for necessary.
Note: As a rule, in void marriages, delivery of purposes of remarriage.
presumptive legitimes is not required EXCEPT
only in void subsequent marriage resulting from
non-compliance with Art 40 in relation to Arts 52 Grounds for the annulment of marriage (Art 45 –
and 53. This is because the rules on co- the grounds are exclusive):
ownership shall govern the partition and
liquidation. The marriage may be annulled for any of the
following causes, existing AT THE TIME OF THE
 Art. 52. The judgment of annulment or of MARRIAGE: LIV-VIA
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and 1. Lack of Parental Consent - That the party in
the delivery of the children's presumptive whose behalf it is sought to have the marriage
legitimes shall be recorded in the appropriate annulled was 18 years of age or over but below
civil registry and registries of property; 21, and the marriage was solemnized without
otherwise, the same shall not affect third the consent of the parents, guardian or person
persons. having substitute parental authority over the
party, in that order, UNLESS after attaining the
 Art. 53. Either of the former spouses may age of 21, such party freely cohabited with the
marry again after compliance with the other and both lived together as husband and
requirements of the immediately preceding wife.
Article; otherwise, the subsequent marriage shall
be null and void. 2. Insanity - That either party was of unsound
mind, unless such party, after coming to reason,
Status of Children born of Void Marriage freely cohabited with the other as husband and
wife.
GENERAL RULE: Children conceived and born
outside a valid marriage or inside a void marriage INSANITY – a manifestation, in language or
are illegitimate. conduct, of disease or defect of the brain, or a
more or less permanently diseased or
EXCEPTIONS: disordered condition of the mentality, functional
1. Children conceived or born (after the marriage or organic, and characterized by perversion,
but) before the judgment absolute nullity of the inhibition, or disordered function of the sensory
marriage under Article 36 has become final and or the intellective faculties, or by impaired or
executory shall be considered legitimate. disordered volition.
2. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be Test of Unsoundness of Mind
legitimate. (A54, FC)
The test is whether the party was deprive of
reason. Insanity which occurred after the
VOIDABLE MARRIAGES / ANNULLABLE celebration of marriage cannot constitute a
MARRIAGES cause of nullity.
VOIDABLE MARRIAGE - is valid until it is annulled. Drunkenness – may be considered insanity
Before annulment, the voidable marriage must be depending on the degree of drunkenness which
regarded as valid. One cannot just take the law into deprives a person of his reason.
his own hands. He must go to court.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Somnambulism (sleep-walking) – there is


deprivation of reason, thus insanity. FORCE – there is actual physical coercion and
serious or irresistible force is employed.
Hypnotism – considered insanity provided there
is deprivation of reason. INTIMIDATION - when one of the contracting
parties is compelled by a reasonable and well-
Comatose – considered insanity. It is not the grounded fear of imminent and grave evil upon
disease that is considered but the effect of the his person or property, or upon the person or
disease. property of his spouse, descendants or
ascendants, to give his consent.
Presumption of the Law
The marriage cannot be annulled on the ground
The general presumption of the law is in favor of of intimidation if the threat is to enforce one’s
sanity. He who alleges unsoundness of mind has claim, which is just or legal, through competent
the burden of proof. authority. To be considered a ground, the threat
must be unjust or illegal.
Insanity vs Psychological Incapacity
UNDUE INFLUENCE - when a person takes
Insanity is a restriction of the capacity to act, improper advantage of his power over the will of
while psychological incapacity is the incapacity another, depriving the latter of a reasonable
to comply with marital obligations. freedom of choice.

3. Vitiated Consent through Fraud - That the 5. Impotency - That either party was physically
consent of either party was obtained by fraud, incapable of consummating the marriage with
UNLESS such party afterwards, with full the other and such incapacity continues and
knowledge of the facts constituting the fraud, appears to be incurable.
freely cohabited with the other as husband and
wife. Requisites for physical incapacity:
a. That the incapacity exists at the time of the
Fraud constitutes (Art 46): celebration of the marriage.
a. Non-disclosure of a previous conviction by b. That such incapacity continues to the time
final judgment of the other party of a crime when the case for annulment is being tried.
involving moral turpitude. c. That it appears to be incurable.
d. It must be unknown to the other contracting
Note: In determining whether a crime party.
involves moral turpitude, it is the nature of
the offense is considered. The physical incapacity referred to by law as a
ground for annulment of marriage is Impotency.
Negligence cases under the Revised Penal
Code do not involve moral turpitude IMPOTENCY – inability of the male or female
EXCEPT if it is so reckless amounting to organ of copulation to perform its proper
malicious conduct. function. It is the physical condition of the
husband or the wife in which sexual intercourse
Crimes under Special Laws also involve with a normal person of the opposite sex is
moral turpitude like violation of BP 22, vote impossible. It is the lack of power to copulate,
buying, election offenses. the absence of the functional capacity for the
sexual ac.
b. Concealment (there must be bad faith) by
the wife of the fact that at the time of the Test of Impotency
marriage, she was pregnant by a man other
than her husband. It is the inability to copulate and not the inability
to procreate.
c. Concealment of a STD, regardless of its
nature, existing at the time of the marriage. Impotentia Copulandi vs Impotentia
Generandi
d. Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, Impotentia Copulandi is the physical impotency
existing at the time of the marriage. or inability to copulate and considered as a
ground for annulment of a voidable marriage.
Note: No other misrepresentation or deceit as to Impotentia Generandi on the other hand is
character, health, rank, fortune, or chastity shall known as sterility or the inability to procreate. In
constitute such fraud as will give grounds for sterility, there is capacity to copulate which is
action for the annulment of marriage. absent in impotency.

4. Vitiated Consent by Force, Intimidation or Relative/Temporary impotency – is where a


Undue influence - That the consent of either person is impotent with respect to his or her
party was obtained by force, intimidation, or spouse but not with another woman or man.
undue influence, UNLESS the same having Under the Family Code, relative impotency may
disappeared or ceased, such party thereafter be invoked as ground for annulment of marriage
freely cohabited with the other as husband and in view of the physical incapability of one party
wife. to consummate said marriage with the other.
35 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. In marriage where one is of unsound mind –


Potency is presumed after coming to reason

Potency is presumed unless the person is too c. In marriage where consent is obtained by
old for normal sexual activity. Impotency being fraud – after having full knowledge of the
an abnormal conditions should not be facts constituting fraud
presumed.
d. In marriage where the consent is obtained
Burden of Proof by force, intimidation – after force,
intimidation or undue influence has
He who claims impotency must prove the claim disappeared.
because the presumption is in favor of potency.
Cohabitation, How Proven
Doctrine of triennial cohabitation - if the wife a. After knowledge of the defect, the party who
remains virgin after living together with her is entitled to file an action, freely discharges
husband for 3 years from the time of marriage, his/her marital obligations.
the presumption is that the husband is impotent, b. Consummation of marriage, after knowledge
and he will have to overcome this presumption. of the defect.

Note: NO ratification by free cohabitation in Effects of Ratification – extinguishment of the


cases of absolute impotency because there right of action for annulment of a voidable
could be no cohabitation as consummation of marriage.
the marriage is not possible. However, estoppel
is applicable. Knowledge of impotency at the Note: If the ground is impotency or affliction of
time of marriage will negate annulment of STD, there is no ratification to speak of since the
marriage. defect is permanent. They can be convalidated
only by prescription.
6. Affliction of STD - That either party was
afflicted with a STD (Sexually-transmissible 2. Prescription (See the Table Below)
disease) found to be serious and appears to be
incurable (e.g. Hepatitis B and C are STD and Action for Annulment of Marriage
serious while Hepatitis A is not STD)
Who May Bring and Within What Period (Art 47;
Requisites: AM 02-11-10-SC)
a. Disease must be existing at the time of
marriage Grounds Persons who may Prescriptive
b. The disease must be STD sue period
c. STD must be Serious Lack of The party who Within 5 years after
d. STD appears to be incurable parental lacks parental reaching the age of
consent consent 21
Lack of The parent, legal At anytime before
Affliction of STD as a ground for annulment
parental guardian or person the party who lacks
Under Article 45 (6) v. Affliction of STD as consent having substitute parental consent
constituting fraud under Article 46 (3). parental authority reaches 21
who did not give
Art. 45 (6) Art. 46 (3) consent, in that
One party is afflicted order
One party is afflicted Sane spouse (no At anytime before
with a STD found to be
with a STD regardless Insanity knowledge of the the death of either
serious and appears to
of its nature ground) party
be incurable
Insanity Relatives, At anytime before
The disease is present The disease is guardians or the death of either
at the time of the present at the time of person having party
marriage the marriage legal charge of the
Concealment is insane
immaterial; the Insanity Insane spouse During sanity or
There is concealment lucid interval
disease may be known
to the other party Injured party Within 5 years after
Fraud the discovery of the
fraud
Note: No ratification by free cohabitation in
Force, Injured party Within 5 years from
STD. intimidation the time the
or undue grounds stated
Ratification/Convalidation of Voidable Mariiage, influence ceased
Modes Physical Injured party. If
incapability both are impotent,
Within 5 years after
1. Free Cohabitation no one can file
the marriage
because there is no
To What Marriages Applicable injured party.
Affliction of Within 5 years after
Injured party
STD the marriage
a. In marriage where there is lack of parental
consent – after attaining the age of 21
When Actions for Annulment will not Prosper
36 | P a g e
Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

a. If persons other than those specified by law filed


the case. Status of Children Born of Voidable Marriage
b. When the action was filed after prescription had
set in. Children conceived OR born before the judgment of
c. When the injured party freely cohabited with the annulment shall be considered legitimate.
other as husband and wife.

Where to File the Petition LEGAL SEPARATION

The petition shall be filed in the Family Court of the LEGAL SEPARATION - the marriage bond between
province or city where the petitioner or the the husband and wife is not severed. The parties are
respondent has been residing for at least 6 months merely separated from bed and board.
prior to the date of the filing or in the case of non-
resident respondent, where he may be found in the A Vinculo Matrimonii and A Mensa et Thoro,
Philippines, at the election of the petitioner. Distinguished

Appearance of the State (Art 48 – See Discussion A Vinculo Matrimonii or Absolute divorce is a
Above, Same in Declaration of Nullity of separation of the spouses for a cause authorized by
Marriage) law by a judgment of competent court where the
marriage tie is dissolved leaving the parties free to
Right to Support and Custody During Pendency contract a new marriage. A Mensa et Thoro or
of Action (Same in Declaration of nullity of Relative Divorce, on the other hand is the separation
marriage) of the spouses from bed and board for a cause
authorized by law by the judgment of a competent
Necessity of Final Judgment / Requirements for court but the marriage tie subsists and the parties
Remarriage (Same in declaration of Nullity of are not allowed to marry again. Under the Family
marriage) Code, relative divorce is known as LEGAL
SEPARATION.
Art 40 which speaks of absolute nullity includes
annulment of marriage. Thus, the necessity of History of Divorce and Legal Separation
judicial declaration for purposes of remarriage.  Siete Partidas, during the Spanish regime,
provided for relative divorce/legal separation in
When Decree of Annulment of Marriage be the Philippines, not Absolute Divorce. This was
Issued by the Court (same in declaration of our law until Act 2710, which allowed only
nullity marriage) absolute divorce.
 The Divorce Law (Act 2710) recognized only two
The court shall issue the decree after: grounds for absolute divorce and implicitly ruled
1. Registration of the entry of judgment granting out relative divorce. The two grounds were:
the petition for declaration of nullity or annulment Adultery on the part of the wife; Concubinage on
of marriage in the Civil Registry where the the part of the husband.
marriage was celebrated and in the Civil  Executive Order 141 enlarged the grounds for
Registry of the place where the Family Court is divorce under Act 2710 by adding 8 more
located. grounds – during the Japanese regime.
2. Registration of the approved partition and  Oct 23, 1944, EO 141 was repealed and Act
distribution of the properties of the spouses in 2710 was revived.
the proper Register of Deeds where the real  Act 2710 (the Old Divorce Law) was repealed by
properties are located. the New Civil Code on Aug 30, 1950. Today, with
3. The delivery of the children’s presumptive the exception of Moslem divorces and the
legitimes in cash, property or sound securities. implicit absolute divorce law allowed under
(S22, A.M. No. 02-18-10-SC) Article 36 (Psychological incapacity) of the
Family Code, we only have relative divorce or
legal separation in the Philippines
Note: The Decree in the Civil Registry where the
marriage was registered, the Civil Registry of the Rules for Absolute Divorce TODAY both under
place where the Family is situated, and in the the Civil Code and the Family Code (without
National Census and Statistics Office is the vest prejudice to Muslim Code of Personal Laws)
evidence to prove declaration of absolute nullity or to  If the action is brought HERE in the Philippines
serve as notice to 3rd person concerning the b. Between Filipinos-will NOT prosper
properties of the spouses as well as presumptive EXCEPT divorces between Filipino Muslims
legitimes delivered to the common children. c. Between foreigners-will NOT prosper
d. Between a Filipino and a foreigner-will NOT
prosper.
If there are no properties of the spouses which could
be the subject of liquidation, partition and  If the action is brought in a FOREIGN COURT
distribution, there is NO need for the recording of the 1.) Between Filipinos-will NOT be recognized
judgment in the appropriate registries of property. here even if allowed by said foreign court,
Our governing laws do not require such judgment to and even if the ground be either adultery on
be furnished and recorded in the proper registries of the part of the wife or concubinage on the
property. part of the husband.

Effects of Annulment (Same in Nullity)


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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

2.) Between foreigners-foreign decree will be 2. In legal separation, the law provides for certain
RECOGNIZED here only if the following two consequences like separation of property,
conditions concur: dissolution of the absolute or conjugal property
a.) The foreign court has jurisdiction to grant regime, disqualification to inherit from the
the absolute divorce. innocent spouse in intestate succession, and
b.) Said divorce is recognized as valid by the cessation of the right to cohabitation. In de facto
personal law of the parties involved, that separation (like in abandonment), there is no
is, if valid according to their national law judicial intervention and no dissolution of the
or the law of their domicile depending conjugal partnership or absolute community of
upon the theory adopted by their property, thus the husband and wife are still
countries. heirs of each other, their property relations
remain, unless the innocent party disinherits the
3.) Between a Filipino and a foreigner-If guilty party in his will or her will.
obtained by the foreigner and valid 3. In both cases, the spouses live separately. The
according to his personal law-valid for both absent spouse is not entitled to support and the
foreigner and Filipino under Art 26. marriage remains intact which presupposes that
the obligation of mutual fidelity remains, violation
Absolute Divorce Under Muslim Code of of which subjects the violator to criminal
Personal Laws prosecution such as for adultery and
concubinage. In separation de facto, when the
For a period of 20 years from June 17, 1949, consent of one spouse to any transaction of the
absolute divorce in accordance with Mohammedan other is required by law, judicial authorization
customs and practices is recognized for shall be obtained in a summary proceeding and;
Mohammedans residing in non-Christian provinces. in the absence of sufficient community property,
This law, in turn, is now superseded by the Muslim the separate property of both spouses shall be
Code of Personal Laws, wherein absolute divorce in solidarily liable for the support of the family. The
accordance with Muslim customs and practices is spouse present shall, upon proper petition in a
also recognized. summary proceeding, be given judicial authority
to administer or encumber any specific separate
Legal Separation vs. Separation of Property property of the other spouse and use the fruits
(Arts. 134 – 136, FC) or proceeds thereof to satisfy the latter’s share.

Legal Separation Separation of Property Legal Separation vs. Annulment of Marriage


Must be done thru the 1.) If one prior to
court. marriage-may be done Legal Separation Annulment of marriage
thru the marriage Marriage is not Marriage is defective.
settlement. defective.
2.) If done during the Grounds arise only Grounds must exist at
existence of the after the marriage. the time of or before the
marriage-must be done marriage.
thru the courts. Spouses are still Spouses are no longer
Always involves May exist with or without married to each other married to each other,
separation of property. legal separations. Thus, and cannot remarry. thus they can remarry.
Thus, may be May be considered as There are 10 grounds. There are only 6
considered as a cause one of the effects of legal grounds.
of separation of separation.
property. Grounds for legal separation (Art 55): RP-
Cannot be granted on Can be effected by FADALACS
mere stipulation of agreement of the 1. Repeated physical violence or grossly abusive
facts, or confession of spouses during the conduct directed against the petitioner, a
judgment or agreement marriage subject to court common child, or a child of the petitioner.
of the parties. approval. If done before
the marriage, it can be Illustration:
effected thru marriage FACTS: 5 years after celebration of the
settlement. marriage, H, in several occasions, inflicted upon
The spouses are The spouses are NOT W injuries. The latter filed a criminal case for
necessarily separated. necessarily separated. serious physical injuries. W also filed a civil
action for the issuance of a decree of legal
separation. H filed a motion to suspend the civil
Legal Separation (Art. 55) vs. Separation De case contending that it should wait for the
Facto (Art. 100-101) judgment in the criminal case. HELD: The
motion should not be granted because legal
1. In legal separation, the separation is the result of separation is a separate proceeding and
judicial decree. While in de facto separation, the conviction by final judgment in the criminal case
spouses are just living separately irrespective of is not necessary for the civil case to prosper.
the period but the absent spouse has no clear
intention of deserting the conjugal dwelling (as 2. Physical violence or moral pressure to compel
distinguished from abandonment where there is the petitioner to change religious or political
no intention to return and there is a period of affiliation.
time required to lapsed before abandonment can
be considered).
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

3. Attempt of respondent to corrupt or induce the 2. When he/she has failed within the same
petitioner, a common child, or a child of the period to give any information as to his or
petitioner, to engage in prostitution, or her whereabouts. (Art 101, FC)
connivance in such corruption or inducement.
Effects of Abandonment without just cause
4. Final judgment sentencing the respondent to a. Possible legal separation
imprisonment of more than six years, even if b. Petition for Receivership, Judicial
pardoned. Separation of Property, Sole Administration
of the Absolute Community or conjugal
5. Drug addiction or habitual alcoholism of the partnership (subject to precautionary
respondent. conditions). These remedies are also
available in case of failure to comply with
6. Lesbianism or homosexuality of the obligations to the family. The obligations to
respondent; the family mentioned refer to marital,
parental or property relations. (Art 101, FC)
NOTE: The extent of drug addiction, habitual c. One who abandoned not entitled to support.
alcoholism, lesbianism or homosexuality is the
same as those in annulment. However, in
annulment, they are instances of fraud which Defenses Against Legal Separation (Art 56)
must exist at the time of the celebration of 1. Condonation / Pardon
marriage. In legal separation, such grounds exist
even after the marriage ceremony. Where the aggrieved party has condoned the
offense or act complained of.
7. Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines CONDONATION – this is forgiveness, express
or abroad. or implied, after the commission of the offense or
act complained of and not before.
Bigamy, as a ground for legal separation does
not require a prior conviction for as long as there Forms:
is proof of subsequent bigamous marriage. a. Express
b. Implied - Implied condonation may come in
8. Sexual infidelity or perversion. the form of voluntary sexual intercourse after
knowledge of the cause.
SEXUAL INFIDELITY – includes adultery,
concubinage and other acts short of adultery “Each sexual intercourse of the wife outside
and concubinage for as long as such acts marriage is a separate act of adultery. Therefore,
constitute a clear betrayal of the trust of his/her condonation of one act does not necessarily
spouse. In case of concubinage as a ground for imply condonation of the others”. (People v
annulment of a voidable marriage, there is no Zapata and Bondoc, L-3047, May 16, 1951)
need of conviction by final judgment for such
can be proven by preponderance of evidence. “Where the wife left the conjugal home after her
adulterous acts were discovered, the fact that
SEXUAL PERVERSION – can refer to any the husband did not actively search for her is not
abnormal or pervert act or turning from the true condonation. It was not the duty of the husband
end or proper purpose of sexual organs. to search for the wife under the circumstances.
On the contrary, hers was the duty to return to
9. Attempt by the respondent against the life of the the conjugal home”. (De Ocampo v. Florenciano,
petitioner. L-13553, Feb. 23, 1960)

The attempt must come from an evil design. Condonation must be given by the aggrieved
There is no need of conviction. Such attempt party after full knowledge of the marital offense
can be proven by preponderance of evidence. committed. It must be subsequent of the
commission of the marital offense.
10. Abandonment of petitioner by respondent
without justifiable cause for more than one year. Effect of Conditional Condonation/Pardon

ABANDONMENT – refusal or failure to comply If the aggrieved party expressly forgives the
with the marital obligations. It does not only refer guilty spouse subject to the condition that the
to desertion of the conjugal dwelling without latter should not commit the marital offense
intention of returning. (Art 101, FC) again. Should the guilty spouse commits another
marital offense, there is no compliance with the
Constructive Abandonment – where one condition. Thus, the basis of legal separation
spouse, without just cause, forcibly ejects the can be the previous marital offense because
other from their home and refuses to allow her to non-compliance with the condition amounts to
return and that will constitute abandonment. no condonation at all and the subsequent marital
offense.
Presumption of abandonment:
1. When the spouse who has left the conjugal 2. Consent
dwelling for a period of no less than 3
months; or Where the aggrieved party has consented to the
commission of the offense or act complained of.
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

Where there is collusion between the parties to


CONSENT – acquiescence or permission or obtain decree of legal separation.
willingness to agree to the commission of the act
complained of. COLLUSION - This is an agreement to commit
marital offense or an agreement whereby one
Forms: will pretend to have committed the ground relied
a. Express upon.
b. Implied.
A legal separation obtained thru collusion is
Consent vs. Condonation void.
Consent is prior to the act of commission of
marital offense, while condonation comes after 6. Prescription
the commission of marital offense. To make use
of either, the same must be BEFORE the filing of Prescriptive period
the complaint.
An action for legal separation shall be filed
“An agreement between a husband and wife within 5 years from the time of the occurrence of
whereby each could live with others, have carnal the cause. (Art 57)
knowledge of them, without interference from
the other, constitutes consent”. (People v. In certain acts of adultery, each adulterous act is
Schneckenburger) While such agreement is void a separate cause for legal separation. Each one
for being contrary to public policy, the policy is subject to a separate prescriptive period.
being that the nature and consequence of
marriage is not subject to stipulation, it can still The law should be interpreted to mean within 5
be used as a defense to negate the action of years from the time of discovery of the cause.
nullity.
Action for Legal Separation
Consent must be distinguished from entrapment.
Therefore, if the purpose is to merely catch the Procedure (AM 02-11-11-SC)
wife, this is not consent even if the husband
deliberately went away only to come back and Who May File
trap the wife.
The petition may be filed only by the husband or
3. Connivance wife.

Where there is connivance between the parties Where to file (Same in nullity and annulment)
in the commission of the offense or act
constituting the ground for legal separation. Summons shall be serve to the respondent

CONNIVANCE – this is a tacit permission to the Respondent’s Answer/Failure to File an Answer,


commission of the act complained of. Not both Effects (Same in nullity and annulment)
spouses are parties to the connivance but only
one spouse with a third person. Appearance of the State (Same in nullity and
annulment)
If a husband hires a detective to spy on his wife,
and tells him to have sexual intercourse with her If there is no finding of collusion, the hearing of the
in order to have evidence, this will be a case of petition shall proceed.
Connivance. The husband here is unworthy or
that he himself is guilty. If there is collusion, the petition will be dismissed
motu proprio.
This is similar to instigation in the criminal as
distinguished fro entrapment. Motion to Dismiss

4. Mutual guilt No motion to dismiss the petition shall be allowed


except on the ground of lack of jurisdiction over the
Where both parties have given ground for legal subject matter or over the parties.
separation;
Mandatory COOLING-OFF period
MUTUAL GUILT/RECRIMINATION - both parties
are in pari delicto, there is no offended spouse An action for legal separation shall in no case be
who deserves to bring the action. This is true tried before 6 months shall have elapsed since the
even if one of the parties has been pardoned but filing of the petition. (Art 58, FC)
the other has not. The reason for this lies in the
equitable maxim that “He who comes to court REASON: To make a possible reconciliation
must come with clean hands.” Also, it is also a between the spouses.
rule that, when 2 persons acted in bad faith, they
should be considered as having acted in good NOTE: There is no cooling-off period if the ground
faith. alleged are those under RA 9262 (Violence Against
Women and Children). Art 19 of said law provides:
5. Collusion “In cases of legal separation, where violence as
specified in this act is alleged, Art 58 of FC will not
40 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

apply. The court shall proceed in the main case and declaration of nullity of marriage, the spouses
other incidents of the case as soon as possible. The and their children shall be supported from the
hearing on any application for a protection order filed property regime. After the final judgment
by the petitioner must be conducted within the granting the petition, the obligation of mutual
mandatory period specified in this Act. support between the spouses ceases. However,
in cases of legal separation, the Court may order
Duty of Court to Effect Reconciliation that the guilty spouse shall give support to the
innocent one.
No legal separation may be decreed unless the court
has taken steps toward the reconciliation of the Effects of DECREE of Legal Separation (after the
spouses and is fully satisfied, despite such efforts, lapse of the period to appeal)
that reconciliation is highly improbable. (Art 59, FC) 1. The spouses are entitled to live separately,
but the marriage bonds shall not be severed.
Necessity of Trial and Intervention of State (Art 63 [1], FC)
2. Innocent spouse is entitled to support from
No decree of legal separation shall be based upon a the guilty spouse not vice-versa.
stipulation of facts or a confession of judgment. 3. The status and condition of children are not
affected.
In any case, the Court shall order the prosecuting 4. The property regime shall be dissolved
attorney or fiscal assigned to it to take steps to and liquidated but the offending party shall have
prevent collusion between the parties and to take no right to any share of the net profits earned by
care that the evidence is not fabricated or the property regime, and shall be forfeited in
suppressed. (Art 60, FC) favor of the common children or, if none, the
children of the guilty spouse by a previous
Effects Legal Separation Pendente Lite marriage or, in default of children, the innocent
1. After the filing of the petition for legal separation, spouse [this is in accordance with Art. 43 (2)].
the spouses shall be entitled to live separately (Art 63 [2], FC)
from each other. (Art 61 par 1, FC) 5. The custody of the minor children shall be
2. The administration of the absolute community awarded to the innocent spouse subject to the
property or conjugal partnership may be agreed provisions of Art 213. (Art 63 [3], FC)
upon in writing between them.
3. The court, in the absence of a written agreement Art. 213: in case of separation of the parents,
between the spouses, shall designate either of parental authority shall be exercised by the
them or a third person to administer the parent designated by the Court. The Court shall
absolute community or conjugal partnership take into account all relevant considerations,
property. The administrator appointed by the especially the choice of the child over 7 years of
court shall have the same powers and duties as age, unless the parent chosen is unfit. No child
those of a guardian under the Rules of Court. under 7 years of age shall be separated from the
(Art 61 par 2, FC) mother, unless the court finds compelling
4. The wife is suable alone without impleading the reasons to order otherwise.
husband.
5. When the consent of one spouse is needed in 6. The offending spouse shall be disqualified
any transaction, judicial authorization is from inheriting from the innocent spouse by
necessary. intestate succession. Moreover, Provisions in
6. During the pendency of the action for legal favor of the offending spouse made in the will of
separation, the provisions of Article 49 shall the innocent spouse shall be revoked by
likewise apply to the support of the spouses and operation of law.
the custody and support of the common
children. NOTES:
 If, however, the offended spouse executes
During the pendency of the action, the Court another will in favor of the offending spouse
shall provide for the support of the spouses and after the decree of legal separation, the will
the custody and support of their common shall be valid.
children. The court shall give paramount  The conviction of the wife of adultery does
consideration to the moral and material welfare not disqualify her to inherit from the offended
of said children and their choice of the parent husband, if there is no decree of legal
with whom they wish to remain. It shall also separation between them. Accordingly, the
provide for appropriate visitation rights of the guilty spouse shall not be disqualified from
other parent. (Art 49) inheriting unless the innocent spouse files a
case for legal separation.
From the common mass of property, support
shall be given to the surviving spouse and to the 7. Art. 64: the innocent spouse may revoke the
children during the liquidation of the donations made by him or her in favor of the
inventoried property and until what belongs to offending spouse, as well as the designation of
them is delivered. But from this shall be the guilty party as a beneficiary in any
deducted that amount received for support insurance policy, even if such designation be
which exceeds the fruits or rents pertaining to stipulated as irrevocable.
them.
The revocation shall be recorded in the registry
During the proceedings for legal separation of property in the places where the properties
or for annulment of marriage, and for are located. Alienations, liens and
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

encumbrances registered in good faith before NOTES:


the recording of the revocation shall be Reconciliation has no retroactive effect.
respected. The revocation of or change in the
designation in any insurance beneficiary shall The order of the court ordering the termination of
take effect upon written notification to the the legal separation proceeding and the setting
insured. aside of the decree of legal separation shall be
The action to revoke donation must be brought registered in the proper civil registries for the
within 5 years from the time the decree of legal guidance of all interested parties
separation has become final.

Reconciliation RIGHTS AND OBLIGATIONS BETWEEN


HUSBAND AND WIFE (Arts 68 – 73)
This is a mutual agreement of the spouses to
resume their marital relationship, thus putting an end Obligations Of Spouses: FLORM
to their marital differences.
1. To live together
Requirements in Case of Reconciliation
The duty to live together includes cohabitation or
Should the spouses reconcile, the corresponding consortium and sexual intercourse.
joint manifestation under oath duly signed by them
shall be filed with the Court in the same proceeding Spouses are obliged to live together. But such is
for legal separation. (Art 65) not absolute. Thus a spouse may be exempted
by the court from living with the other spouse:
Effects of reconciliation (Art 66): 1. If the latter should live abroad; or
1. The legal separation proceedings, if still 2. there are other valid and compelling reasons
pending, shall thereby be terminated in whatever for the exemption; like the following where
stage. the wife may refuse to live with the husband:
2. The final decree of legal separation shall a. If the place chosen by the husband as
be set aside, but the separation of property and family residence is dangerous to her life.
any forfeiture of the share of the guilty spouse b. If the husband subjects her to
already effected shall subsist, unless the maltreatment or abusive conduct or
spouses agree to revive their former property insults, making common life impossible.
regime. c. If the husband compels her to live with
his parents, but she cannot get along
The agreement to revive the former property with her mother-in-law and they have
regime shall be executed under oath and shall constant quarrels.
specify (Art 67): d. Where the husband continuously carried
a. The properties to be contributed anew to the illicit relations for 10 years with different
restored regime. women and treated his wife roughly and
b. Those to be retained as separated without consideration.
properties of each spouse. e. Where the husband spent his time in
c. The names of all their known creditors, gambling, giving no money, and at the
addresses and corresponding credits. same time insulting his wife and laying
hands on her.
The agreement of revival and the motion for its f. If the husband has no fixed residence
approval shall be filed with the Court in the same and lives a vagabond life as a tramp.
proceeding for legal separation, with copies of g. When the husband is carrying on a
both furnished to the creditors named therein. shameful business at home.
After due hearing, the Court shall take measures h. If the husband is immoderate or barbaric
to protect the interest of creditors and such order in his demands for sexual intercourse.
shall be recorded in the proper registry of
property. NOTE: However, such exemption shall not apply
if the same is not compatible with the solidarity
Notice to creditors: The recording of the order of the family.
in the registries of property shall not prejudice
any creditor not listed or not notified, unless the In cases where a husband or a wife abandons
debtor-spouse has sufficient separate property the conjugal home without justifiable cause,
to satisfy the creditor’s claim. neither the other spouse can compel him or her
to come home under the pain of contempt of
In other words, the revival of the old property court. Cohabitation is a purely personal
regime between the parties is without prejudice obligation, and to compel a spouse to comply
to vested rights already acquired by creditors with such obligation would be a violation of
prior to such revival. In effect, a legal lien is his/her personal liberty as well as his/her
created in favor of unsecured creditors. Thus: freedom of abode which are guaranteed by the
a. Contractual lien holders retain their liens. Constitution.
b. Creditors without liens are given a legal lien.
c. In case of insufficiency of property to settle But the present spouse has the following
the debts, the future shares of debtor- remedies:
spouse in the property regime will answer a. To withhold support or ask for support.
his personal obligations. b. To recover moral damages.
c. To seek legal separation if proper.
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. To ask the Court to admonish his wife to tranquility no longer apply. In such cases,
return, but she cannot be held in contempt in the identity of interest disappears and the
case of non-performance; also, no consequent danger of perjury based on
mandamus or injunction will lie. identity of interest disappears. (The law
e. To seek separation of property. ceases when the reason for the law ceases)
f. To apply for sole administration of the
property. The Marital Privileged Communication
g. To ask the court for other relief. Disqualification Rule (Spousal Privilege)

2. To observe mutual love, respect and fidelity GENERAL RULE: The husband or wife, during
or after the marriage, cannot be examined
These duties are personal to the spouses and without the consent of the other as to any
go into their intimate relations, so that they must communication received in confidence by one
be performed voluntarily by them. Accordingly, from the other during the marriage.
some consequences of the duties are the
following: EXCEPTIONS: Same in the Marital
a. The unfaithful spouse may be charged Disqualification Rule.
criminally with adultery or concubinage.
(proof of having an illegitimate child is not a 3. To render mutual help and support
proof of concubinage; each act of adultery is
a separate offense) The spouses are jointly responsible for the
b. Sexual infidelity and perversion are also support of the family (both spouses and
grounds for legal separation, and so is children) and the management of the household.
repeated physical violence or grossly The expenses for such support and other
abusive conduct directed against a spouse conjugal obligations shall be paid from:
by the other, which shows lack of love and a. the community property;
respect for the former. b. in the absence thereof, from the income or
c. Both spouses to administer the family fruits of their separate properties; and
property, and they also have joint parental c. In case of insufficiency or absence of said
authority over their minor children, both over income fruits, such obligations shall be
their persons and property. satisfied from their separate properties. (Art.
d. If one spouse commits acts which tend to 70, FC)
bring danger, dishonor, or injury to the other,
the aggrieved spouse may apply to the 4. To Manage the household
Court for relief.
The management of the household shall be the
RULE 130, Rules of Evidence on Marriage right and the duty of both spouses. The
Privilege Rule and Marital Communication expenses for such management shall be paid in
Rule accordance with the provisions of Article 70.
(Art 71)
Disqualification By Reason Of Marriage Or
The Marital Disqualification Rule 5. To Fix the family domicile

GENERAL RULE: During the marriage neither In case of disagreement, the court shall decide.
spouse ( i.e. the witness spouse) may testify for (Art 69)
or against the other (i.e. the Party spouse)
without the consent of the affected spouse ( i.e. Relief Against Breach Of Duties
the party spouse).
When one of the spouses neglects his or her duties
EXCEPTIONS: to the conjugal union or commit acts which tend to
1. In a civil case filed by one against the other. bring danger, dishonor or injury to the other or to the
Examples: cases of annulment, legal family, the aggrieved party may apply to the Court
separation, support, declaration of mental for relief.
incompetency, separation of property.
2. In a criminal case for a crime (i) committed Note: Injury contemplated: not economic or financial
by one against the other such as those injury but physical, moral, emotional or psychological
involving physical assault and violence; injury.
Violation of RA 9262; economic abuse or (ii)
against the direct ascendant or descendant Exercise Of Profession/Business (Art 73)
of the other. (Problem: If the husband raped
his daughter, can the wife who witnessed General rule: Either spouse may exercise any
the rape testify against the husband? YES. legitimate profession, occupation, business or
The husband cannot invoke Marital activity without the consent of the other. The latter
Disqualification Rule in order to serve the may object only on valid, serious and moral grounds.
end of justice)
3. When the reason for the law has ceased. Exception: In case of disagreement, the Court shall
Where the marital and domestic relations decide whether or not:
are so strained that there is no more a. The objection is proper.
harmony to be preserved, nor peace and b. Benefit has accrued to the family prior to the
tranquility which maybe disturbed, the objection or thereafter. If the benefit accrued
reasons based on such harmony and prior to the objection, the resulting obligation
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

shall be enforced against the community


property. If benefit accrued thereafter, such If the party executing the settlement needs parental
obligation shall be enforced against the separate consent, the persons designated in Art.14 to give
property of the spouse who has not obtained consent must be made parties to the agreement (Art
consent (even if redounded to the benefit of the 78)
family).
If the Party to Marriage Settlement Under Civil
Notes: The foregoing provisions shall not prejudice Interdiction
the rights of creditors who acted in good faith.
Creditors in good faith are those who have no If the party executing the marriage settlement is
knowledge of the objection or no knowledge of under civil interdiction or subject to any other
absence of consent. disability (like imbecility), the guardian appointed by
a competent court must be made a party thereto (Art
79) His capacity is restricted by law.
PROPERTY RELATIONS BETWEEN SPOUSES
Binding Effect of Marriage Settlement
Marriage settlement/Ante Nuptial Agreement
GENEREAL RULE: Binding only between the
Definition and Purpose parties.

It is the contract entered into by a man and a woman EXCEPTION: Binding to 3rd persons IF the marriage
who intend or plan to get married fixing the property settlement is registered with the LCR where the
regime that will govern their present and future marriage contract is recorded as well as in the
properties during their marriage. The future spouses proper Registries Of Property where the property is
may, in the marriage settlements, agree upon the located. (Art 77)
regime of absolute community property, conjugal
partnership of gains, complete separation of property Effectivity of Marriage Settlement
or any other regime. In the absence of a marriage
settlement, or when the regime agreed upon is void, The marriage settlement shall take effect upon the
the system of absolute community property shall celebration of marriage.
govern (Art 75).
Modifications In The Marriage Settlement
The property relations between husband and wife
shall be governed in the following order (Art 74): 1. Before Marriage

a. Marriage Settlements – agreement of future In order that any modification in the marriage
spouses before the marriage upon the regime of settlements may be valid, it must be made
ACP, CPG, complete separation of property, or before the celebration of the marriage.
any other regime.
b. Family Code – if there is no marriage settlement Any modification thereof shall be in writing,
or when the marriage settlement is void, the signed by the parties and executed before the
system of ACP shall govern. celebration of the marriage. They shall not
c. Local Customs (provided not contrary to law, prejudice 3rd persons unless they are registered
good morals, good customs, public order, and in the LCR where the marriage contract is
public policy) recorded as well as in the proper registries of
property. (Art 77)
Note: A minor cannot enter into a marriage
settlement even with the consent of his/her parents. 2. After Celebration of Marriage
Only those who are of legal/majority age (at least 18
years of age) can do so. There must be an order of a competent court in
appropriate proceedings. Some instances where
Forms and Essential Elements modification is proper are: in case of
reconciliation; abandonment; in case there is a
1. In writing (Need not be in a public instrument) ground for judicial separation; or in case of joint
2. Signed by the parties filing.
3. Executed before the celebration of the marriage
(Art 77) Governing Law (Art 80)
4. To fix the terms and conditions of their property
relations In the absence of a contrary stipulation in the
marriage settlements, the property relations of the
Terms, Conditions and Stipulations spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the
The future spouses may agree what property regime marriage and their residence.
that will govern their present and future properties.
Such terms, conditions and stipulations shall not be This rule shall not apply:
contrary to law, morals, good customs and public 1. Where both spouses are aliens.
policy 2. With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and executed in the country where the property
If the Party to the Marriage Settlement Needs is located.
Parental Consent
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3. With respect to the extrinsic validity of contracts YES. There is no prohibition. As to what form, follow
entered into in the Philippines but affecting the rules on ordinary donations.
property situated in a foreign country whose
laws required different formalities for their Who can Donate in Donation Propter Nuptias
extrinsic validity.
Any of the future spouses in favor of the other OR by
Effect if Marriage Does not Take Place (Art 81) a 3rd person in favor of one or both of the future
spouses.
GENERAL RULE: Everything stipulated in the
settlements or contracts referred to in consideration Prohibition against Donation to Each Other
of a future marriage, including donations between
the prospective spouses made therein, shall be 1. Before Marriage (Art 84, FC)
rendered VOID if the marriage does not take place.
GENERAL RULE: cannot donate to each other
REASON: Marriage is a condition precedent to the in their marriage settlements more than 1/5 of
effectivity of the marriage settlement. their present property. Any excess shall be
considered void.
EXCEPTION: Stipulations that do not depend upon
the celebration of the marriage shall be valid (e.g. Requisites:
Acknowledgment by the prospective husband of a a. Made before the celebration of marriage
natural child in the marriage settlement and b. In celebration of marriage
acknowledgment of previous subsisting c. In favor of one or both future spouses
indebtedness of one to the other).
EXCEPTION: If they are governed by ACP.
Donations By Reason Of Marriage
Donation of future property
Donation Propter Nuptias / Donations By Reason
Of Marriage - are those which are made before While donations of future property are not
marriage celebration, in consideration of the same, allowed in ordinary donations, they are allowed
and in favor of one or both of the FUTURE spouses. in donations propter nuptias. Donations propter
(Art 82) nuptias of future property shall be governed by
the provisions on testamentary succession
Requisites: and the formalities of wills.
1. Must be made before the celebration of the
marriage. Is the will which contains a donation propter
2. Must be made in consideration of the marriage. nuptias revocable?
3. Must be made in favor of one or both of the
future spouses. General Rule: Yes, it is revocable. (unlike in
donations of present properties in the marriage
Donation propter Ordinary donations settlements which cannot be revoked except if
nuptias the marriage does not take place, since
Does not require Express acceptance is marriage settlements cannot be modified much
express acceptance necessary less revoked after the marriage)
May include future Cannot include future
property provided property Exception: Donation cannot be revoked if the
donation mortis causa marriage already took place.
If present property is No limit to donation of
donated and property present property Donations Of Property With Encumbrance
regime is not absolute provided legitimes are
community, limited to 1/5 not impaired Donations by reason of marriage of property
Grounds for revocation Grounds for revocation subject to encumbrance shall be valid. In case of
are found in Art. 86 of are found in law on foreclosure of the encumbrance and the
FC donations: Art 760 (birth property is sold for less than the total amount of
and reappearance of the obligation secured, the donee shall not be
children), Art 764 (non- liable for the deficiency. If the property is sold for
performance of condition) more than the total amount of said obligation,
and Art 765 (acts of the donee shall be entitled to the excess.
ingratitude)
Governed by the rules Governed by the ordinary 2. During Marriage (Art 87)
on donations except rules on donations
donations of future except donations mortis GENERAL RULE: Every donation or grant of
property which are causa which is governed gratuitous advantage, direct or indirect, between
governed by provisions by the formalities of wills the spouses during the marriage shall be VOID.
on testamentary The prohibition shall also apply to person living
succession and the together as husband and wife without a valid
formalities of wills marriage (see Matabuena v. Cervantes, 38
SCRA 284).
May a Marriage Settlement Contain a Donation
Propter Nuptias? If yes, in what form? REASONS:
a. To prevent the weaker spouse form being
influenced by the stronger spouse, whether
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by abuse of affection or by threats or final EXCEPT when the


violence. ground is sexual infidelity
b. To protect creditors. in the form of adultery
c. To prevent an indirect modification of the and concubinage
marriage settlement during the marriage. because in the latter
case, the donation is
EXCEPTIONS: void.
a. moderate gifts (and beneficiary in an If it is with a resolutory 5 years from the
insurance policy) which the spouses may condition and the happening of the
give each other on the occasion of any condition is complied condition
family rejoicing. with
b. Donation mortis causa. If donation was made by
the spouse in favor of
the other, no prescription
Effectivity / Commencement of Donation Propter because under Art 1109,
Nuptias prescription does not run
between husband and
It shall take effect upon the celebration of marriage. wife, even though there
be separation of property
Who may question validity of donation? agreed upon in the
marriage settlement.
Only a person prejudiced thereby, like the donor or When the donee has Art. 765: 1 year from
his heirs. An heir may question the donation made committed an act of donor’s knowledge of the
on the ground of inofficiousness if it can impair his ingratitude fact of ingratitude
legitime.

Revocation of Donation; Grounds and Absolute Community of Property


Prescribed Period to Revoke (Art 86)
Concept
Grounds Prescriptive Period
If the marriage is not 5 years (Art 1149, NCC) ABSOLUTE COMMUNITY OF PROPERTY (ACP) –
celebrated (except from the time marriage is there is merger of all the properties of the husband
donations contained in not solemnized on the and the wife owned by them at the time of the
the marriage settlement fixed date. celebration of the marriage or those acquired
which are automatically thereafter.
rendered void if the
marriage does not take When Mandatory
place)
If judicially declared By operation of law if When there is no marriage settlement or when there
void for non-compliance done-spouse contracted is but it is void. This is so because it is more in
with Art 40 in rel to Arts subsequent void keeping with Filipino culture.
52-53 and Art 44 marriage in bad faith
Commencement of ACP
If both of them are in
good faith, 5 years from Art. 88. The absolute community of property
the finality of judicial between spouses shall commence at the precise
declaration of nullity moment that the marriage is celebrated. Any
If judicially declared 5 years from the finality stipulation, express or implied, for the
void on grounds other of judicial declaration of commencement of the community regime at any
than Art 40 in rel to Arts nullity other time shall be void.
52-53 and Art 44
When the marriage 5 years from the time of Effect of Waiver of Rights
takes place without the knowledge that the
consent of parents or needed consent was not 1. Before the Marriage – Waiver is valid.
guardian as required by obtained by the
law party/parties 2. During the Marriage
When the marriage is 5 years from finality of
annulled, and the decree (if we follow the GENERAL RULE: Art. 89. No waiver of rights,
donee acted in bad rule that Art 86[3], the shares and effects of the absolute community of
faith latest provision shall property during the marriage can be made.
prevail over Art 43[3], the
prior provison) EXCEPT: In case of judicial separation of
property.
If we follow Art 43[3] in
keeping with the spirit of When the waiver takes place upon a judicial
the law, the donation is separation of property, or after the marriage has
revoked by operation of been dissolved or annulled, the same shall
law. appear in a public instrument and shall be
Upon legal separation, 5 years from the time the recorded as provided in Article 77. The creditors
the donee being the decree of legal of the spouse who made such waiver may
guilty spouse separation has become petition the court to rescind the waiver to the
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extent of the amount sufficient to cover the by a former marriage, and the fruits as well as
amount of their credits. the income, if any, of such property.

3. After Dissolution of Marriage – Waiver is valid for REASON: To protect the presumptive legitimes
then it is considered assignment of rights, of the legitimate descendants. The rule will not
interests, shares, and effects in the absolute apply if the descendants are illigetimate.
community of property.
Charges and Obligations of the Absolute
Co-Ownership Community

Art. 90. The provisions on co-ownership shall apply Art. 94. The absolute community of property shall
to the absolute community of property between the be liable for: (SADD-E2VAT2)
spouses in all matters not provided for in this
Chapter. (1) The support of the spouses, their common
children, and legitimate children of either
ACP is a special type of co-ownership as the spouse; however, the support of illegitimate
spouses are co-owners of their communal children shall be governed by the provisions of
properties. this Code on Support.

Property Included (2) All debts and obligations contracted during the
marriage by the designated administrator-
Art. 91. Unless otherwise provided in this Chapter spouse for the benefit of the community, or by
or in the marriage settlements, the community both spouses, or by one spouse with the
property shall consist of all the property owned by consent of the other.
the spouses at the time of the celebration of the
marriage or acquired thereafter. (3) Debts and obligations contracted by either
spouse without the consent of the other to the
Also, winnings in gambling are included. extent that the family may have been benefited.

NOTE: Art. 93. Property acquired during the What if the obligation contracted did not redound
marriage is presumed to belong to the community, to the benefit of the Family? Is the ACP still
unless it is proved that it is one of those excluded liable?
therefrom. According to Jurado, yes, the ACP is still
liable. It is submitted that the provision of Art 122
Registration of property in the name of “X married to of the FC is applicable by analogy, but subject to
Y” is no proof that the properties were acquired the following requisites: first, lack of exclusive
during their marriage. The property could have been property of the spouse who contracted the
acquired by X while he was still a bachelor but obligation; and second, satisfaction of the basic
registered after his marriage. Nonetheless, the obligations under Art 94 of the FC. Once the
presumption is not rebutted by the mere fact that the obligation has been paid, the latter spouse
deed of sale or certificate of title is in the name of becomes a debtor of the ACP and at the time of
only one spouse. the liquidation, he shall be charged for what has
been paid.
Property Excluded (Art 92) Such debts shall be included for the
following reasons:
1. Property excluded from ACP in the marriage a. if the assets cannot be made liable, creditors
settlement. who have extended credit relying on the
existence of such assets would be unduly
2. Property acquired during the marriage by prejudiced.
gratuitous title by either spouse, and the fruits as b. Debts contracted during the marriage are
well as the income thereof, if any, UNLESS it is certainly more pressing than those
expressly provided by the donor, testator or contracted before such marriage.
grantor that they shall form part of the
community property. It is, however, necessary, as a matter of
justice, that all or most of such conjugal
Note: Donation propter nuptias made by 1 future assets should have been acquired through
spouse in favor of the other shall not form part of the effect or industry of the spouse-debtor.
the ACP because the property donated was Otherwise, Art 122 of the FC shall be
acquired during the marriage (the donation applied literally and the ACP cannot then be
propter nuptias took affect upon celebration of held liable.
marriage) by gratuitous title, thus separate
property of the done. (4) All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
3. Property for personal and exclusive use of either property.
spouse. However, jewelry shall form part of the
community property. (5) All taxes and expenses for mere preservation
e.g. clothes, shoes, eyeglasses and the like made during marriage upon the separate
property of either spouse used by the family.
4. Property acquired before the marriage by either
spouse who has LEGITIMATE DESCENDANTS

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(6) Expenses to enable either spouse to commence


or complete a professional or vocational course, These powers do not include:
or other activity for self-improvement.
Disposition or encumbrance without authority
(7) Antenuptial debts of either spouse insofar as of the court or the written consent of the
they have redounded to the benefit of the family. other spouse.

(8) The value of what is donated or promised by In the absence of such authority or consent, the
both spouses in favor of their common legitimate disposition or encumbrance shall be VOID.
children for the exclusive purpose of However, the transaction shall be construed as
commencing or completing a professional or a continuing offer on the part of the consenting
vocational course or other activity for self- spouse and the third person, and may be
improvement. perfected as a binding contract upon the
acceptance by the other spouse or authorization
(9) Antenuptial debts of either spouse other than by the court before the offer is withdrawn by
those falling under paragraph (7) of this Article, either or both offerors.
the support of illegitimate children of either
spouse, and liabilities incurred by either spouse Disposition by Will
by reason of a crime or a quasi-delict, in case of
absence or insufficiency of the exclusive Art. 97. Either spouse may dispose by will of his
property of the debtor-spouse, the payment of or her interest (not specific property because of
which shall be considered as advances to be co-ownership) in the community property.
deducted from the share of the debtor-spouse
upon liquidation of the community. Donation of Communal Property, Prohibited

(10) Expenses of litigation between the spouses GENERAL RULE: Art. 98. Neither spouse may
unless the suit is found to be groundless. donate any community property without the
consent of the other. (This rule applies to
NOTES: commom-law spouses)
1. If the community property is insufficient to cover
the foregoing liabilities, except those falling If with the consent of the other, the donation is
under paragraph (9), the spouses shall be valid subject to revocation or reduction if it turns
solidarily liable for the unpaid balance with their out to be inofficious or if it infringes the legitimes
separate properties. of compulsory heirs.

2. Art. 95. Whatever may be lost during the REASON: To protect the spouse from the
marriage in any game of chance, betting, prodigality of a reckless or faithless spouse.
sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be EXCEPTIONS:
borne by the loser and shall not be charged to Either spouse may, without the consent of the
the community but any winnings therefrom shall other:
form part of the community property. a. make moderate donations from the
community property for charity;
The winnings derived from a ticket gratuitously b. make moderate donations from the
given to a spouse shall not form part of the community property on occasions of family
community property since such is considered as rejoicing or family distress.
donation, thus excluded from the ACP as well as
the fruits and income thereof. NOTE: What is moderate depends upon the
financial and social standing of the family and
Ownership, Administrative, Enjoyment and must not at all substantially affect the value of
Disposition of the Community Property the communal assets.

GENERAL RULE: Art. 96. The administration and Dissolution and Liquidation of Absolute
enjoyment of the community property shall belong to Community Regime, Grounds (Art. 99)
both spouses JOINTLY.
The absolute community terminates:
EXCEPTIONS:
1. In case of disagreement, the husband's decision (1) Upon the death of either spouse;
shall prevail.
NOTE: After the dissolution comes the
Remedies in Case of Disagreements liquidation and partition. The surviving spouse
must liquidate the ACP within 1 year from death
Wife’s recourse is go to court for proper remedy, of the deceased. After the lapse of 1 year
which must be availed of within 5 years from the without liquidation, any disposition involving the
date of the contract implementing such decision. community property shall be void.

2. In the event that one spouse is incapacitated or (2) When there is a decree of legal separation;
otherwise unable to participate in the
administration of the common properties, the (3) When the marriage is annulled or declared
other spouse may assume sole powers of void (only in cases falling under Art 40 in rel to
administration. Arts 52 and 53);
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value of the community property at the time of


(4) In case of judicial separation of property the celebration of the marriage and the market
during the marriage under Article 134 to 138. value at the time of its dissolution.
5. The presumptive legitimes of the common
(5) Termination of a subsequent marriage by filing children shall be delivered upon partition, in
an affidavit of reappearance under Art 41, ACP accordance with Article 51.
of the subsequent marriage is dissolved. (Art 43) 6. Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal
Effects of Separation De Facto dwelling and the lot on which it is situated shall
be adjudicated to the spouse with whom the
SEPARATION DE FACTO - The spouses are no majority of the common children choose to
longer living together. Their cohabitation or common remain. Children below the age of seven years
life under the same roof is terminated, although are deemed to have chosen the mother, unless
there is no legal separation between them. the court has decided otherwise. In case there in
no such majority, the court shall decide, taking
Art. 100. The separation in fact between husband into consideration the best interests of said
and wife shall not affect the regime of absolute children.
community except that:
Liquidation of ACP in case Termination of
(1) The spouse who leaves the conjugal home or Marriage is by Death
refuses to live therein, without just cause, shall
not have the right to be supported; Art. 103. Upon the termination of the marriage by
death:
(2) When the consent of one spouse to any a. The community property shall be liquidated in
transaction of the other is required by law, the same proceeding for the settlement of the
judicial authorization shall be obtained in a estate of the deceased.
summary proceeding; b. If no judicial settlement proceeding is instituted,
the surviving spouse shall liquidate the
(3) In the absence of sufficient community property, community property either judicially or extra-
the separate property of both spouses shall be judicially within 1 year from the death of the
solidarily liable for the support of the family. The deceased spouse. If upon the lapse of 1 year
spouse present shall, upon proper petition in a period, no liquidation is made, any disposition or
summary proceeding, be given judicial authority encumbrance involving the community property
to administer or encumber any specific separate of the terminated marriage shall be void.
property of the other spouse and use the fruits
or proceeds thereof to satisfy the latter's share. Effects if the ACP is Not Liquidated After 1 Year
from Death of Deceased Spouse
Liquidation of the Absolute Community Assets
and Liabilities, Procedure
a. Any disposition or encumbrance involving the
Art. 102. Upon dissolution of the absolute community property of the terminated marriage
community regime, the following procedure shall shall be void.
apply: b. Should the surviving spouse contract a
subsequent marriage without compliance with
1. An inventory shall be prepared, listing separately the foregoing requirements, a mandatory regime
all the properties of the absolute community and of complete separation of property shall govern
the exclusive properties of each spouse. the property relations of the subsequent
marriage. (Art 103, FC)
2. The debts and obligations of the absolute
community shall be paid out of its assets. In Liquidation of ACP of 2 or more Marriages
case of insufficiency of said assets, the spouses Contracted by the Same Person before the
shall be solidarily liable for the unpaid balance Effectivity of FC
with their separate properties in accordance with
the provisions of the second paragraph of Article Whenever the liquidation of the community
94. properties of two or more marriages contracted by
the same person before the effectivity of this Code is
3. Whatever remains of the exclusive properties of carried out simultaneously, the following procedure
the spouses shall thereafter be delivered to each shall be applied in the absence of agreement of all
of them. the heirs:
a. The respective capital, fruits and income of each
4. The net remainder of the properties of the community shall be determined upon such proof
absolute community shall constitute its net as may be considered according to the rules of
assets, which shall be divided equally between evidence.
husband and wife unless a different proportion b. In case of doubt as to which community the
or division was agreed upon in the marriage existing properties belong, the same shall be
settlements, or unless there has been a between the different communities in proportion
voluntary waiver of such share provided in this to the capital and duration of each.
Code. For purpose of computing the net profits
subject to forfeiture in accordance with Articles Conjugal Partnership of Gains
43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market Concept
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distinct from the


CONJUGAL PARTNERSHIP OF GAINS – it is a personality of the
partners
partnership established through the marriage of a Purpose Not created for Created for profits
man and a woman who as partners place in a profits but regulates
common fund – (a) the proceeds, products, fruits property relations of
and income from their separate properties; (b) those husband and wife
during the marriage
acquired by either or both spouses through their Management Right of Rights of
efforts; or (3) those acquired by chance, and, upon management is management are
dissolution of the marriage or of the partnership, the joint; in case of the same to all as
net gains or benefits obtained by either or both disagreement, individual partners
decision of except when one or
spouses shall be divided equally between them, husband prevails more partners are
unless otherwise agreed in the marriage without prejudice to designated as
settlements. (Art. 106) the wife’s remedy managers.
to question the
decision.
Division of gains Equally divided Depends upon the
Distinctions between Conjugal Partnership irrespective of the agreement of the
amount of parties; in the
of Gains & Absolute Community contribution unless absence thereof
otherwise agreed upon the amount of
Property upon in the capital contributed
Basis CPG ACP marriage settlement by each partner
As to Basis Exclusive property All properties Causes for Death of either Death, insolvency;
of spouses are kept acquired by the dissolution party; decree of civil interdiction;
entirely separate spouses even legal separation; termination of the
and distinct from before marriage annulment or term; express will of
the benefits which become community declaration of nullity any partner; and
they acquired property. The basis of marriage; judicial others listed in Arts
during the is essentially trust separation of 1830 and 1831.
marriage. This is and confidence property during
not primarily based between the marriage
on mutual trust and spouses which will, Liquidation of Net No liquidation until Liquidation may be
confidence of the thus, foster unity Gains the partnership is made without
spouses and does between them. dissolved. dissolution of the
not enhance the partnership.
presumption of
solidarity between
them. Conjugal Partnership
Distinctions between
As to Retention of Each spouse Spouses do not
Property retains his/her retain any property of Gains & Co-Ownership
properties acquired acquired before Basis CPG Co-Ownership
prior to the marriage and all Creation Created by Created by law,
marriage but the properties they own operation of law contract,
fruits and income of at the time of succession,
such properties marriage become fortuitous event, or
form part of the part of the occupancy
conjugal properties community Purpose Not created for Common
during marriage. property. profits but regulates enjoyment of the
As to Dissolution Exclusive There are no property relations of thing or right owned
properties of the exclusive properties husband and wife in common
spouses are to be returned and during the marriage
returned upon upon dissolution of Management Right of Vested in the co-
dissolution of the the ACP, the management is owners who
partnership. spouses or their joint; in case of represent the
heirs equally divide disagreement, controlling interest
the net remainder decision of
of the properties. husband prevails
As to method of Entails identification Easier to liquidate without prejudice to
liquidation and return of since its net the wife’s remedy
exclusive properties remainder is merely to question the
of the spouses. divided equally decision.
between the Division of profits Equally divided Shares of co-
spouses or their irrespective of the owners shall be
heirs. amount of proportional to their
contribution unless respective interest
otherwise agreed
Distinctions between Conjugal Partnership of upon in the
marriage settlement
Gains & Ordinary Partnership Disposition of Spouses cannot Co-owners can
shares dispose of their dispose of their
Basis Conjugal Ordinary shares even with shares even without
Partnership Partnership the consent of the the consent of the
Creation Created by Created by spouses other co-owners
operation of law agreement of the Power to demand No power to Each co-owner may
parties partition demand partition demand anytime
Governing law Generally governed Generally governed save by virtue of the partition of the
by law by stipulations of judicial order thing owned in
the parties common
Commencement At the moment of On the date agreed Effect of death Partnership is Existence of co-
celebration of upon by the parties dissolved ownership is not
marriage affected
Legal Personality Not a juridical It is a juridical Dissolution Different from co- Different form CPG
person person with ownership
personality
separate and
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When Applicable the property from which the fruits were


harvested, because the right of the conjugal
1. Art. 105. In case the future spouses agree in partnership is a real right of usufruct. Therefore,
the marriage settlements that the regime of the law on usufruct shall apply.
conjugal partnership gains shall govern their
property relations during marriage. NOTE:
2. When CPG were already established between Whenever an amount or credit payable within a
spouses before the effectivity of the FC, without period of time belongs to one of the spouses,
prejudiced to vested rights already acquired in the sums which may be collected during the
accordance with the NCC or other laws as marriage in partial payments or by installments
provided in Art 256 of the FC. on the principal shall be the exclusive property
of the spouse. However, interests falling due
Applicability of Ordinary Partnership Rules during the marriage on the principal shall belong
to the conjugal partnership. (Art 119)
Art. 108. The conjugal partnership shall be
governed by the rules on the contract of partnership REASON: Interest is considered a fruit derived
in all that is not in conflict with what is expressly from a particular property.
determined in this Chapter or by the spouses in
their marriage settlements. c. The share of either spouse in the hidden
treasure which the law awards to the finder or
The Rules of Court on the administration of estates owner of the property where the treasure is
of deceased persons shall be observed in the found.
appraisal and sale of property of the conjugal
partnership, and other matters which are not Hidden treasure found by the spouses on the
expressly determined by law. property of either of them is conjugal.

Note: The provisions of CPG in the Family Code d. Those acquired through occupation such as
shall be of supplementary application to the fishing or hunting.
agreement of the parties. (Art 105)
e. Livestock existing upon the dissolution of the
Immutability of Matrimonial Property Regime partnership in excess of the number of each kind
brought to the marriage by either spouse.
The provisions of the Chapter on CPG shall also
apply to conjugal partnerships of gains already f. Those which are acquired by chance such as
established between spouses before the effectivity winnings from gambling or betting. However,
of FC, without prejudice to vested rights already losses therefrom shall be borne exclusively by
acquired in accordance with the Civil Code or other the loser-spouse.
laws, as provided in Article 256. In other words, the
original regime of property relations is maintained. g. Property bought on installments paid partly from
exclusive funds of either or both spouses and
Commencement of the CPG - same as in ACP partly from conjugal funds belongs to the
conjugal partnership if such ownership was
Effect of Waiver of Rights, interest, share or vested during the marriage.
effects; rights of creditor as to such waiver -
same as in ACP Belongs to the buyer or buyers if full ownerships
was vested before the marriage.
Property Included
In either case, any amount advanced by the
The following are conjugal partnership properties partnership or by either or both spouses shall be
(Art 117): reimbursed by the owner or owners upon
liquidation of the partnership. (Art 118)
By Direct Acquisition

a. Those obtained from the labor, industry, work or h. The ownership of improvements, whether for
profession of either or both of the spouses. utility or adornment, made on the separate
property of the spouses at the expense of the
Teacher’s gratuity under special law, being partnership or through the acts or efforts of
remuneratory, is not conjugal. either or both spouses shall pertain to the
conjugal partnership, or to the original owner-
b. The fruits, natural, industrial, or civil due or spouse, subject to the following rules:
received during the marriage from the common
property, as well as the net fruits from the a. When the cost of the improvement made by
exclusive property of each spouse (net fruits – the conjugal partnership AND any resulting
after deducting the expenses for administration increase in value are more than the value of
and preservation). the property at the time of the improvement
– the entire property of one of the spouses
If fruits were pending on separate property of shall belong to the conjugal partnership,
spouse at the time of the marriage, the harvest subject to reimbursement of the value of
collected during the marriage is conjugal, and the property of the owner-spouse at the time
the conjugal partnership is not bound to pay the of the improvement (REVERSE
expenses of cultivation to the spouse who owns ACCESSION);
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b. If improvement is lesser than the value of Notes:


the property at the time of improvement -
said property shall be retained in ownership Art. 113. Property donated or left by will to the
by the owner-spouse, likewise subject to spouses, jointly and with designation of
reimbursement of the cost of the determinate shares, shall pertain to the donee-
improvement (ACCESSION). spouses as his or her own exclusive property,
c. In either case, the ownership of the entire and in the absence of designation, share and
property shall be vested upon the share alike, without prejudice to the right of
reimbursement, which shall be made at the accretion when proper (when not prohibited by
time of the liquidation of the conjugal the donor). (See Art 753, NCC)
partnership. (Art 120) Thus, the property
never ceased to be paraphernal property Art. 114. If the donations are onerous, the
until reimbursement. amount of the charges shall be borne by the
exclusive property of the donee spouse,
Hence, prior to reimbursement at the time of whenever they have been advanced by the
liquidation, the conjugal partnership may use conjugal partnership of gains. (the property
both the land and improvement, not as an donated though onerous is still considered
owner but in the exercise of a usufruct. exclusive property of the done-spouse)

By Substitution Art. 115. Retirement benefits, pensions,


annuities, gratuities, usufructs and similar
i. Those acquired by onerous title during the benefits shall be governed by the rules on
marriage at the expense of the common fund, gratuitous or onerous acquisitions as may be
whether the acquisition be for the partnership, or proper in each case.
for only one of the spouses (even place in the
name of one spouse). THUS, if the benefits are gratuitous, they are
generally considered to be exclusive properties
By Presumption of the spouse, and if they are onerous, they are
generally considered to be conjugal.
j. Art. 116. All property acquired during the
marriage, whether the acquisition appears to ANNUITY – The aleatory contract of life annuity
have been made, contracted or registered in the binds the debtor to pay an annual pension or
name of one or both spouses, is presumed to income during the life of one or more determine
be conjugal unless the contrary is proved. persons in consideration of a capital consisting
of money or other property whose ownership is
It is a condition sine qua non for the operation of transferred to him at once with the burden of
the presumption to prove first the acquisition of income. (Art 2021, NCC)
property was made during the marriage.
He who constitutes an annuity by gratuitous title
Property Excluded/Exclusive Property of Each upon his property, may provide at the time the
Spouse annuity is established that the same shall not be
subject to execution or attachment on account of
Art. 109. The following shall be the exclusive the obligations of the recipient of the annuity. IF
property of each spouse: the annuity was constituted in fraud of creditors,
the latter may ask for the execution or
By Direct Acquisition attachment of the property. (Art 2026, NCC)

1. That which is brought to the marriage as his or The right to the annuity is at all times considered
her own. to be exclusive property of the spouse.

A property purchased before the marriage and GRATUITY – this is something voluntarily given
fully paid during the marriage, remains to be out of pure liberality, thus, exclusive property of
separate property. This notwithstanding the fact the beneficiary.
that there was registration of the property in the
name of the owner spouse with the other spouse PENSIONS – given to the recipient for services
as co-owner. The registration of the latter merely rendered, thus necessarily classifies as
creates a trust. conjugal.

2. That which each acquires during the marriage Special rules on life insurance:
by gratuitous title.
If beneficiary is the Insured Himself
Acquisitions include succession, devise or
legacy, donation, gratuity, remission, free patent, Since a contract of insurance in onerous in
unearned increment (increase in the value of the character, if the beneficiary is the insured
property without any effort) and other modes himself or his estate, the character of the
where no recompense is involve. proceeds will depend on the character of the
premiums paid:
The law does not include fruits and income of
property received by gratuitous title as separate a. If the premiums were paid with conjugal
property. This is different from ACP. funds, the proceeds are conjugal.

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Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. If the premiums were paid with separate property of the wife is known as paraphernal
funds, the proceeds are separate. property.

c. If the premiums were paid partly with Ownership, Administration, Enjoyment And
conjugal funds, and partly with separate Disposition of Exclusive Property
funds, the proceeds will be partly conjugal
and partly separate. Art. 110. The spouses retain the ownership,
possession, administration and enjoyment of their
Tolentino believes, however, that we should exclusive properties. (Thus, a spouse cannot be
follow the rule in Louisiana that if the policy of restrained from selling his/her exclusive property
the insurance was taken out when the insured even if such sale would deprive the conjugal
was still single, the proceeds thereof should go partnership of its fruits)
to the insured’s separate estate even if the
premiums were paid out of conjugal funds, but Either spouse may, during the marriage, transfer the
the conjugal partnership should be refunded by administration of his or her exclusive property to the
the insured the amounts that it had paid as other (even to a stranger without the consent of the
premiums. other) by means of a public instrument, which shall
be recorded in the registry of property of the place
If the other spouse is the beneficiary the property is located.
a. An insurance taken by one spouse on his
own life and with the other spouse as Art. 111. A spouse may mortgage, encumber,
beneficiary belongs to the latter even if the alienate or otherwise dispose of his or her exclusive
premiums are paid out of conjugal funds, but property, without the consent of the other spouse,
the beneficiary-spouse, who is deemed a and appear alone in court to litigate with regard to
donee of the premiums paid, must return the same.
one-half of the premiums to the conjugal
partnership. Art. 112. The alienation of any exclusive property
b. When the spouses are jointly insured in a of a spouse administered by the other automatically
single policy, the proceeds to be paid to the terminates the administration over such property
surviving spouse, the survivor gets the and the proceeds of the alienation shall be turned
insurance proceeds even if no obligation to over to the owner-spouse.
return any part of the premiums to the
conjugal partnership, because there is Limitation: In case of separation de facto, the spouse
deemed to be reciprocal donations thereof, present may be given authority by the court to
which in effect constitute aleatory onerous administer any separate property of the absent
contracts. spouse. In case there is authority, the absent spouse
c. When the insurance is taken by a third cannot revoke the judicially approved administration,
person with a spouse as beneficiary, the neither he can alienate his property without the
latter owns the insurance proceeds as it is consent of the administrator spouse or approval of
deemed a gift to him or her. the court. (Art 127)
d. If the insurance is taken by the wife on the
life of the husband or vice versa and the Charges Against/Obligations of CPG
premiums are paid out of conjugal funds, the
proceeds are conjugal property. Art. 121. The same as in ACP, except:
e. If the beneficiary is somebody other than  Support for illegitimate children - excluded from
the insured or his estate, the beneficiary is CPG.
the owner of the insurance indemnity  Fines and pecuniary indemnities arising from
regardless of whether or not the premiums crime and quasi-delict – excluded from CPG but
were paid out of the insured’s separate incorporated in Art 122.
property or the conjugal funds.
f. If the insured made his estate as the Art. 122. The payment of personal debts
beneficiary and the premiums were paid by contracted by the husband or the wife before or
conjugal funds, the proceeds of the during the marriage shall not be charged to the
insurance constitute conjugal property. conjugal properties partnership EXCEPT insofar as
they redounded to the benefit of the family.

By Substitution Neither shall the fines and pecuniary indemnities


imposed upon them be charged to the partnership.
3. That which is acquired by right of redemption (if
conjugal fund or the fund of the other spouse is HOWEVER, the payment of personal debts
used to redeem, it must be reimbursed), by contracted by either spouse before the marriage,
barter or by exchange (not sale because such is that of fines and indemnities imposed upon them, as
acquired by onerous title) with property well as the support of illegitimate children of either
belonging to only one of the spouses. spouse, may be enforced against the partnership
assets after the responsibilities enumerated in the
4. That which is purchased with exclusive money preceding Article (Art 121) have been covered, if the
of the wife or of the husband. spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time
Note: The exclusive property of the husband is of the liquidation of the partnership, such spouse
otherwise known as capital. While the exclusive shall be charged for what has been paid for the
purpose above-mentioned.
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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art. 123. Whatever may be lost during the Effects of Separation De Facto – Same in ACP
marriage in any game of chance or in betting, (Art 127)
sweepstakes, or any other kind of gambling whether
permitted or prohibited by law, shall be borne by the Separation in fact v. Abandonment
loser and shall not be charged to the conjugal Separation de facto is the termination of the
partnership but any winnings therefrom shall form cohabitation or common life of the spouses
part of the conjugal partnership property. (Same in under the same roof, but the spouses might still
ACP) be complying with their mutual duty of support,
as well as their duty to support and maintain the
Ownership, Possession, Enjoyment and children. Abandonment is not mere separation
Administration of CPG de facto but implies an intention never to return
to the conjugal home and without providing for
GENERAL RULE: Art. 124. The administration and the needs and maintenance of one’s family.
enjoyment of the conjugal partnership shall belong to
both spouses jointly. Abandonment in CPG, Concept – Same in
ACP (Art 128)
EXCEPTIONS:
a. In case of disagreement, the husband's decision Procedure in Liquidation - Same as Absolute
shall prevail. Community of Property (Arts 129-133)

Remedy in Case of Disagreement Art. 129. Upon the dissolution of the conjugal
partnership regime, the following procedure shall
Recourse to the court by the wife for proper apply:
remedy, which must be availed of within 5 years
from the date of the contract implementing such (1) An inventory shall be prepared, listing separately
decision. all the properties of the conjugal partnership
and the exclusive properties of each spouse.
b. In case Sole Administration is Permitted
(2) Amounts advanced by the conjugal partnership in
In the event that one spouse is incapacitated or payment of personal debts and obligations of
otherwise unable to participate in the either spouse shall be credited to the conjugal
administration of the conjugal properties, the partnership as an asset thereof.
other spouse may assume sole powers of
administration. (3) Each spouse shall be reimbursed for the use of
his or her exclusive funds in the acquisition of
These powers do not include property or for the value of his or her exclusive
property, the ownership of which has been
Disposition or encumbrance without authority vested by law in the conjugal partnership.
of the court or the written consent of the
other spouse. (4) The debts and obligations of the conjugal
partnership shall be paid out of the conjugal
In the absence of such authority or consent, the assets. In case of insufficiency of said assets,
disposition or encumbrance shall be VOID. the spouses shall be solidarily liable for the
HOWEVER, the transaction shall be construed unpaid balance with their separate properties, in
as a continuing offer on the part of the accordance with the provisions of paragraph (2)
consenting spouse and the third person, and of Article 121.
may be perfected as a binding contract upon the
acceptance by the other spouse or authorization (5) Whatever remains of the exclusive properties of
by the court before the offer is withdrawn by the spouses shall thereafter be delivered to each
either or both offerors. of them.

Donation (6) Unless the owner had been indemnified from


Art. 125. Neither spouse may donate any whatever source, the loss or deterioration of
conjugal partnership property without the movables used for the benefit of the family,
consent of the other. However, either spouse belonging to either spouse, even due to
may, without the consent of the other, make fortuitous event, shall be paid to said spouse
moderate donations from the conjugal from the conjugal funds, if any.
partnership property for charity or on occasions
of family rejoicing or family distress. (7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall
Dissolution of Conjugal Partnership Regime be divided equally between husband and wife,
unless a different proportion or division was
Art. 126. The conjugal partnership terminates: agreed upon in the marriage settlements or
unless there has been a voluntary waiver or
1. Upon the death of either spouse; forfeiture of such share as provided in this
2. When there is a decree of legal separation; Code.
3. When the marriage is annulled or declared void;
or (8) The presumptive legitimes of the common
4. In case of judicial separation of property during children shall be delivered upon the partition in
the marriage under Articles 134 to 138. accordance with Article 51.
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

the parcel of land marriage.


(9) In the partition of the properties, the conjugal at 10K per month
dwelling and the lot on which it is situated shall, Parcel of land Yes. No. Exclusive property of H.
unless otherwise agreed upon by the parties, be inherited by H in
1988.
adjudicated to the spouse with whom the
Shares of stocks Yes. No.
majority of the common children choose to
registered under
remain. Children below the age of seven years W’s name in
are deemed to have chosen the mother, unless 1989.
the court has decided otherwise. In case there is Stock dividends Yes. Yes. Acquired during the
no such majority, the court shall decide, taking at 10K per year marriage.
into consideration the best interests of said House and Lot in Yes. Yes.
children. (181a, 182a, 183a, 184a, 185a) the name of both
spouses acquired
Art. 130. Upon the termination of the marriage by in 1995
death, the conjugal partnership property shall be Condo unit in the Yes. It depends upon the source
name of H of fund. If out of the conjugal
liquidated in the same proceeding for the settlement
acquired in 2000 fund, it belongs to CPG.
of the estate of the deceased. Ownership is not acquired by
registration but by law. If out
If no judicial settlement proceeding is instituted, the of exclusive fund of the
surviving spouse shall liquidate the conjugal husband, condo is his
partnership property either judicially or extra- exclusive property. If condo
judicially within 1 year from the death of the is worth 5M, 3M out of H
deceased spouse. If upon the lapse of the 1 year property and the 2M is taken
period no liquidation is made, any disposition or out from CPG. In such case
only 2M belongs to the CPG.
encumbrance involving the conjugal partnership
Parcel of land No. No.
property of the terminated marriage shall be void. inherited by W in
2000
Should the surviving spouse contract a subsequent Rental income of No. Yes. Net income during the
marriage without compliance with the foregoing the parcel of land marriage.
requirements, a mandatory regime of complete inherited by W at
separation of property shall govern the property 100K per annum
relations of the subsequent marriage.
Can a spouse dispose a property co-owned
Art. 131. Whenever the liquidation of the conjugal without the consent of the other spouse?
partnership properties of two or more marriages No, there must be written consent of the other
contracted by the same person before the effectivity spouse or judicial authorization.
of this Code is carried out simultaneously, the
respective capital, fruits and income of each How consent manifested
partnership shall be determined upon such proof as 1. Consent must be in writing (e.g. both spouses
may be considered according to the rules of must be named in a deed of sale; in the name of
evidence. In case of doubt as to which partnership one spouse with the marital consent of the
the existing properties belong, the same shall be other)
divided between the different partnerships in 2. Special Power of Attorney given to the other
proportion to the capital and duration of each. spouse.

Art. 132. The Rules of Court on the administration When is Judicial Authorization to Dispose
of estates of deceased persons shall be observed in Property Needed
the appraisal and sale of property of the conjugal 1. When one is granted sole administration of the
partnership, and other matters which are not property
expressly determined in this Chapter. 2. When the other spouse is insane or otherwise
incompetent
Art. 133. From the common mass of property
support shall be given to the surviving spouse and to Note: Lack of judicial authorization will not cure
the children during the liquidation of the inventoried the defect of no consent.
property and until what belongs to them is delivered;
but from this shall be deducted that amount Effect of No Consent in Writing in Sale
received for support which exceeds the fruits or
rents pertaining to them. Sale is void in its entirety. The nullity does not
extend to the share of the other spouse who did give
Problem: Determine whether the following properties consent and valid as to the share of the other who
are included in the ACP or CPG with the did not obtain the required consent. The sale is
presumption that the marriage between the Husband entirely void.
and Wife was validly entered into in 1990.
Property (ACP/CPG) executed as security for the
ACP CPG obtained loan without the consent of the other
Parcel of land Yes. No. If payable on installment spouse to be used as capital for business.
purchased in and still unpaid during the
1985 marriage, it depends when Encumbrance is valid provided there must be proof
the title/ownership is vested of benefit redounded to the family.
subject to the right of
reimbursement.
Rental income of Yes. Yes. Net income during the
55 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Separation of Property (6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
Voluntary Separation of Property reconciliation is highly improbable.

During the Marriage Note: In the cases provided for in Numbers (1), (2)
and (3), the presentation of the final judgment
Art. 134. In the absence of an express declaration against the guilty or absent spouse shall be enough
in the marriage settlements, the separation of basis for the grant of the decree of judicial
property between spouses during the marriage shall separation of property.
not take place except by judicial order. Such judicial
separation of property may either be voluntary or Procedure:
for sufficient cause. 1. The spouses may jointly file a verified petition
with the court for the voluntary dissolution of the
Before the Marriage absolute community or the conjugal partnership
of gains, and for the separation of their common
Art. 143. Should the future spouses agree in the properties. (Art 136, par 1)
marriage settlements that their property relations 2. All creditors of the absolute community or of the
during marriage shall be governed by the regime of conjugal partnership of gains, as well as the
separation of property, the provisions of this Chapter personal creditors of the spouse, shall be listed
shall be suppletory. in the petition and notified of the filing thereof.
The court shall take measures to protect the
Art. 144. Separation of property may refer to creditors and other persons with pecuniary
present or future property or both. It may be total or interest. (Art 136 par 2)
partial. In the latter case, the property not agreed 3. During the pendency of the proceedings for
upon as separate shall pertain to the absolute separation of property, the absolute community
community. or the conjugal partnership shall pay for the
support of the spouses and their children. (Art
Art. 145. Each spouse shall own, dispose of, 137 par 2)
possess, administer and enjoy his or her own 4. Once the separation of property has been
separate estate, without need of the consent of the decreed, the absolute community or the conjugal
other. To each spouse shall belong all earnings from partnership of gains shall be liquidated in
his or her profession, business or industry and all conformity with this Code. (Art 137 par 1)
fruits, natural, industrial or civil, due or received 5. After dissolution of the absolute community or of
during the marriage from his or her separate the conjugal partnership, the provisions on
property. complete separation of property shall apply. (Art
138)
Art. 146. Both spouses shall bear the family 6. The petition for separation of property and the
expenses in proportion to their income, or, in case of final judgment granting the same shall be
insufficiency or default thereof, to the current market recorded in the proper local civil registries and
value of their separate properties. registries of property. (Art 139)

The liabilities of the spouses to creditors for family Note: The separation of property shall not prejudice
expenses shall, however, be solidary. the rights previously acquired by creditors. (Art 140)

Mere agreement of the husband and wife to have a


Judicial Separation of Property separation of property reduced in an instrument
validly notarized is not valid. It must be submitted
Grounds before the court for approval. It is the duty of the
court to take precautionary measure to protect the
Art. 135. Any of the following shall be considered children.
sufficient cause for judicial separation of property:
Illustrations:
(1) That the spouse of the petitioner has been FACTS: There was a judicial separation of property
sentenced to a penalty which carries with it civil between H and W, which was initiated by W because
interdiction; of H’s infidelity. The court adjudicated all real estate
located in the Phils in favor of W. H, an alien,
(2) That the spouse of the petitioner has been protested claiming that he contributed to the
judicially declared an absentee; purchased of those properties. HELD: H is not
entitled to his share over the subject real properties
(3) That loss of parental authority of the spouse of for he is disqualified under the constitution. The only
petitioner has been decreed by the court; way by which he can acquire real properties in the
Phils is by way of hereditary succession or if he is a
(4) That the spouse of the petitioner has abandoned former natural-born Filipino citizen. Not even equity
the latter or failed to comply with his or her can allow him to be entitled to reimbursement
obligations to the family as provided for in Article because he did not come to court with clean hands.
101;
FACTS: H in the 1st marriage has 4 children and in
(5) That the spouse granted the power of the 2nd marriage has another 4 children; a property is
administration in the marriage settlements has acquired during the 2nd marriage. HELD: Under the
abused that power; and NCC, the property acquired during the 2nd marriage,
the wife has only the right of usufruct. If the conjugal
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

is terminated upon death of the wife, the property will Summary of Grounds for Separation of Property
be considered H’s property. and revival of the Former Property

Article 135 (grounds Article 141 (revival of


Revival for separation of former property
property) regime)
Art. 141. The spouses may, in the same proceedings Civil interdiction When it terminates
where separation of property was decreed, file a Absentee When the absentee
motion in court for a decree reviving the property spouse reappears
regime that existed between them before the Loss of parental When parental authority
separation of property in any of the following authority is judicially restored
instances: Abandonment Resumption of common
life with each other
(1) When the civil interdiction terminates; Abuse of power of When the court
administration authorizes the
(2) When the absentee spouse reappears; resumption of the power
of administration
(3) When the court, being satisfied that the spouse Separated in fact Reconciliation and
granted the power of administration in the resumption of common
marriage settlements will not again abuse that life
power, authorizes the resumption of said Voluntary dissolution Revival of the former
administration; under Art. 136 property regime (no
voluntary separation of
(4) When the spouse who has left the conjugal home property may thereafter
without a decree of legal separation resumes be granted; the revival
common life with the other; shall be governed by Art.
67)
(5) When parental authority is judicially restored to
the spouse previously deprived thereof; Effect of dissolution of ACP or CPG:
(6) When the spouses who have separated in fact a. After dissolution, the provisions on complete
for at least one year, reconcile and resume separation of property shall apply.
common life; or b. Each spouse shall own, dispose, possess,
administer and enjoy his or her own separate
(7) When after voluntary dissolution of the absolute estate, without the need of the consent of the
community of property or conjugal partnership other. To each spouse shall belong all earnings
has been judicially decreed upon the joint from his or her profession, business or industry
petition of the spouses, they agree to the revival and all fruits, natural, industrial or civil, due or
of the former property regime. NO VOLUNTARY received during the marriage from his or her
SEPARATION OF PROPERTY MAY separate property.
THEREAFTER BE GRANTED. c. Both spouses shall bear the family expenses in
proportion to their income, or in case of
Note: The revival of the former property regime shall insufficiency or default thereon, to the current
be governed by Article 67. market value of their separate properties. The
liability of the spouses to creditors for family
expense shall be solidary.
When Administration of Exclusive Property be
Transferred to the Other Spouse
Property Regime Of Unions Without Marriage
Art. 142. The administration of all classes of
exclusive property of either spouse may be a. Void Marriages or Common-Law/Live-in
transferred by the court to the other spouse: Relationships – the property regime shall be
governed by simple co-ownership under Art 147.
(1) When one spouse becomes the guardian of the There is presumption of equality of shares in the
other; absence of contrary proof.
(2) When one spouse is judicially declared an Art. 147. When a man and a woman who are
absentee; capacitated to marry each other, live exclusively
with each other as husband and wife without the
(3) When one spouse is sentenced to a penalty benefit of marriage or under a void marriage,
which carries with it civil interdiction; or their wages and salaries shall be owned by
them in EQUAL SHARES and the property
(4) When one spouse becomes a fugitive from acquired by both of them through their work or
justice or is in hiding as an accused in a criminal industry shall be governed by the rules on co-
case. ownership.
Note: If the other spouse is not qualified by reason of In the absence of proof to the contrary,
incompetence, conflict of interest, or any other just properties acquired while they lived together
cause, the court shall appoint a suitable person to be shall be PRESUMED to have been obtained by
the administrator. their JOINT EFFORTS, WORK OR INDUSTRY,
and shall be owned by them in EQUAL
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

SHARES. For purposes of this Article, a party


who did not participate in the acquisition by the Proof of Actual Contribution
other party of any property shall be deemed to 1. Receipts
have contributed jointly in the acquisition thereof 2. Agreements of the parties
if the former's efforts consisted in the care and
maintenance of the family and of the household.

Neither party can encumber or dispose by acts


inter vivos of his or her share in the property
acquired during cohabitation and owned in
common, without the consent of the other, until
after the termination of their cohabitation.

When only one of the parties to a void marriage


is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in
favor of their common children. In case of
default of or waiver by any or all of the common
children or their descendants, each vacant share
shall belong to the respective surviving
descendants. In the absence of descendants,
such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon
termination of the cohabitation.

b. Bigamous, Adulterous relationships – the


property regime is governed limited co-
ownership under Art 148. There is no
presumption of equal shares. There must be
proof of actual contribution.

Art. 148. In cases of cohabitation not falling


under the preceding Article, only the properties
acquired by both of the parties through their
ACTUAL JOINT CONTRIBUTION of money,
property, or industry shall be owned by them in
common in proportion to their respective
contributions. In the absence of proof to the
contrary, their contributions and corresponding
shares are presumed to be equal.

The same rule and presumption shall apply to


joint deposits of money and evidences of credit.

If one of the parties is validly married to another,


his or her share in the co-ownership shall accrue
to the absolute community or conjugal
partnership existing in such valid marriage. If the
party who acted in bad faith is not validly
married to another, his or her shall be forfeited in
the manner provided in the last paragraph of
the preceding Article.

The foregoing rules on forfeiture shall likewise


apply even if both parties are in bad faith.

Illustration:
FACTS: H is legally married to W. H has an illicit
affair with A. During the marriage, H acquired a
condo unit which was registered in the name of
A. During the time when H and A lived together,
they acquired 2 cars, they have savings account
of 5M and personal properties. After sometime,
H and A parted ways. A asks for her share
claiming that at the time of cohabitation she was
receiving salary. Is she entitled? HELD: NO.
With regard to the condo unit, A is only a trustee
for and in behalf of ACP or CPG. With respect to
2 cars, savings account, and personal
properties, there must be proof of actual
contribution.
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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

VII. THE FAMILY How Constituted

FAMILY - the foundation of the nation, is a basic The family home is deemed constituted on a house
social institution which public policy cherishes and and lot from the time it is occupied as a family
protects. Consequently, family relations are residence. (Art. 153, FC)
governed by law and no custom, practice or
agreement destructive of the family shall be Who constitutes Family Home
recognized or given effect. (Art 149, FC)
The family home may be constituted jointly by the
Family Relations, Coverage husband and the wife or by an unmarried head of a
1. Between husband and wife; family.
2. Between parents and children;
3. Among other ascendants and descendants; and Also, under Art. 161, a person may constitute, or be
4. Among brothers and sisters, whether of the full the beneficiary of, only one family home.
or halfblood. (Art 150)
Duration
Suit Among Members of the Same Family /
Necessity of Earnest Efforts toward Compromise From the time of its constitution and so long as any
of its beneficiaries actually resides therein, the family
NO suit between members of the same family shall home continues to be such. (Art. 153, FC)
prosper UNLESS it should appear from the verified
complaint or petition that earnest efforts toward a The family home shall continue despite the death of
compromise have been made, but that the same one or both spouses or of the unmarried head of the
have failed. If it is shown that no such efforts were in family for a period of ten years or for as long as
fact made, the same case must be dismissed. “ there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling
This rules shall not apply to cases which may not be reasons therefor. This rule shall apply regardless of
the subject of compromise under the Civil Code. (Art whoever owns the property or constituted the family
151, FC) home. (Art. 159, FC)

Prohibited Compromise Where Family Home is Constituted

No compromise upon the following questions shall The family home must be part of the properties of
be valid: CJ-VAFF the absolute community or the conjugal partnership,
1. Civil Status of persons (e.g action for or of the exclusive properties of either spouse with
compulsory recognition or to impugn legitimacy) the latter's consent. It may also be constituted by an
2. Validity of marriage or a legal separation unmarried head of a family on his or her own
3. Any ground for legal separation property.
4. Future support
5. Jurisdiction of courts Nevertheless, property that is the subject of a
6. Future legitime (Art 2035, NCC) conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment
Note: “There may be a compromise upon the civil of the purchase price may be constituted as a family
liability arising from an offense; but such home. (Art 156, FC)
compromise shall not extinguish the public action for
the imposition of the legal penalty.” (Art 2034, NCC) Limitation on the Actual Value of Family Home

Q: H filed case against brothers of W. Brothers filed The actual value of the family home shall not
Motion to Dismiss on the ground of lack of cause of exceed, at the time of its constitution, the amount of
action (no showing of earnest effort to a P300,000.00 in urban areas, and P200,000.00 in
compromise). Should the motion be granted? rural areas or such amounts as may be fixed by law.
In any event, if the value of the currency changes,
A: No because H and brothers of W are not the value most favorable for the constitution of a
relatives under Art.150. family home shall be the basis of evaluation.

Note: Family relation between father and his Note: Urban areas include chartered cities and
illegitimate child shall be recognized only if there municipalities whose annual income at least equals
was recognition by the father that the child is his that legally required for chartered cities. All others
illegitimate child. are deemed rural areas. (Art 157, FC)

Beneficiaries
Family Home
a. The husband and wife, or an unmarried person
Definition who is the head of family.
b. Their parents, ascendants, descendants,
The family home, constituted jointly by the husband brothers and sisters, whether the relationship be
and the wife or by an unmarried head of a family, is legitimate or illegitimate, who are living in the
the dwelling house where they and their family family home and who depend upon the head of
reside, and the land on which it is situated. (Art. 152, the family for legal support. (Art 154, FC)
FC) c. A person may be the beneficiary of only one
family home. (Art 161, FC)
59 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

A: No. Expropriation is a form of forced sale. Note


Benefits of Family Home that the family home is exempt from forced sale.

GENERAL RULE: The family home is exempt from Q: The house and lot was constituted as family
execution, forced sale or attachment. (Art 153 and home in 1995. In 2000, H&W obtained a P1.5 loan
155) secured by promissory note. The creditor filed an
action for collection of sum of money after H&W
EXEMPTIONS: defaulted in payment. Judgment was rendered in
a. For non-payment of taxes. favor of the creditor. Can the house and lot be
b. For debts incurred prior to the constitution of the subject of execution?
family home.
c. For debts secured by mortgages on the A: Yes. The house and lot is not exempt from
premises before or after such constitution. execution because it is more than the value required
d. For debts due to laborers, mechanics, by law i.e P300,000 (urban) or P200,000 (rural)
architects, builders, material men, and others
who have rendered service or furnished Steps to be undertaken by Judgment Creditor in
materials for the construction of the building. case of Execution:
(laborer’s lien, materialmen’s lien, contractor’s 1. Apply for writ of execution. Allege that the value
lien) (Art 155, FC) of Family Home exceeds that required by law.
e. When a creditor whose claim is not among those The value is shown by tax declaration or proven
mentioned from a – d obtains a judgment in his by experts (appraisers)
favor, and he has reasonable grounds to believe 2. In execution sales, no bid shall be below the
that the family home is actually worth more than maximum prescribed for Family Home
the maximum amount fixed herein, he may apply 3. The proceeds of sale shall be distributed as
to the court which rendered the judgment for an follows:
order directing the sale of the property under a. Restore to debtor/s the value of the family
execution. The court shall so order if it finds that home as prescribed by law, i.e. P300,000
the actual value of the family home exceeds the (urban) or P200,000 (rural)
maximum amount allowed by law as of the time b. Apply for the payment of the debt
of its constitution. If the increased actual value c. The excess shall be given to debtor/s
exceeds the maximum allowed and results from
subsequent voluntary improvements introduced
by the person or persons constituting the family
home, by the owner or owners of the property, or
by any of the beneficiaries, the same rule and
procedure shall apply.

At the execution sale, no bid below the value


allowed for a family home shall be considered.
The proceeds shall be applied first to the
amount fixed by law, and then to the liabilities
under the judgment and the costs. The excess, if
any, shall be delivered to the judgment debtor.
(Art 160, FC)

Q: H & W purchased house and lot which was


occupied as family residence in 1995. In 2001,
judgment was rendered against H&W on the case
involving quasi-delict which was filed by A against
H&W in 1990. Eventually, A filed Motion for
Execution on the house and lot. Should the motion
be granted?

A: Yes. The house and lot is not exempt from


execution. The debt was incurred prior to the
constitution of the family home.(Art 155 [2])

Q: The house and lot was constituted as family


home in 1995. In 1996, H &W obtained a P2M loan
with REM on the house and lot. Is the house and lot
subject to execution?

A: Yes. The house and lot is not exempt from


execution. The debt was secured by mortgage on
the premises. (Art 155 [3])

Q: Can the Family Home be subject of expropriation


proceedings?

60 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

VIII. PATERNITY AND FILIATION Between the certificate of live birth which is prima
facie evidence of child’s illegitimacy and the quasi-
PATERNITY – is the civil status of the father with conclusive presumption of his legitimacy, the latter
respect to the child begotten by him. shall prevail. Not only does it bear more weight, it is
also more conducive to the best interest of the child
MATERNITY – is the civil status of the mother with and in consonance with the purpose of the law.
respect to the child begotten by her. (Concepcion vs CA, Aug 31, 2005)

FILIATION – is the civil status of the child in relation Illustrations:


to his father. a. FACTS: 2 children were registered as children of
H and W. S filed an action wherein he
Kinds of Filiation recognized the 2 children as his. S presented an
1. Natural (legitimate or illegitimate) affidavit of recognition to support his claim.
2. Artificial i.e. Adoption HELD: This action shall not prosper because
public policy dictates that legitimacy is preferred
Kinds/Status of Children over illegitimacy. Besides, who can impugn the
1. Legitimate legitimate filiation of the children is the husband
2. Illegitimate and only on grounds specified by law within the
3. Legitimated prescriptive periods provided by law.
4. Adopted b. FACTS: W contracted a 2nd marriage with S,
without her 1st marriage with H having been
LEGITIMATE CHILDREN annulled or declared a nullity. W and S have a
child A. Later, S learned of the subsisting
LEGITIMATE CHILDREN - children conceived or marriage of W with H. S then filed a petition for
born during the marriage of the parents are declaration of nullity of marriage on the ground
legitimate. (Art 164, FC) of bigamous marriage. The court declared the
marriage of S and W null and void for being
Take note that under Art. 54 of the FC, “children bigamous and declared A as their illegitimate
conceived or born before the judgment of annulment child, granting custody in favor of W and
or absolute nullity of the marriage under Article 36 visitation rights of S. W appealed questioning
has become final and executory shall be considered the grant of visitation rights and that the child’s
legitimate. Children conceived or born of the surname appearing in his certificate of live birth
subsequent marriage under Article 53 shall likewise be dropped. HELD: SC held that A is the
be legitimate.” legitimate child of W and H because he was
conceived and born during the subsistence of a
Presumption of Legitimacy valid first marriage. W and S cannot deprive A of
his legitimate status because such is against
In case of doubt as to the filiation of the child, public policy. S is not entitled to visitation rights
legitimacy is preferred, unless, there is proof to the because he is not related to A. H, being the
contrary. father of A, has the right to impugn the
legitimacy of A. (Concepcion vs CA, Aug 31,
A child who is conceived or born during marriage of 2005)
his parents is presumed legitimate and the status
and filiation of the child cannot be compromised.
(Baluyot vs. Baluyot, June 14, 1990) Children by Artificial Insemination,
Requirements
A child born during legal separation or separation de
facto, is still a legitimate child because conceived or Children conceived as a result of artificial
born during subsistence of valid marriage. The insemination (in-vitro fertilization) of the wife with the
husband has the right to impugn such legitimacy. sperm of the husband or that of a donor or both are
likewise LEGITIMATE CHILDREN of the husband
The presumption of legitimacy is quasi conclusive and his wife, provided, that:
and proceeds from the sexual union in the marriage a. both of them authorized or ratified such
and may be refuted only by the evidence allowed by insemination in a written instrument;
law. b. such written instrument must be executed and
signed by them before the birth of the child.
The legitimacy or illegitimacy of a child born after c. the instrument shall be recorded in the civil
three hundred days following the termination of the registry together with the birth certificate of the
marriage shall be proved by whoever alleges such child. (Art 164, FC)
legitimacy or illegitimacy. (Art. 169, FC)
NOTE: if written authorization or ratification is
The child shall be considered legitimate although the made after artificial insemination, the child is still
mother may have declared against its legitimacy or legitimate. If ratification is made after recording
may have been sentenced as an adulteress. (Art. of birth or if there is belated registration of
167, FC) An assertion of the mother against the ratification, still legitimate because legitimacy is
legitimacy of her child cannot affect the legitimacy of preferred over illegitimacy to serve the best
such child born or conceived within the valid interest of the child.
marriage. A mother has no right to disavow a child
because maternity is never uncertain. No criminal liability for adultery of wife artificially
inseminated without the consent of the husband.

61 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

What is the effect of Intervention of Prescriptive Period


surrogate mothers
The action to impugn the legitimacy of the child shall
If the zygote is the result of fertilization of the be brought within:
wife’s ovum by her husband’s sperm, it is a. 1 year from the knowledge of the birth or its
submitted that the child is their legitimate child, it recording in the civil register - if the husband or,
having been sourced from their own blood. in a proper case, any of his heirs, should reside
(Pineda) in the city or municipality where the birth took
place or was recorded.
If in the same set of facts, the sperm of a donor b. 2 years - If the husband or, in his default, all of
is used without the consent of the husband, it is his heirs do not reside at the place of birth as
submitted that the child is illegitimate because defined in the first paragraph or where it was
he is not the child of the husband but that of the recorded but they reside in the Philippines.
wife and donor. (Pineda) c. 3 years – if they are residing abroad.

Note: If the birth of the child has been concealed


Action to Impugn Legitimacy from or was unknown to the husband or his heirs,
the period shall be counted from the discovery or
Grounds (Art 166, FC) knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.
(1) That it was physically impossible for the husband
to have sexual intercourse with his wife within Rules on the Status of Children Born When
the first 120 days of the 300 days which Widow contracted 2nd Marriage within 300 Days
immediately preceded the birth of the child From Termination of Former Marriage (Art 168,
because of: FC)

(a) the physical incapacity of the husband to 1. Requisites:


have sexual intercourse with his wife; a. 1st marriage terminated
b. Mother contracted subsequent marriage
(b) the fact that the husband and wife were living c. Subsequent marriage contracted within 300
separately in such a way that sexual days after termination of previous marriage
intercourse was not possible; or d. Child was born
e. No evidence as to the status of the child
(c) serious illness of the husband, which
absolutely prevented sexual intercourse 2. Rules as To Whom the Child Belongs
(e.g. husband in a state of coma or is a. To 1st marriage – if the child born before
paralyzed) lapse of 180 days after the solemnization of
the subsequent marriage provided it be born
(2) That it is proved that for biological or other within 300 days after the termination of the
scientific reasons, the child could not have been former marriage.
that of the husband, except in the instance b. To 2nd marriage – if the child born after 180
provided in the second paragraph of Article 164; days following the celebration of the
or subsequent marriage even though it be born
within the 300 days after the termination of
(3) That in case of children conceived through the former marriage.
artificial insemination, the written authorization
or ratification of either parent was obtained Note: The legitimacy or illegitimacy of a child born
through mistake, fraud, violence, intimidation, or after three hundred days following the termination of
undue influence. the marriage shall be proved by whoever alleges
such legitimacy or illegitimacy. (Art. 169, FC)

Who May File (Art 170, FC) Action to Claim Legitimacy

GENERAL RULE: Only the husband may impugn. Proof of Legitimacy/Filiation (Art. 172, FC)

EXCEPTION: The heirs of the husband may impugn GENERAL RULE: The filiation of legitimate children
the filiation of the child within the period prescribed is established by any of the following:
in the preceding article only in the following cases: 1. record of birth appearing in the civil register or a
final judgment
(1) If the husband should die before the expiration of
the period fixed for bringing his action; A birth certificate to be considered as valid proof
of filiation, must be signed by the father and
(2) If he should die after the filing of the complaint mother jointly, or by the mother alone if the
without having desisted therefrom; or father refuses. If the father did not intervene in
the making of the birth certificate, the putting of
(3) If the child was born after the death of the his name by the mother or doctor or registrar is
husband. (Art 171, FC) void. The signature of the father is necessary.
Certificates of live birth may be disallowed as
proofs of filiation if they are executed thru fraud.

62 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Baptismal certificates do not fall under this Mere photographs with the putative father is not,
category. They may be allowed as evidence as per se, proof of filiation.
allowed by the Rules of Court.
Receipts indicating that the father was the one
2. admission of legitimate filiation in a public who paid all tuition fees of the child is not, per
document or a private handwritten instrument se, proof of filiation.
and signed by the parent concerned.
BUT photographs, receipts plus other evidence,
It is considered a judicial admission. It must also taken collectively, may be proof of filiation.
be express. Thus a card containing the praise, “I
love you like my son,” and signed by the father, 2. Any other means allowed by the Rules of Court
is not a proof of filiation. and special laws.
e.g. Baptismal certificates; judicial admission;
If express recognition is contained in a will, such family bible in which his name has been entered;
is a valid proof of filiation even if the will is common reputation respecting his pedigree;
disallowed probate or even if not presented for admission by silence; testimonies of witnesses.
probate or even if such will is revoked. Nullity of
will shall not affect provisions which do not
depend on death of testator. It still constitutes a Who May File, When to File
public document or a private handwritten
instrument signed by the parent concerned. The action to claim legitimacy may be brought by the
child during his or her lifetime (not the lifetime of the
If express recognition is contained in a deed of parents) and shall be transmitted to the heirs should
sale, still, such deed may be admitted as proof the child die during minority or in a state of insanity.
of filiation. In these cases, the heirs shall have a period of five
years within which to institute the action. (Art. 173,
If recognition in open court or during pre-trial, FC)
such recognition constitutes as a judicial
admission, thus may be considered as proof of The action already commenced by the child shall
filiation. survive notwithstanding the death of either or both of
the parties.
EXCEPTIONS: In the absence of the foregoing
evidence, the legitimate filiation shall be proved by:
Rights of Legitimate Children (Art. 174, FC)
1. The open and continuous possession of the (1) To bear the surnames of the father and the
status of a legitimate child mother, in conformity with the provisions of the
Civil Code on Surnames.
Under this, for an action to establish illegitimate
filiation, a high standard proof is required. A legitimate child cannot petition the court to
drop his middle name. Middle names and
There must be a showing of permanent intention surnames are not subject to the will of persons
of the supposed father to consider the child as because they are prescribed by law.
his own by continuous and clear manifestation of
paternal affection and care. The paternal Surname – identifies paternal lineage.
affection and care shall not be attributed to pure
charity. Such acts must be of such a nature that Middle name – identifies maternal lineage.
they reveal not only the conviction of paternity
but also the apparent desire to have and treat (2) To receive support from their parents, their
the child as such in all relations in society and in ascendants, and in proper cases, their brothers
life, not accidentally, but continuously. (Jison vs and sisters, in conformity with the provisions of
CA 98 Phil 794) this Code on Support.

Continuous does not mean that the concession In case of legal separation or annulment of
of status shall continue forever but only that it marriages, the rights of children to support shall
shall not be of an intermittent character while it not be denied. The support shall be taken from
is continuous. By continuous is meant un- separate properties of the parties because from
interrupted and consistent, but does not require that time the ACP or CPG has already been
a particular length of time. The possession of dissolved and liquidated.
such status means that the father has treated
the child as his own, directly and not through (3) To be entitled to the legitimate and other
others, spontaneously and without concealment successional rights granted to them by the Civil
though without publicity. Code. (a compulsory heir may be a voluntary
heir at the same time; a legitimate child is
The standard of proof required is founded on the entitled to be represented in the succession to
principle that an order for recognition and his parents)
support may create an unwholesome
atmosphere or may be an irritant in the family or Note: In case of legitimate minors, husband and wife
lives of the parties, so that it must be issued only exercise joint parental authority. In case of conflict,
if paternity or filiation is established by clear and husband’s right shall prevail subject to the right of
convincing evidence. recourse by the wife before the competent court.

63 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

ILLEGITIMATE CHILDREN evidence but it requires other proof of


recognition to establish illegitimate filiation.
Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided DNA analysis is under this category.
in this Code. (Art 165, FC)
DNA Tests: Probative Value in Paternity Cases
Children born of void marriages are illegitimate (with
respect to the mother only by operation of law; the The court may allow the child to petition the court to
child and the father are, as a rule, strangers with have the father be subjected to DNA analysis. Such
each other) EXCEPT children conceived or born is not violative of the right of the father against self-
before the judgment absolute nullity of the marriage incrimination because such is available only in
under Article 36 has become final and executory criminal cases and not in civil cases. There is also
shall be considered legitimate and children no violation of privacy because the right to establish
conceived or born of the subsequent marriage under paternity and filiation is superior over the right to
Article 53 shall likewise be legitimate. (Art 54, FC) privacy.

Voluntary Recognition of Illegitimate Children, In DNA analysis or test, it is not enough that there is
How Made a perfect match. Such alone is not sufficient to
establish filiation. The court should include
If due recognition is made by the putative father in probability of paternity (W), that is, the likelihood of
the record of birth, valid will, public instrument or paternity between the putative father and the child
private handwritten instrument, it is considered as a as compared to the probability of paternity of random
consummated act of acknowledgment. It is no longer match between 2 unrelated individuals. The W must
required to have compulsory recognition. always refer to a specific population base. Thus,
because of the nature of this damnation, W will
When is Compulsory Recognition Be Made never be 100% but the chances of increasing W will
be greater if the putative father, child and mother are
In cases where the proof of illegitimacy is either included in the DNA analysis. This means that is
open and continuous possession of the status of a there is 99.9% probability, the court should not stop
legitimate child or any other means allowed by the there. It is required that the 99.9% is the provability
Rules of Court and special laws. of paternity based on population segment that the
chance or provability comes from 1 in 5 million.
Proof of Illegitimacy (Arts 175 and 172, FC)
HOWEVER, when the DNA result excludes putative
Illegitimate children may establish their illegitimate father from paternity, such is conclusive as to non-
filiation in the same way and on the same evidence paternity. There is impossible match.
as legitimate children. (Art. 175, FC)
If W is 99.9% or higher, there is a presumption of
Thus, under Art 172, the filiation of legitimate paternity.
children is established by any of the following:
(1) The record of birth appearing in the civil register If W is less than 99.9%, there is a rebuttable proof of
or a final judgment; or paternity.

Even if the putative father, did not sign the birth What may be used to overcome the presumption of
certificate as the father but as an informant, for paternity or rebut the proof of paternity: Use the
as long as he actively participated in the Vallejo Test.
execution of the certificate, such can be used as
an evidence of filiation. Vallejo Tests: The court must scrutinize the following
facts:
(2) An admission of legitimate filiation in a public a. How the samples are collected
document or a private handwritten instrument b. How the samples were handled
and signed by the parent concerned. c. Possibility of contamination of samples
d. Standard procedure used in similar test should
In this case there must be an EXPRESS be followed
recognition. e. Competence of the person who conducted the
examination.
Admission during pre-trial that the child is his
illegitimate child is a judicial admission, thus
admissible, provided it was done before a court Who May File and When to File Action for
of record. Compulsory Recognition (Art. 175, par. 2, FC)

In the absence of the foregoing evidence, the The action must be brought within the same period
legitimate filiation shall be proved by: specified in Article 173, that is within the lifetime of
(1) The open and continuous possession of the the child (although action is not necessary) except
status of a legitimate child. when the action is based on the second paragraph
(2) Any other means allowed by the Rules of Court of Article 172, in which case the action may be
and special laws. brought during the lifetime of the alleged parent. The
REASON of the latter rule is to give the allege parent
Baptismal certificate of the child where it is the chance to affirm or consent to the filiation of the
signed by the putative father is admissible in child.

64 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

In case of nullity of marriage, children are generally


considered illegitimate with respect to the mother
only by operation of law. But the illegitimate filiation LEGITIMATED CHILDREN
of the child with the father, there is a need to prove
filiation. There is no problem if there is declaration in LEGITIMATED CHILDREN – are those conceived
the judgment of illegitimate filiation because such and born outside of wedlock who, during conception,
can be used as proof of filiation. In the absence of the parents are not disqualified to marry each other,
declaration, there are 2 views: and by subsequent marriage of their parents to each
1. Traditional view other are, by legal fiction, considered legitimate.

There must be an action for compulsory LEGITIMATION – is a process of conferring


recognition because illegitimate children cannot legitimate status to illegitimate children by
be considered a relative of the father. subsequent valid marriage of the parents.

2. Liberal view Rationale

There is no more need of an action for To confer legitimate status of illegitimate children
compulsory recognition. The best interest of the and as such legitimated children have the same
child shall be taken into consideration. Having rights as those of legitimate children.
been downgraded to the status of illegitimate
child, no further burden will be imposed upon the How Made
child. And it is by operation of law following the
declaration of marriage that the child is Legitimation shall take place by a subsequent valid
considered illegitimate child of the parties. marriage between parents. (Art. 178, FC)

Rights of Illegitimate Children (Art. 176 in rel. to Requisites


R.A 9255) 1. The child was conceived and born outside of
wedlock.
Illegitimate children shall: 2. At the time of conception of the child, the
parents were not disqualified by any impediment
1. use the surname and shall be under the parental to marry each other.
authority of their mother. 3. The parents must subsequently enter into a valid
marriage.
RA 9255 which was approved on Feb 24, 2004,
illegitimate children may now use the surname When Legitimation Take Effect
of their father IF their filiation has been expressly
recognized by the father through the record of The effects of legitimation shall retroact to the time
birth appearing in the civil register, OR when the of the child's birth. (Art. 180, FC)
admission in a public document or private
handwritten instrument is made by the father. The legitimation of children who died before the
PROVIDED, however, that the father has the celebration of the marriage shall benefit their
right to institute an action before the regular descendants. (Art. 181, FC)
courts to prove non-filiation during his lifetime.

If the child was already recognized, the surname Effect Of Annulment and Nullity of Marriage
is that of the father and the middle name is that Upon Legitimated
of the mother. The purpose of recognition is to
compel the father to give support and so that The annulment of a voidable marriage shall not
later the illegitimate children will be entitled to affect the legitimation. (Art. 178, FC)
their legitime.
In case of declaration of nullity of marriage, as a
Even after recognition, the father cannot rule, children are considered illegitimate.
demand custody over the child. The law Legitimation will not become operative.
explicitly confess to the mother sole parental
authority over an illegitimate child. It follows that Rights of Legitimated Children
only if she defaults can the father assume
custody and authority over the minor. Legitimated children shall enjoy the same rights as
legitimate children. (Art. 179, FC)
While an illegitimate child of a woman is allowed
to use the surname of his stepfather, a legitimate Action To Impugn, Who May Impugn and When
child is not allowed because if he is allowed it
could result in confusion as to its paternity. Legitimation may be impugned only by those who
are prejudiced in their rights, within 5 years from the
2. shall be entitled to support in conformity with this time their cause of action accrues. (Art. 182, FC)
Code. Cause of action accrues from the death of the
putative parent.
3. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate
child. Except for this modification, all other
provisions in the Civil Code governing ADOPTED CHILDREN
successional rights shall remain in force.
65 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

ADOPTION – is a juridical act which creates


between 2 persons a relationship similar to that 3. The guardian with respect to the ward after the
which results from legitimate paternity and filiation termination of the guardianship AND clearance
of his/her financial accountabilities.
Nature of Adoption Proceedings

Adoption proceedings are judicial, not administrative. Husband and Wife, Joint Adoption

Procedure GENERAL RULE: Husband and wife shall jointly


adopt.
Who May Adopt (Sec 7, RA 8552, Domestic
Adoption Act of 1998) EXCEPTIONS:
(i) if one spouse seeks to adopt the legitimate
1. Filipino citizen who is: LPG-NEAP son/daughter of the other; or
a. of legal age;
b. in possession of full civil capacity and legal (ii) if one spouse seeks to adopt his/her own
rights; illegitimate son/daughter: Provided, However,
c. of good moral character; that the other spouse has signified his/her
d. has not been convicted of any crime consent thereto; or
involving moral turpitude;
e. emotionally and psychologically capable of (iii) if the spouses are legally separated from each
caring for children; other.
d. at least sixteen (16) years older than the
adoptee; and Note: In case husband and wife jointly adopt, or one
e. who is in a position to support and care for spouse adopts the illegitimate son/daughter of the
his/her children in keeping with the means of other, joint parental authority shall be exercised by
the family. the spouses.

When is the requirement of 16-year HOWEVER, under INTER-COUNTRY ADOPTION


difference between the age of the adopter LAW (RA 8043), the following may adopt:
and adoptee may be waived
a. when the adopter is the biological parent of An alien or a Filipino citizen permanently residing
the adoptee; OR abroad may file an application for inter-country
b. when the adopter is the spouse of the adoption of a Filipino child IF he/she: (Sec 9, RA
adoptee's parent. 8043)

2. Any alien who: a) is at least twenty-seven (27) years of age and at


a. possesses the same qualifications as above least sixteen (16) years older than the child to be
stated for Filipino nationals; adopted, at the time of application unless the
b. whose country has diplomatic relations with adoptor is the parent by nature of the child to be
the Republic of the Philippines, adopted or the spouse of such parent:
c. has been living in the Philippines for at least
three (3) continuous years prior to the filing b) if married, his/her spouse must jointly file for the
of the application for adoption and maintains adoption;
such residence until the adoption decree is
entered; c ) has the capacity to act and assume all rights and
d. has been certified by his/her diplomatic or responsibilities of parental authority under his
consular office or any appropriate national laws, and has undergone the
government agency that he/she has the appropriate counseling from an accredited
legal capacity to adopt in his/her country; counselor in his/her country;
and
e. whose government allows the adoptee to d) has not been convicted of a crime involving moral
enter his/her country as his/her adopted turpitude;
son/daughter:
e) is eligible to adopt under his/her national law;
When requirements on residency and
certification of the alien's qualification to f) is in a position to provide the proper care and
adopt in his/her country may be waived support and to give the necessary moral values
and example to all his children, including the
(i) a former Filipino citizen who seeks to adopt a child to be adopted;
relative within the fourth (4th) degree of
consanguinity or affinity; or g) agrees to uphold the basic rights of the child as
embodied under Philippine laws, the U.N.
(ii) one who seeks to adopt the legitimate Convention on the Rights of the Child, and to
son/daughter of his/her Filipino spouse; or abide by the rules and regulations issued to
implement the provisions of this Act;
(iii) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a h) comes from a country with whom the Philippines
relative within the fourth (4th) degree of has diplomatic relations and whose government
consanguinity or affinity of the Filipino maintains a similarly authorized and accredited
spouse; or
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Saint Louis University - College of Law
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agency and that adoption is allowed under danger, or exposed to gambling, prostitution
his/her national laws; and and other vices.

i) possesses all the qualifications and none of the FOUNDLING – refers to deserted or abandoned
disqualifications provided herein and in other infant or child whose parents, guardian or
applicable Philippine laws. relatives are unknown; or a child committed to
an orphanage or charitable or similar institution
Who May Be Adopted (Sec 8, RA 8552, Domestic with unknown facts of birth and parentage and
Adoption Act of 1998) registered in the Civil Register as a foundling.

(a) Any person below eighteen (18) years of age (b) The legitimate son/daughter of one spouse by
who has been administratively or judicially the other spouse (No need of joint adoption; if
declared available for adoption; the adopter is an alien, the requirements of
residency and certification are no longer
CHILD LEGALLY AVAILABLE FOR ADOPTION - applicable);
refers to a child who has been voluntarily or
involuntarily committed to the Department or to a (c) An illegitimate son/daughter by a qualified
duly licensed and accredited child-placing or adopter to improve his/her status to that of
child-caring agency, freed of the parental legitimacy;
authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of (d) A person of legal age if, prior to the adoption,
adoption. said person has been consistently considered
and treated by the adopter(s) as his/her own
VOLUNTARILY COMMITTED CHILD - is one child since minority;
whose parent(s) knowingly and willingly
relinquishes parental authority to the (e) A child whose adoption has been previously
Department. rescinded; or

INVOLUNTARILY COMMITTED CHILD - is one (f) A child whose biological or adoptive parent(s) has
whose parent(s), known or unknown, has been died: Provided, That no proceedings shall be
permanently and judicially deprived of parental initiated within six (6) months from the time of
authority due to abandonment; substantial, death of said parent(s).
continuous, or repeated neglect; abuse; or
incompetence to discharge parental Illustrations:
responsibilities. a. FACTS: H and W are legally married. Can H
and W legally adopt a child of their
Who May be Administratively Or Judicially neighbor? HELD: YES, provided the
Declared Available For Adoption adoptee is among those qualifies.
b. FACTS: If the child to be adopted is W’s
ABANDONED CHILD - refers to one who has no illegitimate child, Can W and H adopt the
proper parental care or guardianship or whose child? HELD: W can adopt the child because
parent(s) has deserted him/her for a period of at the child is her illegitimate child. H can also
least six (6) continuous months and has been adopt the child provided he is qualified and
judicially declared as such. that the child is qualified as an adoptee who
possesses none of the disqualifications. H
DEPENDENT CHILD - is one who is without a and W can jointly adopt the child if they
parent, guardian or custodian; or one whose decide to do so. Alleged the qualifications of
parents, guardian or other custodian for good the adopters and qualifications of the
cause desires to be relieved of his care and adoptee in the petition for adoption.
custody; and is dependent upon the public for c. FACTS: If the child to be adopted is W’s
support. legitimate child in her former marriage, W
need not adopt the child because the latter
NEGLECTED CHILD - is one whose basic is already her legitimate child. Can H, 2 nd
needs have been deliberately unattended or husband adopt the child of W? Are H and W
inadequately attended, physically or emotionally, required to adopt the child jointly? HELD: H
by his parents or guardinan. Neglect may occur can adopt the legitimate child of W because
in two ways: such is allowed by law. In this case there is
a) There is a physical neglect when the child is no need for H and W to adopt the child
malnourished, ill clad and without proper jointly because the child is already the
shelter. legitimate child of W. This situation is also
applicable if the husband is an alien and the
A child is unattended when left by himself wife is a former Filipino.
without provisions for his needs and/or d. FACTS: If H is an alien and W is a former
without proper supervision. Filipino. The child to be adopted is the
illegitimate child of W. HELD: W can adopt
b) Emotional neglect exists: when children are provided she is qualified. The residency
maltreated, raped or seduced; when children requirement can be waived because she is a
are exploited, overworked or made to work former Filipino citizen who seeks to adopt a
under conditions not conducive to good relative within the fourth (4th) degree of
health; or are made to beg in the streets or consanguinity or affinity. What about on the
public places, or when children are in moral part of H, is residency requirement be
67 | P a g e
Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

waived? NO, because W is no longer a and recommendations on the matter to the court
Filipino. hearing such petition. (Section 11, RA 8552)
e. FACTS: H is married to W. H has an
illegitimate child. Can H adopt his illegitimate At the time of preparation of the adoptee's case
child? HELD: H can adopt his illegitimate study, the concerned social worker shall confirm
child even if not joined by W. The surname with the Civil Registry the real identity and
of the child is that of the father as the registered name of the adoptee. If the birth of
adopter. The middle name of the child is that the adoptee was not registered with the Civil
of the mother. Although the relationship Registry, it shall be the responsibility of the
between the mother and the child is concerned social worker to ensure that the
severed, it is for the benefit of the child to adoptee is registered.
use the surname of his mother as his middle
name. The case study on the adoptee shall establish
that he/she is legally available for adoption and
HOWEVER, under INTER-COUNTRY ADOPTION that the documents to support this fact are valid
LAW (RA 8043), the following may be adopted: and authentic. Further, the case study of the
adopter(s) shall ascertain his/her genuine
Only a child legally available for domestic adoption intentions and that the adoption is in the best
may be the subject of inter-country adoption. interest of the child.

Whose Consent is Necessary to the Adoption The Department shall intervene on behalf of the
(Sec 9, RA 8552, Domestic Adoption Act of 1998) adoptee if it finds, after the conduct of the case
studies, that the petition should be denied. The
After being properly counseled and informed of case studies and other relevant documents and
his/her right to give or withhold his/her approval of records pertaining to the adoptee and the
the adoption, the written consent of the following to adoption shall be preserved by the Department.
the adoption is hereby required:
c. Supervised Trial Custody. - No petition for
(a) The adoptee, if ten (10) years of age or over; adoption shall be finally granted until the
adopter(s) has been given by the court a
(b) The biological parent(s) of the child, if known, or supervised trial custody period for at least six (6)
the legal guardian, or the proper government months within which the parties are expected to
instrumentality which has legal custody of the adjust psychologically and emotionally to each
child; other and establish a bonding relationship.
During said period, temporary parental authority
If the child to be adopted is illegitimate, consent shall be vested in the adopter(s).
of the father is necessary if he recognized the
child as his. If no recognition, there is no need of The court may motu proprio or upon motion of
consent because both are strangers to each any party reduce the trial period if it finds the
other. same to be in the best interest of the adoptee,
stating the reasons for the reduction of the
(c) The legitimate and adopted sons/daughters, ten period. However, for alien adopter(s), he/she
(10) years of age or over, of the adopter(s) and must complete the six (6)-month trial custody
adoptee, if any; except for those enumerated in Sec. 7 (b) (i) (ii)
(iii).
(d) The illegitimate sons/daughters, ten (10) years of
age or over, of the adopter if living with said If the child is below seven (7) years of age and
adopter and the latter's spouse, if any; and is placed with the prospective adopter(s) through
a pre-adoption placement authority issued by
(e) The spouse, if any, of the person adopting or to the Department, the prospective adopter(s) shall
be adopted. enjoy all the benefits to which biological
parent(s) is entitled from the date the adoptee is
Procedure placed with the prospective adopter(s). (Section
12, RA 8552)
a. Hurried Decisions. - In all proceedings for
adoption, the court shall require proof that the d. Decree of Adoption. - If, after the publication of
biological parent(s) has been properly counseled the order of hearing has been complied with,
to prevent him/her from making hurried and no opposition has been interposed to the
decisions caused by strain or anxiety to give up petition, and after consideration of the case
the child, and to sustain that all measures to studies, the qualifications of the adopter(s), trial
strengthen the family have been exhausted and custody report and the evidence submitted, the
that any prolonged stay of the child in his/her court is convinced that the petitioners are
own home will be inimical to his/her welfare and qualified to adopt, and that the adoption would
interest. (Section 10, RA 8552) redound to the best interest of the adoptee, a
b. Case Study. No petition for adoption shall be set decree of adoption shall be entered which shall
for hearing unless a licensed social worker of be effective as of the date the original petition
the Department, the social service office of the was filed. This provision shall also apply in case
local government unit, or any child-placing or the petitioner(s) dies before the issuance of the
child-caring agency has made a case study of decree of adoption to protect the interest of the
the adoptee, his/her biological parent(s), as well adoptee. The decree shall state the name by
as the adopter(s), and has submitted the report
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Saint Louis University - College of Law
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which the child is to be known. (Section 13, RA


8552) Notes:
e. Civil Registry Record. - An amended certificate The adoptee has the rights as that of legitimate
of birth shall be issued by the Civil Registry, as child, thus he has successional rights upon
required by the Rules of Court, attesting to the death of the adopter.
fact that the adoptee is the child of the
adopter(s) by being registered with his/her If the biological parents of the adoptee died, it
surname. The original certificate of birth shall be appears that the law bars the child from
stamped "cancelled" with the annotation of the inheriting from his biological parents intestate by
issuance of an amended birth certificate in its operation of law. This is one interpretation of the
place and shall be sealed in the civil registry law. The proposition is there should be a
records. The new birth certificate to be issued to complete severance. If not, adopted children will
the adoptee shall not bear any notation that it is be placed above the legitimate children for they
an amended issue. (Section 14, RA 8552) can inherit either from the biological parents and
adopting parents.
f. Confidential Nature of Proceedings and
Records. - All hearings in adoption cases shall HOWEVER, in one case, if the father of an
be confidential and shall not be open to the illegitimate whose wife is already dead, decided
public. All records, books, and papers relating to to adopt his own illegitimate child and the father
the adoption cases in the files of the court, the dies, the child, having the rights of legitimate
Department, or any other agency or institution child, is entitled to his successional rights. If the
participating in the adoption proceedings shall biological mother dies, the child is also entitled
be kept strictly confidential. to his successional rights because in that case
there was allowance of using the surname of the
If the court finds that the disclosure of the mother as the child’s middle name the urpose of
information to a third person is necessary for which is to identify maternal lineage and after all
purposes connected with or arising out of the the child should have a mother. (In re: Adoption
adoption and will be for the best interest of the of Stephanie Garcia, 456 S 541)
adoptee, the court may merit the necessary
information to be released, restricting the If both the adopting parents died, can the
purposes for which it may be used. (Section 15, adoptee file a petition for support from the
RA 8552) biological parents? NO, death of the adopting
parents does not alter the consequences of the
Effects Of Adoption adoption. The biological parents are not obliged
to give support. Would your answer be the same
a. Parental Authority. - Except in cases where the if the child is still a minor? YES, for the same
biological parent is the spouse of the adopter, all reason as stated above.
legal ties between the biological parent(s) and
the adoptee shall be severed and the same shall What if the adoptee himself died, what are the
then be vested on the adopter(s). (Section 16, consequences of his death with respect to
RA 8552) succession? (See Discussion in Succession)

If the adopters are husband and wife, the Rescission Of Adoption


adoptee can use the surname of the adopting
father as his surname and the surname of the Grounds (Section 19, RA 8552)
adopting mother as his middle name.
Upon petition of the adoptee, with the assistance of
If the father of an illegitimate whose wife is the Department if a minor or if over eighteen (18)
already dead, decided to adopt his own years of age but is incapacitated, as
illegitimate child, the surname of the child is the guardian/counsel, the adoption may be rescinded on
surname of the father while his middle name is any of the following grounds committed by the
the surname of his biological mother. (In re: adopter(s): RASA
Adoption of Stephanie Garcia, 456 S 541) (a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone
b. Legitimacy. - The adoptee shall be considered counseling;
the legitimate son/daughter of the adopter(s) for (b) attempt on the life of the adoptee;
all intents and purposes and as such is entitled (c) sexual assault or violence; or
to all the rights and obligations provided by law (d) abandonment and failure to comply with parental
to legitimate sons/daughters born to them obligations.
without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and Who May File
support in keeping with the means of the family.
(Section 17, RA 8552) Only the adoptee can file a petition for rescission.
Adoption, being in the best interest of the child, shall
c. Succession. - In legal and intestate succession, NOT be subject to rescission by the adopter(s).
the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction HOWEVER, the adopter(s) may disinherit the
from legitimate filiation. However, if the adoptee adoptee for causes provided in Article 919 of the
and his/her biological parent(s) had left a will, Civil Code. (Section 19, RA 8552)
the law on testamentary succession shall
govern. (Section 18, RA 8552)
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

Note: If the decree of adoption was issued prior to


the effectivity of the Domestic Adoption Act (1998
February 25), a petition for rescission is not allowed
if such was filed after the effectivity of the said law
because the policy of the present law is to favor the
child.

If the adoptee is still a minor, in filing the petition for


rescission, he may be represented by the guardian
ad litem/duly appointed by the court; or if the minor
is one who is declared available for adoption, he
may be represented by DSWD, orphanage or
institution accredited by the DSWD.

Effects of Rescission (Section 20, RA 8552)

a. The parental authority of the adoptee's biological


parent(s), if known, or the legal custody of the
Department shall be restored IF the adoptee is
still a minor or incapacitated.

Notes:
Upon rescission, who are the parents of the
adopted child? The parents of the adoptee are
his biological parent(s), if known.

Can the biological parents refuse to restore their


legal tie with the child? NO. The biological
parents have no choice because such is
mandated by law. Besides, the child can be
adopted again by any qualified adopter.

Upon rescission, the child can use the surname


of his biological father as his surname and the
surname of the mother as his middle name.

b. The reciprocal rights and obligations of the


adopter(s) and the adoptee to each other shall
be extinguished.
c. Cancellation of the amended certificate of birth
of the adoptee and restore his/her original birth
certificate by the Civil Register as ordered by the
court.
d. Succession rights shall revert to its status prior
to adoption, but only as of the date of judgment
of judicial rescission. Vested rights acquired
prior to judicial rescission shall be respected.

Note: All the foregoing effects of rescission of


adoption shall be without prejudice to the penalties
imposable under the Penal Code if the criminal acts
are properly proven.

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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

X SUPPORT Support pendente lite may be claimed in accordance


with the Rules of Court. (Art. 203 par 2 and 3, FC)
Concept and Extent
Exemption from Levy and Attachment
SUPPORT – is that which comprises everything
indispensable for SUSTENANCE, DWELLING, The right to receive support under this Title as well
CLOTHING, MEDICAL ATTENDANCE, as any money or property obtained as such support
EDUCATION AND TRANSPORTATION, in keeping shall not be levied upon on attachment or execution.
with the financial capacity of the family. (Art. 205, FC)

The education of the person entitled to be supported Who Must Pay Support (Art 195, FC)
referred to in the preceding paragraph shall include
his schooling or training for some profession, trade The following are obliged to support each other:
or vocation, even beyond the age of majority. 1. The spouses;
Transportation shall include expenses in going to
and from school, or to and from place of work. (Art During the proceedings for legal separation or
194, FC) for annulment of marriage, and for declaration of
nullity of marriage, the spouses and their
Kinds of Support children shall be supported from the properties
of the absolute community or the conjugal
a. As to amount: partnership. (Art. 198, FC)

1. Natural (bare necessities of life) After the final judgment granting the petition of
2. Civil (in accordance with financial standing) annulment or declaration of nullity of marriage,
the obligation of mutual support between the
b. As to source of obligations: spouses ceases. (Art. 198, FC)

1. Legal (based from law) However, in case of legal separation, the court
2. Voluntary / Contractual Support (from may order that the guilty spouse shall give
agreement or from provision of a will) support to the innocent one, specifying the terms
of such order. (Art. 198, FC) But the innocent
c. Special kind (alimony pendente lite) spouse is not obliged to give support to the
erring spouse.
Actual Need v. Capacity to Pay
If both spouses are living separately, both of
Art. 201. The amount of support, in the cases them have been unfaithful to each other, and the
referred to in Articles 195 and 196, shall be in husband has been giving allowance to the wife,
proportion to the resources or means of the giver the latter may still file an action for maintenance
and to the necessities of the recipient. because both of them are at fault. The husband
cannot use as a defense the adulterous act
Art. 202. Support in the cases referred to in the committed by the wife. Besides, the giving of
preceding article shall be reduced or increased allowance to the wife is implied condonation of
proportionately, according to the reduction or the adultery.
increase of the necessities of the recipient and the
resources or means of the person obliged to furnish In a petition for support filed by the wife, it is
the same. insufficient for the husband, as a defense to
claim that the wife is guilty of adultery. There
Thus, in one case, SC held that the provision for a must be sufficient and competent evidence.
common fund for the benefit of the child cannot be
considered final and res judicata since any judgment The wife may obliged her husband to pay the
for support is always subject to modification fee of the lawyer who defended her in case of
depending upon the needs of the child and acquittal, BUT NOT in case of conviction.
capabilities of the parents to give support.
2. Legitimate ascendants and descendants;
Who Is Entitled to Support (Art 195, FC)
Illustration:
Those provided under Art 195 are the same persons If the husband abandoned the family to cohabit
who are entitled to support from each other. with his paramour, can the wife file a petition for
support against the parents of the husband for
A right to support is not terminated after reaching the their children and herself? Yes, but only with
age of majority. Support is imprescriptible. respect to support in favor of their children
because they are their legitimate descendants,
When Demandable provided that inability on the part of the husband
to give support be proven. W cannot ask support
The obligation to give support shall be demandable for herself because her relationship with the
from the time the person who has a right to receive parents of her husband is by affinity and as such
the same NEEDS it for maintenance, but it shall not the parents-in-law are not obliged to give
be paid except from the date of judicial or support to her. The obligation to give support in
extrajudicial demand. a relation by affinity is only required between
husband and wife. In the same manner, W is not

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Saint Louis University - College of Law
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also obliged to give support to her parents-in- 3. The ascendants in the nearest degree; and
law. 4. The brothers and sisters.

If one of the parents died, who is obliged to give Sources of Fund


support to the children? It is the surviving parent. When the obligation to give support falls upon
If he/she remarries, the 2nd spouse is not obliged two or more persons, the payment of the same
to give support to the children of the former in shall be divided between them in proportion to
the previous marriage because of absence of the resources of each.
relationship. In this case the support will be
taken from the separate property of the surviving However, in case of urgent need and by special
parent. This is why properties acquired after circumstances, the judge may order only one of
termination of the previous marriage shall not them to furnish the support provisionally, without
form part of the ACP or CPG of the subsequent prejudice to his right to claim from the other
marriage to answer for the support of the obligors the share due from them.
children although the latter may advance the
support of the children but such is considered a When two or more recipients at the same time
debt subject to reimbursement. claim support from one and the same person
legally obliged to give it, should the latter not
Can the illegitimate child of the husband file a have sufficient means to satisfy all claims, the
petition for support against the wife of the order established in the preceding article shall
husband? NO, because the child is not related be followed, UNLESS the concurrent obligees
to the wife. What if the petition is directed should be the spouse and a child subject to
against the parents of the husband or the child’s parental authority, in which case the child shall
grandparents, will the petition prosper? Yes, be preferred. (Art. 200, FC)
because the parents are obliged to give support
in favor of their legitimate children and the Thus, in case of separation de facto, the wife
legitimate and illegitimate children of the latter. filed a petition for support against the erring
husband the amount of 35K monthly. The
3. Parents and their legitimate children and the husband’s net income monthly is 35K. The
legitimate and illegitimate children of the latter; expenses of their children as alleged is 25K
4. Parents and their illegitimate children and the monthly and the wife’s expenses is 10K monthly.
legitimate and illegitimate children of the latter; The needs of the children are preferred. The
and excess shall be divided proportionately between
5. Legitimate brothers and sisters, whether of full the husband and the wife except when the wife
or half-blood. is gainfully employed and able to support
herself.
Notes: Brothers and sisters not legitimately
related, whether of the full or half-blood, are
likewise bound to support each other to the full How Support is Given
extent set forth in Article 194, except only when
the need for support of the brother or sister, Payment shall be made within the first five days of
being of age, is due to a cause imputable to the each corresponding month or when the recipient
claimant's fault or negligence. (Art. 196, FC) In dies, his heirs shall not be obliged to return what he
this case, the one entitled to support, it is not has received in advance. (Art. 203 par 3, FC)
sufficient that the need for support is not due to
his fault or negligence but there must be proof of The person obliged to give support shall have the
filiation, that is, he has been recognized as an option to fulfill the obligation either by paying the
illegitimate child. allowance fixed, or by receiving and maintaining in
the family dwelling the person who has a right to
Sources of Support receive support. The latter alternative cannot be
In case of legitimate ascendants; descendants, availed of in case there is a moral or legal obstacle
whether legitimate or illegitimate; and brothers thereto. (Art. 204, FC)
and sisters, whether legitimately or illegitimately
related, only the separate property of the person Right of Third Persons Who Pay
obliged to give support shall be answerable
provided that in case the obligor has no When, without the knowledge of the person obliged
separate property, the absolute community or to give support, it is given by a stranger, the latter
the conjugal partnership, if financially capable, shall have a right to claim the same from the former,
shall advance the support, which shall be UNLESS it appears that he gave it without intention
deducted from the share of the spouse obliged of being reimbursed. (Art. 206, FC)
upon the liquidation of the absolute community
or of the conjugal partnership. (Art. 197, FC) When the person obliged to support another unjustly
refuses or fails to give support when urgently
Order of Liability in case 2 or More Persons needed by the latter, any third person may furnish
are Obliged to Give support (Art. 199, FC) support to the needy individual, with right of
reimbursement from the person obliged to give
Whenever two or more persons are obliged to support. This Article shall particularly apply when the
give support, the liability shall devolve upon the father or mother of a child under the age of majority
following persons in the order herein provided: unjustly refuses to support or fails to give support to
1. The spouse; the child when urgently needed. (Art. 207, FC)
2. The descendants in the nearest degree;
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Saint Louis University - College of Law
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

Contractual Support or Support in a Will Sec. 7. Restitution. When the judgment or final order of the court
finds that the person who has been providing support pendente
lite is not liable therefor, it shall order the recipient thereof to
Contractual support – is an agreement to give return to the former the amounts already paid with legal interest
support between parties not obliged to give support; from the dates of actual payment, without prejudice to the right of
what may be given is subject to the agreement of the the recipient to obtain reimbursement in a separate action from
the person legally obliged to give the support. Should the recipient
parties, thus may be partial or full; it is subject to levy fail to reimburse said amounts, the person who provided through
or attachment. As compared to legal support, the same may likewise seek reimbursement thereof in a separate
latter is one established by law; it comprises action from the person legally obliged to give such support.
everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and
transportation, in keeping with the financial capacity
of the family, thus to the full extent; and not subject
to levy, attachment or execution.

Note: In case of contractual support or that given by


will, the excess in amount beyond that required for
legal support shall be subject to levy on attachment
or execution.

Furthermore, contractual support shall be subject to


adjustment whenever modification is necessary due
to changes of circumstances manifestly beyond the
contemplation of the parties. (Art. 208, FC)

Procedure (Rule 61, 1997 Rules of Civil


Procedure)

Section 1. Application. At the commencement of the proper action


or proceeding, or at any time prior to the judgment or final order, a
verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions
of both parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof.

Sec. 2. Comment. A copy of the application and all supporting


documents shall be served upon the adverse party, who shall
have five (5) days to comment thereon unless a different period is
fixed by the court upon his motion. The comment shall be verified
and shall be accompanied by affidavits, depositions or other
authentic documents in support thereof.

Sec. 3. Hearing. After the comment is filed, or after the expiration


of the period for its filing, the application shall be set for hearing
not more than three (3) days thereafter. The facts in issue shall be
proved in the same manner as is provided for evidence on
motions.

Sec. 4. Order. The court shall determine provisionally the


pertinent facts, and shall render such orders as justice and equity
may require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper
resolution of the question involved. If the application is granted,
the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into
account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode
for providing the support. If the application is denied, the principal
case shall be tried and decided as early as possible.

Sec. 5. Enforcement of order. If the adverse party fails to comply


with an order granting support pendente lite, the court shall, motu
proprio or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt.

When the person ordered to give support pendente lite refuses or


fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case,
obtain a writ of execution to enforce his right of reimbursement
against the person ordered to provide such support. (n)

Sec. 6. Support in criminal cases. In criminal actions where the


civil liability includes support for the offspring as a consequence of
the crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing, the accused may be
ordered to provide support pendente lite to the child born to the
offended party allegedly because of the crime. The application
therefor may be filed successively by the offended party, her
parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance
with the procedure established under this Rule.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

X. PARENTAL AUTHORITY AND CUSTODY home duly accredited by the proper government
agency
PATRIA POTESTAS, CONCEPT AND EVOLUTION
Who Exercises Parental Authority and Custody
In the Roman and Germanic law, the patria potestas
conferred on the father the power of life or death 1. Legitimate children - The father and the mother
over the children which will last until the lifetime of shall jointly exercise parental authority over the
the father. This authority is established primarily for persons of their common children. (Art. 211, FC)
his benefit. The modern view, manifested in our
code, means that this authority is for the benefit of In this case there is no need of judicial authority.
the children and granted to the parents as a
consequence of the heavy responsibilities imposed 2. Illegitimate children – it is always the mother
upon them by law, which they have to discharge. who exercises parental authority even if the
father recognized the child.
PARENTAL AUTHORITY (PATRIA POTESTAS) -the
sum of rights and obligations which parents have in Effect of Disagreement, Absence / Death,
relation to the person and property of their children, Separation or Termination of Marriage of Parents
until their majority age or emancipation, and under
certain circumstances. In case of DISAGREEMENT, the father's decision
shall prevail, UNLESS there is a judicial order to the
It is the natural right and duty of parents over the contrary. (Art. 211, FC)
person and property of their unemancipated children
which INCLUDES the caring for and rearing of such In case of ABSENCE OR DEATH of either parent,
children for civic consciousness and efficiency and the parent present shall continue exercising parental
the development of their moral, mental and physical authority. The remarriage of the surviving parent
character and well-being. (Art 209, FC) shall not affect the parental authority over the
children, unless the court appoints another person to
Parental authority is not limited to the rights of be the guardian of the person or property of the
parents over their children because such is children. (Art. 212, FC)
reciprocal. Children under parental authority are
obliged to observed obedience, love, and respect In case of SEPARATION of the parents, parental
towards their parents. Children shall always observe authority shall be exercised by the parent designated
respect and reverence towards their parents and are by the Court. The Court shall take into account all
obliged to obey them as long as the children are relevant considerations, especially the choice of the
under parental authority. (Art 211, FC) child over seven years of age, unless the parent
chosen is unfit (The 2nd spouse has no right of
It is for the purpose of strengthening the family as parental authority over the child). No child under 7
the foundation of the nation and to protect the years of age shall be separated from the mother,
marriage institution as the foundation of the family. unless the court finds compelling reasons to order
(Art. XV, Sec. 3 (1) and (2), 1987 Constitution) Thus, otherwise. (Art. 213, FC)
the State shall defend:
a.) Right of spouses: to
found a family in accordance with their religious Art. 49. During the pendency of the action and in
convictions and the demands of responsible the absence of adequate provisions in a written
parenthood. agreement between the spouses, the Court shall
b.) Right of children: to provide for the support of the spouses and the
assistance, including proper care and nutrition, custody and support of their common children. The
and special protection from all forms of neglect, Court shall give paramount consideration to the
abuse, cruelty, exploitation, and other conditions moral and material welfare of said children and their
prejudicial to their development. choice of the parent with whom they wish to remain
as provided to in Title IX. It shall also provide for
CHILD - refers to person below eighteen (18) years appropriate visitation rights of the other parent.
of age or those over but are unable to fully take care
of themselves or protect themselves from abuse, Art. 50. The effects provided for by paragraphs (2),
neglect, cruelty, exploitation or discrimination (3), (4) and (5) of Article 43 and by Article 44 shall
because of a physical or mental disability or also apply in the proper cases to marriages which
condition. (R.A 7610) It refers to a person under 18 are declared ab initio or annulled by final judgment
years of age. (RA 9344) under Articles 40 and 45.
The final judgment in such cases shall provide for
Characteristic of Parental Authority the liquidation, partition and distribution of the
properties of the spouses, the custody and support
GENERAL RULE: Parental authority and of the common children, and the delivery of third
responsibility may not be renounced or transferred presumptive legitimes, unless such matters had
except in the cases authorized by law. (Art 210, FC) been adjudicated in previous judicial proceedings.

EXCEPTIONS: GAC Art. 62. During the pendency of the action for legal
a. guardianship separation, the provisions of Article 49 shall likewise
b. adoption apply to the support of the spouses and the custody
c. commitment of the child in entities and and support of the common children.
institutions engaged in child care or in children’s

74 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art. 63. One of the effects of legal separation is Whenever the appointment or a judicial guardian
that the custody of the minor children shall be over the property of the child becomes
awarded to the innocent spouse, subject to the necessary, the same order of preference shall
provisions of Article 213 of FC. be observed.

In case of legal separation, still both exercise 3. In case of foundlings, abandoned neglected or
parental authority over the child. What may be abused children and other children similarly
awarded in favor of one over the other is parental situated, parental authority shall be entrusted in
custody or physical company of the child and such summary judicial proceedings to heads of
will not divest of the right to parental authority which children's homes, orphanages and similar
is broader in scope. institutions duly accredited by the proper
government agency. (Art. 217, FC)
In case both parents died, grandparents judicially
appointed by the court will exercise parental 4. When the best interests of the child so requires,
authority. the one appointed by the court as a guardian of
the child's property or a guardian ad litem
Duties of Children (following the order established in Art 216). (Art.
222, FC)
Children shall always observe respect and
reverence towards their parents AND are obliged to Extent of Authority
obey them as long as the children are under parental
authority. (Art 211 par 2, FC) The person exercising substitute parental authority
shall have the same authority over the person of the
Filial Privilege Rule child as the parents. (Art. 233 par 1, FC)

No descendant shall be compelled, in a criminal SPECIAL PARENTAL AUTHORITY


case, to testify against his parents and
grandparents, EXCEPT when such testimony is When Applicable
indispensable in a crime against the descendant or
by one parent against the other. (Art 215, FC) In case of minor under supervision, instruction or
HOWEVER, under the Rules on Evidence: “No custody. (Art 218, FC)
person may be compelled to testify against his
parents, other direct ascendants, children or other Who Exercises
direct descendants (Rule 130, sec. 25).” Thereupon,
should a conflict arise between this provision and The school, its administrators and teachers, or the
civil code provision, the latter prevails, since a individual, entity or institution engaged in child shall
procedural rule cannot impair substantive law. have special parental authority and responsibility
over the minor child while under their supervision,
SUBSTITUTE PARENTAL AUTHORITY instruction or custody. (Art 218, FC)

When Applicable Those given the authority and responsibility under


the preceding Article shall be principally and
1. In case of death, absence or unsuitability of the solidarily liable for damages caused by the acts or
parents. (Art. 214, FC) omissions of the unemancipated minor. The parents,
2. In default of parents or a judicially appointed judicial guardians or the persons exercising
guardian. (Art. 216, FC) substitute parental authority over said minor shall be
3. When the best interests of the child so requires. subsidiarily liable. (Art 219 par 1, FC)
(Art. 222, FC)

Who May Exercise The respective liabilities of those referred to in the


1. In case of death, absence or unsuitability of the preceding paragraph shall not apply if it is proved
parents, substitute parental authority shall be that they exercised the proper diligence required
exercised by the surviving grandparent. In case under the particular circumstances. (Art 219 par 2,
several survive, the one designated by the court, FC)
taking into account the same consideration
mentioned in the preceding article, shall All other cases not covered by this and the
exercise the authority. (Art. 214, FC) preceding articles shall be governed by the
2. In default of parents or a judicially appointed provisions of the Civil Code on quasi-delicts. (Art
guardian, the following person shall exercise 219 par 3, FC)
substitute parental authority over the child in the
order indicated: (Art. 216, FC) Extent of Special Parental Authority

(1) The surviving grandparent, as provided in Authority and responsibility shall apply to all
Art. 214; authorized activities whether inside or outside the
premises of the school, entity or institution. (Art 218,
(2) The oldest brother or sister, over twenty-one FC)
years of age, unless unfit or disqualified; and
In no case shall the school administrator, teacher of
(3) The child's actual custodian, over twenty-one individual engaged in child care exercising special
years of age, unless unfit or disqualified. parental authority inflict corporal punishment upon
the child. (Art 233 par 2, FC)
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

school. This notwithstanding the fact that the victim


is not a student of the said school. In the event that
the teacher who supervises the child went to
EFFECTS OF PARENTAL AUTHORITY UPON THE bathroom, such teacher is considered negligent. He
PERSONS OF THE CHILDREN should have been substituted by another to
supervise the children. The said persons may be
The parents and those exercising parental authority impleaded despite the fact that the minor is rich
shall have with the respect to their unemancipated because the consideration is the minority of the one
children or wards the following rights and duties: who caused injury.
(Art 220, FC)
1. To keep them in their company, to support, The defense of the school and others who are
educate and instruct them by right precept and exercising special parental authority is the exercise
good example, and to provide for their of due diligence as in quasi-delict. For the parents,
upbringing in keeping with their means; they can say that they could not exercise due
2. To give them love and affection, advice and diligence in supervising their child.
counsel, companionship and understanding;
3. To provide them with moral and spiritual If the assailant and victim are no longer minors and
guidance, inculcate in them honesty, integrity, the incident took place in the school where they are
self-discipline, self-reliance, industry and thrift, studying, the school, its administrators and teachers
stimulate their interest in civic affairs, and inspire may be impleaded based on contract because the
in them compliance with the duties of contract between the school and student provided
citizenship; that the school should provide adequate measures
4. To furnish them with good and wholesome to protect the student. Quasi-delict may also the
educational materials, supervise their activities, basis of action for damages. Schools of arts and
recreation and association with others, protect trade included even schools which are purely
them from bad company, and prevent them from academic institution (no distinction).
acquiring habits detrimental to their health,
studies and morals; DISCIPLINARY MEASURES
5. To represent them in all matters affecting their
interests; Art. 223. The parents or, in their absence or
6. To demand from them respect and obedience; incapacity, the individual, entity or institution
7. To impose discipline on them as may be exercising parental authority, may petition the proper
required under the circumstances; and court of the place where the child resides, for an
8. To perform such other duties as are imposed by order providing for disciplinary measures over the
law upon parents and guardians. child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the
Note: Parents and other persons exercising parental court, and a summary hearing shall be conducted
authority shall be CIVILLY LIABLE for the injuries wherein the petitioner and the child shall be heard.
and damages caused by the acts or omissions of
their unemancipated children living in their company However, if in the same proceeding the court finds
and under their parental authority subject to the the petitioner at fault, irrespective of the merits of the
appropriate defenses provided by law. (Art. 221, FC) petition, or when the circumstances so warrant, the
court may also order the deprivation or suspension
Illustrations: of parental authority or adopt such other measures
If the child is on vacation with his grandparents and as it may deem just and proper.
caused injury to another child, his parents may still
be impleaded in an action for damages because Art. 224. The measures referred to in the preceding
while the child is not living in their company, the law article may include the commitment of the child for
should be interpreted to mean legal parental not more than thirty days in entities or institutions
authority and custody and not necessarily limited to engaged in child care or in children's homes duly
physical custody. accredited by the proper government agency.

At the time of causing injury, the child who The parent exercising parental authority shall not
committed the act complained is the subject of a interfere with the care of the child whenever
pending adoption proceeding. By the time the committed but shall provide for his support. Upon
judgment is to be rendered in the civil case, the proper petition or at its own instance, the court may
adoption decree was already issued. In this case, terminate the commitment of the child whenever just
the adopters cannot be impleaded because the and proper.
biological parents have still parental authority over
the child at the time of the commission of the act EFFECTS OF PARENTAL AUTHORITY UPON
complained of. PROPERTY OF CHILDREN

The child who caused injury to a classmate is a Art. 225. The father and the mother shall jointly
kindergarten pupil. The incident took place within the exercise legal guardianship over the property of the
premises of the school. Who shall be impleaded? unemancipated common child without the necessity
The school, its administrators and teachers, as well of a court appointment. In case of disagreement, the
as the parents of the child shall be impleaded. father's decision shall prevail, unless there is a
judicial order to the contrary.
If the incident took place during an educational trip,
the school may still be impleaded provided the Where the market value of the property or the
educational trip is an authorized activity of the annual income of the child exceeds P50,000, the
76 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

parent concerned shall be required to furnish a bond


in such amount as the court may determine, but not (4) If the person exercising parental authority has
less than ten per centum (10%) of the value of the subjected the child or allowed him to be
property or annual income, to guarantee the subjected to sexual abuse, such person shall
performance of the obligations prescribed for be permanently deprived by the court of such
general guardians. authority. (Art. 232, FC)

The ordinary rules on guardianship shall be merely Grounds for Temporary Termination
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a Art. 229. Unless subsequently revived by a final
parent has remarried, in which case the ordinary judgment, parental authority also terminates:
rules on guardianship shall apply.
(1) Upon adoption of the child;
Notes:
The property of the minor should be registered in the (2) Upon appointment of a general guardian;
name of the minor because he is the owner thereof.
It shall not be registered in the name of his parents. (3) Upon judicial declaration of abandonment of
Judicial appointment is not necessary for the the child in a case filed for the purpose;
administration and management of the property of
the child. (4) Upon final judgment of a competent court
divesting the party concerned of parental
The parents, as administrator of the property of the authority; or
child can lease the property even without prior
judicial authorization. If the leased is for more than 1 (5) Upon judicial declaration of absence or
year, there is a need for prior judicial authorization incapacity of the person exercising parental
because such amounts to encumbrance. They authority.
cannot lease for 1 year with option to buy because
such amount to an act of disposition UNLESS there SUSPENSION OF PARENTAL AUTHORITY
is a prior judicial authorization.
Grounds
The parents cannot also sell the property of their
minor child UNLESS there is a prior judicial 1. Upon conviction of the parent or the person
authorization and provided that the sale is for the exercising the same of a crime which carries
benefit of the child. with it the penalty of civil interdiction. (Art. 230,
FC)

The authority is automatically reinstated upon


Art. 226. The property of the unemancipated child service of the penalty or upon pardon or
earned or acquired with his work or industry or by amnesty of the offender.
onerous or gratuitous title shall belong to the child in
ownership and shall be devoted exclusively to the 2. The court in an action filed for the purpose in a
latter’s support and education, unless the title or related case may also suspend parental
transfer provides otherwise. authority if the parent or the person exercising
the same: (Art. 231, FC)
The right of the parents over the fruits and income of a. Treats the child with excessive harshness or
the child’s property shall be limited primarily to the cruelty;
child’s support and secondarily to the collective daily b. Gives the child corrupting orders, counsel or
needs of the family. example;
c. Compels the child to beg; or
Art. 227. If the parents entrust the management or d. Subjects the child or allows him to be
administration of any of their properties to an subjected to acts of lasciviousness.
unemancipated child, the net proceeds of such
property shall belong to the owner. The child shall be The grounds enumerated above are deemed to
given a reasonably monthly allowance in an amount include cases which have resulted from culpable
not less than that which the owner would have been negligence of the parent or the person
paid if the administrator were a stranger, unless the exercising parental authority.
owner, grants the entire proceeds to the child. In any
case, the proceeds thus given in whole or in part If the degree of seriousness so warrants, or the
shall not be charged to the child’s legitime. welfare of the child so demands, the court shall
deprive the guilty party of parental authority or
TERMINATION OF PARENTAL AUTHORITY adopt such other measures as may be proper
under the circumstances.
Grounds for Permanent Termination
The suspension or deprivation may be revoked
Art. 228. Parental authority terminates permanently: and the parental authority revived in a case filed
for the purpose or in the same proceeding if the
(1) Upon the death of the parents; court finds that the cause therefor has ceased
and will not be repeated.
(2) Upon the death of the child; or

(3) Upon emancipation of the child.


77 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XI. EMANCIPATION AND AGE OF MAJORITY

Concept

EMANCIPATION – is the release of a person from


parental authority whereby he becomes capacitated
for civil life.

Effects

Emancipation for any cause shall terminate parental


authority over the person and property of the child
who shall then be qualified and responsible for all
acts of civil life. (Art. 236, FC)

When Emancipation Take Place

Emancipation takes place by the attainment of


majority. Unless otherwise provided, majority
commences at the age of 18 years. (Art 234, FC, as
amemded by RA 6809)

78 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XII. NAMES AND SURNAMES


In case of ANNULMENT of marriage, and the wife is
NAME OF A PERSON – describes identity of a the guilty party, she shall resume her maiden name
person to distinguish him from others. and surname. If she is the innocent spouse, she may
resume her maiden name and surname.
Characteristics HOWEVER, she may choose to continue employing
1. Absolute (to protect a person from being her former husband's surname, UNLESS:
confused with another) 1. The court decrees otherwise, or
2. Obligatory (no person can be without a name) 2. She or the former husband is married again
3. Beyond the commerce of man to another person. (Art 371, NCC)
(intransferrable/inalienable inter vivos or even
mortis causa but subject to trademarks or When LEGAL SEPARATION has been granted, the
service marks) wife shall continue using her name and surname
4. Imprescriptible (same name even after death) employed before the legal separation. (Art 372,
5. Fixed - may only be changed as a result of NCC)
a. legal consequences – marriage,
legitimation/change of status; or A WIDOW may use the deceased husband's
b. by judicial decree due to the ff. grounds: surname as though he were still living, in
i. change of status of person accordance with article 370. (Art 373, NCC)
ii. name is ridiculous, tainted with dishonor,
or extremely difficult to pronounce or Similarity and Identity of Names
write
iii. publicly known for a new name for a long In case of identity of names and surnames, the
period of time. younger person shall be obliged to use such
iv. sincere desire to adopt Filipino name to additional name or surname as will avoid confusion.
remove all badges of foreign origin (Art 374, NCC)

Parts of Name In case of identity of names and surnames between


1. Legitimate Child ascendants and descendants, the word "Junior" can
a. Given name be used only by a son (also to daughter, no
b. Middle name – mother’s surname prohibition). Grandsons and other direct male
c. Surname/family name – father’s surname descendants shall either:
(Art 364 and 369, NCC) 1. Add a middle name or the mother's
surname, or
2. Illegitimate child who is not recognized 2. Add the Roman numerals II, III, and so on.
a. Given name (Art 375, NCC)
b. Surname – mother’s surname (Art 368,
NCC) Usurpation of Name / Surname in Relation to CA
142
3. Illegitimate child who is recognized
a. Given name Usurpation of a name and surname may be the
b. Middle name – mother’s surname subject of an action for damages and other relief.
c. Surname/family name – father’s surname (Art 377, NCC) This is known as identity theft. There
(Art 366, NCC) is no need of actual injury because there is already a
potential harm. There can be civil and criminal
4. Adopted child by husband and wife liability.
a. Given name
b. Middle name – wife adopter’s surname The unauthorized or unlawful use of another
c. Surname – husband adopter’s surname person's surname gives a right of action to the latter.
(Arts 365 and 367, NCC) (Art 378, NCC)

5. Adopted by Single Person (putative father) – The employment of pen names or stage names is
Stephanie Case permitted, PROVIDED it is done in good faith and
a. Given name there is no injury to third persons. Pen names and
b. Middle name – biological mother’s surname stage names cannot be usurped. (Art 379, NCC)
c. Surname – father’s surname
GENERAL RULE: No person shall use different
6. Adopted by a Single Person other than names and surnames (USE ONLY ONE NAME). (Art
Stephanie Case 380, NCC)
a. Given Name
b. Surname – adopter’s surname EXCEPT: One may use pen names or stage names,
PROVIDED it is done in good faith and there is no
Use of Surname by Women injury to third persons.
A MARRIED woman MAY use
1. Her maiden first name and surname and Note: In all legal transactions, use the legal name.
add her husband's surname, or
2. Her maiden first name and her husband's Change of Name
surname or
3. Her husband's full name, but prefixing a No person can change his name or surname without
word indicating that she is his wife, such as judicial authority. (Art 376, NCC; See Discussion in
"Mrs." (Art 370, NCC) Special Proceedings)
79 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIII. ABSENCE 4. Those who may have over the property of


the absentee some right subordinated to the
ABSENCE - a legal status of a person who is not in condition of his death. (Art 385, NCC)
his domicile, his whereabouts being unknown, and it
is uncertain whether he is dead or alive. Effectivity Date

Stages of Absence The judicial declaration of absence shall not take


1. Provisional/Temporary - when a person effect until 6 months after its publication in a
disappears from his domicile, his whereabouts newspaper of general circulation. (Art. 386,
being unknown, and without leaving an agent to NCC)
administer his property. (Art. 381, NCC)
Appointment and Powers of Administrator
Remedies
An administrator of the absentee's property shall
The judge, at the instance of an interested party, be appointed in accordance with article 383.
a relative, or a friend, may appoint a person to (Art. 387, NCC)
represent him in all that may be necessary. (Art.
381, NCC) The wife who is appointed as an administratrix
of the husband's property cannot alienate or
This same rule shall be observed when under encumber the husband's property, or that of the
similar circumstances the power conferred by conjugal partnership, without judicial authority.
the absentee has expired. (Art. 381, NCC) (Art. 388, NCC)
The appointment referred to having been made,
the judge shall take the necessary measures to Termination of Administrator
safeguard the rights and interests of the
absentee and shall specify the powers, 1. When the absentee appears personally or
obligations and remuneration of his by means of an agent;
representative, regulating them, according to the 2. When the death of the absentee is proved
circumstances, by the rules concerning and his testate or intestate heirs appear;
guardians. (Art. 382, NCC) 3. When a third person appears, showing by a
proper document that he has acquired the
Who may be Appointed Provisional absentee's property by purchase or other
Representative title.
1. Present spouse - shall be preferred when no
legal separation. Note: In these cases the administrator shall
2. Any competent person - if the absentee left cease in the performance of his office, and the
no spouse, or if the spouse present is a property shall be at the disposal of those who
minor. (Art. 383, NCC) may have a right thereto. (Art 389, NCC)

Note: No acts of dominion to be exercised but 3. Definite Absence / Presumptive Death – when
only of general power of administration except the absentee is presumed dead.
when there is court authority.
a. Ordinary Absence (No danger of Death)
2. Normal/Declared – when a person disappears
from his domicile, and 2 years having elapsed After an absence of 7 years - presumed
without any news about the absentee or since dead for all purposes, EXCEPT for those of
the receipt of the last news (if no succession.
administrator/manager is appointed), or 5 years
in case the absentee has left a person in charge After an absence of 10 years - presumed
of the administration of his property. (Art. 384, dead for the purpose of opening succession
NCC) If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in
Period order that his succession may be opened.
(Art 390, NCC)
After 2 years - in case the absentee left no
person in charge of the administration of his b. Extra-ordinary Absence (there is danger of
property. death)

After 5 years - in case the absentee has left a After an absence of 4 years - presumed
person in charge of the administration of his dead for ALL purposes, including the
property. division of the estate among the heirs.

Who May File Instances


(1) A person on board a vessel lost during
The following may ask for the declaration of a sea voyage, or an aeroplane which is
absence: missing, who has not been heard of for
1. The spouse present; four years since the loss of the vessel or
2. The heirs instituted in a will, who may aeroplane;
present an authentic copy of the same; (2) A person in the armed forces who has
3. The relatives who may succeed by the law taken part in war, and has been missing
of intestacy; for four years;
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

(3) A person who has been in danger of


death under other circumstances and b. Without prejudice to the provision of the preceding
his existence has not been known for article, upon the opening of a succession to
four years. (Art 391, NCC) which an absentee is called, his share shall
accrue to his coheirs, unless he has heirs,
ORDINARY ABSENCE EXTRAORDINARY/ assigns, or a representative. They shall all, as
QUALIFIED ABSENCE the case may be, make an inventory of the
a.7 YEARS, person 4 YEARS, person is property. (Art. 394)
presumed dead for all presumed dead for all
purposes except for purposes including those
c. The provisions of the preceding article are
those of opening of opening succession; 2
succession YEARS for purposes of
understood to be without prejudice to the action
b.10 YEARS, person remarriage of the spouse of petition for inheritance or other rights which
presumed dead for present, under the are vested in the absentee, his representatives
purposes of opening following circumstances: or successors in interest. These rights shall not
succession except if a.Person on board a be extinguished save by lapse of time fixed for
he disappeared after vessel lost during a sea prescription. In the record that is made in the
the age of 75, in voyage or an aeroplane Registry of the real estate which accrues to the
which case, a period which is missing; coheirs, the circumstance of its being subject to
of 5 years is period is counted from
the provisions of this article shall be stated. (Art.
sufficient. the loss of the vessel or
c. 4 YEARS, person aeroplane.
395)
presumed dead for b.Person in the armed
purposes of forces who has taken d. Those who may have entered upon the
remarriage of the part in war inheritance shall appropriate the fruits received
spouse present. c. in good faith so long as the absentee does not
Person in danger of appear, or while his representatives or
death under other successors in interest do not bring the proper
circumstances and his actions. (Art. 396)
existence has not been
known. Effect of Reappearance

Note: In presumptive death there is no need of If the absentee appears, or without appearing his
judicial declaration except for purposes of existence is proved, he shall recover his property in
remarriage. the condition in which it may be found, and the price
of any property that may have been alienated or the
Illustrations: property acquired therewith; but he cannot claim
a. A disappeared in 1995 while there is a either fruits or rents. (Art. 392, NCC)
pending case filed by him against B for
damages, who is a partner is a partnership,
and he left a will instituting X and Y as
testate heirs.

Any interested person may file a petition to


represent the absentee in the pending case.
After 2 or 5 years, as the case may be,
person allowed by law may file a petition to
be appointed as administrator. After 7 years
(ordinary absence) or 4 years (extraordinary
absence), the partnership is deemed
dissolved. X and Y may file a petition for
probate of the will after 10 years (in case of
ordinary absence or 5 years in case he is 75
at the time he disappeared) or 4 years
(extraordinary absence). In the latter case,
the value of the estate shall be computed on
the 1st day of disappearance.

b. B left a will in favor of A as devisee. C is the


son of A. A disappeared in 1995. B died
2000. C must prove that A is still alive and
present at the time of death of B.

c. If the father of A died, C, the grandson, shall


inherit by representation. No need to prove
that A is alive and present.

Contingent Rights of the Absentee


a. Whoever claims a right pertaining to a person
whose existence is not recognized must prove
that he was living at the time his existence was
necessary in order to acquire said right. (Art.
393)
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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIV. CIVIL REGISTER All other matters pertaining to the registration of civil
status shall be governed by special laws. (Art. 413,
CIVIL REGISTER – record of acts, events and NCC)
judicial decrees concerning the civil status of
persons. (Art. 407, NCC) How May be Made

It is pursuant to parens patriae to constantly monitor 1. Judicial Proceedings (in rem – mere publication
those what are to be recorded. is sufficient)

What Must Be Registered (Art. 408, NCC) a. Summary – reception of evidence may be
a. Births done ex-parte
b. Marriages i. correction of clerical/typographical errors
c. Deaths (errors which are obvious to common
d. legal separations sense)
e. annulments of marriage
f. judgments declaring marriages void from the b. Adversarial – there is full blown trial if status
beginning of petitioner is directly affected. Also when
g. legitimations there is change of name if ground is publicly
h. adoptions known by such name.
i. acknowledgments of natural children e.g. change of sex from male to female;
j. naturalization petition to delete the date of marriage in
k. loss or recovery of citizenship birth certificate of child; petition to insert date
l. civil interdiction of marriage (contracted after recording of
m. judicial determination of filiation birth of child)
n. voluntary emancipation of a minor (no longer
applicable) Note: A person of alien parents cannot file a
o. changes of name petition for change of his former citizenship
to Filipino. He must file first for
Duty of Clerk of Court naturalization. If of Filipino mothers and born
before the 1973 Constitution, the child shall
In cases of legal separation, adoption, naturalization elect Philippine citizenship.
and other judicial orders mentioned in the preceding
article, the clerk of the court which issued the decree 2. Administrative Proceedings (RA 9048)
has the duty: a. By way of petition to be filed with the Local
a. to ascertain whether the same has been Civil Registrar. Copy furnished the Local
registered, and, Registrar General (NSO Administrator)
b. if this has not been done, to send a copy of said b. Grounds
decree to the civil registry of the city or i. Clerical errors
municipality where the court is functioning. (Art. ii. Name or nickname is ridiculous, tainted
409, NCC). In cases of legal separation, with dishonor or extremely difficult to
adoption, naturalization and other judicial orders write or pronounce
mentioned in the preceding article, it shall be the iii. New first name or nickname has been
duty of the clerk of the court which issued the habitually and continuously used by the
decree to ascertain whether the same has been petitioner and he has been publicly
registered, and if this has not been done, to known by the first name or nickname in
send a copy of said decree to the civil registry of the community
the city or municipality where the court is iv. Change will avoid confusion.
functioning. (n)
Change of Name, Mere Privilege
Probative Value of Civil Register
Change of name can only be made once because it
The books making up the civil register and all is a mere privilege. Convenience cannot defeat legal
documents relating thereto shall be considered purpose. SC did not allow the dropping of middle
public documents and shall be prima facie evidence name just because in Singapore do not usually use
of the facts therein contained. (Art. 410, NCC) middle name.

Liability of Civil Registrar

Every civil registrar shall be civilly responsible for


any unauthorized alteration made in any civil
register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
alteration. (Art. 411, NCC)

Amendments / Correction of Entries

No entry in a civil register shall be changed or


corrected, without a judicial order. (Art. 412, NCC)

82 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XV. FUNERALS

Duty and Right to Make Funeral Arrangements


The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the
order established for support, under article 199, FC.
(Art. 305, NCC) Thus, the ff. is the order of
preference:
a. Spouses
b. Descendants of the nearest degree
c. Ascendants of the nearest degree
d. Brothers and sisters

Note: In case of descendants of the same


degree, or of brothers and sisters, the oldest
shall be preferred. In case of ascendants,
the paternal shall have a better right. (Art.
305, NCC)

Every funeral shall be in keeping with the social


position of the deceased. (Art. 306, NCC)

The funeral shall be in accordance with the


expressed wishes of the deceased. In the absence
of such expression, his religious beliefs or affiliation
shall determine the funeral rites. In case of doubt,
the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same,
after consulting the other members of the family.
(Art. 307, NCC)

Any person who shows disrespect to the dead, or


wrongfully interferes with a funeral shall be liable to
the family of the deceased for damages, material
and moral. (Art. 309, NCC)

Disposal of Body Organs

Authorities sustain the view that mortal remains or


organs of a person’s body cannot be considered
property within the meaning of the law, thus they can
not be the subject matter of a contract.

HOWEVER, RA 349 as amended by RA 1056, a


person may validly grant to a licensed physician,
surgeon, known scientist, of any medical or scientific
institution to detach at any time after the grantor’s
death any organ of his body for medical, surgical or
scientific purposes. The grant must be:
a. In writing
b. Specify the grantee
c. Specify the purpose
d. Signed by the grantor and 2 disinterested
witnesses

Expenses of Funeral Where Chargeable

Chargeable against the property of the deceased.


However, such shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses. (Art. 310, NCC)

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