COMPENDIUM ON THE LAW ON

PERSONS AND FAMILY RELATIONS

I HISTORICAL BACKGROUND:

The Law on Persons and Family Relations is found in Book I of the Civil Code of the
Philippines. Its main draft was prepared by the Code Commission created byPresident Manuel
Roxas thru Executive Order No. 48 in March 20, 1947. The members of the Commission were
Dean Jorge Bocobo (Chairman), Judge Guillermo B. Guevarra, Dean Pedro R. Ylagan, and
Dean Francisco R. Capistrano. Arturo Tolentino was added as the fifth member but he resigned

after he was
Commission elected
started congressman.
drafting HeMay
the Code on was replaced
8, 1947 by Dr. the
and finished Carmelino
draft on Alvendia.
DecemberThe16,
1947. Thereafter, they submitted the draft to the Philippine Congress who finally approved it on
June 18, 1949 as Republic Act 386. It took effect on August 30, 1950 as declared by the
Supreme Court in the case ofLara vs. Del Rosario .

The present Civil Code is premised principally on the old Civil Code, which is the Civil
Code of Spain of 1889. Some of its provisions were taken from the 1935 constitution, existing
laws and jurisprudence, customs and traditions, decisions of foreign courts, laws of other
countries, equity and general principles of law. It contains 2270 articles and is divided into four
books and they are as follows: Book I is the Law on Persons and Family Relations (Art. 1 to
413), Book II is Property Ownership and its Modification (Art.414 to 711), Book III is the Different
Modes of Acquiring Ownership (Art. 712 to 1155), and Book IV is the Law on Obligations and
Contracts (Art.1156 to 2270). Before the Civil Code of Spain of 1889, our civil law was based on
the Recopilacion de las Leyes de las Indias and such other laws enacted in Spain like: La
Novisima Recopilacion, La Nueva Recopilacion, The Royal Ordinances of Castille, Las Leyes
de Toro and the La Siete Partidas.

On August 3, 1988, the Family Code of the Philippines took effect. It amended the
provisions in the Civil Code on Family Relations, more particularly Article 52 to 363 thereof. It
was signed into law by President Corazon C. Aquino on July 6, 1987 by virtue of Executive
Order No. 209, as amended by E.O. 227.

CIVIL CODE OF THE PHILIPPINES

(REPUBLIC ACT NO. 386)

PRELIMINARY TITLE

Chapter 1
EFFECTS AND APPLICATION OF LAWS

A. Title:

Art. 1 – This Act shall be known as the Civil Code of

the Philippines

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B. Effectivity of Laws:

Art. 2 – Laws shall take effect after fifteen days

following the completion of their publication in theOfficial
Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.

NOTES

1. refers
the other This article
to theprovides for the effectivity of two kinds of laws. One is the ordinary law and
Civil Code.

2. An ordinary law takes effect on the date it is expressly provided to take effect. If no
such date is provided, then it shall take effect after 15 days following the completion of its
publication in the Official Gazette or in a newspaper of general circulation in the Philippines.

3. When the law provides for its own effectivity or upon approval by the President,
publication is no longer necessary so long as it is not punitive in character Askay
( vs. Cosalan,
46 Phil. 179 and in Balbuena vs. Sec. of Education, L-14283, Nov. 29,1960). This ruling,
however, has already been abandoned in the case ofTanada vs. Tuvera, G.R. No. 63915, Dec.
29, 1986.

4. When the law does not explicitly provides for its effectivity, it shall be published first
and it shall only take effect after fifteen days following the completion of its publication in the
Official Gazette or in a newspaper of general circulation. A law must be published first before
it shall take effect. The requirement of publication is intended to familiarize the people with the
statute. They are necessary requisites and no one shall be charged with otice n of the statute‟s
provision until the said publication is completed and the fifteen day period has expired.
Publication must be in full or it is no publication at all since its purpose is to inform the public of
its contents ( Tanada vs. Tuvera, 146 SCRA 446)

5. The clause ―unless it is otherwise provided‖ does not mean unless the law
provides that there is no need for publication. It refers solely to the fifteen day period and not to
the requirement of publication. Publication is an indispensable requisite the absence of
which will not render the law effective.The Supreme Court in the case of Tanada vs. Tuvera
ruled that it is not correct to say that under the disputed clause, publication may be dispensed
with altogether. The absence of publication would offend due process in so far as it would deny
the public of the laws that are supposed to govern it. Publication is indispensable in every case,
but the legislature may in its discretion provide that the usual fifteen-day period shall be
shortened or extended. If the law provides for a different period shorter or longer than the fifteen
day period, then such shorter or longer period, as the case maybe, will prevail but only after
publication. If the law provides that it will take effect immediately, it means that it shall take
effect immediately after publication. In either case there should always be publication before the
law can take effect.

6. All statutes, including those of local application and private laws shall be published as
a condition for their effectivity, which shall begin fifteen days after publication, unless the
legislature fixes a different effectivity date. Covered by these rules are presidential decrees and

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executive orders promulgated by the President in the exercise of legislative powers, whenever
the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to
enforce or implement existing laws pursuant also to a valid delegation (Tanada vs. Tuvera, G.R.
No. 63915, December 29, 1986).

7. Interpretative regulations and those merely internal,i.e., those that regulate only
administrative agency‟s personnel and not the public, need not be published.Neither are the so-
(Ibid).
called letters of instructions, issued by administrative superiors concerning their duties

7.Executive Order No. 200 passed by President Aquino in 1987 provides that publication
may be done not only in the Official Gazette but also in a newspaper of general circulation in the
Philippines. The reason for allowing now the publication of a new law in a newspaper of general
circulation is that, newspaper could better perform the function of communicating the laws to the
people as they are easily available, have a wider readership and come out regularly.

8. The Civil Code shall take effect one year after its publication. However, in the case of
Lara vs. Del Rosario, the Supreme Court in an obiter dictum ruled that the Civil Code of the
Philippines took effect on August 30, 1950. This date is exactly one year after the June 1949
issue of the Official Gazette publishing the Code was released forcirculation. Records show
that it was published in the June 1949 Supplement of the Official Gazette but its publication was
released for circulation on August 30 1949 only. This ruling was criticized as it seems to
contradict the letter of the law which clearly provides that the one year period shall be
reckoned from the date of publication and not circulation . A question may be asked: Is this
not a case of judicial legislation?
C. Ignorance of the law excuses no one

Art. 3 – Ignorance of the law excuses no one from

compliance therewith NOTES

1. The legal maxim Ignorantia legis non excusat is founded on expediency, policy,
and necessity so as to prevent evasion of the law. The policy, however, refers only to
mandatory or prohibitory laws, not to permissive or suppletory laws. Every person is presumed
to know the law for as long as it is properly published. To allow one to set up the defense of
ignorance of the existence of the law he violated is to foment disorder in society. It would invite
deception, promote criminality and create a chaotic society. This rule is precisely the basis of
the Supreme Court in saying that all laws must be published. Without such notice and
publication, there will be no basis for the application of the maxim as it would violate the basic
principle of due process. It would be most unfair to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a constructive one (
Tanada vs. Tuvera).

2. This rule applies to all kinds of domestic laws, whether civil or penal, and whether
substantive or remedial. Ignorance of foreign law is not ignorance of the law, but ignorance of
the fact because foreign laws must be alleged and proved as a fact(Adong vs. Cheong Seng
Gee, 43 Phil. 43). If the foreign law is not properly alleged and proved, the presumption is that it

$
is the same as our law. This is known as the doctrine of“processual presumption”. Thus, in
the case of Wong Woo Yiu vs. Vivo, et al., L-21076, March 31, 1965, our Supreme Court ruled
that a marriage in China celebrated by a village elder cannot be considered as valid in the
Philippines, unless there is proof that indeed a village elder is authorized to solemnize marriage
under Chinese laws. In the absence of proof, we will presume that the law of China is the same
as ours where village elders cannot perform marriage.

D. Laws are generally prospective

Art. 4 – Laws shall have no retroactive effect, unless

the contrary is provided.

NOTES

1. While the judge looks backward, the legislator must look forward. In general, laws are
prospective, not retroactive. In the absence of a clear mandate of the law that it shall be applied
retroactively, the law will only apply prospectively.

2. There are instances, however, where the law may be applied retroactively and they
are as follows:
a.) When the law expressly provides for its retroactivity.
b.) When the law is curative or remedial innature
c.) When the law is procedural
d.) When the law is penal in character and favourable tothe accused.
e.) When a substantive right is declared for thefirst time, unless vested rights are

impaired.
3. A law that is penal in nature cannot be given retroactive effect if it is disadvantageous
to the accused because it becomes an ex post facto law which is prohibited by the constitution.
However, if it is favorable to the accused, it is allowed provided the accused is not a habitual
delinquent as defined in the Revised Penal Code. Thus, in the case ofPeople vs. Patalin, et al.
G.R. No. 125539, July 27, 1999, the Supreme Court said that the suspension of the Death
Penalty Law by the 1987 Constitution benefits those who are charged of capital offenses and
whose cases are still pending in court. Thus, even if the crime was committed before 1987
death penalty cannot be imposed on them as the 1987 constitution abolishing death penalty can
be applied retroactively as it is beneficial to them. Perforce, the subsequent reimposition of the
death penalty law in 1994 will not affect them even if their case is pending in court. The framers
of the Constitution themselves state that the law to be passed by Congress reimposing death
penalty can only have prospective application.

4. A law cannot be given retroactive effect if it impairs vested rights provided by the old
law. Thus, an illegitimate child born before the effectivity of the Family Code may still prove his
illegitimate filiation even after the death of his father in 1992. Although the Family Code which
took effect in 1988 provides that an illegitimate child must prove his illegitimate filiation during

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the lifetime of his putative father (Art. 175 FC), the same cannot be given retroactive effect
because it will impair vested right of the child acquired under the old law, which is that he can
still prove his illegitimate filiation under Article285 of the Civil Code within four years after
attaining the age of majority B ( ernabe vs. Alejo, GR. No. L- 140500, Jan. 21, 2002).

E. Violation of Mandatory or Prohibitory Laws:

Art. 5 – Acts executed against the provisions of

mandatory or prohibitory laws shall be void, except when the
law itself authorizes their validity.

NOTES

1. As a general rule, acts in violation of mandatory or prohibitory laws are void.

Mandatory laws are those which require something to be done while prohibitory laws are those
which contain positive prohibition and requires that certain acts should not be done. A law
mandating that a donation of an immovable property must be in a public instrument (Art. 749
C.C.), or requiring that a will be in writing (Art. 804 C.C.), or that sale of conjugal property must
be with the consent of both spouses (Art. 124 F.C.) are examples of mandatory laws. On the
other hand, a law that prohibits the making of a joint will by two or more persons (Art. 818 C.C.),
or prohibiting the making of donations to certain persons (Art. 739 C.C.) are prohibitory laws.

2. A law which leave it optional with the department or officer to which it is addressed to
obey or not is merely directory, and the violation of such law does not render the act void or

illegal. Also, it is a well settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory, so that non-compliance with them
does not invalidate the judgment on the theory that if the statute had intended such result it
would have clearly indicated it M ( arcos vs. COMELEC, et al., 248 SCRA 300),

3. Although violations of mandatory or prohibitory laws will render the act void, there are
instances where the law itself authorizes their validity (Art. 5, Civil Code). Among these
exceptional cases are:
a.) When the law makes the act not void but merely voidable.
Ex. Consent of a party to marriage must be given freely and voluntarily, however, if the consent
is vitiated by fraud or intimidation, the marriage is not null and void, but only voidable (Art. 45 (3)
Family Code).
b.) When the law makes theact valid, but the wrongdoer is subject to liability.
Ex. A widow is not allowed to remarry within 300 days from the death of her husband (Art. 351
RPC). However, if she violates this, her marriage would still be valid for a s long as she secured
the required marriage license, but without prejudice to her criminal liability under the law.
c.) When the law itself makes theact valid when it should have been void.
Ex. Gambling is prohibited by law. However, there are certain forms of gambling which the law
allows, ie: Lotto, Sweepstakes, Jai-Alai, horse races etc.

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 d.) When the law makes theact void, but recognizes some legal effects flowing
therefrom.
Ex. Marriage with a party who is psychologically incapacitated to comply with the essential
marital obligation is void. However, children born out of such marriage is considered legitimate
(Art. 54, Family Code).

F. Waiver of Rights:

Art. 6 – Rights may be waived, unless the waiver is

contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law.

NOTES

1. As a general rule, rights may be waived. The exceptions are:

a.)When the waiver is contrary to law, public order, public policy, morals, or
good customs.
b.)When the waiver is prejudicial to a third person with a right recognized by
law.

2. Waiver is the intentional relinquishment of a known right. The person waiving his right
must be capacitated to make the waiver. The right he is waiving must already be in existence at
the time the waiver is made. Thus, one cannot waive future inheritance.

3. The following are examples of rights that cannot be renounced validly:

a.) Natural right to life
b.) Rights which did not exist yet
c.) Renunciation of rights which would violate public policy, i.e. right to
repurchase homestead, waiver in advance of right to be heard in court,
waiver of a scholar‟s right to transfer to another school (Cui vs. Arellano
University, L-15127, May 30, 1961).

4. The agreement of the husband and wife who have already separated de facto that
they are free to look for another partner and that they waived their right to sue each other of
concubinage or adultery is null and void because it is against public policy.

5. A contract of sale with right to repurchase containing a prohibition against selling the
property to any other person except the heirs of the vendor a retro is null and void because it is
contrary to law. It amounts to a perpetual restriction on the right of ownership. What was
declared void, however, was the stipulation prohibiting the sale to any other person, not the
whole contract itself). . (Leal vs. IAC, GR.NO. L- 65425, Nov. 5, 1986

'
 6. Waiver of future inheritance is void because it is contrary to law. One cannot waive a
right that does not exist yet. If the inheritance has already accrued, the waiver may be valid
except when it is done to prejudice a creditor.. Hence, under Article 1052 of the Civil Code, if an
heir repudiates an inheritance to the prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the heir. The acceptance is to the extent of
their credit.

7. Political rights cannot be subject of waiver. An agreement between a candidate for

Mayor and a candidate for Vice-Mayor to split the former‟s term of office with the latter in order
to prevent the latter from running against him is null and void by reason of public policy. The
Constitution says that a public office is a public trust. It is not a property. It is beyond the
commerce of man, hence, it cannot be the object of a contract, otherwise, it is void ab initio.

G. Repeal of Laws:

Art. 7 – Laws are repealed only by subsequent one,

and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with

the Constitution, the former shall be void and the latter shall
govern.

Administrative or executive acts, orders and

regulations shall be valid only when they are not contrary to

the laws or the Constitution.

NOTES

1. Laws are repealed either EXPRESSLY or IMPLIEDLY. An express repeal of a law

occurs when the legislature passes a new law which expressly declares the repeal of an old or
existing law. The repeal is literally declared by the new law in specific terms, as where particular
laws and provisions are named and identified and declared to be repealed. An implied repeal
takes place when a new law contains provisions contrary to or inconsistent with those of a
former without expressly repealing them. Implied repeals are not looked upon with favor ( U.S.
vs. Palacio, 33 Phil. 208) . If both statutes can stand together, or their provisions can be
reconciled, then there is no repeal(Lichauco vs. Apostol, 44 Phil. 138)

2. If the law provides for a period within which it will be effective, then, the lapse of the
period stated by law will cause the death of such law without a need of a repeal. This is called a
“Lapse of Law”. An example of this is the law granting emergency power to the President or the

annual appropriation law.

3. The fact that the law has not been used anymore or that it has been violated more
often, does not mean that the law is already repealed.

(
 4. When a law which expressly repeals a prior law is itself repealed, the law first
repealed shall not be thereby revived unless expressly so provided. However, when a law which
repeals a prior law, not expressly but by implication, is itself repealed, the repeal of the
repealing law revives the prior law, unless the language of the repealing statute provides
otherwise (U.S. vs. Soliman, 36 Phil.5).

5. The Constitution is the supreme, the basic, and the fundamental law of the land. Thus,
in case of conflict between the constitution and the statute, the constitution will naturally prevail.
A statute that conflicts with the constitution will be declared unconstitutional. However, in
deciding the constitutionality of a statute, every presumption favors the validity of the same and
whenever possible, statutes should be given a meaning that will not bring in conflict with the
Constitution.

6. If only a portion of the statute is in conflict with the constitution, the courts may declare
partial unconstitutionality of the statute but only when the said portion is separable from the
other provisions of the statute. The general rule is that where part of a statute is void because it
is repugnant to the constitution, while the other part is valid, that valid portion, if separable from
the invalid, may stand and be enforced. The valid portion must be so far independent
of the invalid portion that it could stand by itself without it.

7. In hierarchy of laws, the constitution is supreme, followed by laws or statutes enacted

by congress, then by administrative or executive acts, orders and regulations promulgated by
administrative agencies. A statute or law enacted by Congress is higher than an administrative
order or regulation, thus, incase of conflict the statute prevails. Rules and Regulations as well
as administrative or executive acts violative of the law or the constitution are invalid. An
administrative agency cannot amend an act of Congress.

8. A law can be declared unconstitutional if: (a.) Its enactment is not within the legislative
powers of Congress, (b.) Arbitrary methods may have been established, and (c.) The purpose
or effect violates the Constitution or its basic principles (See Bar Flunkers Law, In re: Cunanan
case).

H. Are Judicial Decisions Laws:

Art. 8 – Judicial decisions applying or interpreting the

laws or the Constitution shall form part of the legal system of
the Philippines.

NOTES

1. Decisions of the Supreme Court applying or interpreting the laws or the Constitution
forms part of our legal system. However, they are still not considered laws because if this were
so, the courts would be allowed to legislate contrary to the principle of separation of powers.

)
Judicial decisions, though not laws, are evidence, however, of what the law mean, and this is
why they are part of the legal system of our country. The interpretation placed upon written laws
by the competent court has the force and effect of a law. It is considered part of the law as of
the date the law was srcinally passed, since the Court‟s construction merely esta blished the
contemporaneous legislative intent that the interpreted law desired to effectuate.

2. Only decisions of the Supreme Court establish jurisprudence or doctrines in the

Philippines (Miranda, et al. Vs. Imperial, et al. 77 Phil. 1066) and therefore part of our legal
system. Thus, decisions of the subordinate courts are only persuasive in nature, and can have
no mandatory effect. However, this rule does not militate against the fact that a conclusion or
pronouncement of the Court of Appeals which covers a point of law still undecided in the
Philippines may still serve as ajudicial guide to the inferior courts.

3. When a doctrine of the Supreme Court is overruled and a different view is adopted,
the new doctrine should be applied prospectively, and should not apply to parties who had relied
on the old doctrine and actedon the faith thereof. Thus, where the accused was appointed as a
secret confidential agent and authorized to possess a firearm in 1964 pursuant to a prevailing
doctrine enunciated by the Supreme Court in two previous cases, under which no criminal
liability is attached despite absence of a permit, the Supreme Court acquitted the accused of the
crime of illegal possession of firearm. This is so even if the said doctrine enunciated in the two
previous cases were subsequently reversed by the Court in 1967. The doctrine laid down by the
Supreme Court in 1967 abandoning the old doctrine should be prospectively applied and should
not prejudice persons who relied on the overturned doctrine while the same were still controlling
( People vs. Jabinal, 55 SCRA 607). Also, in the case of Apiag vs. Cantero, A.M. No. MTJ 95-
1070, 79 SCAD 327, the Supreme Court ruled that a judge who entered into a second marriage
in 1986 without having his previous marriage judicially declared void first cannot be held
administratively liable for immorality because at the time of his second marriage the prevailing
doctrine was still that ofOdayat vs. Amante, 77 SCRA 338, and Tolentino vs. Paras, 122 SCRA
525), where judicial declaration of nullity is not needed in a void marriage. The doctrine in the
case of Wiegel vs. Sempio Diy, 143 SCRA 499) which declares the need for a judicial
declaration of nullity of the previous marriage was not yet promulgated at the time the judge
contracted the second marriage.

4. Judicial decisions may be abrogated by (a.) Contrary ruling by the Supreme Court
itself; and (b.) By corrective legislative acts ofCongress. However, be it noted that Congress
cannot alter a Supreme Court interpretation of a constitutional provision, for this would be an
unwarranted assumption of judicial power(Endencia, et al.vs. David, 49 O.G. 4822).

I. Duty of Judge if Law is silent:

*
 Art. 9 – No Judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency
of the laws.

NOTES

1 .The judge is duty bound to render judgment even if the law is silent or obscure. Under
the old Civil Code, when there is no law exactly applicable to the point in controversy, the
custom of the place shall beapplied, and in default thereof, the general principles of law (Art. 6
par. 2, old C.C.). This provision was no longer reproduced in the new Civil Code, so, the judge
can apply any rule for as long as he consider it fair and just. The judge may apply customs and
traditions, decisions of foreign court by analogy, opinions of highly qualified writers and
professors, rules on statutory construction, or principles laid down in analogous circumstances.

2. The role of the judiciary is to apply or interpret the law. It is not supposed to legislate
because that power belongs to the legislative branch of government. However, in the case of
Floresca vs. Philex Mining Corporation, 136 SCRA 136, the Supreme Court ruled that, while
there is indeed the existence of the concept that the courts cannot engage in judicial legislation,
that myth has been exploded by Article 9 of the new Civil Code, which provides that “no judge or
court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the
laws”. Hence, even the legislators themselves recognizes, through Article 9, that there are
instances where the judiciary must legislate to fill in the gaps in the law.

J. Interpretation of Laws :

application of –
Art. 10 In case
laws, of doubt in
it is presumed thethe
that interpretation and
lawmaking body
intended right and justice to prevail.

NOTES

1. The primary function of the judiciary is to apply the law. Where the law is clear, it must
be applied according to its unambiguous provision. Courts will interpret the law only when its
provisions are ambiguous or vague. In interpreting the law, courts must always bear in mind that
the lawmaking body who made the law intended right and justice to prevail (Art. 10 C.C.).

2. When the law has been clearly worded, there is no room for interpretation.
Immediately, application of the law must be made unless consequences or oppression would
arise. If there are two possible interpretation of a law, that which will achieve the ends desired
by Congress should be adopted(U.S. vs. Navarro, 19 Phil. 134).

3. Courts should not apply equity, if equity will not serve the ends of justice. One cannot
invoke equity as a ground for reopening a case if an express provision of law exists under which
the remedy can be invoked. Equity follows the law. There are instances, when a court of equity
gives a remedy where the law gives none; but if the law gives a particular remedy, and that

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remedy is bounded and circumscribed by particular rules, it would be improper for the court to
take it up where the law leaves it and to extend it further than the law allows. Equity aids the
vigilant, not those who slumber on their rights ( Phil. Rabbit Bus Lines, Inc. vs. Arciaga, G.R. No.
L-29701, March 16, 1987).

K. Customs:

Art. 11 – Customs which are contrary to law, public

order or public policy shall not be countenanced.

Art. 12 – A custom must be proved as a fact, according

to the rules of evidence.

NOTES

1. Custom is defined as a rule of conduct formed by repetition of acts; uniformly

observed and practiced as a social rule, legally binding and obligatory. A custom must be
proved as a fact according to the rules of evidence. Courts take no judicial notice of custom. A
local custom can be a source of right but it cannot be considered by a court of justice unless
such custom is properly established by competent evidence like any other fact. Custom which
are contrary to law, public order or public policy shall not be countenanced. Custom can only be
applied by the court as a source of right in the absence of applicable law. Custom, even if
proven, cannot prevail over a statutory rule or even a legal rule enunciated by the Supreme
Court.

L. Computation of periods:

Art. 13 – When the law speak of years, months, days or

nights, it shall be understood that years are of three hundred
sixty-five days each; months, of thirty days; days, of twenty
four hours; and nights from sunset to sunrise.

NOTES

1 .If months are designated by their name, they shall be computed by the number of
days which they respectively have.

2. If the law provides for a prescriptive period of say ten (10) years for bringing an action
in court, the period shall start to run from the time the right of action accrues and the last day
shall be the 3,650th day after the said date. Each year must consist of 365 days. Thus, if the ten
year period starts to run on December 21, 1955, it is not correct to say that the period will
prescribe on December 21, 1965 because 1960 and 1964, being leap years, the month of
February in both had 29 days, so that ten (10) years of 365 days each from December 21, 1955

!!
falls on December 19, 1965 and not on December 21, 1965(National Marketing Corporation vs.
Tecson, 29 SCRA 70).

3. In computing a period, the first day shall be excluded, and the last day included.
Thus, if the law provides that you have fifteen (15) days to file your answer to the complaint, and
you received the complaint on January 5, 2009, then you have until January 20, 2009 to file
your answer. You exclude the day you received the complaint (Jan. 5) and start counting the 15
days the next day.

4. When the last day of the period is a Sunday or a Legal Holiday, is the act due that day
or the following day? The answer depends on the source of the obligation. If the source of the
obligation is an ordinary contract, the general rule is that an act is due even if the last day is a
Sunday or a Legal Holiday, unless there is an agreement to the contrary. This is because
obligations arising from contracts have the force of law between the contracting parties (Art.
1159 of the Civil Code). However, if the period refers to the one prescribed by the Rules of
Court, by an order of the court, or by any applicable statute, the last day will be the day after
Sunday or legal holiday.

M. Theories of Territoriality:

Art. 14 – Penal laws and those of public security and

safety shall be obligatory upon all who live or sojourn in
Philippine territory, subject to the principles of public
international law and to treaty stipulations.

NOTES

1 .The theory of territoriality mean that our penal laws and those of public security and
safety shall apply to all those inside the Philippine territory, whether one is a citizen of the
Philippines or a foreigner. This rule will apply even if the foreigner is merely sojourning in
Philippine territory. So, if a crime is committed inside Philippine territory, Philippine law governs
even if the perpetrator is not a citizen of the Philippines.

2. The exception to this rule is when the foreigner is exempted from the coverage of our
penal laws because of the principle of public international law or by treaty stipulations.

3. Under the 1961 Vienna Convention on Diplomatic Relations of which the Philippines is
a signatory state, diplomatic agents are immune from criminal jurisdiction of the receiving state
(Art. 31 Vienna Convention). A diplomatic agent is the head of the mission (ie. Ambassador or a
member of the diplomatic staff of the mission).

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 4. A foreigner may also be exempted from the coverage of our penal laws if there is a
treaty between his country and the Philippines exempting him from the jurisdiction of our courts.
One good example of this rule was the former Philippine– U.S. Military Bases Agreement.

N. Nationality Theory:

Art. 15 – Laws relating to family rights and duties, or to

status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

NOTES

1. Under the Nationality Theory, a Filipino, wherever he may go, is governed by the laws
of the Philippines relating to family rights and duties, status, condition and legal capacity.
Hence, a Filipino who is married here in the Philippines shall continue to be married wherever
he may go. A divorce decree obtained by a Filipino spouse in a foreign country does not
dissolve his marriage here in the Philippines because we do not recognize divorce as a rule.

2. The Nationality Theory applies not only to Filipinos living abroad but also to
foreigners who are living here in the Philippines. Thus, the legal capacity of a foreigner to
contract marriage here in the Philippines is primarily governed by his national law and not by the
Philippine law.

O. Doctrine of Lex Rei Sitae:

Art. 16 – Real property as well as personal property is

subject to the law of the country where it is situated.

However, intestate and testamentary successions,

both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country wherein said property may be found.

NOTES

1. Lex Rei Sitae literally means the law of the place where the real property is located.
Under this doctrine, real properties as well as personal properties are governed by the law of

the country where the properties are located.

2. Under the old Civil Code, personal properties are governed by the law of the nation of
the owner. Personal property follows the national or domiciliary law of the owner, under the

!$
doctrine of mobilia sequuntur personam. Now the doctrine of Lex Rei Sitae is applied to both
real and personal property. So, shares of stocks in a corporation owned by a foreigner, even if
a personal property, can be taxed in the Philippines so long as the property is located in this
country (Wells Fargo Bank vs. Collector of Internal Revenue, 70 Phil. 325). Dividends from the
shares of stocks of Philippine corporations may also be taxed even if the stockholder do not
reside here (Manila Gas Corp. vs. Col., 62 Phil. 895). Bank deposits in the Philippines even if
owned by a foreigner may be subjected to attachment proceedings Asiatic
( Petroleum Co. vs.
Co Quico, 40 O.G. 132)

3. One important exception to the Lex Situs rule is successional rights. Under the
second paragraph of Article 16, it is the national law of the decedent that governs the following:
(a.) Order of succession, (b.) Amount of successional rights, and (c.) Intrinsic validity of
testamentary provisions. This rule applies irregardless of the nature of the property and where it
may be found.

4. A foreigner residing in the Philippines cannot state in his last will and testament that
his properties shall be disposed of in accordance with Philippine law as it is illegal and void
under Art.16 of the Civil Code. It is his national law (Turkish law) that will govern the disposition
of his estate and not the Philippine law(Minciano vs. Brimo, 50 Phil. 867).

5. Our court, in settling the estate of a deceased foreigner, must apply his national law.
But, if the national law of the said decedent refers the problem back to us by stating that it is the
law of the country where the decedent is domiciled (domiciliary theory), then our court has no
other recourse but to accept the referral and apply our law. This is known as the“Renvoi
Problem”. If there are two rules in the national law of the decedent that could be applied, one is
an internal law while the other is a conflict rule, the latter should apply ( In the matter of Testate
Estate of the Deceased Edward E. Christensen, G.R. No. L-16759, January 31, 1963).

6. A foreigner , both a citizen and resident of Texas, U.S.A., executed two wills before
his death, one to govern his properties in the United States while the other to govern his
properties in the Philippines. In both wills hedid not give anything to his recognized illegitimate
children in the Philippines. Under Texas law, there are no compulsory heirs and therefore no
legitimes. The illegitimate children opposed the will because they were not given a share in his
estate. Are they entitled to legitimes? The Supreme Court answered this question in the
negative in the case of Testate Estate of Amos Bellis, et al. vs. Edward A. Bellis, 20 SCRA 358.
The illegitimate children are not entitled to a share in the estate of the decedent because they
are not entitled to it under the national law of the decedent. The renvoi doctrine cannot be
applied here because the decedent is both a citizen and resident of Texas, U.S.A. unlike in the
Christensen case where the decedent is a resident of the Philippines at the time of his death.

P. Lex Loci Celebraciones:

!%
 Art. 17 – 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.

When the acts referred to are executed before the

diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established
by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or

property, and those which have for their object public order,
public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign
country.

NOTES

1. The law of the place where the contract was executed determines the validity of the
contract. This rule, however, applies only to the extrinsic validity of the contract. Thus, if a
document is executed in a country where notarization by a lawyer is not required, then such
document will be recognized as valid here in the Philippines because the formalities of the
document is governed by the law of the place where it was executed(German and Co. vs.
Donaldson, Sim and Co., 1 Phil. 63)
.
2. Even if the act be done abroad, still if it is executed before Philippine diplomatic and

consular offices, the solemnities of Philippine law shall be observed because these offices are
extension of Philippine territory. This is called the principle of exterritoriality.

3. Under the third paragraph of this Article, our prohibitive laws shall not be rendered
ineffective by laws of foreign countries or judgment of a foreign court. Thus, a marriage
between two Filipinos validly solemnized in the Philippines cannot be rendered ineffective by the
judgment of a foreign court granting divorce in favour of one spouse. A divorce decree obtained
by a Filipino spouse against the other spouse is null and void here as it violates not only Article
15 but also Article 17 par. 3 of the Civil Code of the Philippines. The only instance where a
divorce decree obtained abroad may be recognized in the Philippines is that one referred to in
Article 26 par. 2 of the Family Code.

Q. Suppletory nature of Civil Code:

Art. 18 – In matters which are governed by the Code of

Commerce and special laws, their deficiency shall be

supplied by the provisions of this Code.

NOTES

!&
 1. In case of conflict between the Code of Commerce or a special law and the Civil
Code, the former shall generally prevail because they are special laws as against the Civil Code
which is a general law, except if otherwise provided for by the Civil Code (Leyte A. And M. Oil o.
Vs. Block, 52 Phil. 429)
.
2. The general rule is that in case of conflict between a special law and a general law,
the former prevails. There are instances, however, where the Civil Code expressly declare itself
superior to special laws and these are in Common carriers (Art. 1766, Civil Code) and
Insolvency (Art. 2237, Civil Code).

3. When an application for life annuity was acceptedby the insurance company, and the
latter intended to mail its acceptance, but never actually mailed the same and so the applicant
never received the letter of acceptance until he died, the contract was never perfected. Here,
the Insurance Code is silent as to when the contract is deemed perfected, so, the Court applied
the provision of the Civil Code on perfection of contract which requires knowledge by the offeror
of the acceptance (Art. 1262 C.C.). In case of deficiency of the Code of Commerce, the Civil
Code will apply suppletorily.

4. However, not all deficiency in the Carriage of Goods by Sea Act can be supplied by
the Civil Code. In the case of Dole Philippines Inc. vs. Maritime Co. of the Philippines, 148
SCRA 119, the Supreme Court rejected the contention of the petitioner that the one- year
prescriptive period for making a claim for loss or damage under Sec. 3, paragraph 6 of the
Carriage of Goods by Sea Act was tolled by petitioner‟s extrajudicial demand pursuant to Article
1155 of the Civil Code which should be applied suppletorily. The claim referred to in the
Carriage of Goods by Sea Act is a formal or judicial claim and not just a mere extrajudicial
demand. The general provisions of the Civil Code (Art. 1155) cannot be made to apply, as such
application would have the effect of extending the one-year period of prescription fixed in the
law. It is desirable that matters affecting transportation of goods by sea be decided in as short a
time possible; the application of the provision of Article 1155 of the new Civil Code would
unnecessarily extend the period and permit delays in the settlement of questions affecting
transportation, contrary to the clear intent and purpose of the law.

Chapter II

LAW ON HUMAN RELATIONS

A. Principle of Abuse of Rights:

Art. 19 – Every person must, in the exercise of his

rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.

!'
 NOTES

1. The chapter on human relation was formulated to present some basic principles that
are to be observed for the rightful relationship between human beings and the stability of social
order. It indicates certain norms that spring from the fountain of good conscience. A person has
the right to exercise his rights, but in so doing, he must be mindful of the rights of other people.
Hence, if he exercises his right but in the process causes damage to another, he can be liable
for damages.

2. Article 19 lays down the basic norms and standards to be observed by everyone in
the exercise of their rights or the performance of their duties. These standards are: (1.) act with
justice, (2.) give everyone his due, and (3.) observe honesty and good faith. The Civil Code,
therefore, recognizes certain limitation on the exercise of one‟s right; and these are the
standards set forth in Article 19. Thus, even if one is merely exercising his right under the law,
his action may be a source of liability. When a right is exercised in a manner which failed to
conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong
is thereby committed for which the wrongdoer must be held responsible.

3. A prevailing party in the Ejectment case who demolished the house of the defendant
on the basis of the writ of execution duly issued by the court may still be held liable for damages
if it did not give the defendant sufficient time to remove his personal belongings, which in the
process were lost or destroyed, in the course of the demolition. The prevailing party failed to
observe the basic norms in Article 19 when it immediately implemented the writ of
demolition, hence, liable for damages(Albetz Investments, Inc. vs. Court of Appeals, G.R.
No. L-32570, Feb. 28, 1977)
.
4. Even if respondent failed to pay his electric bills on time, MERALCO could not
cut his electric supply without prior notice. The law requires at least 48-hour notice before
disconnection of electric supply can be made by Meralco. Failure to provide said prior written
notice amounts to tort. Meralco is liable for damages under Article 19 of the Civil Code
(Meralco vs. Court of Appeals, G.R. No. L-39019, Jan. 22, 1988). However, when there is meter
tampering committed by the consumer, Meralco may immediately disconnect electric service on
the ground of alleged meter tampering, but only if the discovery of the cause is personally
witnessed and attested to by an officer of the law or a duly authorized representative of the
Energy Regulatory Board. If there is no government representative, the prima facie authority to
disconnect granted to Meralco by R.A. 7832 cannot apply. The presence of government agents
who may authorize immediate disconnection goes into the essence of due process. Meralco
cannot be the prosecutor and judge in imposing the penalty of disconnection due to alleged
meter tampering (Sps. Quisumbing vs. Meralco, G.R. No. 142943, April 3, 2002).
.

5. A co-creditor who did not observe honesty and good faith in its dealings with the other
creditors in an Insolvency proceeding can be held liable for damages if its action causes
damage to them (Velayo vs. Shell Co. of the Phil., G.R. No. L-7817, Oct. 31, 1956)
.

!(
 6. The elements of an abuse of rights under Article 19 are the following: (a.) There is a
legal right or duty; (2.) which is exercised in bad faith; (3.) for the sole intent of prejudicing or
injuring another (Albenson Enterprises Corp. vs. C.A., 217 SCRA 16)

7. While the Board of Directors, under the Articles of Incorporation of a non-profit and
non-stock membership club, may have the right to approve or disapprove an application for
proprietary membership, the right should not be exercised arbitrarily. A right, though by itself
legal because it is recognized or granted by law as such, may nevertheless become the source
of some illegality – when a right is exercised in a manner which does not conform with the
norms enshrined in Article 19 of the Civil Code and results in damage to another, a legal wrong
is thereby committed for which the wrongdoer must be held responsible( Cebu Country Club,
Inc. vs. Elizagaque, 542 SCRA 65).

B. Damages for willful or negligent acts:

Art. 20 – Every person who, contrary to law, wilfully or

negligently causes damage to another, shall indemnify the
latter for the same.

NOTES

1. This Article punishes illegal acts whether done wilfully or negligently. If an act is in
violation of a law, and it causes damage or injury to another, the perpetrator is always
answerable for damages even if he did not do it intentionally.

2. A negligent act causing damage to another is always a source for damages.

Negligence has been defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution and vigilance which the circumstances greatly
demand, whereby such other person suffers injury.

3. Even if someone is damaged by the act of another, he does not necessarily have the
right to be indemnified if he could not show that a right of his has been impairedFelipe
( vs.
Leuterio, et al. G.R. No. L-4606, May 30, 1955).

4.- A school can be held liable for actual damages due to its negligence in including a
student in the list of candidates for graduation when in fact he could not graduate as said
student failed in the removal exam. However, the school cannot be held liable for moral
damages as the subject student did not suffer shock, trauma and pain when he was informed
that he could not graduate. At the very least, it behoved on the student to verify for himself
whether he has completed all necessary requirements to be eligible for graduation and the bar
examination (University of the East vs. Jader, G.R. No. 132344, February 7, 2000).

C. Not contrary to law but to Morals:

!)
 Art. 21 – Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damages.

NOTES
1.To distinguish this Article from Article 20, the act defined in the preceeding article is
contrary to law and it is done either wilfully or negligently. In this article, the act is not
necessarily against the law but it is contrary to morals, good customs and public policy. The act
here must be done wilfully, unlike in the preceeding article where the act may be done
negligently.

2. Article 21 was intended to expand the concept of torts in this jurisdiction by

granting adequate legal remedy for the untold number of moral wrong which is
impossible for human foresight to specifically provide in the statutes(PNB vs. C.A., 83
SCRA 247). It was designed to fill in the ―countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered material
and moral injury”(Report of the Code Commission, p.39).

3. The example given by the Code Commission is as follows: A seduces the 19-year old
daughter of X. A‟s promise to marry the girl has not been made or ca nnot be proved. The girl
becomes pregnant. Under the present criminal laws, there is no crime as the girl is already
above 18 years of age. No civil action for breach of promise to marry can also be filed. Under
Article 21, she and her parents would have the right to bring an action for damages against A.

4. A man who made a promise to marry a womanbut reneged on his promise cannot be
sued for breach of promise to marry in order to compel him to make good his promise. The
omission in the Civil Code of the proposed chapter on Breach of Promise to Marry is a clear
manifestation of legislative intent not to sanction as such, suits for breach of promise to marry,
otherwise, many innocent men may become victims of designing and unscrupulous women.

5. A married man who enticed a young woman to elope with him, taking advantage of his
closeness to the family of the woman is violative of basic rule on human relation. His
premeditated act of frequently visiting the woman in the guise of teaching her how to pray the
rosary, but thru an ingenious scheme or trickery, seduced the latter to the extent of making the
woman fall in love with him has committed an injury to the woman‟s family in a manner contrary
to morals, good customs and public policy as contemplated in Article 21 of the New Civil Code
(Cecilio Pe vs. Alfonso Pe, G.R. No. L-17396, May 30, 1962, 5 SCRA 200).

6. Mere breach of promise to marry is not an actionable wrong, but to formally set a

wedding and go through all the preparations therefore, only to walk out of it when the marriage
is about to be solemnized is quite different. Obviously, it is contrary to good customs and
morals. The defendant must be held liable for damages pursuant to Article 21 of the Civil Code
(Wassmer vs. Velez, G.R. No. L-20089, Dec. 26, 1964)

!*
 .
7. Generally, only actual damages can be recovered by the woman. However, if the
breach of promise to marry is coupled with criminal or moral seduction, moral damages may be
awarded. A man who made a promise to marry in order to succeed in having carnal knowledge
with the woman, and did not make good his promise after succeeding in his evil design, is liable
for moral damages.

8. In Hermosisima vs. Court of Appeals, et al., G.R. No. L-14628, Sept. 30, 1960, the
Supreme Court ruled that there can be no recovery of moral damages in a breach of promise to
marry, except when there is moral seduction committed by the man. In this case, however, it
was the woman who virtually seduced the man, by surrendering herself to him because she, a
woman ten years older, was overwhelmed by her love for him.

9. Even if there was no carnal knowledge, a man may still be held liable for moral
damages if the breach of promise to marry was done deliberately or intentionally in his desire to
inflict loss or injury to the woman. Thus, a man who deliberately fails to appear at the altar
during the wedding day simply because he intended to embarrass or humiliate the woman is
liable not only to moral but also exemplary damages (Victorino vs. Nora, C.A. No. 13158-R, Oct.
26, 1955).

D. Unjust Enrichment:
Art. 22 – Every person who through an act or performance
by another, or any other means, acquires or comes into
possession of something at the expense of the latter without
just or legal ground, shall return the same to him.

Art. 23 – Even when an act or event causing damage to

another’s property was not due to the fault or negligence of
the defendant, the latter shall be liable for indemnity if
through the act or event he was benefited.

NOTES

1 .No person should unjustly enrich himself at the expense of another (Nemo cum
alterius detriment protest). This Roman Law principle is embodied in Article 22 and also in
Articles 2142 to 2175 (Quasi-Contracts) of the New Civil Code. This is a basic principle in law
that has already been existing in our legal system long before the Civil Code took effect.

2. If one pays another by mistake, the latter is duty bound to return it under the

principle of “Solutio
without mistake thenIndebiti” founden
it is “accion in rem
the chapter on Quasi-Contract.
verso”. The If the
difference between payment
accion is done
en rem verso
and solutio indebiti is that in the former the payment was done not by mistake while in the latter
it is essential that there be mistake in payment. Both, however, involves unjust payment.

#+
 3. There is no unjust enrichment when the person who will benefit has a valid claim to
such benefit (Benguet Corporation vs. DENR – Mines Adjudication Board, 545 SCRA 196). The
fundamental doctrine of unjust enrichment is the transfer of value without just cause or
consideration (Almocera vs. Ong, 546 SCRA 164). There is unjust enrichment when a person
unjustly retains a benefit to the loss of another, or when a person retains money or property of
another against the fundamental principles of justice, equity and good conscience(Allied
Banking Corporation vs. Lim Sio Wan, 549 SCRA 504; Zosa vs. Estrella, 572 SCRA 428).

4. Article 23 is also anchored on the principle of unjust enrichment. The example given
by the Code Commission is the case of Mr. A, a farmer whose cattle were driven to the
cultivated highland belonging to B because of a flood. A‟s cattle were saved, but B‟s crop were
destroyed and eaten up by the cattle. Although A was not at fault, he was benefited. It is but
right and equitable that he should indemnify B.

E. Courts should protect the underdog:

Art. 24 – In all contractual, property or other relations,

when one of the parties is at a disadvantage on account of
his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be
vigilant for his protection.

1. This provision finds meaning in the principle of“Parens Patria” which literally mean
father or parents of his country. The phrase refers to the sovereign power of the state in
safeguarding the rights of person under disability, such as the insane and the incompetent. The
state as parens patriae is under the obligation to minimize the risk to those who because of
their minority, are as yet unable to take care of themselves fully (People vs. Baylon, L-35785,
May 29, 1974).

2. The meaning of the phrase “the courts must be vigilant for his protection” is that in
case of doubt the courts must resolve the case in favor of the underdog. Thus, in labor
contracts, doubts are resolved in favour of the labourers as they are usually the disadvantaged
party. According to the Commission, Article 24, protects among others the labouring class,
many members of which face obvious disadvantages(Report Code Commission, p.16).

F. Prohibition on thoughtless extravagance:

Art. 25 – Thoughtless extravagance in expenses for

pleasure or display during acute public want or emergency
may be stopped by order of the courts at the instance of any
government or private charitable institution.

#!
 NOTES

1. Only charitable institution, whether government or private, may bring the action in
court to stop or prevent thoughtless extravagance during acute public want. The action to file is
for Injunction. The reason for this rule is to avoid chaos in the society as the thoughtless
extravagance during emergency may incite the passion of those who cannot afford to spend.

G. Respect for Dignity and Privacy:

Art. 26 – Every person shall respect the dignity,

personality, privacy and peace of mind of his neighbours and
other persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a cause
of action for damages, prevention and other relief:

(1.) Prying into the privacy of another’s residence;

(2.) Meddling with or disturbing the private life or family
relations of another;
(3.) Intriguing to cause another to be alienated from his
friends;
(4.) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defects, or
other personal condition.

1. According to the Code Commission, this article is intended to enhance human

dignity and personality. Social equality is not sought, but due regard for decency and propriety.
The remedy of the offended party is to file an action for damages, prevention (Injunction), or any
other relief.

2. This Article emphasizes that a person‟s dignity, personality, privacy and peace of
mind must be respected. The present laws, whether civil or criminal, do not adequately cope
with the interferences and vexations mentioned in Article 26, thus, the need for the remedy of an
action for damages under the said law.

H. Refusal to perform official duty:

Art. 27 – Any person suffering material or moral loss

because a public servant or employee refuses or neglects,

without just cause, to perform his official duty may file an
action for damages and other relief against the latter, without

##
 prejudice to any disciplinary administrative action that may
be taken.

NOTES

1. This Article is intended for public officials or employees who refuses or neglects to
perform their duties which resulted to damage or prejudice of another person. The public official
or employee concerned can be held answerable for damages if a person suffers damage by
reason of his inaction.

2. A President of a State College who in bad faith refuses to graduate a student with
honors, an award which the student rightfully deserved, despite the intervention and directive of
the Office of the Bureau of Public Schools, can be held liable for damages under Article 27 of
the Civil Code (Ledesma vs. Court of Appeals, 160 SCRA 449).

I. Damages for Unfair Competition:

Art. 28 – Unfair competition in agricultural, commercial or

industrial enterprises or in labor through the use of force,
intimidation, deceit, machination or any other unjust,
oppressive or high-handed method shall give rise to a right of
action by the person who thereby suffers damages.

NOTES

1. This Article is intended to lay down a general principle outlawing unfair competition,
both among enterprises and among labourers. Unfair competition must be expressly denounced
in this chapter because same tends to undermine free enterprise. While competition is
necessary in free enterprise, it must not be unfair(Memorandum of the Code Commission, L.J.
Aug. 31, 1953). It is necessary in a system of free enterprise. Democracy becomes a veritable
mockery if any person or group of persons by any unjust or high-handed method may deprive
others of a fair chance to engage in business or to earn a living(Report of the Code
Commission, p.31).

J. Dependent and Independent Civil Actions:

Art. 29 - When the accused in a criminal prosecution is

acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond to

#$
 answer for damages in case the complaint should be found to
be malicious.

If in a criminal case the judgment of acquittal is based

upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be inferred
from the text of the decision whether or not the acquittal is
due to that ground.

Art. 30 – When a separate civil action is brought to

demand civil liability arising from a criminal offense, and no
criminal proceedings are instituted during the pendency of
the civil action, a preponderance of evidence shall likewise
be sufficient to prove the act complained of.

Art. 31 – When the civil action is based on an obligation

not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.

Art. 32 – Any public officer or employee, or any private

individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:

(1.) Freedom of religion;

(2.) Freedom of speech;
(3.) Freedom to write for the press or to maintain a periodical
publication;
(4.) Freedom from arbitrary or illegal detention;
(5.) Freedom of suffrage;
(6.) The right against deprivation of property without due
process of law;
(7.) The right to a just compensation when private property is
taken for public use;
(8.) The right to the equal protection of the laws;
(9.) The right to be secure in one’s person, house, paper, and
effects against unreasonable searches and seizures;
(10.) The liberty of abode and of changing the same;
(11.) The privacy of communication and correspondence;
(12.) The right to become a member of associations or
societies for purposes not contrary to law;
(13.) The right to take part in a peaceable assembly to
petition the government for redress or grievances;

#%
 (14.) The right to be free from involuntary servitude in any
form;
(15.) The right of the accused against excessive bail;
(16.) The right of the accused to be heard by himself and
counsel, to be informed of the nature and the cause of the
accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17.) Freedom from being compelled to be a witness against
one’s self, or from being forced to confess guilt, or from
being induced by a promise of immunity or reward to make
such confession except when the person confessing
becomes a state witness;
(18.) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflected in
accordance with a statute which has not been judicially
declared unconstitutional; and
(19.) Freedom of access to the courts.

In any cases referred to in this Article, whether or not the

defendant’s act or omission constitutes a criminal offense,
the aggrieved party has the right to commence an entirely
separate and distinct civil action for damages, and for other
relief. Such civil action shall proceed independently of any
criminal prosecution (if the latter be instituted), and may be
proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from
a judge unless his act or omission constitutes a violation of
the Penal Code or other statute.

Art. 33 – In cases of defamation, fraud, and physical

injuries, a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the
injured party. Such civil action shall proceed independently
of the criminal prosecution, and shall require only a
preponderance of evidence.

Art.
force 34 – When
refuses or failsatomember of a
render aid or city or municipal
protection police
to any person
in case of danger to life or property, such peace officer shall
be primarily liable for damages, and the city or municipality

#&
 shall be subsidiarily responsible therefore. The civil action
herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice
to support such action.

Art. 35 - When a person claiming to be injured by a

criminal offense, charges another with the same, for which no
independent civil action is granted in this Code or any special
law, but the justice of the peace finds no reasonable grounds
to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal
proceedings, the complainant may bring a civil action for
damages against the alleged offender. Such civilaction may
be supported by a preponderance of evidence. Upon the
defendant’s motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint be
found to be malicious.
If during the pendency of the civil action an information
should be presented by the prosecuting attorney, the civil
action shall be suspended until the termination of the
criminal proceedings.

NOTES

1. Articles 29 to 35 of the Civil Code refer to therules governing dependent and

independent civil action. Under the Revised Penal Code, a person criminally liable is also
civilly liable (Art. 100 RPC). These two liabilities are distinct from each other; the criminal
aspect is concerned with social order, while the civil aspect is with private rights. A person found
criminally liable will suffer a penalty of imprisonment or fine while a person civilly liable will have
to indemnify the aggrieved party.

2. As a general rule, a person criminally liable is also civilly liable. Criminal liability will
give rise to civil liability ex delicto only if the same felonious act or omission results in damage
or injury to another and is the direct and proximate cause thereof. It does not necessarily follow,
however, that a person found criminally liable is also civilly liable, as the quantum of evidence
required to prove the two liabilities is different(Conrado Bunag, Jr. vs. CA and Cirilo, G.R. No.
L-101749, July 10, 1992).

3. An independent civil action is a civil action for damages arising out of the crime
committed but which the offended party can prosecute independently or separately from the

criminal case. On the other hand, a dependent civil action is one which must be tried jointly
with the criminal case filed. Articles 29, 30 and 35 of the Civil Code refer to dependent civil
action, while Articles 31, 32, 33, and 34 are the provisions where independent civil action is
allowed.

#'
 4. Independent civil action is allowed in the following cases: (a.) violation of
constitutional rights under Article 32; (b.) Defamation, Fraud, and Physical Injuries under Article
33; and (c.) Failure of a policeman to render aid or protection to any person in case of danger to
his life or property under Article 34. Thus, the civil liability arising out of the crimes enumerated
under the foregoing articles can be prosecuted separately and independently from the crime
charged. The independent civil action can be filed simultaneously with the criminal case and it
can proceed independently without regards to the result of the latter.

5. All civil actions arising from crimes which did not fall under Articles 31, 32, 33, and
34 are dependent civil actions. This means, that this civil actions cannot be tried separately or
independently from the criminal case. Once the criminal case is filed, the civil action is deemed
impliedly instituted with it.

6. In Article 29 which is about dependent civil action, the offended party is allowed to
file the civil action if the accused is acquitted on the ground that his guilt has not been proved
beyond reasonable doubt. The court shall so declare that the acquittal is based on reasonable
doubt. In the absence of any declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.

7. The reason behind Article 29 is that criminal liability is harder to prove than civil
liability because the former demands proof of guilt beyond reasonable doubt; the other, mere
preponderance of evidence. So, if criminal conviction is not obtained because of reasonable
doubt there is still a chance that the civil liability can be held to exist because of preponderance
of evidence.

8. Proof beyond reasonable doubt means that amount of proof which forms an abiding
moral certainty that the accused committed the crime charged. It is not, therefore, absolute
certainty. However, such degree of proof is more exacting than what is needed in a civil case
which is merely preponderance of evidence. Preponderance of evidence means that, as a
whole, the evidence adduced by one side outweighs that of the adverse party(Sarmiento vs.
Court of Appeals, G.R. No. L-96740, March 25 ,1999).

9. If in a criminal case, the accused is acquitted because the fact from which any civil
liability could arise did not exist, a civil case subsequently brought must be dismissed. This is
not a mere case of acquittal because of reasonable doubt(Marcia vs Court of Appeals, G.R.
No. L-34529, Jan. 27, 1983). The well settled doctrine is that a person, while not criminally
liable, may still be civilly liable. The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which the civil liability might arise
did not exist. This ruling is based on Article 29 of the Civil Code (Lontoc vs. MD Transit & Taxi
Co., Inc., et al., G.R. No. L-48949, April 15, 1988).

#(
 10. The aggrieved party can file a civil action after the acquittal of the accused only if
he did not actively participate in the prosecution of the criminal case by hiring a private lawyer.
Restated here is the rule that unless the complainant intervenes and actively participates in the
criminal case, an acquittal of the accused would not bar the institution of a separate civil action
(Ruiz vs. Ucol, G.R. No. L-45404, Aug. 7, 1987).

11. Article 30 of the Civil Code is also about dependent civil action. When a crime is
committed, the offended party has the option of not filing a criminal case but only a civil action
for damages against the offender. Should he file only a civil action, then, mere preponderance
of evidence is required for him to prove the civil case. However, should he decide to file a
criminal case later on, the civil case that he filed ahead will have to be suspended as it is not an
independent civil action(See Rule 110, Revised Rules of Court).

12. Article 31 was considered as one of the articles on independent civil action when it
ought not be included there as the civil action mentioned in said article is not one that arises out
of the crime committed. An independent civil action is one that is brought distinctly and
separately from a criminal case allowed for considerations of public policy, because the proof
needed for civil cases is LESS than that required for criminal cases; but with the injunction in
general that success in financially recovering in one case should prevent a recovery of damages
in the other. Article 31 contemplates a case where the obligation does not arise from a crime,
but from some other act – like a contract or a legal duty.

13. The acquittal of the driver in a case for Reckless Imprudence resulting to
Homicide does not bar the heirs of the victim from filing aculpa contractual case against
the operator of the bus because the civil action here is not based on the criminal case
against the driver but on the liability of the operator based on a contract (Nicasio
Bernaldes, Sr., et al. vs. Bohol Land Trans., Inc., G.R. No. L-18193, Feb. 27, 1963). Likewise, in
reckless imprudence cases, a civil action for culpa aquiliana (quasi-delict) may be filed under
Article 2176, which action may proceed independently from the criminal case as it is based in
the Civil Code. The civil liability arising from the crime is different from the liability under quasi-
delict. But, plaintiff cannot recover damages twice for the same act or omission of the defendant
(See: Article 2177 C.C.).

14. Also, a civil action for recovery of government funds in the hand of a postmaster
can prosper independently of a charge of malversation, since in the first, the obligation arises
from law (ex lege), while in the second the obligation to return the money arisesex delicto
(Tolentino vs. Carlos, 39 O.G. No. 9, p. 121). Thus, even if an accused in a criminal case is
acquitted of the crime of malversation because of the failure of the prosecution to prove criminal
intent and failure to establish the guilt beyond reasonable doubt, the government may still file a
civil action to recover the government funds disbursed by him without prior authority.

15. Violation of constitutional rights may give rise to an independent civil action under
Article 32 of the Civil Code. The above codal provision is to provide a sanction to the deeply
cherished rights and freedom enshrined in the Constitution. In the case of Alberca vs. Ver, 160

#)
SCRA 590, the Supreme Court ruled that military men who raided the premises of the petitioner
with a defective search warrant, made arrest without proper warrant from the court, confiscated
personal belongings of petitioner, denied them visits from their relatives all because the privilege
of habeas corpus was suspended at that time is liable for damages under Article 32 of the Civil
Code. The civil liability extends to their superior as the law speaks of an officer or employee or
person “directly” or “indirectly” responsible for the violation of the constitutional rights and
liberties of another. Thus, it is not the actor alone who must answer for damages under Article
32; the person indirectly responsible has also to answer for the damages or injury caused to the
aggrieved party.

16. A public official or employee who is charged for damages under Article 32 cannot
wash his hand by claiming that “he was acting in good faith”, without malice and without the
lightest intention of inflicting injury to the plaintiff. Good Faith is not a defense in Article 32. To
be liable under the said article, it is enough that there was a violation of the constitutional rights
of the plaintiffs and it is not required that defendants should have acted with malice or bad faith
(Lim vs. Ponce de Leon, 66 SCRA 299).

17. In cases of Defamation, Fraud, and Physical Injuries an Independent civilaction

may be filed. The term fraud, defamation, and physical injury must be understood in their
ordinary sense. Thus, Defamation includes libel, Fraud includes Estafa or malversation, while
. (Dyogi vs. Yatco, G.R.
physical injury may cover death or the crime of homicide or even murder
No. L- 9623, Jan. 22, 1957). A c ase of reckless imprudence resulting to physical injuries or
homicide is not covered here in Article 33.

18. Under Rule 111, Sec. 1 of the Rules of Court, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed instituted with the criminal action
unless the offended party: (a.) waives the civil action; (b.) reserves his right to institute it
separately; or (c.) institutes the civil action prior to the criminal action. Thus, even in
independent civil action, there is a need of reservation before one can institute it independently
from the criminal action. The reservation shall be made before the prosecution starts presenting
its evidence and under circumstances affording the offended a reasonable opportunity to make
such reservation.

19. The independent civil action under Article 34 refers to the damage suffered by the
offended party by reason of the refusal or failure of the policeman to render aid or protection to
him in case of danger to his life or property when requested. The said peace officer shall be
primarily liable, and the city or municipality where he is assigned shall be subsidiarily liable in
case of his insolvency.

20. When a criminal case is filed by the offended party in those cases where no

independent civil action may be filed, and the prosecuting attorney refuses to file the case in
court, the complainant may bring a civil action for damages against the alleged offender and
mere preponderance of evidence is required to win the civil case. The defendant in the civil
case (accused in the criminal case) may require the plaintiff to file a bond to indemnify him in

#*
case the complaint should befound to be malicious. If during the pendency of the civil action,
an Information be filed by the prosecuting attorney, the civil action shall be suspended until the
termination of the criminal proceedings(Article 35 New Civil Code).

K. Prejudicial Question :

Art. 36 – Prejudicial questions, which must be decided

before any criminal prosecution may be instituted or may
proceed, shall be governed by the rules of court which the

Supreme Court shall promulgate and which shall not be in

conflict with the provisions of this Code.

NOTES

1. A prejudicial question is one that arises in a case, the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to another
tribunal (Zapanta vs. Montesa, 4 SCRA 510). Thus, in matters of prejudicial question, there are
always two cases involved, one is a criminal case and the other is a civil case. The criminal
case will have to be suspended because the issue in the civil case is determinative of the guilt
or innocence of the accused in the criminal case.

2. There are two essential elements of a prejudicial question, and they are as follows:

a.) The civil action involves an issue similar or intimately related to the issue
raised in the criminal action; and

b.) The resolution of such issue determines whether or not the criminal
action may proceed (Rule 111, Sec. 5, Rules of Court) .

3. As a general rule, where both a criminal and a civil case arising from the same facts
are filed in court, the criminal case will always take precedence. One exception is when the civil
case is an independent civil action under Articles 32, 33, 34, and 2177 of the Civil Code. The
other exception is when there exists a prejudicial question in the civil case, in which case it must
be resolved first before the criminal action can proceed.

4. Our concept of prejudicial question was lifted from Spain, where civil cases are tried
exclusively by civil courts, while criminal cases are tried exclusively by criminal courts, each kind
of court being jurisdictionally distinct from and independent of the other; The rule is that there is
prejudicial question when (a.) the previously instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal action, and (b.) the resolution of

such issue determines whether or not the criminal action may proceed; A prejudicial question is
understood in law to be that which must precede the criminal action, that which requires a
decision with which said question is closely related (Coca Cola Bottlers Phils, Inc. vs. Social
Security Commission, 560 SCRA 719).

$+
 5. 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, Rules of Court). The foregoing provision repeals the
former ruling of the Supreme Court in the case ofDasalla et al. vs. City Attorney of Quezon City,
L-17338, May 30, 1962, where the Court ruled that the time to ask for such suspension is not
during the period of preliminary investigation by the fiscal (or by the judge, in the proper case)
but after the fiscal shall have finished such investigation and has filed the criminal information
against the accused in court.

6. When a married man is forced or intimidated by another woman to contract

marriage with her; and later on the man filed a civil case for annulment of the second marriage
while the woman countered by filing a bigamy case against the man, the civil case for
annulment may serve as a prejudicial question to warrant the suspension of the bigamy case.
The reason is because if there really was no valid consent of the man to the second marriage,
then he cannot therefore be guilty of bigamy Merced
( vs. Diez, et al., 109 Phil. 155) . This ruling
was reiterated by the Supreme Court in the case of Zapanta vs. Montesa, et al., L-14534, Feb.
28, 1962).

7. When a married man forced another woman to marry him, then his first wife filed a
bigamy case against him and the second wife filed an annulment of marriage, the latter case
cannot be a prejudicial question because he who employed force in the second marriage
cannot use his own act or crime as a defense( People vs. Adelo Aragon, 94 Phili. 357).

8. If the first marriage is annulable and the man contracted a second marriage without
having the first marriage declared void, he is liable for bigamy. The filing of the annulment of the
marriage after the the bigamy case is filed does not constitute a prejudicial question to
warrant the suspension of the criminal case for bigamy because prior to the annulment of the
first marriage, the same cannot be considered as without effect and, therefore, shall be
presumed to be validly existing. Hence, the party who conracts a second marriage assumes the
risk of being prosecuted for bigamy(Landicho vs. Relova, 22 SCRA 731).

9. A case for Declaration of Nullity of Marriage on the ground Psychological Incapacity

under Article 36 of the Family Code is not a prejudicial question to the bigamy case filed by the
wife against her husband. Thus, in a case where the husband filed an action to declare his
marriage to his wife as null and void on the ground of the latter‟s psycho
logical incapacity under

Article 36 and the wife filed a concubinage case against the said husband and his paramour, the
Supreme Court held that the civil action for nullity of marriage cannot be a prejudicial question to
justify the suspension of the criminal case for concubinage because a subsequent judicial
pronouncement of the nullity of marriage is not a defense in concubinage. As held in the

$!
Landicho case, the Court ruled that as long as there is no judicial declaration of nullity of
marriage, the presumption is that the marriage exists for all intents and purposes ( Te vs. Court
of Appeals, G.R. No. L- 126746, Nov. 29, 2000). Likewise, declaration of nullity of marriage on
the ground of psychological incapacity under Article 36 is not a prejudicial question to a
frustrated parricide case previously filed by the wife against her husband(Joselito Pimentel vs.
Ma. Chrysantine Pimentel, G.R. No. 172060, September 13, 2010).

10. The accused who were criminally charged of Estafa for not returning the money
they received as agents for the purpose of buying a boat which never materialized but who, in
turn filed a civil case questioning the validity of the receipt wherein they acknowledged having
received the money because their signatures therein were allegedly obtained through fraud,
deceit, and intimidation, cannot claim that the issue in the civil case is a prejudicial question
because it does not determine the guilt or innocence of the accused in the criminal case . Even
on the assumption that the signatures in the receipt were obtained through fraud, duress or
intimidation, their guilt could still be established by other evidence showing, to the degree
required by law, that they actually received from the complainant the sum of P20,000 with which
to buy for him a fishing boat, and that, instead of doing so, they misappropriated the money and
refused or failed to return to him upon demand. The contention of respondents would have been
tenable if they were charged of falsification of the said receipt involved in the civil case (
Jimenez vs. Averia, 22 SCRA 1380).

11. In a criminal case for damage to one‟s property, a civil action that involves the
ownership of said property should first be resolved as it is a prejudicial question to the criminal
case (De Leon vs. Mabanag, 38 Phil. 202).

12. In the case of People vs. Judge Villamor et al., G.R. No. L- 13530, Feb. 28, 1962),
the Supreme Court ruled that it is the accused in a criminal case (and not the prosecution) who
can raise the issue of prejudicial question and move for the suspension of the criminal case. To
allow the prosecution to ask for the suspension of the criminal case on the ground of a
prejudicial question after it has finished presenting its evidence is unfair to the accused who
should have the right to have the criminal case terminated as soon as possible. In fact, the
prosecution, if it really believes that a prejudicial question is involved should have refrained from
instituting the criminal case prematurely.

BOOK 1

LAW ON PERSONS
Title I – CIVIL PERSONALITY

$#
 Chapter 1

GENERAL PROVISIONS

A. Juridical capacity and the Capacity to act:

Art. 37 – Juridical capacity, which is the fitness to be

the subject of legal relations is inherent in every natural
persons and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired
and may be lost.

Art. 38 – Minority, insanity or imbecility, the state of

being a deaf mute, prodigality and civil interdiction are mere
restrictions on the capacity to act, and do not exempt the
incapacitated person from certain obligations, as when the
latter arise from his acts or from property relations, such as
easements.

Art. 39 – The following circumstances, among others,

modify or limit capacity to act: age, insanity, imbecility, the
state of being a deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency and trusteeship. The
consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of religious belief or
political opinion.

A married woman, twenty one years of age or over, is

qualified for all acts of civil life, except in cases specified by
law.

NOTES

1. Juridical capacity refers to the fitness of a person to be the subject of a legal

relation. It is inherent in every natural person and it is acquired from the moment of birth and is
lost only upon death. Thus, a newborn child is already fit to become a subject of a legal relation,
such as contract, but he still cannot enter into a contract by himself as he has no capacity to act
yet. Capacity to act means the power to do act with legal effect and it is acquired and be lost by
law.

$$
 2. When juridical capacity and the capacity to act is possessed by one person, then he
is considered to be a person with full civil capacity .

3. Article 39 restricts the person‟s capacity to act. Even if a person has the capacity to
act under the law, there are certain acts he cannot do because of his minority, or the fact that he
is insane or imbecile, prodigality or that he is under civil interdiction.

4. Article 40 modifies or limits a person‟s capacity to act. It is broader in scope than

Article 39 as it includes other factors such as family relations, alienage, absence, insolvency
and others. For example, a husband has full civil capacity and is free to dispose of his
properties but he is not allowed to sell his property to his wife because it is prohibited by law.
His capacity to alienate his property is modified or limited in the sense that he cannot sell it to
certain persons like his wife because of relationship.

Chapter 2
NATURAL PERSONS

B. Commencement of Civil Personality:

Art. 40 - Birth determines personality, but the conceived

child shall be considered born for all purposes that are
favourable to it, provided it be born later with the conditions
specified in the following article.

Art. 41 – For civil purposes, the foetus is considered born

if it is alive at the time it is completely delivered from the
mother’s womb. However, if the foetus had an intra -uterine
life of less than seven months, it is no t deemed born if it dies
within twenty-four hours after its complete delivery from the
maternal womb.

NOTES

1. Personality normally begins from the moment of birth. However, a child in the womb
of his mother may be given presumptive personality but only for purposes beneficial to him,
provided that he be born later with the conditions specified in Article 41.

2. The effect of acquiring personality is that the child can now be the subject of a legal
relation (juridical personality). Thus, he can now be a donee in a Deed of Donation even if he
has not yet been born for as long as the said child was later on born alive under the condition
set by Article 41.
3. One acquires personality from the moment of birth. However, a child with an intra-
uterine life of less than seven months is not deemed born if it dies within twenty-four hours after

$%
its complete delivery from the maternal womb. Thus, a donation made to foetus inside the womb
of its mother may be valid if the child has an intra-uterine life of more than seven months and he
is born alive. If it has an intra-uterine life of less than seven months, it is not enough that he is
born alive. The child must survive within 24 hours from birth, otherwise, he is not considered
born and the donation to him will not be considered valid.

4. A donation is a contract that is generally favourable or beneficial to the child, so, it

can be done even before the delivery of the foetus. But, if the donation is subject to an onerous
condition and proved to be burdensome, the donation will not be valid as it is not gratuitous and
favourable to the child.

C. Extinguishment of Personality:

Art. 42 – Civil personality is extinguished by death.

The effect of death upon the rights and obligations
of the deceased is determined by law, by contract and by will.

Art. 43 – If there is doubt, as between two or more

persons who are called to succeed each other, as to which of
them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be
no transmission of rights from one to the other.

NOTES

1. Death extinguishes civil personality. The effect of death is determined by law,

contract and by will. Thus, a person who was made a voluntary heir in thewill of another cannot
be represented by his heirs if he died ahead of the testator because the law says so.

2. A special power of attorney executed by a person in favor of another to sell his

property is deemed terminated if the said person dies. The sale, after such death is not valid, if
made by the agent with knowledge of the principal‟s death. Th
is is true even if the buyer be in
good faith. (Rallos vs. Felix Gochan and Sons Realty Corporation, G.R. No. L-24332, Jan. 3,
1978)

3. Criminal liability is extinguished by death but the proceedings with regard to his civil
liability should continue(People vs. Tirol and Baldesco, G.R. No. L-30538, Jan. 31, 1981).

4. Service of summons on a defendant who is already dead through his relatives is not
valid as said defendant has already lost his juridical personality. So, any judgment rendered by
the court against him will be null and void. ( Dumlao vs. Quality Plastic Products, Inc. G.R. No. L -
27956, April 30, 1976)

$&
 5. Article 43 refers to presumption on survivorship and is similar to Rule 131, Sec. 5
(kk) of the Rules of Court except that the former applies only if the two person who died are
called to succeed each other and there is doubt as to which one died ahead of the other, and
the latter applies to all other cases. Under this article, if it cannot be determined which one died
first then the presumption is that they died at the same time and therefore there shall be no
transmission of rights from one to the other. However, if there is positive evidence that one died
ahead of the other, then, this presumption will not applyJoaquin( vs. Navarro, 93 Phil. 257).

Chapter 3

JURIDICAL PERSONS

D. Classification of Juridical Persons:

Art. 44 – The following are juridical persons;

1.) The state and its political subdivision
2.) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality begins
as soon as they have been constituted according to law;
3.) Corporations, partnership and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.

Art. 45 – Juridical persons mentioned in Nos. 1 and 2

of the preceeding Article are governed by the laws creating or
recognizing them.

Private corporations are regulated by laws of general

application on the subject;

Partnerships and associations for private interest or

purpose are governed by the provisions of this Code
concerning partnerships.

Art. 46 – Juridical persons may acquire and possess

property of all kinds, as well as incur obligations and

bring civil or criminal actions, in conformity with the laws and
regulations of their organization.

$'
 NOTES
Kinds of Juridical Persons:

1.There are two kinds of Juridical Persons, to wit:

a.)Public juridical person
b.)Private Juridical person

2.)Public Juridical persons are:

a.)The state
b.)Its political subdivisions such as the province, cities, municipalities and
barrios.
c.) Public corporations

3.Private Juridical persons refer to:

a.)Private corporations
b.)Partnership
c.)Associations for private interest

Commencement of juridical personality:

1. Public juridical person such as the state and its political subdivisions, and public
corporation acquires personality the moment they are constituted according to law.

2. Private juridical persons such as a private corporation begin to exist from the
moment a certificate of incorporation is granted to it by the SEC.

3. A juridical person has a personality separate and distinct from its owners and
stockholders. So, the obligation of the corporation is not the obligation of the stockholders and
vice versa.

4. A public corporation is primarily governed by the law or charter creating them while
a private corporation is basically regulated by laws of general application on the subject, such
as the Corporation Code. Partnership and Association for private interest or purpose are
governed by the provisions of the Civil Code concerning partnership(Art. 45 Civil Code).

Effects of Juridical personality:

1.) It can acquire and dispose all kinds of property
2.) It can sue and be sued
3.) It can enter into contracts

Dissolution of Public Corporation– Effect:

1. When a public corporation is dissolved, its property and other assets shall be
disposed of in accordance with the law or the charter creating them. If nothing has been
specified on this point, the assets shall be applied for the benefit of the region, province, city or

$(
municipality which derived the principal benefits during the existence of the said corporation
(Art. 47 Civil Code of the Philippines).

Title II – CITIZENSHIP AND DOMICILE

A. Citizenship and Nationality:

Art. 48 – The following are citizens of the Philippines:

1.) Those who were citizens of the Philippines at the time of
the adoption of the Constitution of the Philippines.
2.) Those born in the Philippines of foreign parentswho,
before the adoption of said constitution, had been elected to
public office in the Philippines.
3.) Those whose fathers are citizens of the Philippines;
4.) Those whose mothers arecitizens of the Philippines and,
upon reaching the age of majority, elect Philippine
citizenship;
5.) Those who are naturalized in accordance with aw. l

NOTES

1. Citizenship is membership in a democratic political community. It is the status of

being a citizen, or of owing allegiance to a certain state for the privilege of being under its
protection. While citizenship is political in character, nationality refers to a racial or ethnic

relationship.
2. There are three kinds of Filipino citizens:
a.) Natural born – Those who are citizens of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine citizenship(Art. III, Sec. 4, 1973 Constitution). This
refer to children born in the Philippines with Filipino parents ( Native born), and those born
outside the Philippines with Filipino parents.
b.) Naturalized citizens – Foreigners who acquired Filipino citizenship through naturalization or
judicial proceedings.
c.) Citizens by election – children born of Filipina mother and an alien father under the 1935
constitution who, upon reaching the age of majority, elected Filipino citizenship.

3. There are two theories used to determine the citizenship of a person:

a.) Jus soli – The basis of the citizenship is his place of birth. This is the theory used in the
United States of America.
b.) Jus sanguines – The basis is the citizenship of the child‟s parents. This is known as
citizenship by blood and this is the one adopted in the Philippines.

$)
 4. Citizenship is matter to be exclusively determined by the country‟s own law. Thus,
on the question of whether or not dual citizenship exists, the answer is it depends on whose
point of view. From the country directly involved in the conflict, it does not exist. But, from the
viewpoint of a third state, it does exist(Johnny Chaustinek vs. Republic, L-2275, May 18, 1951).

5. Dual and even multiple citizenship may arise in the following instances:
a.) Marriage
b.) By combined application of Jus soli and Jus sanguines
c.) By failure of a naturalized citizen to comply with certain legal requirement in his country of
srcin
d.) By legislative act of a state
e.)Voluntary act of the individual concerned.

6. A Stateless Individual is one who does not possess any citizenship. It may happen
if the said person is deprived of his citizenship by his own country because he has committed an
act of disloyalty such as treason or any crime where the penalty imposed is the deprivation of
his nationality. It may also occur if he voluntarily renounced his citizenship or it could be by
combined application of the jus soli and jus sanguine principle.

7. Effect of marriage on the citizenship of a Filipino woman– A Filipino woman

who marries a foreigner shall remain to be a Filipina unless by her act or omission she is
deemed, under the law, to have renounced her citizenship(Art. III, Sec. 2, 1973 Constitution).
The rule, however, before the 1973 constitution took effect was that a Filipino woman who
marries a foreigner and acquires the citizenship of her husband will lose her Philippine
citizenship.

8. Effect of marriage of an alien woman to a Filipino man – A foreigner woman who

marries a Filipino man will not automatically acquire Philippine citizenship by virtue of her
marriage to a Filipino husband. She must first prove that she has all the qualifications and none
of the disqualifications for Philippine citizenship under the naturalization law (Chay vs. Galang,
L-19977, Oct. 30, 1964). This rule is in line with the national policy of selective admission to
Philippine citizenship, which after all, is a privilege granted only to those who are found worthy
thereof, and not indiscriminately to anybody at all on the basis alone of marriage to a man who
is a citizen of the Philippines, irrespective of moral character, ideological beliefs, and
identification with Filipino customs and traditions (Olegario Brito et al. vs. Commissioner, L-
16829, June 30, 1965).
In the case of Zita Ngo Burca (L-24252, Jan. 30,1967), the Supreme Court ruled hat t
the proper proceeding to be taken before an alien woman married to a Filipino man can be
declared a Filipino citizen is a naturalization proceeding. This ruling received severe criticism
from many sectors of the Philippine society as very strict making it impossible for an alien

woman married to a Filipino

In the case of Moy man to become
Ya Lim Yao vs. aCom.
Filipino.
Of Immigration, G.R. No. L-21289, Oct. 4,
1971, 41 SCRA 292) , the Supreme Court decided to reverse the Burca ruling and held that
“under Sec. 15 of Commonwealth Act No. 473 an alien woman marrying a Filipino, whether

$*
native born or naturalized, becomes ipso facto a Filipino provided she does not possess any of
the disqualification under Sec. 4 of the Naturalization Law.In other words, there is no need
anymore for her to possess all the qualifications under the law for what is needed is only
that she has no disqualifications.Moreover, an alien woman married to another alien who is
subsequently naturalized here follows the newly acquired Philippine citizenship of her husband
the moment he takes his oath as a Filipino citizen, provided she does not suffer from any of the
disqualifications under said Section 4. It is not anymore necessary for the alien wife to prove in
a judicial proceeding that she possess all the qualifications under Sec. 2 and none of the
disqualifications under Sec. 4 of the Revised Naturalization Law (CA No. 473).

9. Citizenship of minor children – As a general rule, minor children shall follow the
citizenship of their father. So, if the father is a foreigner while the mother of the child is a Filipina,
the child is also a foreigner as he will follow the citizenship of his father. However, under Article
IV, Sec. 1 (4) of the 1935 Constitution the child may opt to elect Philippine citizenship upon
reaching the age of majority (21 years old). The child of a Filipina mother and an alien father
who opted to elect Philippine citizenship is called a citizen by election.
The foregoing rule in the 1935 Constitution has already been repealed by the 1973
Constitution because under Article III, Sec. 1 (b) thereof children whose fathers OR mothers
are citizens of the Philippines are also considered Filipinos. Thus, if the child is born to a Filipina
mother and an alien father after the effectivity of the 1973 constitution, which is January 17,
1973, the child is already considered from birth as a Filipino. There is no need any more for the
said child to elect Philippine citizenship upon reaching the age of majority as he is already
considered a natural born citizen from the moment of birth. The above provision in the 1973
constitution was reproduced also in the 1987 constitution.

B. Naturalization

Art. 49 – Naturalization and the loss and reacquisition of

citizenship of the Philippines are governed by special laws.

NOTES

1. Naturalization is defined as the process of acquiring the citizenship of another

country. It refers to the entire process ( generally judicial) of clothing or vesting an alien the
rights of a Filipino citizen. The grant of Philippine citizenship to an alien is not a right but a
privilege. The requisite conditions for naturalization are laid down by Congress and the courts
cannot change or modify them (Bautista vs. Republic, GR.No. L- 3353, Dec. 29, 1950).

2. Under current and existing laws, there are three ways by which an alien may
become a citizen by naturalization; (a.) administrative naturalization pursuant to R.A. No. 9139;
(b.) judicial naturalization pursuant to C.A. No. 473, as amended; and (c.) legislative
naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an
alien. Although the legislature believes that there is a need to liberalize the naturalization law of

%+
the Philippines, there is nothing from which it can be inferred that C.A. No. 473 was intended to
be amended or repealed by R.A. No. 9139– what the legislature had in mind was merely to
prescribe another mode of acquiring Philippine citizenship which may be availed of by native
born aliens ( So vs. Republic, 513 SCRA 267).

3. For an alien to be naturalized under C.A. No. 473, he must possess all of the
qualifications and none of the disqualifications under the naturalization law.

4. The following are the qualifications for naturalization:

a.)Must be at least 21 years old on the date of the hearing;

b.)Must
c.)Must have
be of resided in thecharacter,
good moral Philippinesand
for believe
at least ten continous
in the principleyears;
underlying the constitution,
and must have conducted himself in a proper and irreproachable manner;
d.)Must own real estate in the Philippines worth not less than P5,000 or a lucrative trade,
profession or calling;
e.)Must know how to speak and write English or Spanish and any one of the principal
Philippine languages;
f.)Must enrol all his minor children of school age in any of the public schools or private schools
recognized by the Bureau of Private Schools where Philippine government, history and civics
are taught.

5. The following are the disqualifications for naturalization:

a.)Persons opposed to organized government or affiliated with any association or group of
persons who uphold and teach doctrines opposing all organized government;
b.)Persons defending or teaching the propriety of violence, personal assault, or assassination
for the success and predominance of their ideas;
c.)Polygamist or believers in the practice of polygamy;
d.)Those convicted of a crime involving moral turpitude;
e.)Persons suffering from mental alienation or incurable contagious disease;
f.)Persons who, during the period of their residence in the Philippines, have not mingled
socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the
customs, traditions, and ideals of the Filipinos;
g.)Citizens or subjects of nations with whom the United States and the Philippines are at war;
h.)Citizens or subjects of a foreign country other than the United States, whose laws do not
grant Filipinos the right to become naturalized citizens or subjects thereof;

6. Steps in Naturalization Proceedings:

a.)Declaration of intention must be filed one prior to the filing of the petition for naturalization;
b.)The petition for naturalization must then be filed;
c.)Hearing of the petition;
d.)After the approval of the petition, there will be a rehearing two years after the promulgation
of the judgment;
e.)Taking of the oath of allegiance to support and defend the constitution and the laws of the
Philippines.

%!
 7.Venue:
Petitions for Naturalization must be filed in the Regional Trial Court of the
place where the petitioner resides.

8. Appeal
Section 11 of C.A. no. 473 (Revised Naturalization Law) which states that
appeal should be filed with the Supreme Court has already been superseded by subsequent
procedural law, particularly B.P. 129 (Judiciary Reorganization Act of 1980), which vests in the
Court of Appeals the appellate jurisdiction over all final judgments, decisions, resolutions, orders
or awards of the Regional Trial Courts and quasi-judicial bodies( Keswani vs. Republic, 524
SCRA 145).

9. Effects of Naturalization of the father to his children:

Naturalization of the father benefits his minor children. So, once the father is
naturalized as Filipino, all his minor children will also be recognized as Filipinos. Children who
are already of legal age at the time of the naturalization of their father are not benefited by said
naturalization. If they want to become a Filipino like their father, they have to apply for
naturalization themselves.

C. Domicile

Art. 50 – For the exercise of civil rights and the fulfilment

of civil obligations, the domicile of natural persons is the
place of their habitual residence.

Art. 51 – When the law creating or recognizing them, or

any other provision does not fix the domicile of juridical
persons, the same shall be understood to be the place where
their legal representation is established or where they
exercise their principal functions.

NOTES

1. Domicile is the place of a person‟s habitual residence. It is that place where he has
his true, fixed permanent home and principal establishment, and to which place, he has,
whenever he is absent, the intention of returning, and from which he has no present intention of
moving. ( Ong Huan Tin vs. Republic, 19 SCRA 966).

2. There is a difference between domicile and residence. “Residence” is used to

indicate a place of abode, whether permanent or temporary; “Domicile” denotes a fixed
permanent residence to which, when absent, one has the intention of returning. A man may
have a residence in one place and a domicile in another. Residence is not domicile, but
domicile is residence coupled with the intentionto remain for an unlimited time. One canhave
several residences but he has only one domicile.

%#
 3. For political purposes, the concept of residence and domicile seems to have been
used synonymously. In Nuval vs Guray, 52 Phil. 645, it was held that the term residence is
synonymous with domicile which imports not only intention to reside in a fixed place, but also
In Faypon vs.
personal presence in that place, coupled with conduct indicative of such intention.
Quirino, 96 Phil. 294, the Supreme Court ruled that the absence from residence to pursue
studies or practice a profession or registration as a voter other than in a place where one is
elected does not constitute loss of residence. So settled is the concept of domicile in our
election law that in these and other election law cases, this Court has stated that the mere
absence of an individual from his permanent residence without the intention to abandon it does
not result in a loss or change of domicile.

4. In the case of Imelda R. Marcos vs. COMELEC, et al., 248 SCRA 300 , the
Supreme Court reversed the decision of the COMELEC disqualifying Imelda Marcos from her
election as Congresswoman of the First District of Tacloban,Leyte, for lack of residence. The
Court ruled that an individual does not lose his domicile even if he has lived and maintained
residences in different places. The COMELEC was obviously referring to Imelda‟s various
places of (actual) residences not her domicile when it ruled against her. In doing so, it not only
ignored settled jurisprudence on residence in election law and the deliberations of the
constitutional commission but also the provisions of the Omnibus Election Code (B.P. Blg. 881)
which provide that any person who transfers residence to another city, municipality or country
solely by reason of his occupation; profession; employment in private or public service;
educational activities; work in military or naval reservations; service in the army, navy or air
force; the constabulary or national police force; or confinement or detention in government
institutions in accordance with law shall not be deemed to have lost his srcinal residence.

5. A Filipino citizen‟s acquisition of a permanent resident status abroad constitutes an

abandonment of his domicile and residence in the Philippines. The green “ card” status in the
U.S.A. is a renunciation of one‟s status as a resident of the Philippines. Residence in
contemplation of election laws is synonymous to domicile; Domicile is classified into (1.)
domicile of srcin, (2.) domicile of choice, and (3.) domicile by operation of law. In a controversy
such as the one at bench, we are guided by three basic rules, namely: (1.) a man must have a
residence or domicile somewhere; (2.) domicile, once established, remains until a new one is
validly acquired; and (3.) a man can have but one residence or domicile at any given time
(Ugdoracion, Jr. vs. Commission on Elections, 552 SCRA 231).

6. In order to acquire a domicile by choice, there must concur (1.) residence or bodily
presence in the new locality, (2.) an intention to remain there, and (3.) an intention to abandon
the old domicile. A person‟s “domicile” once established is considered to continue and will not
be deemed lost until a new one is established. To successfully effect a change of domicile one

must demonstrate an actual removal or an actual change of domicile; a bonafide intention of

abandoning the former place of residence and establishing a new one. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain
in or at the domicile of choice must be for an indefinite period of time; the change of esidence

%$
must be voluntary; and the residence at the place chosen for the new domicile must be actual
(Limbona vs. Commission on Elections, 555 SCRA 391).

5. Domicile of Juridical Persons:

The domicile of a juridical person is based on the law creating it. But, if the
law did not fix the domicile of the juridical person, then it is understood to be the place where its
legal representation is made or where it exercises its principal functions (Art. 51 Civil Code).

FAMILY CODE

Introductory Statement:
The New Family Code of the Philippines was signed into law by Pres. Corazon C.
Aquino on July 6, 1987 as Executive Order No. 209. It was drafted by the Civil Code Revision
Committee of the UP Law Center composed of well-known civilists, namely: Justice J.B.L.
Reyes as Chairman, Justice Ricardo C. Puno as Co-Chairman, Justice Eduardo C. Caguioa,
Justice Flerida Ruth P. Romero, Justice Leonor Ines Luciano, Justice Alicia Sempio Diy, Dean
Fortunato Gupit Jr., Dean Bartolome S. Carale, Prof. Ruben F. Balane, Prof. Esteban B.
Bautista, Prof. Araceli T. Baviera and Ms. Flora Eufemio of the DSWD as members. The
committee finished the draft on May 4, 1987 and it was submitted to Pres. Corazon C. Aquino
for approval into law as we do not have a Philippine Congress yet at that time. Later on E.O.
209 was amended by E.O. 227 on July 17, 1987. Under Article 257 of the Family Code it
provides that this Code shall take effect one year after its publication in a newspaper of general
circulation and also in the Official Gazette. The last publication appeared in the Manila Chronicle
in its August 4, 1987 issue but since 1987 was a leap year, the one year period falls on August
3, 1988 as certified to by the Executive Secretary in Memorandum Circular No. 85 dated
November 7, 1988. Also, in the case of Modequillo vs. Breva, 185 SCRA 766, the Supreme
Court officially declared that the Family Code took effect on August 3, 1988.

Title I

%%
 MARRIAGE

Chapter I

Requisites of Marriage

A. Definition of Marriage:

Art. 1 – Marriage is a special contract of permanent

union between a man and a woman entered into in
accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences and incidents
are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations
during the marriage within the limits provided by this code.

NOTES

1. Marriage is considered to be an inviolable social institution which the law cherishes

and protects. The right to marry is a recognized fundamental human right under international
law deserving full protection of all states regardless of its ideology or political persuasion. The
1987 Philippine Constitution recognizes the importance and sanctity of marriage when it states
that: “Marriage, as an inv iolable social institution, is the foundation of the family and shall be
protected by the states” (Article XV, Sec. 2). Marriage creates a social status or relation
between the contracting parties, in which not only they, but the State as well, are interested.

2. Marriage is not just an ordinary contract but a special one because it calls for a
permanent union between a man and a woman for the establishment of a family life. The nature,
consequences and incidents of marriage are governed by law and not subject to the agreement
of the parties. For example, the parties cannot stipulate that their marriage is good only for ten
years, after which it is deemed dissolved. The consequences of marriage, such as the offspring
and the administration of property, are governed by law and cannot be subject to compromise.
The only incident in marriage which can be the subject of agreement between the parties is the
choice of economic regime that will govern their property relation during the marriage. This
agreement shall be contained in the marriage settlement to be executed before the celebration
of the marriage. Thus, the parties may agree before the marriage that they will be governed by
the separation of property regime, by conjugal partnership of gains, or by the absolute
community of property regime.

3. The contracting parties to the marriage must be a man and a woman. The gender of
the parties is important as it involves the legal capacity of the parties to contract marriage. That

the parties to the marriage must be of the opposite sex is emphasized not only by Article 1 but
also by Articles 2 and 5 of the Family Code. During the twentieth century, medicine adopted the
term “intersexuality” to apply to human beings who cannot be classified as either male or
female because they have the biological characteristics of both a man and a woman. The

%&
current state of Philippine statutes apparently compels that a person be classified either as a
male or as a female. Where the person is biologically or naturally intersex, the determining
factor in his gender classification would be what the individual, having reached the age of
majority, with good reason thinks of his/her sex. Sexual development in cases of intersex
persons makes the gender classification at birth inconclusive– it is at maturity that the gender of
such persons, like respondent, is fixed(Republic vs. Jennifer Cagandahan, G.R. No. 166676,
Sept. 12. 2008, 565 SCRA 72).

4. Sex reassignment surgery or sex change does not make a man into a woman. A
petition for correction of entry in the birth certificate of a person who underwent sex
reassignment surgery praying that the entry on sex in his birth certificate be changed from male
to female and that his name Rommel Jacinto Dantes Silverio be changed to Mely Silverio has
no basis in law. There is no law that allows the change of entry in the birth certificate as to sex
on the ground of sex reassignment. Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time of birth. Thus, the sex of a person is
determined at birth. The words “male” and “female” in everyday understanding do not include
persons who have undergone sex change. To grant the changes in name and sex sought by
petitioner will substantially reconfigure and greatly alter the laws on marriage and family
relations – it will allow the union of a man with another man who has undergone sex
reassignment surgery, a male-to-female post-operative transsexual (Silverio vs. Republic,
G.R. No. 174689, October 22, 2007).

5. Marriage, as a special contract, differs from an ordinary contract in the following

aspects, to wit:

a.) Marriage is governed by the Family Code while an ordinary contract is

governed by the law on contracts (Book IV NCC);
b.) Marriage is an inviolable social institution while thelatter is not;
c.) Marriage is not subject to stipulation between the parties except as to
marriage settlement while an ordinary contract is primarily governed by the
stipulations of the parties.
d.) In marriage, there are only two parties, and one must bea male and the other
a female. In ordinary contracts, there could be many parties and the gender
of the parties is immaterial.
e.) Marriage is terminated by death or annulment due to legal causes while an
ordinary contract is terminated upon expiration of the term of the contract,
upon fulfilment of the conditions for which it was entered into, rescission, or
upon mutual agreement of the parties.

6. To emphasize that marriage is not just an ordinary contract, the Court ruled that it

cannot be restricted by discriminatory policies of private individuals or corporations. Thus, a

company policy disqualifying from work any woman worker who contracts marriage was
declared by the Supreme Court as invalid as it not only runs afoul to the constitutional provision
on equal protection but also on the fundamental policy of the State towards marriage (Philippine

%'
Telegraph and Telephone Company vs. NLRC, 272 SCRA 596). This ruling was reiterated in
the case of Star Paper Corporation vs. Simbol, G.R.No. 164774, April 12, 2006, when the
Supreme Court ruled that a company policy prohibiting employees of the same company from
marrying each other is an invalid exercise of management prerogative for the failure of the
employer to present any evidence of business necessity of the no spouse employment policy.
Absence of such bona fide occupational qualification renders the policy invalid. However, in the
case of Duncan vs. Glaxo, G.R.No. 162994, Sept. 17, 2004, the Supreme Court ruled that a
prohibition to marry an employee of a competing company stipulated in the employment
contract is valid as it is reasonable under the circumstances because relationship of employees
of two competing companies may prejudice the interest of the company.

7. Marriage creates a social status which the State has an interest. A marriage cannot
be annulled for failure of consideration simply because the reason for the marriage did not
materialize. Thus, if a man married the woman because the latter told him that she is pregnant
with his child and it turns out that the child was never born as the woman had a miscarriage, the
man cannot ask for annulment of the marriage because it is not a ground for annulment.
Absence of consideration can be a ground for annulment of an ordinary contract but not in
marriage as a contract. Furthermore, to emphasize the importance of marriage as a basic social
institution which the law cherishes and protects, Congress enacted Republic Act No. 6955
penalizing any person or entity who carries on a business of matching Filipino women for
marriage with a foreigner. This law is known as the Act Prohibiting Mail Order Bride.

8. Marriage does not shed a spouse‟s integrity and the right to privacy. The intimacies
between husband and wife do not justify any one of them in breaking the drawers and cabinets
of the other and in ransacking them for any telltale evidence of marital infidelity. Any evidence
obtained therefrom is inadmissible in evidence. The constitutional injunction declaring “the
privacy of communication and correspondence (to be) inviolable” is no less applicable simply
because it is the wife who is the party against whom the constitutional provision is to be
enforced (Zulueta vs. Court of Appeals, 253 SCRA 699).

9. The validity of marriage is determined by the law in force at the time of the
celebration of marriage. A marriage that is void at the time of its celebration cannot be validated
by a subsequent law. Thus, a marriage between stepbrother and stepsister before the effectivity
of the Family Code is void and shall remain to be so even if such kind of marriage is no longer
prohibited by the new law. The new Family Code does not affect the void nature of such
marriage because it is governed by the law prevailing at the time of its celebration.

10. A marriage between a man and a woman before the effectivity of the Family Code
and without a marriage license because they executed an affidavit of cohabitation for five years
without any legal impediment to marry each other, which allegation is not true, is VOID. The

falsity of the affidavit cannot be considered to be a mere irregularity considering that the 5-year
period is a substantial requirement of the law to be exempted from obtaining a marriage license
( De Castro vs. Assidao-De Castro, G.R. No. 160172, Feb. 13, 2008). Under Article 76 of the
Civil Code, the parties cannot invoke the exception because what is required is that the five year

%(
cohabitation preceding the marriage must be characterized by exclusivity. Meaning, both parties
do not have any impediment to marry each other during the entire period(Ninal vs. Bayadog,
G.R.No. 133778, March 14, 2000). The rule now is already different as under Article 34 of the
Family Code, the absence of legal impediment is required only at the time of the celebration of
the marriage and not necessarily during the entire five year period( See: Manzano vs. Sanchez,
AM No. MTJ 00-1329, March 8, 2001).

11. There is, however, one instance in the present law, where a marriage may be
declared void even if it was considered valid at the time of its celebration. This is the void
marriage on the ground of psychological incapacity under Article 36 of the Family Code. Under
the Civil Code, psychological incapacity of a party is not a ground to declare a marriage void but
it is now a ground under the Family Code. This provision of the Family Code is retroactive such
that it applies even to those marriages solemnized under the Civil Code. Under R.A. 8533,
amending Article 39, there is no more prescriptive period for this action to declare the marriage
void on the ground of psychological incapacity even if the marriage was solemnized prior to the
effectivity of the Family Code.

B. Essential Requisites:

Art. 2 – No marriage shall be valid, unless these

essential requisites are present:

1.)Legal capacity of the contracting parties who must

be a
male and a female, and

2.) Consent freely given in the presence of the

solemnizing officer

Art. 5 – Any male or female of the age of eighteen

years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage.

NOTES

1. The legal capacity for a man and a woman to contract marriage is 18 years old and
above. This is also the age of majority now under R.A. 6809. Aside from being at least 18 years
old, the parties must be of opposite sex and that they have no legal impediments mentioned in
Articles 37 and 38 of the Family Code (See: Art. 5 ). Same sex marriage is, therefore, not
possible under our present law. A man who underwent a biological sex change from male to
female through sex-reassignment surgery is still a man in the eyes of our law. Thus, he is not
allowed to marry another man. The petition to amend his birth certificate to reflect the change in
sex as a preliminary step to get married to his male partner is not tenable(Silverio vs. Republic,
G.R. No. 174689, October 22, 2007).

2. Consent to marriage must be given freely and voluntarily. Parents should not force
or unduly influence him/her to marry a person he or she has not freely chosen. Thus, if consent

%)
of a party to the marriage is vitiated by fraud, intimidation, force and undue influence, the
marriage is voidable under Art.45 of the Family Code. The giving of consent must be done in the
presence of the solemnizing officer. Thus, marriage by proxy is not valid in the Philippines
because of the requirement of personal appearance of the parties before the solemnizing officer
where they declare that they take each other as husband and wife (Art. 6 F.C.).

C. Formal Requisites:

Art. 3 – The formal requisites of marriage are:

1.) Authority of the solemnizing

officer;

2.)Valid marriage license except in the

cases provided for in Chapter 2
of this Title; and

3.) A marriage ceremony which takes

place with the appearance of
the contracting parties
before the solemnizing
officer and their personal
declaration that they take each other
as husband and wife in the presence
of not less than two witnesses of
legal age.

Art. 6 – No prescribed form or religious rites for the

solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they
take each other as husband and wife. This declaration shall
be contained in the marriage certificate which shall be signed
by the contracting parties and their witnesses and attested by
the solemnizing officer.

In case of marriage under articulo mortis, when the

party at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to the
marriage to write the name of said party, which fact shall be
attested by the solemnizing officer.

NOTES

%*
 1. The person who solemnized the marriage must be among those duly authorized
by Article 7 of the Family Code to solemnize the marriage. However, under the new Local
Government Code of 1992, the Mayor is once again empowered to solemnize marriage. The
authority of the solemnizing officer to solemnize marriage is presumed in the absence of
any showing to the contrary. It is not the duty of the solemnizing officer to scrutinize that the
marriage license was duly issued. However, in marriage under articulo mortis, the
solemnizing officer must endeavour to ascertain the ages and relationship of the contracting
parties and the absence of legal impediment to marry. This is true in all marriages exempt
from the requirement of a marriage license. As in the case of marriages under Article 34, the
solemnizing officer must first ascertain the qualifications of the parties

2. However, if either or both parties believe in good faith that the person who
solemnized their marriage is authorized by law to do so, then the marriage is considered
valid (See: Article 35,par.2, ).

3. A certification issued by the Local Civil Registrar that no marriage license was
issued by his Office must be clear and unequivocal. The certification must categorically state
that the document does not exist in his office or the particular entry could not be found in the
registry despite diligent search. The presumption of regularity in the performance of official
act may be rebutted by affirmative evidence of irregularity as in this case where an
employee of the Local Civil Registrar testified that the book which may have contained the
subject marriage license could no longer be found in their office and the person in-charge
thereof has already retired.( Sevilla vs. Cardenas, G.R. No. 167684, July 31, 2006)

4. The issuance of a marriage license is the most important requisite in the validity
of marriage as it is the only act whereby the state intervenes in the formation of the family. It
is in the issuance of the license that the State determines whether or not there are
impediments in the marriage. Thus, the marriage license should be an important requisite of
marriage such that without it, the marriage should be considered void. To be considered
void on the ground of absence of a marriage license, the law requires that the absence of
such marriage license must be apparent on the marriage contract or at the very least,
supported by a certification from the local civil registrar that no such marriage license was
issued to the parties ( Alcantara vs. Alcantara, G.R. No. 167776, Aug. 28, 2007).

5. The marriage license must be secured from the Office of the Local Civil
Registrar of the place where either of the parties resides.Upon application, the parties
must wait for ten days before it is issued. Once issued, it will be valid for 120 days and it
can be used anywhere in the Philippines. Any irregularities in the issuance of a
marriage license, however, does not render the marriage void for as long as it does
not affect the legal capacity of the party to marry.Thus, non-disclosure by a party that

he is still a minor or that they belong to the same sex which resulted to the issuance of the
license will invalidate the marriage.

&+
 5. The Family Code does not prescribe any particular form of a marriage
ceremony. It merely imposes a minimum requirement, which is that theparties must
personally appear before the solemnizing officer and declare that they take each
other as husband and wife in the presence of at least two witnesses who are of legal
ages (Article 6).

6. The consent to the marriage need not be expressed verbally . It can be

deduced from the contemporaneous action of the parties showing that they take each other
as husband and wife. Thus, the failure of the solemnizing officer to ask the parties
whether they take each other as husband and wife cannot be regarded as a fatal
omission, and is not a cause for annulment, it being sufficient that they declared in and
signed the marriage contract that they take each other as husband and wife . A
declaration by word of mouth of what the parties had already stated in writing would be a
mere repetition, so that its omission should not be regarded as a fatal defect (Annotation on
Annulment of Marriage by Judge Domingo Luciano, 22 SCRA 525).

7. Although the law requires the parties to declare in the presence of the
solemnizing officer that they take each other as husband and wife, and that the same must
be reflected in the marriage contract, the absence thereof does not render the marriage
void. Marriage certificate is not an essential nor formal requisite of marriage. Failure
to sign a marriage certificate itself does not render the marriage void(Madridejo vs. De
Leon, 55 Phil. 1).

8. The intervention in a valid marriage ceremony of an ecclesiastical or civil

functionary authorized by the state to solemnize marriage is one of the indispensable
requisites for a valid marriage in the Philippines. Thus, a common law marriage, recognized
in England and the United States, where aman and a woman who have already been living
together for quite a number of years will be considered as married, is not recognized here. A
man and a woman who cohabit without a marriage ceremony may be considered legally
married in common-law jurisdictions but not in the Philippines (Eugenio, Sr., vs. Velez, 185
SCRA 425).

D. Absence, Defect and Irregularities in the Essential and Formal Requisites:

Art. 4 – The absence of any of the essential or formal

requisites shall render the marriage voidab initio, except as
stated in Article 35(2).
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect

the validity for

responsible ofthe
the marriageshall
irregularity but bethe party
civilly, or parties
criminally and
administratively liable.

&!
 NOTES

1. Absence of any of the essential or formal requisites shall render the marriage void.
Thus, a marriage of a party who is below 18 years of age is not valid because of the absence of
legal capacity to contact marriage. Consent to the marriage by way of jest is also void for lack of
valid consent.

2. Absence of authority to solemnize the marriage on the part of the solemnizing

officer renders the marriage void except when either or both parties believe in good faith
that the person who solemnized the marriage has the authority to do so . Absence of a
valid marriage license renders the marriage void except in those cases enumerated
under Chapter 2, Title 1 of the Family Codewhich is the chapter on Marriages Exempt from
the Requirement of a Marriage License. For the marriage to be void, the absence of the
marriage license must be apparent on the marriage contract(Alcantara vs. Alcantara, G.R.No.
167776, August 28, 2007).

3. Absence of marriage ceremony renders the marriage void . Thus, a marriage

without a ceremony as the parties were just made to sign the marriage contract by the
solemnizing officer because the latter was in a hurry for another appointment makes the
marriage void (Msrco vs. People, G.R.No. 145226, Feb. 6, 2004).

4. Marriage by Proxy solemnized in the Philippines is not valid because of the

absence of consent that must be given in the presence of the solemnizing officer. Also, it cannot
be valid because of the absence of the formal requirement that the parties must personally
appear before the solemnizing officer and declare that they take each other as husband and
wife.

5. Defect in the essential requisites of marriage makes the marriage merely

voidable. This refers particularly to the vice or defect in the consent to the marriage.
This
is governed by Articles 45 and 46 of the Family Code.

6. Irregularities in the formal requisites do not affect the validity of the marriage
but the person responsible for such irregularity can be held civilly, criminally or
administratively. Thus, a marriage license issued without complying with the ten days
publication does not render the marriage void but the Local Civil Registrar who issued it can be
held criminally or administratively liable.

7. The following are merely considered as irregularities which do not affect the
validity of the marriage:
a.) Marriage solemnized in a place other thanin the church or in the

chamber of the judge;

b.) Absence of two witnesses who are of legal age;
c.) Issuance of a license ina place where neither of the parties
reside (Alcantara vs. Alcantara, G.R. No. 167776, Aug. 28, 2007);

&#
 d.) Issuance of a license without the required supporting papers
or documents;
f.) Absence of a marriage contract.
g.) Issuance of license despite failure of the party to present parental consent
or
parental advise when required;
h.) Issuance of license despite absence of posting of notice and
publication;
i.) Failure to undergo marriage counselling;
j.) Failure to pay the required fee for marriage license.

8. A marriage solemnized by a Judge who knew very well that the arties
p have not yet
secured the required marriage license is not valid.The marriage license duly issued by the
Local Civil Registrar must already be existing at the time of the celebration of marriage
.A
Judge who proceeded to solemnize the marriage despite the absence of marriage license out of
human compassion because he feared that his refusal might aggravate the physical condition of
the groom who just suffered from a stroke and also to save the parties from embarrassment to
the people who attended the wedding can be charged administratively.The license issued
after the celebration of the marriage does not cure the invalidity of the marriage (Aranes
vs. Occiano, A.M. No. MTJ-02-1390, April 11, 2002).

9. A marriage which preceded the issuance of the marriage license is void, and that
the subsequent issuance of such license cannot render valid or even add an iota of validity to
the marriage (People vs. Lara, C.A. O.G. 4079 ; Cosca vs. Palaypayon, 237 SCRA
249).However, if there was already a marriage license duly issued but the parties merely
forgot to bring it when they went to the solemnizing officer, the solemnization of the
marriage subject to the presentation of the marriage license later on does not affect the
validity of the marriage. The Judge acted improperly but the marriage is still valid.

10. The law requires that there must first be a license before the celebration of
the marriage. Its recording is not a requisite for its validity. In fact, a marriage is valid even if
there is no marriage contract, as the latter is not an essential requisite to the validity of the
marriage. The non-recording of the marriage license number in the marriage contract is not fatal
and it does not necessarily mean that no license was issued Geronimo
( vs. C.A.,et al., G.R. No.
105540, July 5, 1993).

10. A marriage solemnized by a Judge outside his territorial jurisdiction is a

mere irregularity in the formal requisite under Article 3, which, while it may not affect the
validity of the marriage, may subject the Judge to administrative liability(Navarro vs.
Domagtoy, A.M. No. MTJ 06-1088, July 19, 1996).

11. Issuance of a marriage license in a city or municipality, not the residence of either
of the contracting parties, and the issuance of a marriage license despite the absence of
publication or prior to the completion of the 10-day period for publication are considered mere
irregularities that do not affect the validity of the marriage . An irregularity in any of the
formal requisites of marriage does not affect its validity but the party or parties responsible for

&$
the irregularity are civilly, criminally and administratively liable (Alcantara vs. Alcantara, 531
SCRA 446).

E. Persons authorized to solemnize marriage:

Art. 7 – Marriage may be solemnized by:

1.) Any incumbent member of the judiciary within the

court’s jurisdiction;

2.) Any priest, rabbi, imam, or minister of any church

or religious sect duly authorized by his church or religious
sect and registered with the civil registrar general, acting
within the limits of the written authority granted him by his
church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer’s
church or religious sect;

3.) Any ship captain or airplane chief only in cases

mentioned in Article 31;

4.) Any military commander of a unit to which a

chaplain is assigned, in the absence of the latter, during a
military operation, likewise only in the cases mentioned in
Article 32; or

5.) Any consul-general, consul or vice-consul in the

case provided in Article 10.

NOTES

1. A Judge who can solemnize marriage must beincumbent. Thus, a retired Judge
can no longer solemnize marriage. The judges referred to in this article are the judges of the
regular courts, i.e. MTC, MTCC, MCTC, RTC, CA, and the SC.Those assigned as hearing
officers or judges of the quasi-judicial bodies have no authority to solemnize marriage.

2. A Judge can solemnize marriage only within his territorial jurisdiction . But, in
the case of Navarro vs. Domagtoy the Supreme Court said that such defect is only an
irregularity in the formal requisitebut it does not affect the validity of the marriage. The Judge
may, however, be held administratively liable.

3. A priest of the Roman Catholic Church, an Imam of the Muslims, a Rabbi of the
Jews, a Minister or Pastor of other religions may solemnize marriage provided the following
conditions are met:

a.) Must be authorized by his/her church or religious sect;

c.) Must act within the limits of the written authority granted him by his

&%
 church or religious sect;

d.) At least one of the contracting parties belongs to the solemnizing

officer‟s church or religious sect.

4. A ship captain and airplane chief can solemnize marriage only when one of the
parties is at the point of death (articulo mortis) and that the parties must be passengers or
crew members of the ship or airplane while it was in transit.

5. Military Commander can also solemnize marriage if the following requisites are
present : a.) He must be a commissioned officer commanding a military unit where a chaplain is
assigned; b.) The assigned chaplain is absent at the time the marriage is solemnized;c.) The
marriage must be in articulo mortis; d.) The contracting parties must be amember of his unit
or a civilian; e.) The marriage must be done in the zone or area of military operation.

6. Consul-General, Consul, or Vice Consul can solemnize marriage only if both

parties are Filipino and the marriage is done abroad . Here, the consul acts not only as the
solemnizer but also performs the duties of the Local Civil Registrar by issuing the marriage
license. The marriage between a Filipino and a foreigner solemnized by a consul abroad
is not valid as the Consul is not authorized to solemnize such marriage.

7. Mayors can once again solemnize marriage by virtue of the Local Government
Code which took effect on January 1, 1992.A Vice-Mayor, acting as a Mayor, can solemnize
marriage because he can exercise the powers of the Mayor in the absence of the latter
(People vs. Bustamante, 105 Phil. 64).

F. Venue of marriage:

Art. 8 – The marriage shall be solemnized publicly in

the chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general,
consul or vice-consul, as the case may be, and not
elsewhere, except in the cases of marriages contracted at the
point of death or in remote places in accordance with Article
29 of this Code, or where both of the parties request the
solemnizing officer in writing in which case the marriage may
be solemnized at a house or place designated by them in a
sworn statement to that effect.

NOTES

1. The venue of marriage as provided in this Article is not mandatory but d irectory in
nature. Thus, a marriage solemnized by the Judge outside the courtroom or his chamber,
or by a Priest outside the church is still valid
. However, the solemnizer can be held liable for
solemnizing it outside the venue stated by law. There are, however, two instances where the

&&
marriage may be solemnized validly outside the venue stated in this Article, and these are: (1.)
When one of the party is at the point of death, and (2.) When both of the parties request
the solemnizing officer in writing to solemnize it elsewhere.

2. A marriage solemnized by a Judge outside his territorial jurisdiction is still valid as it

is merely considered an irregularity in one of the formal requisites of marriage. The judge who
solemnized the marriage may be held administratively liable as ruled by the Supreme Court in
the Navarro vs. Domagtoy case.

G. Marriage License (Who can issue):

Art. 9 – A marriage license shall be issued by the Local

Civil Registrar of the city or municipality where either
contracting party habitually resides, except in marriages
where no license is required in accordance Chapter 2 of this
Title.

Art. 10 – Marriages between Filipino citizens abroad

may be solemnized by a consul-general, consul or vice-
consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and
of the solemnizing officer with regard to the celebration of
marriage shall be performed by said consular official. (75a)

NOTES

1. Before the parties can contract marriage, they must first secure a marriage license
from the Local Civil Registrar of the place where either of them resides. The marriage license
serves as the authority given by the state to the parties to enter into the contract of
marriage. It is the concern of the state to make marriages the secure and stable institution they
should be.

2. A marriage license issued by the Local Civil Registrar of the place where
neither of the parties is a resident does not render the marriage void.It is considered
merely as an irregularity in the formal requisitesfor which the Local Civil Registrar or the
parties responsible for such irregularity can be held liable.

3. When both parties to the marriage are Filipinos and they want the marriage to be
solemnized by the Philippine Consul in that country, they must secure first the required marriage
license from the Consul himself. Thus, the Consul acts as the Local Civil Registrar by issuing
the license and at the same time as the solemnizing officer.

H. Application for Marriage License:

Art. 11- Where a marriage licence is required, each of

the contracting parties shall file separately a sworn

&'
 application for such license with the proper local civil
registrar which shall specify the following:

1) Full name of the contracting parties;

2) Place of birth;
3) Age and date of birth;
4) Civil status;
5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
6) Present residence and citizenship;

7) Degree of relationship of the contracting parties;

8) Full name, residence and citizenship of the father;
9) Full name, residence and citizenship of the mother;
and
10) Full name, residence and citizenship of the
guardian or person having charge, in case the
contracting parties has neither father nor mother
and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be

required to exhibit their residence certificate in any formality
in connection with the securing of the marriage license. (59a)

Art. 12- The local civil registrar, upon receiving such

application, shall require the presentation of the srcinal birth

certificat
the es or, in parties
contracting default thereof,
or copiestheof
baptismal certificates
such document of
duly
attested by the persons having custody of the srcinal. These
certificates or certified copies of the documents required by
this article need not be sworn to and shall be exempt from the
documentary stamp tax. The signature and official title of the
person issuing the certificate shall be sufficient proof of its
authenticity.

If either of the contracting parties is unable to produce

his birth or baptismal certificate or a certified copy of either
because of the destruction or loss of the srcinal, or if it is
shown by an affidavit of such party or of any other persons
that such birth or baptismal certificate has not yet been
received though the same has been required of the person
having custody thereof at least fifteen days prior to the date
of the application, such party may furnish in lieu thereof his
current residence certificate or an instrument drawn up and
sworn to before the local civil registrar concerned or any

&(
 public official authorized to administer oaths. Such
instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name, residence
and citizenship of such contracting party and of his or her
parents, if known, and the place and date of birth of such
party. The nearest of kin of the contracting parties shall be
preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.

The presentation of the birth or baptismal certificate

shall not be required if the parents of the contracting parties
appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties,
as stated in the application, or when the local civil registrar
shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or
both of them have the required age. (60a)

Art. 13- In case either of the contracting parties has

been previously married, the applicant shall be required to
furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the
deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of the annulment or declaration
of the nullity of his or her previous marriage. In case the
death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual
status and the name and date of death of the deceased
spouse. (61a)

Art. 14- In case either or both of the contracting parties, not

having been emancipated by a previous marriage, are
between the ages of eighteen and twenty-one, they shall, in
addition to the requirements of the preceding articles, exhibit
to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons
having legal charge of them, in the order mentioned. Such
consent shall be manifested in writing by the interested party
who personally appears before the proper local civil registrar,
or in the form of an affidavit made in the presence of the two

witnesses and attested

law to administer oaths.before any official
The personal authorizedshall
manifestation by the
be
recorded in both applications for the marriage license, and

&)
 the affidavit, if one is executed instead, shall be attached to
said application. (61a)

Art. 15- Any contracting party between the ages of

twenty-one and twenty-five shall be obliged to ask their
parents or guardian for advice upon the intended marriage. If
they do not obtain such advice, or if it be unfavorable, the
marriage license shall not be issued till after three months
following the completion of the publication of the application
therefor. A sworn statement by the contracting parties to the
effect that such advice has been sought, together with the
written advice given, if any, shall be attached to the
application for marriage licence. Should the parents or
guardian refuse to give any advice this fact shall be stated in
the sworn statement. (62a)

Art. 16- In the cases where parental consent or

parental advice is needed, the party or parties concerned
shall, in addition to the requirements of the preceding
articles, attach a certificate issued by a priest, imam or
minister authorized to solemnize marriage under Article 7 of
this Code or a marriage counselor duly accredited by the
proper government agency to the effect that the contracting
parties have undergone marriage counselling. Failure to

attach
the said certificate
issuance of marriage
of the marriage counselling
license shall suspend
for a period of three
months from the completion of publication of the application.
Issuance of the marriage license within the prohibited period
shall subject the issuing officer to administrative sanctions
but shall not affect the validity of the marriage.

Should only one of the contracting parties need

parental consent or parental advice, the other party must be
present at the counselling referred to in the preceding
paragraph. (n)

NOTES

1. The application for marriage shall contain the necessary information enumerated in
Article 11 and must be accompanied by the following documents, to wit:

&*
 a.) Birth certificate or Baptismal certificate of the parties (Art. 12);
b.) If either of the parties has been previously married, the death
certificate of the deceased spouse or the judicial decree
of the absolute divorce, annulment of marriage or
declaration of nullity of marriage (Art. 13);
c.) In case the party is between the ages of eighteen and twenty
one, they must present parental consent (Art. 14);
d.) If the party is between the ages of twenty one and twenty five,
parental advice is required (Art. 15);
e.) Certificate of marriage counselling in cases where parental
consent or parental advice is required (Art. 16).

f.) If acertificate
party to the
ofmarriage is a foreigner,
legal capacity to marryheissued
must present
by his a
diplomatic or
consular representative in the Philippines(Art. 21 ).

3. Birth certificate or baptismal certificate is required in order for the local civil registrar
to determine whether the party is of legal age and is legally capacitated to contract marriage.
The requirement of presenting the birth certificate, however, is no longer needed in the following
instances: (1.) if the parents of the party concerned will personally appear before the local
civil registrar and attest to the fact that said party is already of legal age ; (2.) When the
local civil registrar shall, by merely looking at the personal appearance of the party, be
convinced that he/she is already of legal age ; (3.) When the party has been previously
married;

4. When the party is between the ages of eighteen and twenty one, parental consent is
required. Absence of parental consent renders the marriagevoidable, meaning it is valid
until annulled (Art. 45 par. 1). Preference is given to the father to give consent , otherwise,
the mother, surviving parent or guardian or persons having legal charge of them in the order
mentioned shall give the consent.

5. Parental advice is required if a party is between the ages of twenty one and twenty
five. Absence of parental advice does not affect the validity of marriage. Its only effect is
that the local civil registrar may withhold the issuance of the marriage license till after
three months following the completion of the publication of the application (Art. 15).

6. In cases where parental consent or parental advice is required, the p arties must first
undergo marriage counselling and attach to their application for marriage license a
certification that they have already undergone marriage counselling. This certificate shall be
issued by the persons authorized to solemnize marriage or by any marriage counsellor duly
accredited by the proper government agency. Failure to attach said certificate shall cause the
suspension of the issuance of the marriage license for a period of three months. Issuance of the
license in violation of this provision does not affect the validity of the marriage, but, the local civil
registrar may be held administratively liable (Art. 16).

I. Duty of the Local Civil Registrar:

Art. 17- The local civil registrar shall prepare a notice

which shall contain the full names and residences of the
applicants for a marriage license and other data given in the

'+
 applications. The notice shall be posted for ten consecutive
days on a bulletin board outside the office of the local civil
registrar located in a conspicuous place within the building
and accessible to the general public. This notice shall request
all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. The
marriage license shall be issued after the completion of the
period of publication. (63a)

Art. 18- In case of any impediment known to the local

civil registrar or brought to his attention, he shall note down

the particulars thereof and his findings thereon in the
application for a marriage license, but shall nonetheless
issue said license after the completion of the period of
publication, unless ordered otherwise by a competent court
at his own instance or that of any interested party. No filing
fee shall be charged for the petition nor a corresponding
bond required for the issuance of the order. (64a)

Art. 19- The local civil registrar shall require the

payment of the fees prescribed by law or regulations before
the issuance of the marriage license. No other sum shall be
collected in the nature of a fee or a tax of any kind for the
issuance of said license. It shall, however, be issued free of
charge to indigent parties, that is, those who have no visible
means of income or whose income is insufficient for their
subsistence, a fact established by their affidavit, or by their
oath before the local civil registrar. (65a)

NOTES

1. Upon receipt of the application for marriage license, it is the duty of the local civil
registrar to immediately post a notice to inform the public of the impending marriage. The notice
shall be posted in the bulletin board outside the office of the local civil registrarfor ten
consecutive days. The notice shall request all persons having knowledge of any impediment to
the marriage to inform the local civil registrar about it.The marriage license shall be issued
only after the lapse of the ten day period of publication. Should the local civil registrar
issue the license before the lapse of the ten day period, he can be held administratively
liable but the marriage will remain valid.

2. If the local civil registrar is informed of any legal impediment of a party applying for a
marriage license he shall note down the particulars thereof, but he could no longer refuse the
issuance of the license. Even if he is made aware of the impediments he must still issue

'!
the license except if he is restrained by the court at his own instance or of any interested
party.

3. The local civil registrar shall collect payment of fees for the issuance of the marriage
license in the amount of P300.00. However, it shall be issued free of charge to indigent parties.

J. Life of the Marriage License:

Art. 20- The license shall be valid in any part of the

Philippines for a period of one hundred twenty days from the
date of issue, and shall be deemed automatically cancelled at
the expiration of said period if the contracting parties have
not made use of it. The expiry date shall be stamped in bold
characters at the face of every license issued. (65a)

NOTES

1. The marriage license, once issued, shall be valid anywhere in the Philippines for
a period of One Hundred Twenty (120) days.If it is not used within the said period it shall
automatically expire. Thus, a marriage solemnized on the basis of an expired marriage
license is null and void.

K. Certificate of Legal Capacity to Marry:

Art. 21- When either or both of the contracting parties

are citizens of a foreign country, it shall be necessary for
them before a marriage license can be obtained, to submit a
certificate of legal capacity to contract marriage, issued by
their respective diplomatic or consular officials.

Stateless persons or refugees from other countries

shall, in lieu of the certificate of legal capacity herein
required, submit an affidavit stating the circumstances
showing such capacity to contract marriage. (66a)

NOTES

1. When either or both parties to the marriage are foreigners, marriage license is
still required if they want the marriage to be solemnized here in the Philippines . For the
foreigner spouse, it is not anymore necessary for him/her to present birth certificate. Instead
what the law requires is for the said party to present a certificate of legal capacity to contract
marriage duly issued by their respective diplomatic or consular official.This is so because a
person’s capacity to marry is determined by his/her national law(Art. 15 Civil Code). So,

'#
even if a foreigner is below eighteen years of age he can contract marriage here in the
Philippines if his national law allows him to marry at that age.

2. However, if both parties are foreigners and they desire to have their marriage
solemnized by their country’s consul-general assigned here in the Philippines, the
marriage can be solemnized without a marriage license if their country’s law allow the
same. Such marriage is recognized as valid here in the Philippines.

L. Marriage Certificate:

Art. 22- The marriage certificate, in which the parties

shall declare that they take each other as husband and wife,
shall also state:

1) The full name, sex and age of each contracting

party;

2) Their citizenship, religion and habitual residence;

3) The date and precise time of the celebration of the

marriage;

4) That the proper marriage license has been issued

according to law, except in marriages provided for in Chapter
2 of this Title;

5) That either or both of the contracting parties have

secured the parental consent in appropriate cases;

6) That either or both of the contracting parties have

complied with the legal requirement regarding parental
advice in appropriate cases; and

7) That the parties have entered into a marriage

settlement, if any, attaching a copy thereof. (67a)

Art. 23- It shall be the duty of the person solemnizing

the marriage to furnish either of the contracting parties the
srcinal of the marriage certificate referred to in Article 6 and
to send the duplicate and triplicate copies of the certificate
not later than fifteen days after the marriage, to the local civil
registrar of the place where the marriage was solemnized.
Proper receipt shall be issued by the local civil registrar to
the solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the srcinal of

'$
 the marriage license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the marriage
in a place other than those mentioned in Article 8. (68a)

Art. 24- It shall be the duty of the local civil registrar to

prepare the documents required by this Title, and to
administer oaths to all interested parties without any charge
in both cases. The documents and affidavits filed in
connection with the applications for marriage licenses shall
be exempt from documentary stamp tax. (n)

Art. 25- The local civil registrar concerned shall enter

all applications for marriage licenses filed with him in a
registry book strictly in the order in which the same are
received. He shall record in the said book the names of the
applicants, the date on which the marriage license was
issued, and such other data as may be necessary. (n)

NOTES

1. The best evidence to establish or prove marriage is the marriage contract or

the marriage certificate (Lim Tanhu vs. Ramolete, 66 SCRA 425). It is a certification issued by
the solemnizing officer that he performed or solemnized the marriage between the parties.
However, absence of a marriage certificate does not invalidate the marriage as it is not
even one of the essential requisites for the validity of marriage . The rule is that persons
dwelling together in apparent matrimony are presumed, in the absence of any counter-

presumption or evidence special to the case, to be in fact married(Perido vs. Perido, 63 SCRA
97).

2. A man and a woman deporting themselves as husband and wife are presumed to
have entered into a lawful contract of marriage. Thispresumption of marriage shall stand
unless contradicted or overcome by evidence to the contrary. The reason for this
presumption is that the law favors morality and not immorality; marriage and not
concubinage; legitimacy and not bastardy.

3. A man and a woman living together for more than 50 years are always presumed
married even if no marriage license could be shown. Under Rule 131, Sec. 3 of the Rules of
Court, a disputable presumption is created in favor of marriage , thus, a man and a woman
deporting themselves as husband and wife are presumed to have entered into a lawful contract
of marriage. In this case, several circumstances give rise to the presumption that a valid
marriage existed between Guillermo Rustia and Josefa Delgado. Once the presumption of
marriage arises, other evidences may be presented in support thereof. In this jurisdiction, every

intendment of the law leans towards legitimizing matrimony. Persons dwelling together
apparently in marriage are presumed to be in fact married. This is the usual order of things in
society and, if the parties are not what they hold themselves out to be, they would be living in
constant violation of the common rules of law and propriety.Semper praesumitur pro

'%
patrimonio. Always presume marriage (In the matter of the Intestate Estates of the Deceased
Josefa Delgado and Guillermo Rustia vs. Heirs of Marciana Rustia Vda. de Damian et al., G.R.
No. 155733, January 27, 2006, 480 SCRA 334).

4. A marriage, like any other contract, may be proved by evidence of any kind.It may
be proved by parol evidence or testimony by one of the parties or witnesses to the
marriage, or by the person who solemnized the same.Public and open cohabitation as
husband and wife after the alleged marriage, birth and baptismal certificates of children borne
by the alleged spouses, and a statement of such marriage in subsequent documents are
competent evidence to prove the fact of marriage.(Pugeda vs. Trias, 4 SCRA 849).

5. It is incumbent upon the person who attacked the validity of marriage to present a
strong and satisfactory evidence to rebut the presumption of validity.The evidence to prove
the invalidity of the marriage may even be presented for the first time on appeal . Thus,
even if the petitioner failed to assert the absence of a marriage license as a ground for nullity of
marriage as her petition was anchored solely on the ground of psychological incapacity under
Article 36, the Supreme Court declared the marriage void on the ground of absence of a license.
The Court made an exception to the general rule that a party cannot raise an issue for the first
time on appeal because the marriage contract itself, which was presented as evidence, clearly
showed that the marriage was solemnized on November 15, 1973 while the marriage license
was issued only on September 17, 1974. Thus, it is quite glaring that at the time of the
celebration of the marriage, the license was not yet issued ( Sy vs. Court of Appeals, G.R. No.
127263, April 12, 2000).

6. It is the duty of the local civil registrar to prepare the documents required in this Title
without charge. Then, he shall enter all applications for marriage licenses in the registry book in
the order in which the same are received.

M. Lex Loci Celebraciones Rule in Marriage:

Art. 26- All marriages solemnized outside the

Philippines, in accordance with the laws in force in the
country where they are solemnized, and valid there as such,
shall also be valid in this country, except those prohibited
under Articles 35(1), (4), (5) and (6), 36, 37, and 38.

Where a marriage between a Filipino citizen and a

foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law. (n)(As amended by
Executive Order Number 227, July 17, 1987.)

NOTES

'&
 1. The lex loci celebraciones rule in marriage simply means thatif the marriage
is celebrated abroad and it is considered as valid there, it shall also be considered
as valid here. The recognition by our law of the validity of the marriage celebrated
abroad is a matter of international comity. However, when the marriage celebrated
abroad is repugnant to our country‟slaws and policy, our court is not bound by comity to
give effect to it. This is because a state is the conservator of its own moral and good
order of society. Thus, it has the right to declare what marriages it will or will not
recognize within its border.

2. The Family Code, however, provides that evenif the marriage is valid in the

country where it was celebrated, the same cannot be recognized as valid here if it is
one of the void marriages under Articles 35(1), (4), (5) and (6), 36, 37 and 38.In the
light of the foregoing exceptions,the following marriages, even if considered as valid
in the country where it was solemnized, can never be considered as valid in the
Philippines, to wit:

a.) If the party who is a Filipino is below 18 years old;

b.) If the marriage is bigamous orpolygamous not falling under Art. 41;
c.) If contracted through mistake of identity of the other party;
d.) If the party whose previous marriagehas been annulled or declared
void, contracts a second marriage but failed to record the judicial
decree with the LCR, to partition their conjugal properties, and
deliver the presumptive legitime of their children (Art. 53);
e.) Where one of the party is psychologically incapacitated (Art. 36);
f.) Marriages considered incestuous (Art. 37);
g.) Marriages that are against public policy (Art. 38);

3. A marriage validly solemnized abroad shall always be considered as valid

here for as long as it does not fall under the exceptions mentioned in Article 26 par. 1 of
the Family Code. Thus, a marriage without a license, a marriage solemnized by a person
not authorized to solemnize marriage under Art. 7 of the Family Code, or a marriage by
proxy, if considered valid in the country where it was celebrated, shall also be
considered as valid here in the Philippines. This is so because these marriages are not
among the void marriages mentioned in the exceptions to the lex loci celebraciones rule;

4. Some countries recognize common law marriages as valid. This kind of marriage
between Filipinos, however, cannot be considered as valid here because Article 26 speaks of
marriages solemnized abroad. The word solemnize presupposes the performance of a
marriage ceremony which is wanting in a common law marriage.

5. As a general rule, absolute divorce obtained by a Filipino spouse abroad is

not recognized as valid here because we adhere to the nationality theory under Article 15
of the Civil Code. A person is governed by his national law wherever he may go when it comes
to family rights and duties, status, conditions and legal capacity is concerned. This is true even if
the other spouse is not a Filipino;

''
 6. In case of marriage between a Filipino and a foreigner (mixed marriage), and it
is the foreigner spouse who obtained a divorce abroad against the Filipino spouse,
capacitating him to remarry, the said divorce will be recognized here to capacitate the
Filipino spouse to remarry (see: Article 26 par. 2 as amended). The recognition of the divorce
obtained by the foreigner spouse was intended to correct the very unfair situation created by the
former law wherein even if the alien spouse has already divorced his Filipino spouse and is
already married to another woman the Filipino spouse is still considered married to him.
However, for the foregoing rule to apply, it is important that it is the foreigner spouse who filed
the divorce and that after it is granted he must be capacitated to marry again according to his
national law.

7. However, in the case of Republic vs. Cipriano Orbecido III, G.R. No. 154380,
Oct. 5, 2005, the Supreme Court ruled that a divorce decree obtained by the wife who is
now a U.S. citizen, against her Filipino husband who continued to live here in the
Philippines, is considered valid.Thus, it will capacitate the husband to marry again here.The
Court said that Article 26 par. 2 applies not only to foreigners divorcing their Filipino
spouse but also to former Filipinos who obtained foreign citizenship and thereafter filed
a divorce against the other spouse.

8. The divorce obtained by the foreigner spouse abroad does notipso facto entitle the
Filipino spouse to remarry. Before the Filipino spouse could remarry, he/she must first
prove in court the fact of divorce obtained by the foreigner spouse and also the fact that
said spouse is capacitated by his national law to remarry after the divorce(Garcia-Recio
vs. Recio, G.R. No. 138322, Oct. 2, 2001). The action to be filed in court is Declaratory
Relief as ruled by the Supreme Court in theOrbecido case;

9. Prior to the Orbecido ruling, it was said that a Filipino spouse who filed a divorce
against her foreigner spouse is not capacitated to remarry as said divorce is not recognized
here in the Philippines. The Filipino spouse is still governed by her national law. But, if the
Filipino spouse has already acquired the citizenship of her husband by virtue of the marriage
and thereafter obtained a divorce against him, such divorce is considered as valid here not
because of Article 26 but because of our adherence to the nationality principle in so far as the
status of the person is concerned Q ( uita vs. Court of Appeals, 300 SCRA 406; Llorente vs.
Court of Appeals, G.R. No. 124371, Nov. 23, 2000).

10. However, even if the divorce obtained by the Filipina wife against her alien
husband abroad is not recognized as valid here, the husband cannot anymore claim that he still
has an interest in the property acquired by his Filipina wife after the divorce on the ground that
under the Philippine law their marriage is still subsisting. Since the foreigner husband is
already considered divorced under his national law then he has no more interest in the
properties acquired by his former wife after the divorce(Van Dorn vs. Romillo, 139 SCRA
139). In another case, the Supreme Court also ruled that a Filipina wife who divorced her
foreigner husband and thereafter had sexual intercourse with another man cannot be
charged by her former husband of adulterybecause although she is still considered married

'(
to him by our law, such foreigner is no longer considered married by his law to his Filipina wife
and, therefore, he does not have a legal standing anymore to file the adultery case.
Considering that he is already considered divorced by his national law, then he is no
longer considered a spouse who can file the criminal case for adultery(Pilapil vs. Ibay
Somera, 174 SCRA 653).

10. Article 26 provides that marriages validly celebrated abroad shall as a rule be
considered also as valid here. Therefore, if the marriage of a Filipino abroad is considered
as void or voidable under the law of the country where it was celebrated, the marriage
can also be annulled or declared void here by our court. For example, if the marriage is
solemnized without the presence of witnesses who are of legal age and such marriage is
considered null and void in the country where it was celebrated, then it is also
considered void here and a case to declare the marriage void may be filed in our court.
This is true even if the said kind of marriage would have been valid here.

11. A divorce decree obtained by a former Filipina citizen who has now acquired
American citizenship is recognized as valid here in the Philippines if sufficiently proven
or established as a fact. Her filing an action to declare the nullity of her marriage to her
husband on the ground of the latter‟s psychological incapacity under Article 36 of the Family
Code is no longer tenable. Given the validity and efficacy of divorce secured by her, the same
shall be given a res judicata effect in this jurisdiction. As an obvious result of the divorce
decree obtained, the maritalvinculum between Rebecca and Vicente is considered severed and
they are both freed from the bond of matrimony. Therefore, the petition under Article 36 is
dismissible for lack of cause of action(Bayot vs. Court of Appeals, G.R. No. 155635/163979,
November 7, 2008).

Chapter 2

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

A. Marriage under Articulo Mortis:

Art. 27- In case either or both of the contracting parties

are at the point of death, the marriage may be solemnized
without necessity of a marriage license and shall remain valid
even if the ailing party subsequently survives. (72a)

Art. 28- If the residence of either party is so located

that there is no means of transportation to enable such party
to appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a marriage
license.

')
 Art. 29- In the cases provided for in the two preceding
articles, the solemnizing officer shall state in an affidavit
executed before the local civil registrar or any other person
legally authorized to administer oaths that the marriage was
performed in articulo mortis or that the residence of either
party, specifying the barrio or barangay, is so located that
there is no means of transportation to enable such party to
appear personally before the local civil registrar and that the
officer took necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of a
legal impediment to the marriage. (72a)

Art. 30- The srcinal of the affidavit required in the last

preceding article, together with a legible copy of the marriage
contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where
it was performed within the period of thirty days after the
performance of the marriage. (73a)

Art. 31- A marriage in articulo mortis between

passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is

at seaoforcall.
ports the (74a)
plane is in flight, but also during stopovers at

Art. 32- A military commander of a unit, who is a

commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons
within the zone of military operation, whether members of the
armed forces or civilians. (74a)

NOTES

1. A marriage in articulo mortis is a marriage where one of the parties is at the

point of death. This kind of marriage can be solemnized even without a marriage license
because of necessity and practicability. The marriage can be solemnized by the ship captain
or airplane chief if the parties are passengers or crew of the vessel or airplane and the same is
in transit (Art. 31). It can also be solemnized by a military commander within the zone of military
operation provided the assigned chaplain is absent and the parties are members of the armed
forces or civilians. Of course, the priest, judge and other persons authorized to solemnize
marriage under Article 7 of this Code can also solemnize marriage under articulo mortis.

'*
 2. The person who solemnized the marriage under articulo mortis must execute an
affidavit before the local civil registrar stating that he solemnized the marriage under articulo
mortis and that he took all the necessary steps to ascertain the age and relationship of the
contracting parties and that he is convinced that they have no legal impediment to marry .

3. The srcinal copy of the affidavit shall be submitted by the solemnizing officer to the
local civil registrar of the municipality or city where the marriage was performed within the period
of thirty (30) days.

B. Marriage in a far and remote place:

Art. 28- If the residence of either party is so located that there

is no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may
be solemnized without necessity of a marriage license. (72a)

NOTES

1. If the parties are residing in a far and remote place that it is difficult for them to
secure the required marriage license because their place has no means of transportation, they
will be exempted from the said license requirement. The solemnizing officer must, however,
execute an affidavit after the celebration of the marriage stating that he solemnized the marriage
in a far and remote place and that he ascertained the age and relationship of the parties and the
absence of any legal impediment to marry.The reason for allowing this kind of marriage to
proceed without a license is to encourage the parties to marry and legalize their
relationship instead of cohabiting in an illicit relationship.

C. Marriages among Muslims or members of ethnic cultural communities:

Art. 33- Marriages among Muslims or among members

of ethnic cultural communities may be performed validly
without the necessity of a marriage license, provided they are
solemnized in accordance with their customs, rites or
practices. (78a)

NOTES

1. The Code of Muslim Personal Laws of the Philippines which was signed into law on
February 4, 1977 is the governing law on persons and family relations among Muslims. Under
the said law, marriage license is not required for the validity of the marriage among
Muslims. However, the Family Code qualified it by saying that marriages among Muslims do
not need a marriage license provided it is done in accordance with their customs, rites or
practices. This rule also applies to marriages among members of the ethnic cultural
communities. It is necessary, however, that the parties to the marriage must be both

(+
Muslims or both members of the ethnic cultural communitiesbecause of the use of the
word ―among”. If it is a mixed marriage, then the requirement of a marriage license
cannot be dispensed with.

D. Ratification of Marital Cohabitation:

Art. 34- No license shall be necessary for the marriage

of a man and a woman who have lived together as husband
and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the
qualifications of the contracting parties and found no legal
impediment to the marriage. (76a)

NOTES

1. When the parties have already been living together as husband and wife for at least
five years without any legal impediments to marry each other, the requirement of a marriage
license is no longer needed. What the parties will do is to execute a joint affidavit stating the
foregoing fact and have it notarized by a person duly authorized to administer oath.This
affidavit will take the place of the marriage license.

2. Before the solemnizing officer will solemnize the marriage,he must first ascertain
. Failure of
the qualifications of the contracting parties and must find no legal impediment
the solemnizing officer, however, to perform that duty does not invalidate the marriage.

3. There are two conditions that the parties must meet and they are: (1.)they must
live together as husband and wife for at least five years ; and (2.) there must be no legal
impediments for them to marry each other. The question now is whether these two
conditions should concur and qualify each other.Under the previous law, which is the Civil
Code of the Philippines, these conditions must qualify each other. Meaning, during the
entire five-year period of cohabitation either party must not have any legal impediment to
marry each other. This is evident from Article 76 of the Civil Code which requires that the
parties must be unmarried during the period of cohabitation. Thus, a married man who is living
with his paramour during the time that his legal wife is still alive cannot avail of the exception in
case he decides to marry his live-in partner after his wife‟s death(Ninal vs. Bayadog, G.R.No.
133778, March 14, 2000, 328 SCRA 122).

4. Under Article 34 of the Family Code, these two conditions must concur, butthey do
not qualify each other . This means that during the five year cohabitation period, it is not
necessary that they must have no legal impediment to marry each other . It is enough that
they have no legal impediment at the time they decide to marry each other. In other
words, the absence or presence of legal impediments should only be considered at the
time of the celebration of the marriage(Manzano vs. Sanchez, AM No. MTJ 00-1329, March
8, 2001).

(!
 5. The marriage solemnized without a marriage license on the basis of an affidavit
executed by the parties that they have already been living together as husband and wife for at
least five years is null and void if it turns out that the affidavit is falsified as the allegations
therein are not true. If the truth is that the parties did not live together for at least five years,
then the marriage will not fall under the exception and therefore there is a need for a marriage
license. The falsified affidavit does not exempt the parties and their marriage is considered to be
one without a license, hence, void. The falsity of the affidavit cannot be considered to be a mere
irregularity considering that the 5-year period is a substantial requirement of the law to be
exempted from obtaining a marriage license(De Castro vs. Assidao-De Castro, G.R. No.
160172, February 13, 2008).

6. The falsity of an affidavit of marital cohabitation, where the parties have in

truth fallen short of the minimum five-year requirement, effectively renders the marriage
void ab initio for lack of marriage license. The marriage performed without the corresponding
marriage license is void. The rationale for the compulsory character of a marriage license under
the Civil Code is that it is the authority granted by the State to the contracting parties, after the
proper government official has inquired into their capacity to contract marriage. The reason for
the law on ratification of marital cohabitation, whereby no marriage license is required, is
that the publicity attending a marriage license may discourage such persons who have
lived in a state of cohabitation from legalizing their status.Jurisprudence has laid down the
rule that the five-year common law cohabitation period under Article 76 of the Civil Code means
a five-year period computed back from the date of celebration of marriage, and refers to a
period of legal union had it not been for the absence of a marriage (Republic vs. Dayot, 550
SCRA 435).

7. It must be noted, however, that the Dayot case was decided by the Supreme
Court in the light of the provision of Article 76 of the Civil Code as the alleged live-in
relationship and the marriage occurred before the effectivity of the Family Code. Thus, it
could not be safely said that the Manzano ruling has already abandoned by the Dayot
ruling;
Chapter 3

VOID AND VOIDABLE MARRIAGES

A. Void Ab Initio Marriages:

Art. 35- The following marriages shall be void from the

beginning:

1) Those contracted by any party below eighteen years

of age even with the consent of parents or guardians;

2) Those solemnized by any person not legally

authorized to perform marriages unless such marriages were
contracted with either or both parties believing in good faith
that the solemnizing officer had the legal authority to do so;

(#
 3) Those solemnized without a license, except those
covered by the preceding Chapter;

4) Those bigamous or polygamous marriages not

falling under Article 41;

5) Those contracted through mistake of one

contracting party as to the identity of the other; and

6) Those subsequent marriages that are void under

Article 53.

NOTES

1. There are two kinds of defective marriages, and these are the Void and the Voidable
Marriages. The basic distinction between these two types of defective marriages are the
following: (1.) Void marriages are defective from the very beginning and cannot be ratified
unlike Voidable marriages which are ratifiable; (2.) A void marriage can be attacked
collaterally while a voidable marriage can only be attacked directly. This means that the nullity
of a void marriage can be raised even after the death of the parties while avoidable marriage
can only be questioned during the lifetime of the parties; (3.) The action to declare the nullity
of a void marriage is imprescriptible while the action to annul a voidable marriage
prescribes; and (4.) As a general rule,a void marriage can only be assailed by the parties to
the marriage ( See: A.M. No. 02-11-10 S.C., Sec. 2(a)) while a voidable marriage can be
questioned by other persons like the parents of a party as in the case of a marriage without
parental consent.

2. Void marriages under Article 35 are those marriages which are defective
because they fail to comply with the essential and formal requisites of marriage under
Articles 2 and 3. A marriage contracted by a party below 18 years of age is void because of the
absence of legal capacity which is one of the essential requisites for the validity of the marriage.
Those solemnized by a person not authorized to solemnize marriage and those marriages
solemnized without a license are also void because of the absence of the st1 and the 2nd formal
requisites of marriage. Likewise, bigamous and polygamous marriages, those contracted by
mistake, and subsequent marriages under Article 53 are considered void.

3. Collateral attack of a void marriage simply means that the nullity of the marriage is
not the principal or main issue of the case but it is necessary to the resolution of the main case.
For example, in a case for the settlement of the estate of a deceased person where there are
several claimants and one claimant claims that the other group of claimants are not legitimate
children because the marriage of their mother to the deceased is not valid, the court may pass
upon the issue of nullity of the marriage to determine whether or not said claimants are really
illegitimate. This is necessary because if the court finds that these claimants are illegitimate
because the marriage of their mother to the deceased is void, then, they will receive less than
the legitimate children. There is no need here to produce proof of a prior judicial declaration of
nullity of marriage because evidence other than judicial decision of nullity of marriage can be

($
presented to establish the illegitimacy of some claimants(Domingo vs. Court of Appeals, 226
SCRA 572).

4. The validity of a void marriage may be collaterally attacked in an action for

support. Thus, the alleged father of the child demanding support may raise the issue that there
is no valid marriage between the defendant and the mother of the child, and that the child is not
his to avoid giving support to the child. Other than for purposes of remarriage, no judicial
action is necessary to declare a marriage an absolute nullity . In the case of Nińal vs.
Bayadog, the Court ruled that for other purposes,such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property

regime, or a criminal case for that matter, the Court may pass upon the validity of
marriage even in a suit not directly instituted to question the same so long as it is
essential to the determination of the case.This rule was reiterated in the case of Nicdao
Carińo vs. Yee Carińo where the main case is a claim for death benefits (De Castro vs. De
Castro, G.R. No. 160172, February 13, 2008).

5. Direct attack, however, is necessary if the purpose is to remarry . Article 40 of

the Family Code provides that ―the absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such
marriage void.‖ In other words, if a person’s first marriage is void, and he wants to marry
again, he must first file a civil action for the declaration of nullity of such first marriage
before he can remarry. Another instance where direct attack is necessary is in the case of
Article 50 in relation to Article 43(3) which speaks of the revocation of a donation propter
nuptias because the marriage is void. Thus, before the donor can revoke the donation
propter nuptias, it is important that a judicial declaration of nullity of marriage must first
be obtained.

6. A void marriage is defective from the very beginning and cannot be ratified .
This is the reason why an action to declare the marriage void is imprescriptible . However,
in a case where the petitioner, after his petition to declare his marriage void on the ground of
psychological inacapacity was denied by the court, subsequently filed another petition fo r nullity
of marriage, this time on the ground of absence of a valid marriage license, the Supreme Court
ordered the dismissal of the second case on the ground thatpetitioner violated the rule on
splitting-a-cause of action and the rule on res judicata. It said that a case for nullity of
marriage involved only one cause of action which was to declare the marriage void . The
different grounds for nullity of marriage did not mean different causes of action.Hence, by
failing to invoke the ground of absence of a valid marriage license in the first case, the
petitioner is deemed to have impliedly admitted the validity of the celebration of the
marriage and he had therefore waived all the defects. Accordingly, the petitioner was
considered to have been barred by res judicata. (Mallion vs. Alcantara, G.R. No. 141528,
October 31, 2006);

6. Good faith of the parties in entering the marriage is immaterial and it does not
validate an otherwise void marriage. Thus, when one married his spouse believing that she is
already of legal age, the marriage is still void.There is, however, one instance where good

(%
faith can validate the marriage, and this is the marriage where either party believes in
good faith that the person who solemnized the marriage is authorized by law to
solemnize the marriage (Article 35(2)).

B. Void because of Psychological Incapacity:

Art. 36- A marriage contracted by any party who, at

the time of the celebration, is psychologically incapacitated
to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (n) (As amended by
Execurive Order Number 227 dated July 17, 1987)

NOTES

1. This article was introduced by Executive Order No. 227 on July 17, 1987 as an
amendment to the Family Code. No clear definition of psychological incapacity, however, was
provided by the law as it was its intention to leave the determination of psychological incapacity
with the courts on a case-to-case basis. The presence of psychological incapacity depends
upon the facts of the case and it can be clearly deduced that the absence of definition was
deliberately done because the situations contemplated by the law vary from one case to
another. In the words of Justice Caguioa, the code should not have so many definitions,
because a definition straight-jackets the concept and, therefore, many cases that should go
under it are excluded by the definition.

2. Psychological incapacity is not insanity or mental illness . It refers to the

inability of a party to the marriage to comply with the essential marital obligations
because of psychological reason.It is neither a physical defect because a person who is
psychologically incapacitated is one who cannot perform the essential marital obligations as
he/she simply refuses to perform these obligations although physically capable of doing so due
to psychological causes. It refers to lack
“ of appreciation of one’s marital obligation ” and has
nothing to do with consent. An insane person does not know what he is doing while a
psychologically incapacitated person is aware of what he is doing but he simply cannot
perform his/her essential marital obligations because of psychological reasons .
Psychological incapacity simply refers to the “lack of appreciation of one‟s marital obligation”.

3. Psychological Incapacity has three essential characteristics and they are: (1.)
Juridical antecedent, (2.) Gravity, and (3.) Incurability. For the defect of a party to the
marriage to be considered a form of psychological incapacity, itmust already be existing at
the time of the celebration of the marriage (Juridical antecedent) . It must be a very
serious defect (Gravity), and it is not curable (Incurability). Thus, from the foregoing
elements it is quite clear that the intendment of the law has been to confine the meaning of
“psychological incapacity” to the most serious cases of personality disorders clearly

(&
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage.

4. This provision was lifted from Canon 1095 of the Canon Law. Thus, the
decisions of the matrimonial tribunal of the Catholic Church involving psychological
incapacity as a ground to annul the marriage is greatly helpful and persuasive to our civil
courts. Although our courts are not bound by the decisions of the matrimonial tribunal,
said decision can be used by our civil courts as a guide in the determination of the
existence of psychological incapacity.

5. A wife who turns out to be anymphomaniac or a husband who is homosexual is a

good example of psychological incapacity. Any form of inability of a party to perform the
essential marital obligations because of some psychological causes is a ground to nullify the
marriage under Article 36.

6. The action to declare the marriage void on the ground of psychological

incapacity can be filed even by the incapacitated party. The law does not prohibit the
guilty party from bringing the action in court as a void marriage is not ratifiable and the
pari delicto rule will not apply here. Moreover, a party who is declared psychologically
incapacitated by the court may still contract a second marriage as this ground is a very
personal and limited one. It does not mean that just because a person is psychologically
incapacitated to perform his or her marital obligations with his or her present spouse,
he/she will also be psychologically incapacitated with any other partner. This rule is best
illustrated in the case of Halili vs. Halili and Republic, G.R. No. 165424, June 9, 2009 , where
it was the petitioner who claims that he is the one who is psychologically incapacitated. The trial
court granted the petition on the ground that petitioner is suffering from a mixed personality
disorder, particularly dependent and self-defeating personality disorder. On appeal, the Court of
Appeals reversed the trial court‟s decision on the ground that the totality of the evidence
presented failed to establish petitioner‟s psychological incapacity. When the case was elevated
to the Supreme Court on certiorari under Rule 45, the Court affirmed the decision of the Court of
Appeals declaring the validity of the marriage. However, upon motion for reconsideration filed,
the Court reconsidered its previous judgment and granted the motion.The Court gave much
weight to the testimony of the expert witness in granting the petition.

7. During the trial of the case for declaration of nullity of marriage on the ground of
psychological incapacity, expert testimonies of a psychologist or psychiatrist is not a
requirement for a declaration of psychological incapacity and that it is not a condition
sine qua non for such declaration (Marcos vs. Marcos, G.R. no. 136490, October 19,
2000). The Court may or may not accept the testimony of the psychologist or psychiatrist. It
may base its decision on the totality of the evidence other than the findings of such expert
witness. However, in the case of Matias vs. Dagdag, G.R. No. 109975, February 9, 2001,the
Supreme Court that expert testimonies evaluating the behavioural pattern of the person
alleged to be psychologically incapacitated are extremely helpful. Thus, although expert
testimony is not required for the court to decide the case, it will help the court a lot in the
resolution of the case.

('
 8. So far, there are only few cases granted by the Supreme Court under Article 36 of
the Family Code. The first case is the case ofChi Ming Tsoi vs. Court of Appeals, 266 SCRA
325, where the Supreme Court said that the refusal of the husband to have sex with his wife
even if he is physically capable of doing so is a manifestation of psychological incapacity to
warrant the declaration of nullity of marriage. The contention of the husband that it was instead
his wife who refuses to have sex with him is of no moment, for even if it is true, the action to
declare the marriage void on the ground of psychological incapacity can be brought by the party
at fault. The second is the case of Antonio vs. Reyes, G.R. No. 155800, March 10, 2006,
where the wife’s defect of being a congenital liar was considered by the Court as a form
of psychological incapacity. In this case, the Court also gave much weight to the f indings
of the Matrimonial Tribunal of Manila, as affirmed by the Roman Rota in Vatican, that the
marriage is annullable on the ground of psychological incapacity of a party . The more
recent case is the case of Te vs. Te, G.R. No. 161793, February 13, 2009, where the
petitioner was found to be suffering from dependent personality disorder while the
respondent was also suffering from narcissistic and anti-social personality disorder.

9. Moral damages cannot be recovered from a guilty party in an action for declaration
of nullity of marriage on the ground of psychological incapacity. This is because a
psychologically incapacitated person is not aware of his incapacity and therefore cannot
be held answerable for moral damages (Buenaventura vs. Court of Appeals, G.R.No.
127358, March 31, 2005).

10. A person who has been declared psychologically incapacitated may still
remarry. The reason is that, there is no such thing as absolute “psychological incapacity”.
It is
only relative, in the sense that one may be incapacitated with respect to one partner, but
not necessarily with respect to all.

11. In the following cases the Supreme Court ruled that there isno psychological
incapacity, to wit:

- The first case decided by the Supreme Court involving Article 36, was
the case of Santos vs. Court of Appeals, G.R. No. 112019, Jan. 4, 1995,
where the Supreme Court ruled that failure of the wife to return home
and communicate does not constitute psychological incapacity .

- A mere showing of irreconcilable differences and conflicting

personalities in no wise constitute psychological incapacity .
(Choa vs. Choa, G.R. No. 143376, November 26, 2002) .

- Disordered personality is not a ground for declaring a marriage

void. Sexual Infidelity or perversion and abandonment do not
constitute psychological incapacity(Dedel vs. Court of Appeals,
G.R. No. 151867, January 29, 2004).

- An unsatisfactory marriage is not a null and void marriage .

Whether or not psychological incapacity exists depends crucially on
the facts of the case (Siayngco vs. Siayngco, G.R. No. 158896,
October 27, 2004).

((
 - The rule on psychological incapacity applies even if the
spouse is a foreigner. The foreigner husband‟s act of abandonment
is doubtlessly irresponsible but it was never alleged nor proven to be
due to some kind of psychological illness (Republic vs. Lolita
Quintero-Hamano, G.R. No. 149498, May 20, 2004).

12. The jurisprudential guidelines in determining the existence of psychological

incapacity was laid down by the Supreme Court in the case of Republic vs. CA and Molina,
G.R. No. 108763, Feb. 13, 1997,and they are as follows:

a.) The burden of proof to show the nullity of marriage belongs to the plaintiff.
b.) The root cause of psychological incapacity must be medically or clinically
identified, alleged in the complaint, sufficiently proven by experts, and
clearly explained in the decision.

c.) The incapacity must be proven to be existing at the time of the celebration
of the marriage, although it becomes manifest only after the celebration of
the marriage.

d.) The incapacity must be shown to be medically or clinically permanent or

incurable.

e.) The illness must also be grave enough to prevent the party from assuming
the essential marital obligations.

f.) The essential marital obligations must be those mentioned in Title III
(Articles 68 to 71) of the Family Code, as well as Articles 220, 221
and 225.

g.) The interpretations given by the National Appellate Matrimonial Tribunal

of
the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts.

h.) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State. No decision shall be handed
down
unless the Solicitor General issues a ce rtification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition,
as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed submitted for resolution
of the court. The Solicitor General shall discharge the equivalent function
of the defensor vinculi contemplated under Canon 1095.

13. The decision of the National Appellate Matrimonial Tribunal, to be given

weight and respect by our courts, must be anchored on Canon 1095, par. 3 which is the
basis of Article 36. Thus, if the decision of the said tribunal is based on paragraph 2 of

()
Canon 1095, the Court should not give weight to it(Najera vs. Najera, G.R. No. 164817,
July 3, 2009).

14. The requirement found in paragraph h of the guidelines in the Molina doctrine
relative to the certification of the OSG before a decision can be handed down has already been
dispensed with by A.M. No. 02-11-10-SC. The said rule, as a remedial measure, removed
the mandatory nature of an OSG certification and may be applied retroactively to pending
matters. Thus, cases pending at the time of the passage of A.M. No. 02-11-10-SC on March
15, 2003, need not have the required certification from the OSG before the court will decide
(Rumbaua vs. Rumbaua, G.R. No. 166738, August 14, 2009).

161793, 15. In the very

February 13, recent caseSupreme
2009, the ofEdward Kenneth
Court Ngo-Te
revisited the vs. Rowena
srcin Yu-Te,
of Article 36 G.R.
and No.
the
concept of “Psychological Incapacity” as liftedfrom the canon law. The Court finds that the
resiliency with which the concept should be applied and the case-to-case basis by which the
provision should be interpreted, as so intended by the framers, had, somehow, been rendered
ineffectual by the imposition of a set of strict standards in theMolina case. The Court re-
examined the Molina doctrine and said: “In hindsight, it may have been inappropriate for the
Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of
psychological incapacity. Understandably, the Court was then alarmed by the deluge of
petitions for the dissolution of marital bonds, and was sensitive to the OSG‟s exaggeration of
Article 36 as the “most liberal divorce procedure in the world”. The unintended consequences of
Molina, however, has taken its toll on the people who have to live with the deviant behaviour,
moral insanity and sociopathic personality anomaly, which, like termites, consume little by little
the very foundation of their families, our basic institutions. Far from what was intended by the
Court, Molina doctrine has become a strait-jacket, forcing all sizes to fit into and be
bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed
diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage. Ironically, theRoman Rota has annulled marriages
on account of the personality disorders of the said individuals. Thus, in the said case, the
Supreme Court declared both parties psychologically incapacitated. Petitioner is suffering from
dependent personality disorder, and respondent‟s, that of the narcissistic and antisocial
personality disorder. Both parties being afflicted with grave, severe and incurable psychological
incapacity, their marriage is thus null and void.

16. Taken from the decisions of theRoman Rota, applying Canon 1095, the following
are considered as various cases of psychological disorders,to wit:
a.) Hypersexuality-Nymphomania
b.) Hypersexuality-Satyriasis
c.) Homosexuality
d.) Lesbianism
f.) Schizophrenia
g.) Affective Immaturity
h.) Anti-Social Personality Disorder
i.) Dependent Personality Disorder
j.) Vaginismus or Psychic impotence

k.) Psychoneurosis
l.) Sexual Disorder
m.) Lack of Interpersonal Integration
n.) Immature Personality
o.) Obsessive-Compulsive Personality

(*
 p.) Frigidity
q.) Alcoholism and Gambling
r.) Liar, cheat and swindler
s.) Sexual Neurosis
t.) Hysterical Personality
u.) Psychic Immaturity

17. The Court in Te vs. Te clarified, thus, no case is ―on all fours‖ with another
case as far as psychological incapacity as a ground for declaring the nullity of marriage
is concerned. “Lest it be misunderstood, we are not suggesting the abandonment of
Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in
Antonio vs. Reyes
the disposition , there is for
of petitions need to emphasize
declaration otherofperspectives
of nullity as well
marriage under which
Article 36.should
At thegovern
risk of
being redundant, we reiterate once more the principle that each case must be judged, not on
the basis of a priori assumptions, predilictions or generalizations but according to its own facts.
And, to repeat for emphasis, court should interpret the provision on a case-to-case
basis; guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals.

18. Although in Marcos vs. Marcos, G.R. No. 136490, Oct. 19, 2000, the Supreme
Court ruled that it is not necessary to present an expert witness , the Court ruled in Te vs. Te
that the presentation of an expert testimony is very important . It added that, by the very
nature of cases involving the application of Article 36, it is logical and understandable to
give weight to the expert opinions furnished by psychologists regarding the
psychological temperament of parties in order to determine the root cause, juridical
antecedence, gravity and incurability of the psychological incapacity . Courts must not
discount but, instead, must consider as decisive evidence the expert opinion on the
psychological and mental temperaments of the parties. The Supreme Court even finds it fitting
to suggest the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, an option for the trial judge to refer the case to a court-
appointed psychologist/expert for an independent assessment and evaluation of the
psychological state of the parties. This will assist the courts, who are no experts in the field of
psychology, to arrive at an intelligent and judicious determination of the case.

19. The application of the Molina Doctrine to cases that were filed before the said
doctrine was promulgated by the Supreme Court in 1997 is not contrary to the principle of stare
decisis. Citing the cases of Pesca vs. Pesca and Antonio vs. Reyes, the Court ruled that the
interpretation or construction of a law by courts constitutes a part of the law as of the date the
statute is enacted. It is only when a prior ruling of this court is overruled, and a different view is
adopted, that the new doctrine may have to be applied prospectively in favor of parties who
have relied on the old doctrine and have acted in good faith, in accordance therewith under the
familiar rule of “lex prospicit, non respicit”. The Court clarified that the Molina doctrine was
not abandoned by the Ting vs. Ting case as it merely declared in the said case that, in
hindsight, it is inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in
resolving all cases of psychological incapacity. We said that instead of serving as a guideline,
Molina unintentionally became a straightjacket, forcing all cases involving psychological

incapacity to
unrealistic asfitwell,
intobecause
and be bound by it, which
with respect is not only contrary
to psychological to the
incapacity, nointention
case canofbe
theconsidered
law but
as on “all fours” with another. Coming now to the main issue, the Court finds the totality of
evidence adduced by respondent insufficient to prove that petitioner is psychologically unfit to
discharge the duties expected of him as a husband. In this case, respondent failed to prove that

)+
petitioner‟s defects were present at the time of the celebration of their marriage.(Benjamin Ting
vs. Carmen Velez-Ting, G.R. No. 166562, March 31, 2009).

20. In the case of Azcueta vs. Republic and C.A., G.R. No. 180668, May 26, 2009 , the
Supreme Court declared the respondent husband psychologically incapacitated because
of his ―Dependent Personality Disorder‖. The Court reinstated the ruling of the RTC finding
the respondent psychologically incapacitated considering the totality of evidence presented
clearly show that respondent failed to comply with his marital obligation. Citing the case of Te vs
Te, the Court reiterated its pronouncement that: in dissolving marital bonds on account of either
party‟s psychological incapacity, the Court is not demolishing the foundation of families, but it is
actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a

psychological disorder,
remaining in that sacred who
bond.cannot comply
Xxx. Let it be with
notedor that
assume essential
in Article marital
36, there is obligations,
no marriagefrom
to
speak of in the first place, as the same is void from the very beginning. To indulge in
imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a
stillborn marriage. (emphasis ours)

21. In Renato Reyes So vs. Valera, G.R. No. 150667, June 5, 2009 , the Court denied
the petition and stated that: Our own examination of the psychologist‟s testimony and
conclusions leads us to conclude that they are not sufficiently in-depth and comprehensive to
warrant the conclusion that a psychological incapacity existed that prevented the respondent
from complying with the essential marital obligations of marriage. The facts on which the
psychologist based her conclusions were all derived from statements by the petitioner whose
bias in favor of his cause cannot be doubted.

22. In the following recent decisions, the Supreme Court did not consider the presence
of psychological incapacity, to wit: The testimony of the psychologist that one of the parties was
suffering from “borderline personality disorder” as manifested by his being a “Mama‟s Boy” did

not constitute
interviews sufficient
with evidence
petitioning of that
spouse andparty‟s condition.
that the The diagnosis
psychologist was
did not only based
actually hear, onsee
and evaluate the respondent. Her testimony constituted hearsay. Furthermore, the
psychologist failed to explain how such a personality disorder made Jordan psychologically
incapacitated and to prove that the same is so grave and permanent. In any case, the alleged
incapacity was not shown to be so grave and permanent(Jordan Chan Paz vs. Jeanice Paz,
G.R. No. 166579, (Feb.18, 2010). The witness‟ “global conclusion” was not supported by
psychological tests properly administered by clinical psychologists specifically trained in the
tests‟ use and interpretation. The supposed personality disorders of the parties, considering that
such diagnosis were made, could have been fully established by psychometric and neurological
tests which are designed to measure specific aspects of peop le‟s intelligence, thinking, or
personality (Edward Lim vs. Ma. Cheryl Lim, G.R. No. 176464, (Feb. 24, 2010). Respondent’s
alleged sexual infidelity, emotional immaturity and irresponsibility do not constitute
psychological incapacity within the contemplation of the Family Code as the
psychologist failed to identify and prove the root cause thereof or that the incapacity was
medically or clinically permanent or incurable( Ligeralde vs. Patalinghug, G.R. No. 168796,
April 15, 2010). Failure to manage the family’s finances resulting in the loss of the house
and lot intended to be their family residences is not psychological incapacity . It is still
essential – although from sources other than the respondent spouse– to show his or her

)!
personality profile, or its approximation, at the time of marriage; the root cause of the inability to
appreciate the essential obligations of marriage; and the gravity, permanence and incurability of
the condition (Ricardo Toring vs.Teresita Toring, G.R. No. 165321, August 3, 2010).

23. However, in the case of Ma. Socorro C. Reyes vs. Ramon Reyes, G.R. No.
185286, August 18, 2010, the Supreme Court ruled that lack of personal examination and
interview of the respondent, or any person diagnosed with personality disorder, does not per se
invalidate the testimonies of the doctors. Neither do their findings automatically constitute
hearsay that would result in their exclusion as evidence. The two clinical psychologists and a
psychiatrist’s assessment were not based solely on the narra tion or personal interview
of the petitioner but also on other informants such as respondent’s own son, siblings
and in-laws, and sister-in-law who all testified on their own observations of respondent’s
behavior and interactions with them. In the instant case, respondent‟s pattern of behavior
manifests an inability, nay, a psychological incapacity to perform the essential marital
obligations as shown by his: (1.) sporadic financial support; (2.) extra-marital affairs; (3.)
substance abuse; (4.) failed business attempts; (5.) unpaid money obligations; (6.) inability to
keep a job that is not connected with the family business; and (7.) criminal charges of estafa. In
fine, we find ample basis to conclude that respondent was psychologically incapacitated to
perform the essential marital obligations at the time of his marriage to petitioner.

24. Quarrels, financial difficulties, womanizing of petitioner are not

psychological incapacities. The testimony of the psychiatrist is found to be general, not in-
depth, does not establish link between actions of party and his supposed psychological
incapacity (Rosalino Marable vs. Myrna Marable, G.R. No. 178741, January 17, 2011). Also,
sexual infidelity of the wife does notper se constitute psychological incapacity if it is not
shown that it already existed before the marriage (Jose Ochoa vs. Bona Alano, G.R.
No.167459, January 26, 2011).

25. For psychological incapacity of a spouse to serve as a ground for annulling a

marriage, the incapacity must consist of the following : (a.) a true inability to commit oneself
to the essentials of marriage; (b.) this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual
help, the procreation and education of offspring; and (c.) the inability must be tantamount to a
psychological abnormality. It is not enough to prove that a spouse failed to meet his
responsibility and duty as a married person; it is essential that he must be shown to be
incapable of doing so due to some psychological illness. Moreover, even assuming that
respondent‟s fault is psychological incapacity, it has not been established that the same existed
at the time of the celebration of the marriage(Cynthia E. Yambao vs. Republic of the Philippines
and Patricio E. Yambao, G.R. No. 184063, January 24, 2011).

C. Void because Incestuous:

)#
 Art. 37- Marriages between the following are
incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate:

1) Between ascendants and descendants of any

degree; and

2) Between brothers and sisters, whether of full or

half-blood. (81a)

NOTES

1. The reasons why a marriage between parties who are closely related by blood is
prohibited by law are (1.) It would tend to create confusion of rights and duties incident to family
relations; (2.) It is abhorrent to the nature, not only of civilized men, but of barbarous and semi-
civilized people; and (3.) Such intermarriages very often result in deficient and degenerate
offspring, which, if occurring to any great extent, would amount to a serious deterioration of the
race.

2. Marriages of persons who are closely related by blood in the direct line,
whether legitimate or illegitimate, is incestuous
. Thus, a marriage between grandfather and
Marriage
granddaughter, between parents and child and, between brothers and sisters, is void.
between uncles and niece or aunties and nephews is not incestuous but it is still
prohibited under the next article.

D. Void because against public policy:

Art. 38- The following marriages shall be void from the

beginning for reasons of public policy:

1) Between collateral blood relatives, whether

legitimate or illegitimate, up to the fourth civil
degree;

2) Between step-parents and step-children;

3) Between parents-in-law and children-in-law;

4) Between the adopting parent and the adopted child;

5) Between the surviving spouse of the adopting

parents and the adopted child;

6) Between the surviving spouse of the adopted child

and the adopter;

7) Between an adopted child and a legitimate child of
the adopter;

)$
 8) Between the adopted children of the same adopter;

9) Between parties where one, with the intention to

marry the other, killed that other person’s spouse
or his or her own spouse. (82)

NOTES

1. The nullity of the marriage under this article hinges primarily on the
relationship of the parties to the marriage . These marriages are considered against public
policy because they do not serve the fundamental objective of the state which is to nurture a
stable family unit that can effectively be the foundation of society.

2. Marriage between first degree cousins is no longer considered incestuous

now but they are against public policy. A first degree cousin is your relative up to the fourth
civil degree and is clearly prohibited by paragraph 1 of this article.

3. The prohibition under this article hinges on the affinity relation, adoptive relation,
and the criminal motive to dispose of a spouse in order to enable the surviving spouse to marry.
Marriages between step-parents and step-children and those between parents-in-law and
children-in-law are prohibited because the parties here should treat each other as real parents
and children even if their relationship is only by affinity. It is said that once you get married, you
and your spouse become one, such that the close relatives of your spouse should be treated by
you as your own. These are the only marriages by affinity prohibited by the Family Code.
Marriage between step-brother and step-sister is not prohibited and is therefore valid .

4. Adoption creates an artificial relation of parent and child between the adopter and
the adoptee. Thus, an adopted child cannot marry his adopter, the surviving spouse of his
adopter, the legitimate children of his adopter, and the adopted children of his adopter.
The adopter cannot also marry the surviving spouse of his adopted .

5. The enumeration of void marriages under Article 38 is exclusive, such that

those that do not fall under the said enumeration are considered valid. The following
marriages are valid:

a.) Between adopted and the parents of his adopter

b.) Between adopted and the illegitimate children of his adopter

c.) Between adopter and the relatives of his adopted.

d.) Between the adopted and the former spouse of his adopter OR

between the adopter and the former spouse of his adopted.

e.) Between step-brother and step-sister.

6. A marriage between the killer and the surviving spouse of his victim or
between the spouse who killed his or her own spouse in order to marry another is

)%
prohibited by law. The killing must be animated by the intention to marry another person.
No prior criminal conviction by the court is required by the law . Mere preponderance of
evidence is required to prove the killing.

E. Prescriptive period:

Art. 39- The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe. (n)
(Amended by Executive Order Number 227 dated July 17,
1987 and further amended by Republic Act No. 8533 dated
February 23, 1998)

NOTES

1. There is no prescriptive period for an action to declare the marriage void because a
null and void marriage produces no legal effect, it being non-existent. In fact, the judicial decree
merely confirms the voidness, non-existence, or incipient invalidity of the marriage.

2. However, if the ground for the voidness of the marriage is psychological

incapacity under Article 36 of the Family Code, there used to be a prescriptive period of ten
years from the effectivity of the Code or until August 1, 1998, but only if the marriage was
solemnized before the Family Code took effect. If the marriage was celebrated after August 3,
1988, there is no prescriptive period.This provision, however, was amended byRepublic
Act 8533 by deleting the 10 year prescriptive period for marriages solemnized before the
effectivity of the Family Code. So, now there is no more prescriptive period to declare the
marriage void on the ground of psychological incapacity even if the marriage is
solemnized before August 3, 1988.

3. Only the husband or the wife can file an action to declare their marriage void
(see: Supreme Court Resolution A.M. No. 00-11-01-SC). Even the party who is at fault may
bring the action to nullify the marriage as the pari delicto rule will not apply to nullity
cases. The rule enunciated in the case of Cojuangco vs. Romillo, 167 SCRA 751, that a
father can file a case to declare the nullity of the bigamous marriage entered into by his
daughter with a married man, is no longer controlling in the light of the provision of SCR A.M.
No. 02-11-10-SC which took effect on March 15, 2003, a copy of which is hereto attached as
Appendix “A”.

F. Void subsequent marriage:

Art. 40- The absolute nullity of a previous marriage

may be invoked for purposes of remarriage on the basis
solely of a final judgement declaring such previous marriage
void. (n)

)&
 NOTES

1. When a marriage is void, a party to that marriage can contract a subsequent

marriage only after he/she has the previous marriage judicially declared null and void. A
subsequent marriage contracted without having the first marriage declared by the court
as null and void is also void ab initio under Article 40 of the Family Code . It is generally
expedient that the nullity of the marriage should be ascertained and declared by the court of
competent jurisdiction for the sake of good order of society and for the peace of mind of all
persons concerned. One should not put the law in his hands and decide for himself the
nullity of his marriage. He should let the court declare the nullity of his marriage before he can
contract another marriage.
2. The rule on whether or not there is a need for a judicial declaration of nullity of a
void marriage before one can contract another marriage has been swinging like a pendulum. At
one time the Supreme Court ruled that there is no need but in another time the Court said there
is a need. In the case of People vs. Mendoza and the case of People vs. Aragon decided in
1954 and 1957 respectively, the Supreme Court ruled that there was no need for a judicial
declaration of nullity of a void marriage. Later on, in the case ofGomez vs. Lipana (33 SCRA
614) and Consuegra vs. GSIS (37 SCRA 315) decided in 1970 and 1971 respectively, the Court
changed its stand and ruled that judicial declaration of nullity of marriage is necessary before
one can contract a subsequent marriage. However, in the case ofOdayat vs. Amante (77 SCRA
338) decided in 1977, the Supreme Court returned to the old rule enunciated in the Mendoza
Wiegel
and Aragon cases that judicial declaration of nullity is not necessary. But, in the case of
vs. Sempio Diy (143 SCRA 499) decided in August 19, 1986, the Court went back to the rule in
Gomez vs. Lipana and Consuegra vs. GSIS, only to be abandoned later by the case of Yap vs.
Court of Appeals ( 145 SCRA 229) decided on October 28, 1986. This flip- flopping of the
Supreme Court has prompted the framers of the Family Code to incorporate Article 40 in order
to put to rest the controversy brought about by the conflicting decisions of the Supreme Court.
So, now it is settled that if the marriage is void, the only way that the parties to that void
marriage can marry again is to have it declared void by the court first.

3. Article 40 of the Family Code restated the rule that even if the marriage is void,
there is a need to have it declared void by the court, for it is solely on the basis of that final
judgment that a party can remarry. In the case of Roberto Domingo vs. Court of Appeals, et al.,
G.R. No. 104818, September 17, 1993, the Supreme Court clarified the meaning of Article 40
by saying that the judicial declaration of nullity of marriage is not solely for the purpose of
remarriage as it can also be invoked for other purposes such as in case of an action for
liquidation, partition, distribution and separation of property between the spouses, as well as an
action for the custody and support of their common children and the delivery of the tter‟s la
presumptive legitime. The word“solely” qualifies the term judgment. Thus,it means that for
purposes of remarriage, the nullity of a previous marriage can only or solely be

established by a final judgment of the court declaring such marriage void.

4. When the first marriage is void and a party to that marriage contracted a
second marriage without obtaining a judicial declaration of nullity of the first marriage,

)'
there is no doubt that the second marriage is null and void under Article 40 . But, is the
said party guilty of bigamy? The Court of Appeals in the case of People vs. Cobar, CA-G.R.
No. 19344, November 10, 1997, answered this question in the negative. According to the Court
of Appeals, there is no bigamy because of the absence of the first and fourth element of bigamy,
which are that the first marriage must be valid and that the second marriage must have all the
essential requisites for validity. A void bigamous marriage therefore contemplates of a situation
where the second marriage was contracted at the time when the first marriage , which is valid in
all respects, was still subsisting. Hence, the first marriage must not be void but valid or at least
annulable.

5. However, in the case of Vincent Paul Mercado vs. Consuelo Tan, G.R. No. 137110,
August 1, 2000 , and Nicdao Carino vs. Carino, G.R. No. 132529, February 2, 2001, the
Supreme Court ruled that a person who contracts a subsequent marriage without having
his first marriage judicially declared void is guilty of bigamy . This ruling is consistent with
the pronouncement in Terre vs. Terre, 211 SCRA 6, where the Court ruled that “for the purpose
of determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and voidab initio is essential.” The reason behind the
rule that even if the marriage is void, there is a need to have it declared void is the fact that
the parties to the marriage cannot decide for themselves the invalidity of their marriage .
This is especially so that no less than the Constitution seeks to preserve the sanctity of the
marriage, it being the foundation of the family. This rule was reiterated in the more recent case
of Myrna Antone vs. Leo Beronilla, G.R. No. 183824, Dec. 8, 2010, when the Court ruled that
declaration of nullity of marriage on the ground of psychological incapacity under Article
36 will not save the respondent from the crime of bigamy if the second marriage was
contracted before the declaration of nullity of the first marriage.

6. In the case of Msrco vs. People , the petitioner was found by the trial court guilty of
bigamy for contracting a second marriage without having his first marriage judicially declared
void. During the pendency of the bigamy case, petitioner (Mr. Lucio Msrco) filed a case for
declaration of nullity of his first marriage on the ground of absence of marriage ceremony. While
the appeal of his conviction in the bigamy case was pending in the Court of Appeals, the Family
Court declared his first marriage null and void due to the absence of marriage ceremony. The
decision became final as no appeal was interposed by the State. The Court of Appeals
eventually affirmed his conviction for bigamy prompting him to raise the matter to the Supreme
Court by way of Certiorari. In reversing the decision of the Court of Appeals, the Court ruled that
no bigamy was committed as not all the elements of the crime of bigamy is present. Citing the
case of Bobis vs. Bobis, the Court ruled that there are four elements of bigamy, and they are
as follows: (1.) the offender has been legally married, (2.) the first marriage has not been
legally dissolved, (3.) he contracts a subsequent marriage, and (4.) the subsequent
marriage would have been valid had it not been for the existence of the first . In the instant
case of Msrco, the Court finds no bigamy because there was no first marriage to speak of. The
declaration of nullity of the first marriage by the Family Court, retroacts to the time of the
celebration of the said marriage. Thus, when petitioner contracted the second marriage, there
was no prior valid subsisting marriage. Petitioner, legally speaking, was never married to his first

)(
wife as no marriage really took place due to the absence of marriage ceremony (Lucio Msrco
vs. People of the Philippines, G.R. No. 145226, February 6, 2004).

7. In Mercado vs. Tan, the first marriage was void because of the absence of a
marriage license. In the Msrco case, the first marriage was void because of the absence
of marriage ceremony. However, in the Mercado case the Court ruled that there is a need for
the judicial declaration of nullity of the first marriage; otherwise, the accused may be convicted
of bigamy. But, in the Msrco case, the Court said there is no need to have the first marriage
declared void as in the eyes of the law, the marriage never existed. What then is the difference
between the two? The observation of this author is that if the nullity of marriage is

anchored on the absence of marriage ceremony, then it is as if no marriage took place or

that there is no marriage at all. However, if the nullity is based on absence of a valid
marriage license, there exists a marriage but it is void . In other words, what is
contemplated by Article 40 of the Family Code as the void marriage that must be
declared void first before one can contract a subsequent marriage is one that must exist
although it is void.

G. Declaration of Presumptive Death:

Art. 41- A marriage contracted by any person during

the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent

spouse
there was already
is danger dead.
of death In case
under of disappearance
the circumstances where
set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

For the purposes of contracting the subsequent

marriage under the preceding paragraph, the spouse present
must institute a summary proceeding as provided for in this
Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of
the absent spouse. (83a)

Art. 42- The subsequent marriage referred to in the

preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous

marriage or declaring it voidab initio.

A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the

))
 residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined in case
such fact is disputed. (n)

Art. 43- The termination of the subsequent marriage

referred to in the preceding Article shall produce the
following effects:

1) The children of the subsequent marriage conceived

prior to its termination shall be considered legitimate and
their custody and support in case of dispute shall be decided
by the court in a proper proceeding;

2) The absolute community of property or the conjugal

partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community
property shall be forfeited in favour of the common children
or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent
spouse;

3) Donations by reason of marriage shall remain valid,

except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation
of law;

4) The innocent spouse may revoke the designation of

the other spouse who acted in bad faith as a beneficiary in
any insurance policy, even if such designation be stipulated
as irrevocable; and

5) The spouse who contracted the subsequent

marriage in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)

Art. 44- If both spouses of the subsequent marriage

acted in bad faith, said marriage shall be voidab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favour of the other are revoked
by operation of law. (n)

)*
 NOTES

1. If a spouse had been absent for four consecutive years and the present spouse had
a reasonable and well founded belief that the absent spouse was already dead, he/she may
contract a second marriage provided that he/she first obtain a judicial declaration of
presumptive death of the absent spouse. The four year period before one can file the petition
for judicial declaration of presumptive death is shortened to two years if the disappearance of
the spouse is under any of the circumstances of great danger of death as set forth in Article 391
of the Civil Code. These circumstances are as follows: (1.) when the absent spouse was on a
vessel and the same was lost during a sea voyage and he has not been heard of for two years

since the loss or when the absent spouse was on an airplane which was missing and such
spouse was not heard of for two years since the loss of the airplane; (2.) when the absent
spouse who was in the armed forces has taken part in the war and has been missing for two
years; and (3.) when the absent spouse has been in danger of death under other
circumstances.

2. If the absent spouse turns out to be alive, then the subsequent marriage
contracted by the present spouse will be terminated but only upon the execution of the
affidavit of reappearance by the reappearing spouse or any of the interested party . The
said affidavit of reappearance shall be recorded in the Office of the Local Civil Registrar of the
place where the present and the subsequent spouse resides. The fact that the absent spouse is
still alive renders the subsequent marriage a bigamous
“ but valid marriage”. It is bigamous
because the first marriage is still subsisting but valid because of the judicial declaration of
presumptive death. Thus, if a spouse had been absent for many years (4 or 2 years as the case
may be), the only way by which the present spouse can marry again legally is to have him/her
declared presumptively dead by the court; otherwise, the subsequent marriage will be void.

3. The presumption that the absent spouse must have already been dead must be
anchored on ―well founded belief‖. In the case of Republic of the Philippines vs. Gregorio
Nolasco, 220 SCRA 20, the Supreme Court discussed the meaning of the termwell founded
belief as the exercise of that degree of due diligence required insearching for a missing
spouse. In that case, the Court denied the petition of a Filipino seaman to declare his wife
presumptively dead for his failure to conduct a search for his missing wife with such diligence to
give rise to a “well- founded belief” that she was dead. In the other case ofRepublic vs. Court of
Appeals, G.R. No. 159614, December 9, 2005, the Supreme Court denied the petition because
the person seeking a judicial declaration presented only the Barangay Captain, but did not
present the persons from whom he allegedly made inquiries, and did not even make inquiries
with his parents-in-law who knew of his wife‟s abandonment of the conjugal abode. The Court
ruled that petitioner failed to prove a well-founded belief that the wife was already dead.

4. The Civil Code of the Philippines provides the general rule that no judicial
declaration of presumptive death is required as such presumption arises from law . Article
390 and 391 of the Civil Code has already created the presumption of death when a person has
The said
been absent for seven years, it being unknown whether or not the absentee still lives.
absentee shall be presumed dead for all purposes except for those of succession, in

*+
which case, the absentee shall not be presumed dead till after an absence of ten years.
The period is shortened to four years (now two years in the Family Code) if the disappearance
is in danger of death as stated in Article 391; or to five years if the disappearing spouse is
already 75 years of age. The judicial declaration of presumptive death under Article 41 of
this Code is mandatorily required by law only for the purpose of capacitating the present
spouse to remarry. Thus, the judicial declaration of presumptive death will protect the
spouse from being charged of bigamy in case the absent spouse will reappear.

5. The requirement that a petition for judicial declaration of presumptive death of

a spouse must be anchored on a ―well founded belief‖ that the absence spouse must

have already been dead will apply only if the marriage took place after the effectivity of
the Family Code on August 3, 1988.When the marriage of the present and disappearing
spouse was celebrated before the effectivity of the Family Code and the disappearance
also happened before 1988, the Civil Code will apply . Under Article 390 of the Civil Code,
judicial declaration of presumptive death is not required for purposes of remarriage . The
declaration of absence made in accordance with the provisions of the Civil Code has for its sole
purpose to enable the taking of the necessary precautions for the administration of the estate of
the absentee. For celebration of civil marriage, however, the law only requires that the former
spouse has been absent for seven consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse to be living, that such former
spouse is generally reputed to be dead and the spouse present so believes at the time of the
celebration of the marriage.

6. When the husband and the wife were married in 1971, then, the husband
disappeared in 1975, and the wife did not anymore hear any news from him, the subsequent
marriage of the wife with another man in 1985 is valid . In fact, there is no more need for the
wife to file a petition to declare her first husband presumptively dead before contracting the
second marriage as that is not required under the Civil Code.The validity of the subsequent
marriage is determined by the law prevailing at the time of the marriage. The Family
Code, particularly Article 41 thereof, cannot be applied retroactively by requiring the
spouse to first obtain a judicial declaration of presumptive death before contracting the
subsequent marriage. To do so would be to impair a vested right already acquired by a party
under the former law. Considering that it is the Civil Code and not the Family Code that will
apply here, proof of “well founded belief” is not required(Angelita Valdez vs. Republic, G.R. No.
180863, Sept. 8, 2009).

7. The decision of the court declaring a spouse presumptively dead under Article
41 of the Family Code is unappealable and immediately executory as it falls under the
Summary Judicial Proceedings in the Family Law( Republic vs. Bermudez-Lorino, G.R. No.
160258, Jan. 19, 2005) . There is no reglementary period to perfect an appeal, precisely
because judgment rendered thereunder, by express provision of the law (Art. 247), are

immediately final and executory. As a matter of course, it follows that no appeal can be had
of the trial court’s judgment in a summary proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of the Family Code. It goes without saying,
however, that an aggrieved party may file a petition for certiorari to question abuse of discretion

*!
amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of Courts. From the decision of the Court of Appeals,
the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of
Court with the Supreme Court. This is because the errors which the court may commit in the
exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal
(Republic of the Philippines vs. Ferventino Tango, G.R. No. 161062, July 31, 2009).

8. The recording of the affidavit of reappearance is the operative act that

terminates the subsequent marriage. The affidavit shall be executed by the reappearing
spouse or any interested party such as the parents of both spouses, their children, the

present spouse and even the subsequent spouse of the present spouse . If no affidavit of
reappearance is filed then the subsequent marriage remains validly subsisting. If an affidavit of
reappearance is filed then the subsequent marriage is automatically terminated but this is
without prejudice to the outcome of any judicial proceeding questioning such reappearance.

9. When the subsequent marriage is terminated by the reappearance of the absent

spouse, the conjugal partnership or the absolute community of property regime that governs the
said marriage shall also be terminated and dissolved. Article 43 enumerates the effects of the
termination of such marriage as follows: (1.) the children of the subsequent marriage conceived
prior to its termination shall be considered legitimate; (2.) the property relation of the parties, be
it absolute community or conjugal partnership, shall be dissolved and liquidated. The party who
contracted the marriage in bad faith shall forfeit his/her share in the net profits community
property in favor of their common children, or if there are none, the children of the guilty spouse
by a previous marriage or in default thereof, the innocent spouse. (3.) donations by reason of
marriage made by the innocent spouse in favour of the guilty spouse are revoked by operation
of law; (4.) the designation of the guilty spouse as the beneficiary of the insurance policy of the
innocent spouse may be revoked by the latter even if the designation be stipulated as
irrevocable; (5.) the party who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse.

10. If both parties to the subsequent marriage are in bad faith, the said marriage
shall be void ab initio and all donations propter nuptias and testamentary disposition
made by one in favour of the other are revoked by operation of law . Since the marriage is
void, then there is no dissolution and liquidation of the conjugal partnership or absolute
community as the property relation of the parties will be governed by co -ownership under Article
147 or 148 of the Family Code.

11. Declaration of presumptive death by the Regional Trial Court cannot be

overturned or disregarded by the Social Security Commissionon the ground that the first
wife is still alive and the deceased husband, whose death benefit is in issue, is aware of the fact
that his first wife is still alive when he filed the petition for judicial declaration of presumptive
death. The subsequent marriage entered into after the judicial declaration of presumptive death
can only be terminated when the first spouse files an affidavit of reappearance which did not
happen here (SSS vs. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006).

*#
 VOIDABLE MARRIAGE

H. Grounds for Annulment of Marriage:

Art. 45- A marriage may be annulled for any of the

following causes, existing at the time of the marriage:

1) That the party in whose behalf it is sought to have

the marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband
and wife;

2) That either party was of unsound mind, unless such

party after coming to reason, freely cohabited with the other
as husband and wife;

3) That the consent of either party was obtained by

fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the
other as husband and wife;

4) That the consent of either party was obtained by

force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;

5) That either party was physically incapable of

consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or

6) That either party was afflicted with a sexually

transmissible disease found to be serious and appears to be
incurable. (85a)

Art. 46- Any of the following circumstances shall

constitute fraud referred to in Number 3 of the preceding
Article:

1) Non-disclosure of a previous conviction by final

judgement of the other party of a crime involving moral
turpitude;

*$
 2) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other than her
husband;

3) Concealment of sexually transmissible disease,

regardless of its nature, existing at the time of the marriage;
or

4) Concealment of drug addiction, habitual alcoholism,

or homosexuality or lesbianism existing at the time of
marriage.

No other misrepresentation or deceit as to character,

health, rank, fortune or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage.
(86a)

NOTES

1. The grounds for the annulment of a voidable marriage enumerated under Article 45
of the Family Code must already be existing at the time of the celebration of the marriage .
Thus, if the grounds occurred only after the celebration of the marriage it cannot be used as a
ground to annul the marriage. These grounds are as follows:

a.) Absence of parental consent

b.) Unsoundness of the mind of a party
c.) Consent was obtained by fraud

d.) Physical
e.) Consent Incapacity
was obtained by force, intimidation
to consummate or undue influence
the marriage
f.) Sexually transmissible disease that is both serious and incurable

2. Not all kinds of fraud or deceit can invalidate the marriage

. It must only refer to
the four types of fraud enumerated in Article 46 of the Code. To constitute fraud, there must
be concealment at the time of the marriageof the following facts:

a.) Previous conviction of a crime involving moral turpitude;

b.) Pregnancy of the wife by a man other than her husband;
c.) Sexually transmissible disease regardless of its nature;
d.) Drug addiction, habitual alcoholism, homosexuality, or lesbianism;

3. No other misrepresentation or deceit can be a ground for the annulment of

marriage. The ground for annulment of marriage is exclusive , thus, only those specified in
Articles 45 and 46 of the Family Code shall be considered.

4. Non-disclosure of previous conviction must refer to crimes involving moral turpitude.

It is not necessary for a spouse to verify first before the marriage whether or not the other
spouse has a previous conviction as the burden is on the convicted party to divulge his criminal
record. Concealment by the wife of her pregnancy by a man other than her husband could
be appreciated as fraud only when concealment of the pregnancy is still very possible.

*%
Thus, a husband could no longer claim concealment of pregnancy if his wife was already
seven months pregnant at the time of the marriage as her physical condition is already
apparent to the man during marriage(Buccat vs. Buccat, 72 Phil. 19). However, if the wife
is only four months pregnant at the time of the marriage, and that she is naturally plump
or fat, concealment is still very much possible as at that stage her pregnancy is not yet
readily apparent (Aquino vs. Delizo, 109 Phil. 21).

5. Vitiated consent, as a ground to annul the marriage, must be proven by

preponderance of evidence which may include the actuation of the parties previous to
the marriage. There is intimidation when one of the contracting parties is compelled by a
reasonable and well-founded fear of an imminent and grave evil upon his person and property,

or
To upon the person
determine or property
the degree of his spouse,
of intimidation, descendants
the age, or ascendants,
sex and condition to give
of the person his be
shall consent.
borne
in mind (Article 1335 of the Civil Code).

6. The claim of the petitioner, who is a security guard, that his consent to the marriage
was vitiated because of fear that he may be harmed by an NPA Commander if he will not marry
his wife is unfounded and of no basis V ( illanueva vs. Court of Appeals, G.R. No. 132955,
October 27, 2006).

7. Sexually transmissible disease (STD) is a ground to annul the marriage if it is

both serious and incurable. If it is not serious and incurable, it can only be a ground if it
already existed at the time of the marriage and it was concealed by a spouse from the
other. This is because the concealment of the STD here becomes fraud.

8. Drug addiction, habitual alcoholism, homosexuality and lesbianism can be a

ground to annul the marriage only when it already exist at the time of the marriage and it
was concealed by said party from the other. If it occurred only after the marriage, it is not a
ground for annulment but it could be a ground for legal separation.

9. Physical incapacity to consummate the marriage refers to impotency and not

sterility. The impotency must already be existing at the time of the marriage and such
incapacity continues and appears to be incurable. If the impotency happened only after the
marriage it is not a ground for the annulment of the marriage. Potency is always presumed,
thus, whoever claims that his/her spouse is impotent has the burden of proving. However, the
presumption of potency is rebutted if the wife remains a virgin after three years from the
time of their cohabitation. This is called the “Doctrine of triennial cohabitation”.

I. Prescriptive period:
Art. 47- The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:

1) For causes mentioned in Number 1 of Article 45, by

the party whose parent or guardian did not give his or her
consent, within five years after attaining the age of twenty-
one; or by the parent or guardian or person having legal
charge of the minor, at any time before such party reached
the age of twenty-one;

*&
 2) For causes mentioned in Number 2 of Article 45, by
the sane spouse who had no knowledge of the other’s
insanity, by any relative, guardian or person having legal
charge of the insane, at any time before the death of either
party; or by the insane spouse during a lucid interval or after
regaining sanity;

3) For causes mentioned in Number 3 of Article 45, by

the injured party, within five years after the discovery of the
fraud;

4) For causes mentioned in Number 4 of Article 45, by

the injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;

5) For causes mentioned in Numbers 5 and 6 of Article

45, by the injured party, within five years after the marriage.
(87a)

NOTES

1. If the ground is absence of parental consent, the prescriptive period is five years
from the time the party who did not secure the required parental consent reaches the age of
twenty one. The parent who did not give their consent may also annul the marriage at any
time before their son or daughter who did not secure their consent reaches the age of
twenty one.

2. If the ground is insanity, the sane spouse or the relatives or guardian of the insane
spouse may annul the marriage at any time before the death of either spouse. The insane
spouse himself may annul the marriage only during his lucid interval.

3. If the ground is fraud, the action prescribes after five years from the discovery of
fraud. But, if the ground is vitiated consent caused by force, intimidation or undue
influence, the prescriptive period is five years from the time the force, intimidation or undue
influence ceases. The action shall be filed by the party whose consent was obtained through
fraud or intimidation.

4. If the ground is incapability to consummate the marriage or sexually

transmissible disease, the action can be filed by the injured party within five years from the
time of the celebration of the marriage.

J. Procedures in annulment and nullity of marriage:

*'
 Art. 48- In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or
suppressed.

In all cases referred to in the preceding paragraph, no

judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)

Art. 49- During the pendency of the action and in the

absence of adequate provisions in a written agreement
between the spouses, the court shall provide for the support
of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of
the parent with whom they wish to remain as provided for in
Title IX. It shall also provide for appropriate visitation rights
of the other parent. (n)

NOTES

1. The procedures in annulment of marriage and declaration of nullity of marriage are

now primarily governed by the Supreme Court En Banc Resolution A.M. no. 02-11-10-SC which
took effect on March 15, 2003.

2. Once a complaint for Annulment or Declaration of nullity of marriage is filed in the

Family Court, the defendant shall be served with summons and a copy of the complaint
whereby he is given fifteen (15) days to file his answer from receipt thereof. If no answer i s filed
within the reglementary period of 15 days, the Court cannot declare the defendant in default.
Instead the Court will order the prosecuting attorney or fiscal assigned to it to enter his
appearance for the State and to take steps to prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.

3. The Court cannot render judgment on the basis of stipulation of facts or

confession of judgment. An annulment case cannot be terminated by compromise agreement
and no valid compromise is legally possible on the issue of the validity of marriage ( Mendoza
vs. C.A., 19 SCRA 756). A full blown hearing is required in cases where the plaintiff is required
to prove his case in court. The policy of the State is to be cautious and strict in granting
annulment of marriage; thus, the law strictly prohibits the annulment of marriage without trial.

4. In all cases of annulment of marriage or declaration of nullity of marriage, the

State shall be represented by the Office of the Solicitor General or by the Fiscal
. Although
Article 48 does not specifically mention the Office of the Solicitor General, such office

*(
nevertheless can intervene in the proceeding considering that the issue of the validity of the
marriage is vested with public interest (Republic vs. Iyoy, G.R. No. 152577, September 21,
2005). It is their duty not only to defend the validity of the marriage and prevent collusion
between the parties but also to expose an invalid one. It can also be required to submit a
memorandum and the prosecuting attorney must actively participate in the proceedings. Hence,
where the Fiscal merely filed a manifestation that there was no collusion and where he merely
entered his appearance at certain hearings of the case but was not heard of anymore, the
Supreme Court remanded the case for further proceeding even if the Judge of the lower court
already denied the petition for nullity(Sin vs. Sin, G.R. No. 137590, March 26, 2001).

5. The partial voluntary separation of property agreed upon by the parties through a
compromise agreement approved by the court prior to the judicial declaration of nullity of
marriage is valid. The non-participation of the prosecuting attorney or the Solicitor General in
the nullity of marriage case does not invalidate the compromise agreement previously entered
into by the parties. An agreement to separate property is not of itself an indicator of
collusion. In fact, there is no need for the Fiscal to participate in the negotiation leading to the
agreement (Maquilan vs. Maquilan, G.R.No. 155409, June 8, 2007).

5. The Fiscal must actively intervene in the case and submit a report to the court
that there was no collusion between the parties . However, if the annulment or declaration of
nullity of marriage cases were strongly opposed and heatedly contested by the defendant by
hiring a lawyer who filed several pleadings and actively participated in the trial of the case, it is
clear that the litigation was characterized by a no-holds-barred contest and not by collusion.
Under this circumstance, the non-intervention of the Fiscal to assure lack of collusion between
the parties is not fatal to the validity of the proceedings in court especially when it was not
shown that evidence was suppressed or fabricated by any of the parties. The strict application
of Article 48 and 60 of the Family Code is therefore not warranted(Tuason vs. Court of Appeals,
256 SCRA 158).

6. During the pendency of the action for annulment or declaration of nullity of marriage,
the support of the spouses and the custody and support of the common children shall be
primarily governed by whatever agreement the parties have made with respect thereto. In the
absence of such agreement, support shall be taken from the conjugal or absolute community
until the marriage is dissolved. As regards the custody of the children, the same shall be
resolved in accordance with Article 213 of the Family Code. Should the court decide to
award the custody of the child to one spouse during the pendency of the case, the other
spouse should have visitorial rights unless the court, for some compelling reason, deprives
him or her of such right. Upon receipt of a verified petition for declaration of absolute nullity of
void marriage or for annulment of voidable marriage, or legal separation, and at anytime during
the proceeding, the court, motu proprio or upon application under oath of any of the parties, may
issue provisional orders and protection orders with or without hearing. These orders may be

enforced immediately, with or without a bond, and for such period and under such terms and
conditions as the court may deem necessary. This order includes spousal support, child
support, child custody, visitation rights, hold departure order and order of protection (Please
refer to Appendix “C).

*)
K. Decree of Annulment and Nullity of Marriage:

Art. 50- The effects provided for in paragraphs (2), (3),

(4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared voidab initio
or annulled by final judgment under Articles 40 and 45.

The final judgement in such cases shall provide for the

liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial
proceedings.

All creditors of the spouses as well as of the absolute

community or the conjugal partnership shall be notified of the
proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on

which it is situated, shall be adjudicated in accordance with
the provisions of Articles 102 and 129. (n)

Art. 51- In said partition, the value of the presumptive

legitimes of all common children, computed as of the date of

the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.

The children or their guardian, or the trustees of their

property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein

prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the death
of either or both of the parents; but the value of the
properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their
legitime. (n)

Art. 52- The judgment of annulment or of absolute

nullity of the marriage, the partition and the distribution of the

**
 properties of the spouses, and the delivery of the children’s
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons. (n)

Art. 53- Either of the former spouses may marry again

after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall
be null and void. (n)

Art. 54- Children conceived or born before the

judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory, shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate. (n)

NOTES

1. The Decree of Annulment of Marriage under Article 45 and the Declaration of

Nullity of Marriage under Article 40 shall include the dissolution of the conjugal
partnership of the absolute community of property regime as they are the necessary
consequences of the annulment or declaration of nullity of marriage. By express provision
of Article 50, the effects provided for in paragraphs (2), (3), (4), and (5) of Article 43 and in
Article 44 shall also apply to void marriages under Article 40 and the annulled marriages under
Article 45. Thus, in all other cases of void marriages other than Article 40, the property
regime shall be governed by the rule on co-ownership provided for in Articles 147 and
148, as the case may be, and not the conjugal partnership of gains or absolute community of
property (Valdes vs. RTC, 260 SCRA 221).

2. The Decree is issued only after the judgment has become final and executory .
The judgment becomes final after the lapse of the 15 day period to appeal and no appeal was
interposed by the defeated party. The said decree shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes. All creditors of the parties must be notified and
the conjugal dwelling shall be adjudicated in favour of the spouse with whom the majority of the
common children choose to remain.

3. Presumptive legitime is that part of the testator‟s property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs
(Article 866 of the Civil Code). The presumptive legitime of the children shall be delivered
to them in cash, property or sound security and it must be provided in the decree . The
delivery of presumptive legitime to the children is required only in the dissolution of a

!++
voidable marriage and in the declaration of nullity of a void marriage under Article 40. It is
not required in other forms of void marriages because said marriages are to be governed by co-
ownership under Articles 147 and 148 which does not involve distribution of presumptive
legitime.

4. The partition and distribution of the properties of the spouses, and the delivery of the
presumptive legitimes to the children shall be recorded in the Office of the Local Civil Registrar
and the Registry of Deeds in order to bind third persons (Article 52). Non-compliance of the
said requirement of recording will render the subsequent marriage of the parties null and
void (Article 53).

5. When the marriage is declared void on the ground that one spouse is
psychologically incapacitated to comply with the essential marital obligations, the rules
on liquidation and partition of conjugal properties laid down in Article 50 and 51 of the
Family Code will not apply. The said rules will only apply to void marriages under Article
40 and voidable marriages under Article 45. It is therefore an error for the trial court to rule
that the decree of nullity of marriage shall only be issued after the liquidation, partition and
distribution of the properties of the parties are made. What governs the liquidation and partition
of the properties owned in common are the rules on co-ownership. The properties of the
spouses should be liquidated in accordance with the Civil Code provisions on co-ownership.
Under Article 496 of the Civil Code, partition may be made by agreement between the parties or
by judicial proceedings XXXX. It is not necessary to liquidate the properties of the spouses in
the same proceedings for declaration of nullity of marriage(Alain Dino vs. Ma. Caridad L. Dino,
G.R. No. 178044, January 19, 2011).

6. There are three instances where a void marriage may produce legitimate
. They are the children
children and they are provided for in Article 54 of the Family Code
conceived and born under the following conditions:

a.) Before the annulment of voidable marriage became final

;

b.) Before declaration of nullity of marriage under Article 36 became final

;

c.) Born of subsequent void marriage under Article 53.

Title II

LEGAL SEPARATION

A. Grounds for Legal Separation:

Art. 55- A petition for legal separation may be filed on

any of the following grounds:

!+!
 1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
4) Final judgement sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
5) Drug addiction or habitual alcoholism of the
respondent;
6) Lesbianism or homosexuality of the respondent;
7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
8) Sexual infidelity or perversion;
9) Attempt by the respondent against the life of the
petitioner; or
10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.

For purposes of this Article, the term ―child‖ shall

include a child by nature or by adoption. (97a)

NOTES
1. Legal separation is otherwise known as relative
“ divorce”. It does not dissolve
the marriage as it is nothing more than a separation in bed-and-board (a mensa et thoro)
of the spouses. In the eyes of our law, the husband and wife are still married to each other but
they are already allowed to live separately.

2. Under the Civil Code, there were only two grounds for legal separation and these
are: (1.) Adultery on the part of the wife and concubinage on the part of the husband; and (2.)
Attempt on the life of the other spouse. In the present Family Code there are already ten (10)
grounds. The first ground of adultery and concubinage was no longer reproduced now but it
does not mean that they are no longer grounds for legal separation because it is now covered
by the generic term “sexual infedility” under paragraph 8 of Article 55. The grounds

enumerated herein are

be invoked except exclusive
those stated and therefore
in this article.no other
These grounds
grounds fornot
need legal separation
exist can
prior to the
marriage as they even usually occur after the marriage.

!+#
 3. Criminal conviction of adultery or concubinage is not required in the action
for legal separation. The court may grant legal separation by mere preponderance of evidence
and no criminal proceedings or conviction is necessary Gandionco
( vs. Hon. Penaranda, et al.,
G.R. No. L- 72984, November 27, 1987). Although adultery and concubinage are included in the
acts of sexual infidelity, other acts of sexual infidelity short of adultery and concubinage are
enough so long as the said act constitute a clear betrayal of the trust of one spouse.Hence,
even a husband’s single act of sexual intercourse with another woman is already a
ground for legal separation.

4. Attempt on the life of the other spouse must not be justified by self defense or
that the spouse attacked was caught in flagrante delicto having carnal knowledge with
another man or woman. Criminal conviction is not required as the attempt on the life of
another spouse may be proven by preponderance of evidence.

5. Lesbianism, homosexuality, drug addiction, and habitual alcoholism can only

be a ground for legal separation if they occur during the marriage . If said defects already
existed before the marriage and they were concealed from the other spouse, they could
be grounds for annulment of marriageas it would constitute fraud under paragraph 3 of
Article 45 in relation to Article 46, paragraph 4
. Homosexuality and lesbianism can also
be a ground to declare the marriage void under Article 36 if it existed before the marriage
, anchored on psychological causes, and both grave and incurable.

B. Defenses in Legal Separation:

Art. 56- The petition for legal separation shall be

denied on any of the following grounds:
1) Where the aggrieved party has condoned the
offense or act complained of;
2) Where the aggrieved party has consented to the
commission of the offense or act constituting the
grounds for legal separation;
3) Where there is connivance between the parties in
the commission of the offense or act constituting
the ground for legal separation;
4) Where both parties have given ground for legal
separation;
5.) Where there is collusion between the parties to
obtain the decree of legal separation; or
6.) Where the action is barred by prescription. (100a)

Art. 57- An action for legal separation shall be filed

within five years from the time of the occurrence of the cause.
(102a)

!+$
 NOTES

1. An action for legal separation can be dismissed by the court if any of the grounds
enumerated in Article 56 is present. These grounds are as follows: condonation, consent,
connivance, recrimination, collusion, and prescription.

2. Condonation is an act of forgiving and is given after the fact, whileconsent is

given before the commission of the act that gives rise to the ground for legal separation.
Connivance when the spouse participated in the downfall of the other as by providing actively
the opportunity for the wrong doing directly or indirectly.Recrimination means that both parties
are at fault or have given ground for legal separation. Collusion refers to an arrangement
between the spouses to obtain a decree of legal separation by secret maneuvers or pretensions
by making it appear that a valid ground exists even if there is none.Prescription means the
loss or extinction of the right to file an action due to the lapse of time fixed by the law.

3. The prescriptive period for bringing an action for legal separation is five years
from the occurrence of the cause . Under the Civil Code, there used to be a two- decked
prescriptive period, that is – within one year from the discovery of the ground but in no case
more than five years from the occurrence of the cause. The new Family Code has simplified this
matter now by providing for only one method of prescription.

4. The court can take judicial notice of prescription . If prescription is apparent from
the allegations in the complaint for legal separation, the court can dismiss it motu proprio. Thus,
even if prescription is not interposed as a defense but it becomes manifest after trial, the court
may still dismiss the complaint motu proprio (Brown vs. Yambao, 102 Phil. 168).

C. Procedures:

Art. 58- An action for legal separation shall in no case

be tried before six months shall have elapsed since the filing
of the petition. (103a) (cooling-off period)

Art. 59- No legal separation may be decreed unless the

court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (n)

Art. 60- No decree of legal separation shall be based

upon a stipulation of facts or a confession of judgement.

In or
attorney anyfiscal
case,assigned
the court
to shall
it to order the prosecuting
take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (101a)

!+%
 Art. 61- After the filing of the petition for legal
separation, the spouses shall be entitled to live separately
from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal
partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a
guardian under the Rules of Court. (104a)

Art. 62- During the pendency of the action for legal

separation, the provisions of Article 49 shall likewise apply to
the support of the spouses and the custody and support of
the common children. (105a)

NOTES

1. After the filing of the complaint for legal separation, the court will issue summons
and require the defendant to file his/her answer within fifteen (15) days from receipt of the
summons and the complaint. If no answer is filed, the court shall order the assigned fiscal
to investigate and determine whether or not there is collusion between the parties . The
court cannot declare the defendant in default on motion of the plaintiff despite the fact that
he/she failed to file an answer (Macias vs. Judge Ochotorena, July 30, 2004). If the defendant
filed an answer, the fiscal is still required by law to intervene and conduct his own investigation
to determine the presence or absence of collusion and to see to it that the evidence is not
fabricated or suppressed. After conducting an investigation, the fiscal is mandated by law to
make a report to the court on the result of his investigation. If there appears to be no collusion,
the fiscal will submit a report of no collusion to the court.

2. The fiscal must actively participate in the proceedings for legal separation .
However, if the legal separation case was vehemently opposed and heatedly contested by the
defendant, the non-intervention of the fiscal or prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of the proceedings in court. The fact
that the litigation is characterized by a no-holds barred contest is indicative of no
collusion. These kinds of situation do not call for the strict application of Articles 48 and 60 of
the Family Code (Tuason vs. Court of Appeals, 256 SCRA 158).

3. Before the court will commence the hearing of the case, it should allow a―six
months cooling off period” to elapse from the filing of the complaint. This isintended to give

the parties
of time to enough
aid themtime
in to further
the contempla
process. The sixte months
their positions and
period is allow the
imposed to healing
give them balm
the
opportunity for dispassionate reflection, for during this period, there is the possibility that the

!+&
smouldering ember of emotion and the passion of the parties may subside by the persuasive
intervention of well-meaning friends and members of the family.

4. The six-month cooling-off period is a mandatory requirement and its non-

compliance renders the decision infirm. Thus, in the case of Pacete vs. Carriaga, 231 SCRA
321, the Supreme Court ruled that failure to observe the six-month cooling-off period is a ground
to set aside a decision granting legal separation.However, what is prevented from being
heard during the six-month period is only the hearing of the case on the merits . It does
not involve the hearing of other incidents such as the custody of the minor children, support
pendente lite and alimony. Also, the court may entertain a prayer for injunction within the said
period or even a motion to dismiss. It must be noted, however, that the six-months cooling
off period is required only in legal separation and not in annulment of marriage or
declaration of nullity of a void marriage.

5. No decree of legal separation may be issued unless the court has taken steps
towards the reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. Likewise, the court cannot render judgment on the
basis of stipulation of facts or confession of judgment . However, in the case of Ocampo vs.
Florencio, 107 Phil. 35, the Supreme Court ruled that even if the wife has admitted the
adultery in the legal separation case filed against her by her husband, the decision
granting legal separation may still stand if there is evidence of adultery independently of
such statement. The decree issued is still valid since it is not based on the confession by the
defendant wife, but upon evidence presented by the plaintiff.What the law prohibits is a
judgment based exclusively or mainly on defendant’s confession.

6. After the filing of the petition for legal separation, the parties are already
entitled to live separately from each other. In the absence of a written agreement between
the spouses, the administration of the absolute community or conjugal partnership property shall
be decided by the court. If neither of the party is fit to administer it, the court may appoint a third
person to manage the community properties. The administrator appointed by the court shall
have the same powers and duties, as those of a guardian under the Rules of Court. During the
pendency of the action for legal separation, the support of the parties and their common children
shall be taken from the absolute community or conjugal partnership. If the court awards the
custody of their minor children to one spouse, the other spouse should be given visitorial rights.
Death of a party extinguishes a pending action for legal separation.

D. Effects of the Decree of Legal Separation:

Art.
followin 63- The decree of legal separation shall have the
g effects:

!+'
 1) The spouses shall be entitled to live separately
from each other, but the marriage but the marriage
bond shall not be severed;
2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of
Article 43(2);
3) The custody of the minor children shall be awarded
to the innocent spouse, subject to the provisions
of Article 213 of this Code; and
4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent spouse
shall be revoked by operation of law. (106a)

Art. 64- After the finality of the decree of legal

separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as a beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the
properties are located. Alienations, liens and encumbrances
registered in good faith before the recording of the complaint
for revocation in the registries of property shall be respected.
The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written
notification thereof to the insured.
The action to revoke the donation under this Article
must be brought within five years from the time the decree of
legal separation has become final. (107a)

NOTES
1. The decree of legal separation does not dissolve the marriage . Even if the
husband and wife are already living separately from each other, the marriage bond is not
severed. Thus, a spouse can still be held criminally liable for bigamy if he/she contracts

.
another marriage or for adultery or concubinage if he or she commits the act
2. The absolute community of property or the conjugal partnership shall be
dissolved and liquidated. The offending spouse shall have no right to any share of the net

!+(
profits earned by the absolute community or conjugal partnership. The share of the net prof its of
the offending spouse shall be forfeited in favour of the common children, or if there be none, the
children of the guilty spouse in the previous marriage or, in default thereof, the innocent spouse
(Article 43, par 2). The net profit refers to the increase in value between the market value of the
community property at the time of the celebration of the marriage and the market value at the
time of its dissolution (Article 102 par.4).

3. Custody of the minor children shall be awarded to the innocent spouse, subject to
the provisions of Article 213 of the Family Code. This means that the court may even deprive
the innocent spouse of the custody of the child if the court finds the said spouse to be
unfit to take care of the child. The court may even award the custody of the child to a third
person as the paramount consideration here is the best interest of the child.

4. The offending spouse shall be disqualified to inherit from the innocent spouse by
intestate succession. Furthermore, if the innocent spouse has instituted the offending spouse as
a beneficiary in his last will and testament, the same is automatically revoked by operation of
law.

5. Once the decree of legal separation becomes final, the innocent spouse may or may
not revoke the donations made by him or her in favour of the offending spouse, or he may or
may not revoke the designation of the offending spouse as a beneficiary in any insurance policy,
even if such designation is irrevocable. Unlike in the case of annulment where the institution of
the offending spouse as an heir in the will of the innocent spouse is revoked by operation of law,
the revocation here of the donation and the insurance policy must be done at the instance of the
innocent spouse. The revocation of the donations shall be recorded in the registry of property of
the place where the properties are located. However, alienations, liens and encumbrances
registered in good faith before the revocation shall be respected. In case of the revocation of the
designation of the offending spouse in the insurance policy, the same shall take effect only after
written notification thereof to the insured.The action to revoke the donation prescribes after
five years from the time the decree of legal separation has become final.

E. Effects of Reconciliation:

Art. 65- If the spouses should reconcile, a

corresponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceeding for
legal separation. (n)

Art. 66- The reconciliation referred to in the preceding

article shall have the following consequences:

1) shall
The legal separation
thereby proceedings,
be terminated if still
in whatever pending,
stage; and
2) The final decree of legal separation shall be set
aside, but the separation of property and any

!+)
 forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
revive their former property regime.

The court’s order containing the foregoing shall be

recorded in the proper civil registries. (108a)

Art. 67- The agreement to revive the former property

regime referred to in the preceding article shall be executed
under oath and shall specify:
1) The properties to be contributed anew to the
restored regime;
2) Those to be retained as separate properties ofeach
spouse; and
3) The names of all their known creditors, their
addresses and the amounts owing to each.

The agreement of revival and the motion for its

approval shall be filed with the court in the same proceeding
for legal separation, with copies of both furnished to the
creditors named therein. After due hearing , the court shall, in
its order, take measures to protect the interest of creditors
and such order shall be recorded in the proper registries of
property.

The recording of the order in the registries of property

shall not prejudice any creditor not listed or not notified,
unless the debtor-spouse has sufficient separate properties
to satisfy the creditor’s claim. (195a, 108a)

NOTES

1. Should the spouses reconcile during the pendency of the action for legal separation
or even after the decree has been issued, they must file a joint manifestation of
reconciliation in the court which tried the case. If the case is still pending, it shall be
terminated in whatever stage. If the decree has already been issued, it shall be set aside .
However, the separation of property and any forfeiture of the share of the guilty spouse already
effected by the decree shall subsist. The court‟s order containing the reconciliation of the parties
must be recorded in the proper office of the local civil registrar.

2. The partiesThe
before the separation. maysaid
agree to revive
agreement thebeformer
must property
executed regime
under oath andthat
shallbinds them
specify the
following: (1.) Properties to be contributed anew to the restored regime, (2.) Those to be
retained by either spouse as their separate properties, and (3.) the names of their respective

!+*
creditors, their addresses and the amounts owing to each. The agreement of revival must be in
writing and attached to the motion to be filed in court trying the legal separation case. Creditors
of both parties must be duly notified of the said motion by furnishing them copies of
both the agreement and the motion. Once the court approves the agreement and the motion
after due hearing, the order of the court must be recorded in the proper registries of properties.
Those creditors that were not listed or not notified shall not be prejudiced by the recording of the
order in the proper registries.

3. The Family Code allows the reconciling spouses to revive their srcinal property
regime after its dissolution by the legal separation. However, theNew Rules on Legal
Separation, which is known as Supreme Court En Banc Resolution A.M. No. 02-11-12,
promulgated by the Supreme Court on March 15, 2003 (Please refer to Appendix “B ), allows
the spouses to adopt another regime of property relations different from that which they
had prior to the filing of the petition for legal separation (see: Sections 23(e) and 24 of the
Rule). This new rule conflicts with the provision of the Family Code considering that the said
Code did not allow the use of another property regime after the reconciliation.It is submitted
that the new Rules cannot amend the provisions of the Family Code as the latter is a
substantive law while the former is merely procedural. It is an elementary rule that in
case of conflict the Family Code which is the substantive law should prevail . Moreover,
allowing the use of another property regime after reconciliation may result to a violation of
Articles 88 and 107 of the Family Code which provide that the absolute community of property
regime and the conjugal partnership of gains shall commence only at the precise moment of the
celebration of the marriage. Any stipulation, express or implied, for the commencement of either
the absolute community or the conjugal partnership at any time other than at the precise
moment of the celebration of the marriage shall be void.

TITLE III

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

A. Essential Marital Obligations

Art. 68- The husband and wife are obliged to live

together, observe mutual love, respect and fidelity, and
render mutual help and support. (109a)

Art. 69- The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living

with the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption.

!!+
 However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (110a)

Art. 70- The spouses are jointly responsible for the

support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or
fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be
satisfied from their separate properties. (111a)

Art. 71- The management of the household shall be the

duty of both spouses. The expenses for such management
shall be paid in accordance with the provisions of Article 70.
(115a)

Art. 72- When one of the spouses neglects his or her

duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to the family,
the aggrieved party may apply to the court for relief. (116a)

Art. 73- Either spouse may exercise any legitimate

profession, occupation, business or activity without the
consent of the other. The latter may object only on valid,
serious, and moral grounds.

In case of disagreement, the court shall decide

whether or not:

1.) The objection is proper, and

2.) Benefit has accrued to the family prior to the

objection or thereafter. If the benefit accrued prior to the
objection, the resulting obligation shall be enforced against
the separate property of the spouse who has not obtained
consent.

The foregoing provisions shall not prejudice the rights

of creditors who acted in good faith. (117a)

NOTES

1. Husband and wife are obliged to live together under one roof, observe mutual love,
respect and fidelity, and render mutual help and support.These marital obligations are very
essential that failure of a spouse to perform these obligations due to psychological
causes could be considered a ground to nullify the marriage under Article 36 of the
Family Code. Procreation is one of the essential marital obligations, thus, failure of a

!!!
spouse to comply with such obligation due to psychological reason could be a ground to
nullify the marriage (Chi Ming Tsoi vs. Court of Appeals, 266 SCRA 324). Also, if a spouse
who cannot maintain the vow of fidelity because he/she is anymphomaniac or satyriasis,
a form of psychological incapacity that prevents the party concerned from complying
with the said essential marital obligation, the marriage can be declared null and void
under Article 36 of the Family Code.

2. The court, however, cannot compel a spouse to live with the other spouse if
the latter does not want to as the said duties are highly personal . It is not within the
province of the courts of this country to attempt to compel one of the spouses to cohabit with
and render conjugal rights to the other. It has been held that the wife‟s domestic assistance and
conjugal companionship are purely personal and voluntary acts which neither the spouses may
be compelled to render (Arroyo vs. Arroyo, 42 Phil. 54).

3. Should a spouse refuses to live with the other spouse under one roof without
justifiable cause, the latter’s remedy is to deny the said spouse support or file an action
for damages against her. Thus, a wife who abandons her husband and secures an invalid
divorce abroad can be held liable for damages under Articles 19, 20, or 21 of the Civil Code
(Tenchavez vs. Escano, 15 SCRA 355).

4. A husband cannot force his wife to have sex with him during the pendency,
much more after the decree of legal separation is granted, otherwise he can be sued for
rape. Under Republic Act 8353, a husband can be charged for raping his wife . The said law
has now reclassified rape from crimes against chastity to crimes against person. However, if the
wife has later on forgiven the husband, the criminal liability is extinguished provided that their
marriage is not void ab initio.

5. Husband and wife are now jointly responsible for fixing the family domicile
(Art. 69), support of the family (Art. 70), and management of the household (Art. 71). In
case of disagreement between them as to where they should reside, the court shall decide. A
spouse may be exempted from living with the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. The domicile is the place where the
parties intend to have their permanent residence with the intention of always returning even if
they have left it for some time. Expenses for the support of the family shall be taken from
the community property and, in the absence thereof, from the income or fruits of their
separate properties. Should the income or fruits of the separate properties of either spouse be
not sufficient, then it shall be taken from their respective exclusive properties.

6. A spouse has the obligation to protect the family from danger or harm . When
said spouse neglects to perform his/her duties to the conjugal union or commits acts which tend
to bring danger, dishonour, or injury to the other spouse or to the family, the aggrieved party

may apply for appropriate relief from the court, such as injunction or legal separation. It is
submitted that the relief may even include the declaration of nullity of marriage on the
ground of psychological incapacity of the said spouse if his inability to perform this
essential marital obligation is chronic and hinges on psychological causes (Art. 72).

!!#
 7. A spouse may exercise his/her profession, occupation or business without the
consent of the other. However, if there are valid, serious and moral grounds, the other spouse
may object and the court will decide.If benefits accrued prior to the objection, the resulting
obligation shall be enforced against the community property. If benefits accrued
thereafter, such obligation shall be enforced against the separate property of the spouse
who has not obtained consent.

Title IV

PROPERTY RELATIONS BETWEEN

HUSBAND AND WIFE

Chapter 1

GENERAL PROVISIONS

A. Marriage Settlement

Art. 74 - The property relations between husband and

wife shall be governed in the following order:

1.) By marriage settlements executed before the

marriage;

2.) By the provisions of this Code; and,

3.) By the local customs. (118)

Art. 75 - The future spouses may, in the marriage

settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of marriage
settlement, or when the regime agreed upon is void, the
system of absolute community of property as established in
this Code shall govern. (119a)

Art. 76 - In order that any modification in the marriage

settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136. (121)

!!$
 Art. 77 - The marriage settlements and any
modification thereof shall be in writing, signed by the parties
and executed before the celebration of the marriage. They
shall not prejudice third persons unless they are registered in
the local civil registry where the marriage contract is
recorded as well as in the proper registries of property. (112a)

NOTES

1. A marriage settlement is an agreement entered into by parties about to be married

for the purpose of fixing the terms and conditions of their property relations during the marriage.
It is more popularly known as Prenuptial Agreement. Being a contract, it is governed by the
law on contracts, particularly the provision that the parties may establish such stipulations,
clauses, terms and conditions as they deem convenient and proper, provided they are not
contrary to law, morals, good customs, public order, or public policy (Art. 1306 NCC).

2. The property relation of the husband and wife during the marriage is primarily
governed by their marriage settlement, if there is one. In the absence of a marriage
settlement, the provision of the Family Code will apply stating that the regime of absolute
community of property will automatically govern . If there is no marriage settlement and the
Family Code cannot apply, then the local customs will govern the property relation of the
parties to the marriage.

3. The property regime that the parties may use in the marriage settlement may be :
(a.) Absolute Community of Property regime; (b.) Conjugal Partnership of Gains; and (c.)
Complete Separation of Property regime. The parties may also enter into a modified
regime or a combination of any of the aforementioned regimesprovided the terms and
conditions thereof are not contrary to law, morals, good customs and public policy.

4. A marriage settlement must be in writing, signed by the parties, and executed

before the celebration of the marriage. In order to bind third persons it must be
registered in the Office of the Local Civil Registrar as well as in the proper Registry of
Deeds. If not registered, third persons who deal with either or both spouses have the right to
presume that they are governed by the absolute community of property regime.

5. Any modification in the marriage settlement must be in writing and made

before the marriage. Once the parties have agreed on a property regime in their marriage
settlement, the same could no longer be changed or modified during the marriage except in
Articles
those instances provided for by Articles 66, 67, 128, 135 and 136 of the Family Code.
66 and 67 of the Family Code refer to the revival of the former property regime due to the
reconciliation of spouses after the legal separation.Articles 128, 135, and 136 on the other

hand refer to theofseparation

The separation of property
the property could beduring
basedthe
onmarriage with proper
a valid cause or by intervention of the court.
voluntary agreement of
the parties. At all instance, however, there must be court approval of the change of property
regime during the marriage, whether it is for a cause or without a cause.

!!%
B. Persons who must give consent

Art. 78 - A minor who according to law may contract

marriage may also execute his or her marriage settlements,
but they shall be valid only if the persons designated in
Article 14 to give consent to the marriage are made parties to
the agreement, subject to the provisions of Title IX of this
Code. (120a)

Art. 79 - For the validity of any marriage settlements

executed by a person upon whom a sentence of civil

interdiction has been pronounced or who is subject to any
other disability, it shall be indispensable for the guardian
appointed by a competent court to be made a party thereto.
(123a)

NOTES

1. The marriage settlement must be signed by the parties themselves or their

guardians. Article 78 is no longer applicable now as it has already been repealed by R.A. 6809
which lowered the age of majority from 21 to 18 years old. Prior to R.A. 6809 which took effect
in 1989, the age majority was 21 years old but an 18 years old can already contract marriage.
Thus, those between 18 to 21 years of age are considered minors but capacitated to marry.
These are the persons being referred to in Article 78 of the Family Code which requires the
assistance of their parents if they enter into marriage settlement. Since the age of majority now
has already been lowered by R.A. 6809 from 21 to 18, and the marriageable age under the
Family Code is also 18 years old, then there are no more minors who can enter into marriage.

2. When a party to the marriage settlement is suffering from civil interdiction or any
other disability, it shall be necessary that his/her legal guardian will also sign the marriage
settlement in order to make it valid. Civil interdiction is an accessory penalty to a crime which
carries a penalty of reclusion perpetua and reclusion temporal.It deprives the offender during
the time of his sentence of the rights of parental authority, or guardianship, either as to
the person or property of any ward, of marital authority, of the right to manage his
property, and of the right to dispose of such property by any act or any conveyance inter
vivos.

C. Law governing marriage settlement

Art. 80 - In the absence of a contrary stipulation in a

marriage settlement, the property relations of the spouses
shall be governed by Philippine laws, regardless of the place
of the celebration of the marriage and their residence.

This rule shall not apply:

!!&
 1.) Where both spouses are aliens;

2.) With respect to the extrinsic validity of contracts

affecting property not situated in the Philippines and
executed in the country where the property is located;
and

3.) With respect to the extrinsic validity of contracts

entered into the Philippines but affecting property
situated in a foreign country whose laws require

different formalities for its extrinsic validity. (124a)

NOTES

1. The marriage settlement is governed by Philippine law if both parties are

Filipinos, regardless of the place of the celebration of the marriage and their residence .
This is so because if the parties are Filipinos they will be governed by Philippine laws even if
their marriage was celebrated abroad (nationality theory). However, this rule will not apply when
both parties are aliens OR when the issue involves the extrinsic validity of the contract entered
into abroad and the property involved is also located in the country where the marriage
settlement was executed.

D. Effect of non celebration of marriage

Art. 81
contracts - Everything
referred to instipulated in the settlements
the preceding articles or
in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place. However,
stipulations that do not depend upon the celebration of the
marriage shall be valid. (125a)

NOTES

1. If the marriage upon which the marriage settlement is entered into did not
materialize, the marriage settlement will be rendered void.However, if the stipulation in
the marriage settlement is not dependent on the celebration of the marriage, the same
shall be considered valid. For example, if the man recognizes the child of the woman as
his own child and he promised to support the said child in their marriage settlement, the
said stipulation in the marriage settlement will remain valid even if their marriage did not
push through. Thus, the recognition of the child by the man shall not be affected by the failure
of the marriage to materialize.

!!'
 Chapter 2

DONATIONS BY REASON OF MARRIAGE

A. Donations Propter Nuptias

Art. 82 - Donations by reason of marriage are those

which are made before its celebration, in consideration of the
same, and in favour of one or both of the future spouses.
(126)

Art. 83 - These donations are governed by the rules on

ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
Articles. (127a)

Art. 84 - If the future spouses agree upon a regime

other than the absolute community of property, they cannot
donate to each other in their marriage settlements more than
one-fifth of their present property. Any excess shall be
considered void.

Donations of future property shall be governed by the

provisions on testamentary succession and the formalities of
wills. (130a)

subjectArt.to85encumbrances
- Donations by reason
shall beof marriage
valid. Inof case
property
of
foreclosure of the encumbrance and the property is sold for
less than the total amount of the obligation secured, the
donee shall not be liable for the deficiency. If the property is
sold for more than the total amount of said obligation, the
donee shall be entitled to the excess. (131a)

NOTES

1. Donations by reason of marriage is also known as DonationPropter Nuptias. It

has three essential elements and they are: (a.) It is a donation made before the celebration of
the marriage, (b.) It is made in consideration of the marriage, and (c.) It is made in favour of
either or both parties to the marriage.

2. Donations propter nuptias are governed by the rules on ordinary donations found in
Title III of Book III of the Civil Code.Hence, to be valid the donee must accept the donation
personally, or through an authorized person (Art. 745 NCC) and that the acceptance must
be made during the lifetime of the donor and the donee (Art. 746 NCC).

!!(
 3. The donation propter nuptias can be made by one party in favour of the other
party to a forthcoming marriage or it could be made by any person in favor of either or
both parties to the marriage. A donation of an immovable property must be made in a
public document to be valid, while a donation of a movable property may be done orally
or in writing. However, if the value of the personal property donated exceeds five thousand
pesos, the donation and the acceptance shall be made in writing; otherwise, the donation shall
be void (Art. 748 NCC).

4. The donation made by one party in favour of the other may be incorporated in the
marriage settlement executed by them before the celebration of their marriage or it could be
done in a separate document (ie.Deed of Donation).If the donation is contained in the
marriage settlement and the parties have agreed to be governed by a regime other than
the absolute community of property, there is a limitation ofnot more than one-fifth of
their present property that a spouse can donate to the other.This means that if the future
husband will donate to his future wife some of his exclusive properties before the celebration of
their marriage, and the donations are incorporated in the marriage settlement where the
property regime they have chosen is the conjugal partnership or complete separation of
property regime, he cannot donate more than one-fifth of his/her present property. The alleged
reason for the prohibition is that a marriage settlement is a contract and therefore a product of
negotiation and during the negotiation thepossibility of one party exerting pressure and
undue influence on the other is a great possibility which the law must try to limit . Thus, if
the donation is made in a separate Deed of Donation and not incorporated in the
marriage settlement, the “not more than one -fifth limitation” will not apply because the
possibility of undue influence attendant in the negotiation of a marriage settlement is
generally absent in an ordinary donation.

5. Donation propter nuptias of property subject to encumbrance shall be valid but

the donee’s rights are subject to the encumbrance . Thus, if the donor fails to pay the
obligation secured by a mortgage on the property donated, the mortgagee may foreclose the
mortgage. If there is a deficiency after the foreclosure, the donee spouse cannot be held liable
for the deficiency. But, if the property foreclosed is sold for more than the value of the obligation,
the excess should be given to the donee spouse.

B. Revocation of Donation propter nuptias

Art. 86 - A donation by reason of marriage may be

revoked by the donor in the following cases:

1.) If the marriage is not celebrated or judicially

declared void ab initio except donations made in the
marriage settlements, which shall be governed by

Article 81;
2.) When the marriage takes place without the consent
of the parents or guardian, as required by law;

!!)
 3.) When the marriage is annulled, and the donee acted
in bad faith;

4.) Upon legal separation, the donee being the guilty

spouse;

5.) If it is with a resolutory condition and the condition

is complied with;

6.) When the donee has committed an act of

ingratitude as specified
Code on donations by the(132a)
in general. provisions of the Civil

NOTES

1. Donations by reason of marriage may be revoked by the donor if the marriage

did not materialize or it was later on declared null and void by the court . The word used in
this article is may, so the revocation is not by operation of law. The donor has the option to
revoke or not the donation made but there must first be a judicial declaration of nullity of
marriage before the donor could exercise the right of revocation. However, there are instances
where the judicial declaration of nullity of marriage will result to the automatic revocation of the
donation made. One of this is the void marriage under Article 40 in relation to Article 50 .
The revocation of the donation propter nuptias made by the innocent spouse to the guilty
spouse in a void marriage under Articles 40, 42 and 44 shall be by operation of law as provided
in Article 43 (3). The Family Code does not provide for the prescriptive period within which the
action for revocation of the donation propter nuptias can be filed. Thus, Article 1149 of the
Civil Code which provides that all actions whose periods are not fixed in this Code or in
any other laws must be brought within five (5) years from the time the right of action
accrues may apply.

2. When the marriage takes place but is later on annulled because one of the party
who is between the ages of 18 to 21 does not secure the required parental consent, the donor
may revoke the donation propter nuptias made in favour of the parties to the marriage. The
donor has five years, from the time he learns that the needed parental consent was not
obtained, to revoke the donation.

3. When the marriage is annulled, and the donee acted in bad faith, the donation made
by the innocent spouse in favour of the guilty spouse may be revoked (Article 86 par. 3). There
seems to be a conflict between this provision (Art. 86 par. 3) and Article 50 in relation to Article
43 (3) of the Family Code because in the latter provision the revocation is by operation of law
while in Article 86 (3) the revocation is discretionary on the donor.It is submitted that Article
86 (3) shall prevail over Article 50 as it is the provision last in the order of position in the
same statute.

4. In case of legal separation, donation made in favour of the guilty spouse may
be revoked by the donor. It must be noted that legal separation does not dissolve the

!!*
marriage; hence, there is still a possibility that the spouses may reconcile. This is why the donor
may or may not revoke the donation. The period to file the action for revocation is five years
from the finality of the decree of legal separation.

5. If the donation is subject to a resolutory condition and the condition is

complied with, the donor may also revoke the donation . The happening of the future or
uncertain events which constitutes the resolutory condition will extinguish the right or the
obligation. Thus, if the parents of the bride donated a parcel of land to the groom subject
to the condition that he will not again drink beer and the condition was later on violated
by the donee, the donor may revoke the donation.

6. Lastly, any act of ingratitude committed by the donee as provided in Article 765 of
the Civil Code can be a ground for the revocation of the donation.

C. Prohibition of Donation during the marriage

Art. 87 - Every donation or grant of gratuitous

advantage, direct or indirect, between the spouses during the
marriage shall be void, except moderate gifts which the
spouses may give each other on the occasion of any family
rejoicing. The prohibition shall also apply to persons living
together as husband and wife without valid marriage. (133a)

NOTES

1. Donation between husband and wife is prohibited during the marriage. The

prohibition applies also to those who are living together as husband and wife without a
valid marriage. The reason for this prohibition was explained by the Supreme Court in the case
of Matabuena vs. Cervantes, 38 SCRA 284, when it said that if the reason for prohibiting
husband and wife from donating to each other is because of the fear of undue influence, then
there is more reason to prohibit those living together without a valid marriage as the possibility
of undue influence is even greater.

2. A sale of a property by the husband to his wife of a subsequent bigamous marriage

for the purpose of removing the property from the effects of Article 148 of the Family Code is not
valid as the conveyance of the property was not considered by the Supreme Court as sale but a
donation which is prohibited by Article 87 of the Family Code. In this case the bigamous wife
was still 22 years old and the lawyer who prepared the Deed of Sale testified that it was the
husband who provided the money for the purchase price and directed him that the name of the
wife be placed as the buyer(Agapay vs. Palang, 276 SCRA 341).

3. Either spouse may, however, donate to each other some gifts during the
marriage provided it is considered as moderate gifts given on the occasion of any family
rejoicing.

!#+
 4. What the law prohibits is not only the giving of a donation but also the grant
of gratuitous advantage to the other spouse as in the case of a usufruct . Furthermore, the
prohibition applies to both direct and indirect donation. So, if the husband donates a
property to the father of the wife and the latter is the sole heir of the donee, the donation
is covered by the prohibition as it is a form of an indirect donation.

5. Only those who are directly prejudiced by the donation can assail the same .
Thus, an insurance company cannot question the validity of the donation made by the husband
to his wife as the said company has no relation to the parties and had no rights or interests
inchoate, present, remote, or otherwise, in the property in question at the time the transfer
occurred (Harding vs. Commercial Union Assurance Co., 38 Phil. 464).

Chapter 3

SYSTEM OF ABSOLUTE COMMUNITY

Section 1: General Provision

Art. 88 - The absolute community of property between

spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any other

time shall be void. (145a)

Art. 89 - No waiver of rights, interests, shares and
effects of the absolute community of property during the
marriage can be made except in case of judicial separation of
property.

When the waiver takes place upon a judicial separation

of property, or after the marriage has been dissolved or
annulled, the same shall appear in a public instrument and
shall be recorded as provided in Article 77. The creditors of
the spouse who made such waiver may petition the court to
rescind the waiver to the extent of the amount sufficient to
cover the amount of their credits. (146a)

Art. 90 - The provisions on co-ownership shall apply to

the absolute community of property between the spouses in
all matters not provided for in this Chapter. (n)

NOTES

!#!
 1. The Absolute Community of Property Regime shall commence at the precise
moment of the celebration of marriage. It cannot commence during the marriage. Thus, any
stipulation that the absolute community shall commence a year or two after the marriage is void.

2. The spouses cannot waive their rights, interests, shares and effects in the absolute
community during the marriage except in case of judicial separation of property. When judicial
separation takes place during the marriage, and a spouse waived his/her interest in the absolute
community in favour of another person, the waiver must be contained in a public document and
shall be recorded as provided in Article 77. Moreover, the creditors of the spouse who made
such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to
cover the amount of their credits. Lastly, the provision on co-ownership shall govern the
spouses under the absolute community of property regime.

Section 2

WHAT CONSTITUTES COMMUNITY PROPERTY

Art. 91 - Unless otherwise provided in this Chapter or

in the marriage settlements, the community property shall
consist of all the property owned by the spouses at the time
of the celebration of the marriage or acquired thereafter.
(197a)

Art. 92 - The following shall be excluded from the

community property:
1.) Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as well
as the income thereof, if any, unless it is expressly
provided by the donor, testator or grantor that they
shall form part of the community property;

2.) Property for personal and exclusive use of either

spouse. However, jewelry shall form part of the
community property;

3.) Property acquired before the marriage by either

spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any,
of such property. (201a)

Art. 93 - Property acquired during the marriage is

presumed to belong to the community, unless it is proved
that it is one of those excluded therefrom. (160a)

!##
 NOTES

1. The absolute community of property regime comprises all property owned by the
spouses before the marriage and those that they acquire during the marriage including the fruits
thereof. As a general rule, all property that each spouse owned before the marriage shall
automatically be considered as part of the absolute community upon the celebration of the
marriage. This is the rule regardless of how these properties were acquired before the marriage
except if they were expressly excluded in the marriage settlement or by the provision of the
Family Code. All properties acquired during the marriage are presumed to belong to the
absolute community, unless proven that it is one of those excluded therefrom.

2. There are four types of properties that are excluded from the absolute community of
property regime and they are as follows:

a.) Those acquired during themarriage by gratuitous title, including the

fruits as well as the income thereof;
b.) Those for personal and exclusive use of either spouse except jewelry;
c.) Those acquired before the marriage by either spouse who has a legitimate
descendant by a former marriage;
d.) Those that were expressly excluded in the marriage settlement.

3. Property acquired during the marriage using the exclusive money of a spouse shall
become part of the absolute community because there is no provision in the chapter on
absolute community similar to Article 109 (4) in conjugal partnership. Thus, if an exclusive
property of a spouse is sold during the marriage, the proceeds of the sale may remain as an
exclusive fund of the said spouse. However, if he/she used the money to buy another property,

the said
was property
acquired bought
during the shall already
marriage. belaw
This considered as absolute
may appear community
to be very property
unfair, but because
it is the it
intent of
the framers of the Family Code to make the husband and the wife one in all respect and foster
the essential unity of the family.

Section 3

CHARGES UPON AND OBLIGATIONS OF THE

ABSOLUTE COMMUNITY

Art. 94 - The absolute community of property shall be

liable for:

1.) The support of the spouses, their common children

and legitimate children of either spouse; however, the

!#$
 support of illegitimate children shall be governed by
the provisions of this Code on Support;

2.) All debts and obligations contracted during the

marriage by the designated administrator-spouse for
the benefit of the community, or by both spouses, or
by one spouse with the consent of the other;

3.) Debts and obligations contracted by either spouses

without the consent of the other to the extent that the

family may have been benefited;

4.) All taxes, liens, charges and expenses, including
major or minor repairs, upon the community property;

5.) All taxes and expenses for mere preservation made

during marriage upon the separate property of either
spouse used by the family;

6.) Expenses to enable either spouse to commence or

complete a professional or vocational course, or other
activity for self-improvement;

7.) Antenuptial debts of either spouse insofar as they

have redounded to the benefit of the family;

8.) The value

spouses of what
in favor is donated
of their common orlegitimate
promised children
by both
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement;

9.) Antenuptial debts of either spouse other than those

falling under paragraph (7) of this Article, the support
of illegitimate children of either spouse, and liabilities
incurred by either spouse by reason of a crime or a
quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment
of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon
liquidation of the community; and

10.) Expenses of litigation between the spouses unless

the suit is found to be groundless.

!#%
 If the community property is insufficient to cover the
foregoing liabilities, except those falling under paragraph (9),
the spouses shall be solidarily liable for the unpaid balance
with their separate properties. (161a, 162a, 163a, 202a-205a)

Art. 95 - Whatever may be lost during the marriage in

any game of chance, betting, sweepstakes, or any other kind
of gambling, whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to the community
but any winnings therefrom shall form part of the community
property. (164a)
NOTES

1. The obligations and expenses that are chargeable to the absolute community of
property regime are enumerated in Article 94 of theFamily Code. Support of the spouses, their
common children and the legitimate children of either spouse in a previous marriage shall be
taken from the absolute community. However, support of the illegitimate child of a spouse shall
be taken from the separate property of the spouse concerned and not from the absolute
community. In case of absence or insufficiency of the exclusive property of the said spouse, the
absolute community shall provide the necessary support but it will be considered as advances
of the spouse concerned to be deducted from his/her share upon liquidation of the absolute
community.

2. All debts and obligations contracted by the spouse designated as the administrator
of the absolute community for the benefit of the family as well as debts incurred during the
marriage by the other spouse, provided it is with the knowledge and consent of the administrator
spouse, are chargeable to the absolute community. If the debt was incurred by one spouse
without the consent of the other spouse, it cannot be charged to the community. However, if the
said obligation redounded to the benefit of the family, the same can be charged to the
community but only up to the extent that the family may have been benefited.

3. Taxes, liens, charges and expenses for major and minor repairs of community
property are chargeable to the absolute community. Also, taxes, liens and charges on the
exclusive property of one spouse but is being used by the family can be charged to the
community. However, expenses for repair of the said exclusive property of the spouse is
chargeable to the community only if it is a minor repair or those necessary for the preservation
of the said property. If it is already a major repair, it has to be answered by the separate fund of
the owner spouse.

4. Expenses needed for a spouse to commence or complete a professional or

vocational
community. course,
Also, theorvalue
otherof activity
what is for self-improvement
donated is both
or promised by chargeable
spousestointhe absolute
favour of their
common children for the purpose of letting the latter finish a course can be charged to the
community.

!#&
 5. Antenuptial debts incurred by either spouse can be charged to the absolute
community only if the said debt redounded to the benefit of the family. If it did not redound to the
benefit of the family, the absolute community may answer said obligation but only if the spouse
concerned does not have sufficient separate funds to pay the obligation. In this case the
payment made by the community shall be considered as advances of the subject spouse to be
deducted later on from his/her share in the absolute community upon liquidation.

6. There are three personal obligations of a spouse that the absolute community may
be compelled to pay subject to the condition that the said spouse does not have sufficient
property or money to pay and that the same will be considered as advances of the spouse from
the absolute community. These obligations are: (a.) Antenuptial debt which did not redound to
the benefit of the family; (b.) Support of illegitimate children; and, (c.) Civil liability arising from
the crime committed.

7. If the community property is not enough to pay off all the obligations mentioned in
Article 94, the separate property of either spouse will have to answer for it and their liability is
solidary.

8. A spouse who gambles or engages in any game of chance or betting shall bear the
losses and he can not charge it to the absolute community. However, if he wins, the winnings
will become part of the community.

Section 4

OWNERSHIP,
AND ADMINISTRATION,
DISPOSITION ENJOYMENT
OF THE COMMUNITY PROPERTY

Art. 96 - The administration and enjoyment of the

community property shall belong to both spouses jointly. In
case of disagreement, the husband’s decision shall prevail,
subject to recourse to the court by the wife for a proper
remedy, which must be availed within five years from the date
of the contract implementing such decision.

In the event that one spouse is incapacitated or

otherwise unable to participate in the administration of the
common properties, the other spouse may assume sole
powers of administration. These powers do not include the
powers of disposition or encumbrance which must have the

authority of the court or the written consent of the other

spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the

!#'
 part of the consenting spouse and the third person, and may
be perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (206a)

Art. 97 - Either spouse may dispose by will of his or

her interest in the community property. (n)

Art. 98 - Neither spouse may donate any community

property without the consent of the other. However, either

spouse may, without the consent of the other, make moderate

donations from the community property for charity or on
occasions of family rejoicing or family distress. (n)

NOTES

1. Husband and wife are co-owners of the absolute community property. As such, they
shall jointly manage or administer the same except when one delegated to the other spouse the
sole authority to administer the community property. When an action is filed involving a
community property, it is necessary that both the husband and wife will sign the verification and
certification of non-forum shopping in the complaint. However, if only one spouse signs the
verification the same could be considered substantial compliance of the re quirement as each of
the spouses may reasonably be presumed to have personal knowledge of the filing or non-filing
by the other spouse of the complaint(Docena vs. Lapesura, G.R. No. 140153, March 28, 2001).

2. In case of disagreement between the husband and the wife in the manner of
managing or administering the absolute community, the decision of the husband will prevail. But
this does not mean that the wife has no recourse as she can go to court and question the
decision of the husband within a period of five years from the date of the contract implementing
the decision.

3. In case one spouse is incapacitated or otherwise unable to jointly administer the

common properties, the other spouse may assume sole powers of administration. The
appointment of the spouse as the sole administrator can be done in a summary proceeding
under Article 253 of the Family Code. The inability or incapacity of a spouse to jointly administer
the community property which will entitle the other spouse to be appointed as sole administrator
in a summary proceeding under Article 253 could be due to the fact that the said spouse is
absent, has abandoned the other, or that they have been separated in fact. However, if the
inability of a spouse to jointly administer the community property is due to the fact that he is
already in the comatose stage, a victim of stroke or cerebrovascular accident, which makes him
“incompetent”, the proper remedy is a judicial guardianship proceeding under Rule 93 of the

Rules
Article of
253Court
of theand notCode
Family a summary proceeding
( Uy vs.Court for appointment
of Appeals, as sole
G.R. No. 109557, administrator
November under
29, 2000).

!#(
 4. The sole administration of the absolute community by one spouse does not include
the powers to dispose of or encumber the community property. The sole administrator spouse
cannot sell or encumber the common property without the consent of the other spouse or the
authority from the court. The sale of a community property by one spouse without the consent of
the other is null and void. However, although the sale is void it can be ratified later on if the non-
consenting spouse will give his/her consent or the court grants the required authorization. This
is so because the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors.

5. The action to annul a contract of sale executed by the husband without the consent
of the wife will not prescribe as the action to nullify a void contract is imprescriptible. However, if
the buyer of the property is a” buyer in good faith”, as in the case of a sale made by the
husband involving a property titled in his name alone as single, and the buyer merely relied on
what appears on the face of the title, the sale could no longer be nullified by the wife. The only
remedy of the wife is to compel the husband to account for the proceeds of the sale as it is part
of the absolute community of property. This rule will apply only if the buyer is not aware that the
seller is married as he merely relied on what appears in the title(PNB vs. Court of Appeals, 153
SCRA 435).

6. Under Article 173 of the Civil Code of the Philippines, a sale of a common property
by the husband without the consent of the wife is merely voidable and not void. The non-
consenting spouse has a period of ten years to annul the sale; otherwise, the action to annul
prescribes. The annulment of the sale does not only refer to the one half share of the plaintiff
but to the entirety of the contract. Under the Civil Code, consent of the wife to the sale of
conjugal property by her husband is required only if the said conjugal property was acquired
after the effectivity of the Civil Code in August 30, 1950. If it was acquired before the effectivity
of the Civil Code, consent of the wife is not required (Villaranda vs. Villaranda, G.R. No.
153447, February 23, 2004).

7. Either spouse cannot dispose of his/her interest in the absolute community during
the marriage because his/her share therein is merely inchoate and is not yet determinable until
the absolute community is dissolved. However, a spouse may dispose of his interest in the
community property but only through a will. This is allowed because the disposition in a will
does not take effect during the marriage but only upon death of the party disposing. However,
considering that the absolute community is a co-ownership, the spouse can only dispose of
his/her interest in the community property and not in a specific property.

8. A spouse cannot donate to a third person a community property without the consent
of the other spouse. The reason behind the prohibition is to protect a spouse from the reckless
and unreasonable act of generosity of the other spouse which may result to the diminution of
the common property to the damage and prejudice of the said spouse. However, if the donation
is merely a moderate gift given on occasion of family rejoicing or distress, or as a charity, the

!#)
donation is valid. Whether a donation is moderate or not depends upon the financial situation of
the spouses and the absolute community of property regime.

Section 5

DISSOLUTION OF ABSOLUTE COMMUNITY REGIME

Art. 99 - The absolute community terminates:

1.) Upon the death of either spouse;

2.) When there is a decree of legal separation;

3.) When the marriage is annulled or declared void; or

4.) In case of judicial separation of property during the

marriage under Articles 134 to 138. (175a)

Art. 100 - The separation in fact between husband and

wife shall not affect the regime of absolute community except
that:

!"# The spouse who leaves the conjugal home or

refuses to live therein, without justice cause, shall
not have the right to be supported;
$"#When the c onsent of one spouse to a ny
transaction of the other is required by law, judicial
authorization shall be obtained in a summary
proceeding;

%"# In the absence of sufficient community property,

the separate property of both spouses shall be
solidarily liable for the support of the family. The
spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to
administer or encumber any specific separate
property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter’s share. (178a)

Art. 101 - If a spouse without just cause abandons the

other
family,orthe
failsaggrieved
to comply with his
spouse mayor petition
her obligations to the
the court for
receivership, for judicial separation of property or for
authority to be the sole administrator of the absolute

!#*
 community, subject to such precautionary conditions as the
court may impose.

The obligations to the family mentioned in the

preceding paragraph refer to marital, parental or property
relations.

A spouse is deemed to have abandoned the other

when he or she has left the conjugal dwelling without
intention of returning. The spouse who has left the conjugal

dwelling for a period of three months or has failed within the

same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling. (178a)

NOTES

1. The following are the causes of the dissolution of the absolute community of
property regime:

a.) Death of either spouse

b.) Legal separation
c.) Annulment of marriage or declaration of nullity of marriage
d.) Judicial separation of property during marriage

2. A de facto separation of the husband and wife does not dissolve the absolute
community of property regime. The only effect of the separation in fact is that the spouse who
leaves the conjugal home without justifiable cause will not be entitled to support. If the consent
of the abandoning spouse is needed in a transaction involving a common property, judicial
authorization may be obtained in a summary proceeding. Lastly, the abandoned spouse may
petition the court for judicial authorization to administer or encumber any specific separate
property of the other spouse so that the proceeds thereof as well as its fruits can be used to
help defray the expenses in supporting the family.

3. If a spouse abandons the other without just cause or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for:

a.) Receivership
b.) Judicial separation of property
c.) Appointment as sole administrator of the absolute community

4. Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by a prolong absence without just cause. The spouse who has left the conjugal
dwelling for a period of three months or has failed within the same period to give any information
as to his or her whereabouts shall be prima facie presumed to have no intention of returning to
the conjugal dwelling.

Section 6
LIQUIDATION OF THE ABSOLUTE COMMUNITY

!$+
 ASSETS AND LIABILITIES

Art. 102 - Upon the dissolution of the absolute

community regime, the following procedure shall apply:

1.) An inventory shall be prepared, listing separately

all the properties of the absolute community and
the exclusive properties of each spouse;

2.) The debts and obligations of the absolute

community shall be paid out of its assets. In case
of insufficiency of said assets, the spouses shall
be solidarily liable for the unpaid balance with their
separate properties in accordance with the
provisions of the second paragraph of Article 94;

3.) Whatever remains of the exclusive properties of

the spouses shall thereafter be delivered to each of
them;

4.) The net remainder of the properties of the absolute

community shall constitute its net assets, which
shall be divided equally between husband and wife,
unless a different proportion or division was

agreed there
unless upon hasinbeen
the amarriage
voluntarysettlements, or
waiver of such
share as provided in this Code. For purposes of
computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value
between the market value of the community
property at the time of the celebration of the
marriage and the market value at the time of its
dissolution;

5.) The presumptive legitimes of thecommon children

shall be delivered upon partition, in accordance
with Article 51;

6.) Unless otherwise agreed upon by theparties, in the

partition of the properties, the conjugal dwelling
and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority
of common children choose to remain. Children

!$!
 below the age of seven years are deemed to have
chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the
court shall decide, taking into consideration the
best interests of the said children. (n)

Art. 103 - Upon the termination of the marriage by

death, the community property shall be liquidated in the
same proceeding for the settlement of the estate of the
deceased.

If no judicial settlement proceeding is instituted, the

surviving spouse shall liquidate the community property
either judicially or extra-judicially within one year from the
death of the deceased spouse. If upon the lapse of the said
period, no liquidation is made, any disposition or
encumbrance involving the community property of the
terminated marriage shall be void.

Should the surviving spouse contract a subsequent

marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of
property shall govern the property relations of the
subsequent marriage. (n)

Art. 104 - Whenever the liquidation of the community

properties of two or more marriages contracted by the same
person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of
each community shall be determined upon such proof as may
be considered according to the rules of evidence. In case of
doubt as to which community the existing properties belong,
the same shall be divided between or among the different
communities in proportion to the capital and duration of
each. (189a)

NOTES

1. Upon the dissolution of the absolute community of property regime due to any of the
grounds enumerated in Article 99 of the Family Code, liquidation shall take place as a matter of
right. Article 102 provides for the procedure to be observed in the dissolution of the absolute

community. The firstasstep

absolute community wellisastothe
conduct an or
separate inventory
exclusiveofproperties
all the properties or assetsAoflistthe
of either spouses. of
all the common property and a separate list of the exclusive property of either spouse must be
made. These properties must be itemized and correspondingly valued. Then, the debts and

!$#
obligations of the absolute community shall be paid out of its assets. In case the community
assets are not sufficient to pay off the debts, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. Whatever is left of their exclusive properties after paying
off all the creditors shall be returned to them. If the common properties are more than enough to
pay the absolute community obligations, the remainder shall be considered as the net assets to
be divided by the spouses. The net assets shall be divided equally by the husband and wife,
unless a different proportion or division was agreed upon in the marriage settlement.

2. The net profits of the absolute community of which the guilty spouse is not entitled
to a share pursuant to the provision of Article 43 par. 2 and Article 63 par. 2 refer to the increase
in value of the community property at the time of the celebration of the marriage and the market
value at the time of the dissolution. The share of the guilty spouse in the said net assets shall go
to their common children or, if there are none, the children of the guilty spouse by a previous
marriage or in default thereof, the share will go to the innocent spouse.

3. Before the net asset is divided by the husband and wife, their common children
must be given first their presumptive legitime pursuant to the provision of Article 51. The receipt
by the children of their presumptive legitime shall in no way preclude them from receiving their
ultimate successional rights upon the death of their respective parents.

4. In the partition, the conjugal dwelling shall be adjudicated to the spouse with whom
the majority of the common children choose to remain, unless otherwise agreed upon by the
parties. In case there is no such majority, the court shall decide, taking into account the best
interest of the children.

5. If the reason for the termination of the marriage is death of either spouse, the
liquidation of the absolute community shall be done in the same proceedings for the settlement
of the estate of the deceased. The surviving spouse must settle the estate of his/her deceased
spouse, either judicially or extra-judicially, within one year from the death of the deceased
spouse. Any disposition or encumbrance of a common property by the surviving spouse after
the death of the other spouse is null and void.

6. Upon the death of a spouse, the absolute community which has been dissolved by
the death of said spouse evolves into a co-ownership of the surviving spouse and their common
children (Marigsa vs. Macabuntoc, 17 Phil. 107). Thus, the surviving spouse cannot sell an
absolute community property except with the consent and conformity of the children.

7. Should the surviving spouse remarry without settling the estate of the deceased
spouse, the subsequent marriage will be automatically governed by the mandatory regime of
complete separation of property. This is the only exception to the rule that if a person marries
without a marriage settlement, the default regime of absolute community will govern. The

purpose
This ruleofserves
this rule
as is
a to preventto
limitation confusion
the rightofofthe
theproperties
parties tooffixthe firstproperty
their and second marriage.
relation in the
marriage settlement as stated in Article 1 of the Family Code.

!$$
 Chapter 4

CONJUGAL PARTNERSHIP OF GAINS

Section 1

General Provisions

Art. 105 - In case the future spouses agree in the

marriage settlements that the regime of conjugal partnership
of gains shall govern their property relations during marriage,
the provisions in this Chapter shall be of supplementary
application. (n)

The provisions of this Chapter shall also apply to

conjugal partnerships of gains already established between
the spouses before the effectivity of this Code without
prejudice to vested rights already acquired in accordance
with the Civil Code or other laws as provided in Article 256.
(n)

Art. 106 - Under the regime of conjugal partnership of

gains, the husband and wife place in a common fund the
proceeds, products, fruits and income from their separate
properties and those acquired by either or both spouses
through their efforts or by chance, and upon dissolution of
the marriage or of the partnership, the net gains or benefits
obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage
settlements. (142a)

Art. 107 - The rules provided in Articles 88 and 89 shall

also apply to conjugal partnership of gains. (n)

Art. 108 - The conjugal partnership shall be governed

by the rules on the contract of partnership in all that is not in
conflict with what is expressly determined in this Chapter or
by spouses in their marriage settlements. (147a)

NOTES

!$%
 1. Under the present law, the regime of conjugal partnership of gains can only apply it
there is a marriage settlement and it is the property regime agreed upon by the parties. This is
so because if there is no marriage settlement, it is the absolute community of property regime
that will automatically govern. Thus, this chapter on conjugal partnership is only applicable if the
parties to the marriage have agreed to be governed by it in a marriage settlement. The
application of this chapter is only suppletory because the property relation of the spouses will be
primarily governed by their marriage settlement. However, this chapter will also apply to those
marriages that were solemnized before the effectivity of the Family Code without a marriage
settlement because it is the default regime under the Civil Code.

2. As a general rule, only those properties acquired during the marriage through the
efforts or industry of either or both spouses as well as the income or fruits of their exclusive
properties that accrue during the marriage will comprise the conjugal partnership. Upon the
dissolution of the marriage or of the partnership, the net gains shall be divided between the
spouses equally, unless there is a different ratio of sharing stated in their marriage settlement.

3. Like the absolute community of property regime, the conjugal partnership of gains
shall also commence at the precise moment of the celebration of the marriage. It cannot
commence at any time during the marriage. Also, the spouses cannot waive their rights,
interests, shares or effects in the conjugal partnership during the marriage except in case of
judicial separation of property. In case a waiver is made resulting to a judicial separation of
property, the same must be in a public instrument and duly recorded in accordance with Article
77 of the Family Code. A creditor of the spouse may ask for the rescission of the waiver if it
prejudices him.

4. The rules on partnership in the Civil Code shall likewise apply to the conjugal
partnership in this Code. Thus, any stipulation which excludes the partners from any share of
the profits and losses of the partnership is void (Art. 1799 NCC). Every partner must account to
the partnership for any benefit, and hold as trustee for it, any profits derived from the use of any
partnership property (Art. 1807 NCC). A partner is a co-owner with his other partner of specific
partnership property (Art. 1811 NCC).

Section 2

EXCLUSIVE PROPERTY OF A SPOUSE

A. What are the exclusive properties:

Art. 109- The following shall be the exclusive property

of each spouse:

1.) That which is bought to the marriage as his or her

own;

!$&
 2.) That which each acquires during the marriage by
gratuitous title;

3.) That which is acquired by right of redemption, by

barter or by exchange with property belonging to
only one of the spouses; and

4.) That which is purchased with exclusive money of

the wife or of the husband. (148a)

NOTES
1. A Property owned by either spouse before the marriage shall remain as his/her
exclusive property as this is a property that he/she brought to the marriage. Also, those
properties that were acquired by either spouse during the marriage by gratuitous title are not
conjugal but are separate properties of the spouse concerned. If the property was acquired by
gratuitous title before the marriage, with more reason that it is exclusive, because it falls under
the first paragraph of this article.

2. Exclusive properties of either spouse that were mortgaged and foreclosed before the
marriage but were redeemed during the marriage shall remain as his/her exclusive property
even if the money used to redeem it is a conjugal money. In this case, the spouse concerned
shall be considered as indebted to the conjugal partnership as the money used to pay the
redemption price shall be treated as advances of the spouse from the conjugal partnership.
Also, a property acquired during the marriage through barter or exchange using the exclusive
property of either spouse shall remain as exclusive property of the said spouse.

3. When a property is bought during the marriage the presumption is that it is conjugal.
However, if the money used to buy that property is the exclusive money of a spouse then it is an
exclusive property of the said spouse. The rule, however, is different in the absolute community
of property regime because anything that is bought during the marriage is always considered a
community property even if the money used is exclusive.

B. Ownership,Enjoyment,and Administration
Of Exclusive Properties

Art. 110 - The spouses retain the ownership,

possession, administration and enjoyment of their exclusive
properties.

Either spouse may, during marriage, transfer the

administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the

!$'
 registry of property of the place where the property is
located. (137a, 168a, 169a)

Art. 111 - A spouse of age may mortgage, encumber,

alienate or otherwise dispose of his or her property, without
the consent of the other spouse, and appear alone in court to
litigate with regard to the same. (n)

Art. 112 - The alienation of any exclusive property of a

spouse administered by the other automatically terminates

the administration over such property and the proceeds of

the alienation shall be turned over to the owner-spouse. (n)

Art. 113 - Property donated or left by will to the

spouses, jointly and with designation of determinate shares,
shall pertain to the done-spouse as his or her own exclusive
property, and in the absence of designation, share and share
alike, without prejudice to the right of accretion when proper.
(150a)

Art. 114 - If the donations are onerous, the amount of

the charges shall be borne by the exclusive property of the
donee-spouse, whenever they have been advanced by the
conjugal partnership of gains. (151a)

Art. 115 - Retirement benefits, pensions, annuities,

gratuities, usufructs and similar benefits shall be governed
by the rules on gratuitous or onerous acquisitions as may be
proper in each case. (n)

NOTES

1. A spouse shall retain the ownership and enjoyment of his/her exclusive property. Said
spouse may, however, transfer the administration of the property to the other spouse but the
same should be done in a public instrument and duly recorded in the registry of property of the
place where the property is located.

2. Even if the exclusive property of a spouse is under the administration of the other
spouse, it does not preclude the owner spouse from selling or encumbering said property. The
owner spouse can dispose, alienate, or encumber his/her exclusive property without the
consent of the administering spouse. The alienation would simply mean that the owner spouse
is terminating the administration of the property by the other spouse. The proceeds of the sale
shall belong to the owner spouse alone.

3. If an exclusive property of a spouse is involved in a litigation, only the owner spouse

will litigate and need not include the other spouse. However, if the action for the recovery of an

!$(
exclusive property also involves recovery of conjugal property, the other spouse must be
impleaded as party plaintiff. Thus, if the wife files an action for ejectment to recover possession
of her exclusive property being leased by a delinquent tenant, she alone must litigate. But, if she
also demands payment of unpaid rentals that accrued during the marriage, the husband must
be impleaded because the unpaid rentals are conjugal.

4. A property donated or left by will to both spouses during the marriage is an exclusive
property. In the absence of specific designation of shares, the spouses will own the donated
property in equal shares. Should a spouse refuse to accept the donation, his/her share in the
property donated pro indiviso shall go to the other spouse by way ofaccretion.

5. If the donation is subject to an onerous condition, the donee spouse shall bear the
cost in complying with the condition. Should the spouse concerned have no sufficient funds to
pay the cost of complying with the condition, the conjugal partnership may advance the cost but
subject to reimbursement later on from the exclusive funds of the done spouse.

6. Retirement benefits, pensions, annuities, gratuities, usufruct and other similar benefits
may either be conjugal or exclusive depending on the nature of the benefit or how it was
acquired. If it was acquired gratuitously during the marriage then it is exclusive. If acquired
onerously, then it is conjugal.

Section 3

CONJUGAL PARTNERSHIP PROPERTY

Art. 116 - All property acquired during the marriage,

whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses,
is presumed to be conjugal unless the contrary is proved.
(160a)

Art. 117 - The following are conjugal partnership

properties:

1.) Those acquired by onerous title during the

marriage at the expense of the common fund,
whether the acquisition be for the partnership, or
for only one of the spouses;

2.) Those obtained from the labor, industry, work or

profession of either or both of the spouses;

!$)
 3.) The fruits, natural, industrial, or civil, due or
received during the marriage from the common
property, as well as the net fruits from the
exclusive property of each spouse;

4.) The share of either spouse in the hidden treasure

which the law awards to the finder or owner of the
property where the treasure is found;

5.) Those acquired through occupation such as

fishing or hunting;
6.) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and

7.) Those which are acquired by chance, such as

winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by the
loser-spouse. (153a, 154, 155, 159)

Art. 118- Property bought on installments paid partly

from exclusive funds from either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the
conjugal partnership if such ownership was vested during the
marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed
by the owner or owners upon liquidation of partnership. (n)

Art. 119- Whenever an amount or credit payable within

a period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests falling
due during the marriage on the principal shall belong to the
conjugal partnership. (156a, 157a)

Art. 120 - The ownership of improvements, whether for

utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the acts
or efforts of either or both of the spouses shall pertain to the
conjugal partnership, or to the srcinal owner-spouse, subject
to the following rules:

!$*
 When the cost of improvement made by the conjugal
partnership and any resulting increase in value are more than
the value of the property at the time of the improvement, the
entire property of one of the spouses shall belong to the
conjugal partnership, subject to reimbursement of the value
of the property of the owner-spouse at the time of
improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.

In either case, the ownership of the entire property

shall be vested upon the reimbursement, which shall be made
at the time of liquidation of the conjugal partnership. (158a)

NOTES

1. As a general rule, all properties acquired by either spouse during the marriage are
presumed conjugal even if it is declared in the name of only one spouse. As long as it is proven
that the property has been acquired during the marriage, the presumption applies even though
the spouses are living separately (Wong vs. IAC, 200 SCRA 792). For this presumption to
apply, it is a condition sine qua non that proof of its acquisition during the marriage is duly
established (Jocson vs. Court of Appeals, 170 SCRA 333 ). Since the presumption in law is in
favour of conjugality, whoever claims that it is not conjugal has the burden of proving that it is
acquired using the exclusive money of a spouse or that it is acquired gratuitously. It has been
held that an inscription in the Torrens Title of the owner‟s name as “Martin Lacerna married to
Epifania Magallon” is merely descriptive of the civil status of the owner and does not necessarily
prove that the land is conjugal in the absence of proof that it was acquired during the marriage
(Magallon vs. Mantejo, 146 SCRA 282).

2. Properties acquired by onerous title from the common fund during the marriage are
considered conjugal. This is true even if the acquisition be for the partnership, or for only one of
the spouses. Damages awarded by the court to either spouse can be conjugal or exclusive
depending on how it was acquired. In the case ofZulueta vs. Pan American World Airways, Inc.,
49 SCRA 1, the Supreme Court said: “Damages granted by the courts in favour of any of the
spouses arising out of a contract solely financed by the conjugal partnership of gains and
consequently unduly breached by a third party belong to the conjugal partnership of gains.”
However, in the case of Lilius vs. Manila Railroad Co., 62 Phil. 56, the Supreme Court said that
if damages were awarded to one of the spouses as a result of physical injuries inflicted by a
third person , as in the case of an injury resulting from an automobile accident which resulted to
the disfigurement of the wife‟s face, the damages awarded belong exclusively to the said injured
spouse.

3. Those that were acquired through the labor, industry, work or profession of either
spouse during the marriage are also conjugal. The salary of a spouse or his income or profit
from business that accrues during the marriage is conjugal. Also, fruits from conjugal properties

!%+
are considered conjugal. As regards fruits of exclusive properties of either spouse, it is
considered conjugal only if it accrued during the marriage and the fruit is the net fruits. From
the fruits of the exclusive property will be deducted first the expenses for the administration of
said property and the remaining balance of the said fruits is thenet fruits which are considered
conjugal.

4. The share of a spouse in the hidden treasure which the law awards to the finder as
well as those acquired through occupation such as fishing and hunting are conjugal. Livestocks
in excess of what was brought to the marriage by either spouse are also conjugal. Lastly, those
that were acquired by chance, such as winning from gambling or betting, are conjugal. Losses,
however, shall be borne exclusively by the loser-spouse.

5. Properties bought on installments before the marriage paid partly by exclusive funds
and partly by conjugal funds can be exclusive or conjugal depending on when ownership of the
property was transferred. If ownership was transferred immediately upon its purchase when the
buyer was not married, then it is exclusive. But, if ownership was transferred only upon payment
of the last installment when the buyer is already married, and the said installment was paid from
the conjugal funds, then it is conjugal. However, in either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by the owner upon liquidation of
the partnership (Art. 118 FC).

6. Payment of a credit in favour of one spouse made during the marriage shall remain as
exclusive property of the spouse concerned. However, the interest thereof which accrued during
the marriage is conjugal as it is considered fruits of an exclusive property during the marriage
(Art. 119 FC).

7. When an improvement is introduced by the conjugal partnership on the land belonging

to either spouse, the land and the improvement will be considered conjugal or exclusive
depending on its value. If the cost of the improvement made by the conjugal partnership is more
than the value of the land at the time of the improvement, the entire property shall belong to the
conjugal partnership. But, if the land is more valuable than the improvement then the land and
the improvement shall belong to the owner-spouse. In both cases, however, the conjugal
partnership or the spouse concerned has the obligation to reimburse the cost of the
improvement or the land at the time of the liquidation of the conjugal partnership. Until
reimbursement is made at the time of the liquidation, ownership is retained by the srcinal
owner. Thus, ownership of the land and the improvement shall be transferred only upon
liquidation of the conjugal partnership (see: Art. 120 F.C., See also: Francisco Munoz Jr. vs.
Erlinda Ramirez et al., G.R. No. 156125, August 25, 2010).

Section 4
CHARGES UPON AND OBLIGATIONS OF THE
CONJUGAL PARTNERSHIP

!%!
 Art. 121 - The conjugal partnership shall be liable for:

1.) The support of the spouses, their common

children, and the legitimate children of either
spouse; however the support of illegitimate
children shall be governed by the provisions of this
Code on Support;

2.) marriage
All debts by
and
theobligations
designatedcontracted during the
administrator-spouse
for the benefit of the conjugal partnership of gains,
or by both spouses or by one of them with the
consent of the other;

3.) Debts and obligations contracted by either spouse

without the consent of the other to the extent that
the family may have been benefited;

4.) All taxes, liens, charges and expenses, including

major or minor repairs upon the conjugal
partnership of the property;

5.) All taxes and expenses for mere preservation made

during the marriage upon the separate property of
either spouse;
6.) Expenses to enable either spouse to commen ce or
complete a profession, vocational, or other activity
for self-improvement;

7.) Antenuptial debts of either spouse insofar as they

have redounded to the benefit of the family;

8.) The value of what is donated or promised by both

spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course
or other activity for self-improvement; and

9.) Expenses of litigation between the spouses unless

the suit is found to be groundless.

!%#
 If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable for
the unpaid balance with their separate properties. (161a)

Art. 122 - The payment of personal debts contracted by

the husband or the wife before or during the marriage shall
not be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.

Neither shall the fines and indemnities imposed upon

them be charged to the partnership.

However, the payment of the personal debts
contracted by either spouse before the marriage, that of fines
and indemnities imposed upon them, as well as the support
of illegitimate children of either spouse, may be imposed
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if the
spouse who is bound should have no exclusive property or if
it should be insufficient; but at the time of the liquidation of
the partnership, such spouse shall be charged for what has
been paid for the purposes above-mentioned. (163a)

Art. 123 - Whatever may be lost during the marriage in

any game of chance, or in betting, sweepstakes, or any other
kind of gambling whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to the
conjugal partnership but any winnings therefrom shall form
part of the conjugal partnership property. (164a)

NOTES

1. The charges and obligations of the conjugal partnership enumerated in Article 121 are
the same as those of the absolute community of property regime mentioned in Article 94 of the
Family Code. The only difference is that paragraph 9 of Article 94 which refers to the three
personal obligations of a spouse, which are: (1.) ante nuptial debt of a spouse which did not
redound to the benefit of the family, (2.) support of illegitimate children, and (3.) civil liabilities
arising from a crime committed, were no longer reproduced in Article 121 as they were treated
separately by Article 122.

2. Ante-nuptial debts which redounded to the benefits of the family are always
chargeable to the conjugal partnership. Debts incurred by a spouse during the marriage can
also be charged against the conjugal partnership if the same redounded to the benefit of the
family. Where the husband contracts a loan on behalf of the family business, the law presumes,

!%$
and rightly so, that such obligation will redound to the benefit of the conjugal partnership.
However, a surety agreement or an accommodation contract entered into by the husband in
favour of his employer cannot, by itself, alone be categorized as falling within the context of
“obligation for the benefit of the family”. Thus, said obligationcannot be charged against the
conjugal partnership (Ayala Investment & Development Corp. vs. Court of Appeals, G.R. No.
118305, February 12, 1998).

3. The wife‟s civil liability arising from the crime of slander cannot be charged against the
conjugal partnership as it did not definitely redound to the benefit of the family. The levy on
execution on a conjugal partnership property to satisfy the said civil liability of the wife is not
valid. Article 122 of the Family Code explicitly provides that payment of personal debts
contracted by the husband or the wife before or during the marriage shall not be charged to the
conjugal partnership except insofar as they redounded to the benefit of the family. The filing of a
Third Party claim by the husband to nullify the execution sale of the conjugal property is proper
(Sps. Buado vs. C.A. and Nicol, G.R. No. 145222, April 24, 2009).

4. The wife may bind the conjugal partnership only when she purchases things
necessary for the support of the family, or when she borrows money for that purpose upon her
husband‟s failure to deliver the needed sum, when administration of the conjugal partnership is
transferred to the wife by the courts or by the husband, or when the wife gives moderate
donations for charity (Francisco vs. Gonzales, 565 SCRA 638).

5. The conjugal partnership is liable for all obligations contracted by the husband and
wife. Thus, when the said obligation becomes due, the conjugal partnership shall be answerable
for it and not the husband and the wife individually as independent debtors, such that the
concept of joint or solidary liability, as between them, does not arise(Alipio vs. Court of Appeals,
341 SCRA 441). It is therefore an error to consider the husband and the wife as jointly or
solidarily liable for such obligation as it is the conjugal partnership and not them individually who
should answer it. However, if the conjugal partnership fund is insufficient to pay the obligation,
the spouses shall be solidarily liable for the unpaid balance with their separate properties.

6. The personal obligations of a spouse mentioned in Article 94 par. 9 of the Family

Code can be charged against the conjugal partnership if the spouse oncerned
c does not have
sufficient exclusive property but only after all other liabilities enumerated in Article 121 have
been covered. This means that the conjugal partnership can only pay the support of illegitimate
children, ante nuptial debts which did not redound to the benefit of the family, and fines and
indemnities imposed upon a spouse for delicts or quasi-delicts committed, if all the obligations
enumerated in Article 121 have been fully paid already. Whatever is paid by the conjugal
partnership shall be considered as advances of the spouse who incurred such obligation.

Section 5

ADMINISTRATION OF THE CONJUGAL

PARTNERSHIP PROPERTY

!%%
 Art. 124 - The administration and enjoyment of the
conjugal partnership shall belong to both spouses jointly. In
case of disagreement, the husband’s decision shall prevail,
subject to recourse to the court by the wife for a proper
remedy, which must be availed of within five years from the
date of the contract implementing such decision.

In the event that one spouse is incapacitated or

otherwise unable to participate

conjugal properties, the other in the administration
spouse may assumeofsole
the
powers of administration. These powers do not include the
powers of disposition or encumbrance which must have the
authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may
be perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (165a)

Art. 125 - Neither spouse may donate any conjugal

partnership property without the consent of the other.
However, either spouse may, without the consent of the
other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
rejoicing or family distress. (174a)

NOTES

1. The provisions of Articles 124 and 125 of this Code are very similar or identical to
Articles 96 and 98 hereof. The only difference is that the former refers to the regime of conjugal
partnership while the latter articles refer to the absolute community of property regime.

2. Just like in the absolute community of property regime, the husband and wife are joint
administrators of the conjugal partnership. In case one is incapacitated or otherwise unable to
participate in the administration of the conjugal partnership, the other spouse may assume the
sole power of administration. The power of administration does not include the power to sell or
encumber any conjugal property without the consent of the other spouse. Thus, if the
administering spouse would like to sell or encumber any conjugal property, said spouse must
first secure the consent of the other spouse or the authorization from the court, otherwise, the
sale or encumbrance is void.

!%&
 3. Where the husband sold a conjugal partnership property without the knowledge and
consent of the wife, the sale is void. The subsequent and qu estionable “amicable settlement”
entered into by the wife with the buyer in connection with the case for tresspassing filed against
her by the said buyer, where the wife later contested her signature in the said settlement, could
not have validated or ratified an already void and illegal contract. The amicable settlement
before the barangay authorities where the wife was made to agree to leave the place could not
be considered a “continuing offer” or acceptance under the second paragraph of Article 124
(Sps. Antonio vs. Court of Appeals, G.R. No. 125172, June 26, 1998).

4. If the husband, without the knowledge and consent of the wife, sells conjugal property,
such sale is VOID. If the sale was with the knowledge but without the approval of the wife,
thereby resulting in disagreement, such sale is ANNULABLE at the instance of the wife who is
given five (5) years from the date the contract implementing the decision of the husband to
institute the case (Sps. Ravina vs. Villa Abrille et al., G.R. No. 160708, Oct ober 16, 2009).

5. Sale of conjugal property by the wife without the knowledge and consent of the
husband and on the basis of a forged Special Power of Attorney allegedly executed by the
husband in her favor is null and void. The buyer cannot claim that he is a buyer in good faith.
When the property sold is conjugal, and the seller is armed only with an SPA allegedly executed
by the other spouse, it is incumbent upon the buyer to verify the authenticity of the SPA. It is not
enough for the buyer to check h t e authenticity of the title but also into the seller‟s capacity to
sell. Had they made appropriate inquiries into the authenticity of the SPA, they would have
uncovered soon enough that the respondents had been estranged from each other and were
under de facto separation (Sps. Aggabao vs. Dionisio Parulan et al., G.R. No. 165803,
September 1, 2010).

5. The case filed by the wife questioning the decision of the husband in matters of
administration of the conjugal partnership must be filed within five (5) years from the time the
contract being questioned was entered into by the husband. The action falls within the rules on
summary procedure pursuant to Title XI ( Art. 238 up to 253 of the Family Code).

6. If the sale, without the consent of the wife, was made on January 11, 1989 (after the
effectivity of the Family Code), the sale is VOID even if the parties were married in 1950.The
buyer, however, may recover the amount they paid to the seller with legal interest until fully paid
and to be entitled to indemnity for the improvements they introduced into the property with a
right of retention until the reimbursement is made(Fuentes vs. Roca, G.R. No. 178902,
April 21, 2010).

7. The husband-administrator cannot lease a conjugal property without the consent of

the wife. This is because lease is an encumbrance on the property as the lessor transfers his

right to use the property in favor of the lessee. The lessor‟s right is impaired therein. He may
even be ejected by the lessee if the lessor uses the leased premises. Therefore, lease is a
burden on the land, and that it is also an encumbrance on the property. Moreover, the lease is
not only an encumbrance but also a q “ ualified alienation”, with the lessee becoming, for all

!%'
intents and purposes, and subject to its terms, the owner of the thing affected by the lease
(Melania Roxas vs. Court of Appeals, et al., G.R. No. 92245, June 26, 1991).

7. Before the Family Code, the sale or encumbrance of conjugal properties by a spouse
without the knowledge and consent of the other spouse is not void but only voidable. The
spouse can question the sale within a period of ten years, otherwise, the action prescribes.
Now, under the Family Code the sale without the consent of the other spouse is void and the
action to nullify the sale does not prescribe.

Section 6

DISSOLUTION OF CONJUGAL PARTNERSHIP

REGIME

Art. 126 - The conjugal partnership terminates:

1.) Upon the death of either spouse;

2.) When there is a decree of legal separation;

3.) When the marriage is annulled or declared void; or

4.) In case of judicial separation of property during the

marriage under Articles 134 to 138. (175a)

Art. 127 - The separation in fact between husband and

wife shall not affect the regime of conjugal partnership,
except that:
1.) The spouse who leaves the conjugal home or
refuses to live therein, without just cause, shall not
have the right to be supported;

2.) When the c onsent of one spouse to a ny

transaction of the other is required by law, judicial
authorization shall be obtained in a summary
proceeding;

3.) In the absence of sufficient conjugal partnership

property, the separate property of both spouses
shall be solidarily liable for the support of the
family. The spouse present shall, upon petition in a
summary proceeding, be given judicial authority to
administer or encumber any specific separate
property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter’s share. (178a)

!%(
 Art. 128 - If a spouse without just cause abandons the
other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary
conditions as the court may impose.

The obligations to the family mentioned in the

preceding paragraph refer to marital, parental or property
relations.
A spouse is deemed to have abandoned the other
when he or she has left the conjugal dwelling without
intention of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within the
same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling. (167a, 191a)

NOTES

1. The conjugal partnership of gains is terminated by any of the four grounds

enumerated in Article 126. This article is similar to article 99 except for the difference in the
regime.

2. Upon the death of a husband, the conjugal partnership is terminated. One half of the
conjugal properties will go to the surviving spouse while the other half will form part of the estate
of the deceased spouse and the same will be transmitted to his heirs, which include his wife,
who is entitled to the same share as that of each of the legitimate children. Thus, the death of
the husband will result to a co-ownership between the surviving spouse and their children.

3. When the marriage is annulled or declared void by the court, the conjugal partnership
is also dissolved as there is no more marriage to speak of. When the marriage is terminated the
conjugal partnership is also terminated. But, in legal separation, even if the marriage is still
subsisting, the conjugal partnership is also terminated by express provision of the law. Also,
there is another instance where the conjugal partnership is dissolved despite the existence of a
valid marriage, and that is in the case of judicial separation of property under Articles 134 to 138
of the Family Code.

4. A separation in fact between the husband and wife does not affect the regime of
conjugal partnership. The only consequence of the de-facto separation is that the spouse who
left the conjugal dwelling, without just cause, will no longer be entitled to support from the
abandoned spouse. Likewise, if the consent of the abandoning spouse to any transaction
involving conjugal properties is needed and the same could not be obtained, the present spouse

!%)
may ask judicial authorization in a summary proceeding. Lastly, the present spouse may sell or
encumber an exclusive property of the abandoning spouse, with prior judicial authorization, to
answer for his/her share in the solidary obligation to support the family. It must be noted that in
case of insufficiency of the conjugal partnership, the exclusive property of the spouses is
solidarily liable for the support of the family.

5. Abandonment is presumed when a spouse left the conjugal dwelling without the
intention to return or has left the same for a period of three months without giving any
information as to his or her whereabouts. When abandonment occurs or when one spouse fails
to comply with his or her obligation in the family, the present spouse may avail of the following
remedies:
a.) Petition the court for receivership
b.) Demand for judicial separation of property
c.) Petition the court for authority to act as sole administrator
of the conjugal partnership

Section 7
LIQUIDATION OF THE CONJUGAL PARTNERSHIP
ASSETS AND LIABILITIES

Art. 129 - Upon the dissolution of the conjugal

partnership regime, the following procedure shall apply:

1.) An inventory shall be prepared, listing separately

all the properties of the conjugal partnership and

the exclusive properties of each spouse.

2.) Amounts advanced by the conjugal partnership in

payment of personal debts and obligations of
either spouse shall be credited to the conjugal
partnership as an asset thereof.

3.) Each spouse shall be reimbursed for the use ofhis

or her exclusive funds in the acquisition of
property or for the value of his or her exclusive
property, the ownership of which has been vested
by law in the conjugal partnership.

4.) The debts and obligations of the conjugal

partnership shall be paid out of the conjugal
assets. In case of insufficiency of said assets, the
spouse shall be solidarily liable for the unpaid
balance with their separate properties, in

!%*
 accordance with provisions of paragraph (2) of
Article 121.

5.) Whatever remains of the exclusive properties of

the spouses shall thereafter be delivered to each of
them.

6.) Unless the owner had been indemnified from

whatever source, the loss or deterioration of
movables used for the benefit of the family,

belonging to either spouse, even due to fortuitous

event, shall be paid to said spouse from the
conjugal funds, if any.

7.) The net remainder of the conjugal partnership

properties shall constitute the profits, which shall
be divided equally between husband and wife,
unless a different proportion or division was
agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of
such share as provided in this Code.

8.) The presumptive legitimes of thecommon children

shall be delivered upon partition in accordance
with Article 51.

9.) In the partition of the properties, the conjugal

dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority
of the common children choose to remain. Children
below the age of seven years are deemed to have
chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the
court shall decide, taking into consideration the
best interests of said children. (181a, 182a, 183a,
184a, 185a)

Art. 130 - Upon the termination of the marriage by

death, the conjugal partnership property shall be liquidated in
the same proceeding for the settlement of the estate of the

deceased.
If no judicial proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property

!&+
 either judicially or extra-judicially within one year from the
death of the deceased spouse. If upon the lapse of the six-
month period no liquidation is made, any disposition or
encumbrance involving the conjugal partnership property of
the terminated marriage shall be void.

Should the surviving spouse contract a subsequent

marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of
property shall govern the property relations of the
subsequent marriage. (n)
Art. 131 - Whenever the liquidation of the conjugal
partnership properties of two or more marriages contracted
by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and
income of each partnership shall be determined upon such
proof as may be considered according to the rules of
evidence. In case of doubt as to which partnership the
existing properties belong, the same shall be divided between
the different partnerships in proportion to the capital and
duration of each. (189a)

Art. 132 - The Rules of Court on the administration of

estates of deceased persons shall be observed in the
appraisal and sale of property of the conjugal partnership,
and other matters which are not expressly determined in this
Chapter. (187a)

Art. 133 - From the common mass of property, support

shall be given to the surviving spouse and to the children
during the liquidation of the inventoried property and until
what belongs to them is delivered; but from this shall be
deducted that amount received for support which exceeds
the fruits or rents pertaining to them. (188a)

NOTES

1. The procedures in the liquidation of the conjugal partnership is the same as that of the
absolute community of property regime. For this purpose, please refer to the discussion in
Articles 102 to 104 of this book.

Chapter 5

!&!
 SEPARATION OF PROPERTY OF THE SPOUSES
AND ADMINISTRATION OF COMMON PROPERTY
BY ONE SPOUSE DURING THE MARRIAGE

A. Judicial Separation of Property during marriage:

Art. 134 - In the absence of an express declaration in

the marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either
be voluntary or for sufficient cause. (190a)

NOTES

1.As a general rule, the regime of separation of property can only govern if the husband
and wife have entered into a marriage settlement and it is the property regime they have agreed
upon in their pre-nuptial agreement. This is because if there is no marriage settlement it is the
absolute community of property regime that will automatically govern the property relation of the
spouses. The property regime agreed upon by the parties in their marriage settlement cannot
anymore be changed once the marriage is celebrated. If the husband and the wife are governed
by the absolute community of property regime at the time of the marriage, they cannot anymore
change that regime to conjugal partnership during the marriage or vice versa. This is so
because both the absolute community and the conjugal partnership of gains, as a property
regime, can only commence at the precise moment of the celebration of marriage. It cannot
start at anytime during the marriage (See: Articles 88 and 107 F.C.). If the spouses are

governed by the separation of property regime at the time of the marriage, they cannot also
change it to conjugal partnership or absolute community during the marriage for the same
reason stated in Articles 88 and 107.

2. The spouses may, however, change their property regime during the marriage from
absolute community or from conjugal partnership to separation of property regime. This can be
done if there exist sufficient grounds (Art. 135) or upon voluntary agreement of the parties (Art.
136). In either case, there must be an approval of the separation of property during the marriage
by the court.

B. Grounds for Judicial separation of property:

Art. 135 - Any of the following shall be considered

sufficient cause for judicial separation of property:

1.) That the spouse of the petitioner ha s been

sentenced to a penalty which carries with it civil
interdiction;

!&#
 2.) That the spouse of the petitioner ha s been
judicially declared an absentee;

3.) That loss of parental authority of the spouse of

petitioner has been decreed by the court;

4.) That the spouse of the petitioner has abandoned

the latter or failed to comply with his or her
obligations to the family as provided for in Article
101;

5.) That the spouse granted the power of

administration in the marriage settlement has
abused the power; and

6.) That at the time of the petition, the spouses have

been separated in fact for at least one (1) year and
reconciliation is highly improbable.

In the cases provided for in nos. 1, 2, and 3, the

presentation of final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of
judicial separation of property. (191a)

NOTES

1. When any of the grounds enumerated in this article exists, the aggrieved party may
file a petition in court asking for the dissolution of their existing property regime (ie. absolute
community or conjugal partnership). There is no need for the conformity of the other party as the
petitioner must have to establish the grounds in court. Once the court grants the petition, the
existing property regime that governs them will be considered dissolved and they will now be
governed by the regime of separation of property during their marriage.

2. There are six grounds for the dissolution of the absolute community or conjugal
partnership under Article 135. Civil Interdiction isan accessory penalty to crimes punishable by
more than 12 years imprisonment. This consists of deprivation of some rights, like the right of
parental authority, to manage his own properties or the conjugal partnership, and the right to
enter into contracts. The mere fact that a spouse is an absentee is not enough to demand for
judicial separation of property as the law requires that the absence of a spouse must be
judicially declared. Also, loss of parental authority as decreed by the court is a ground for
dissolution of the conjugal partnership or for judicial separation of property. For these first three
grounds mentioned in Article 135, it is enough for the petitioner to attach the final judgment of
the court declaring a spouse under civil interdiction, being an absentee, or having lost his
parental authority. The final judgment of the court in these first three grounds will be sufficient
basis for the court to grant the petition.

!&$
 3. The other grounds are abandonment and failure of the respondent to comply with his
or her obligation to the family, abuse of the power of administration given to the respondent
spouse in the marriage settlement, and the de facto separation of the spouses for at least one
year and the possibility of reconciliation is highly improbable.

C. Voluntary separation of property:

Art.136 - The spouse may jointly file a verified petition

with the court

community for conjugal
or the the voluntary dissolution
partnership of the
of gains, andabsolute
for the
separation of their common properties.

All creditors of the absolute community or of the

conjugal partnership of gains, as well as the personal
creditors of the spouse, shall be listed in the petition and
notified of the filing thereof. The court shall take measures to
protect the creditors and other persons with pecuniary
interest. (191a)

NOTES

1. Even without any grounds, the husband and wife may dissolve their conjugal
partnership or absolute community by mutual agreement. If thespouses do not want to go on
with their existing property regime, they may jointly file a verified petition in court for its
dissolution. Once the court grants the petition, the parties will then be governed by the regime of
separation of property. Thus, the agreement for voluntary separation of property takes effect
from the time of the judicial order decreeing the separation of the properties and not from the
signing of the agreement (Toda, Jr. vs. Court of Appeals, 183 SCRA 713).

D. Effects of the decree of separation of property:

Art. 137 - Once the separation of property has been

decreed, the absolute community or the conjugal partnership
of gains shall be liquidated in conformity with this Code.

During the pendency of the proceedings for separation

of property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and their
children. (192a)

!&%
 Art. 138 - After dissolution of the absolute community
or of the conjugal partnership, the provisions on complete
separation of property shall apply. (191a)

Art. 139 - The petition for separation of property and

the final judgment granting the same shall be recorded in the
proper local civil registries and registries of property. (193a)

Art. 140 - The separation of property shall not

prejudice the rights previously acquired by creditors. (194a)

NOTES

1. Once the court decrees the separation of property, whether based on sufficient
causes under Article 135 or upon mutual agreement by the spouses under Article 136, there will
be dissolution of the absolute community or the conjugal partnership as the case may be and,
consequently, the liquidation of the absolute community or the conjugal partnership will take
place as a matter of course.

2. While the proceeding for separation of property is still ongoing, the support of the
spouses and their common children shall be taken from the absolute community or the conjugal
partnership. Once the court grants the separation of property, there will no longer be any
absolute community or conjugal partnership, so, support of the children shall be taken from the
separate or exclusive property of both spouses in proportion to their income pursuant to Article
146 of the Family Code.

3. The petition for separation of property as well as the final judgment of the court
granting it shall be recorded in the proper local civil registries and the registry of property in
order to bind third persons. However, the separation of property shall not prejudice the rights of
creditors acquired previous to the decree.

E. Revival of the former property regime:

Art. 141 - The spouses may, in the same proceedings

where separation of property was decreed, file a motion in
court for a decree reviving the property regime that existed
between them before the separation of property in any of the
following instances:

1.) When the civil interdiction terminates;

2.) When the absentee spouse reappears;

!&&
 3.) When the court, being satisfied that the spouse
granted the power of administration in the marriage
settlements will not again abuse that power,
authorizes the resumption of said administration;

4.) When the spouse who has left the conjugal home
without a decree of legal separation resumes
common life with the other;

5.) When parental authority isjudicially restored to the

spouse previously deprived thereof;

6.) When the spouses who have been separated in fact
for at least one year, reconcile and resume
common life; or

7.) When after voluntary dissolution of the absolute

community of property or conjugal partnership has
been judicially decreed upon the joint petition of
the spouses, they agree to the revival of the former
property regime. No voluntary separation of
property may thereafter be granted.

The revival of the former property regime shall be

governed by Article 67. (195a)

NOTES
1. When the separation of property is based on any of the grounds enumerated in Article
135 and the said grounds no longer exist, the parties may revive the former property regime that
governs them before the separation of property. To do so, the parties must file a joint motion
with the court that issued the judgment for separation of property praying that a decree for
revival of the former property regime be issued.

2. When the separation of property is based upon mutual agreement of the parties, a
revival of the former property regime is allowed. But, once granted, the parties could no longer
go back to separation of property by mutual agreement because voluntary separation of
property may be availed of only once. However, separation of property under Article 135 may be
availed of many times for as long as there exists a ground. The procedures in Article 67, which
refers to the revival of the former property regime as a result of the reconciliation of the spouses
in legal separation, shall likewise apply here (Please see: discussion in Article 67).

F. Administration of exclusive properties:

!&'
 Art. 142 - The administration of all classes of exclusive
property of either spouse may be transferred by the court to
the other spouse:

1.) When one spouse becomes the guardian of the

other;

2.) When one spouse is judicially declared an

absentee;

3.) When
carriesone
withspouse is sentencedorto a penalty which
it civil interdiction;

4.) When one spouse becomes a fugitive from justice

or is hiding as an accused in a criminal case.

If the other spouse is not qualified by reason of

incompetence, conflict of interest, or any other just cause,
the court shall appoint a suitable person to be the
administrator. (n)

NOTES

1. The administration of the exclusive property shall belong to the owner-spouse.

However, the court may transfer the administration of these properties if any of the grounds
mentioned in Article 142 is present. Thus, if a spouse is placed under the guardianship of the

other spouse, is judicially declared an absentee, has been sentenced to a penalty which carries
with it civil interdiction, or when said spouse becomes a fugitive from justice or is hiding as an
accused in a criminal case, the other spouse may be appointed by the court as the administrator
of the exclusive property of the said spouse. In the event the other spouse is not qualified to
assume administration by reason of incompetence, conflict of interest, or any other cause, the
court shall appoint a suitable person to be the administrator.

Chapter 6

REGIME OF SEPARATION OF PROPERTY

Art. 143 - Should the future spouses agree in the

marriage settlements that their property relations during
marriage shall be governed by the regime of separation of

!&(
 property, the provisions of this Chapter shall be suppletory.
(212a)

Art. 144 - Separation of property may refer to present

or future property or both. It may be total or partial. In the
latter case, the property not agreed upon as separate shall
pertain to the absolute community. (213a)

Art. 145 - Each spouse shall own, dispose of, possess,

administer and enjoy his or her own separate estate, without

need of the consent of the other. To each spouse shall belong

all earnings from his or her profession, business or industry
and all fruits, natural, industrial or civil, due or received
during the marriage from his or her separate property. (214a)

Art. 146 - Both spouses shall bear the family expenses

in proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their separate
properties.

The liability of the spouses to creditors for family

expenses shall however, be solidary. (215a)

NOTES

1. Under the Family Code, the only instance that the regime of separation of property

can govern the property relation of the husband and wife at the time of the celebration of the
marriage is when there is a marriage settlement and it is the regime agreed upon by the parties.
In which case, the provisions of this chapter shall apply suppletorily as the property relation of
the parties shall be primarily governed by what they have stipulated in the marriage settlement.

2. All properties, whether present or future or both, can be the subject of the separation
of properties. The separation can also be total or partial. In case of partial separation, the
property not agreed upon as separate shall be governed by the absolute community of property
regime.

3. Each spouse shall own, administer, use, and enjoy his or her exclusive property to the
exclusion of the other. He can do whatever he wants to do with his property. He can sell,
dispose, or encumber his exclusive property without the consent of the other spouse. All
income or earnings derived from his profession or business shall belong to him alone. Likewise,
all the fruits, natural, industrial, or civil, received or earned during the marriage from the
exclusive property of a spouse shall belong to the spouse concerned.

4. Considering that in the regime of separation of property there is no common property

from which the expenses for the support of the family shall be taken, the separate property of
both spouses shall be answerable for it. Thus, both spouses shall bear the family expensesin

!&)
proportion to their income. In case of insufficiency or default thereof, the current market value
of the exclusive property of each spouse shall be the basis of the proportionate contribution.
However, the liability of the spouse for the creditors of the family shall besolidary. This means
that the creditors can demand payment of the entire obligation from the husband alone or from
the wife alone. The spouse who paid the whole obligation may later on demand reimbursement
from the other spouse.

Chapter 7

PROPERTY REGIME OF UNION WITHOUT MARRIAGE

Art. 147 -When a man or woman who are capacitated

to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.

In the absence of proof to the contrary, properties

acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof 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 coha bitation.

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 or of 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. (144a)

Art. 148 - In cases of cohabitation not fa lling 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 share 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. (144a)

NOTES

1. When a man and a woman lived together as husband and wife without the benefit of
marriage or under a void marriage, the property regimes discussed in chapters 3, 4, and 5
hereof will not apply. Instead, their property relation will be governed byco-ownership. The
property regime of absolute community, conjugal partnership, and separation of property will
only apply to a valid marriage. Thus, if there is no marriage or even if there is marriage but it is
void, the rule on co-ownership will apply. There are two kinds of co-ownership here. The co-
ownership in Article 147 refers to full co-ownership for everything acquired by either party
onerously during their cohabitation while the co-ownership under Article 148 applies only to
those that were acquired by both parties through theiractual joint contribution of money,
property or industry andthe co-ownership is based only on their actual contribution.

2. Under Article 147, the man and woman who are living together without marriage must
have no legal impediment to marry each other. If they have legal impediment then Article 148
will apply to them and not Article 147. If the marriage between the parties is void but the
invalidity of their marriage is not due to the absence of legal capacity to marry, Article 147 will

likewise
marriageapply.
is voidThus, if theof husband
because and wife
other defects are to
not due capacitated to legal
absence of marrycapacity,
each other,
they but
will their
still be
governed by co-ownership in Article 147. The void marriages being referred to in Article 147 are
those under Article 36, 44, 53, and void marriages because of absence of consent, authority of

!'+
the solemnizing officer, absence of a valid marriage license or marriage ceremony as provided
in Article 4 of the Family Code.

3. The co-ownership that governs the property relation of a man and woman who are
into a live-in relationship, although they are capacitated to marry each other, is one of full co-
ownership. The same rule applies to those who are married but their marriage is void but the
nullity of the marriage does not refer to absence of legal capacity to marry. This means that all
their wages and salaries acquired during their cohabitation shall be owned by them in equal
shares. Also, all properties acquired by them through their work or industry during the time that
they live together shall be governed by co-ownership. In the absence of proof to the contrary,
properties acquired during their cohabitation shall be presumed to have been obtained by their
joint efforts, work or industry, and shall be owned by them in equal shares.

4. A party who did not contribute money in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the former‟s
effort consisted in the care and maintenance of the family and of the household. Thus, a live-in
partner or a wife in a void marriage under Article 147 is entitled to one half of the properties
acquired by the other party onerously during the cohabitation even if she did not contribute a
single centavo in the acquisition of these properties for as long as she played the role of a
housewife taking care of the welfare of their children or managing the household.

5. Under Article 147 consent of both parties is required in the disposition of any of the
common properties. Neither party can encumber or dispose of by act inter vivos his/her share
in the co-ownership without the consent of the other, until after the termination of their
cohabitation.

6. When one of the parties to the void marriage or cohabitation is inbad faith, his or her
share in the co-ownership will be forfeited in favor of their common children. In case of default of
common children, his/her share will go to his surviving descendant, and in the absence thereof,
such share shall belong to the innocent party. In all cases, the forfeiture shall take place only
upon termination of the cohabitation. Under Article 148, if the guilty party is validly married to
another, his or her forfeited share in the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such marriage. However, if the guilty party is not validly married
to another, his or her share shall be forfeited in accordance with the provision of the last
paragraph of Article 147.

7. The provision of Article 43, paragraphs (2), (3), (4) and (5) applies only, by explicit
terms of Article 50, to voidable marriages under Article 45 and, exceptionally, to void marriages
under Article 40 of the Family Code. A spouse who contracted a subsequent marriage without
having his previous marriage judicially declared void is guilty not only of bigamy but also of
violating Article 40, thus, his subsequent marriage is null andvoid. The spouse in bad faith in a

void marriage under Article 40 shall forfeit only his or her share of thenet profits of the
community property or conjugal partnership in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage, or in default of children, the
innocent spouse. This is because of the explicit provision of Article 43 (2) in relation to Article 50

!'!
of the Family Code. However, if the marriage is void not because of Article 40, the forfeiture of
share shall be in accordance with Articles 147 or 148, which provide that the guilty party shall
forfeit not only his or her share in the net profits but all his or her shares in the co-ownership in
favor of their common children (Valdes vs. RTC, 260 SCRA 221).

8. The void marriage under Article 36 of the Family Code (psychological incapacity) is
one of the void marriages referred to in Article 147 where co-ownership governs. It is an error
for the trial court to order that a decree of absolute nullity of marriage shall be issued only after
liquidation, partition and distribution of the parties‟ prope
rties. The ruling has no basis because
Section 19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the
Family Code. It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies
only to marriages declared void ab initio or annulled by final judgment under Articles 40 and 45
of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which
are declared void ab initio under Article 36 of the Family Code, which should be declared void
without waiting for the liquidation of the properties of the parties(Alain M. Diño vs. Ma. Caridad
L. Diño, G.R. No. 178044, January 19, 2011).

TITLE V

THE FAMILY

Chapter 1

The Family as an Institution

Art. 149 - The family, being the foundation of the

nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement

!'#
 destructive of the family shall be recognized or given effect.
(216a, 218a)

Art. 150 - Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among brothers and sisters, whether of the full or

half-blood. (217a)

Art. 151 - No suit between members of the same family

shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If
it is shown that no such efforts were in fact made, the same
case must be dismissed.

This rules shall not apply to cases which may not be the
subject of compromise under the Civil Code. (222a)

NOTES

1. This chapter lays down the policy of the state as regards the family. The family is
considered as the foundation of the nation and a basic social institution which public policy
cherishes and protect. The 1987 Constitution provides that “the Staterecognizes the sanctity of
family life and shall protect and strengthen the family as a basic social institution (Section 12,
Article II). Consequently, family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect. Thus, an agreement
between the husband and wife that they voluntarily dissolve their marriage, live separately from
each other, and that they are free to look for another partner without fear of prosecution is null
and void for being contrary to law and public policy.

2. The term “ family relation” refers only to the relationship enumerated in Article 150 of
the Family Code. It was held that the enumeration of the family relation in the said article should
be construed strictly. Thus, any person not included in the enumeration cannot be considered
as within the term “family relation”. So, Article 151 which provides that “ No suit between
members of the same family shall prosper unless there is anallegation in the complaint that the
plaintiff exerted earnest effort towards a compromise before the action was filed, applies only
when the parties to the action are members of the same family.

3. In order to preserve the unity of the family, the law requires that if a person files a
case against a member of his own family, he must first exert earnest effort to settle the matter
amicably; otherwise, the suit is dismissable. In fact, the Rules of Court has made it a ground for
a motion to dismiss under Rule 16, Section 1 (j). The reason for the inclusion of this rule in the
Civil Code (Art. 222), and now the Family Code (Art. 151), is aptly described by the Code

!'$
Commission in the following words, to wit: “ It is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed hate and passion in
the family. It is known that a lawsuit between close relatives generates deeper bitterness than
strangers.”

3. In the case of Gayon vs. Gayon, 36 SCRA 104, the Supreme Court ruled that a suit
filed by the plaintiff against his sister-in-law and nephews and nieces is not a suit between
members of the same family. Thus, the requirement of alleging in the complaint that the plaintiff
exerted earnest effort to settle the matter amicably is no longer required. Moreover, if the suit

involves a third person who is not a member of the same family, the requirement of “earnest
effort to settle amicably” is not anymore needed. Thus, a suit filed by a woman against her sister
and the latter‟s husband does not require earnest effort to compromise bec ause the husband is
not a member of the same family (Hontiveros vs. RTC, G.R. No. 125465, June 29, 1999). The
duty to engage in earnest efforts to compromise before theaction is filed is not required even fi
it is a suit between members of the same family if a stranger is impleaded as party to the case
because the interest of such stranger may differ from the interest of the members of the same
family (Magbaleta vs. Gonong, 76 SCRA 511).

4. The allegation in the complaint that the matter was first referred to thebarangay for
conciliation is considered substantial compliance with the requirement of an allegation of prior
recourse to compromise. Thus, even if there was no allegation of earnest effort to compromise
in a case against a brother and sister-in-law, the case may still prosper, especially so that the
sister-in-law is not an immediate member of the family. Even on the assumption that the suit did
not include the sister-in-law but since there was recourse to the barangay where conciliation
proceedings were conducted, the case cannot still be dismissed(Martinez et al. vs. Martinez,
G.R. No. 162084, June 28, 2005).

4. The rule on earnest effort to compromise will not apply if the case is not
compromisable, such as annulment of marriage, legal sep aration, future support, future legitime
and jurisdiction of the court. Also, the said rule is not applicable to special proceedings like
habeas corpus, custody of children and settlement of estate.

5. The term “suit” between members of the same family refers to a case that is
adversarial or controversial in nature. It is applicable only to ordinary civil action because it is
clear from the term “suit” that it refers to an action by one person against another in a court of
justice in which the plaintiff pursues the remedy which the law affords him for the redress of an
injury or the enforcement of a right, whether at law or in equity. The law, however, does not
encompass a petition for the settlement of estate because such case is not controversial or
adversarial in character. It is merely intended to determine the heirs, theirshares in the estate
and to ensure that the estate is properly administered to prevent its dissipation (Pilar Vda. De
Manalo vs. Court of Appeals, G.R. No. 129242, January 16, 2001).

Chapter 2

The Family Home

!'%
 Art. 152 - The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family, is
the dwelling house where they and their family reside, and
the land on which it is situated. (223a)

Art. 153 - The family home is deemed constituted on a

house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as
any of its beneficiaries actually resides therein, the family
home continues to be such and is exempt from execution,

forced sale or attachment except as hereinafter provided and

to the extent of the value allowed by law. (223a)

Art. 154 - The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who

is the head of a family; and

(2) Their parents, ascendants, descendants, brothers

and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support. (226a)

NOTES

1. The Family Home refers to the house and lot where the family resides. It is constituted
by the husband and wife or by an unmarried head of the family. Unlike in the Civil Code where
there is a need for a family home to be constituted either judicially or extra-judicially, the family
home under the Family Code is deemed constituted the moment the family resides therein. It is
necessary that both the house and the land where it stands are owned by the husband and/or
wife or by the unmarried head of the family ( Juanita Trinidad vs. Danilo Pangilinan, G.R. No.
185920, July 20, 2910). Thus, if the land where the dwelling house is standing is merely leased
by the husband and wife, it cannot qualify as a family home. Moreover, the house where the
family resides must be primarily devoted to residential and not commercial purpose; otherwise,
it will not also be considered as a family home.

2. Those houses and lots that were built before the effectivity of the Family Code
(August 3, 1988), but were not constituted either judicially or extra-judicially under the provisions
of the Civil Code, are still considered as family home under Article 162 of the Family Code.
However, these houses are considered as family homes only upon the effectivity of the Family
Code and not at the time they were built (Modequillo vs. Breva, G.R. No. 86355, May 31, 1990,
185 SCRA 766).

3. The family home shall remain to be such from the time of its constitution and so long
as any of its beneficiaries actually resides therein. The beneficiaries of a family home are

!'&
mentioned in Article 154and they can be categorized into primary and secondarybeneficiaries.
The primary beneficiaries are the persons who constituted the family home and they are the
husband and wife, or the unmarried head of the family. The secondary beneficiaries are the
parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate
or illegitimate, who are living in the family home and who depend upon the head of the family for
legal support.

4. The family home is the place where the owner and his/her family reside. Residing in
the family home is a real right. The occupancy must be actual and not merely constructive.
Thus, if the owners of the house and lot are already residing in the United States and the one

living therein are only the overseer, maid, houseboy or driver, it cannot be considered as a
(Manacop vs.
family home. Hence, it is not exempt from execution, forced sale and attachment
Court of Appeals, G.R. No. 97898, August 11, 1997, 277 SCRA 57).

Art. 155 - The family home shall be exempt from

execution, forced sale or attachment except:

(1) For non payment of taxes;

(2) For debts incurred prior to the constitution of the

family home;

(3) For debts secured by mortgages on the premises

before or after such constitution; and

(4) For debts due to laborers, mechanics, architects,

builders, materialmen and others who have rendered service
or furnished material for the construction of the building.
(243a)

NOTES

1. The benefit derived from being a family home is that it is exempt from execution,
forced sale or attachment. However, there are obligations incurred by its owners where the
exemption will not apply. These obligations are enumerated in Article 155 of the Family Code.
Non-payment of taxes, debts incurred prior to the constitution of the family home, debts secured
by a mortgage on the premises, and debts due to laborers, mechanics, architects etc. incurred
in the construction of the family home are the obligations where the exemption cannot be
invoked.

2. In the case of Modequillo vs. Breva, the Supreme Court ruled that an obligation
incurred prior to August 3, 1988 does not exempt from execution the house of the creditor that
was built before the said date because said house became a family home only upon the
effectivity of the family code. Since the debt was incurred prior to its constitution as a family
home, then, said house is not exempt from levy on execution.

!''
 3. The right of exemption is a “personal privilege” granted to a debtor and should be
claimed and proven by him before the public auction. Failure of the debtor to prove that the
house and lot was their family home bars him from invoking the exemption( Versola vs. Court of
Appeals, G.R. No. 164740, July 31, 2006).

4. However, when the debtor invoked the exemptions timely but the trial court
disregarded his contention that the house and lot that was levied on execution by the Sheriff is
his family home, the execution is null and void. It is a serious error on the part of the trial court to
proceed with the execution without resolving or taking into account petitioner‟s allegations which
are material and relevant in the resolution of the motion for issuance of a writ of execution. The

court should have made an earnest determination of the truth to petitioner‟s claim that the house
and lot in which he and his children resided was their duly constituted family home. If it finds the
house and lot to be indeed a family home, the court should determine (a.) whether petitioner‟ s
obligation falls under either of the exceptions under Article 155 of the Family Code; ( b.) whether
the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the Family
Code; (c.) whether petitioner‟s spouse is still alive, as well as if there are other beneficiaries of
the family home; (d.) whether the petitioner has more than one residence for the purpose of
determining which of them, if any, is his family home; and (e.) where is its actual location and
value, for the purpose of applying the provisions of Articles 157 and 160 of the Family Code
(Albino Josef vs. Otelio Santos, G.R. No. 165060, November 27, 2008).

Art. 156 - The family home must be part of the

properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse
with the latter's consent. It may also be constituted by an
unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a

conditional sale on installments where ownership is reserved
by the vendor only to guarantee payment of the purchase
price may be constituted as a family home. (227a, 228a)

Art. 157 - The actual value of the family home shall not
exceed, at the time of its constitution, the amount of three
hundred thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such amounts as may
hereafter be fixed by law.

In any event, if the value of the currency changes after the

adoption of this Code, the value most favorable for the

constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to
include chartered cities and municipalities whose annual

!'(
 income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. (231a)

NOTES

1. The family home must stand on the land owned by the person or persons who
constituted it. If the said property was bought by installment and subject to a conditional sale
where ownership is reserved by the vendor to guarantee payment of the balance of the
purchase price, it is still considered as a family home.

2. The law fixes a ceiling in the value of the family home for it to be exempted from
execution, forced sale and attachment. If the family home is located in urban areas , its value
should not exceed Three Hundred Thousand Pesos (P300,000.00) at the time of its constitution.
If it is located in rural areas, its value should not exceed Two Hundred Thousand Pesos
(P200,000.00). The value is determined at the time of its constitution and not at the time it is
levied on execution. When the creditor believes that the family home is actually worth more
than the maximum amount fixed in Article 157, he may apply to the court which rendered the
judgment for an order directing the sale of the property under execution. After the execution
sale, the amount of P300,000 or P200,000 as the case may be, must be given first to the
judgment debtor who constituted the family home. The excess thereof will be applied to pay of f
the obligations and if ever there is a balance it shall be delivered to the debtor (Article 160 F.C.).

Art. 158 - The family home may be sold, alienated,

donated, assigned or encumbered by the owner or owners
thereof with the written consent of the person constituting
the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall
decide. (235a)

Art. 159 - The family home shall continue despite the

death of one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as there is a
minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the property or
constituted the family home. (238a)

Art. 160 - When a creditor whose claim is not among

those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court which
rendered the judgment for an order directing the sale of the
property under execution. The court shall so order if it finds

!')
 that the actual value of the family home exceeds the
maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the
maximum allowed in Article 157 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 mentioned in Article 157, and then
to the liabilities under the judgment and the costs. The
excess, if any, shall be delivered to the judgment debtor.
(247a, 248a)

NOTES

1. A family home cannot be sold, alienated, donated, assigned or encumbered by the

owners thereof without the written consent of the person constituting it, the latter‟s spouse, and
a majority of the beneficiaries of legal age. Thus, the parents cannot sell or encumber the family
home without the written consent of the majority of their children and other relatives who are
already of legal age and living in said family home. In case of disagreement, the court shall
decide.

2. The family home shall continue despite the death of the person who constituted it. It

shall remain as a family home for a period of ten years from the death of its owner or for as long
as there is still a minor beneficiary living therein. The heirs cannot partition the same unless the
court finds compelling reasons therefore. In the case of Arriola vs. Arriola , the Supreme Court
said that the purpose of Article 159 is to avert the disintegration of the family unit following the
death of its head. To this end, it preserves the family home as the physical symbol of family
love, security and unity by imposing the following restrictions on its partition; first, that the heirs
cannot extra-judicially partition it for a period of ten years from the death of one or both spouses
or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary
residing therein; and second, that the heirs cannot judicially partition it during the aforesaid
periods unless the court finds compelling reasons therefore(Arriola vs. Arriola, G.R.No. 177703,
January 28, 2008).

3. Grandchildren who are living with their parents and grand

mother at the latter‟s house
are not considered beneficiaries of the family home owned by the grandmother. Thus, upon the
death of the grandmother, the family home may be partitioned by her children and legal heirs.
Although the minor grandchildren are still living in the said house, they cannot prevent the
partition as they are not considered beneficiaries of the family home of their grandmother as
they are not dependent for support from the latter. The children are being supported by their
parents, one of whom happens to be a child of their grandmother(Patricio vs. Dario III, G.R. No.
170829, Nov. 20, 2006).

!'*
 Art. 161 - For purposes of availing of the benefits of a
family home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home. (n)

Art. 162 - The provisions in this Chapter shall also

govern existing family residences insofar as said provisions
are applicable. (n)

NOTES

1. A person can only have one family home or be a beneficiary of only one family home.
If a person has plenty of houses in different places, only one of that can be considered as his
family home, and that is the one where he habitually resides.

2. Those houses that were built before the effectivity of the Family Code on August 3,
1988 are automatically considered as family homes upon the effectivity of the Family Code
(Please see: Modequillo vs. Breva).

TITLE V

PATERNITY AND FILIATION

Chapter 1

Legitimate Children

Art. 163 - The filiation of children may be by nature or

by adoption. Natural filiation may be legitimate or illegitimate.
(n)

Art. 164 - Children conceived or born during the

marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the

wife with the sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate
of the child. (55a, 258a)

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 Art. 165 - Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code. (n)

NOTES

1. Paternity and filiation refer to the relationship or tie which exists between parents and
their children. Paternity refers to the status of the father in relation to his child, while maternity
refers to the status of the mother in relation to her child. Filiation, on the other hand, refers to
the status of a child in relation to his parents. The filiation of children may either be by nature or
by adoption. Natural filiation means that the relationship of the child to his parents is by blood
while filiation by adoption is artificial in nature as the relationship is only created by law. In the
New Family Code, there are only two classes of children, and they are thelegitimate and the
illegitimate children. Under the Civil Code, there used to be five kinds of illegitimate children,
and they are as follows: natural children, natural children by legal fiction, acknowledged or
recognized natural children, and illegitimate children other than natural such as spurious
children and adulterous children. These different types of illegitimate children have now been
abolished by the Family Code as all illegitimate children are now treated equally.

2. Legitimate children are those children born during lawful marriage while illegitimate
children are those born out of wedlock or inside a void marriage. However, there are void
marriages where the children born out of said marriages are considered legitimate. These are
the void marriages under Article 36 (psychological incapacity) and the void marriages under
Article 54 in relation to Articles 52 and 53 of the Family Code. Thus, not all void marriages result

to illegitimate children.
3. A child born of artificial insemination is considered legitimate under the Family Code,
provided the following conditions are present, to wit: (a.) both spouses have authorized in
writing the performance of artificial insemination on the wife; (b.) if the husband had no
knowledge of the artificial insemination, he ratified it upon knowledge; (c.) The instrument
containing the agreement of the parties must be executed before the birth of the child and shall
be recorded in the civil registry together with the birth certificate of the child. The sperm used in
artificial insemination may be that of the husband or a donor provided in the latter case the
husband has knowledge and consented to it. If the written authorization or ratification of the
husband was obtained through fraud, mistake, violence, intimidation or undue influence, the
husband may impugn the legitimacy of the child on these grounds.

4. A wife who undergoes artificial insemination using the semen of another man without
the knowledge and consent of her husband cannot be held liable of adultery because the crime
of adultery is defined in Article 333 of the Revised Penal Code as committed by any married

woman who shall have sexual intercourse with a man not her husband. Considering that
artificial insemination does not involve sexual intercourse which is one of the essential elements
in the crime of adultery, then there is no crime committed. Although it is said that the gist of the
crime of adultery is the danger of introducing a spurious child into the family, it must be noted

!(!
that criminal statutes are to be strictly construed under the rule in statutory construction, thus,
no one should be brought within their terms who is not clearly within them nor should any act be
pronounced criminal when it is not made so(U.S. vs. Abad Santos, 36 Phil. 243).

5. If the fertilized ovum of the wife using the semen of the husband was injected into
another woman hired by them assurrogate mother, the child born out of such procedure called
in-vetro fertilization, shall be considered as the child of the husband and wife and not of the
surrogate mother.

Art. 166 - Legitimacy of a child may be impugned only

on the following grounds:

(1) That it was physically impossible for the husband

to have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the birth of
the child because of:

(a) the physical incapacity of the husband to

have sexual intercourse with his wife;

(b) the fact that the husband and wife were

living separately in such a way that sexual intercourse was
not possible; or

(c) serious illness of the husband, which

absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other
scientific reasons, the child could not have been that of the
husband, except in the instance provided in the second
paragraph of Article 164; or

(3) That in case of children conceived through artificial

insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,
intimidation, or undue influence. (255a)

Art. 167 - The child shall be considered legitimate

although the mother may have declared against its legitimacy
or may have been sentenced as an adulteress. (256a)

NOTES

1. When the marriage is valid, only the husband and, in proper cases provided in Article
171, his heirs can impugn the legitimacy of a child on the grounds enumerated in Article 166.
On the other hand, the wife who delivers the child cannot make the child illegitimate by

!(#
declaring that the child is not that of her husband. Thus, even if the wife openly declares to the
whole world that the child she delivered is not of her husband but of another man, the child will
still be considered legitimate child of the husband and wife. This is true even if the wife is
convicted of adultery as said conviction should never affect the legitimate status of the child
born or conceived inside a valid marriage.

2. A condition sine qua non to the application of Articles 166 and 167 is that the child
must have been delivered by the wife who is the child‟s natural mother. It will not apply to a
situation where the alleged mother did not, in fact, deliver the child herself, or, that the child did
not really come from her own womb. Thus, if a child claims for a share in the estate of a

deceased husband as his legitimate child with his wife, the latter can deny that the child
claimant is not their child as he did not come from her womb. The wife can validly declare that
the child-claimant is not in any way related to her as her child, as the latter did not come from
her womb. In one case, the Supreme Court said, “who better than Sy Kao herself would know if
Chua Keng Giap was really her son? More than anyone else, it was Sy Kao herself who could
say – as indeed she has said many times – that Chua Keng Giap was not begotten of her
womb” (Chua Keng Giap vs. IAC, 158 SCRA 18).

3. The ground to impugn the legitimacy of the child under Article 166 par. 1 is anchored
on the great impossibility of the husband to be the father of the child delivered by his wife. A
child born during lawful wedlock is always presumed by law as a legitimate child of the husband
and wife. This presumption becomes conclusive in the absence of proof that there was physical
impossibility of access between the spouses in the first 120 days of the 300 days which
immediately preceded the birth of the child. The presumption is based on the assumption that
there is sexual union between the husband and wife, particularly during the period of
conception. In order to overthrow the presumption, it must be shown beyond reasonable doubt
that it was physically impossible for the husband to have sexual intercourse with his wife during
the period of conception of the child. If there is a probability that the husband could have
fathered the child, the doubt should be resolved in favor of the legitimacy of the child. Thus, in a
case where the husband was suffering from advance stage of tuberculosis at the time of the
conception of the child, and in fact he died thereof right after the birth of said child, the court
ruled that the child is still a legitimate one as the possibility of sexual intercourse between the
husband and wife during the period of conception is not far and remote. In fact, medical science
tells us that a person suffering from advance stage of tuberculosis is even more sexually
aggressive (Andal vs. Macaraig, 89 Phil. 165).

4. Paternity can be impugned if, for biological and scientific reasons, the offspring could
not have been that of the husband. For example, a white couple can never produce a black
child not unless either of them has a black ancestry. Also, if the husband is sterile then the child
delivered by his wife could not have been his child. However, for sterility to constitute proof of
non-paternity on the ground of biological or scientific reasons, the husband must be shown to be

completely sterile at the time when the child was conceived. The fact that the husband had
undergone vasectomy is not enough proof to rebut the presumption of legitimacy of the child
sired by his wife because it is still possible, despite the vasectomy, that the sperm can
rechannel itself and effect a fertilization. Blood grouping test is also an effective test of

!($
determining non-paternity. It is not however an accurate gauge to determine paternity. The
latest and most effective method of determining filiation is the DNA test, which is the
abbreviation of deoxyribonucleic acid.

5. In the case of Tijing vs. Court of Appeals decided in 2001, the Supreme Court opened
for the first time the possibility of admitting DNA as evidence of parentage. In subsequent cases,
the Court applied DNA test to determine the guilt of the accused in a rape case. Significantly,
the Court upheld the constitutionality of compulsory DNA testing and the admissibility of the
result thereof as evidence. Compelling the alleged father of a child to submit himself to DNA
testing does not violate his constitutional right against self incrimination as the right applies only

to testimonial compulsion. If, in a criminal case, an accused whose very life is at stake can be
compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein
who does not face such dire consequences cannot be ordered to do the same. For too long,
illegitimate children have been marginalized by fathers who chose to deny their existence. The
growing sophistication of DNA testing technology finally provides a much needed equalizer for
such ostracized and abandoned progeny. We have long believed the merits of DNA testing and
have repeatedly expressed as much in the past. This case comes at a perfect time when DNA
testing has finally evolved into a dependable and authoritative form of evidence gathering. We
therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means
of determining paternity (Arnel Agustin vs. Court of Appeals., G.R. No. 162571, June 15, 2005).

6. The process for DNA paternity testing had an accuracy rate of 99.9999% in
establishing paternity. In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data: how the samples were collected, how
they were handled, the possibility of contamination of the samples, the procedures followed in
analyzing the samples, whether the proper standards and procedures were followed in
conducting the tests, and the qualifications of the analyst who conducted the tests(Rosendo
Herrera vs. Alba, G.R. No. 148220, June 15, 2005).

7. With the advancement in the field of genetics, and the availability of new technology, it
can now be determined with reasonable certainty whether a man is the biological father of a
child, through DNA. If the alleged father of the child denies filiation, the court may order DNA
testing even if the said father has already died. The death of the alleged biological father does
not ipso facto negate the application of DNA (Deoxyribonucleic Acid) testing for as long as there
exist appropriate biological samples of his DNA Estate
( of Ong vs. Diaz, G.R. No. 171713, Dec.
17, 2007, 540 SCRA 480).

8. If the consent of the husband to the performance of artificial insemination was

obtained through mistake, fraud, violence, intimidation, or undue influence, the latter may
impugn the legitimacy of the child within the period provided by law.

9. The status and filiation of a child can never be compromised. The law and only the
law determines who are the legitimate or illegitimate children for one‟s legitimacy or illegitimacy
cannot ever be compromised. Thus, in a case filed by a child to recover a share in the estate of
his alleged father, the administrator of the estate of the deceased cannot enter into compromise

!(%
agreement recognizing the said child as an illegitimate child of the deceasedJose
( Rivero vs.
Court of Appeals, G.R. No. 141273, May 17, 2005).

10. A compromise agreement signed by the illegitimate child and her alleged father to
settle the case for recognition filed by the former against the latter in the RTC of Cebu City,
Branch 9 whereby the child agreed to receive from her alleged father the sum of Two Million
Pesos (P2,000,000.00) in consideration for the chil d‟s declaration that there is no blood relation
between her and the respondent is NULL and VOID as it is against the law and public policy.
Article 2035 of the Civil Code prohibits compromise on the civil status of persons, validity of
marriage, legal separation, future support, jurisdiction of courts, future legitime, etc. Thus, when

the child refiled the same case in another court, RTC of Cebu City, Branch 24, the said
compromise agreement cannot serve as ares judicata to bar the filing of the said case. The
dismissal of the case by RTC Cebu, Branch 24 on the ground of res judicata is not correct. RTC
Branch 9 had no authority to approve and give effect to a Compromise Agreement that was
contrary to law and public policy, even if said contract was executed and submitted for approval
by both parties. No court can allow itself to be used as a tool to circumvent the explicit
prohibition under Article 2035 of the Civil Code (Joanie Surposa Uy vs. Jose Ngo Chua, G.R.
No. 183965, September 18, 2009).

11. In another case, the Supreme Court ruled that the marriage of a woman to a man
during the existence of her marriage to her first husband is null and void for being bigamous.
The child born out of said union can never be considered as illegitimate child but a legitimate
child of the woman and her first husband. Thus, when Ma. Theresa married Gerardo
Concepcion resulting to the birth of the child named Jose Gerardo, but their marriage was later
on declared null and void for being bigamous as Ma. Theresa was found to be lawfully married
to a certain Mario Gopiao, and such marriage was not yet legally dissolved, the Court ruled that
the child Jose Gerardo is a legitimate child of Ma.Theresa and Mario, not an illegitimate child of
Ma.Theresa and Gerardo. Since the child was born during the marriage of Ma. Theresa and
Mario, the child is their legitimate child. Even if the birth certificate of the child states that his
father is Gerardo Concepcion, the same cannot prevail as against the provision of law. Gerardo,
being not the father of the child under the law, has no demandable visitorial right over the latter
(Gerardo Concepcion vs. Court of Appeals, G.R. No. 123450, August 31, 2005).

Art. 168 - If the marriage is terminated and the mother

contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:

(1.) A child born before one hundred eighty days after

the solemnization of the subsequent marriage is considered
to have been conceived during the former marriage, provided
it be born within three hundred days after the termination of
the former marriage;

!(&
 (2.) A child born after one hundred eighty days
following the celebration of the subsequent marriage is
considered to have been conceived during such marriage,
even though it be born within the three hundred days after
the termination of the former marriage. (259a)

Art. 169 - The legitimacy or illegitimacy of a child born

after three hundred days following the termination of the
marriage shall be proved by whoever alleges such legitimacy
or illegitimacy. (261a)

NOTES

1. The reason why the wife is prohibited by law to contract a second marriage within
three hundred (300) days after the termination of her marriage, as in the case of death of her
husband, is to avoid doubtful paternity and filiation. Access between spouses is presumed
during the marriage and this presumption holds even immediately before the termination of their
marriage. Thus, it is possible that the husband may have sexual contact with his wife the day
before the termination of their marriage. Considering that the law fixes the period of 300 days as
the longest gestation period for a child inside the womb of his mother, the law prohibits the wife
to remarry to prevent a confusion as to the paternity of the child that she may deliver within the
said period.

2. Should the wife decide to remarry and deliver a child within the prohibited 300 day
period , the said child is presumed to be the child of the first husband if he is born within 180 of
the second marriage; otherwise, the child is already considered as that of the second husband.

If the child is born after 300 days following the termination of the marriage, the legitimacy or
illegitimacy of the child shall be proved by whoever alleges such legitimacy or illegitimacy.

Art. 170 - The action to impugn the legitimacy of the

child shall be brought within one year from the knowledge of
the birth or its recording in the civil register, if the husband
or, in a proper case, any of his heirs, should reside in the city
or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside
at the place of birth as defined in the first paragraph or where
it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the
discovery or knowledge of the birth of the child or of the fact
of registration of said birth, whichever is earlier. (263a)

!('
 Art. 171 - The heirs of the husband may impugn the
filiation of the child within the period prescribed in the
preceding article only in the following cases:

(1.) If the husband should die before the expiration of

the period fixed for bringing his action;

(2.) If he should die after the filing of the complaint

without having desisted therefrom; or

(3.) If the child was born after the death of the

husband. (262a)

NOTES

1. Legitimacy cannot be collaterally attacked or impugned. A direct action precisely filed

for the purpose of assailing the legitimacy of the child must be filed. Only the husband can file
the direct action impugning the legitimacy of the child. His heirs can substitute him only if he
dies before the expiration of the period fixed by law for bringing the action, or if the husband
should die after the filing of the complaint, without having desisted therefrom, or if the child was
born after the death of the husband.

2. In an action for reconveyance filed by a niece to recover a property formerly belonging

to her aunt, the niece presented evidence to prove that she is the daughter of the brother of her
aunt. Respondent filed a motion to dismiss questioning the filiation of the said niece, claiming
that there is no sufficient evidence to prove her legitimate filiation to her alleged father, and
consequently, with her aunt. The Supreme Court said that the respondent had no legal
personality to impugn the legitimacy of the niece as the said respondent was not the “husband”
referred to in the law and also the issue of legitimacy cannot be properly controverted in an
action for reconveyance. Legitimacy cannot be collaterally attacked but only directly attacked by
the husband of the niece‟s mother (Tison vs. Court of Appeals, 276 SCRA 582). Likewise,
impugning the legitimacy of a child cannot be made in action for partition as this is a collateral
attack (De Jesus vs. De Jesus, G.R. No. 142877, October 2, 2001).

3. An action filed by a legitimate child to cancel the birth certificate of their housemaid‟s
child who claimed to be her sister and therefore also a legitimate child of her parents is not
violative of the above-mentioned rule, especially that the legitimate child was able to prove that
the said housemaid‟s child was not given birth by her mother and that the birth certificate of the
said child was a forgery. The Supreme Court rejected the contentions of the housemaid‟s ch ild

that the legitimate child cannot anymore impugn her legitimacy on the ground that only the
alleged father can do so and that the action had already prescribed. Article 171 applies only
when the husband impugns the legitimacy of the child delivered by his wife. In this case it was
shown that the child was not born to the wife of the husband. The prayer herein did not ask the

!((
court to declare the child as an illegitimate child of plaintiff‟s parents but instead to declare her to
be not the child of the parents at all. Verily, the present action does not impugn the child‟s
filiation to the Spouses Eugenio and Hermogena Babiera, because there is no blood relation to
impugn in the first place. As to the issue of prescription, the Court said that this is an action for
cancellation of petitioner‟s birth certificate. It does not impugn her legitimacy, thus, the
prescriptive period set forth in Article 170 of the Family Code does not apply. The action to
nullify the birth certificate does not prescribe, because it was allegedly void ab initio (Babiera vs.
Catotal, G.R. No. 138493, June 15, 2000).

4. There are three prescriptive periods for the husband or, in proper cases, the heirs to

impugn the legitimacy of the child. The one year, two years and three years prescriptive period
is counted from the knowledge of the birth of the child or its recording in the civil register and not
from the knowledge that the child is not his. Thus, if the husband was present and had full
knowledge of the birth of the child and he discovered only after three years that the child is not
his, he could no longer file an action to impugn the legitimacy of the child as the same has
already prescribed. However, if the birth of the child was concealed by the wife (meaning the
husband did not know that his wife gave birth to a child), the prescriptive period will not start to
run until after the discovery or knowledge of the husband of the birth of the child, or of the fact of
registration of said birth, whichever is earlier.

Chapter 2

Proof of Filiation

Art. 172 - The filiation of legitimate children is

established by any of the following:

(1.) The record of birth appearing in the civil register or

a final judgment; or

(2.) An admission of legitimate filiation in a public

document or a private handwritten instrument and signed by
the parent concerned.

In the absence of the foregoing evidence, the

legitimate filiation shall be proved by:

(1.) The open and continuous possession of the status

of a legitimate child; or

(2.) Any other means allowed by the Rules of Court

and special laws. (265a, 266a, 267a)

Art. 173. The action to claim legitimacy may be

brought by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during minority

!()
 or in a state of insanity. In these cases, the heirs shall have a
period of five years within which to institute the action.

NOTES

1. There are two sets of evidence that will prove or establish filiation. The first two
paragraphs of Article 172 can be considered as the primary proofs of f iliation while the last two
paragraphs thereof are considered as thesecondary proofs of filiation. The record of birth of
the child as appearing inthe civil register or thefinal judgment of the court where filiation of the
child was declared, as well as the admission of legitimate filiation in a public instrument or in a
private handwritten instrument and signed by the parent concerned are considered as the
strongest proof of filiation.

2. A record of birth appearing in the civil register is a very good proof of legitimate
filiation as it comes from an official government source. It is a prima facie evidence of the facts
therein contained because it is considered a public document. However, for a birth certificate to
be considered sufficient proof of filiation, there must be evidence of participation of the alleged
father of the child in the making of such document. Thus, it has been held that if the alleged
father did not sign in the birth certificate, the placing of his name by the mother, or doctor or
registrar, is incompetent evidence of paternity of said child Berciles
( vs. GSIS, 128 SCRA 53;
Reyes vs. Court of Appeals, 135 SCRA 439).

3. A final judgment refers to a judicial decision where the status of the child as legitimate
is in issue, thus, the judgment of the court is binding and conclusive. The case upon which the
judgment was rendered must involve the issue of whether or not the child is a legitimate child of
his father and the court‟s judgment must make a categoricalfinding that the child is legitimate. If

the declaration of the court is a mereobiter dictum, it does not establish filiation.
4. Admission of legitimate filiation in a public instrument or in a private handwritten
instrument and signed by the father is considered a complete act of recognition which does not
require court action. A public instrument is normally notarized by a lawyer but a private
instrument does not need one. However, for a private instrument, like a love letter, to be
considered a good proof of filiation, it must be in the handwriting of the alleged father and duly
signed by him. Thus, a typewritten letter of the alleged father where he recognized the child as
his is not a strong proof of filiation.

5. An unsigned Autobiography where the putative father acknowledged paternity of the

child may be considered sufficient proof of filiation if special circumstances exist to establish that
the child is really his. In view of the pronouncements herein made, the Court sees it fit to adopt
the following rules respecting the requirement of affixing the signature of the acknowledging
parent in any private handwritten instrument wherein an admission of filiation of a legitimate or
illegitimate child is made: a .) Where the private handwritten instrument is the lone piece of

evidence submitted to prove filiation, there should be strict compliance with the requirement
that the same must be signed by the acknowledging parent; AND b.) Where the private
handwritten instrument is accompanied by other relevant and competent evidence, it suffices
that the claim of filiation therein be shown to have been made and handwritten by the

!(*
 (Jenie San Juan De
acknowledging parent as it is merely corroborative of such other evidence
la Cruz vs. Gracia, G.R. No. 177728, July 31, 2009).

6. In the absence of primary proofs, the secondary proofs of filiation can be used. Open
and continuous possession of the status of a legitimate child does not mean that the concession
of status shall continue forever but only that it shall not be of an intermittent character while it
continues. There must be a showing of the permanent intention of the supposed father to
consider the child as his own, by continuous and clear manifestation of paternal affection and
care (Mendoza vs. Court of Appeals, 201 SCRA 675). The manifestation of paternal affection
and care must not just be an act of charity but of such a nature that they reveal not only the

conviction of paternity, but also the apparent desire to have and treat the child as such in all
relations in society and in life, not accidentally but continuously. Thus, where the alleged father
only met the respondent four times to give him money, the claim of continuous possession was
rejected by the Supreme Court(Ong vs. Court of Appeals, 272 SCRA 725).

7. Filiation can also be proved by any other means allowed by the Rules of Court and
special laws. In the case of Mendoza vs. Court of Appeals, 201 SCRA 675, the Supreme Court
said that this means allowed by the Rules of Court may consist of baptismal certificate, a judicial
admission, a family bible in which the name of the child has been entered, common reputation
respecting pedigree, admission by silence, the testimony of witnesses and such other kinds of
proof admissible under Rule 130 of the Rules of Court. In Jison vs. Court of Appeals, G.R. No.
124853, February 24, 1998, the Supreme Court ruled that the lack of participation of the alleged
father in the preparation of the baptismal certificate and school records renders these
documents incompetent to prove paternity, with the former merely competent only to prove the
administration of baptism on the date so specified.

8. An action to claim legitimacy may be brought by the child anytime during his or her
lifetime. The heirs of the child may bring the action if the child died during minority or in the state
of insanity. In these cases, the heirs have only five years from the death of the child within which
to institute the action (Article 173 FC).

Art. 174 - Legitimate children shall have the right:

(1.) To bear the surnames of the father and the mother,

in conformity with the provisions of the Civil Code on
Surnames;

(2.) To receive support from their parents, their

ascendants, and in proper cases, their brothers and sisters,
in conformity with the provisions of this Code on Support;
and

(3.) To be entitled to the legitime and other

successional rights granted to them by the Civil Code. (264a)

!)+
 NOTES

1. A legitimate child shall have the right to bear the surname of his father and mother,
receive support from his parents, ascendants or brother and sisters, and to be entitled to the
legitime and other successional rights. An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or mother (Article 992 of the Civil Code)
while a legitimate child can so inherit.

Chapter 3

Illegitimate Children

Art. 175 - Illegitimate children may establish their

illegitimate filiation in the same way and on the same
evidence as legitimate children.

The action must be brought within the same period

specified in Article 173, except when the action is based on
the second paragraph of Article 172, in which case the action
may be brought during the lifetime of the alleged parent.
(289a)

NOTES

1. The evidences to establish legitimate filiation under Article 172 are the very same
evidences or proofs to prove illegitimate filiation. The action must be brought during the lifetime
of the child and shall be transmitted to the heirs should the child die during minority or in the
state of insanity pursuant to Article 173 of the Family Code. However, if the action for
recognition is based on the second paragraph of Article 172, it must be filed only during the
lifetime of the alleged parent. Thus, if the evidences of filiation in the possession of the child are
only those of the second paragraph of Article 172 (ie., open and continous possession of the
status of a legitimate child and any other means allowed by the Rules of Court), the action must
be brought when the alleged father is still alive; otherwise, the action is barred by prescription.

2. The child may prove his illegitimate filiation only when, at the time of his birth, his
mother is not lawfully married to his alleged father. However, when the child‟s mother is lawfully
married to another man who is not his biological father, the child is always considered to be a
legitimate child of his mother and the legal husband. This is because the law declares that a
child conceived and born inside a valid marriage is always presumed legitimate. In this case,
only the husband and his heirs, in special cases, are given the legal standing to file an action to
impugn the legitimacy of the child (see Art. 170 & 171 of the Family Code). The child cannot

prove that he is an illegitimate child of his mother with another man because it would contradict
his status as a legitimate child of his mother and her legal husband. Thus, even if the child is
voluntarily acknowledged by his married father in his last will and testament, still it would not

!)!
make him an illegitimate child of his biological father because it would in effect change his
legitimate status to that of illegitimacy(De Jesus vs. Dizon, G.R. No. 142877, Oct. 2, 2001).

3. An illegitimate child may prove his illegitimate filiation only during the lifetime of his
putative father if his evidences of filiation are only the secondary proofs of filiation (Article 174
par. 2 of the Family Code). However, if the child was born before the effectivity of the Family
Code on August 3, 1988, the law that will govern is the Civil Code of the Philippines which
provides that an illegitimate child whose putative father dies during his minority, has four years
upon reaching the age of majority within which to file an action to prove his filiation. This is a
vested right which cannot be removed by a new law; thus, a legitimate child may still invoke this

right even if his putative father died after the effectivity of the new Family Code (Bernabe vs.
Alejo, January 21, 2002).

Art. 176 - Illegitimate children shall use the surname

and shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code. 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 successional
rights shall remain in force. (287a)

NOTES

1. Illegitimate children shall use the surname of their mother. The reason is that if the
child is illegitimate only the maternity is certain while paternity is not. Before the Family Code
took effect, illegitimate children may use the surname of their father if they were acknowledged

by theirCode.
Family fatherInand
theallowed by the lattervs.
case of Mossesgeld to Court
use his
of surname but this
Appeals, G.R. No.rule was December
111455, changed by23,the
1998, the Supreme Court, applying Article 176 of the Family Code, ruled that illegitimate
children shall use the surname of their mother regardless of whether or not the father admits
paternity. This has been the rule until Republic Act No 9255 was passed which now allows
illegitimate children to carry the surname of their putative father if acknowledged by the latter
(Please see Appendix “L”).

2. Parental authority over illegitimate children is also vested on the mother. However, it
is submitted that if the father of the illegitimate child is living with him and his mother under one
roof and admits that the child is his, the said father shall also exercise parental authority over
the child jointly with his mother. This is so because of Article 211 of the Family Code which
provides that “the father and the mother shall jointly exercise parental authority over the person
of their common children. In case of disagreement, the father’s decision shall prevail, unless
there is a judicial order to the contrary.”

3. The legitime of an illegitimate child is one-half of the legitime of a legitimate child. The
Family Code has already removed the classification of illegitimate children into five types. Thus,
under the present law, all illegitimate children are treated equally.

!)#
 Chapter 4

Legitimated Children

Art. 177 - Only children conceived and born outside of

wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry
each other may be legitimated. (269a)

Art. 178 - Legitimation shall take place by a

subsequent valid marriage between parents. The annulment
of a voidable marriage shall not affect the legitimation.

Art. 179 - Legitimated children shall enjoy the same

rights as legitimate children. (272a)

NOTES

1. A legitimated child is onewho was conceived and born outside of wedlock to parents
who, at the time of the conception of the child, were not disqualified by any legal impediment to
marry each other and said parents subsequently entered into a lawful marriage. The following
are the essential and mandatory requirements for legitimation:

a.) The child was conceived and born outside of wedlock.

b.) The parents do not suffer any legal impediments to marry

each other at the time of the conception of the child.
c.) The parents subsequently enters into a valid marriage.

2. The child must be conceived AND born outside wedlock. If the child was conceived
outside wedlock but born after his parents were already lawfully married, he is already
considered legitimate child and not just legitimated. Legitimation shall take place by a
subsequent valid marriage of the child‟s parent s. Thus, if the subsequent marriage of the
parents is void, no legitimation takes place. But, if the subsequent marriage is merely voidable
(meaning valid until annulled), legitimation applies even if the said marriage was later on
annulled.
3. Under the Civil Code, before a child can be legitimated, such child must also be
acknowledged by the father. Thus, if the child was conceived and born outside of wedlock
before the effectivity of the Family Codeto parents who have no legal impediments to marry
each other, the subsequent marriage of his parents will not automatically legitimize him if his

father
Code on does not want
August to acknowledge
3, 1988, him
the child shall beas his. However,
considered as a upon the effectivity
legitimated child evenof without
the Family
the
acknowledgment of the father as the Family Code shall apply retroactively and acknowledgment
of the father is no longer considered a condition to legitimation.

!)$
 4. A legitimated child enjoys all the rights of a legitimate child. He i s entitled to the same
hereditary right and shall carry the surname of the father.
5. Article 177 has already been amended by R.A. 9858 which allows legitimation to
children born of parents whose only impediment is that one or both of them is still a minor at the
time the child was conceived and born (Please see Appendix “M”).

Art. 180 - The effects of legitimation shall retroact to

the time of the child's birth. (273a)

Art. 181 - The legitimation of children who died before

the celebration of the marriage shall benefit their
descendants. (274)

Art. 182 - Legitimation may be impugned only by those

who are prejudiced in their rights, within five years from the
time their cause of action accrues. (275a)

NOTES

1. The subsequent valid marriage of the parents will legitimize the child not from the time
of such marriage but from the time of birth of the child. This is so because legitimation shall
retroact to the time of the child‟s birth. It is as if the child is their legitimate child from the time of
the latter‟s birth and not from the time of their marriage. Legitimation will also take place even if
the child is already dead at the time of the marriage of his parents. This is what we call as
posthumous legitimation. Thus, if the legitimated child who died before the subsequent marriage
of his parents has some descendants, his descendants will also be benefited by the legitimation
as they will now be entitled to inherit from the parents of the deceased legitimated child.

2. Legitimation can only be questioned by those who are prejudiced in their rights. These
persons refer to the legal heirs of the parents as they will surely be affected by the elevation of
the status of a legitimate child to that of a legitimated child. The persons who are prejudiced in
their rights do not include creditors as the rights being referred to in the law is the successional
right. The prescriptive period to impugn legitimation is five years from the time the cause of
action accrues, which is from the death of the parents of the legitimated child because it is only
at that time when the successional rights to the legitime will vest.

3. The Local Civil registrar shall maintain a legitimation register where the legitimation of
a child may be recorded. It is in the said register where the relevant facts about the legitimation
of a child shall be entered (seeSection 8 of the Civil Registry Law, Act No. 3753).

TITLE VII

!)%
 ADOPTION

The provisions on Adoption found in Article 183 to 193 (Title VII) of the Family Code has
already been repealed by R.A. 8552 approved on February 25, 1998 by Pres. Fidel V. Ramos.
Furthermore, there is another law which amended our law on adoption and that is the Inter-
Country Adoption Law of 1995 or R.A. 8043 approved by Pres. Ramos on June 7, 1995. Thus,
our present law on adoption is now primarily governed by R.A. 8552 and R.A. 8043.

REPUBLIC ACT NO. 8552

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE

DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES

ARTICLE I

GENERAL PROVISIONS

SECTION 1. Short Title – This Act shall be known as

the ―Domestic Adoption Act of 1998.‖

SECTION 2. Declaration of Policies-

a.) It is hereby declared the policy of the State to

ensure that every child remains under the care and custody
of his/her parent(s) and be provided with love, care,
understanding and security towards the full and harmonious
development of his/her personality. Only when such efforts
prove insufficient and no appropriate placement or adoption
within the child’s extended family is availableshall adoption
by an unrelated person be considered.
b.) In all matters relating to the care, custody and
adoption of a child, his/her interest shall be the paramount
consideration in accordance with the tenets set forth in the
United Nations (UN) Convention on the Rights of the Child;
UN Declaration on Social and Legal Principles Relating to the
Protection and Welfare of Children with Special Reference to
Foster Placement and Adoption, Nationally and
Internationally; and the Hague Convention on the Protection
of Children and Cooperation in Respect of Inter-country
Adoption. Toward this end, the State shall provide alternative
protection and assistance through foster care or adoption for
every child who is neglected, orphaned, or abandoned.
c.) It shall be a State policy to:

!)&
 (i) Safeguard the biological parent(s) from
making hurried decisions to relinquish his/her parental
authority over his/her child;
(ii) Prevent the child from unnecessary
separation from his/her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to
disturb his/her parental authority and custody over
his/her adopted child.
Any voluntary or involuntary termination of
parental authority shall be administratively or judicially
declared so as to establish the status of the child as
―legally available for adoption‖ and his/her custody
transferred to the Department of Social Welfare and
Development or to any duly licensed and accredited
child-placing or child-caring agency, which entity shall
be authorized to take steps for the permanent
placement of the child;
(iv) Conduct public information and educational
campaigns to promote a positive environment for
adoption;
(v) Ensure that sufficient capacity exists within
government and private sector agencies to handle
adoption inquiries, process domestic adoption
applications, and offer adoption-related services
including, but not limited to, parent preparation and
post-adoption education and counselling; and
(vi) Encourage domestic adoption so as to
preserve the child’s identity and culture in his/her
native land, and only when this is not available shall
inter-country adoption be considered as a last resort.

SEC. 3 Definition of Terms. – For purposes of this Act,

the following terms shall be defined as:
(a.) ―Child‖ is a person below eighteen (18) years of
age.
(b.)―A child legally available for adoption ― refers to a
child who has been voluntarily or involuntarily committed to
the Department or to a duly licensed and accredited child-
placing or child-caring agency, freed of the parental authority
of his/her biological parent(s) or guardian or adopter(s) in

case of(c.)
rescission of adoption.
―Voluntarily committed child‖ is one whose
parent(s) knowingly and willingly relinquishes parental
authority to the Department.

!)'
 (d.)―Involuntarily committed child‖ is one whose
parent(s), known or unknown, has been permanently and
judicially deprived of parental authority due to abandonment;
substantial, continuous, or repeated neglect; abuse; or
incompetence to discharge parental responsibilities.
(e.) ―Abandoned child‖ refers to one who has no
proper parental care or guardianship or whose parent(s) has
deserted him/her for a period of at least six (6) continuous
months and has been judicially declared as such.
(f.) ―Supervised trial custody‖ is a period of time within
which a social worker oversees the adjustment and emotional
readiness of both adopter(s) and adoptee in stabilizing their
filial relationship.
(g.) ―Department‖ refers to the Department of Social
Welfare and Development.
(h.) ―Child-placing agency‖ is a duly licensed and
accredited agency by the Department to provide
comprehensive child welfare services including, but not
limited to, receiving applications for adoption, evaluating the
prospective adoptive parents and preparing the adoption
home study.
(i.) ―Child-caring agency‖ is a duly licensed and
accredited agency by the Department that provides twenty-
four (24)-hour residential care services for abandoned,
orphaned, neglected, or voluntarily committed children.
(j.) ―Simulation of birth‖ is the tampering of the civil
registry making it appear in the birth records that a certain
child was born to a person who is not his/her biological
mother, causing such child to lose his/her true identity and
status.

NOTES
1. Adoption is an artificial process of establishing a relationship of parent and child
between persons who are generally not related by nature. This process is done by law, hence,
adoption is purely a statutory creation. It is therefore important that all requirements for ad option
under the law must be strictly complied with; otherwise, an adoption decree issuedby the court
without complying with such requirements will be null and void. However, in the case of
Republic vs. Court of Appeals & Zenaida Bobiles, 205 SCRA, 356, the Supreme Court ruled that
adoption statutes, as well as matters of procedure leading up to adoption, can be liberally
construed to carry out the beneficient purposes of adoption and for as long as there is

substantial compliance with the mandatory requirements under the law. As a matter of policy of
the state, all measures to maintain the natural parent‟s authority and custody of their children
must be encouraged and implemented. Only when such efforts prove to be insufficient and no

!)(
appropriate placement or adoption within the child‟s extended family is available shall adoption
by an unrelated person be considered.

2. The modern view on adoption is that it is geared towards the promotion of the welfare
of the child and the enhancement of his or her opportunities for a useful and happy life rather
than looking at it as a pure act of generosity on the part of the adopter. Our present law on
adoption holds the paramount interest and welfare of the child to be adopted and are designed
to provide these children a brighter future.

ARTICLE II
PRE-ADOPTION SERVICES

SEC. 4 Counseling Services – The Department shall

provide the services of licensed social workers to the
following:
(a.) Biological Parent(s) – Counseling shall be
provided to the parent(s) before and after the birth of his/her
child. No binding commitment to an adoption plan shall be
permitted before the birth of his/her child. A period of six (6)
months shall be allowed for the biological parent(s) to
reconsider any decision to relinquish his/her child for
adoption before the decision becomes irrevocable.
Counseling and rehabilitation services shall also be offered
to the biological parent(s) after he/she has relinquished
his/her child for adoption.
Steps shall be taken by the Department to ensure that
no hurried decisions are made and all alternatives for the
child’s future and the implications of each alternative have
been provided.

(b.) Prospective Adoptive Parent(s) – Counseling

sessions, adoption fora and seminars, among others, shall be
provided to the prospective adoptive parent(s) to resolve
possible adoption issues and to prepare him/her for effective
parenting.

(c.) Prospective Adoptee – Counseling sessions shall

be provided to ensure that he/she understands the nature and
effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.

SEC. 5 Location of Unknown Parent(s) – It shall be the

duty of the Department or the child-placing or child-caring
agency which has custody of the child to exert all efforts to

!))
 locate his/her unknown biological parent(s). If such efforts
fail, the child shall be registered as a foundling and
subsequently be the subject of legal proceedings where
he/she shall be declared abandoned.

SEC. 6 Support Services - The Department shall

develop a pre-adoption program which shall include, among
others, the above-mentioned services.

NOTES
1. The DSWD is mandated by law to provide pre-adoption services to all the principal
parties involved in the adoption. This consists in providing the services of a licensed social
worker who will assist the biological parents, prospective adopter, and the child to be adopted
on all matters relating to adoption. Counselling sessions are to be provided to the biological
parents to see to it that no hurried decision is made in having his/her child adopted by another
person. On the other hand, the prospective adopter as well as the child to be adopted will also
undergo counselling sessions to prepare themselves psychologically and emotionally in entering
into a new phase in their lives.
2. If the child is an abandoned child or a foundling, the DSWD shall exert all efforts to
find or locate the biological parents of the child before declaring the child available for adoption.
It is only after all efforts to find the parents of the child fails, that the child be registered as a
foundling and subsequently be made available for adoption.

ARTICLE III
ELIGIBILITY

SEC. 7. Who May Adopt. – The following may adopt:

(a.) Any Filipino citizen of legal age, in possession of

full civil capacity and legal rights, of good moral character,
has not been convicted of any crime involving moral
turpitude, emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the adoptee,
and is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of
sixteen (16) years difference between the age of the adopter
and the adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the
adoptee’s parent;

(b.) Any alien possessing the same qualifications as

above stated for Filipino nationals: Provided, That his/her
country has diplomatic relations with the Republic of the

!)*
 Philippines, that he/she has been living in the Philippines for
at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until
the adoption decree is entered, that he/she has been certified
by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to
adopt in his/her country, and that his/her government allows
the adoptee to enter his/her country as his/her adopted
son/daughter: Provided, further, That requirements on
residency and certification of the alien’s qualification to adopt
in his/her country may be waived for the following:

(i) A former Filipino citizen who seeks to adopt a

relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse;
or

(c.) The guardian with respect to the ward after the

termination of the guardianship and clearance of his/her
financial accountabilities.

Husband and wife shall jointly adopt, except in the

following cases:
(i) If one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, however,
That the other spouse has signified his/her
consent thereto; or
(iii) If the spouses are legally separated from each
other.

In case the husband and wife jointly adopt, or one

spouse adopts an illegitimate son/daughter of the other, joint

parental authority shall be exercised by the spouses.

NOTES

!*+
 1. The adopter can either be a Filipino citizen or a Foreigner. If the adopter is a Filipino
citizen, he/she must possess the following qualifications:
a.) Legal age
b.) In possession of full civil capacity and legal rights
c.) Good moral character
d.) Has not been convicted of any crime involving moral turpitude
e.) Emotionally and psychologically capable of caring for children
f.) At least sixteen (16) years older than the adoptee
g.) In a position to support and care for his/her children in keeping
with the means of the family.
However, the 16 years age gap between the adopter and the adoptee may be waived
when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee‟s
parent.

2. If the adopter is a foreigner, he must possess all the qualifications of a Filipino adopter
and, in addition thereto, he must also possess the following qualifications:
a.) His country has diplomatic relation with the Philippines.
b.) He must have resided in the Philippines for at least three (3) continuous
years prior to the filing of his application for adoption.
c.) Must be certified by his/her diplomatic or consular office or any appropriate
agency that he/she has the legal capacity to adopt in his/her country and that
his/her government allows the adoptee to enter his/her country as his/her
adopted child.
However, the three (3) years residence requirements and the certification of his legal
capacity to adopt in his own country may be waived under the following:
th
(i) A former Filipino citizen who seeks to adopt a relative within the fourth (4 )
degree of consanguinity or affinity; or
(ii) One who seeks to adopt the legitimate son/daughter of his/her Filipino
Spouse; or
(iii) One who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the fourth (4th) degree of consanguinity
or affinity of the Filipino spouse.

3. Guardians may adopt their wards but only after the termination of the guardianship and
that clearance of his/her financial accountabilities has already been approved by the court.

4. When the adopter is a married person, his/her spouse must join him/her in the
adoption. However, in the following instances the spouse may adopt alone, to wit:
(i) if he/she seeks to adopt the legitimate son/daughter of the other spouse.
(ii) if he/she seeks to adopt his/her own illegitimate child. Provided, however,

that the other spouse must have signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

!*!
 5. The waiver of the three (3) years residence requirement for alien adopters is an
exception to the general rule, hence, it must be strictly construed. Thus, a Filipina woman who
married an American husband, acquired her husband‟s American citizenship and conseq uently
lost her Filipino citizenship, cannot anymore adopt jointly with her husband her own younger
brother without complying with the 3 years residence requirement. When the former Filipina and
her American husband returned to the Philippines and, after one year, filed a petition to adopt the
Filipina wife‟s younger brother, the Supreme Court ruled that they are not qualified. They cannot
avail of the waiver of 3 years residency and certification requirements because they do not fall
under the exceptions. First, the husband is not a former Filipino citizen but anatural-born citizen
of the United States of America. Although the wife is a former Filipino citizen, she could not adopt
alone as she is already married and she must therefore join her husband in the adoption but the
latter is disqualified. Secondly, the child to be adopted is not the legitimate child of the Filipino
spouse. Lastly, when the spouses jointly filed the petition to adopt the Filipina wife‟s brother (who
is a relative of the wife within the fourth civil degree of consanguinity), the said wife was no
longer a Filipino citizen(Republic vs. Toledano, et al. G.R. No. 94147, June 8, 1994).

6. A woman who remarries cannot adopt a child without joining her second husband as
co-petitioner. The execution of Affidavit of Consent by the second husband will not suffice. The
law is clear and the principle of dura lex sed lex is very much applicable as the law is explicit that
the husband and the wife shall jointly adopt. The use of the word “shall” means that joint
adoption by the husband and wife is mandatory. There is no room for ambiguity. Petitioner,
having remarried at the time the petitions for adoption were filed, must jointly adopt. The filing of
a case for dissolution of marriage by the second husband against the petitioner during the
pendency of the petition for adoption is of no moment. It is not equivalent to a decree of
dissolution of marriage. Until and unless there is a judicial decree for the dissolution of marriage,
the marriage still subsists. That being the case, joint adoption by the husband and the wife is
required (In re: Petition for Adoption of Michelle P. Lim and Michael Jude P. Lim, G.R. No.
168992-93, May 21, 2009).

SEC. 8. Who may be adopted – The following may be

adopted:

(a.) Any person below eighteen (18) years of age who

has been administratively or judicially declared available for
adoption;
(b.) The legitimate son/daughter of one spouse by the
other spouse;
(c.) An illegitimate son/daughter by a qualified adopter
to improve his/her status to that of legitimacy;
(d.) A person of legal age if, prior to the adoption, said

person
adopter has been consistently
as his/her considered
own child since and treated by the
minority;
(e.) A child whose adoption has been previously
rescinded; or

!*#
 (f.) A child whose biological father or adoptive
parent(s) has died: Provided, that no proceedings shall be
initiated within six (6) months from the time of death of said
parents(s).

SEC. 9. Whose Consent is Necessary to the Adoption

– After being properly counselled and informed of his/her
right to give or withhold his/her approval of the adoption, the
written consent of the following to the adoption is hereby
required:
(a.) The adoptee, if ten (10) years of age or over;

(b.) The biological parent(s) of the child, if known, or

the
legal guardian, or the proper government instrumentality
which has legal custody of the child;

(c.) The legitimate and adopted sons/daughters, ten

(10) years of age or over, of the adopter(s) and adoptee, if
any;

(d.) The illegitimate sons/daughters, ten (10) years of

age or over, of the adopter if living with said adopter and the
latter’s spouse, if any, and

(e.) The spouse, if any, of the person adopting or to be

adopted.

NOTES
1. As a general rule, only minors may be adopted. However, certain exceptions are
provided for by law and they are as follows:
a.) When the child to be adopted is the illegitimate child of the adopter,
b.) When the child to be adopted is the legitimate child of the adopter‟s spouse,
c.) When the child to be adopted has been consistently treated as a child of the
adopter during minority. This is what is known asDe facto adoption.

2. Before a petition for adoption can be filed, a certification that the child is “legally
available for adoption” must first be secured from the DSWD. There is no need any more for a
judicial declaration that the child is available for adoption as what is required now is a mere

administrative process of filing a petition for the issuance of the certification before the DSWD
pursuant to R.A. 9523 ( see: Appendix H).

!*$
 3. The written consent of the persons enumerated in Article 9 is required in adoption.
The law does not require the testimony in court of the person whose consent is needed. It is
sufficient that said person has given his consent in writing, duly notarized by a lawyer or notary
public (Cathey vs. Republic, 18 SCRA 86). The adopter himself can testify that he obtained the
written consent of those persons whose consent is required by law and that the same has been
attached to the petition for adoption. Consent of the natural parents to the adoption is not an
absolute requirement as in the case of an abandoned child where consent of theguardian ad
litem will suffice ( Santos vs. Aranzanso, 16 SCRA 344). If the child is an illegitimate child, the
consent shall be given by the mother only as parental authority is exercised by her alone to the
exclusion of the father. However, it is submitted that if the father of the illegitimate is living with
the child‟s mother and has acknowledged the child as his, then he also jointly exercises parental
authority over the child, hence, his consent to the adoption is also required. The parents of the
child to be adopted can always withdraw their consent to the adoption at anytime within six (6)
months from their decision to relinquish their child for adoption.

ARTICLE IV
PROCEDURE

SEC. 10. Hurried Decisions - In all proceedings for

adoption, the court shall require proof that the biological
parent(s) has been properly counselled to prevent his/her
from making hurried decisions caused by strain or anxiety to
give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any
prolonged stay of the child in his/her own home will be
inimical to his/her welfare and interest.

SEC. 11. Case Study - No petition for adoption shall

be set for hearing unless a licensed social worker of the
Department, the social service office of the local government
unit, or any child-placing or child-caring agency has made a
case study of the adoptee, his/her biological parent(s), as well
as the adopter(s), and has submitted the report and
recommendations on the matter to the court hearing such
petition.
At the time of preparation of the adoptee’s case study
report, the concerned social worker shall confirm with the
Civil Registry the real identity and registered name of the
adoptee. If the birth of the adoptee was not registered with
the Civil Registry, it shall be the responsibility of the

concerned
registered. social worker to ensure that the adoptee is
The case study of the adoptee shall establish that
he/she is legally available for adoption and that the

!*%
 documents to support this fact are valid and authentic.
Further, the case study of the adopter(s) shall ascertain
his/her genuine intentions and that the adoption is in the best
interest of the child.
The Department shall intervene on behalf of the
adoptee if it finds, after the conduct of the case studies, that
the petition should be denied. The case studies and other
relevant documents and records pertaining to the adoptee
and the adoption shall be preserved by the Department.

SEC. 12. Supervised Trial Custody – No petition for

adoption shall be finally granted until the adopter(s) has been
given by the court a supervised trial custody period for at
least six (6) months within which the parties are expected to
adjust psychologically and emotionally to each other and
establish a bonding relationship. During said period,
temporary parental authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any
party reduce the trial period if it finds the same to be in the
best interest of the adoptee, stating the reason for the
reduction of the period. However, for alien adopter(s), he/she
must complete six (6) month trial custody except for those
enumerated in Sec. 7(b), (i), (ii), (iii).
If the child is below seven (7) years of age and is
placed with the prospective adopter(s) through a pre-
adoption placement authority issued by the Department, the
prospective adopter(s) shall enjoy all the benefits to which
biological parent(s) is entitled from the date the adoptee is
placed with the prospective adopter(s).

SEC. 13. Decree of Adoption – If, after the publication

of the order of hearing has been complied with, and no
opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence submitted,
the court is convinced that the petitioners are qualified to
adopt and that the adoption will redound to the best interest
of the adoptee, a decree of adoption shall be entered which
shall be effective as of the date the srcinal petition was filed.
This provision shall also apply in case the petitioner(s) dies

before
interestthe
of issuance of the
the adoptee. Thedecree
decreeofshall
adoption
state to protect
the name the
by
which the child is to be known.

!*&
 SEC. 14. Civil Registry Record - An amended
certificate of birth shall be issued by the Civil Registry, as
required by the Rules of Court, attesting to the fact that the
adoptee is the child of the adopter(s) by being registered with
his/her surname. The srcinal certificate of birth shall be
stamped ―cancelled‖ with the annotation of the issuance of
an amended birth certificate in its place and shall be sealed in
the civil registry records. The new birth certificate to be
issued to the adoptee shall not bear any notation that it is an
amended issue.

SEC. 15. Confidential Nature of Proceedings and

Records – All hearings in adoption cases shall be confidential
and shall not be open to the public. All records, books, and
papers relating to the adoption cases in the files of the court,
the Department, or any other agency or institution
participating in the adoption proceedings shall be kept
strictly confidential.
If the court finds that the disclosure of the information
to a third person is necessary for purposes connected with or
arising out of the adoption and will be for the best interest of
the adoptee, the court may merit the necessary information to
be released, restricting the purposes for which it may be
used.

NOTES
1. Adoption is essentially a judicial proceeding; thus, no adoption can take place except
through a judicial decree by a competent court. Ade facto adoption produces no legal effect.
Only an adoption made through the court, or done in accordance with Rule 99 of the Rules of
Court is considered valid. It is a proceeding in rem, creating a relationship of paternity and
filiation between the adopter and the adoptee. In order to establish the relationship of a father
and son through adoption, the statutory requirements for adoption must be strictly complied
with; otherwise, the adoption is not valid. Adoption must be affirmatively proved by the person
claiming its existence and should never be presumed.

2. After hearing, where the court is convinced that the adopter is qualified to adopt and
that adoption is to the best interest of the adoptee, a decree of adoption will be issued which
shall be effective as of the date the srcinal petition was filed. Adoption decree, once issued,
cannot be attacked collaterally S( antos vs. Court of Appeals, 205 SCRA 321 ). An action directly
assailing the validity of the adoption decree is required in order to invalidate the adoption.

3. The effectivity of the adoption decree retroacts to the date the srcinal petition for
adoption was filed. Its retroactivity, however, will not apply if it would result to a liability on the
adopter for acts committed by the adoptee during the pendency of the adoption proceeding.

!*'
Thus, where a child, subject of an adoption proceeding, shot and killed another person while he
was still in the actual custody of his natural parents, the subsequent issuance of the decree will
not render the adopter liable for damages for the crime committed by the said child. The
Supreme Court, in rejecting the view that the retroactive effect of the decree will hold the
adopting parents liable for the act of their adopted child, said that the retroactivity of the decree
should not apply because it would go against the principle ofvicarious liability of parents (which
principle is premised on the assumption that the child is living with them and under their parental
authority when the crime was committed). The Court further said, we do not consider that
retroactive effect may be given to the decree of adoption so as to impose liability upon the
adopting parents accruing at a time when the adopting parents had no actual or physical
custody over the adopted child T
( amargo vs. Court of Appeals, 209 SCRA 518).

4. The decree of adoption must be registered in the office of the local civil register of the
place where the decree was issued. It is the duty of the petitioner or any interested party to
register it. If not registered, the clerk of court which issued the decree must send a copy of the
decree to the civil registry of the city or municipality where the court is functioning (Article 409 of
the Civil Code). A copy of the decree must be furnished to the local civil registry of the place
where the srcinal birth certificate of the subject child is recorded so that an appropriate
amendment of his birth certificate can be made. Upon the finality of the decree, the surname of
the adoptee shall be changed to the surname of the adopter.

5. Adoption records must be kept strictly confidential so as to protect the right to privacy
of the natural parents, the adopters and the adoptees. Only the court can release information
relative to adoption and the court will only do this if it finds that the disclosure of the information
to a third person is necessary for purposes connected with or arising out of the adoption and will
be for the best interest of the adoptee. For a more extensive and detailed discussion of the
procedures in adoption, please see the Procedural Rule on Domestic Adoption (A.M. No. 02-6-
02-SC) .

ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority – Except in cases where
the biological parent is the spouse of the adopter, all legal
ties between the biological parent(s) and the adoptee shall be
severed and the same shall be vested on the adopter(s).

SEC. 17. Legitimacy - The adoptee shall be

considered the legitimate son/daughter of the adopter(s) for
all intents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate

sons/daughters born
kind. To this end, the to them without
adoptee discrimination
is entitled of any
to love, guidance,
and support in keeping with the means of the family.

!*(
 SEC. 18. Succession - In legal and intestate
succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary
succession shall govern.

NOTES
1. Once the adoption decree has become final, the parental authority of the natural
parents shall be severed except where the said biological parent of the adoptee is also the
spouse of the adopter. Adoption is one of the modes of extinguishing parental authority; thus,
once granted by the court the biological parents loses their authority over their child adopted.
Thereafter, the adoptee shall be considered the legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate children. Hence, when the adopted child between the age of 18 to 21 decides to
marry, it is the adopter who will give his/her parental consent and not anymore the biological
parent of the adoptee.

2. The relation established by the adoption is limited only to the adopter and the adoptee
and does not extend to their other relatives, except as expressly provided by law. The
relationship created is only that of parent and child, thus, the adopted child cannot be
considered as a relative of the adopter(s) relatives. The adopted child, therefore, cannot inherit
from the ascendants and descendants of his/her adopter. Neither are the children of the
adopted considered as descendants of the adopter (Santos, Jr. vs. Republic, 21 SCRA 379).

3. An adopted child is a legal and intestate heir of the adopter. In legal and intestate
succession, the adopter(s) and the adoptee shall havereciprocal rights of succession without
distinction from legitimate filiation. This means that the adopter and the adoptee can mutually
inherit from each other. However, under our law, the adopted child does not have the right of
representation in the law of succession. Representation is a right created by fiction of law where
the representative is raised to the place and the degree of the person represented, and acquires
the right which the latter would have if he were living or if he could have inherited (Art. 970 of
the Civil Code). Thus, if the father dies, the son has a right of representation to inherit from his
grandfather upon the death of the latter. This right of a legitimate child cannot be exercised by
an adopted child because this does not involve a “reciprocal” right between parent and child. It
is a rule that successional rights of the adopted and the adopter are purely statutory and
therefore limited by statute. Unless the Adoption Law provides, the adopted child does not
inherit from the lineal or collateral kindred of the adoptive parents. Hence, in the event the
adopter predeceases his/her parent, the adopted child cannot inherit from the adopter‟s parent
because this is not a reciprocal right between the adoptee and the adopter. The right of

representation will not apply here as the adoptee is not related to the adopter‟s parent whether
by blood or by legal fiction. The right of representation is conferred by statute and there is
nothing in our present law on adoption which grants by legal fiction this right of representation to
the adoptee.

!*)
 4. If the adoptee dies, his biological parents will not inherit anything from him because
their ties have already been severed by the adoption. The one who will inherit from the adoptee
by intestate succession is his adopter. However, the adoptee may institute his biological parents
as voluntary heirs in his last will and testament to be charged against the free portion. Thus, the
biological parents of the adoptee can inherit from the latter only through testate succession and
not through intestate succession.

5. An illegitimate child adopted by her own father shall use the surname of her father.
But, what about her middle name? Can she use the surname of her mother as her middle
name? In the case of In the matter of Adoption of Stephanie Nathy Astorga Garcia, G.R.No.
148311, March 31, 2005, the Supreme Court ruled that an illegitimate child adopted by her own
father may use the surname of her mother as her middle name.

ARTICLE VI
RESCISSION OF ADOPTION

SEC. 19. Grounds for Rescission of Adoption - Upon

petition of the adoptee, with the assistance of the Department
if a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the
adopter(s): (a.) repeated physical and verbal maltreatment by
the adopter(s) despite having undergone counselling; (b.)
attempt on the life of the adoptee; (c.) sexual assault or
violence; or (d.) abandonment and failure to comply with
parental obligations.
Adoption, being in the best interest of the child, shall
not be subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.

SEC. 20 Effects of Rescission - If the petition is

granted, 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. The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be
extinguished.

NOTES
1. Considering that adoption is intended for the best interest of the child, only the
adoptee is given the legal standing to rescind the adoption decree. The adopter does not have

!**
the right to rescind the adoption. His only remedy is to disinherit the adopted child. If the
adoptee is still a minor, he or she will be assisted by the DSWD and if he/she is already of legal
age but incapacitated, he/she may be assisted by a legal guardian or counsel. If the adoptee is
already of legal age and not suffering from any incapacity, he/she alone must bring the action
for rescission of adoption. The grounds for rescission as enumerated in Sec. 19 are: (a.)
repeated physical and verbal maltreatment by the adopter; (b.) attempt on the life of the
adoptee; (c.) sexual assault or violence; or (d.) abandonment and failure to comply with parental
obligations.

2. Although the adopter cannot rescind the adoption, he can disinherit the adoptee
based on any of the grounds for disinheritance under Article 919 of the Civil Code. The
disinheritance must be expressly stated only through a Last Will and Testament wherein the
legal cause therefor shall be specified (Article 916 of the Civil Code). However, subsequent
reconciliation between the adopter and the adoptee renders the disinheritance that may have
been made ineffectual (Article 922 of the Civil Code).

3. Once rescission is granted by the court and the adoptee is still a minor or
incapacitated, the parental authority of the biological parents, if known, is restored. If, the
adoptee is a foundling or with no known parent, the legal custody of the Department is revived.
The reciprocal rights and obligations of the adopter and the adoptee to each other shall be
extinguished. Upon the finality of the judgment of rescission, succession rights of the parties
shall revert to its status prior to adoption. Vested rights acquired prior to judicial rescission shall
be respected. The court shall order the Civil Registrar to cancel the amended birth certificate of
the adoptee and restore his/her srcinal birth certificate.

ARTICLE VII
VIOLATIONS AND PENALTIES

SEC. 21. Violations and Penalties -

(a.) The penalty of imprisonment ranging from six (6)

years and one (1) day to twelve (12) years and/or a fine not
less than Fifty Thousand Pesos (P50,000.00), but not more
than Two Hundred Thousand Pesos (P200,000.00) at the
discretion of the court shall be imposed on any person who
shall commit any of the following acts:

(i) obtaining consent for an adoption

through coercion, undue influence, fraud, improper

material
(ii)inducement, or other
non-compli similar
ance with theacts;
procedures and
safeguards provided by the law for adoption; or

#++
 (iii) subjecting or exposing the child to be
adopted to danger, abuse, or exploitation.

(b.) Any person who shall cause the fictitious

registration of the birth of a child under the name(s) of a
person(s) who is not his/her biological parents shall be guilty
of simulation of birth, and shall be punished byprision mayor
in its medium period and a fine not exceeding Fifty thousand
pesos (P50,000).

Any physician or nurse or hospital personnel who, in

violation of his/her oath of office, shall cooperate in the
execution of the above-mentioned crime shall suffer the
penalties herein prescribed and also the penalty of
permanent disqualification.

Any person who shall violate established regulations

relating to the confidentiality and integrity of records,
documents, and communications of adoption applications,
cases, and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to
two (2) years, and/or a fine of not less than Five thousand
pesos (P5,000) but not more than Ten thousand pesos
(10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that

prescribed
shall for theupon
be imposed consummated
principals offense under this
of the attempt article
to commit
any of the acts herein enumerated.

Acts punishable under this Article, when committed by

a syndicate or where it involves two (2) or more children shall
be considered as an offense constituting child trafficking and
shall merit the penalty ofreclusion perpetua.

Acts punishable under this Article are deemed

committed by a syndicate if carried out by a group of three (3)
or more persons conspiring and/or confederating with one
another in carrying out any of the unlawful acts defined under
this Article. Penalties as are herein provided, shall be in
addition to any other penalties which may be imposed for the
same acts punishable under other laws, ordinances,

executive orders, and proclamations.

#+!
 When the offender is an alien, he/she shall be deported
immediately after service of sentence and perpetually
excluded from entry to the country.

Any government official, employee or functionary who

shall be found guilty of violating any of the provisions of this
Act, or who shall conspire with private individuals shall, in
addition to the above-prescribed penalties, be penalized in
accordance with existing civil service laws, rules and
regulations: Provided, that upon the filing of a case, either

administrative or criminal said government official, employee

or functionary concerned shall automatically suffer
suspension until the resolution of the case.

SEC. 22. Rectification of Simulated Births.– A person

who has, prior to the effectivity of this Act, simulated the birth
of a child shall not be punished for such act:Provided, That
the simulation of birth was made for the best interest of the
child and that he/she has been consistently considered and
treated by that person as his/her own son/daughter:
Provided, further, That the application for correction of the
birth registration and petition for adoption shall be filed
within five (5) years from the effectivity of this Act and
completed thereafter:Provided, finally, That such person
complies with the procedure as specified in Article IV of this
Act and other requirements as determined by the Department.

ARTICLE VIII
FINAL PROVISIONS

SEC. 23. Adoption Resource and Referral Office. -

There shall be established an Adoption Resources and
Referral Office under the Department with the following
functions: (a) monitor the existence, number, and flow of
children legally available for adoption and prospective
adopter(s) so as to facilitate their matching; (b) maintain a
nationwide information and educational campaign on
domestic adoption; (c) keep records of adoption
proceedings; (d) generate resources to help child-caring and
child-placing agencies and foster homes maintain viability;
and (e) do policy research in collaboration with the Inter-
country Adoption Board and other concerned agencies. The
office shall be manned by adoption experts from the public
and private sectors.

#+#
 SEC. 24. Implementing Rules and Regulations. -
Within six (6) months from the promulgation of this Act, the
Department, with the Council for the Welfare of Children, the
Office of the Civil Registry General, the Department of
Justice, Office of the Solicitor General, and two (2) private
individuals representing child-placing and child-caring
agencies shall formulate the necessary guidelines to make
the provisions of this Act operative.’

SEC.25. Appropriations.- Such sum as may be

necessary for the implementation of the provisions of this Act

shall be included in the General Appropriations Act of the
year following its enactment into law and thereafter.

SEC. 26. Repealing Clause. – Any law, presidential

decree or issuance, executive order, letter of instruction,
administrative order, rule, or regulation contrary to, or
inconsistent with the provisions of this Act is hereby
repealed, modified, or amended accordingly.

SEC. 27. Separability Clause.- If any provision of this

Act is held invalid or unconstitutional, the other provisions
not affected thereby shall remain valid and subsisting.

SEC. 28. Effectivity Clause. – This Act shall take effect

fifteen (15) days following its complete publication in any

newspaper of general circulation or in theOfficial Gazette.

NOTES

1. Simulation of birth is the fictitious registration of the birth of the child under the name
of a person who is not the child‟s biological parents. It is the act of making it appear that the
child was born to a couple (parents) when in truth and in fact he is not the biological child of said
couple. This act is considered a crime under the law and is punishable by imprisonment and
fine. Any physician, nurse or hospital personnel, who in violation of his/her oath of office, shall
cooperate in the execution of the above-mentioned crime shall also be punished by law.
However, if the act was committed before the passage of the law (R.A. No. 8552), the
perpetrator may be excused if he/she will declare it to the authority within five years from the
effectivity of the said law. This is called rectification of simulation of birth. The procedure for
rectification of simulated birth is found in Section 8 of the Rules and Regulations on Domestic
Adoption Act of 1998, A.M. No. 02-6-02-SC (see Appendix “J”).

REPUBLIC ACT NO. 8043

INTER-COUNTRY ADOPTION ACT OF 1995

#+$
 GENERAL PROVISION

SECTION 1. Short Title - This Act shall be known as

the ―Inter-Country Adoption Act of 1995.‖

SEC. 2. Declaration of Policy - It is hereby declared

the policy of the State to provide every neglected and
abandoned child with a family that will provide such child
with love and care as well as opportunities for growth and
development. Towards this end, efforts shall be exerted to
place the child with an adoptive family in the Philippines.
However, recognizing that inter-country adoption may be
considered as allowing aliens, not presently allowed by law to
adopt Filipino children if such children cannot be adopted by
qualified Filipino citizens or aliens, the State shall take
measures to ensure that inter-country adoptions are allowed
when the same shall prove beneficial to the child’s best
interest, and shall serve and protect his/her fundamental
rights.

SEC. 3. Definition of Terms. – As used in this Act, the

term:

a) Inter-country adoption refers to the socio-legal

process of adopting a Filipino child by a foreigner or a
Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is undertaken,
and the decree of adoption is issued outside the Philippines.
b) Child means a person below fifteen (15) years
of age unless sooner emancipated by law.
c) Department refers to the Department of Social
Welfare and Development of the Republic of the Philippines.
d) Secretary refers to the Secretary of the
Department of Social Welfare and Development.
e) Authorized and accredited agency refers to the
State welfare agency or a licensed adoption agency in the
country of the adopting parents which provide
comprehensive social services and which is duly recognized
by the Department.
f) Legally – free child means a child who has been
voluntarily or involuntarily committed to the Department, in
accordance with the Child and Youth Welfare Code.

#+%
 g) Matching refers to the judicious pairing of the
adoptive child and the applicant to promote a mutually
satisfying parent-child relationship.
h) Board refers to the Inter-Country Adoption Board.

NOTES

1. Inter-country adoption is the socio-legal process of adopting a Filipino child by a

foreigner or a Filipino permanently residing abroad, where the petition for adoption is filed.
Unlike in the Domestic Adoption Law where the petition for adoption must be filed here in the
Philippines, the petition under the Inter-country adoption will have to be filed in the country of
the prospective adopter and the decree of adoption will also be issued by the court of the place
where the petition is filed. Likewise, the supervised trial custody shall also be done there in the
country of the adopter. The only thing done here in the Philippines is the selection of the child to
be adopted and this is done by the Inter-country Adoption Board (ICAB).

2. It is the policy of the state that a child must be placed with an adoptive family in the
Philippines. It is only when efforts to have the child adopted here in the country fails that inter-
country adoption may be considered. Generally, inter-country adoption is availed of only by
foreigners who are not qualified to adopt a Filipino child under the Domestic Adoption Law; thus,
the state must see to it that it will be allowed only when it will prove beneficial to the child‟s best
interest, and shall serve and protect his/her fundamental rights.

ARTICLE II

THE INTER-COUNTRY ADOPTION BOARD

SEC. 4. The Inter-Country Adoption Board.- There is
hereby created the Inter-country Adoption Board, hereinafter
referred to as the Board, to act as the central authority in
matters relating to inter-country adoption. It shall act as the
policy-making body for purposes of carrying out the
provisions of this Act, in consultation and coordination with
the Department, the different child-care and placement
agencies, as well as non-governmental organizations
engaged in child-care placement activities. As such, it shall:

a) Protect the Filipino child from abuse,

exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or
prejudicial to the child;
b) Collect, maintain, and preserve confidential
about the child and the adoptive parents;

#+&
 c) Monitor, follow-up, and facilitate completion of
adoption of the child through authorized and accredited
agency;
d) Prevent improper financial or other gain in
connection with and adoption and deter improper practices
contrary to this Act;
e) Promote the development of adoption services
including post-legal adoption;
f) License and accredit child-caring/placement
agencies and collaborate with them in the placement of
Filipino children;
g) Accredit and authorize foreign adoption agency
in the placement of Filipino children in their own country; and
h) Cancel the license to operate and blacklist the
child-caring and placement agency involved from the
accreditation list of the Board upon a finding of violation of
any provision under this Act.

SEC.5. Composition of the Board – The Board shall be

composed of the Secretary of the Department as ex officio
Chairman, and six (6) other members to be appointed by the
President for a non-renewable term of six (6) years:Provided,
That there shall be appointed one (1) psychiatrist or
psychologist, two (2) lawyers who shall have at least the
qualifications of a regional trial court judge, one (1) registered

social worker organizations

governmental and two (2)engaged
representatives from non-
in child-caring and
placement activities. The members of the Board shall receive
a per diem allowance of One thousand five hundred pesos
91,500) for each meeting attended by them:Provided, further,
That no compensation shall be paid for more than four (4)
meetings a month.

SEC. 6. Powers and Functions of the Board. – The

Board shall have the following powers and functions:

a) to prescribe rules and regulations as it

may deem reasonably necessary to carry out the
provisions of this Act, after consultation and upon
favorable recommendation of the different agencies
concerned with child-caring, placement, and adoption;

b) to set the guidelines for the convening of

an Inter-Country Adoption Placement Committee
which shall be under the direct supervision of the
Board;

#+'
 c) To set the guidelines for the manner by
which selection/matching of prospective adoptive
parents and adoptive child can be made;
d) To determine a reasonable schedule of
fees and charges to be exacted in connection with the
application for adoption;
e) To determine the form and contents of
the application for inter-country adoption;
f) To formulate and develop policies,
programs and services that will protect the Filipino
child from abuse, exploitation, trafficking and other
adoptive practice that is harmful, detrimental and
prejudicial to the best interest of the child;
g) To institute systems and procedures to
prevent improper financial gain in connection with
adoption and deter improper practices which are
contrary to this Act;
h) To promote the development of adoption
services, including post-legal adoption services;
i) To accredit and authorize foreign private
adoption agencies which have demonstrated
professionalism, competence and have consistently
pursued non-profit objectives to engage in the
placement of Filipino children in their own country:
Provided, That such foreign private agencies are duly
authorize and accredited by their own government to
conduct inter-country adoption: Provided, however,
That the total number of authorized and accredited
foreign private adoption agencies shall not exceed one
hundred (100) a year;
j) To take appropriate measures to ensure
confidentiality of the records of the child, the natural
parents and the adoptive parents at all times;
k) To prepare, review or modify, and
thereafter, recommend to the Department of Foreign
Affairs, Memoranda of Agreement respecting inter-
country adoption consistent with the implementation
of this Act and its stated goals, entered into, between
and among foreign governments, international
organizations and recognized international non-

governmental
l) organizations;
To assist other concerned agencies and
the courts in the implementation of this Act,
particularly as regards coordination with foreign

#+(
 persons, agencies and other entities involved in the
process of adoption and the physical transfer of the
child; and
m) To perform such other functions on
matters relating to inter-country adoption as may be
determined by the President.

NOTES

1. The law created a central authority in matters relating to inter-country adoption called
the Inter-country Adoption Board. It shall act as the policy-making body for purposes of carrying
out the provisions of the law. The Board shall be composed of the Secretary of the DSWD as ex
officio Chairman, and six (6) other members to be appointed by the President for a non-
renewable term of six (6) years. Of the six, one must be a psychiatrist or psychologist, two are
lawyers with the qualifications of an RTC judge, one registered social worker, and two are
representatives from non-governmental organizations engaged in child-caring and placement
activities.

ARTICLE II

PROCEDURE

SEC. 7. Inter-country Adoption as the Last Resort . – The

board shall ensure that all possibilities for adoption of the child
under the Family Code have been exhausted and that inter-country
adoption is the best interest of the child. Towards this end, the
Board shall set up the guidelines to ensure that steps will be taken
to place the child in the Philippines before the child is placed for
inter-country adoption: Provided, however, that the maximum
number that may be allowed for foreign adoption shall not exceed
six hundred (600) a year for the first five (5) years.

SEC. 8. Who May Be Adopted. – Only a legally-free child may

be the subject of inter-country adoption. In order that such child
may be considered for placement, the following documents must be
submitted to the Board:

&"# Child study;

'"# Birth certificate/foundling certificate;
("# Deed of voluntary commitment/decree of abandonment/
death certificate of parents;
)"# Medical evaluation/history;
*"# Psychological evaluation,as necessary; and
+"# Recent photo of the child.

#+)
 SEC.9. Who May Adopt. – Any alien or a Filipino citizen
permanently residing abroad may file an application for inter-
country adoption of a Filipino child if he/she:

&"# is at least twenty-seven (27) years of age and at least

sixteen (16) years older than the child to be adopted at the
time of application unless the adopter is the parent by
nature of the child to be adopted or the spouse of such
parent;
'"#if married, his/her spouse must jointly file for the

adoption;
("# has the capacity to act and assume all rights and
responsibilities of parental authority under his national
laws, and has undergone the appropriate counseling from
an accredited counselor in his/her country;
)"# has not been convicted of a crime involving moral
turpitude;
*"# is eligible to adopt under his/her national law;
+"# is an a position to provide the proper care and support
and to give the necessary moral values and example to all
his children, including the child to be adopted;
,"# agrees to uphold the basic rights of the child as embodied
under Philippine laws, the U.N. Convention on the Rights
of the Child, and to abide by the Rules and Regulations
issued to implement the provisions of this Act;

-"# comes from a country with whom the Philippines has

diplomatic relations and whose government maintains a
similarly authorized and accredited agency and that
adoption is allowed under his/her national laws; and
."# possesses all the qualifications and none of the
disqualifications provided herein and in other applicable
Philippine laws.

SEC.10. Where to File Application -An application to adopt a

Filipino child shall be filed either with the Philippine Regional Trial
Court having jurisdiction over the child, or with the Board, through
an intermediate agency, whether governmental or an authorized and
accredited agency, in the country of the prospective adoptive
parents, which application shall be in accordance with the
requirements as set forth in the implementing rules and regulations
to be promulgated by the Board.

The applications shall be supported by the following

documents written and officially translated in English:

#+*
 &"# Birth certificate of applicant(s);
'"# Marriage contract, if married, and divorce decree, if
applicable;
c.)Written consent of their biological or adopted children
above ten (10) years of age, in the form of sworn
statement;
d.)Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
e.) Income tax returns or any document showing the financial
capability of the applicant(s);

f.) Police clearance of applicant(s);

,"# Character reference from the local church/minister, the

applicant’s employer and a member of the immediate
community who have known the applicant(s) for at
least five (5) years; and
-"# Recent postcard-size pictures of the applicant(s) and his
immediate family.

The Rules of Court shall apply in case of adoption by judicial

proceedings.

SEC. 11. Family Selection/Matching – No child shall be

matched to a foreign adoptive family unless it is satisfactorily
shown that the child cannot be adopted locally. The clearance, as

issued by the Board, with the copy of the minutes of the meetings,
shall form part of the records of the child to be adopted. When the
Board is ready to transmit the Placement Authority to the authorized
and accredited inter-country adoption agency and all the travel
documents of the child are ready, the adoptive parents, or any one
of them, shall personally fetch the child in the Philippines.

SEC. 12. Pre-adoptive Placement Costs – The applicant(s)

shall bear the following costs of incidental to the placement of the
child:

a) The cost of bringing the child from the Philippines to

the residence of the applicant(s) abroad, including all travel
expenses within the Philippines and abroad; and
b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related expenses.

SEC. 13. Fees, Charges and Assessments - Fees, charges

and assessments collected by the Board in the exercise of its

#!+
 functions shall be used solely to process applications for inter-
country adoption and to support the activities of the Board.

SEC. 14. Supervision of the Trial Custody–The governmental

agency or the authorized and accredited agency in the country of
the adoptive parents which filed the application for inter-country
adoption shall be responsible for the trial custody and the care of
the child. It shall also provide family counseling and other related
services. The trial custody shall be for a period of six (6) months
from the time of placement. Only after the lapse of the period of trial

custody shall a decree of adoption be issued in the said country,

copy of which shall be sent to the Board to form part of the records
of the child.

During the trial custody, the adopting parent(s) shall submit

to the governmental agency or the authorized and accredited
agency, which shall in turn transmit a copy to the Board, a progress
report of the child’s adjustment. The progress report shall be taken
into consideration in deciding whether or not to issue the decree of
adoption.

The Department of Foreign Affairs shall set-up a system by

which Filipino children sent abroad for trial custody are monitored
and checked as reported by the authorized and accredited inter-
country adoption agency as well as the repatriation to the
Philippines of a Filipino child whose adoption has not been
approved.
SEC. 15. Executive Agreements -The Department of Foreign
Affairs, upon representation of the Board, shall cause the
preparation of Executive Agreements with countries of the foreign
adoption agencies to ensure the legitimate concurrence of said
countries in upholding the safeguards provided by this Act.

NOTES

1. Only a legally-free child may be adopted under the Inter-country Adoption Law. A
legally-free child, just like a child legally available for adoption under the Domestic Adoption
Law, is one who is voluntarily or involuntarily committed by their parents to the DSWD. The child
under this law refers to a person below fifteen (15) years of age while the child to be adopted
under the Domestic Adoption Law is one who is below eighteen (18) years old. An abandoned
or neglected child pursuant to P.D. 603 may be the subject of inter-country adoption. No

physical transfer of the child voluntarily committed by their parents to the DSWD shall be made
earlier than six (6) months from the date the Deed of Voluntary Commitment was executed by
the parents. The prohibition against physical transfer, however, shall not apply to adoption by a

#!!
relative or to children with special medical conditions (see Section 25, Article VIII of the Rules
and Regulations on Inter-Country Adoption Law).

2. Any alien or a Filipino citizen permanently residing abroad may adopt a Filipino child
under the Inter-country Adoption Law provided he/she has the qualifications mentioned in
Section 9 of the law. The adopter must be at least 27 years of age and at least 16 years older
than the child to be adopted. In the Domestic Adoption Law, it is enough that the adopter is of
legal age (18 years old) although the 16 years age gap between the adopter and the adoptee is
maintained.

3. An application to adopt a Filipino child ( not a petition for adoption) must be filed in the
Regional Trial Court of theplace where the child to be adopted resides or with the Inter-Country
Adoption Board (ICAB) through an intermediate agency in the country of the prospective
adopter. The application must be supported by document enumerated in Section 10 of R.A. No.
8043.

4. Before the child can be adopted by the prospective adopter, the ICAB must first
conduct family selection and matching to see to it that the child to be adopted matched with the
character of the prospective adopter. The Board shall then prepare the Placement Authority and
communicate the same to the adopter. When the Board is ready to transmit the Placement
Authority and the travel documents of the child are ready, the adoptive parents, or any one of
them, shall personally fetch the child in the Philippines. The adopter shall shoulder all the costs
or expenses in relation to the adoption of the child and the bringing of the child to his/her own
country.

5. Once the child is placed in the actual custody of the adopter, the six (6) months

supervised trial custody shall immediately commence. The trial custody shall be conducted
under the supervision of the authorized and accredited agency in the country of the adopter or
by the appropriate governmental agency of the said country. The agency concerned shall
submit to the ICAB a progress report on the child‟s adjustment with his adoptive parents. Upon
the completion of the six months trial custody, and the showing of a satisfactory pre-adoptive
relationship between the applicant and the child, the Board (ICAB) shall then transmit the written
consent of the adoption to the foreign adoption agency concerned. Should the trial custody fail
as the child and the prospective adopter could not live together harmoniously, the Board will
look for another prospective adopter in the same country. If it fails to find another placement for
the child within a reasonable period of time after the termination of the pre-adoptive relationship,
the Board, as a last resort , shall repatriate the child to the Philippines. All records in Inter-
Country Adoption, just like in Domestic Adoption, shall be kept confidential.

ARTICLE IV

PENALTIES

Sec. 16. Penalties. – (a.) Any person who shall knowingly

participate in the conduct or carrying out of an illegal adoption, in

#!#
 violation of the provisions of this Act, shall be punished with a
penalty of imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and/or a fine of not less than Fifty thousand
pesos (P50,000), but not more that Two hundred thousand pesos
(P200,000), at the discretion of the court. For purposes of this Act,
an adoption is illegal if it is effected in any manner contrary to the
provisions of this Act or established State policies, its implementing
rules and regulations, executive agreements, and other laws
pertaining to adoption. Illegality may be presumed from the
following acts:

1. Consent for an adoption was acquired through,

or attended by coercion, fraud, improper material
inducement;
2. There is no authority from the Board to effect
adoption;
3. The procedures and safeguards placed under
the law for adoption were not complied with; and
4. The child to be adopted is subjected to, or
exposed to danger, abuse or exploitation.

b) Any person who shall violate established regulations

relating to the confidentiality and integrity of records, documents
and communications of adoption applications, cases and
processes shall suffer the penalty of imprisonment ranging from
one (1) year and one (1) day to two (2) years, and/or a fine of not
less than Five thousand pesos (P5,000), but not more than Ten
thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for

the consummated felony under this Article shall be imposed upon
the principals of the attempt to commit any of the acts herein
enumerated.

Acts punishable under this Article, when committed by a

syndicate or where it involves two or more children shall be
considered as an offense constituting child trafficking and shall
merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by

a syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying out
any unlawful acts defined under this Article. Penalties as are herein
provided shall be in addition to any other penalties which may be
imposed for the same acts punishable under other laws,
ordinances, executive orders, and proclamations.

#!$
 SEC. 17. Public Officers as Offenders – Any government
official, employee or functionary who shall be found guilty of
violating any of the provisions of this Act, or who shall conspire
with private individuals shall, in addition to the above-prescribed
penalties, be penalized in accordance with existing civil service
laws, rules and regulations: Provided, That upon the filing of a
case, either administrative or criminal, said government official,
employee or functionary concerned shall automatically suffer
suspension until the resolution of the case.

NOTES
1. Acts committed in violation of Article IV of this law are considered crimes and are
punishable by imprisonment and/or fine. These acts are mala prohibita, therefore, there is no
need to show bad faith or malice on the part of the perpetrator to hold him liable for the crime
charged. Any person who shall knowingly participate in the conduct or carrying out of an illegal
adoption shall be liable under Section 55 of the law. Acts punishable under the law shall be
considered as an offense constituting child trafficking and shall be punished by reclusion
perpetua. The rules and procedures in Inter-Country Adoption are outlined in A.M. No. 02-6-02
SC, hereto attached as Appendix “J” .

ARTICLE V

FINAL PROVISIONS

SEC. 18. Implementing Rules and Regulations - The Inter-

Country Adoption Board, in coordination with the Council for the
Welfare of Children, the Department of Foreign Affairs, and the
Department of Justice, after due consultation with agencies
involved in child-care and placement, shall promulgate the
necessary rules and regulations to implement the provisions of this
Act within six (6) months after its effectivity.

SEC. 19. Appropriations. – The amount of Five million pesos

(P5,000,000) is hereby appropriated from the proceeds of the Lotto
for the initial operations of the Board and subsequently the
appropriations of the same shall be included in the General
Appropriations Act for the year following its enactment.

SEC. 20. Separabality Clause. – If any provision, or part

hereof, is held invalid or unconstitutional, the remainder of the law
or the provision not otherwise affected, shall remain valid and
subsisting.

SEC. 21. Repealing Clause. – Any law, decree, executive

order, admistrative order or rules and regulations contrary to, or

#!%
 inconsistent with the provisions of this Act are hereby repealed,
modified or amended accordingly.

SEC. 22. Effectivity Clause. – This Act shall take effect

fifteen (15) days after its publication in two (2) newspapers of
general circulation.

TITLE VIII

SUPPORT
Art. 194. Support comprises everything indispensable
for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial
capacity of the family.

The education of the person entitled to be supported

referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of
work. (290a)

Art. 105. Subject to the provisions of the succeeding

articles, the following are obliged to support each other to the

whole extent set forth in the preceding article:

(1.) The spouses;

(2.) Legitimate ascendants and descendants;

(3.) Parents and their legitimate children and the

legitimate and illegitimate children of the latter;

(4.) Parents and their illegitimate children and the

legitimate and illegitimate children of the latter;
and

(5.) Legitimate brothers and sisters, whether of full or

half-blood (291a)

Art. 196. Brothers and sisters not legitimately related,

whether of the
support each fullto or
other thehalf-blood, areforth
full extent set likewise bound
in Article 194,to
except only when the need for support of the brother or

#!&
 sister, being of age, is due to a cause imputable to the
claimant's fault or negligence. (291a)

NOTES

1. Support comprises everything necessary to keep a person alive. The amount of

support depends on the financial capacity of the family. Everything that is indispensable for the
sustenance, dwelling, clothing, medical attendance, education and transportation, is what
comprises support. Natural support refers to the basic necessities while civil support refers to
anything beyond the basic necessities. The present law provides that even if the person to be
supported is already of legal age, the supporter is still obliged to give support in order for the
former to continue and finish his/her schooling or training.

2. Support is a reciprocal obligation, such that if you are obliged to support a certain
person, that person has also the obligation to support you when the situation changes. Thus,
support is a mutual obligation between two persons. The following are obliged to support each
other to the whole extent set forth in Article 194:

a.) Husband and wife

b.) Legitimate ascendants and descendants

c.) Parents and their legitimate children as well as the children of the latter

d.) Parents and their illegitimate children as well as the children of the latter

e.) Legitimate brothers and sisters, whether of the full blood or half blood.

3. Support is a mandatory obligation which cannot be waived, renounced, transmitted or

compensated as it is necessary for the existence, survival and well being of the individual to be
supported. Any waiver of such right is null and void for being contrary to law and public policy.
Thus, under Article 2035 of the Civil Code, no compromise shall be valid upon the question of
future support. In the case of De Asis vs. Court of Appeals, 303 SCRA 176, the Supreme Court
ruled that the compromise agreement entered into by the mother whereby she renounced the
claim of support for her son from the defendant who denied paternity subject to the condition
that said defendant will not pursue his counterclaim, is not valid. The agreement cannot be
valid as it violates the prohibition against any compromise of the right to future support.

4. The obligation of the husband and wife to support each other presupposes the
existence of a valid marriage. It is the fact of a valid marriage that gives rise to the husband and
wife to support each other. Thus, when the validity of marriage is in issue, as in the case where
the husband denied that there exists a valid marriage between him and the wife,support
pendente lite cannot be awarded by the court to the plaintiff without a hearing determining the
existence of marriage (Yangco vs. Rhode, 1 Phil. 404). During the pendency of an action for
annulment of marriage or legal separation, support of the husband and wife shall be taken from
the conjugal partnership or from the absolute community as the case may be. Once the court

#!'
grants the annulment of marriage, the obligation to give support ceases. However, in legal
separation, the court may order the guilty spouse to continue providing support to the innocent
spouse despite the grant of legal separation. The distinction is because in annulment of
marriage, the marriage is dissolved while in legal separation there is no dissolution of marriage.
The spouses are only separated in bed and in board.

5. A wife who is guilty of adultery is not entitled to support from her husband as said
crime of adultery committed by the wife is a valid defense against an action for support
(Quintana vs. Lerma, 24 Phil. 285). However, the alleged adultery of the wife must be proven by
competent evidence. The mere allegation that the wife committed adultery is not enough to bar

her from receiving support pendente lite. Adultery is a good defense and if properly proved and
sustained will defeat the action (Reyes vs. Ines-Luciano, 88 SCRA 803 ).

6. A child born out of an adulterous relationship of the wife and another man is not
entitled to support from the husband. A valid defense to refuse support by a husband to a child
claiming support is when the child is the fruit of an adulterous relationship of the wife, for in such
case, the child is not that of the person from whom support is demandedSanchez ( vs. Zulueta,
68 Phil. 110).

7. Parents are obliged to support their children, whether legitimate or illegitimate, as well
as the children of the latter. Grandparents shall also support their grandchildren, whether
legitimately or illegitimately related to their children. The persons obliged to support each other
are limited from the grandparents to grandchildren only and vice versa. It does not extend to the
great grandchildren. Grandchildren cannot demand support directly from their grandparents if
they have parents (ascendants of the nearest degree) who are capable of supporting them.
This is so because we have to follow the order of support under Article 199 of the Family Code.

8. An action for Temporary Protection Order (TPO) with prayer for support filed by the
mother of a child against the alleged father if the latter denied filiation of the child. To be entitled
to legal support, petitioner must, in proper action, fist establish the filiation of the child, if the
same is not admitted or acknowledged. The child‟s remedy is to file through her mother a
judicial action against the alleged father for compulsory recognition (Cherryl B. Dolina vs. Glenn
Vallecera, G.R. No. 182367, Dec. 15, 2010).

9. The obligation of the grandparents to support their grandchildren do not extend to the
daughter-in-law. The latter does not have the right to demand support from her parents-in-law
as the right to support extends only to her husband, arising from their marital bond(Sps.
Prudencio and Filomena Lim vs. Ma. Cheryl Lim et al., G.R. No. 163209, October 30, 2009).

10. A conceived child, although still unborn, is entitled to support from the father
because said child is already given by law a provisional personality of its own for all purposes
favourable to it, as provided by Article 40 of the Civil Code(Quimiguing vs. Icao, 34 SCRA 132).

11. Legitimate brother and sisters, whether of the full blood or half blood, are obliged to
support each other. They are the only collateral blood relatives who are obliged to support each

#!(
other. It must be noted that uncles, aunts, nephews and nieces are not obligated to support
each other.

12. Brothers and sisters who are not legitimately related, whether of the full or half blood,
are likewise bound to support each other, except when the need for support of the brother and
sister, being of age, is due to a cause imputable to the claimant‟s fault or negligence.

Art. 197. In case of legitimate ascendants;

descendants, whether legitimate or illegitimate; and brothers
and sisters, whether legitimately or illegitimately related, only
the separate property of the person obliged to give support
shall be answerable provided that in case the obligor has no
separate property, the absolute community or the conjugal
partnership, if financially capable, shall advance the support,
which shall be deducted from the share of the spouse obliged
upon the liquidation of the absolute community or of the
conjugal partnership.

Art. 198. During the proceedings for legal separation

or for annulment of marriage, and for declaration of nullity of
marriage, the spouses and their children shall be supported
from the properties of the absolute community or the
conjugal partnership. After the final judgment granting the
petition, the obligation of mutual support between the
spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to
the innocent one, specifying the terms of such order.
NOTES

1. If the persons to be supported are the spouses and their common children, or the
legitimate children of either spouse in a previous marriage, the amount of support should be
taken from the conjugal partnership or the absolute community as the case maybe. Support of a
spouse‟s ascendants, brotherand sisters, and illegitimate children shall be charged against the
separate property of the said spouse and not against the conjugal partnership. However, if the
obligor does not have a separate property, the absolute community or the conjugal partnership,
if financially capable, shall advance the support, which shall be deducted from the share of the
said spouse upon the dissolution of the partnership.

Art. 199. Whenever two or more persons are obliged to

give support, the liability shall devolve upon the following
persons in the order herein provided:

(1.) The spouse;

#!)
 (2.) The descendants in the nearest degree;

(3.) The ascendants in the nearest degree; and

(4.) The brothers and sisters.

Art. 200. When the obligation to give support falls

upon two or more persons, the payment of the same shall be
divided between them in proportion to the resources of each.

However, in case of urgent need and by special

circumstances, the judge may order only one of them to
furnish the support provisionally, without prejudice to his
right to claim from the other obligors the share due from
them.

When two or more recipients at the same time claim

support from one and the same person legally obliged to give
it, should the latter not have sufficient means to satisfy all
claims, the order established in the preceding article shall be
followed, unless the concurrent obligees should be the
spouse and a child subject to parental authority, in which
case the child shall be preferred.

NOTES

1. When a person needs support and all those persons obliged to provide him support

under the law are still living, from whom shall he demand support first? Article 199 states that it
should be from his spouse first, then his descendants in the nearest degree, then ascendants in
the nearest degree, and finally his brothers and sisters. In other words, one cannot demand
support from his ascendants and brothers and sisters if his spouse and children are still alive
and capable of supporting him. The order of the persons upon whom the liability of giving
support devolves must be strictly observed.

2. When there are several persons obliged to give support belonging to the same
category, they should share in the amount needed to support a particular person. For example,
a widow with three children who are already professionals and capable of supporting her, needs
support, all the three children must share in the responsibility of supporting their mother. The
amount that they will each contribute for the support of their mother shall be in proportion to
their respective income and not equally. In case of emergency, the court may order only one of
them to provide support provisionally, without prejudice to his right to claim from his siblings the
share due from them.

3. When several persons demand support from one person at the same time, and the
latter does not have sufficient means to satisfy all the claims, the order established in Article 199
shall be followed. However, when the concurrent obligees are the spouse and a child subject to
parental authority, the latter shall be preferred. This means that if your spouse and your minor

#!*
child is demanding support from you and your means is not enough, you must prioritize your
minor child over your spouse. A son or daughter who is already of legal age is not preferred
over the spouse.

Art. 201. The amount of support, in the cases referred

to in Articles 195 and 196, shall be in proportion to the
resources or means of the giver and to the necessities of the
recipient.

Art. 202. Support in the cases referred to in the

preceding article shall be reduced or increased
proportionately, according to the reduction or increase of the
necessities of the recipient and the resources or means of the
person obliged to furnish the same.

NOTES

1. The amount of support to be given by the supporter shall be in proportion to his

resources or means and to the needs of the recipient. It is the court who determines the amount
based on the evidence presented by the parties. The law does not fix the amount of support for
all cases as the law is not that unreasonable as to contemplate a situation where the one giving
the support shall be compelled to make such support to the detriment of his or her own being
and existence.

2. The amount of support per judgment of the court is provisional in character and is
never final. The judgment of support is always subject to modification and the court may adjust
the amount depending on the changing needs of the recipient and the changing ability of the
provider. If the needs of the recipient increases and the income of the provider have also
increased, the court may also increase the amount of support.

Art. 203. The obligation to give support shall be

demandable from the time the person who has a right to
receive the same needs it for maintenance, but it shall not be
paid except from the date of judicial or extra-judicial demand.

Support pendente lite may be claimed in accordance

with the Rules of Court.

Payment shall be made within the first five days of

each corresponding month or when the recipient dies, his
heirs shall not be obliged to return what he has received in
advance.

##+
 Art. 204. The person obliged to give support shall have
the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the family
dwelling the person who has a right to receive support. The
latter alternative cannot be availed of in case there is a moral
or legal obstacle thereto.

NOTES

1. Demand for support is necessary as it is only from the time of demand that the
obligation to support commences. Before support is paid, there must be a judicial or extrajudicial
demand. This is so for the right to support does not arise from the mere fact of relationship,
even from the relationship of parents and children, but from
“ imperative necessity without which
it cannot be demanded, and the law presumes that such necessity does not exist unless support
is d emanded” (Civil Code of the Philippines Annotated, Tolentino, Vol. 1, p.181, citing Manresa
685). The need for support as already stated, cannot be presumed, and especially must this be
true in the present case where it appears that the minors had means of their ownJocson,
( et al.
vs. Empire Insurance Co., 50 O.G. 2628).

2. Once support is ordered by the court, payment shall be made within the first five (5)
days of each month. When the recipient dies, his heirs shall not be obliged to return what he
has received in advance.

3. The obligation to give support ceases when the recipient engages in a trade,
profession or industry, or has obtained work or has improved his fortune in such a way that he
no longer needs the allowance for his subsistence. However, if in spite of the fact that the

person
the supported
obligation is already
to give what is working, the necessities
needed subsists of Gallego,
(Corral vs. the recipient continue
38 O.G. 3158).without
Thus, ithis fault,
is the
sufficiency of the income derived from the practice of the profession, art or trade that determines
the necessity for support.

4. The person obliged to give support has the option to either give it in a fixed monthly
allowance, or maintaining him/her in the family dwelling. However,the second alternative may
not be availed of in case there is moral or legal obstacle thereof. Thus, a wife, who is forced to
leave the conjugal abode by her husband, without fault on her part, may maintain an action
against the husband for separate maintenance when she has no other remedy, and the
husband cannot compel her to live with him in the conjugal abode pursuant to the option given
(Goitia vs. Campos
to him by law as there is a valid reason for the wife to refuse the said option
Rueda, 35 Phil. 252).

Art. 205. The right to receive support under this Title

as well as any money or property obtained as such support
shall not be levied upon on attachment or execution.

##!
 Art. 206. When, without the knowledge of the person
obliged to give support, it is given by a stranger, the latter
shall have a right to claim the same from the former, unless it
appears that he gave it without intention of being reimbursed.

Art. 207. When the person obliged to support another

unjustly refuses or fails to give support when urgently
needed by the latter, any third person may furnish support to
the needy individual, with right of reimbursement from the
person obliged to give support. This Article shall particularly

apply when the father or mother of a child under the age of

majority unjustly refuses to support or fails to give support to
the child when urgently needed.

Art. 208. 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.

NOTES

1. The amount that a person receives by way of support is necessary for his survival and
well being, thus, it cannot be attached or levied on execution. To deprive the recipient of these
provisions will clearly be prejudicial to his/her very existence. However, 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(Article 208 of the Family Code).

2. Articles 206 and 207 of the Family Code are provisions establishing a quasi-contract.
The Civil Code requires one who is obligated to support another but who fails to do so to
reimburse a third person who provided the necessary support to the one entitled to it, otherwise,
he would be unjustly enriching himself at the expense of another. Whoever advances the
support shall be entitled to be reimbursed unless he gives it as an act of charity, and without any
intention of being reimbursed. The giving of support by a stranger must be with the intention to
be reimbursed later on by the one who is obliged to support the recipient. Thus, if the person
provided support to a child out of pity and compassion, withoutany intention to be reimbursed,
then he cannot later on demand for reimbursement as the giving was done voluntarily and no
unjust enrichment happens.

TITLE IX

PARENTAL AUTHORITY

###
 Chapter 1

General Provisions

Art. 209. Pursuant to the natural right and duty of

parents over the person and property of their unemancipated
children, parental authority and responsibility shall include
the caring for and rearing them for civic consciousness and
efficiency and the development of their moral, mental and
physical character and well-being.

Art. 210. Parental authority and responsibility may not

be renounced or transferred except in the cases authorized
by law.

NOTES

1. Parental authority is the sum total of the rights of parents over the person and
property of their unemancipated children (2 Manresa 8, cited in Paras, Civil Code of the
Phiilippines, Annotated, 4 th Ed., p.591). Parents have the natural right and duty to care for and
rear their children for civic consciousness and efficiency and the development of their moral,
mental and physical character and well-being. Parental authority refers to the right and duty of
parents under the law of nature as well as the common law and the statutes of many states to
protect their children, to care for them in sickness and in health, and to do whatever may be
necessary for their care, maintenance and preservation(59 Am. Jur. 97, cited in Sta. Maria,
Persons and Family Relations Law, Annotated, 4 th Ed., p. 751). The parental authority granted
by law to parents over the person or property of their children has for its purpose their physical
development, the cultivation of their intelligence and the development of their intellectual and
sensitive faculties ( Reyes vs. Alvarez, 8 Phil. 723).

2. Parental authority is inalienable and any abdication of this authority by the parents is
null and void as it cannot be waived, transferred or renounced except in cases authorized by
law (Teresita Sagala-Eslao vs. CA., 266 SCRA 317, January 16, 1997) . Being purely personal,
the law allows the waiver of parental authority only in cases ofadoption, guardianship or
surrender to a children’s home or an orphan’s in stitution (see: Act No. 3094). Thus, if a parent
entrusts the custody of his minor child to a friend or a relative, what is given is only temporary
custody and not a renunciation of parental authority. A father can, therefore, recover the rightful
custody of his child from the latter‟s grandparents in the absence of proof that he is disqualified
to exercise parental authority (Santos vs. Court of Appeals, G.R. No. 113054, March 16, 1995,
242 SCRA 407).

Art. 211. The father and the mother shall jointly

exercise parental authority over the persons of their common
children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.

##$
 Children shall always observe respect and reverence
towards their parents and are obliged to obey them as long
as the children are under parental authority. (311a)

Art. 212. In case of absence or death of either parent,

the parent present shall continue exercising parental
authority. The remarriage of the surviving parent shall not
affect the parental authority over the children, unless the
court appoints another person to be the guardian of the
person or property of the children. (n)

NOTES

1. Parental authority shall be exercised jointly by the father and the mother over the
person and property of their common children. The use of the wordcommon children in Article
211 emphasizes the fact that the child here may either be legitimate or illegitimate. This is
different from Sec. 17 of P.D. 603 (Child and Youth Welfare Code), which has been expressly
repealed by the Family Code, where joint parental authority referred to legitimate or adopted
children only. This interpretation of Article 211 is in consonance with the ruling of the Supreme
Court in the case of Dempsey vs. RTC, 164 SCRA 384, where it said that joint parental authority
must be exercised by the father and the mother of an acknowledged natural child which was
one of the classifications of an illegitimate child under the Civil Code. However, for this
interpretation to apply, two requisites must be present, and they are: (1.) the paternity is certain;
and (2.) the father and the mother of the illegitimate child must be living together under one roof

with the child. This must be so in order to harmonize Article 21 with Article 176 of the Family
Code which provides that illegitimate children shall be under the parental authority of the
mother. Hence, if paternity and filiation is not doubted, and the child and his mother are living
together with the father, the latter must have joint parental authority over the child.

2. In case of conflict between the parents in the manner of rearing the child under their
joint parental authority, the decision of the father shall prevail. The remedy of the mother is to go
to court and question the decision of the father as it is only the court, through a judicial order,
that can reverse the father‟s decision. The objection of the mother must, however, rest on a very
valid and substantial reason for the court will not unduly supplant the prerogative of the father in
upbringing his child unless there is evidence that the decision of the father is not to the best
interest of the child. On the other hand, children are obliged to respect and obey their parents
for as long as they are under their parental authority. Act No. 4002 provides that a child incurs
criminal liability if the child shows disrespect or disobedience to his parents. Furthermore, Article
223 of the Family Code allows the parent to apply for an order providing for disciplinary
measures over the child.

3. The surviving parent shall continue to exercise parental authority despite the death of
the other parent. The remarriage of the surviving parent will not affect that authority but the new
spouse will not be entitled to exercise joint parental authority over the child not unless he/she

##%
adopts the child. However, the court may deprive the surviving parent of his/her parental
authority over the child, if, it finds that, by reason of the remarriage, the surviving parent cannot
anymore undertake the necessary devotion, care, loyalty and concern toward the child. In this
case, the court may appoint another person to act as the guardian over the person and property
of the child.

Art. 213. In case of separation of the parents, parental

authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven

years of age, unless the parent chosen is unfit. (n)

NOTES

1. In case the parents of the child are separated, whether legally or by a de facto
separation, parental authority shall be exercised by the parent designated by the court. In
determining who between the parents shall be awarded custody of the child, the court shall t ake
into account all relevant considerations, especially the choice of the child over seven years of
age, unless the parent chosen is unfit. The general rule is that, if the child is below seven years
of age, the custody should be awarded to the mother, unless there are compelling reasons to
deprive the mother of such custody. If the child is over seven years of age, the child is given the
right to choose but the choice of the child may be over-ruled by the court if it finds the same to
be not in the best interest of the child. In other words, the paramount welfare and interest of the
child shall always be the basis for the court in awarding the custody of the child to one parent.

2. The award of parental authority to one parent in case of separation does not mean

that the parental authority of the other parent is necessarily terminated or lost. Parental authority
is terminated only if the court so decrees on the basis of the valid causes for termination or
suspension of such authority under Articles 228 to 233 of the Family Code. Thus, when the
court awards the custody of the child to the mother in a legal separation case, the consent of the
father is still required if the child will be offered for adoption by another person. The contention
of the mother that the consent of the father is no longer required in the adoption of the child
because she alone has the parental authority of the child is wrong. Only the exercise of parental
authority was given to the mother but the father still retains parental authority especially on
matters pertaining to adoption. The Supreme Court ruled that the consent of the father must still
be obtained considering that the legal separation decree did not necessarily terminate the
parental authority of the father(Cang vs. Court of Appeals, 296 SCRA 128).

3. The grant of joint custody of the child by the Court of Appeals is an abuse of
discretion. In all questions regarding the care and custody of the child, his/her welfare is the
paramount consideration. The so called “tender age presumption” under Article 213 of the
Family Code may be overcome only by compelling reason or evidence of the mother‟s
unfitness. Here, the mother was not shown to be unfit, thus, sole custody is awarded to her
(Hirsch vs. Court of Appeals, G.R. No. 174485, July 11, 2007).

##&
 4. The second paragraph of Article 213 of the Family Code, which provides that “no child
under seven years of age shall be separated from the mother unless there are compelling
reasons”, is mandatory. The Joint Custody Agreement execu ted by the parents of the child after
obtaining a divorce in the United States cannot be enforced here as it isvoid ab initio for being
contrary to law. The agreement would have been valid if the spouses have not divorced or
separated because the law provides for joint parental authority when the spouses live together
(Dacasin vs. Del Mundo-Dacasin, G.R. No. 168785, Feb. 5, 2010)

5. Parents can never be deprived of their custody and care of their children except for a
valid cause provided by law. In custody cases, the child‟s best interest is the paramount
consideration in the award of custody to one parent. As between the parents and the
grandparents of the child, the parents should be preferred in the battle for custody of the child.
Thus, in an action for custody filed by the parents in order to recover their child from the
grandparents to whom they entrusted the child since the latter was still one year old, the court
ruled in favor of the parents. However, when the court attempted to enforce the judgment
awarding the custody of the child to the parents, the child threatened to kill herself if she will be
delivered to her natural parents instead of letting her stay with her grandparents. The Supreme
Court was constrained to change its decision and allowed the child to remain in the custody of
her grandparents. The court‟s judgment in custody cases will not attain finality as it can be
changed by the court anytime depending on what it feels is best for the interest of the child
(Luna vs. Intermediate Appellate Court, 137 SCRA 7).

6. The court may award custody of the child to a stranger if such award would best serve
the paramount interest of the child B
( alatbat vs. Balatbat, 98 Phil. 998). The absence of kinship
between the child and the stranger does not bar the lower court from awarding the custody of
the former to the latter. The law provides that in certain cases the custody of the child may be
awarded even to strangers, as against the natural parents. Thus, if the court finds both parents
to be improper persons to whom to entrust the care, custody and control of the child, the court
may designate other persons to take charge of such child, or commit it to any suitable asylum,
children‟s home, or benevolent society(Chua vs. Cabangbang, 27 SCRA 291).

7. The maternal preference rule, which gives preference to the mother over the father in
the custody of a child under seven years of age, is based on the universally recognized rule that
the mother is the natural custodian of her young. The law favors the mother if she is a fit and
proper person to have custody of her children so that they may not only receive her attention,
care, supervision and kindly advice, but also may have the advantage and benefit of a mother‟s
love and devotion for which there is no substitute. The natural inclination to give to the mother
the custody of her children of tender years is a recognition that the mother is God‟s own
institution for the rearing and upbringing of the child, and puts a premium on child culture in the
hands of an expert (Hines vs. Hines, 192 Iowa 569 as cited in Sta. Maria, Persons and Family
Relations Law, 4 th Ed., p.763). However, this rule is not absolute as it is subject to the condition
that the mother is fit to exercise custody of her child. Thus, if there are compelling reasons to
deprive the mother of the preferential custody of the child, the court should not hesitate to award

##'
the child‟s custody to the father or even ot any other persons who are capable of providing the
child the love and affection of a parent.

8. What constitutes “compelling reasons” must be clearly shown by positive and clear
evidence of the unfitness of the mother and its determination is left to the sound judgment of the
courts. Among the compelling reasons mentioned by the Supreme Court are: (a.) A mother who,
after the separation, lived with her brother-in-law with whom she now has a child, is not morally
fit to have the custody of the child with her estranged husband. The custody of the child cannot
be awarded to the wife who might create an immoral influence over the child‟s moral and social
outlook at her tender age ( Unson III vs. Hon Navarro and Araneta, 101 SCRA 183). (b.) When

the illegitimate child has already been in the custody of the father while the mother left to work in
the United States, and the father has been appointed guardian of the child although it was
subsequently set aside by the court when the mother objected to his appointment, the court
finds it to the best interest of the child that she remained in the custody of her father until the
guardianship proceeding is terminated. This is to preventhavoc on her psychological make-up
when she is transferred to the custody of her mother and then back to her father in case the
latter wins the guardianship case T ( onog vs. Daguimol, G.R. No. 122906, February 7, 2002).
(c.) When the mother is already maintaining a common law relationship with a married man,
there is a compelling reason to deprive her of the custody of her child. The reason given by the
Supreme Court is that a common law relationship of the mother with a married man will not
afford the minor child that desirable atmosphere where she can grow and develop into an
upright and moral-minded person (Cervantes vs. Fajardo, G.R. No. 79955, January 27 1989).

9. However, the following instances do not constitute compelling reasons to deprive the
mother of the child‟s custody: (a.) The fact that the father is financially well -off compared to the
mother is no justification to deprive the mother of custody, if the latter can nevertheless decently
support her children ( David vs. Court of Appeals, 250 SCRA 82). (b.) Lesbianism per se of the
wife is not enough to deprive her of the custody of her children below seven years of age. It
must be shown that the wife carried on her purported relationship with a person of the same sex
in the presence of their son or under circumstances not conducive to the child‟s proper moral
development. In this case, there is no evidence that the son was exposed to the mother‟s
alleged sexual proclivities or that his proper moral and psychological development suffered as a
result. Sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her
husband would render her unfit to have custody of her minor child. To deprive the wife of
custody, the husband must clearly establish that her moral lapses have an adverse effect on the
welfare of the child or have distracted the offending spouse from exercising proper parental care
(Gualberto vs. Court of Appeals, et al., G.R. No. 156254, June 28, 2005).

10. The issue of custody of children shall be resolved in the court where the case for
Declaration of Nullity of Marriage is pending pursuant to Articles 49 and 50 of the Family Code.

This means that the filing of a separate action for custody is not necessary(Yu vs. Yu, G.R. No.
164915, March 10, 2006).

##(
 11. The law creating the Family Court (R.A. 8369) did not divest the Court of Appeals
and the Supreme Court of their jurisdiction overhabeas corpus cases involving the custody of
minors. Family Courts have concurrent jurisdiction with the Court of Appeals and the Supreme
Court in petitions for habeas corpus where the custody of minors is at issue. The jurisdiction of
the Court of Appeals over petitions for habeas corpus involving minors was further affirmed by
new Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors,
known as A.M. No. 03-03-04-SC ( Madrinan vs. Madrinan, G.R. No. 159374, July 12, 2007). A
complete text of R.A. No. 8369 and A.M. No. 03 -03-04-SC are hereto attached as Appendix “F”
and Appendix “E”, respectively.

Art. 214. In case of death, absence or unsuitability of

the parents, substitute parental authority shall be exercised
by the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority. (355a)

Art. 215. No descendant shall be compelled, in a

criminal case, to testify against his parents and grandparents,
except when such testimony is indispensable in a crime
against the descendant or by one parent against the other.
(315a)

NOTES

1. Substitute Parental Authority is given by law to grandparents in case of death,

absence or unsuitability of the child‟s parents to exercise parental authority. If boththe paternal
and maternal grandparents of the child are still living, the court will decide to whom the custody
and parental authority over the child be awarded taking into consideration the best interest and
welfare of the child. The preference of the paternal grandparents over the maternal
grandparents under the previous law has now been removed. For the application of Article 214,
it is necessary that both parents must have already been dead or unable to exercise parental
authority. If only one parent is dead or absent, parental authority shall be exercised by the
surviving parent and not by the grandparents.

2. The petition for habeas corpus filed by the grandparents to recover custody of the
child from strangers, to whom the child was entrusted by her mother, is tenable. The RTC erred
in dismissing the petition after the child was produced in court on the ground that it has become
moot and academic. The court should not have dismissed the petition but to continue receiving
evidence to determine who betweenthe parties is entitled tolawful custody of the child. Section

1, Rule 102, of the Rules of Court states that the writ of habeas corpus shall extend to all cases
where the rightful custody of any person is withheld from the person entitled thereto. In cases
involving minor, the purpose of the petition for habeas corpus is not limited to the production of
the child before the court. The main purpose of the petition for habeas corpus is to determine

##)
who has the rightful custody over the child (Noel Bagtas vs. Hon. Ruth Santos, G.R. No.
166682, Nov. 27, 2009).

3. The Filial Privilege Rule refers to the right of the descendant not to be compelled to
testify in a criminal case against his parents and grandparents, except when such testimony is
indispensable in a crime, against the descendant or by one parent against the other. This rule
does not include or extend to civil cases. What is prohibited here is the act of compelling the
child or descendant to testify against his parents in a criminal case. The descendant, however,
can voluntarily testify if he so desires.

Chapter 2

Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed

guardian, the following persons shall exercise substitute
parental authority over the child in the order indicated:

(1.) The surviving grandparent, as provided in Art. 214;

(2.) The oldest brother or sister, over twenty-one years

of age, unless unfit or disqualified; and

(3.) The child's actual custodian, over twenty-one

years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over
the property of the child becomes necessary, the same order
of preference shall be observed. (349a, 351a, 354a)

Art. 217. In case of foundlings, abandoned, neglected

or abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial
proceedings to heads of children's homes, orphanages and
similar institutions duly accredited by the proper government
agency. (314a)

NOTES

1. In case of default of parents or a judicially appointed guardian, the persons

enumerated
same order ofin preference
Article 216mentioned
of the Family Code
in the saidshall assume
article. Thus, substitute
between theparental authorityand
grandparents in the
the
siblings of the child, the former is preferred. In case the child has no more surviving

##*
grandparents or brothers and sisters who are fit and qualified to exercise substitute parental
authority over him, the child‟s actual custodian will exercise parental authority on the child.

2. It must be noted, however, that the child‟s actual custodian who is ot

n in any way
related by blood to the child may be awarded by the court the custody and parental authority
even as against the natural parents of the said child. Thus, where it appears that the biological
parents of the child are improper persons to whom to entrust the care, custody and control of
the child, the court may designate even a stranger to exercise custody and parental authority
over the child (See: Cabangbang vs. Chua, 26 SCRA 791).

3. A foundling is a child with no known parents. Abandoned, neglected or abused

children are those whose parents are known but were deserted, abandoned or not anymore
provided the required parental care and guidance by their said parents. These children shall be
entrusted in summary judicial proceedings to heads ofchildren‟s homes, orphanages and
similar institutions duly accredited by the proper government agency.

Art. 218. The school, its administrators and teachers,

or the individual, entity or institution engaged in child care
shall have special parental authority and responsibility over
the minor child while under their supervision, instruction or
custody.

Authority and responsibility shall apply to all

authorized activities whether inside or outside the premises
of the school, entity or institution. (349a)

Art. 219. Those given the authority and responsibility

under the preceding Article shall be principally and solidarily
liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said
minor shall be subsidiarily liable.

The respective liabilities of those referred to in the

preceding paragraph shall not apply if it is proved that they
exercised the proper diligence required under the particular
circumstances.

All other cases not covered by this and the preceding

articles shall be governed by the provisions of the Civil Code
on quasi-delicts. (n)

NOTES

#$+
 1. Once a minor student enters the premises of the school and placed under its
supervision, instruction or custody, he is immediately considered to be under the special
parental authority of the school concerned. If the child causes damage or injury to another
inside the school premises, it is the school, its administrators and teachers, or the individual,
entity or institution engaged in child care who will be principally and solidarily liable for the
damage caused by the child. The liability of the parents for the act causing damage to another
committed by their minor children inside the school premises shall only be subsidiary. This
means, that the parents will only be liable if the school and its teachers cannot pay due to
insolvency. The responsibility of the school and the teacher extends beyond the campus, as it
applies to all authorized activities inside or outside the school premises.

2. If the act causing damage to another was committed inside the classroom, the
teacher-in-charge shall be principally liable. It is not necessary that at the time of the injury, the
teacher be physically present and in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more to the influence exerted on the child and
the discipline instilled in him as a result of such influence. If done outside the classroom but
within the campus, the school and its administrator shall be the one principally liable. In either
case, the teacher or the school and its administrators may escape liability if they can prove that
they exercised due diligence of a good father of a family in preventing the incident. In other
words, if there is no negligence on the part of the teacher and the school, no solidary liability will
occur for the damage caused by the minor student.

3. The rule before was that a teacher can be held liable for the tortuous act of his student
or pupil only when he is a teacher of a school of arts and trade ( See: Exconde vs. Capuno, 101
Phil. 843; Mercado vs. Court of Appeals, 108 Phil. 414; and Palisoc vs. Brilliantes, 41 SCRA,
548). The said rule has already been abandoned by the case of Amadora vs. CA, et al., G.R.
No. L- 47745, April 15, 1988, when the Supreme Court ruled that there is no substantial
distinction between the academic and the non-academic schools in so far as torts committed by
their students are concerned. The same vigilance is expected from the teacher over the
students under his control and supervision, whatever the nature of the school where he is
teaching.

4. Where the school is academic rather than technical or vocational in nature,

responsibility for the tort committed by the student will attach to the teacher-in-charge of such
student, following the first part of the provision. However, if the establishment is a school of arts
and trades, it is the head thereof, and only he, shall be held liable as an exception to the general
rule (Amadora vs. Court of Appeals, G.R. No. 47745, April 15, 1988).

5. Both Articles 218 and 219 refer to students who are still minors or unemancipated
under the supervision, instruction or custody of the school, administrators and teachers. It would
seem that if the student is no longer a minor, responsibility mentioned in these articles do not
apply. However, Article 2180 of the Civil Code provides that teachers “ or heads of
establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices so long as they remain in their custody.”The foregoing article did not
state that the student must be a minor, thus, it is submitted that said article will apply even if the

#$!
student is no longer a minor. Liability, however, shall only attach upon a clear showing of
negligence or laxness in the enforcement of discipline. The school of arts and trade cannot be
held liable for the damage caused by its students as it is the teachers or heads of
establishment who are primarily liable under the law. But, while the school itself cannot be held
liable under Article 2180, it can nevertheless be held liable under the principle of respondeat
superior considering that it is the employer of the teacher or head teacher principally liable.

Chapter 3

Effect of Parental Authority

Upon the Persons of the Children

Art. 220. The parents and those exercising parental

authority shall have with respect to their unemancipated
children on wards the following rights and duties:

(1.) To keep them in their company, to support,

educate and instruct them by right precept and good
example, and to provide for their upbringing in keeping with
their means;

(2.) To give them love and affection, advice and

counsel, companionship and understanding;

(3.) To provide them with moral and spiritual guidance,

inculcate in them honesty, integrity, self-discipline, self-
reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of
citizenship;

(4.) To furnish them with good and wholesome

educational materials, supervise their activities, recreation
and association with others, protect them from bad company,
and prevent them from acquiring habits detrimental to their
health, studies and morals;

(5.) To represent them in all matters affecting their

interests;

(6.) To demand from them respect and obedience;

(7.) To impose discipline on them as may be required

under the circumstances; and

#$#
 (8.) To perform such other duties as are imposed by
law upon parents and guardians. (316a)

NOTES

1. Parents are the natural guardians of their unemancipated children. In their absence,
those mentioned in Articles 214 and 216 will assume substitute parental authority over the child.
Parental authority exercised by the child‟s parents may either be over the person or over the
property of the child. Parental authority over the person of the child includes the obligation to
keep them in their company, support and educate them, and provide them with good examples.
Parents should give their children the required love and affection, moral and spiritual guidance,
preserve and maintain their physical and mental health, and furnish them with good and
wholesome educational materials. They shall represent them in all matters affecting their
interest. Likewise, they have the right to demand respect and obedience from them and impose
discipline as may be required under the circumstances.

2. Parents have the right to keep their children in their company. Refusal of the parents
to give their consent to the marriage of their minor child is no justification for the said child to
abandon her parents and live in the homeof the judge. A petition for custody of minor filed by
the parents is proper (Salvana vs. Gaela, 55 Phil. 680). In another case, the Supreme Court
granted the petition for habeas corpus filed by the parents against the religious institution, to
whom they entrusted their child who was still 2 1/2years old, even if the child testified that she
was there of her own free will R
( eyes vs. Alvarez, 8 Phil. 723).

3. A mother has the right to file a petition for change of name for and on behalf of her
unemancipated child as it is part of her duty to represent her children in all matters affecting

their interest (Tse vs. Republic, 20 SCRA 1261). The offer of the father to redeem for and on
behalf of their children their property is valid as it is an act of representation of his children being
their natural guardian (Wenceslao vs. Calimon, 46 Phil. 906).

4. Parents have the right to demand from their children respect and obedience and to
impose discipline on them as may be required under the circumstances. Part of the said right to
discipline their children is to inflict a reasonable measure of corporal punishment.

Art. 221. Parents and other persons exercising

parental authority shall be civilly liable for the injuries and
damages caused by the acts or omissions of their
unemancipated children living in their company and under
their parental authority subject to the appropriate defenses
provided by law.

NOTES

1. Parents are principally and primarily liable for the acts or omissions of their
unemancipated children which resulted to the damage or prejudice of another. For this liability to

#$$
attach, it is necessary that the unemancipated child must still be living in their company and
vicarious liability or the
under their parental authority. This liability of the parents is known as the
doctrine of imputed negligence under the tort law. Thus, a person is not only liable for torts
committed by him, but also for torts committed by others with whom he has a certain
relationship and for whom he is responsible. The liability imposed upon parents under this
article is based upon the parental authority vested on them by the Civil Code. When a child
living with its parents commits a tortuous act, the parents are presumed negligent unless they
can show that they exercised all the diligence of a good father of a family to prevent the
damage.

2. Adopting parents are not liable for the crime committed by their adopted child during
the pendency of the adoption proceeding in court. This is because when the child committed the
act, he was still under the custody and parental authority of his natural parents. Although the
adoption decree retroacts to the filing of the petition for adoption, the said rule cannot apply in
so far as the vicarious liability of parents is concerned because said liability can only attach if, at
the time of the incident, the child were under their custody and parental authority. Hence, the
natural parents should still be held liable and not the adopting parents notwithstanding the
retroactivity of the decree(Tamargo vs. Court of Appeals, 209 SCRA 518).

3. In order to free themselves from liability for acts committed by their minor children, it is
imperative that the parents must show that they exercised the due diligence of a good father of
a family. Thus, when a minor shot and killed his girlfriend after the latter broke off their
relationship, and the gun used by the minor was that of his father, the presumption of
negligence applies. Here, the father failed to prove that he exercised due diligence of a good
father of a family, thus, he is vicariously liable for the death of t heir son‟s girlfriend ( Libi vs.
Intermediate Appellate Court, 214 SCRA 17).

4. The reason behind the liability of parents for the acts or omissions of their minor
children is their failure to supervise them in order to prevent them from causing damage or injury
to another.

Art. 222. The courts may appoint a guardian of the

child's property or a guardian ad litem when the best
interests of the child so requires. (317)

NOTES

1. Although parents are the natural guardians of their minor children, the court may
forfeit that right if the welfare and best interest of the child dictates. Whatever right the parents
have to act as the guardian of their own child may be subordinated to the established rule that
the welfare and best interest of the child are the primary consideration. In deciding who will be
appointed guardian of the minor, the court shall consider the financial capability, business

acumen, the physical condition, the character, conduct, and the present and past history of the
prospective appointee, as well as the probability of his being able to exercise the powers and
duties of guardian for the full period during which guardianship will be necessary(39 Am. Jur.
35, as cited in Persons and Family Relations Law, 4 th Ed., Sta. Maria, p.792).

#$%
 Art. 223. The parents or, in their absence or incapacity,
the individual, entity or institution exercising parental
authority, may petition the proper court of the place where
the child resides, for an order providing for disciplinary
measures over the child. The child shall be entitled to the
assistance of counsel, either of his choice or appointed by
the court, and a summary hearing shall be conducted wherein
the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the

petitioner at fault, irrespective of the merits of the petition, or
when the circumstances so warrant, the court may also order
the deprivation or suspension of parental authority or adopt
such other measures as it may deem just and proper. (318a)

Art. 224. The measures referred to in the preceding

article may include the commitment of the child for not more
than thirty days in entities or institutions engaged in child
care or in children's homes duly accredited by the proper
government agency.

The parent exercising parental authority shall not interfere

with the care of the child whenever committed but shall
provide for his support. Upon proper petition or at its own

instance,
child the court
whenever mayproper.
just and terminate the commitment of the
(391a)

NOTES

1. Parents have the primary responsibility of disciplining their children. However, if the
child is incorrigible despite efforts of the parents, the latter may seek the assistance of the court
in imposing such discipline. The parents or, in their absence or incapacity, the individual, entity
or institution exercising parental authority, may petition the proper court of the place where the
child resides, for an order providing for disciplinary measures over the child.

Chapter 4.

Effect of Parental Authority Upon

the Property of the Children

#$&
 Art. 225. The father and the mother shall jointly
exercise legal guardianship over the property of the
unemancipated common child without the necessity of a
court appointment. In case of disagreement, the father's
decision shall prevail, unless there is a judicial order to the
contrary.

Where the market value of the property or the annual income

of the child exceeds P50,000, the parent concerned shall be
required to furnish a bond in such amount as the court may

determine, but not less than ten per centum (10%) of the
value of the property or annual income, to guarantee the
performance of the obligations prescribed for general
guardians.

A verified petition for approval of the bond shall be filed in

the proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the
place where the property or any part thereof is situated.

The petition shall be docketed as a summary special

proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely

suppletory or
authority, except when the child
the guardian is a is under substitute
stranger, parental
or a parent has
remarried, in which case the ordinary rules on guardianship
shall apply. (320a)

Art. 226. The property of the unemancipated child

earned or acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership and
shall be devoted exclusively to the latter's support and
education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's
support and secondarily to the collective daily needs of the
family. (321a, 323a)

Art. 227. If the parents entrust the management or

administration of any of their properties to an unemancipated
child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly

#$'
 allowance in an amount not less than that which the owner
would have paid if the administrator were a stranger, unless
the owner, grants the entire proceeds to the child. In any
case, the proceeds thus give in whole or in part shall not be
charged to the child's legitime. (322a)

NOTES

1. The father and the mother of an unemancipated child are automatically considered as
legal guardian over the property of the said child without need of a court appointment. Parents
are presumed to act only for the best interest of the child and are capacitated to reasonably
undertake activities for the benefit of their child. In order to avoid a hiatus or vacuum in case of
disagreement between the parents of the child, the law provides that the decision of the father
shall prevail. This is without prejudice, however, to the right of the mother to go to court to
question such decision.

2. In case the value of the property or the income of the child exceeds P50,000, the
parents are required to put up a bond in such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property or the annual income of the said child.
The purpose of the bond is to guarantee the performance of the obligations prescribed for
general guardians. For this purpose, a verified petition for approval of the bond shall be filed in
the proper court of the place where the child resides, or, if the child is residing abroad, in the
proper court of the place where the property or any part thereof is situated.

3. The petition for the approval of the bond filed by the parents shall be docketed as a
summary special proceeding in which all incidents and issues regarding the performance of the

obligations referred to in the second paragraph of Article 225 shall be heard and resolved. The
proceeding shall be summary in nature and all other incidents and issues related thereto shall
be decided in an expeditious and inexpensive manner without regard to technical rules. If the
parents are the one acting as guardian over the property of their child, the rules on guardianship
are merely suppletory. However, if the child is under substitute parental authority, or the
guardian is a stranger, or a parent has remarried, the ordinary rules on guardianship shall apply.
This is so because those who are not parents of the child are not expected to have the same
sense of devotion and loyalty to the child not their own. Therefore, more protection and
safeguards are needed.

4. The authority of the parents over the property of their children as legal guardian is
limited only to acts of administration or management. It does not include acts of encumbrance or
disposition (Nario vs. Philippine American Life Ins. Co., 20 SCRA 434). Thus, a waiver of right
or an act of entering into a compromise agreement involving the property of the child cannot be
done by parents without the authority of the court as the said acts are already deemed acts of
alienation or of strict ownership (Ledesma Hermanos vs. Castro, 55 Phil. 136; Visaya et al. vs.
Suiguitan, et al., G.R. No. L-8300, November 18, 1955).

5. The property acquired by the child through his own effort or industry or by gratuitous
title shall belong to him in ownership. The said properties shall be devoted primarily for his own

#$(
welfare, support and education. However, if the said child‟s property and income is more than
enough for his own needs, the same may be used for the collective daily needs of his family if
the latter is truly in need of such amount. It must be remembered that the child is also obligated
to support his parents under the law. Thus, if the family is in dire need of support and the minor
child has property or income more than sufficient for his need, the excess may be used for the
collective daily needs of the family.

6. The parents who hired their unemancipated child to manage or administer their
property must compensate their child with a reasonable monthly allowance in an amount not
less than that which the parents will pay if the administrator were a stranger. The amount given

to the child as allowance (compensation) for services rendered shall not be charged to the
child‟s legitime.

Chapter 5

Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:

(1.) Upon the death of the parents;

(2.) Upon the death of the child; or

(3.) Upon emancipation of the child. (327a)

Art. 229. Unless subsequently revived by a final

judgment, parental authority also terminates:
(1.) Upon adoption of the child;

(2.) Upon appointment of a general guardian;

(3.) Upon judicial declaration of abandonment of the

child in a case filed for the purpose;

(4.) Upon final judgment of a competent court

divesting the party concerned of parental authority; or

(5.) Upon judicial declaration of absence or incapacity

of the person exercising parental authority. (327a)

NOTES

1. Death extinguishes civil personality. The effect of death upon the rights and
obligations of the deceased is determined by law, by contract and by will (see Article 42 of the
Civil Code of the Philippines). Thus, if the parent or the child dies, parental authority is
terminated permanently.

#$)
 2. Emancipation of the child takes place upon reaching the age of majority which is now
18 years of age under R.A. 6809. Emancipation terminates parental authority over the person
and property of the child and he or she is thereby qualified to do all acts of civil life save
exceptions established by existing laws in special cases.

3. Parental authority may also be terminated based on the grounds mentioned in Article
229, to wit: upon adoption of the child, upon appointment of a general guardian, judicial
declaration of abandonment of the child, final judgment divesting a party of parental authority,
and judicial declaration of absence or incapacity of the person exercising parental authority. The
termination of parental authority under Article 229, unlike in Article 228, is not permanent. This

is because parental authority may be subsequently revived if the grounds stated in Article 229
cease to exist. It must also be noted that judicial termination of parental authority shall only be
allowed on the basis of the legal grounds provided for by law. The act of compelling their
unemancipated daughter to marry against her will or the refusal of the parents to give their
consent to the marriage of their child to her boyfriend are not considered as grounds to deprive
the parents of their parental authority S
( alvana and Saliendra vs. Gaela, 55 Phil. 680).

Art. 230. Parental authority is suspended upon

conviction of the parent or the person exercising the same of
a crime which carries with it the penalty of civil interdiction.
The authority is automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender. (330a)

Art. 231. The court in an action filed for the purpose in

a related case may also suspend parental authority if the
parent or the person exercising the same:

(1.) Treats the child with excessive harshness or

cruelty;

(2.) Gives the child corrupting orders, counsel or

example;

(3.) Compels the child to beg; or

(4.) Subjects the child or allows him to be subjected to

acts of lasciviousness.

The grounds enumerated above are deemed to include cases

which have resulted from culpable negligence of the parent
or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the

child so demands, the court shall deprive the guilty party of

parental authority or adopt such other measures as may be
proper under the circumstances.

#$*
 The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or in
the same proceeding if the court finds that the cause therefor
has ceased and will not be repeated. (33a)

NOTES

1. Parental authority will be suspended if the parents or the guardian of the child is
convicted of a crime which carries with it the penalty of civil interdiction. Civil interdiction is an
accessory penalty imposed on an accused for certain crimes which normally involve moral
turpitude. Once a person is under civil interdiction, he is deprived during the time of his or her
sentence of the rights of parental authority, or of guardianship over the person or property of the
ward, of marital authority, of the right to manage his property and of the right to dispose of such
property by any act or conveyance inter vivos (Art. 34 RPC). Since civil interdiction is just an
accessory penalty, the aforementioned rights suspended as a consequence thereof is
automatically restored once the sentence is served or upon pardon or amnesty of the offender.
Thus, once the offender has served his sentence, his right of parental authority which was
suspended is automatically reinstated without need of a court order.

2. Article 231 of the Family Code also mentioned of other grounds for suspension of
parental authority. They are as follows: treating the child with excessive harshness or cruelty,
giving the child corrupting orders, counsel or example, compelling the child to beg, and
subjecting the child or allowing him to be subjected to acts of lasciviousness. The court can
suspend the parental authority of parents under this article only if there is a case specifically
filed for that purpose or in a related case. Thus, as a general rule, the court cannot motu proprio
suspend parental authority of parents even if the latter has committed the grounds enumerated
in Article 231 if there is no action filed specifically for that purpose. By way of exception, the
court may, however, declare suspension of parental authority in a related case when warranted
or may adopt such measures as it may deem necessary.

Art. 232. If the person exercising parental authority has

subjected the child or allowed him to be subjected to sexual
abuse, such person shall be permanently deprived by the
court of such authority. (n)

Art. 233. The person exercising substitute parental

authority shall have the same authority over the person of the
child as the parents.

In no case shall the school administrator, teacher of

individual engaged in child care exercising special parental
authority inflict corporal punishment upon the child. (n)

NOTES

1. Sexual abuse committed by a parent on his/her child is one of the most serious act of
moral depravity and corruption. If the parents or the person exercising parental authority has

#%+
subjected the child to sexual abuse, he/she may be permanently deprived by the court of such
authority. Unlike Article 229 where the termination of parental authority is not permanent as it
can be revived by the court, the ground of sexual abuse in Article 232 causes permanent
deprivation of parental authority. Thus, if the father is found to have sexually abused his
daughter, he will be permanently deprived of his parental authority over the said child. The fact
that he has already reformed and that there are genuine indication that he will not do the same
act again is immaterial. It will not restore his parental authority as the deprivation is permanent.

2. Those exercising special parental authority, such as the school administrator, teacher
or individual engaged in child care cannot inflictcorporal punishment upon the child. Corporal

punishment is the n i fliction of physical disciplinary measures to a student. The Family Code as
well as the Manual of Regulations of Private Schools prohibits the teachers from inflicting
corporal punishment on their students. It must be noted, however, that only those exercising
special parental authority are prohibited from inflicting corporal punishment. Parents and those
exercising substitute parental authority may inflict corporal punishment on their children as it is
part of their right and duty “to impose discipline on them as may be required under the
circumstances.” However, they must do it in a very reasonable manner and not treat the child
with excessive harshness or cruelty, otherwise, it would result the suspension of their parental
authority under Article 231 of the Family Code.

3. In order to protect the children against abuses of their parents, President Corazon C.
Aquino approved on June 17, 1992 Republic Act 7610, otherwise known as the “Special
Protection of Children against Child Abuse, Exploitation and DiscriminationAct.” (Please see
Appendix “K”).

TITLE X

EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment

of majority. Unless otherwise provided, majority commences
at the age of twenty-one years.

Emancipation also takes place:

(1.) By the marriage of the minor; or

(2.) By the recording in the Civil Register of an

agreement in a public instrument executed by the parent
exercising parental authority and the minor at least eighteen
years of age. Such emancipation shall be irrevocable.
(Amended by R.A. 6809)

#%!
 Art. 235. The provisions governing emancipation by
recorded agreement shall also apply to an orphan minor and
the person exercising parental authority but the agreement
must be approved by the court before it is recorded.
(Repealed by R.A. 6809)

Art. 236. 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. (amended by R.A. 6809)

Art. 237. The annulment or declaration of nullity of the

marriage of a minor or of the recorded agreement mentioned
in the foregoing. Articles 234 and 235 shall revive the parental
authority over the minor but shall not affect acts and
transactions that took place prior to the recording of the final
judgment in the Civil Register. (Repealed by R.A. 6809)

NOTES

1. This Title X, particularly Articles 234, 235 and 237, has already been amended or
repealed by Republic Act No. 6809. Under this amendatory law, emancipation is attained upon
reaching eighteen (18) years of age.Emancipation by marriage of aminor or emancipation by
agreement under Article 235 has already been repealed. Marriage is no longer aground for
emancipation as the age of majority and the marriageable age are already the same, which is
18 years old. Since the age of majority has already been lowered to 18 years old by R.A. 6809,

the term “minors emancipated by marriage” is no longer applicable now.

2. The amended Article 236 now reads as follows:

Article 236. Emancipation for any cases shall terminate

parental authority over the person or property of the child who
shall then be qualified and responsible for all acts of civil life,
save the exceptions established by existing laws in special
cases.

Contracting marriage shall require parental consent until

the age of twenty one.

Nothing in this Code shall be construed to derogate from

the duty or responsibility of parents and guardians for children
and wards below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil Code.
(As amended by R.A. No. 6809).

2. Even though the age of majority was already lowered from 21 to 18 years old, the
provision in the second paragraph of Article 236 of the Family Code, as amended, still requires

#%#
that those between the age of eighteen and twenty one must have to secure the required
parental consent. It must be noted, however, that parental consent is not one of the essential or
formal requisites of marriage. Thus, its absence does not render the marriage null and void. It is
only a ground for annulment of marriage under Article 45 of the Family Code.

3. The last paragraph of Article 236 is intended to highlight the tort liability of the parents
for the acts or omissions committed by their children who are between the age of eighteen to
twenty-one years old. Thus, even if the child is already emancipated by marriage, his parents
are still liable for damages for his acts if he is still between the age of 18 and 21 and living in
their company. The parents, however, may avoid liability if they can prove that they exercised

due diligence in the supervision of their children. The foregoing provision was apparently based
on the ruling of the Supreme Court in the case ofElcano vs. Hill, 77 SCRA 98.

TITLE XI

SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1

Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the

procedural rules provided for in this Title shall apply as
regards separation in fact between husband and wife,
abandonment by one of the other, and incidents involving

parental authority. (n)

Chapter 2

Separation in Fact

Art. 239. When a husband and wife are separated in

fact, or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the consent of
the other spouse is required by law but such consent is
withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any,

embodying the transaction, and, if none, shall describe in
detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, the
final deed duly executed by the parties shall be submitted to
and approved by the court. (n)

#%$
 Art. 240. Claims for damages by either spouse, except
costs of the proceedings, may be litigated only in a separate
action. (n)

NOTES

1. The rules on Summary Judicial Proceedings govern actions involving separation in

fact of the spouses, abandonment, and incidents pertaining to parental authority. Under Articles
96 and 124 of the Family Code, the husband and wife are the joint administrators of the
properties belonging to the absolute community or the conjugal partnership. As such, neither of
them can sell, dispose of, or encumber the common property without the consent of the other. In
case the husband and wife are separated in fact, or one has abandoned the other and the
consent of the abandoning spouse is hard to secure as his whereabouts is unknown, the
present spouse may ask the authorization of the court for the sale or encumbrance of the
common property.

2. The petition seeking judicial authorization to the sale must be verified and shall attach
the proposed deed, if any, embodying the transaction, and state the reason why the required
consent thereto cannot be secured. If the court grants the petition, it is considered as the
consent of the non-consenting spouse or it shall serve as the substitute thereof. After the
contract of sale is perfected, the spouse selling the community property must ask for the
approval of the same from the court which gave the authority to sell, otherwise, the contract is
unenforceable.

3. Since a claim for damages usually entails a lengthy process, the law provides that
such claim, except costs of the proceedings, should be litigated only in a separate action. This

means that a claim for damages cannot be included in the petition for the approval of the sale
even if it arises out of the unjustifiable refusal of one spouse to give his/her consent to the sale.
This is so because a case falling under the rules on summary judicial proceedings must be
decided expeditiously and the resolution of the claim for damages may only cause unnecessary
delay in the disposition of the case.

Art. 241. Jurisdiction over the petition shall, upon

proof of notice to the other spouse, be exercised by the
proper court authorized to hear family cases, if one exists, or
in the regional trial court or its equivalent sitting in the place
where either of the spouses resides. (n)

Art. 242. Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the transaction is
required, of said petition, ordering said spouse to show
cause why the petition should not be granted, on or before
the date set in said notice for the initial conference. The
notice shall be accompanied by a copy of the petition and

#%%
 shall be served at the last known address of the spouse
concerned. (n)

Art. 243. A preliminary conference shall be conducted

by the judge personally without the parties being assisted by
counsel. After the initial conference, if the court deems it
useful, the parties may be assisted by counsel at the
succeeding conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse

whose consent is sought, the court shall inquire into the
reasons for his failure to appear, and shall require such
appearance, if possible. (n)

Art. 245. If, despite all efforts, the attendance of the

non-consenting spouse is not secured, the court may
proceed ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall
endeavor to protect the interests of the non-appearing
spouse. (n)

Art. 246. If the petition is not resolved at the initial

conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence or
oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses to

be heard
the and
parties to the subject-matter
present of their
said witnesses. (n)testimonies, directing

Art. 247. The judgment of the court shall be

immediately final and executory. (n)

Art. 248. The petition for judicial authority to

administer or encumber specific separate property of the
abandoning spouse and to use the fruits or proceeds thereof
for the support of the family shall also be governed by these
rules. (n)

NOTES

1. The petition for judicial authorization to sell or encumber common property must be
filed in the Family Court of the place where either of the spouses resides. If there is no Family
Court in that place, then it shall be filed in the Regional Trial Court of the place adverted to
above. The court acquires jurisdiction over the petition only upon proof of notice on the other
party. The Family Court was created pursuant to Republic Act No. 8369, otherwise known as
the Family Courts Act of 1997.

#%&
 2. Upon the filing of the petition, it is incumbent upon the court to notify the other spouse,
whose consent to the transaction is required, of said petition and the date of its initial hearing.
The court will order the said party to show cause why the said petition should not be granted.
The notice shall be accompanied by a copy of the petition and shall be served at the last known
address of the spouse concerned. The principle of due process demands that the respondent
be given a chance to comment on the petition and show cause why the petition should not be
granted. If the respondent will manifest his or her agreement to the sale then the petition
becomes moot and academic.

3. Before conducting a hearing, the court shall first call the parties to a preliminary

conference where they are required to appear personally without their lawyers. During this
conference, the judge will do its best to convince the parties to settle the matter amicably. That
is why lawyers are not allowed to attend in order to prevent the proceedings to be too
adversarial that may lead to protracted litigation. However, if the case cannot be settled during
the preliminary conference, the lawyers may already be allowed to assist the parties in the next
hearings. In case of non-appearance of the spouse whose consent is sought, the court shall
inquire into the reason for his/her non-appearance, and shall require such appearance, if
possible. If, despite all efforts, the non-consenting spouse still fails to appear, the court may
proceed ex parte and render judgment as the facts and circumstances may warrant.

4. If no settlement is arrived at during the preliminary conference, the petition shall be

decided in a summary hearing on the basis of affidavits, documentary evidence or oral
testimonies at the sound discretion of the court. Thereafter, the court will render judgment and
said judgment is immediately final and executory. This means that the decision of the court is no
longer appealable. However, the aggrieved party may still file an action for annulment of
judgment on the ground that he/she was not accorded due process.

5. Article 248 has reference to Articles 100 and 127, paragraph 3, which provides that in
case of insufficiency of the absolute community or conjugal partnership property to answer all
the obligations of the partnership, the separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon petition in a summary proceedings,
be given judicial authority to administer or encumber any specific separate property of the other
spouse and use the fruits or proceeds thereof to satisfy the latter‟s share. The said petition to
sell or encumber the absence spouse‟s property shall be governed by the rules in this title.

Chapter 3

Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235
of this Code involving parental authority shall be verified. (n)

#%'
 Art. 250. Such petitions shall be verified and filed in
the proper court of the place where the child resides. (n)

Art. 251. Upon the filing of the petition, the court shall
notify the parents or, in their absence or incapacity, the
individuals, entities or institutions exercising parental
authority over the child. (n)

Art. 252. The rules in Chapter 2 hereof shall also

govern summary proceedings under this Chapter insofar as
they are applicable. (n)

NOTES

1. Petitions asking the court to impose disciplinary measures over the child under Article
223 as well as petitions for the approval of the bond required of parents if the value of the
property of their child under their guardianship exceeds P50,000.00 under Article 225 must be
verified. Such petition shall be filed in the proper court of the place where the child resides.
Once the petition is filed, the court must notify the parents or, in their absence or incapacity, the
individual exercising parental authority over the child. These petitions must also be governed by
the rules on summary proceedings.

Chapter 4.

Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3

hereof shall likewise govern summary proceedings filed
under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they
are applicable. (n)

NOTES

1. The Rules on Summary Proceedings under Title XI shall also apply to Petitions for
Declaration on Presumptive Death under Article 41 and Petition for the Delivery of the
Presumptive Legitime of the child under Article 51 in case the marriage of their parents is
declared void or annulled. Likewise, it will apply to Article 69 which deals with the judicial
determination of the family domicile in case of disagreement of the spouses; to Article 73 which
is about the court‟s determination of the validity of a spouse‟s objection to the exercise of the
other spouse profession or calling; and to Articles 96 and 124 which refer to the petition of the
wife to annul the husband‟s decision in the administration and enjoyment of the community
property in case the latter‟s decision is in conflict with the wife. The appo
intment of one spouse

#%(
as the sole administrator of the common property shall be in a summary proceeding only when
the inability of the other spouse to co-administer the common property is due to his/her
absence, abandonment, refusal to give consent without cause, or the fact that the spouses are
separated in fact. If the reason for the inability of one spouse to co -manage or co-administer the
common property is because said spouse is in a comatose stage, a victim of stroke,
cerebrovascular accident, without motor or mental faculties, the proper remedy is a judicial
guardianship proceeding under Rule 93 of the Rules of Court and not a summary judicial
proceeding under the Family Code (Uy vs. Court of Appeals, G.R. No. 109557, November 29,
2000).

TITLE XII

FINAL PROVISIONS

Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1
of Republic Act No. 386, otherwise known as the Civil Code of
the Philippines, as amended, and Articles 17, 18, 19, 27, 28,
29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No. 603,
otherwise known as the Child and Youth Welfare Code, as
amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof,
inconsistent herewith are hereby repealed.

Art. 255. If any provision of this Code is held invalid,

all the other provisions not affected thereby shall remain
valid.

Art. 256. This Code shall have retroactive effect insofar

as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.

Art. 257. This Code shall take effect one year after the
completion of its publication in a newspaper of general
circulation, as certified by the Executive Secretary, Office of
the President.

Publication shall likewise be made in the Official

Gazette.

NOTES

1. The Family Code expressly repeals the Law on Persons and Family Relations of the
Civil Code of the Philippines. Article 254 thereof repealed the following titles, to wit:

#%)
 Title III - Law on Marriage
Title IV - Legal Separation
Title V - Rights and Obligations between Husband & Wife
Title VI - Property Relations between Husband and Wife
Title VII - The Family
Title VIII - Paternity and Filiation
Title IX - Support
Title XI - Parental Authority
Title XV - Emancipation and Age of Majority

Titles I, II, X, XII, XIII, and XIV of the Civil Code were not repealed by the new Family Code. As
regards Presidential Decree 603, otherwise known as the Child and Youth Welfare Code, only
Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, and 42 thereof are repealed expressly. Article
254 of the Family Code also provides for an implied repeal of all laws, decrees, executive
orders, proclamations, rules and regulations, or parts thereof, inconsistent with the Family Code.

2. The invalidity of any provision of the Family Code does not invalidate the other
provisions of the Code not affected thereby. The lowering of the age of majority from 21 to 18
years old under R.A. 6809 has rendered some provisions of the Family Code ineffective such as
the provision on emancipation by marriage. There is no more “minor emancipated by marriage”
because the marriageable age now is also the same as the age of majority. However, Article 14
which requires a party between the age of 18 and 21 to secure the required parental consent
before contracting marriage is still retained despite the lowering of the age of majority.

3. The Family Code shall have retroactive effect in so far as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws. For example,
an illegitimate child born before the effectivity of the Family Code (August 3, 1988) has four (4)
years from attaining the age of majority to bring an action for recognition as an illegitimate child
if his putative father dies during the child‟s minority (See Article 285 of the Civil Code). Under
the Family Code, an illegitimate child can bring an action for recognition only during the lifetime
of his father unless he possesses the primary proofs of filiation under the first paragraph of
Article 172 thereof. So, an illegitimate child born before the effectivity of the Family Code but,
whose alleged father died after the effectivity thereof, has still a period of four years to bring an
action for recognition after reaching the age of majority. This is so because the law that will
govern him is the Civil Code of the Philippines and not the Family Code. The provision of Article
172 of the Family Code cannot be made to apply to the child as it will prejudice or impair his
vested or acquired rights under the Civil Code Bernabe
( vs. Alejo, G.R. No. 140500, Jan. 21,
2002).

2. A petition for adoption filed by only one spouse pursuant to the provision of P.D. No.
603 which took effect prior to the Family Code is valid. A decree issued pursuant thereto after
the effectivity of the Family Code cannot be nullified simply because the new Family Code
requires that both spouses must file the petition. Although Article 256 of the Family Code
provides for its retroactivity, its application should not prejudice or impair vested or acquired

#%*
rights in accordance with the Civil Code or other laws. When Mrs. Bobiles filed her petition, she
was exercising her explicit and unconditional right under the said law. Her right to file the
petition alone and to have the same proceeds to final adjudication, in accordance with the law in
force at the time, was already vested and cannot be prejudiced or impaired by the enactment of
a new law (Republic vs. Court of Appeals, 205 SCRA 356).

3. The completion of the publication of the Family Code in a newspaper of general

circulation happened on August 4, 1987 when its last publication appeared in the Manila
Chronicle issue that day. The Executive Secretary issued Memorandum Circular No. 85 on
November 7, 1988 declaring that the New Family Code officially took effect on August 3, 1988,

which is one year after its last publication on August 4, 1987.

CIVIL CODE PROVISIONS NOT

AFFECTED BY THE FAMILY CODE

Title X
FUNERALS

Article 305.
arrangements Thefuneral
for the duty of
anda relative
the rightshall
to be
make
in
accordance with the order established for support, under
Article 294. 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.

Article 306. Every funeral shall be in keeping with the

social position of the deceased.

Article 307. 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 funeral shall be
decided upon by the person obliged to make arrangements
for the same, after consulting the other members of the
family.

Article 308. No human remains shall be retained,

interred, disposed of or exhumed without the consent of the
persons mentioned in Articles 294 and 305.

Article 309. Any person who allows disrespect of the

dead, or wrongfully interferes with a funeral shall be liable to
the family of the deceased for damages, material and moral.

Article 310. The construction of a tombstone or

mausoleum shall be deemed a part of the funeral expenses,
and shall be chargeable to the conjugal partnership property,
if the deceased is one of the spouses.

NOTES
1. The funeral arrangement of the deceased shall be decided by those persons
mentioned in Article 199 of the Family Code in the order therein provided. This means that if the
deceased is married, his/her surviving spouse shall be the one to decide. In his/her absence or
incapacity, the descendants in the nearest degree; or the ascendants in the nearest degree; and
in the absence of all persons adverted to above, the brothers and sisters. In case the nearest
relatives are the children of the deceased, or the brothers and sisters, and they could not agree
among themselves how the funeral arrangement be done, the decision of the eldest among his
children or the eldest among his brothers and sisters will prevail. If the nearest surviving relative
of the deceased are his grandparents both of the paternal and maternal side, the decision of the
paternal grandparents is preferred.

2. The wishes of the deceased on how his/her funeral be conducted should be followed

or respected. In the absence thereof, his/her religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of funeral shall be decided upon by the persons
mentioned in Article 199 of the Family Code. However, the funeral must always be in keeping
with the social position or standing of the deceased.

#&!
 3. Reverence to the dead is always a part of our Philippine culture and tradition. The
persons mentioned in Articles 294 and 305 of the Civil Code (now Article 199 of the Family
Code) must always be informed, consulted and their consent obtained, before the remains of
their loved ones be retained, interred, disposed or exhumed. Any person who shows disrespect
to the dead, or wrongfully interferes with the funeral shall be answerable for damages to the
family of the deceased.

4. Expenses for the construction of a tombstone or mausoleum shall be charged to the

conjugal partnership. All other expenses for the funeral of a married person are chargeable also
to the conjugal partnership.

Title XII
CARE AND EDUCATION OF CHILDREN

Article 356. Every child:

(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the
parents or guardian;
(4) Has a right to live in an atmosphere conducive
to his physical, moral and intellectual development;

Article 357. Every child shall:

(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and
persons holding substitute parental authority;
(3) Expert his utmost for his education and
training;
(4) Cooperate with the family in all matters that
make for the good of the same.

Article 358. Every parent and every person holding

substitute parental authority shall see to it that the rights of
the child are respected and his duties complied with, and
shall particularly, by precept and example, imbue the child
with high – mindedness love of country, veneration for the
national heroes, fidelity to democracy as a way of life, and
attachment to the ideal of permanent world peace.

of the Article 359.ofThe

faculties government
every child. promotes
For this the full growth
purpose, the
government will establish, whenever possible:

#&#
 (1) Schools in every barrio, municipality and city
where optional religious instruction shall be taught as part of
the curriculum at the option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.

Article 360. The Council for the Protection of Children

shall look after the welfare of children in the municipality. It
shall, among other functions:
(1) Foster the education of every child in the
municipality;
(2) Encourage the cultivation of the duties of
parents;
(3) Protect and assist abandoned or mistreated
children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of
playgrounds;
(7) Coordinate the activities of organizations
devoted to the welfare of children, and secure their
cooperation.

Article 361. Juvenile courts will be established, as far

as practicable, in every chartered city or large municipality.

Article 362. Whenever a child is found delinquent by

any court, the father, mother or guardian may in proper case
be judicially admonished.

Article 363. In all questions on the care, custody,

education and property of children, the latter’s welfare shall
be paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling
reasons for such measures.

NOTES
1. This title deals with the proper care and education of the minor children. It enumerates
what every child is entitled to under the law and what are their duties and responsibilities to their

parents and ascendants. On the other hand, parents must also see to it that their children‟s
rights are respected and that they are properly guided on matters involving love of country,
veneration for the national heroes and, fidelity to democracy as a way of life.

#&$
 2. The government is mandated by law to provide schools in every barrio, puericulture
centers, and Juvenile Courts, in order to promote the full growth of the faculties of every child. It
must also establish the Council for the Protection of Children who shall be responsible for
looking after the welfare of children in the municipality. The Juvenile Court shall also be
established, as far as practicable, in every chartered city. The said court may judicially
admonish the parents of the child found to be delinquent, if warranted.

Title XIII
USE OF SURNAMES

Article 364. Legitimate and legitimated children shall

principally use the surname of the father.

Article 365. An adopted child shall bear the surname

of the adopter.
NOTES
1. Legitimate children are those children born out of a lawful wedlock. Under Article 174
of the Family Code, legitimate children shall have the right to bear the surname of their father.
Legitimated children are those children conceived and born outside of wedlock of parents who,
at the time of the conception of the former, were not disqualified by any impediment to marry
each other (Art. 177 F.C.). Considering that legitimated children shall also enjoy the same rights
as legitimate children under Article 179 thereof, then, it follows that they may also bear the
surname of their father.

2. Adopted children shall also bear the surname of their adopter. Article 5, Section 17 of
Republic Act 8552, otherwise known as the Domestic Adoption Act of 1998, states that the
adopted child shall be considered the legitimate son/daughter of the adopter for all intents and
purposes and as such is entitled to all the rights and obligations of a legitimate child without
discrimination of any kind. Towards this end, the adoptee is entitled to love, guidance and
support in keeping with the means of the family. Since an adopted child is like a legitimate child,
then, he has also the right to use the surname of his/her adopter.

Article 366. A natural child acknowledged by both

parents shall principally use the surname of the father. If

recognized by only one

employ the surname of recognizing
of the the parents,parent.
a natural child shall

#&%
 Article 367. Natural children by legal fiction shall
principally employ the surname of the father.

Article 368. Illegitimate children referred to in Article

287 shall bear the surname of the mother.

NOTES
1. In the Civil Code of the Philippines, there are various types of illegitimate children and
they are as follows: acknowledged natural children, natural children by legal fiction and,
spurious children which may further classified be into manceres, adulterous, sacrilegious and,
incestuous. In the new Family Code, there are only two classes of children, and they are the
legitimate and the illegitimate children.

2. The Civil Code of the Philippines allows an illegitimate child to use the surname of his
father provided he is acknowledged by the latter. In the new Family Code, however, an
illegitimate child must use the surname of his mother even if he is acknowledged by his father.
This is because of the mandatory provision of Article 176 of the Family Code. The Supreme
Court has ruled that this is the rule regardless of whether or not the father admits paternity
(Mossesgeld vs. Court of Appeals, G.R. No. 111955, December 23, 1998; Republic vs. Abadilla,
G.R. No. 133054, January 28, 1999). However, it is submitted that despite the provision of
Article 176 of the Family Code, an illegitimate child may still use the surna me of his father if his
father and mother are living together with the child and his father duly recognized him as his
own child. This is because of Article 211 of the Family Code which provides that “the father and
the mother shall jointly exercise parental authority over the person of their common child.” The
term “common child” was not qualified, thus, it refers to both legitimate and illegitimate children.

3. The ruling in Mossesgeld and Abadilla cases has already been repealed by the
passage on February 24, 2004 Republic Act No. 9255 otherwise known as an “Act Allowing
Illegitimate Children to Use the Surname of their Father, Amending for the Purpose Article 176
of E.O. No. 209” . The said law which was sponsored by Sen. Ramon Revilla provides that
illegitimate children may now use the surname of their father provided they are recognized by
their father through the record of birth appearing in the civil register, or when an admission in a
public document or in a private handwritten instrument is made by the father (See Appendix
“L”).

Article 369. Children conceived before the decree

annulling a voidable marriage shall principally use the
surname of the father.
NOTES
1. A voidable marriage is valid until annulled. Thus, children conceived and born out of a

voidable marriage before it is annulled are considered to be born of a valid marriage. Therefore,
these children are considered legitimate. Children conceived and born after the annulment are
illegitimate.

#&&
 Article 370. A married woman may use:
(1) Her maiden first name and surname and add
her husband’s surname, or
(2) Her maiden first name and husband’s surname,
or
(3) Her husband’s full name, but prefixing a word
indicating that she is his wife, such as ―Mrs.‖
NOTES
1. A married woman has actually four options as regards the use of surnames. She may
continue to use her maiden name and disregard the use of her husband‟s surname. This is so
because Article 370 of the Civil Code used the word may”
“ which therefore means that the use
of the husband‟s surname is optional and not mandatory. However, if she decides to use her
husband‟s surname she may do it in any of the manner provided for in Article 370. Thus,
President Arroyo may use the following: (1.) Gloria Macapagal-Arroyo; (2.) Gloria M. Arroyo; or
(3.) Mrs. Miguel Arroyo.

Article 371. In case of annulment of marriage, and the

wife is the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she mayresume
her maiden name and surname. However, she may choose to
continue employing her former husband’s surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to
another person.

Article 372. When legal separation has been granted,

the wife shall continue using her name and surname
employed before the legal separation.

Article 373. A widow may use the deceased husband’s

surname as though he were still living, in accordance with
Article 370.
NOTES
1. When the marriage is annulled and the wife is the guilty spouse, it is a must that she
shall resume using her maiden name and surname. This means that she is no longer allowed to
use the surname of her former husband as a punishment for her wrongdoing. However, if she is
the innocent spouse, she has the option to resume the use of her maiden name and surname or
continue the use of her husband‟s surname. The second option, however, cannot be exercised
if: (1.) the court decrees otherwise or, (2.) she or the former husband is married again to
another person.

2. The use of the husband‟s surname after the annulment of the marriage is permissive
and not obligatory. Since the use of the husband‟s surname is optional, the wife may use back
her maiden name and surname after the marriage is annulled without need of judicial

#&'
authorization. The filing of a petition to resume the use of her maiden name is a superfluity and
an unnecessary proceeding (Hatima Yasin vs. Shari’a District Court, Third Shari’a Judicial
District, G.R. No. 94986, February 23, 1993).

3. In legal separation, the marriage is not dissolved. The husband and the wife are
separated only in “bed and board.” Thus, the wife cannot use back her maiden name if she has
already been using the surname of her husband before the separation(Laperal vs. Republic, 6
SCRA 357).

4. If the husband dies during a valid marriage, the wife may continue using the surname
of her deceased husband as if he were still living. However, if only to emphasize that she is
already a widow she must insert the phrase “Vda. de” before the surname of the deceased
husband. For example: Maria Aguanta Vda. de Caballero.

Article 374. In case of identity of names and surnames,

the younger person shall obliged to use such additional name
or surname as will avoid confusion.

Article 375. In case of identity of names and surnames

between ascendants and descendants, the word ―Junior‖ can
be used only by a son. Grandsons and other direct male
descendants shall either:
(1) Add a middle name or the mothers’ surname, or
(2) Add the Roman numerals II, III, and so on.
NOTES
1.If the father would ilke his son to carry his name and surname, the word “Junior” must
be added to the name of the of the son to distinguish him from his father. If the son who is a
Junior would also want his son to use the same name to honour the grandfather, the grandchild
must add to his name a middle name or the mother‟s surname, or add the Roman numerals II,
III, and so on. In case of identity of name and surname of two persons who are not related by
consanguinity, the younger one shall be obliged to use an additional name to avoid confusion.

Article 376. No person can change his name or

surname without judicial authority.
NOTES
1.This Article 376 as well as Article 412 of the Civil Code has already been amended by
Republic Act No. 9048, otherwise known as “An Act Authorizing the City or Municipal Civil
Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or
Change of First Name or Nickname in the Civil Register Without Need of Judicial Order.” This
law was passed by the House of Representatives on February 7, 2001 and by the Senate on

February 8, 2001. It was finally signed into law by Pres. Gloria Macapagal-Arroyo on March 22,
2001. For a complete text of the law, please see Appendix “N”.

#&(
 2. In the Civil Code, no entry in the civil register shall be changed or corrected, without
judicial order (see Article 412, Civil Code). No person can change his name or surname without
judicial authority ( see Article 376, Civil Code). Changing one‟s name or surname is not a matter
of right but a matter of privilege. So, before a person can be allowed to change his/her name
given in his/her certificate of birth as recorded in the Civil Register, he or she must show proper
or reasonable cause or any compelling reason which may justify such changeYu ( Chi Han vs.
Republic, 15 SCRA 454). A change of name or nickname can be effected only through the office
of the local civil registrar reviewable by the office of the Civil Registrar General and finally by the
courts.

3. Under R.A. 9048, clerical or typographical errors in the birth certificate can already be
changed or corrected now without a need of judicial order. A petition for correction of clerical or
typographical errors can now be filed by any interested person in the Office of the Local Civil
Registrar of the place where the record being sought to be corrected is kept. In case the
petitioner has already migrated to another place in the country, he may file the petition in the
local civil registrar of the place where he is presently residing and the said registrar will
communicate with the registrar of the place where the birth certificate of the petitioner is
recorded to facilitate the processing of the petition. In case the petitioner is already residing in a
foreign country, he may file the petition, in person, with the nearest Philippine Consulate. All
petitions for the correction of clerical or typographical errors and/or change of first name or
nicknames may be availed for only once ( R.A. 9048, Sec. 3).

4. No law allows the change of entry in the birth certificate as to sex on the ground of sex
reassignment; Under R.A. 9048, a correction in the civil registry involving the change of sex is
not a mere clerical or typographical error – it is a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court. Also, the said law does not sanction a change of
first name on the ground of sex reassignment Silverio
( vs. Republic, 537 SCRA 373).
5. In the case of Ma. Cristina T. Braza vs. City Civil Registrar of Himamaylan, Negros
Occidental, G.R. No. 181174, Dec. 4, 2009, where the wife filed an action to correct the birth
certificate of the illegitimate child of her husband, by changing the status from legitimated to
illegitimate, and declaring the marriage of his parents therein as null and void, the Court
dismissed the action. It ruled that in a special proceeding for correction of entry under Rule 108,
the trial court has no jurisdiction to nullify marriages and rule on legitimacy and filiation. Validity
of marriages as well legitimacy and filiation can be questioned only in a direct action reasonably
filed by the proper party, and not through collateral attack such as the petition herein.

6. A change of name or nickname can now be effected without judicial authorization. The
petition for change of first name or nickname may be allowed in any of the following cases: (1.)
The petitioners finds the first name or nickname to be ridiculous, tainted with dishonour or
extremely difficult to write or pronounce; (2.) The new first name or nickname has been

habitually and continuously

names or nicknames used by theorpetitioner
in the community; (3.) The and he has
change been confusion
will avoid publicly known
( Sec. 4,byIbid).
the first
It
must be noted, however, that what is allowed by law to be changed without judicial authorization

#&)
is a change of first name or nickname only and not a change of surname. The latter is not
covered by R.A. 9048, thus, a change of surname still requires judicial order.

7. The petition shall be done in affidavit form, subscribed and sworn to before a person
authorized to administer oath. It must be supported by documentary exhibits, and in the case of
change of first name or nickname, the petition shall be published at least once a week for two
(2) consecutive weeks in a newspaper of general circulation. The petition shall be posted in
conspicuous places for ten (10) days. After the completion of the posting and publication
requirement, the Local Civil Registrar must render a decision not later than five (5) days thereof.
A copy of the decision must be furnished to the Office of the Civil Registrar General and the
latter has ten (10) days to affirm or reverse the said decision. If, the Civil Registrar General fail
to reverse the decision of the Local Civil Registrar within the period of 10 days, the said decision
is deemed affirmed. In case of reversal, the petitioner may seek reconsideration of the decision
of the Civil Registrar General or file the appropriate petition in the proper court.

Article 377. Usurpation of a name and surname may be

the subject of an action for damages and other relief.

Article 378. The unauthorized or unlawful use of

another person’s surname gives a right of action to the latter.

Article 379. The employment of pen names or stage

names is permitted, provided it is done in good faith and
there is no injury to third persons. Pen names and stage
names cannot be usurped.

Article 380. Except as provided in the preceding

article, no person shall use different names and surnames.

NOTES
1. An action for damages may be filed against anyone who usurps a name or surname
of another. The usurpation of name implies some injury to the interests of the owner of the
name. It consists in the possibility of confusion xxx between the owner and the usurper. In one
case, the Supreme Court ruled that the second wife cannot prevent the first wife of her husband
from continuing to use thesurname Tolentino which is the surname o f her husband. It said that
there is no usurpation of surname as none of the elements of usurpation exists and that neither
is there a claim by the petitioner that the private respondent impersonated her. In fact, it is
public knowledge that petitioner Constancia Tolentino is the legal wife of Arturo Tolentino so
that all invitations for Senator and Mrs. Arturo Tolentino are sent to Constancia. Respondent
Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino but simply Mrs.

Consuelo David-Tolentino. She has legitimate children with Arturo Tolentino who have every
right to use the surname Tolentino and the records do not show that she has remarried, thus,
she also has all the right to continue using the family name of her former husband as there exist

#&*
no actual legal injury to the petitioner to warrant the grant of injunctive relief prayed for in the
petition (Tolentino vs. Court of Appeals, 162 SCRA 66).

2. A person may use a pen name or stage name provided it is done in good faith and
there is no injury to third person. Once used, it cannot be usurped by other persons, otherwise,
the usurper may be enjoined and held liable for damages. A person cannot use a different name
and surname than that stated in his birth certificate except the use of pen name or stage name
mentioned in Article 379 hereof.

3. The use of a fictitious name or a different name belonging to another person in a

single instance without any sign or indication that the user intends to be known by this name in
addition to his real name from that day forth does not fall within the prohibition contained in C.A.
No. 142, as amended by R.A. 6085. Thus, when a client used the name of his lawyer‟s
messenger, with the latter‟s consent, in signing the registry book at the office of the
Ombudsman in Davao City, he could not be guilty of violating the anti-alias law as defined in
C.A. 142, as amended, because the use of such name was made by him in an isolated
transaction only where he was not legally required to expose his real identity. For, even if he
had identified himself properly at the Office of the Ombudsman, petitioner would still be able to
get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not
refuse him because the complaint was part of public records, hence, open to inspection and
examination by anyone under the proper circumstances Cesario
( Ursua vs. C.A. et al., G.R. No.
112170, April 10, 1996, 70 SCAD 123).

Title XIV
ABSENCE

CHAPTER 1
PROVISIONAL MEASURES IN CASE OF ABSENCE

Article 381. When a person disappears from his

domicile, his whereabouts being unknown, and without
leaving an agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend, may
appoint a person to represent him in all that may be
necessary.

This same rule shall be observed when under similar

circumstances the power conferred by the absentee has

expired. (181a) 382. The appointment referred to in the

Article
preceding article having been made, the judge shall take the
necessary measures to safeguard the rights and interests of

#'+
 the absentee and shall specify the powers, obligations and
remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning
guardians. (182)

Article 383. In the appointment of a representatives,

the spouse present shall be preferred when there is no legal
separation.
If the absentee left no spouse, or if the spouse present
is a minor, any competent person may be appointed by the
court. (183a)

NOTES

1.Absence is that special legal status of one who is not in his domicile, his whereabouts
being unknown and it is uncertain whether he is dead or alive. Where the disappearance of the
absentee is under normal circumstances, and without apparent danger, there is ordinary
absence; but, where the disappearance was under extraordinary circumstances, or with
apparent danger, it is called qualified absence. There are stages of absence, to wit: (1.)
Temporary or provisional absence; (2.) Normal or declared absence; and (3.) Definite absence
or presumptive death. The first stage (Temporary absence) occurs as soon as a person
disappears from his domicile and his whereabouts are unknown, leaving no administrator of his
property. The second stage is one judicially declared after two years since the last news was
heard from him, or five years if he left an administrator. The third stage known as definite
absence or presumptive death takes place when, after the period provided by law, a person is
presumed dead.

2. In case of disappearance of a person, his whereabouts being unknown, and leaving

no agent to administer his properties, any interested party may petition the court for the
appointment of a person to represent him in all that may be necessary. The procedure that
should be followed by the court in the appointment of a representative of an absentee is
governed by Rule 107 of the Rules of Court. In the appointment of a representative, the spouse
present shall be preferred except when they are legally separated. In the absence of a spouse,
or when the spouse is incapacitated, any competent person may be appointed by the court.
Once the appointment is made, the court shall take the necessary measures to safeguard the
rights and interests of the absentee. The guardian appointed cannot sell or encumber the
property of the absentee without the approval of the court, otherwise, the sale is rescissible ( Art.
1368 of the Civil Code).

Chapter 2
Declaration of Absence

#'!
 Article 384. Two years having elapsed without any
news about the absentee or since the receipt of the last news,
and five years in case the absentee has left a person in
charge of the administration of his property, his absence may
be declared.

Article 385. The following may ask for the declaration

of absence:
(1.) The spouse present;
(2.) The heirs instituted in a will, who may present an
authentic copy of the same;
(3.) The relatives who may succeed by the law of
intestacy;
(4.) Those who may have over the property of the
absentee some right subordinated to the condition of his
death.

Article 386. The judicial declaration of absence shall

not take effect until six months after its publication in a
newspaper of general circulation.

NOTES
1. Declaration of absence of a person may be done by the court after the lapse of two
years without any news about the absentee or since the receipt of the last news about him. In
case the absentee left an administrator of his property, the declaration of absence may be done
only after the lapse of five years. It must be noted that the law made a distinction between an
absentee who left no administrator of his property from one who left an administrator of his
property. In the former, the lapse of two years is sufficient after which the court may already
declare his absence. In the latter, the period of five years is required to lapse before the court
can declare his absence. The reason is because if a person left an administrator of his property,
there is an assurance that his properties are taken cared of. In case no administrator is left,
there is great danger that his properties might be wasted, thus, there is an urgent need to
declare his absence and appoint an administrator of his properties to save it from waste or
deterioration.

2. Only those persons mentioned in Article 385 may ask for the declaration of absence.
The judicial declaration of absence will not take effect immediately. It must be published first in a
newspaper of general circulation and it is only after the lapse of six months from publication that
the decision of the court declaring absence will take effect. However, the absence of the
absentee shall be counted not from the effectivity of the judicial decree but from the date on

which the last news of the absentee was received(Jones vs. Hortiguela, 64 Phil. 179).
3. Once the death of the absentee is established, the administration of his property by
the duly appointed representative shall cease because his estate will then be settled in

#'#
accordance with law. The moment there is death, there is transmission of rights, properties, and
obligations to the heirs of the decedent (Article 777 of the Civil Code ). The opening of the estate
of the deceased will then commence and the representation of the absentee will be terminated.

Chapter 3
Administration of the Property
Of the Absentee

Article 387. An administrator of the absentee’s

property shall be appointed in accordance with Article 383.

Article 388. The wife who is appointed as

administratrix of the husband’s property cannot alienate or
encumber the husband’s property, or that of the conjugal
partnership, without judicial authority.

Article 389. The administration shall cease in any of

the following cases:
(1.) When the absentee appears personally or by
means of an agent;
(2.) When the death of the absentee is proved and his
testate or intestate heirs appear;
(3.) When a third person appears, showing by a proper
document that he has acquired the absentee’s property by
purchase or other title.
In these cases, the administrator shall cease in the
performance of his office, and the property shall be at the
disposal of those who may have a right thereto.

NOTES
1. The appointment of an administrator of the absentee‟s property shall be done in
accordance with Article 383. The wife or any person appointed as administrator of the property
of the absentee cannot alienate or encumber it without judicial authorization. The administration
shall cease in any of the circumstances enumerated in Article 387 of the Civil Code.

Chapter 4

Presumption of Death
Article 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be

#'$
 presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence of ten
years. If he disappeared after the age seventy-five years, an
absence of five years shall be sufficient in order that his
succession may be opened.

Article 391. The following shall be presumed dead for

all purposes, including the division of the estate among the
heirs:
(1.) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
(2.) A person in the armed forces who has taken part in
war, and has been missing for four years;
(3.) A person who has been in danger of death under
other circumstances and his existence has not been known
for four years.

Article 392. If the absentee appears, or without

appearing his existence is proved, he shall recover his
property in the condition in which it may be found, and the
price of any property that may have been alienated or the
property acquired therewith; but he cannot claim either fruits
or rents.

NOTES
1.When a person disappears, his whereabouts being unknown, and there is no showing
whether or not he is still alive, the law presumes that he is already dead after the lapse of seven
(7) years. If his disappearance is under great danger of death as enumerated in Article 391, he
will be presumed dead after a lapse of four (4) years from the time disappears. The presumption
of death after the lapse of seven years or four years as the case maybe is created by law, thus,
there is no need any more for a judicial pronouncement to that effect. However, for purposes o f
opening up the estate of the absentee for succession, the absence of ten (10) years is required.
The law provides that the absent spouse shall be presumed dead for “all purposes” except
succession. Thus, it is only after an absence of ten (10) years that his succession will be
opened. In that case, his heirs can now commence an intestate proceeding, for purposes of
dividing or distributing his estate, for by then, the right of inheritance shall have already become

choate. If the absentee is already more than seventy five years (75) of age, an absence of five
years shall be sufficient in order that his succession may be opened.

#'%
 2. For purposes other than marriage, judicial declaration of presumptive death is no
longer necessary. This is so because the already presumes the death of the absentee after the
lapse of a certain period. The presumption is merelyprima facie or disputable and could be
rebutted by evidence that the absentee is still alive. It is therefore clear that the judicial
declaration of presumptive death, because a person has been missing for seven years, being a
presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality. If a
judicial decree declaring a person presumptively dead because he had not been heard of in
seven years cannot become final and executory, even after the lapse of the reglementary period
to appeal, then a petition for such declaration is useless, unnecessary, superfluous and of no
benefit to the petitioner. The Court should not waste its valuable time and be made to perform a
superfluous and meaningless act (In re Szatraw, 81 Phil. 461).

3. Under Article 41 of the Family Code, judicial declaration of presumptive death is

absolutely necessary for purposes of remarriage. Four years of absence is enough for an
absentee to be judicially presumed dead. However, if the disappearance is under dangerous
circumstances as specified in Article 391 of the Civil Code, the period is shortened to two years.
For other purposes, there is no need of a judicial declaration but the required period for one to
be presumed dead is seven years or four years except for the opening of succession which is
ten years.

4. The extra ordinary circumstances where there is greater danger of death and where
the period is shortened to four years (now two years) under Article 391 of the Civil Code applies
only if the vessel or the aeroplane is lost during voyage. The said Article cannot apply to a
person who accidentally fell into the sea while on board a vessel and consequently drowned.
This is so vessel was not lost during sea voyage Caltex
( vs. Villanueva, 2 SCRA 897). The
presumption of death of persons aboard a vessel lost during a sea voyage, applies only to
cases wherein the vessel cannot be located nor accounted for, or when its fate is unknown or
there is no trace of its whereabouts, inasmuch as the word “lost” used in said Article must be
given the same meaning as “missing”. Also, if the airplane crashed and the body of a
passenger is not found, Article 391 will not apply as the airplane is not missing.

Chapter 5
Effect of Absence Upon the Contingent
Rights of the Absentee

Article 393. 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.

NOTES

#'&
 1. For the heirs of an absentee to inherit from a testator who bequeathed a property in
favor of the absentee, it is necessary for them to prove that the absentee is still alive at the time
of the testator‟s death. This is so because no transmission of right will pass on from the testator
to the absentee if the latter predecease the testator. Consequently, the heirs of the absentee will
get nothing as no right is transmitted to their predecessor.

Article 394. Without prejudice to the provisions of the

preceding article, upon the opening of a succession to which
an absentee is called, his share shall accrue to his co-heirs,
unless he has heirs, assigns, or a representative. They shall
all, as the case maybe, make an inventory of the property.

Article 395. The provisions of the preceding article are

understood to be without prejudice to the action or petition
for inheritance or other rights which are vested in the
absentee, his representatives or successors in interest. This
right shall not be extinguished save by lapse of time fixed for
prescription. In the record that is made in the Registry of the
real estate which accrues to the co-heirs, the circumstance of
its being subject to the provisions of this article shall be
stated.

NOTES
1. When the parents of an absentee dies, his share in the estate of his parents will
accrue in favor of his co-heirs (ie. brothers and sisters). This is known in law as accretion.
However, if the absentee has his own heirs, assigns, or representative, his share will go to
them.

2.In case the property supposed to be inherited by the absentee accrues to the co-heirs
because he has no known heirs at the time of the death of their parents, the title of the property
passed on to them must contain an annotation stating that, within the prescriptive period
provided for by law, the property can be subject to the claim of any person having an interest in
the said property especially the absentee, or his or her representative or successors. Thus, if
the said absentee reappears, or if turns out hat
t the absentee has an heir, the property may be
recovered by them from the co-heirs. However, the action or petition to recover the property
must be filed within the prescriptive period of ten years. But, if the co-heirs have already sold the
property to a buyer in good faith and for value, the heirs of the absentee could no longer recover
it from the buyer because of the protection afforded by the Torrens System to a buyer in good
faith.

Article
inheritance 396.
shall Those who
appropriate themay
fruitshave entered
received upon
in good the
faith
so long as the absentee does not appear, or while his

#''
 representatives or successors do not bring the proper
actions.

NOTES
1.The co-heirs, or their successors, who have entered upon the inheritance , shall have
the right to use, enjoy, and appropriate the fruits received in good faith from the supposed
share of the absentee so long as the absentee does not appear, or while his representatives or
successors in interest do not bring the proper action. Once the absentee appears or his or her
representative or successor filed a claim in court, those who entered upon the inheritance could
not anymore make such appropriation.

Title XVI
CIVIL REGISTRY

Article 407. Acts, events and judicial decrees

concerning the civil status of persons shall be recorded in
the civil register.

Article 408. The following shall be entered in the civil

register:

(1.) Births; (2.) marriages; (3.) deaths; (4.) legal

separations; (5.) annulment of marriages; (6.)
judgment declaring marriages void from the
beginning; (7.) legitimations; (8.) adoptions; (9.)
acknowledgments of natural children; (10.)
naturalization; (11.) loss; or (12.) recovery of
citizenship; (13.) civil interdiction; (14.) judicial
determination of filiation; (15.) voluntary
emancipation of a minor; and (16.) changes of
name.

Article 409. In cases of legal separation, adoption,

naturalization and other judicial orders mentioned in the
preceding article, it shall be the duty of the clerk of court
which issued the decree to ascertain whether the same has
been registered, and if this has not been done, to send a copy

of the said where

municipality decree
theto theiscivil
court registry of the city or
functioning.

#'(
 Article 410. The books making up the civil register and
all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.

NOTES
1. The Office of the Local Civil Registrar in every city or municipality shall be the
custodian of all records pertaining to the civil status of a person. Among the records that must
be kept on file in the office of the local civil registrar are the records of: birth, marriage, death,
legal separation, annulment of marriage, declaration of nullity of a void marriage, legitimation,
adoption, acknowledgment of natural children, naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation, voluntary emancipation of a minor, and change of
name.

2. The books making up the civil register and all documents relating thereto are
considered public documents. As such, they are open to the public during office hours and must
be kept in a suitable safe. However, birth records, including birth certificates, are strictly
confidential and the contents therein cannot be revealed except when obtained by those
persons interested therein, such as the person himself or anyone authorized by him or her; his
parents, spouse, direct descendants or guardian; court or proper public official whenever
absolutely necessary in administrative, judicial or other official proceedings to determine the
identity of a person; or in case of death, the nearest of kin P.D.
( 603, Article 7). No document
entrusted to the Local Civil Registrar for his care shall be removed from his office, except by
order of a court, in which case proper receipt must be taken. He may issue certified true copies
of any document in his custody, upon payment of the proper fees required by law.

3. In legal separation, adoption, naturalization and other judicial orders registrable with
the office of the local civil registrar, it is the duty of the clerk of court which issued the decree to
ascertain whether the same has been registered, and if this has not been done, to immediately
send a copy of the decree to the civil registry for registration.
4. The records in the civil registry are considered prima facie evidence of the facts
therein contained. It means that they are sufficient proofs, unless rebutted by contrary evidence,
as to the facts it seeks to substantiate. It is not conclusive proof, however, that is why the law
allows the correction or cancellation of entries in the records of the civil registrar.

5. Anyone affected by the existence of a birth certificate may ask for its cancellation.
Thus, in Babiera vs. Catotal, the Supreme Court said that a legitimate child is a proper party in
the proceeding for the cancelation of the birth certificate of a child who claims to be the child of
her parents. Petitioner Presentacion Catotal, who claims to be the only surviving child of the
Spouses Eugenio and Hermogena Babiera, filed the action to cancel the birth certificate of the

child of their housemaid as it was made to appear therein that the said child named Teofista
Babiera is the child of the spouses Eugenio and Hermogena Babiera. Petitioner contends that
the birth certificate of the child was forged as her parents did not give birth to the said child. Th e
Supreme Court rejected the contention of the housemaid‟s child that the birth certificate must be

#')
considered authentic considering that it enjoys the presumption of regularity in its issuance. The
Court said that while it is true that an official document such as a birth certificate enjoys the
presumption of regularity, the specific facts attendant to the case at bar, as well as the totality of
evidence presented during trial, sufficiently negate such presumption. First, there were already
irregularities in the birth certificate itself. It was not signed by the local civil registrar and the
signature of the alleged mother was clearly forged. Second, there is no proof of the pregnancy
of Hermogena, the alleged mother of the child, who at the time of birth of the child was already
54 years old. Lastly, the deposition of Hermogena herself before she died where she
categorically denied being the mother of the child Teofista. Relying merely on the assumption of
validity of the Birth Certificate, petitioner has presented no other evidence other than the said
document to show that she really is the child of Hermogena, thus, her claim is deniedBabiera
(
vs. Catotal, G.R. No. 138493, June 15, 2000).

Article 411. 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.

Article 412. No entry in a civil register shall be

changed or corrected, without judicial order.

Article 413. All other matters pertaining to the

registration of civil status shall be governed by special laws.

NOTES
1. As a general rule, no entry in a civil register shall be changed or corrected, without
judicial order. This rule found in Article 412, however, has already been amended by Republic
Act No. 9048. Under the said Act, correction of clerical or typographical errors and change of
first name or nickname in the birth certificate can now be done by the local civil registrar
concerned or by the consul general, without need of judicial order. Clerical or typographical
error refers to a mistake committed in the performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious
to the understanding, and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must involve the change of nationality,
age, status or sex of the petitioner (Sec. 2, par. 3 of R.A. 9048).

2. Correction of entries in the birth certificate can now be done either administratively or

judicially. Administrative correction can be done by the local civil registrar only on clerical or
typographical errors and change of first name or nickname. When the error is already
substantial, the correction must be done judicially. The proceeding must be judicial and
adversarial if the changes involve substantial or controversial matters such as those which

#'*
involve a person‟s civil status, nationality or citizenship, and filiation of the offsprings of parents.
These substantial and controversial matters should be threshed out in an appropriate court
proceeding where the State and the parties are notified and represented to the end that the
case may be decided with due process of law and on the basis of the facts proven(Chug Siu
vs. Local Civil Registrar, 20 SCRA 877).

3. The procedural rules for the cancellation or correction of entries in the civil registry is
found in Rule 108 of the Rules of Court. It has been said before that Rule 108 deals with
summary judicial proceedings referred to in Article 412 of the Civil Code in connection with the
changes of clerical or innocuous errors. The former doctrine laid down by the Supreme Court in
the case of Ty Kong Tin vs. Republic, 94 Phil. 321 , provides that only “clerical” or “harmless”
errors can be corrected by petition under Article 412 of the Civil Code. This was the rule despite
the promulgation in 1964 of Rule 108 of the Rules of Court, which prescribes publication of
notice of hearing and the impleading of the local civil registrar and all interested parties. Under
the said Ty Kong Tin doctrine, entries affecting civil status and citizenship could not be
corrected by petition under Article 412 and Rule 108. However, the Ty Kong Tin doctrine was
later on abandoned by the case of Republic vs. Valencia in 1986.

4. In the Valencia case, the Supreme Court affirmed the trial court‟s decision granting
petitioner‟s prayer that her civil status and citizenship as appearing in two of her children‟s birth
certificates, as well as the civil status and citizenship of her children, be corrected. The Court
said, “It is undoubtedly true that if the subject matter of a petition is not for the correction of
clerical errors of a harmless and innocuous nature, but one involving nationality and citizenship,
which is undisputably substantial and controversial, affirmative relief cannot be granted in a
proceeding summary in nature.” However, it is also true that a right in law may be enforced and
a wrong may be remedied as long as the appropriate remedy is used. That remedy refers to a
proceeding that is adversarial in nature. It was held that if the procedural requirements under
Rule 108 have been followed, the proceedings can no longer be described as summary.
Corrections involving the nationality or citizenship of a person were substantial and could not be
affected except in adversarial proceedings. This Court adheres to the principle that even
substantial errors in a civil registry may be corrected and the true facts established provided the
parties aggrieved by the error avail themselves of the „appropriate proceedings.‟ Thus, in said
case the Court requires that a petition for a substantial correction or change of entries in the civil
registry should have as respondents the civil registrar, as well as all other persons who have or
claim to have any interest that would be affected thereby. It further mandates that a full hearing,
not merely summary proceeding, be conducted. Thus, although the entries sought to be
corrected in the Valencia case (ie: from Chinese to Filipino and from Legitimate to Illegitimate)
are substantial, the Supreme allowed the case to be filed under Article 142 of the Civil Code
which normally deals only with clerical or innocuous errors correctible by a summary
proceedings in court because the requirements in Rule 108 of the Rules of Court are fulfilled.

(Republic vs. Leonor Valencia, G.R. No. L-32181, March 5, 1986, 141 SCRA 462).
5. A petition filed by the mother seeking to change an entry in her child Victoria Miclat‟s
birth certificate, alleging that she had never been married to her daughter‟s father, and that she

#(+
wanted to have her civil status appearing on the certificate changed from “married” to “single”,
cannot be granted because the proper parties had not been impleaded. In the said case, only
the Office of the Solicitor General through the Office of the Provincial Fiscal was notified. Since
the change is substantial and the proceeding will be adversarial, all other indispensable parties
should have been made respondents. They include not only the declared father of the child but
the child as well, together with the paternal grandparents, if any, as their hereditary rights would
be adversely affected thereby. All other persons who may be affected by the change should be
notified or represented. The truth is best ascertained under an adversary system of justice
(Labayo-Rowe vs. Republic, 168 SCRA 294).

6. A petition to cancel the middle name “Carulasan” in the birth certificate of petitioner‟s
child named Julian Lin Carulasan Wang is not tenable. The contention that it would be for the
best interest of the child to drop his middle name as this would help him adjust more easily to
and integrate himself into Singaporean society is not a valid reason to change his record of
birth. The State has an interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right, so that before a person
can be authorized to change his name given him either in his certificate of birth or civil registry,
he must show proper or reasonable cause, or any compelling reason which may justify such
change. Otherwise, the request should be denied(In Re Petition for Change of Name Julian
Wang vs. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005).

#(!
 APPENDICES

APPENDICES

A - The Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of

Voidable Marriages (A.M. No. 02-11-10-SC)

B - The Rule on Legal Separation (A.M. No. 02-11-11-SC)

C - Rule on Provisional Orders (A.M. No. 02-11-12-SC)

D - Rule on Guardianship of Minors (A.M. No. 03-02-05-SC)

E - Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors
(A.M. No. 03-04-04-SC)

#(#
F - An Act Establishing Family Courts, Granting them Exclusive Original Jurisdiction Over
Child and Family Cases, Amending Batas Pambansa 129, as Amended, otherwise
known as Act of 1980, Appropriating Funds Therefor and for Other Purposes. (R.A. 8369)

G - An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino
Children and for Other Purposes. (R.A. 8552)

H - An Act Requiring Certification of the Department of Social Welfare and Development

(DSWD) to Declare a “Child Legally Available for Adoption” as a Prerequisite for
Adoption Proceedings, Amending for this Purpose Certain Provisions of R.A. 8552, R.A.
8043, P.D. 603, and for Other Purposes. (R.A. 9523)

I - An Act Establishing the Rules to Govern Inter - Country Adoption of Filipino Children
and for Other Purposes. (R.A. 8043)

J - Rule on Adoption (A.M. No. 02-06-02-SC)

K - An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse,
Exploitation and Discrimination, Providing Penalties for its Violation, and for Other
Purposes. (R.A. 7610)

L - An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for
the Purpose Article 176 of Executive Order No. 209, otherwise known as the Family
Code of the Philippines. (R.A. 9255)

#($
M - An Act Providing for the Legitimation of Children Born to Parents Below the Marrying
Age, Amending for the Purpose the Family Code of the Philippines, As Amended.
(R.A. 9858)

N - An Act Authorizing the City or Municipal Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error inan Entry and/or Change in the First Name or
Nickname in the Civil Register Without Need of a Judicial Order, Amending for this
Purpose Articles 376 and 412 of the Civil Code of the Philippines. (R.A. 9048)

APPENDIX ―A‖

RULE ON
DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES
AND
ANNULMENT OF VOIDABLE MARRIAGES
(A.M. 02-11-10-SC)

Section 1. Scope.– This Rule shall govern petitions for declaration of absolute nullity of void
marriages and annulment of voidable marriages under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition for declaration of absolute nullity of void marriages.
–
(a) Who may file.–A petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or the wife. (n)
(b) Where to file.–The petition shall be filed in the Family Court.
(c) Imprescriptibility of action or defense.–An action or defense for the declaration of
absolute nullity of void marriage shall not prescribe.
(d) What to allege.–A petition under Article 36 of the Family Code shall specifically allege
the complete facts showing that either or both parties were psychologically incapacitated from
complying with the essential marital obligations of marriage at the time of the celebration of
marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of
psychological incapacity at the time of the celebration of the marriage but expert opinion need
not be alleged.
Sec. 3. Petition for annulment of voidable marriages.–

#(%
 (a) Who may file.–The following persons may file a petition for annulment of voidable
marriage based on any of the grounds under Article 45 of the Family Code and within the period
herein indicated:
(1) The contracting party whose parent, or guardian, or person exercising substitute
parental authority did not give his or her consent, within five years after attaining the
age of twenty-one unless, after attaining the age of twenty-one, such party freely
cohabitated with the other as husband or wife; or the parent, guardian or person
having legal charge of the contracting party, at any time before such party has
reached the age of twenty-one;
(2) The sane spouse who had no knowledge of the other‟s insanity; or by any relative,
guardian, or person having legal charge of the insane, at any time before the death
of either party; or by the insane spouse during a lucid interval or after regaining
sanity, provided that the petitioner, after coming to reason, has not freely cohabited
with the other as husband or wife;
(3) The injured party whose consent was obtained by fraud, withinfive years after the
discovery of the fraud, provided that said party, with full knowledge of the facts
constituting the fraud, has not freely cohabited with the other as husband or wife;
(4) The injured party whose consent was obtained by force, intimidation, or undue
influence, within five years from the time the force, intimidation, or undue influence
disappeared or ceased, provided that the force, intimidation, or undue influence
having disappeared or ceased, said party has not thereafter freely cohabited with
the other as husband or wife;
(5) The injured party where the other spouse is physically incapable of consummating
the marriage with the other and such incapacity continues and appears to be
incurable, within five years after the celebration of marriage; and

(6) disease
The injured
foundparty
to bewhere theand
serious other party was
appears to beafflicted withwithin
incurable, a sexually-transmissible
five years after the
celebration of marriage.
(b) Where to file.–The petition shall be filed in the Family Court.
Sec. 4. Venue.–The petition shall be filed in the Family Court of the province or city where
the petitioner or the respondent has been residing for at least six months prior to the date of
filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at
the election of the petitioner.
Sec. 5. Contents and form of petition.–(1) The petition shall allege the complete facts
constituting the cause of action.
(2) It shall state the names and ages of the common children of the parties andspecify the
regime governing their property relations, as well as the properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner
may apply for a provisional order for spousal support, custody and support of common children,
visitation rights, administration of community or conjugal property, and other matters similarly
requiring urgent action.
(3) It must be verified and accompanied by a certification against forum shopping. The
verification and certification must be signed personally by the petitioner. No petition may be
filed solely by counsel or through an attorney-in-fact.

#(&
 If the petitioner is in a foreign country, the verification and certification against forum
shopping shall be authenticated by the duly authorized officer of the Philippine embassy or
legation, consul general, consul or vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall serve acopy of the petition on the
Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five
days from the date of its filing and submit to the court proof of such service within the same
period.
Failure to comply with any of the preceding requirements may be a ground for immediate
dismissal of the petition.
Sec. 6. Summons.–The service of summons shall be governed by Rule 14 of the Rules of
Court and by the following rules:
(1) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of
court, be effected upon him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such places as the court may order. In
addition, a copy of the summons shall be served on the respondent at his last known address
by registered mail or any other means the court may deem sufficient.
(2) The summons to be published shall be contained in an orderof the court with the
following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal
grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to
answer within thirty days from the last issue of publication.
Sec. 7. Motion to dismiss.–No motion to dismiss the petition shall be allowed except on
the ground of lack of jurisdiction over the subject matter or over the parties; provided, however,
that any other ground that might warrant a dismissal of the case may be raised as an affirmative
defense in an answer.

Sec. 8. Answer.–(1) The respondent shall file his answer within fifteen days from service
of summons, or within thirty days from the last issue of publication in case of service of
summons by publication. The answer must be verified by the respondent himself and not by
counsel or attorney-in-fact.
(2) If the respondent fails to file an answer, the court shall not declare him or her in default.
(3) Where no answer is filed or if the answer does not tender an issue, the court shall order
the public prosecutor to investigate whether collusion exists between the parties.
Sec. 9. Investigation report of public prosecutor.–(1) Within one month after receipt of the
court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a
report to the court stating whether the parties are in collusion and serve copies thereof on the
parties and their respective counsels, if any.
(2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his
report. The parties shall file their respective comments on the finding of collusion within ten days
from receipt of a copy of the report. The court shall set the report for hearing and if convinced
that the parties are in collusion, it shall dismiss the petition.
(3) If the public prosecutor reports that no collusion exists, the ourt
c shall set the case for
pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

#('
 Sec. 10. Social worker.–The court may require a social worker to conduct a case study and
submit the corresponding report at least three days before the pre-trial. The court may also
require a case study at any stage of the case whenever necessary.
Sec. 11. Pre-trial.–
(1) Pre-trial mandatory.–A pre-trial is mandatory. On motion or motu proprio, the court shall
set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of
the public prosecutor that no collusion exists between the parties.
(2) Notice of pre-trial.–(a) The notice of pre-trial shall contain:
(1) the date of pre-trial conference; and
(2) an order directing the parties to file and serve their respective pre-trial briefs in
such manner as shall ensure the receipt thereof by the adverse party at least three
days before the date of pre-trial.
(b) The notice shall be served separately on the parties and their respective counsels as
well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.
(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In
case of summons by publication and the respondent failed to file his answer, notice of pre-trial
shall be sent to respondent at his last known address.
Sec. 12. Contents of pre-trial brief.–The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into agreements as may be
allowed by law, indicating the desired terms thereof;
(b) A concise statement of their respective claims together with he
t applicable laws
and authorities;
(c) Admitted facts and proposed stipulations offacts, as well as the disputed factual
and legal issues;
(d) All the evidence to be presented, including expert opinion, ifany, briefly stating or
describing the nature and purpose thereof;
(e) The number and names of the witnesses and their respective affidavits; and
(f) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial under the succeeding paragraphs.
Sec. 13. Effect of failure to appear at the pre-trial .–(a) If the petitioner fails to appear
personally, the case shall be dismissed unless his counsel or a duly authorized representative
appears in court and proves a valid excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear, the court shall proceed with
the pre-trial and require the public prosecutor to investigate the non-appearance of the
respondent and submit within fifteen days thereafter a report to the court stating whether his
non-appearance is due to any collusion between the parties. If there is no collusion, the court
shall require the public prosecutor to intervene for the State during the trial on the merits to
prevent suppression or fabrication of evidence.
Sec. 14. Pre-trial conference.–At the pre-trial conference, the court:

#((
 (a) May refer the issues to a mediator who shall assist the parties in reaching an
agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral which, for good reasons,
the court may extend for a period not exceeding one month.
(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-
trial conference, on which occasion it shall consider the advisability of receiving expert
testimony and such other matters as may aid in the prompt disposition of the petition.
Sec. 15. Pre-trial order.–(a) The proceedings in the pre-trial shall be recorded. Upon
termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments allowed on the
pleadings, and, except as to the ground of declaration of nullity or annulment, the agreements or
admissions made by the parties on any of the matters considered, including any provisional
order that may be necessary or agreed upon by the parties.
(b) Should the action proceed to trial, the order shallcontain a recital of the following:
(1) Facts undisputed, admitted, and those which need not be proved subject to
Section 16 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be
presented;
(4) Names of witnesses who will be presented and their testimonies in the form of
affidavits; and
(5) Schedule of the presentation of evidence.
(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for
the State and take steps to prevent collusion between the parties at any stage of the
proceedings and fabrication or suppression of evidence during the trial on the merits.
(d) The parties shall not be allowed to raise issues or present witnesses andevidence
other than those stated in the pre-trial order. The order shall control thetrial of the case, unless
modified by the court to prevent manifest injustice.
(e) The parties shall have five days from receipt of the pre-trial order to propose corrections
or modifications.
Sec. 16. Prohibited compromise.–The court shall not allow compromise on prohibited
matters, such as the following:
(a) The civil status of persons;
(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;
(d) Future support;

(e) The jurisdiction of courts; and

(f) Future legitime.

#()
 Sec. 17. Trial.–(1) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(2) The grounds for declaration of absolute nullity or annulment of marriage must be
proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be
allowed.
(3) The court may order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case. Such an order may be made if the
court determines on the record that requiring a party to testify in open court would not enhance
the ascertainment of truth; would cause to the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate the right of a party to
privacy; or would be offensive to decency or public morals.
(4) No copy shall be taken nor any examination or perusal of therecords of the case or
parts thereof be made by any person other than a party or counsel of a party, except by order of
the court.
Sec. 18. Memoranda.–The court may require the parties and the public prosecutor, in
consultation with the Office of the Solicitor General, to file their respective memoranda in
support of their claims within fifteen days from the date the trial is terminated. It may require the
Office of the Solicitor General to file its own memorandum if the case is of significant interest to
the State. No other pleadings or papers may be submitted without leave of court. After the lapse
of the period herein provided, the case will be considered submitted for decision, with or without
the memoranda.
Sec. 19. Decision.–(1) If the court renders a decision granting the petition, it shall declare
therein that the decree of absolute nullity or decree of annulment shall be issued by the court
only after compliance with Articles 50 and 51 of the Family Code as implemented under the
Rule on Liquidation, Partition and Distribution of Properties.
(2) The parties, including the Solicitor General and the public prosecutor, shall be served
with copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall be published
once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the
parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal
is filed by any of the parties, the public prosecutor, or the Solicitor General.
(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree
if the parties have no properties.
If the parties have properties, the court shall observe the procedure prescribed in Section
21 of this Rule.
The entry of judgment shall be registered in the Civil Registry where the marriage was
recorded and in the Civil Registry where the Family Court granting the petition for declaration of
absolute nullity or annulment of marriage is located.

Sec. 20. Appeal.–

(1) Pre-condition.–No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

#(*
 (2) Notice of appeal.–An aggrieved party or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the
adverse parties.
Sec. 21. Liquidation, partition and distribution, custody, support of common children
and delivery of their presumptive legitimes .–Upon entry of the judgment granting the
petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court
granting the petition, the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses, including custody, support
of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of
the Family Code unless such matters had been adjudicated in previous judicial proceedings.
Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of
Marriage.–(a) The court shall issue the Decree after:
(1) Registration of the entry of judgment granting the petition for declaration of nullity
or annulment of marriage in the Civil Registry where the marriage was celebrated
and in the Civil Registry of the place where the Family Court is located;
(2) Registration of the approved partition and distribution of he
t properties of the
spouses, in the proper Register of Deeds where the real properties are located; and
(3) The delivery of the children‟s presumptive legitimes in cash, property, or sound
securities.
(b) The court shall quote in h
t e Decree the dispositive portion of the judgment enteredand
attach to the Decree the approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall
order the Local Civil Registrar to issue an amended birth certificate indicating the new civil
status of the children affected.
Sec. 23. Registration and publication of the decree; decree as best evidence.–(a) The
prevailing party shall cause the registration of the Decree in the Civil Registry where the
marriage was registered, the Civil Registry of the place where the Family Court is situated, and
in the National Census and Statistics Office. He shall report to the court compliance with this
requirement within thirty days from receipt of the copy of the Decree.
(b) In case service of summons was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general circulation.
(c) The registered Decree shall be thebest evidence to prove h
t e declaration of absolute
nullity or annulment of marriage and shall serve as notice to third persons concerning the
properties of petitioner and respondent as well as the properties or presumptive legitimes
delivered to their common children.
Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court .–(a) In
case a party dies at any stage of the proceedings before the entry of judgment, the court shall
order the case closed and terminated, without prejudice to the settlement of the estate in proper
proceedings in the regular courts.
(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall
be binding upon the parties and their successors in interest in the settlement of the estate in the
regular courts.

#)+
 Sec. 25. Effectivity.–This Rule shall take effect on March 15, 2003 following its publication
in a newspaper of general circulation not later than March 7, 2003.

APPENDIX ―B‖

RULE ON
LEGAL SEPARATION
(A.M. No. 02-11-11-SC)

SECTION 1. Scope.–This Rule shall govern petitions for legal separation under the
Family Code of the Philippines.

The Rules of Court shall apply suppletorily.

Sec. 2. Petition.–

(a) Who may and when to file.–(1) A petition for legal separation may be filed only by
the husband or the wife, as the case may be, within five years from the time of the occurrence of
any of the following causes:

(a) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;

(b) Physical violence ormoral pressure to compel the petitioner to change

religious or political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child,

or a child of the petitioner, to engage in prostitution, or connivance in such
corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than

six years, even if pardoned;

#)!
 (e) (e) Drug addiction or habitual alcoholism of the respondent;

(f) (f) Lesbianism or homosexuality of the respondent;

(g) (g) Contracting by the respondent of a subsequent bigamous

marriage, whether in or outside the Philippines;

(h) (h) Sexual infidelity or perversion of the respondent;

(i) (i) Attempt on the life of petitioner by the respondent; or

(j) (j) Abandonment of petitioner by respondent without justifiable

cause for more than one year.

(b) Contents and form.–The petition for legal separation shall:

(1) Allege the complete facts constituting thecause of action.

(2) (2) State the names and ages of the common children of the parties,
specify the regime governing their property relations, the properties
involved, and creditors, if any.

If there is no adequate provision in a written agreement between the parties,

the petitioner may apply for a provisional order for spousal support, custody
and support of common children, visitation rights, administration of
community or conjugal property, and other similar matters requiring urgent
action.

(3) Be verified and accompanied by a certification against forum shopping.

The verification and certification must be personally signed by the
petitioner. No petition may be filed solely by counsel or through an
attorney-in-fact.

#)#
 If the petitioner is in a foreign country, the verification and certification
against forum shopping shall be authenticated by the duly authorized
officer of the Philippine embassy or legation, consul general, consul or
vice-consul or consular agent in said country.

(4) Be filed in six copies. The petitioner shall, within fivedays from such filing,
furnish a copy of the petition to the City or Provincial Prosecutor and the
creditors, if any, and submit to the court proof of such service within the
same period.

Failure to comply with the preceding requirements may be a ground for

immediate dismissal of the petition.

(c) Venue.–The petition shall be filed in the Family Court of the province or city where
the petitioner or the respondent has been residing for at least six months prior to the date of
filing or in the case of a non-resident respondent, where he may be found in the Philippines, at
the election of the petitioner.

Sec. 3. Summons.–The service of summons shall be governed by Rule 14 of the Rules

of Court and by the following rules:

(a) Where the respondent cannot be located at his given address or his
whereabouts are unknown and cannot be ascertained by diligent inquiry,
service of summons may, by leave of court, be effected upon him by
publication once a week for two consecutive weeks in a newspaper of
general circulation in the Philippines and in such place as the court may
order.

In addition, a copy of the summons shall be served on respondent at his

last known address by registered mail or by any other means the court may
deem sufficient.

(b) The summons to be published shall be contained in an order of the court

with the following data: (1) title of the case; (2) docket number; (3) nature of
the petition; (4) principal grounds of the petition and the reliefs prayed for;

and
issue(5)
of apublication.
directive for respondent to answer within thirty days from the last

#)$
 Sec. 4. Motion to Dismiss.–No motion to dismiss the petition shall be allowed except
on the ground of lack of jurisdiction over the subject matter or over the parties; provided,
however, that any other ground that might warrant a dismissal of the case may be raised as an
affirmative defense in an answer.

Sec. 5. Answer .– (a) The respondent shall file his answer within fifteen days from
receipt of summons, or within thirty days from the last issue of publication in case of service of
summons by publication. The answer must be verified by respondent himself and not by
counsel or attorney-in-fact.

(b) If the respondent fails tofile an answer, the court shall notdeclare him in default.

(c) Where no answer is filed, or if theanswer does not tender an issue, thecourt shall
order the public prosecutor to investigate whether collusion exists between the parties. .

Sec. 6. Investigation Report of Public Prosecutor.–(a) Within one month after receipt
of the court order mentioned in paragraph (c) of the preceding section, the public prosecutor
shall submit a report to the court on whether the parties are in collusion and serve copies on the
parties and their respective counsels, if any.

(b) If the public prosecutor finds that collusion exists, he hall

s state the basis thereof in
his report. The parties shall file their respective comments on the finding of collusion within ten
days from receipt of copy of the report. The court shall set the report for hearing and if
convinced that parties are in collusion, it shall dismiss the petition.

(c) If the public prosecutor reports that nocollusion exists, the court shall set the case
for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Sec. 7. Social Worker.–The court may require a social worker to conduct a case study
and to submit the corresponding report at least three days before the pre-trial. The court may
also require a case study at any stage of the case whenever necessary.

Sec. 8. Pre-trial.–

(a) Pre-trial mandatory.–A pre-trial is mandatory. On motion ormotu proprio, the court
shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the

#)%
report of the public prosecutor that no collusion exists between the parties on a date not earlier
than six months from date of the filing of the petition.

(b) Notice of Pre-trial.–(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure the receipt thereof by the adverse
party at least three days before the date of pre-trial.

(2) The notice shall be served separately on the parties and their respective counsels as
well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(3) Notice of pre-trial shall be sent to the espondent

r even if he fails to file an answer. In
case of summons by publication and the respondent failed to file his answer, notice of pre-trial
shall be sent to respondent at his last known address.

Sec. 9. Contents of pre-trial brief.–The pre-trial brief shall contain the following:

(1) A statement of the willingness of the parties to enter into agreementsas

may be allowed by law, indicating the desired terms thereof;

(2) A concise statement of their respective claims togetherwith the applicable

laws and authorities;

(3) Admitted facts and proposed stipulations offacts, as well as the disputed
factual and legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly
stating or describing the nature and purpose thereof;

#)&
 (5) The number and names of the witnesses and their respective affidavits;
and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the
same effect as failure to appear at the pre-trial under the succeeding section.

Sec. 10. Effect of failure to appear at the pre-trial.

–(1) If the petitioner fails to appear
personally, the case shall be dismissed unless his counsel or a duly authorized representative
appears in court and proves a valid excuse for the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, thecourt shall proceed with the
pre-trial and require the public prosecutor to investigate the non-appearance of the respondent
and submit within fifteen days a report to the court stating whether his non-appearance is due to
any collusion between the parties. If there is no collusion, the court shall require the public
prosecutor to intervene for the State during the trial on the merits to prevent suppression or
fabrication of evidence.

Sec. 11. Pre-trial conference.–At the pre-trial conference, the court may refer the
issues to a mediator who shall assist the parties in reaching an agreement on matters not
prohibited by law.

The mediator shall render a report within one month from referral which, for good
reasons, the court may extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-
trial conference, on which occasion it shall consider the advisability of receiving expert
testimony and such other matters as may aid in the prompt disposition of the petition.

Sec. 12. Pre-trial order.–(a) The proceedings in the pre-trial shall be recorded. Upon
termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments allowed on the
pleadings, and, except as to the ground of legal separation, the agreements or admissions
made by the parties on any of the matters considered, including any provisional order that may
be necessary or agreed upon by the parties.

#)'
 (b) Should the action proceed to trial, the order shallcontain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to
Section 13 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and
will be presented;

(4) Names of witnesses who will be presented and their testimonies in h

te
form of affidavits; and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for the
State and take steps to prevent collusion between the parties at any stage of the proceedings
and fabrication or suppression of evidence during the trial on the merits.

(c) The parties shall not beallowed to raise issues or present witnesses andevidence
other than those stated in the pre-trial order. The order shall control the trial of the case unless
modified by the court to prevent manifest injustice.

(d) The parties shall have five days from receipt of the pre-trial order to propose
corrections or modifications.

Sec. 13. Prohibited compromise.–The court shall not allow compromise on prohibited
matters, such as the following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

#)(
 (3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts; and

(6) Future legitime.

Sec. 14. Trial.–(a) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.

(b) The grounds for legal separation must beproved. No judgment on the pleadings,
summary judgment, or confession of judgment shall be allowed.

(c) The court may order the exclusion from the courtroom of all persons, including
members of the press, who do not have a direct interest in the case. Such an order may be
made if the court determines on the record that requiring a party to testify in open court would
not enhance the ascertainment of truth; would cause to the party psychological harm or inability

to effectively
right communicate
to privacy; or would bedue to embarrassment,
offensive to decency orfear, or morals.
public timidity; would violate the party‟s

(d) No copy shall be taken nor any examination or perusal of the records of the caseor
parts thereof be made by any person other than a party or counsel of a party, except by order of
the court.

Sec. 15. Memoranda.–The court may require the parties and the public prosecutor to
file their respective memoranda in support of their claims within fifteen days from the date the
trial is terminated. No other pleadings or papers may be submitted without leave of court. After
the lapse of the period herein provided, the case will be considered submitted for decision, with
or without the memoranda.

Sec. 16. Decision.–(a) The court shall deny the petition on any of the following grounds:

#))
 (1) The aggrieved party has condoned the offense or act complained of or has
consented to the commission of the offense or act complained of;

(2) There is connivance in the commission of the offense or act constituting

the ground for legal separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between theparties to obtain the decree of legal

separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the
Decree of Legal Separation shall be issued by the court only after full compliance with
liquidation under the Family Code.

However, in the absence of any property of the parties, the court shall forthwith issue a
Decree of Legal Separation which shall be registered in the Civil Registry where the marriage

was recorded and in the Civil Registry where the Family Court granting the legal separation is
located.

(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the
marriage bond is not severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent
spouse by intestate succession, and provisions in favor of the offending
spouse made in the will of the innocent spouse are revoked by operation of
law.

#)*
 (d) The parties, including the Solicitor General and the public prosecutor, shall be served
with copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall also be
published once in a newspaper of general circulation.

Sec. 17. Appeal.–

(a) Pre-condition.–No appeal from the decision shall be allowed unless the appellant
has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal.–An aggrieved party or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the
adverse parties.

Sec. 18. Liquidation, partition and distribution, custody, and support of minor
children.–Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt
of the entry of judgment of the appellate court granting the petition, the Family Court, on motion
of either party, shall proceed with the liquidation, partition and distribution of the properties of
the spouses, including custody and support of common children, under the Family Code unless
such matters had been adjudicated in previous judicial proceedings.

Sec. 19. Issuance of Decree of Legal Separation.–(a) The court shall issue the
Decree of Legal Separation after:

(1) registration of the entry of judgment granting the petition for legal
separation in the Civil Registry where the marriage was celebrated and in
the Civil Registry where the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of

the spouses, in the proper Register of Deeds where the real properties are
located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered
and attach to the Decree the approved deed of partition.

#*+
 Sec. 20. Registration and publication of the Decree of Legal Separation; decree as
best evidence. -

(a) Registration of decree.–The prevailing party shall cause the registration of the
Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place
where the Family Court is situated, and in the National Census and Statistics Office. He shall
report to the court compliance with this requirement within thirty days from receipt of the copy of
the Decree.

(b) Publication of decree.–In case service of summons was made by publication, the
parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) Best evidence.–The registered Decree shall be the best evidence to prove the legal
separation of the parties and shall serve as notice to third persons concerning the properties of
petitioner and respondent.

Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court. –
(a) In case a party dies at any stage of the proceedings before the entry of judgment, the court
shall order the case closed and terminated without prejudice to the settlement of estate in
proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment, thesame shall be binding upon the
parties and their successors in interest in the settlement of the estate in the regular courts.

Sec. 22. Petition for revocation of donations.–(a) Within five (5) years from the date
the decision granting the petition for legal separation has become final, the innocent spouse
may file a petition under oath in the same proceeding for legal separation to revoke the
donations in favor of the offending spouse.

(b) The revocation of the donations shall be recorded in theRegister of Deeds in the
places where the properties are located.

(c) Alienations, liens, and encumbrances registered in goodfaith before the recording of
the petition for revocation in the registries of property shall be respected.

#*!
 (d) After the issuance of the Decree of Legal Separation, the innocent spouse may
revoke the designation of the offending spouse as a beneficiary in any insurance policy even if
such designation be stipulated as irrevocable. The revocation or change shall take effect upon
written notification thereof to the insurer.

Sec. 23. Decree of Reconciliation.–(a) If the spouses had reconciled, a joint

manifestation under oath, duly signed by the spouses, may be filed in the same proceeding for
legal separation.

(b) If the reconciliation occurred while theproceeding for legal separation is pending,
the court shall immediately issue an order terminating the proceeding.

(c) If the reconciliation occurred after the endition

r of the judgment granting the petition
for legal separation but before the issuance of the Decree, the spouses shall express in their
manifestation whether or not they agree to revive the former regime of their property relations or
choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal
separation proceeding is set aside and specifying the regime of property relations under which
the spouses shall be covered.

(d) If the spouses reconciled after the issuanceof the Decree, the court, upon proper
motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside but
the separation of property and any forfeiture of the share of the guilty spouse already effected
subsists, unless the spouses have agreed to revive their former regime of property relations or
adopt a new regime.

(e) In case of paragraphs (b), (c), and (d), if the reconciled spouses chooseot adopt a
regime of property relations different from that which they had prior to the filing of the petition for
legal separation, the spouses shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded ni the Civil Registries where he
t
marriage and the Decree had been registered.

Sec. 24. Revival of property regime or adoption of another. –(a) In case of

reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for
revival of regime of property relations or the adoption of another regime of property relations in

#*#
the same proceeding for legal separation attaching to said motion their agreement for the
approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, theiraddresses, and the amounts
owing to each.

(c) The creditors shall be furnished with copies ofthe motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion
for two consecutive weeks in a newspaper of general circulation.

(e) After due hearing, andthe court decides to grantthe motion, it shall issue anorder
directing the parties to record the order in the proper registries of property within thirty days from
receipt of a copy of the order and submit proof of compliance within the same period.

Sec. 25. Effectivity.–This Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than March 7, 2003.

APPENDIX “C”

RULE ON PROVISIONAL ORDERS

(A.M. No. 02-11-12-SC)

SECTION 1. When Issued.–Upon receipt of a verified petition for declaration of

absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation,
and at any time during the proceeding, the court,motu proprio or upon application under oath of
any of the parties, guardian or designated custodian, may issue provisional orders and

#*$
protection orders with or without a hearing. These orders may be enforced immediately, with or
without a bond, and for such period and under such terms and conditions as the court may
deem necessary.
Sec. 2. Spousal Support.–In determining support for the spouses, the court may be
guided by the following rules:
(a) In the absence of adequate provisions in a written agreement betweenhe
t spouses,
the spouses may be supported from the properties of the absolute community or the conjugal
partnership.
(b) The court may award support to either spouse in suchamount and for such period of
time as the court may deem just and reasonable based on their standard of living during the
marriage.
(c) The court may likewise considerthe following factors: (1) whetherthe spouse
seeking support is the custodian of a child whose circumstances make it appropriate for that
spouse not to seek outside employment; (2) the time necessary to acquire sufficient education
and training to enable the spouse seeking support to find appropriate employment, and that
spouse‟s future earning capacity; (3) theduration of the marriage; (4) the comparative financial
resources of the spouses, including their comparative earning abilities in the labor market; (5)
the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage,
including services rendered in home-making, child care, education, and career building of the
other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions
of the spouses; (9) the ability of the supporting spouse to give support, taking into account that
spouse‟s earning capacity, earned and unearned income, assets, and standard of living; and
(10) any other factor the court may deem just and equitable.
(d) The Family Court may direct the deduction ofthe provisional support from the salary
of the spouse.

Sec. 3. ofChild
the properties –The common
Support.community
the absolute children
or the of the
conjugal spouses shall be supported from
partnership.
Subject to the sound discretion of the court, either parent or both may be ordered to give
an amount necessary for the support, maintenance, and education of the child. It shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.
In determining the amount of provisional support, the court may likewise consider the
following factors: (1) the financial resources of the custodial and non-custodial parent and those
of the child; (2) the physical and emotional health of the child and his or her special needs and
aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary
contributions that the parents will make toward the care and well-being of the child,
The Family Court may direct the deduction of the provisional support from the salary of
the parent.
Sec. 4. Child Custody.–In determining the right party or person to whom the custody of
the child of the parties may be awarded pending the petition, the court shall consider the best
interests of the child and shall give paramount consideration to the material and moral welfare of
the child,
The court may likewise consider the following factors: (a) the agreement of the parties;
(b) the desire and ability of each parent to foster an open.‟ and loving relationship between the
child and the, other parent; (c) the child‟s health, safety, and welfare;.(d) any history of child or

#*%
spousal abuse by the person seeking custody or who has had any filial relationship with the
child, including anyone courting the parent; (e) the nature and frequency of contact with both
parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most
suitable physical, emotional, spiritual, psychological and educational environment; and (i) the
preference of the child, if over seven years of age and of sufficient discernment, unless the
parent chosen is unfit.
The court may award provisional custody in the following order of preference: (1) to both
parents jointly; (2) to either parent taking into account all relevant considerations under the
foregoing paragraph, especially the choice of the child over seven years of age, unless the
parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the
grandparent chosen by the child over seven years of age and of sufficient discernment, unless
the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years
of age, unless he or she is unfit or disqualified; (5) to the child‟s actual custodian over twenty
-
one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court
suitable to provide proper care and guidance for the child.
The custodian temporarily designated by the court shall give the court and the parents
five days notice of any plan to change the residence of the child or take him out of his residence
for more than three days provided it does not prejudice the visitation rights of the parents.
Sec. 5. Visitation Rights.–Appropriate visitation rights shall be provided to the parent
who is not awarded provisional custody unless found unfit or disqualified by the court.
Sec. 6. Hold Departure Order.–Pending resolution of the petition, no child of the
parties shall be brought out of the country without prior order from the court,
The court, motu proprio or upon application under oath, may issueex-parte a hold
departure order, addressed to the Bureau of Immigration and Deportation, directing it not to
allow the departure of the child from the Philippines without the permission of the court.

ForeignThe Family
Affairs andCourt issuingofthe
the Bureau hold departure
Immigration order shall furnish
and Deportation the Department
of the Department of
of Justice a
copy of the hold departure order issued within twenty-four hours from the time of its issuance
and through the fastest available means of transmittal.
The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and place of birth,
and the place of last residence of the person against whom a hold-
departure order has been issued or whose departure from the country has
been enjoined;
(b) the complete title and docket number of the case in which the hold
departure was issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order,
If available, a recent photograph of the person against whom a hold-departure order has
been issued or whose departure from the country has been enjoined should also be included,
The court may recall the order,motu proprio or upon verified motion of any of the parties
after summary hearing, subject to such terms and conditions as may be necessary for the best
interests of the child.

#*&
 Sec. 7. Order of Protection.–The court may issue an Order of Protection requiring any
person:
(a) to stay away from the home, school, business, or place ofemployment of the child,
other parent or any other party, and to stay away from any other specific place designated by
the court;
(b) to refrain from harassing, intimidating, or threatening suchchild or the other parent
or any person to whom custody of the child is awarded;
(c) to refrain from acts of commission or omission that createan unreasonable risk to
the. health, safety, or welfare of the child;

(d) to permit a parent, ora person entitled to visitation by a court order ora separation
agreement, to visit the child at stated periods;
(e) to permit a designated party ot enter the residence during aspecified period of time
in order to take personal belongings not contested in a proceeding pending with the Family
Court;
(f) to comply with such other orders asare necessary for the protection of the child.
Sec. 8. Administration of Common Property.–If a spouse without just cause
abandons the other or fails to comply with his or her obligations to the family, the court may,
upon application of the aggrieved party under oath, issue a provisional order appointing the
applicant or a third person as receiver or sole administrator of the common property subject to
such precautionary conditions it may impose.
The receiver or administrator may not dispose of or encumber any common property or
specific separate property of either spouse without prior authority of the court.
The provisional order issued by the court shall be registered in the proper Register of
Deeds and annotated in all titles of properties subject of the receivership or administration.
Sec. 9. Effectivity.–This Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than March 7, 2003.

APPENDIX ―D‖

RULE ON GUARDIANSHIP OF MINORS

(A.M. No. 03-02-05-SC)

Section 1. Applicability of the Rule. – This Rule shall apply to petitions for
guardianship over the person or property, or both, of a minor.
The father and the mother shall jointly exercise legal guardianship over the person
and property of their unemancipated common child without the necessity of a court

#*'
 appointment. In such case, this Rule shall be suppletory to the provisions of the Family
Code on guardianship.
Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by
law, any relative or other person on behalf of a minor, or the minor himself if fourteen
years of age or over, may petition the Family Court for the appointment of a general
guardian over the person or property, or both, of such minor. The petition may also be
filed by the Secretary of Social Welfare and Development and by the Secretary of
Health in the case of an insane minor who needs to be hospitalized.
Sec. 3. Where to file petition. – A petition for guardianship over the person or
property, or both, of a minor may be filed in the Family Court of the province or city
where the minor actually resides. If he resides in a foreign country, the petition shall be
flied with the Family Court of the province or city where his property or any part thereof
is situated.
Sec. 4. Grounds of petition.-The grounds for the appointment of a guardian over
the person or property, or both, of a minor are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental authority;
(c) remarriage of his surviving parent, if the latter Is found unsuitable to
exercise parental authority; or
(d) when the best interests of the minor so require.
Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall
consider the guardian‟s:
(a) moral character;

(b) physical, mental and psychological condition;

(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for the full
period of the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
Sec. 6. Who may be appointed guardian of the person or property, or both, of a
minor. – In default of parents or a court-appointed guardian, the court may appoint a
guardian of the person or property, or both, of a minor, observing as far as practicable,
the following order of preference:
(a) the surviving grandparent and In case several grandparents survive,
the court shall select any of them taking Into account all relevant
considerations;
(b) the oldest brother or sister of the minor over twenty-one years of age,
unless unfit or disqualified;

#*(
 (c) the actual custodian of the minor over twenty-one years of age,
unless unfit or disqualified; and
(d) any other person, who in the sound discretion of the court, would
serve the best interests of the minor.
Sec. 7. Contents of petition. – A petition for the appointment of a general guardian
must allege the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective ward;

(c) The ground rendering the appointment necessary or convenient;

(d) The death of the parents of the minor or the termination, deprivation
or suspension of their parental authority;
(e) The remarriage of the minor‟s surviving parent;
(f) The names, ages, and residences of relatives within the 4th civil degree of
the minor, and of persons having him in their care and custody;
(g) The probable value, character and location of the property of the
minor; and
(h) The name, age and residence of the person for whom letters of
guardianship are prayed.
The petition shall be verified and accompanied by a certification against forum
shopping. However, no defect in the petition or verification shall render void the
issuance of letters of guardianship.
Sec. 8. Time and notice of hearing . – When a petition for the appointment of a
general guardian is filed, the court shall fix a time and place for its hearing, and shall
cause reasonable notice to be given to the persons mentioned in the petition, including
the minor if he is fourteen years of age or over, and may direct other general or special
notice to be given.
Sec. 9. Case study report . – The court shall order a social worker to conduct a
case study of the minor and all the prospective guardians and submit his report and
recommendation to the court for its guidance before the scheduled hearing. The social
worker may intervene on behalf of the minor if he finds that the petition for
guardianship should be denied.
Sec. 10. Opposition to petition. – Any interested person may contest the petition by
filing a written opposition based on such grounds as the majority of the minor or the
unsuitability of the person for whom letters are prayed, and pray that the petition be
denied, or that letters of guardianship issue to himself, or to any suitable person named
in the opposition.
Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it
must be shown that the requirement of notice has be en complied with. The prospective
ward shall be presented to the court. The court shall hear the evidence of the parties in
support of their respective allegations. If warranted, the court shall appoint a suitable
guardian of the person or property, or both, of the minor.

#*)
 At the discretion of the court, the hearing on guardianship may be closed to the
public and the records of thecase shall not be released without its approval.
Sec. 12. When and how a guardian of the property for non-resident minor is
appointed; notice. – When the minor resides outside the Philippines but has property in
the Philippines, any relative or friend of such minor, or any one interested in his
property, in expectancy or otherwise, may petition the Family Court for the appointment
of a guardian over the property.
Notice of hearing of the petition shall be given to the minor by publication or any
other means as the court may deem proper. The court may dispense with the presence
of the non-resident minor.
If after hearing the court is satisfied that such non-resident is a minor and a
guardian is necessary or convenient, it may appoint a guardian over his property.
Sec. 13. Service of final and executory judgment or order . – The final and
executory judgment or order shall be served upon the Local Civil Registrar of the
municipality or city where the minor resides and the Register of Deeds of the place
where his property or part thereof is situated shall annotate the same in the
corresponding title, and report to the court his compliance within fifteen days from
receipt of the order.
Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the
execution of his trust, or letters of guardianship issue, an appointed guardian may be
required to post a bond in such sum as the court shall determine and conditioned as
follows:
(a) To make and return to the court, within three months after the issuance of
his letters of guardianship, a true and complete Inventory of all the property, real and
personal, of his ward which shall come to his possession or knowledge or to the

possession or knowledge of any other person in his behalf;

(b) To faithfully execute the duties of his trust, to manage and dispose of the
property according to this rule for the best interests of the ward, and to provide for his
proper care, custody and education;
(c) To render a true and Just account of all the property of the ward in his
hands, and of all proceeds or interest derived therefrom, and of the management and
disposition of the same, at the time designated by this rule and such other times as the
court directs; and at the expiration of his trust, to settle his accounts with the court and
deliver and pay over all the property, effects, and monies remaining in his hands, or
due from him on such settlement, to the person lawfully entitled thereto; and
(d) To perform all orders of the court and such other duties as may be required
by law.
Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian
shall be filed in the Family Court and, In case of breach of any of its conditions, the
guardian may be prosecuted in the same proceeding for the benefit of the ward or of
any other person legally interested in the property.
Whenever necessary, the court may require the guardian to post a new bond and
may discharge from further liability the sureties on the old bond after due notice to
interested persons, if no injury may result therefrom to those interested in the property.

#**
 Sec. 16. Bond of parents as guardians of property of minor . – lf the market value of
the property or the annual Income of the child exceeds P50,000.00, the parent
concerned shall furnish a bond In such amount as the court may determine, but in no
case less than ten per centurn of the value of such property or annual income, to
guarantee the performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be flied in the Family Court of the
place where the child resides or, if the child resides in a foreign country, in the Family
Court of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding In which all
incidents and issues regarding the performance of the obligations of a general
guardian shall be heard and resolved.
Sec. 17. General duties of guardian. – A guardian shall have the care and custody
of the person of his ward and the management of his property, or only the
management of his property. The guardian of the property of a nonresident minor shall
have the management of all his property within the Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal property and the
income of the real property of the ward, If the same is sufficient; otherwise,
out of the real property of the ward upon obtaining an order for its sale or
encumbrance;
(b) To settle all accounts of his ward, and demand, sue for, receive all
debts due him, or may, with the approval of the court, compound for the
same and give discharges to the debtor on receiving a fair and just dividend
of the property and effects; and to appear for and represent the ward in all
actions and special proceedings, unless another person is appointed for that

purpose;
(c) To manage the property of the ward frugally and without waste, and
apply the income and profits thereon, insofar as may be necessary, to the
comfortable and suitable maintenance of the ward; and if such income and
profits be insufficient for that purpose, to sell or encumber the real or
personal property, upon being authorized by the court to do so;
(d) To consent to a partition of real or personal property owned by the
ward jointly or in common with others upon authority granted by the court
after hearing, notice to relatives of the ward, and a careful investigation as to
the necessity and propriety of the proposed action;
(e) To submit to the court a verified inventory of the property of his ward
within three months after his appointment, and annually thereafter, the
rendition of which may be required upon the application of an interested
person;
(f) To report to the court any property of the ward not included in the inventory
which is discovered, or succeeded to, or acquired by the ward within three
months after such discovery, succession, or acquisition; and

$++
 (g) To render to the court for its approval an accounting of the property
one year from his appointment, and every year thereafter or as often as may
be required.
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in the
appraisal of the property of the ward reported in the initial and subsequent
inventories;
(b) Authorize reimbursement to the guardian, other than a parent, of
reasonable expenses incurred in the execution of his trust, and allow
payment of compensation for his services as the court may deem just, not
exceeding ten per centum of the net income of the ward, if any; otherwise, in
such amount the court determines to be a reasonable compensation for his
services; and
(c) Upon complaint of the guardian or ward, or of any person having
actual or prospective interest in the property at the ward, require any person
suspected of having embezzled, concealed, or disposed of any money,
goods or interest, or a written instrument belonging to the ward or his
property to appear for examination concerning any thereof and issue such
orders as would secure the property against such embezzlement,
concealment or conveyance.
Sec. 19. Petition to sell or encumber property.-When the income of a property
under guardianship is insufficient to maintain and educate the ward, or when it is for his
benefit that his personal or real property or any part thereof be sold, mortgaged or
otherwise encumbered, and the proceeds invested in safe and productive security, or
in the improvement or security of other real property, the guardian may file a verified
petition setting forth such facts, and praying that an order issue authorizing the sale or
encumbrance of the property.
Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would
be beneficial to the ward, the court shall order his next of kin and all person/s
interested in the property to appear at a reasonable time and place therein specified
and show cause why the petition should not be granted.
Sec. 21. Hearing on return of order; costs. – At the time and place designated in
the order to show cause, the court shall hear the allegations and evidence of the
petitioner and next of kin, and other persons interested, together with their witnesses,
and grant or deny the petition as the best interests of the ward may require.
Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If,
after full examination, it is necessary, or would be beneficial to the ward, to sell or
encumber the property, or some portion of it, the court shall order such sale or
encumbrance the proceeds of which shall be expended for the maintenance or the
education of the ward, or invested as the circumstances may require. The order shall
specify the grounds for the sale or encumbrance and may direct that the property
ordered sold be disposed of at public sale, subject to such conditions as to the time
and manner of payment, and security where a part of the payment is deferred. The
srcinal bond of the guardian shall stand as security for the proper appropriation of the
proceeds of the sale or encumbrance, but the court may, if deemed expedient, require

$+!
 an additional bond as a condition for the sale or encumbrance. The authority to sell or
encumber shall not extend beyond one year, unless renewed by the court.
Sec. 23. Court may order investment of proceeds and direct management of
property. – The court may authorize and require the guardian to invest the proceeds of
sales or encumbrances, and any other money of his ward in his hands, in real or
personal property, for the best interests of the ward, and may make such other orders
for the management, investment, and disposition of the property and effects, as
circumstances may warrant.
Sec. 24. Grounds for removal or resignation of guardian. – When a guardian
becomes insane or otherwise incapable of discharging his trust or is found thereafter to
be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to
render an account or make a return for thirty days after it is due, the court may, upon
reasonable notice to the guardian, remove him as such and require him to surrender
the property of the ward to the person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable causes.
Upon the removal or resignation of the guardian, the court shall appoint a new
one.
No motion for removal or resignation shall be granted unless the guardian has
submitted the proper accounting of the property of the ward and the court has
approved the same.
Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon
verified motion of any person allowed to file a petition for guardianship may terminate
the guardianship on the ground that the ward has come of age or has died. The
guardian shall notify the court of such fact within ten days of its occurrence.
Sec. 26. Service of final and executory judgment or order. – The final and
executory judgment or order shall be served upon the Local Civil Registrar of the
municipality or city where the minor resides and the Register of Deeds of the province
or city where his property or any part thereof is situated. Both the Local Civil Registrar
and‟ the Register of Deeds shall enter the final and executory judgment or order in the
appropriate books in their offices.
Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the
Rules of Court on guardianship of minors. Guardianship of incompetents who are not
minors shall continue to be under the jurisdiction of the regular courts and governed by
the Rules of Court.
Sec. 28. Effectivity. - This Rule shall take effect on May 1, 2003 following its
publication in a newspaper of general circulation not later than April 15, 2003.

$+#
 APPENDIX ―E‖

RULE ON CUSTODY OF MINORS

AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

(A.M. No. 03-04-04-SC)

SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs
of habeas corpus in relation thereto.
The Rules of Court shall apply suppletorily.
SEC. 2. Petition for custody of minors; who may file .- A verified petition for the rightful
custody of a minor may be filed by any person claiming such right. The party against whom it
may be filed shall be designated as the respondent.
SEC. 3. Where to file petition . - The petition for custody of minors shall be filed with the
Family Court of the province or city where the petitioner resides or where the minor may be
found.
SEC. 4. Contents of petition. - The verified petition shall allege the following:
(a) The personal circumstances of the petitioner and of the
respondent;
(b) The name, age and present whereabouts of the minor and his or
her relationship to the petitioner and the respondent;
(c) The material operative facts constituting deprivation of custody;
and
(d) Such other matters which are relevant to the custody of the minor.
The verified petition shall be accompanied by a certificate against forum shopping, which
the petitioner must sign personally.
SEC. 5. Summons; personal service on respondent . - If the court is satisfied that the
petition is sufficient in form and substance, it shall direct the clerk of court to issue summons,
which shall be served together with a copy of the petition personally on the respondent.
SEC. 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that
might warrant the dismissal of the petition may be raised as an affirmative defense in the
answer.
SEC. 7. Verified Answer. - The respondent shall file an answer to the petition, personally
verified by him, within five days after service of summons and a copy of the petition.
SEC. 8. Case study; duty of social worker. - Upon the filing of the verified answer or the
expiration of the period to file it, the court may order a social worker to make a case study of the

$+$
minor and the parties and to submit a report and recommendation to the court at least three
days before the scheduled pre-trial.
SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or
the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for the
pre-trial conference; (2) directing the parties to file and serve their respective pre-trial briefs in
such manner as shall ensure receipt thereof by the adverse party at least three days before the
date of pre-trial; and (3) requiring the respondent to present the minor before the court.
The notice of its order shall be served separately on both the parties and their respective
counsels. The pre-trial is mandatory.
SEC. 10. Contents of pre-trial brief . - The pre-trial brief shall contain the following:
(a) A statement of the willingness of theparties to enter intoagreements
that may be allowed by law, indicating its terms;
(b) A concise statement of their respective claims together with he
t
applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or describing
its nature and purpose;
(f) The number and names of the witnesses and their respective affidavits
which shall serve as the affiant's testimony on direct examination; and
(g) Such other matters as the court may require to be included in the pre-
trial brief.
Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial.
SEC. 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear
personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for the non-appearance of the
petitioner.
(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner
shall be allowed to present his evidence ex parte. The court shall then render judgment on the
basis of the pleadings and the evidence thus presented.
SEC. 12. What may be done at pre-trial . - At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who
shall have five days to effect an agreement between the parties. If the issue is not settled
through mediation, the court shall proceed with the pre-trial conference, on which occasion it
shall consider such other matters as may aid in the prompt disposition of the petition.
SEC. 13. Provisional order awarding custody . - After an answer has been filed or after
expiration of the period to file it, the court may issue a provisional order awarding custody of the
minor. As far as practicable, the following order of preference shall be observed in the award of
custody:
(a) Both parents jointly;

$+%
 (b) Either parent, taking into account all relevant considerations, especially the
choice of the minor over seven years of age and of sufficient discernment,
unless the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the grandparent
chosen by the minor over seven years of age and of sufficient discernment,
unless the grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is
unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless the
former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable to provide proper
care and guidance for the minor.
SEC. 14. Factors to consider in determining custody . - In awarding custody, the court shall
consider the best interests of the minor and shall give paramount consideration to his material
and moral welfare. The best interests of the minor refer to the totality of the circumstances and
conditions as are most congenial to the survival, protection, and feelings of security of the minor
encouraging to his physical, psychological and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have bound themselves
to comply with respecting the rights of the minor to maintain direct contact
with the non custodial parent on a regular basis, except when there is an
existing threat or danger of physical, mental, sexual or emotional violence
which endangers the safety and best interests of the minor;

(b) The desire

between and
the ability
minor andof the
oneother
parent to foster an open and loving relationship
parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who
has had any filial relationship with the minor, including anyone courting the
parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and
educational environment for the holistic development and growth of the
minor; and
(i) The preference of the minor over seven years of age and of sufficient
discernment, unless the parent chosen is unfit.
SEC. 15. Temporary visitation rights. - The court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.

$+&
 The temporary custodian shall give the court and non custodial parent or parents at least
five days' notice of any plan to change the residence of the minor or take him out of his
residence for more than three days provided it does not prejudice the visitation rights of the non-
custodial parent or parents.
SEC. 16. Hold Departure Order. - The minor child subject of the petition shall not be
brought out of the country without prior order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may issueex parte a hold
departure order, addressed to the Bureau of Immigration and Deportation, directing it not to
allow the departure of the minor from the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of
the hold departure order within twenty-four hours from its issuance and through the fastest
available means of transmittal.
The hold departure order shall contain the following information:
(a) The complete name (including the middle name), the date and place of
birth, the nationality and the place of last residence of the person against
whom a hold departure order has been issued or whose departure from the
country has been enjoined;
(b) The complete title and docketnumber of the case n
i which the hold
departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against whom a hold
departure order has been issued or whose departure from the country has
been enjoined.
The court may recall the hold departure ordermotu proprio, or upon verified motion of any
of the parties after summary hearing, subject to such terms and conditions as may be necessary
for the best interests of the minor.
SEC. 17. Protection Order. - The court may issue a Protection Order requiring any person:
(a) To stay away from the home, school, business, or place of employment
of the minor, other parent or any other party, or from any other specific place
designated by the court;
(b) To cease and desist from harassing, intimidating, or threatening such
minor or the other parent or any person to whom custody of the minor is
awarded;
(c) To refrain from acts of commission or omission that create an
unreasonable risk to the health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to visitation by a court order or a
separation agreement, to visit the minor at stated periods;
( e) To permit a designated party to enter the residence during a specified
period of time in order to take personal belongings not contested in a
proceeding pending with the Family Court; and

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 (f) To comply with such other orders as are necessary for the protection of
the minor.
SEC. 18. Judgment. - After trial, the court shall render judgment awarding the custody of
the minor to the proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and custody of the minor, the court
may designate either the paternal or maternal grandparent of the minor, or his oldest brother or
sister, or any reputable person to take charge of such minor, or commit him to any suitable
home for children.
In its judgment, the court may order either or both parents to give an amount necessary for
the support, maintenance and education of the minor, irrespective of who may be its custodian.
In determining the amount of support, the court may consider the following factors: (1) the
financial resources of the custodial and non-custodial parent and those of the minor; (2) the
physical and emotional health, special needs, and aptitude of the minor; (3) the standard of
living the minor has been accustomed to; and (4) the non-monetary contributions that the
parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable permitting the parent who is
deprived of the care and custody of the minor to visit or have temporary custody.
SEC. 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.
An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of the denial of the motion for reconsideration or new trial and serving a copy
thereof on the adverse parties.
SEC. 20. Petition for writ of habeas corpus . - A verified petition for a writ of habeas corpus
involving custody of minors shall be filed with the Family Court. The writ shall be enforceable
within its judicial region to which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the presiding
judge of the Family Court, provided, however, that the regular court shall refer the case to the
Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where there are
no Family Courts.
The writ issued by the Family Court or the regular court shall be enforceable in the judicial
region where they belong.
The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of
its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court or to any regular court within the region where the
petitioner resides or where the minor may be found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on custody of minors. The appellate
court, or the member thereof, issuing the writ shall be furnished a copy of the decision.
SEC. 21. Confidentiality of proceeding s. - The hearings on custody of minors may, at the
discretion of the court, be closed to the public and the records of the case shall not be released
to non-parties without its approval.
SEC. 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication
in a newspaper of general circulation not later than April 30, 200
3.

$+(
 Appendix ―F‖

REPUBLIC ACT NO. 8369

AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL

JURISDICTION OVER CHILD AND FAMILY CASES, AMENDING BATAS PAMBANSA
BILANG 129,AS AMENDED, OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING
FUNDS THEREFOR AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

Section 1. Title. - This Act shall be known as the "Family Courts Act of 1997".

Sec. 2. Statement of National Policies. - The State shall protect the rightsand promote
the welfare of children in keeping with the mandate of the Constitution and the precepts of the
United Nations Convention on the rights of the Child. The State shall provide a system of
adjudication for youthful offenders which takes into account their peculiar circumstances.

The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. The courts shall preserve the solidarity of the
family, provide procedures for the reconciliation of spouses and the amicable settlement of
family controversy.

Sec. 3. Establishment of Family Courts. - There shall be established a Family Court in

every province and city in the country. Incase where the city isthe capital of the province, the
Family Court shall be established in the municipality which has the highest population.

Sec. 4. Qualification and Training of Family Court Judges. - Sec. 15 of Batas Pambansa
Blg. 129, as amended, is hereby further amended to read as follows:

"Sec. 15. (a) Qualification. - No person shall be appointed Regional Trial Judge or
Presiding Judge of the Family Court unless he is a natural-born citizen of the Philippines,
at least thirty-five (35) years of age, and, for at least ten (10) years, has been engaged in
the practice of law in the Philippines or has held a public office in the Philippines requiring
admission to the practice of law as indispensable requisite.

"(b) Training of Family Court Judges . - The Presiding Judge, as well as the court
personnel of the Family Courts, shall undergo training and must have the experience and
demonstrated ability in dealing with child and family cases.

"The Supreme Court shall provide a continuing education program on child and family
laws, procedure and other related disciplines to judges and personnel of such courts."

$+)
 Sec. 5. Jurisdiction offamily Courts. - The Family Courts shall have exclusive srcinal
jurisdiction to hear and decide the following cases:

a) Criminal cases where one or more of the accused is below eighteen (18) years of age
but not less than nine (9) years of age but not lessthan nine (9) years of age or where one
or more of the victims is a minor at the time of the commission of the offense: Provided,
That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil
liability which the accused may have incurred.

The sentence, however, shall be suspended without need of application pursuant to

Ptesidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code";

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

c) Petitions for adoption of children and the revocation thereof;

d) Complaints for annulment of marriage, declaration of nullity of marriage and those

relating to marital status and property relations of husband and wife or those living together
under different status and agreements, and petitions for dissolution of conjugal partnership
of gains;

e) Petitions for support and/or acknowledgment;

f) Summary judicial proceedings brought under the provisions of Executive Order No.
209, otherwise known as the"Family Code of the Philippines" ;

g) Petitions for declaration of status of children as abandoned, dependent o neglected

children, petitions for voluntary or involuntary commitment of children; the suspension,
termination, or restoration of parental authority and other cases cognizable under
Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related
laws;

h) Petitions for the constitution of the family home;

i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;

j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act," as amended by
Republic Act No. 7658; and

k) Cases of domestic violence against:

1) Women - which are acts of gender based violence that results, or are likely to
result in physical, sexual or psychological harm or suffering to women; and other

forms of physical
woman's abuseintegrity
personhood, such asand
battering
freedomor movement;
threats and and
coercion which violate a

2) Children - which includethe commission of allforms of abuse, neglect,

$+*
 cruelty, exploitation, violence, and discrimination and all other conditions
prejudicial to their development.

If an act constitutes a criminal offense, the accused or batterer shall be subject to

criminal proceedings and the corresponding penalties.

If any question involving any of the above matters should arise as an incident in any
case pending in the regular courts, said incident shall be determined in that court.

Sec. 6. Use of Income. - All Family Courts shall be allowed the use of ten per cent (10%)
of their income derived from filing and other court fees under Rule 141 of the Rules of Court for
research and other operating expenses including capital outlay: Provided, That this benefit shall
likewise be enjoyed by all courts of justice.

The Supreme Court shall promulgate the necessary guidelines to effectively implement
the provisions of this Sec.

Sec. 7. Special Provisional Remedies. - In cases of violence among immediate family

members living in the same domicile or household, the Family Court may issue a restraining
order against the accused of defendant upon verified application by the complainant or the
victim for relief from abuse.

The court may order the temporary custody of children in all civil actions for their custody. The
court may also order support pendente lite, including deduction from the salary and use of
conjugal home and other properties in all civil actions for support.

Sec. 8. Supervision of Youth Detention Homes. - The judge of the Family Court shall
have establish
shall direct control and supervision
to separate the youthofoffenders
the youthfrom
detention home which
adult criminals: the local
Provided, government
however, Thatunit
alternatives to detention and institutional care shall be made available to the accused including
counseling, recognizance, bail, community continuum, or diversions from the justice system:
Provided, further, That the human rights of the accused are fully respected in a manner
appropriate to their well-being.

Sec. 9. Social Services and Counseling Division. - Under the guidance ofthe
Department of Social Welfare and Development (DSWD), a Social Services and Counseling
Division (SSCD) shall be established in each judicial region as the Supreme Court shall deem
necessary based on the number of juvenile and family cases existing in such jurisdiction. It shall
provide appropriate social services to all juvenile and family cases filed with the court and
recommend the proper social action. It shall also develop programs, formulate uniform policies
and procedures, and provide technical supervision and monitoring of all SSCD in coordination
with the judge.

Sec. 10. Social Services and Counseling Division Staff. - The SSCD shall have a staff
composed of qualified social workers and other personnel with academic preparation in
behavioral sciences to carry out the duties'of conducting intake assessment, social case
studies, casework and counseling, and othersocial services that may be needed in connection
with cases filed with the court: Provided, however, That in adoption cases and in petitions for
declaration of abandonment, the case studies may be prepared by social workers of duly

$!+
licensed child caring or child placement agencies, or the DSWD. When warranted, the division
shall recommend that the court avail itself of consultative services of psychiatrists,
psychologists, and other qualified specialists presently employed in other departments of the
government in connection with its cases.

The position of Social Work Adviser shall be created under the Office of the Court
Administrator, who shall monitor and supervise the SSCD ofthe Regional Trial Court.

Sec. 11. Alternative Social Services . - In accordance with Sec. 17 of this Act, in areas
where no Family Court has been established or no Regional Trial Court was designated by the
Supreme Court due to the limited number of cases, the DSWD shall designate and assign

qualified, trained,
juvenile and familyand DSWD
cases filed accredited social workers
in the designated RegionalofTrial
the Court
local government
of the place. units to handle

Sec. 12. Privacy and Confidentiality of Proceedings. - All hearings and conciliation of the
child and family cases shall be treated in a manner consistent with the promotion of the child's
and the family's dignity and worth, and shall respect their privacy at all stages of the
proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of
parties shall not be divulged unless necessary and with authority of the judge.

Sec. 13. Special Rules of Procedure. - The Supreme Court shall promulgate special
rules of procedure for the transfer of cases to the new courts during the transition period and for
the disposition of family cases with the best interests of the child and the protection of the family
as primary consideration taking into account the United Nations Convention on the Rights of the
Child.

Sec. 14. Appeals. - Decisions and orders of the court shall be appealed in the same
manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts.
Sec. 15. Appropriations. - The amount necessary to carry out the provisions of this Act
shall be included in the General Appropriations Act of the year following in its enactment into
law and thereafter.

Sec. 16. Implementing Rules and Regulations. - The Supreme Court, in coordination
with the DSWD, shall formulate the necessary rules and regulations for the effective
implementation of the social aspects of this Act.

Sec. 17. Transitory Provisions. - Pending the establishment of such Family Courts, the
Supreme Court shall designate from among the branches ofthe Regional Trial Court at least one
Family Court in each of the cities of Manila, Quezon, Pasay, Caloocan, Makati, Pasig,
Mandaluyong, Muntinlupa, Laoag, Baguio, Santiago, Dagupan, Olongapo, Cabanatuan, San
Jose, Angeles, Cavite, Batangas, Lucena, Naga, Iriga, Legazpi, Roxas, Iloilo, Bacolod,
Dumaguete, Tacloban, Cebu, Mandaue, Tagbilaran, Surigao, Butuan, Cagayan de Oro, Davao,
General Santos, Oroquieta, Ozamis, Dipolog, Zamboanga, Pagadian, Iligan, and in such other
places as the Supreme Court may deem necessary.

Additional cases other than those provided in Sec. 5 may be assigned to the Family
Courts when their dockets permit: Provided, That such additional cases shall not be heard on

$!!
the same day family cases are heard.

In areas where there are no Family Courts, the cases referred to in Sec. 5 of this Act
shall be adjudicated by the Regional Trial Court.

Sec. 18. Separability Clause. - In case any provision of this Act is declared
unconstitutional, the other provisions shall remain in effect.

Sec. 19. Repealing Clause. - All other laws, decrees, executive orders, rules or
regulations inconsistent herewith are hereby repealed, amended or modified accordingly.

Sec. 20. Effectivity. - This Act shall take effect fifteen (15) days after its publication in at
least two (2) national newspapers of general circulation.

Approved October 28, 1997.

Appendix “G”

Republic Act No. 8552

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF

FILIPINO CHILDREN AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

ARTICLE I
GENERAL PROVISIONS

Section 1. Short Title. – This Act shall be known as the "Domestic Adoption Act of
1998."

Section 2. Declaration of Policies. – (a) It is hereby declared the policy of the State to
ensure that every child remains under the care and custody of his/her parent(s) and be provided
with love, care, understanding and security towards the full and harmonious development of
his/her personality. Only when such efforts prove insufficient and no appropriate placement or
adoption within the child's extended family is available shall adoption by an unrelated person be
considered.

(b) In all matters relating to the care, custody and adoption of a child, his/her interest
shall be the paramount consideration in accordance with the tenets set forth in the United

$!#
Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and Legal
Principles Relating to the Protection and Welfare of Children with Special Reference to Foster
Placement and Adoption, Nationally and Internationally; and the Hague Convention on the
Protection of Children and Cooperation in Respect of Intercountry Adoption. Toward this end,
the State shall provide alternative protection and assistance through foster care or adoption for
every child who is neglected, orphaned, or abandoned.

(c) It shall also be a State policy to:

(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her
parental authority over his/her child;

(ii) Prevent the child from unnecessary separation from his/her biological parent(s);

(iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and
custody over his/her adopted child.

Any voluntary or involuntary termination of parental authority shall be

administratively or judicially declared so as to establish the status of the child as "legally
available for adoption" and his/her custody transferred to the Department of Social
Welfare and Development or to any duly licensed and accredited child-placing or child-
caring agency, which entity shall be authorized to take steps for the permanent
placement of the child;

(iv) Conduct public information and educational campaigns to promote a positive

environment for adoption;

(v) Ensure that sufficient capacity exists within government and private sector
agencies to handle adoption inquiries, process domestic adoption applications, and offer
adoption-related services including, but not limited to, parent preparation and post-
adoption education and counseling; and

(vi) Encourage domestic adoption so as to preserve the child's identity and

culture in his/her native land, and only when this is not available shall intercountry
adoption be considered as a last resort.

Section 3. Definition of Terms. – For purposes of this Act, the following terms shall be
defined as:

(a) "Child" is a person below eighteen (18) years of age.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or
involuntarily committed to the Department or to a duly licensed and accredited child-
placing or child-caring agency, freed of the parental authority of his/her biological
parent(s) or guardian or adopter(s) in case of rescission of adoption.

(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly
relinquishes parental authority to the Department.

$!$
 (d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been
permanently and judicially deprived of parental authority due to abandonment;
substantial, continuous, or repeated neglect; abuse; or incompetence to discharge
parental responsibilities.

(e) "Abandoned child" refers to one who has no proper parental care or guardianship or
whose parent(s) has deserted him/her for a period of at least six (6) continuous months
and has been judicially declared as such.

(f) "Supervised trial custody" is a period of time within which a social worker oversees
the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing
their filial relationship.
(g) "Department" refers to the Department of Social Welfare and Development.

(h) "Child-placing agency" is a duly licensed and accredited agency by the Department
to provide comprehensive child welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive parents, and preparing the
adoption home study.

(i) "Child-caring agency" is a duly licensed and accredited agency by the Department
that provides twenty four (24)-hour residential care services for abandoned, orphaned,
neglected, or voluntarily committed children.

(j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth
records that a certain child was born to a person who is not his/her biological mother,
causing such child to lose his/her true identity and status.

ARTICLE II
PRE-ADOPTION SERVICES

Section 4. Counseling Service. – The Department shall provide the services of

licensed social workers to the following:

(a) Biological Parent(s) – Counseling shall be provided to the parent(s) before and after
the birth of his/her child. No binding commitment to an adoption plan shall be permitted
before the birth of his/her child. A period of six (6) months shall be allowed for the
biological parent(s) to reconsider any decision to relinquish his/her child for adoption
before the decision becomes irrevocable. Counseling and rehabilitation services shall
also be offered to the biological parent(s) after he/she has relinquished his/her child for
adoption.

Steps shall be taken by the Department to ensure that no hurried decisions are made
and all alternatives for the child's future and the implications of each alternative have
been provided.

(b) Prospective Adoptive Parent(s) – Counseling sessions, adoption fora and seminars,
among others, shall be provided to prospective adoptive parent(s) to resolve possible
adoption issues and to prepare him/her for effective parenting.

$!%
 (c) Prospective Adoptee – Counseling sessions shall be provided to ensure that he/she
understands the nature and effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.

Section 5. Location of Unknown Parent(s). – It shall be the duty of the Department or

the child-placing or child-caring agency which has custody of the child to exert all efforts to
locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as a
foundling and subsequently be the subject of legal proceedings where he/she shall be declared
abandoned.

Section 6. Support Services. – The Department shall develop a pre-adoption program

which shall include, among others, the above mentioned services.
ARTICLE III
ELIGIBILITY

Section 7. Who May Adopt. – The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
good moral character, has not been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children, at least sixteen (16) years older
than the adoptee, and who is in a position to support and care for his/her children in keeping
with the means of the family. The requirement of sixteen (16) year difference between the age
of the adopter and adoptee may be waived when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals:
Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that
he/she has been living in the Philippines for at least three (3) continuous years prior to the filing
of the application for adoption and maintains such residence until the adoption decree is
entered, that he/she has been certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as his/her adopted
son/daughter: Provided, Further, That the requirements on residency and certification of the
alien's qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse;
or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her
spouse a relative within the fourth (4th) degree of consanguinity or affinity of the
Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

$!&
 (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of
the other, joint parental authority shall be exercised by the spouses.

Section 8. Who May Be Adopted. – The following may be adopted:

(a) Any person below eighteen (18) years of age who has been administratively or
judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of

legitimacy;

(d) A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died: Provided, That no
proceedings shall be initiated within six (6) months from the time of death of said parent(s).

Section 9. Whose Consent is Necessary to the Adoption. – After being properly

counseled and informed of his/her right to give or withhold his/her approval of the adoption, the
written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living
with said adopter and the latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted.

$!'
 ARTICLE IV
PROCEDURE

Section 10. Hurried Decisions. – In all proceedings for adoption, the court shall require
proof that the biological parent(s) has been properly counseled to prevent him/her from making
hurried decisions caused by strain or anxiety to give up the child, and to sustain that all
measures to strengthen the family have been exhausted and that any prolonged stay of the
child in his/her own home will be inimical to his/her welfare and interest.

Section 11. Case Study. – No petition for adoption shall be set for hearing unless a
licensed social worker of the Department, the social service office of the local government unit,
or any child-placing or child-caring agency has made a case study of the adoptee, his/her
biological parent(s), as well as the adopter(s), and has submitted the report and
recommendations on the matter to the court hearing such petition.

At the time of preparation of the adoptee's case study, the concerned social worker shall
confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth of
the adoptee was not registered with the Civil Registry, it shall be the responsibility of the
concerned social worker to ensure that the adoptee is registered.

The case study on the adoptee shall establish that he/she is legally available for
adoption and that the documents to support this fact are valid and authentic. Further, the case
study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the
best interest of the child.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of
the case studies, that the petition should be denied. The case studies and other relevant
documents and records pertaining to the adoptee and the adoption shall be preserved by the

Department.
Section 12. Supervised Trial Custody. – No petition for adoption shall be finally
granted until the adopter(s) has been given by the court a supervised trial custody period for at
least six (6) months within which the parties are expected to adjust psychologically and
emotionally to each other and establish a bonding relationship. During said period, temporary
parental authority shall be vested in the adopter(s).

The court may motu proprio or upon motion of any party reduce the trial period if it finds
the same to be in the best interest of the adoptee, stating the reasons for the reduction of the
period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody
except for those enumerated in Sec. 7 (b) (i) (ii) (iii).

If the child is below seven (7) years of age and is placed with the prospective adopter(s)
through a pre-adoption placement authority issued by the Department, the prospective
adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the
adoptee is placed with the prospective adopter(s).

Section 13. Decree of Adoption. – If, after the publication of the order of hearing has
been complied with, and no opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the adopter(s), trial custody report and
the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and

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that the adoption would redound to the best interest of the adoptee, a decree of adoption shall
be entered which shall be effective as of the date the srcinal petition was filed. This provision
shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to
protect the interest of the adoptee. The decree shall state the name by which the child is to be
known.

Section 14. Civil Registry Record. – An amended certificate of birth shall be issued by
the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the
child of the adopter(s) by being registered with his/her surname. The srcinal certificate of birth
shall be stamped "cancelled" with the annotation of the issuance of an amended birth certificate
in its place and shall be sealed in the civil registry records. The new birth certificate to be issued
to the adoptee shall not bear any notation that it is an amended issue.
Section 15. Confidential Nature of Proceedings and Records. – All hearings in
adoption cases shall be confidential and shall not be open to the public. All records, books, and
papers relating to the adoption cases in the files of the court, the Department, or any other
agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for
purposes connected with or arising out of the adoption and will be for the best interest of the
adoptee, the court may merit the necessary information to be released, restricting the purposes
for which it may be used.

ARTICLE V
EFFECTS OF ADOPTION

Section 16. Parental Authority. – Except in cases where the biological parent is the
spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be

severed and the same shall then be vested on the adopter(s).

Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter
of the adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the
means of the family.

Section 18. Succession. – In legal and intestate succession, the adopter(s) and the
adoptee shall have reciprocal rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary
succession shall govern.

ARTICLE VI
RESCISSION OF ADOPTION

Section 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with

the assistance as
incapacitated, of guardian/counsel,
the Department if the
a minor or ifmay
adoption overbeeighteen (18)onyears
rescinded any of
of age but is
the following
grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c)
sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.

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 Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article
919 of the Civil Code.

Section 20. Effects of Rescission. – If the petition is granted, 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. The reciprocal rights and obligations of
the adopter(s) and the adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the
adoptee and restore his/her srcinal birth certificate.

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.

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.

ARTICLE VII
VIOLATIONS AND PENALTIES

Section 21. Violations and Penalties. – (a) The penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand
pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the
discretion of the court shall be imposed on any person who shall commit any of the following
acts:

(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper
material inducement, or other similar acts;

(ii) non-compliance with the procedures and safeguards provided by the law for
adoption; or

(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.

(b) Any person who shall cause the fictitious registration of the birth of a child under the
name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of
birth, and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty
thousand pesos (P50,000.00).

Any physician or nurse or hospital personnel who, in violation of his/her oath of office,
shall cooperate in the execution of the abovementioned crime shall suffer the penalties herein
prescribed and also the penalty of permanent disqualification.

Any person who shall violate established regulations relating to the confidentiality and
integrity of records, documents, and communications of adoption applications, cases, and
processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to

$!*
two (2) years, and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than
Ten thousand pesos (P10,000.00), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated offense
under this Article shall be imposed upon the principals of the attempt to commit any of the acts
herein enumerated. Acts punishable under this Article, when committed by a syndicate or where
it involves two (2) or more children shall be considered as an offense constituting child
trafficking and shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if carried out by
a group of three (3) or more persons conspiring and/or confederating with one another in
carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided,
shall be in addition to any other penalties which may be imposed for the same acts punishable
under other laws, ordinances, executive orders, and proclamations.

When the offender is an alien, he/she shall be deported immediately after service of
sentence and perpetually excluded from entry to the country.

Any government official, employee or functionary who shall be found guilty of violating
any of the provisions of this Act, or who shall conspire with private individuals shall, in addition
to the above-prescribed penalties, be penalized in accordance with existing civil service laws,
rules and regulations:Provided, That upon the filing of a case, either administrative or criminal,
said government official, employee, or functionary concerned shall automatically suffer
suspension until the resolution of the case.

Section 22. Rectification of Simulated Births. – A person who has, prior to the
effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided,
That the simulation of birth was made for the best interest of the child and that he/she has been

consistently
further, considered
That the andfortreated
application by of
correction that
theperson as his/herand
birth registration own son/daughter:
petition Provided,
for adoption shall
be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided,
finally, That such person complies with the procedure as specified in Article IV of this Act and
other requirements as determined by the Department.

ARTICLE VIII
FINAL PROVISIONS

Section 23. Adoption Resource and Referral Office. – There shall be established an
Adoption Resources and Referral Office under the Department with the following functions: (a)
monitor the existence, number, and flow of children legally available for adoption and
prospective adopter(s) so as to facilitate their matching; (b) maintain a nationwide information
and educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d)
generate resources to help child-caring and child-placing agencies and foster homes maintain
viability; and (e) do policy research in collaboration with the Intercountry Adoption Board and
other concerned agencies. The office shall be manned by adoption experts from the public and
private sectors.

Section 24. Implementing Rules and Regulations. – Within six (6) months from the
promulgation of this Act, the Department, with the Council for the Welfare of Children, the Office
of Civil Registry General, the Department of Justice, Office of the Solicitor General, and two (2)

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private individuals representing child-placing and child-caring agencies shall formulate the
necessary guidelines to make the provisions of this Act operative.

Section 25. Appropriations. – Such sum as may be necessary for the implementation
of the provisions of this Act shall be included in the General Appropriations Act of the year
following its enactment into law and thereafter.

Section 26. Repealing Clause. – Any law, presidential decree or issuance, executive
order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent
with the provisions of this Act is hereby repealed, modified, or amended accordingly.

Section 27. Separability Clause. – If any provision of this Act is held invalid or
unconstitutional, the other provisions not affected thereby shall remain valid and subsisting.

Section 28. Effectivity Clause. – This Act shall take effect fifteen (15) days following its
complete publication in any newspaper of general circulation or in the Official Gazette.

Approved: February 25, 1998

Appendix ―H‖

Republic Act No. 9523

AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND

DEVELOPMENT (DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR
ADOPTION" AS A PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR
THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE
KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043,
OTHERWISE KNOWN AS THE INTER-COUNTRY ADOPTION ACT OF 1995,
PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND YOUTH
WELFARE CODE, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Declaration of Policy. – It is hereby declared the policy of the State that
alternative protection and assistance shall be afforded to every child who is abandoned,
surrendered, or neglected. In this regard, the State shall extend such assistance in the most

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expeditious manner in the interest of full emotional and social development of the abandoned,
surrendered, or neglected child.

It is hereby recognized that administrative processes under the jurisdiction of the

Department of Social Welfare and Development for the declaration of a child legally available for
adoption of abandoned, surrendered, or neglected children are the most expeditious
proceedings for the best interest and welfare of the child.

Section. 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(1) Department of Social Welfare and Development (DSWD) is the agency charged to
implement the provisions of this Act and shall have the sole authority to issue the certification
declaring a child legally available for adoption.

(2) Child refers to a person below eighteen (18) years of age or a person over eighteen
(18) years of age but is unable to fully take care of him/herself or protect himself/herself from
abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental disability or
condition.

(3) Abandoned Child refers to a child who has no proper parental care or guardianship,
or whose parent(s) have deserted him/her for a period of at least three (3) continuous months,
which includes a founding.

(4) Neglected Child refers to a child whose basic needs have been deliberately
unattended or inadequately attended within a period of three (3) continuous months. Neglect
may occur in two (2) ways:

(a) There is physical neglect when the child is malnourished, ill-clad, and without proper
shelter. A child is unattended when left by himself/herself without proper provisions and/or
without proper supervision.

(b) There is emotional neglect when the child is maltreated, raped, seduced, exploited,
overworked, or made to work under conditions not conducive to good health; or is made to beg
in the streets or public places; or when children are in moral danger, or exposed to gambling,
prostitution, and other vices.

(5) Child Legally Available for Adoption refers to a child in whose favor a certification
was issued by the DSWD that he/she is legally available for adoption after the fact of
abandonment or neglect has been proven through the submission of pertinent documents, or
one who was voluntarily committed by his/her parent(s) or legal guardian.

(6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and
willingly relinquished parental authority to the DSWD or any duly accredited child-placement or
child-caring agency or institution.

(7) Child-caring agency or institution refers to a private non-profit or government agency

duly accredited by the DSWD that provides twenty-four (24) hour residential care services for
abandoned, neglected, or voluntarily committed children.

$##
 (8) Child-placing agency or institution refers to a private non-profit institution or
government agency duly accredited by the DWSD that receives and processes applicants to
become foster or adoptive parents and facilitate placement of children eligible for foster care or
adoption.

(9) Petitioner refers to the head or executive director of a licensed or accredited child-
caring or child-placing agency or institution managed by the government, local government unit,
non-governmental organization, or provincial, city, or municipal Social Welfare Development
Officer who has actual custody of the minor and who files a certification to declare such child
legally available for adoption, or, if the child is under the custody of any other individual, the
agency or institution does so with the consent of the child's custodian.

(10) Secretary refers to the Secretary of the DSWD or his duly authorized
representative.

(11) Conspicuous Place shall refer to a place frequented by the public, where by notice
of the petition shall be posted for information of any interested person.

(12) Social Case Study Report (SCSR) shall refer to a written report of the result of an
assessment conducted by a licensed social worker as to the social-cultural economic condition,
psychosocial background, current functioning and facts of abandonment or neglect of the child.
The report shall also state the efforts of social worker to locate the child's biological
parents/relatives.

Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and
sworn to before any person authorized by law to administer oaths. It shall contain facts
necessary to establish the merits of the petition and shall state the circumstances surrounding
the abandonment or neglect of the child.

The petition shall be supported by the following documents:

(1) Social Case Study Report made by the DSWD, local government unit, licensed or
accredited child-caring or child-placing agency or institution charged with the custody of the
child;

(2) Proof that efforts were made to locate the parent(s) or any known relatives of the
child. The following shall be considered sufficient:

(a) Written certification from a local or national radio or television station that the case
was aired on three (3) different occasions;

(b) Publication in one (1) newspaper of general circulation;

(c) Police report or barangay certification from the locality where the child was found or a
certified copy of a tracing report issued by the Philippine National Red Cross (PNRC), National
Headquarters (NHQ), Social Service Division, which states that despite due diligence, the child's
parents could not be found; and

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 (d) Returned registered mail to the last known address of the parent(s) or known
relatives, if any.

(3) Birth certificate, if available; and

(4) Recent photograph of the child and photograph of the child upon abandonment or
admission to the agency or institution.

Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the
regional office of the DSWD where the child was found or abandoned.

The Regional Director shall examine the petition and its supporting documents, if
sufficient in form and substance and shall authorize the posting of the notice of the petition
conspicuous place for five (5) consecutive days in the locality where the child was found.

The Regional Director shall act on the same and shall render a recommendation not
later than five (5) working days after the completion of its posting. He/she shall transmit a copy
of his/her recommendation and records to the Office of the Secretary within forty-eight (48)
hours from the date of the recommendation.

Section 5. Declaration of Availability for Adoption. – Upon finding merit in the

petition, the Secretary shall issue a certification declaring the child legally available for adoption
within seven (7) working days from receipt of the recommendation.

Said certification, by itself shall be the sole basis for the immediate issuance by the local
civil registrar of a foundling certificate. Within seven (7) working days, the local civil registrar
shall transmit the founding certificate to the National Statistic Office (NSO).

Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of
Appeals within five (5) days from receipt of the decision by the petitioner, otherwise the same
shall be final and executory.

Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child

and Voluntarily Committed Child. – The certificate declaring a child legally available for
adoption in case of an involuntarily committed child under Article 141, paragraph 4(a) and
Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three (3) months
following such involuntary commitment.

In case of voluntary commitment as contemplated in Article 154 of Presidential Decree

No. 603, the certification declaring the child legally available for adoption shall be issued by the
Secretary within three (3) months following the filing of the Deed of Voluntary Commitment, as
signed by the parent(s) with the DSWD.

Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily
committed a child may recover legal custody and parental authority over him/her from the
agency or institution to which such child was voluntarily committed when it is shown to the
satisfaction of the DSWD that the parent(s) or legal guardian is in a position to adequately
provide for the needs of the child:Provided, That, the petition for restoration is filed within (3)
months after the signing of the Deed of Voluntary Commitment.

$#%
 Section 8. Certification. – The certification that a child is legally available for adoption
shall be issued by the DSWD in lieu of a judicial order, thus making the entire process
administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that the
child is legally available in a domestic adoption proceeding, as provided in Republic Act No.
8552 and in an inter-country adoption proceeding, as provided in Republic Act No. 8043.

Section. 9. Implementing Rules and Regulations. – The DSWD, together with the
Council for Welfare of Children, Inter-Country Adoption Board, two (2) representatives from
licensed or accredited child-placing and child-caring agencies or institution, National Statistics
Office and Office of the Civil Registrar, is hereby tasked to draft the implementing rules and
regulations of this Act within sixty (60) days following its complete publication.

Upon effectivity of this Act and pending the completion of the drafting of the
implementing rules and regulations, petitions for the issuance of a certification declaring a child
legally available for adoption may be filled with the regional office of the DSWD where the child
was found or abandoned.

Section 10. Penalty. – The penalty of One hundred thousand pesos (P100,000.00) to
Two hundred thousand pesos (P200,000.00) shall be imposed on any person, institution, or
agency who shall place a child for adoption without the certification that the child is legally
available for adoption issued by the DSWD. Any agency or institution found violating any
provision of this Act shall have its license to operate revoked without prejudice to the criminal
prosecution of its officers and employees.

Violation of any provision of this Act shall subject the government official or employee
concerned to appropriate administrative, civil and/or criminal sanctions, including suspension

and/or dismissal from the government service and forfeiture of benefits.

Section 11. Repealing Clause. – Sections 2(c)(iii), 3(b), (e) and 8(a) of Republic Act
No. 8552, Section 3(f) of Republic Act No. 8043, Chapter 1 of Title VII, and VIII of Presidential
Decree No. 603 and any law, presidential decree, executive order, letter of instruction,
administrative order, rule, or regulation contrary to or inconsistent with the provisions of this Act
are hereby reprealed, modified or amended accordingly.

Section 12. Separability Clause. – If any provision of this Act is held invalid or
unconstitutional, the other provisions not affected thereby shall remain valid and subsisting.

Section 13. Effectivity. – This Act shall take effect fifteen (15) days following its
complete publication in two (2) newspapers of general circulation or in theOfficial Gazette.

Approved: March 12, 2009.

$#&
 Appendix ―I‖

REPUBLIC ACT NO. 8043

. AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY

ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES.

ARTICLE I
GENERAL PROVISIONS

Section 1. Short Title. — This Act shall be known as the "Inter-Country Adoption
Act of 1995."

Sec. 2. Declaration of Policy.— It is hereby declared the policy of the State

to provide every neglected and abandoned child with a family that will provide such child
with love and care as well as opportunities for growth and development. Towards this
end, efforts shall be exerted to place the child with an adoptive family in the
Philippines. However, recognizing that inter-country adoption may be considered as
allowing aliens not presently allowed by law to adopt Filipino children if such children
cannot be adopted by qualified Filipino citizens or aliens, the State shall take measures
to ensure that inter-country adoptions are allowed when the same shall prove beneficial
to the child's best interests, and shall serve and protect his/her fundamental rights.

Sec. 3. Definition of Terms.— As used in this Act. the term:

(a) Inter-country adoption refers to the socio-legal process of adopting a

Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is undertaken, and the decree of adoption is
issued outside the Philippines.

(b) Child means a person below fifteen (15) years of age unless sooner
emancipated by law.

(c) Department refers to the Department of Social Welfare and Development

of the Republic of the Philippines.

(d) Secretary refers to the Secretary of the Department of Social Welfare

and Development.

(e) Authorized and accredited agency refers to the State welfare agency or
a licensed adoption agency in the country of the adopting parents which provide
comprehensive social services and which is duly recognized by the Department.

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 (f) Legally-free child means a child who has been voluntarily or
involuntarily committed to the Department, in accordance with theChild and Youth
Welfare Code.

(g) Matching refers to the judicious pairing of the adoptive child and the
applicant to promote a mutually satisfying parent-child relationship.

(h) Board refers to the Inter-country Adoption Board.

ARTICLE II
THE INTER-COUNTRY ADOPTION BOARD

Sec. 4. The Inter-Country Adoption Board.— There is hereby created the

Inter-Country Adoption Board, hereinafter referred to as the Board to act as the central
authority in matters relating to inter-country adoption. It shall act as the policy-making
body for purposes of carrying out the provisions of this Act, in consultation and
coordination with the Department, the different child-care and placement agencies,
adoptive agencies, as well as non-governmental organizations engaged in child-care and
placement activities. As such, it shall:

(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale
or any other practice in connection with adoption which is harmful, detrimental, or
prejudicial to the child;

(b) Collect, maintain, and preserve confidential information about the child
and the adoptive parents;

(c) Monitor,
through authorized follow up,agency;
and accredited and facilitate completion of adoption of the child

(d) Prevent improper financial or other gain in connection with an adoption

and deter improper practices contrary to this Act;

(e) Promote the development of adoption services including post-legal

adoption;

(f) License and accredit child-caring/placement agencies and collaborate

with them in the placement of Filipino children;

(g) Accredit and authorize foreign adoption agency in the placement of

Filipino children in their own country; and

(h) Cancel the license to operate and blacklist the child-caring and
placement agency or adoptive agency involved from the accreditation list of the Board

upon a finding of violation of any provision under this Act.

Sec. 5. Composition of the Board.— The Board shall be composed of the
Secretary of the Department as ex officio Chairman, and six (6) other members to be
appointed by the President for a nonrenewable term of six (6) years:Provided, That there

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shall be appointed one (1) psychiatrist or psychologist, two (2) lawyers who shall have at
least the qualifications of a regional trial court judge, one (1) registered social worker and
two (2) representatives from non-governmental organizations engaged in child-caring
and placement activities. The members of the Board shall receive a per diem allowance
of One thousand five hundred pesos (P1,500) for each meeting attended by them:
Provided, further, That no compensation shall be paid for more than four (4) meetings a
month.

Sec. 6. Powers and Functions of the Board.— The Board shall have the
following powers and functions:

(a) to prescribe rules and regulations as it may deem reasonably necessary

to carry out the provisions of this Act, after consultation and upon favorable
recommendation of the different agencies concerned with the child-caring, placement,
and adoption;

(b) to set the guidelines for the convening of an Inter-country Adoption

Placement Committee which shall be under the direct supervision of the Board;

(c) to set the guidelines for the manner by which selection/matching of

prospective adoptive parents and adoptive child can be made;

(d) to determine a reasonable schedule of fees and charges to be exacted

in connection with the application for adoption;

(e) to determine the form and contents of the application for inter-country

adoption;
(g) to institute systems and procedures to prevent improper financial gain
in connection with adoption and deter improper practices which are contrary to this Act;

(h) to promote the development of adoption services, including post-legal

adoption services,

(i) to accredit and authorize foreign private adoption agencies which have
demonstrated professionalism, competence and have consistently pursued non-profit
objectives to engage in the placement of Filipino children in their own country:
Provided,
That such foreign private agencies are duly authorized and accredited by their own
government to conduct inter-country adoption: Provided, however, That the total number
of authorized and accredited foreign private adoption agencies shall not exceed one
hundred (100) a year;

(j) to take appropriate measures to ensure confidentiality of the records of

the child, the natural parents and the adoptive parents at all times;
(k) to prepare, review or modify, and thereafter, recommend to the
Department of Foreign Affairs, Memoranda of Agreement respecting inter-country
adoption consistent with the implementation of this Act and its stated goals, entered

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into, between and among foreign governments, international organizations and
recognized international non-governmental organizations;

(l) to assist other concerned agencies and the courts in the implementation
of this Act, particularly as regards coordination with foreign persons, agencies and other
entities involved in the process of adoption and the physical transfer of the child; and

(m) to perform such other functions on matters relating to inter-country

adoption as may be determined by the President.

ARTICLE III
PROCEDURE

Sec. 7. Inter-Country Adoption as the Last Resort.— The Board shall

ensure that all possibilities for adoption of the child under theFamily Code have been
exhausted and that inter-country adoption is in the best interest of the child. Towards
this end, the Board shall set up the guidelines to ensure that steps will be taken to place
the child in the Philippines before the child is placed for inter-country adoption:
Provided, however, That the maximum number that may be allowed for foreign adoption
shall not exceed six hundred (600) a year for the first five (5) years.

Sec. 8. Who May be Adopted.— Only a legally free child may be the subject
of inter-country adoption. In order that such child may be considered for placement, the
following documents must be submitted to the Board:

(a)Child study;

(b)Birth certificate/foundling certificate;

(c)Deed of voluntary commitment/decree of abandonment/death certificate

of parents;

(d)Medical evaluation /history;

(e)Psychological evaluation, as necessary; and

(f)Recent photo of the child.

Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently

residing abroad may file an application for inter-country adoption of a Filipino child if
he/she:

(a) is at least twenty-seven (27) years of age and at least sixteen (16) years
older than the child to be adopted, at the time of application unless the adopter is the
parent by nature of the child to be adopted or the spouse of such parent:

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 (b) if married, his/her spouse must jointly file for the adoption;

(c) has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the appropriate
counseling from an accredited counselor in his/her country;

(d) has not been convicted of a crime involving moral turpitude;

(e) is eligible to adopt under his/her national law;

(f) is in a position to provide the proper care and support and to give the
necessary moral values and example to all his children, including the child to be
adopted;

(g) agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules
and regulations issued to implement the provisions of this Act;

(h) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized and accredited agency
and that adoption is allowed under his/her national laws; and

(i) possesses all the qualifications and none of the disqualifications

provided herein and in other applicable Philippine laws.

Sec. 10. Where to File Application.— An application to adopt a Filipino

child shall be filed either with the Philippine Regional Trial Court having jurisdiction over
the child, or with the Board, through an intermediate agency, whether governmental or
an authorized and accredited agency, in the country of the prospective adoptive parents,
which application shall be in accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated by the Board.

The application shall be supported by the following documents written and

officially translated in English.

(a.) Birth certificate of applicant(s);

(b) Marriage contract, if married, and divorce decree, if applicable;

(c) Written consent of their biological or adoptive children above ten (10)
years of age, in the form of sworn statement;

(d) Physical, medical and psychological evaluation by a duly licensed

physician and psychologist;
(e) Income tax returns or any document showing the financial capability of
the applicant(s);

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 (f) Police clearance of applicant(s);

(g) Character reference from the local church/minister, the applicant's

employer and a member of the immediate community who have known the applicant(s)
for at least five (5) years; and

(h) Recent postcard-size pictures of the applicant(s) and his immediate

family;

The Rules of Court shall apply in case of adoption by judicial proceedings.

Sec. 11. Family Selection/Matching.— No child shall be matched to a

foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted
locally. The clearance, as issued by the Board, with the copy of the minutes of the
meetings, shall form part of the records of the child to be adopted. When the Board is
ready to transmit the Placement Authority to the authorized and accredited inter-country
adoption agency and all the travel documents of the child are ready, the adoptive
parents, or any one of them, shall personally fetch the child in the Philippines.

Sec. 12. Pre-adoptive Placement Costs.— The applicant(s) shall bear the
following costs incidental to the placement of the child;

(a) The cost of bringing the child from the Philippines to the residence of
the applicant(s) abroad, including all travel expenses within the Philippines and abroad;
and

(b) The cost of passport, visa, medical examination and psychological

evaluation required, and other related expenses.

Sec. 13. Fees, Charges and Assessments.— Fees, charges, and

assessments collected by the Board in the exercise of its functions shall be used solely
to process applications for inter-country adoption and to support the activities of the
Board.

Sec. 14. Supervision of Trial Custody.— The governmental agency or the

authorized and accredited agency in the country of the adoptive parents which filed the
application for inter-country adoption shall be responsible for the trial custody and the
care of the child. It shall also provide family counseling and other related services. The
trial custody shall be for a period of six (6) months from the time of placement. Only after
the lapse of the period of trial custody shall a decree of adoption be issued in the said
country a copy of which shall be sent to the Board to form part of the records of the
child.

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 During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency, which shall in turn
transmit a copy to the Board, a progress report of the child's adjustment. The progress
report shall be taken into consideration in deciding whether or not to issue the decree of
adoption.

The Department of Foreign Affairs shall set up a system by which Filipino

children sent abroad for trial custody are monitored and checked as reported by the
authorized and accredited inter-country adoption agency as well as the repatriation to
the Philippines of a Filipino child whose adoption has not been approved.

Sec. 15. Executive Agreements.— The Department of Foreign Affairs, upon

representation of the Board, shall cause the preparation of Executive Agreements with
countries of the foreign adoption agencies to ensure the legitimate concurrence of said
countries in upholding the safeguards provided by this Act.

ARTICLE IV
PENALTIES

Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the
conduct or carrying out of an illegal adoption, in violation of the provisions of this Act,
shall be punished with a penalty of imprisonment ranging from six (6) years and one (1)
day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000), but
not more than Two hundred thousand pesos (P200.000), at the discretion of the
court. For purposes of this Act, an adoption is illegal if it is effected in any manner
contrary to the provisions of this Act or established State policies, its implementing rules
and regulations, executive agreements, and other laws pertaining to adoption. Illegality
may be presumed from the following acts:

(1)consent for an adoption was acquired through, or attended by coercion,

fraud, improper material inducement;

(2)there is no authority from the Board to effect adoption;

(3)the procedures and safeguards placed under the law for adoption were
not complied with; and

(4)the child to be adopted is subjected to, or exposed to danger, abuse and

exploitation.

(b)Any person who shall violate established regulations relating to the

confidentiality and integrity of records, documents and communications of adoption
applications, cases and processes shall suffer the penalty of imprisonment ranging from
one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand
pesos (P5,000), but not more than Ten thousand pesos (P10,000), at the discretion of the
court.

$$#
 A penalty lower by two (2) degrees than that prescribed for the
consummated felony under this Article shall be imposed upon the principals of the
attempt to commit any of the acts herein enumerated.

Acts punishable under this Article, when committed by a syndicate or

where it involves two or more children shall be considered as an offense constituting
child trafficking and shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if

carried out by a group of three (3) or more persons conspiring and/or confederating with
one another in carrying out any of the unlawful acts defined under this Article.Penalties
as are herein provided shall be in addition to any other penalties which may be imposed
for the same acts punishable under other laws, ordinances, executive orders, and
proclamations.

Sec. 17. Public Officers as Offenders.— Any government official, employee

or functionary who shall be found guilty of violating any of the provisions of this Act, or
who shall conspire with private individuals shall, in addition to the above-prescribed
penalties, be penalized in accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either administrative or criminal,
said government official, employee or functionary concerned shall automatically suffer
suspension until the resolution of the case.

ARTICLE V
FINAL PROVISIONS

Sec. 18. Implementing Rules and Regulations.— T he Inter-country

Adoption Board, in coordination with the Council for the Welfare of Children, the

Department
agencies of Foreign
involved Affairs, and
in child-care andthe Department
placement, shallofpromulgate
Justice, after
thedue consultation
necessary rules with
and
regulations to implement the provisions of this Act within six (6) months after its
effectivity.

Sec. 19. Appropriations.— The amount of Five million pesos (P5,000,000)

is hereby appropriated from the proceeds of the Lotto for the initial operations of the
Board and subsequently the appropriations of the same shall be included in the General
Appropriations Act for the year following its enactment.

Sec. 20. Separability Clause.— If any provision, or part hereof is held

invalid or unconstitutional, the remainder of the law or the provision not otherwise
affected, shall remain valid and subsisting.

Sec. 21. Repealing Clause.— Any law, decree, executive order,

administrative order or rules and regulations contrary to, or inconsistent with the
provisions of this Act are hereby repealed, modified or amended accordingly.

Sec. 22. Effectivity Clause.— This Act shall take effect fifteen (15) days
after its publication in two (2) newspapers of general circulation.

$$$
 Approved: June 7, 1995

APPENDIX “J”

RULE ON ADOPTION
(A.M. No. 02-6-02-SC)

A. DOMESTIC ADOPTION

SECTION 1. Applicability of the Rule. – This Rule covers the domestic adoption of
Filipino children.
SEC. 2. Objectives. – (a) The best interests of the child shall be the paramount
consideration in all matters relating to his care, custody and adoption, in accordance with
Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration
on Social and Legal Principles Relating to the Protection and Welfare of Children with Special
Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague
Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.
(b) The State shall provide alternative protection and assistance through foster care or
adoption for every child who is a foundling, neglected, orphaned, or aband oned. To this end,
the State shall:
(i) ensure that every child remains under the care and custody of his parents and
is provided with love, care, understanding and security for the full and harmonious development
of his personality. Only when such efforts prove insufficient and no appropriate placement or
adoption within the child‟s extended family is available shall adoption by an unrelated person be
considered.
(ii) safeguard the biological parents from making hasty decisions in
relinquishing their parental authority over their child;
(iii) prevent the child from unnecessary separation from his biological parents;
(iv) conduct public information and educational campaigns to promote a positive
environment for adoption;
(v) ensure that government and private sector agencies have the capacity to
handle adoption inquiries, process domestic adoption applications and offer adoption-related
services including, but not limited to, parent preparation and post-adoption education and
counseling;
(vi) encourage domestic adoption so as to preserve the child‟s identity and
culture in his native land, and only when this is not available shall inter-country adoption be
considered as a last resort; and
(vii) protect adoptive parents from attempts to disturb their parental authority and
custody over their adopted child.
Any voluntary or involuntary termination of parental authority shall be administratively or
judicially declared so as to establish the status of the child as “legally available for
adoption” and
his custody transferred to the Department of Social Welfare and Development or to any duly
licensed and accredited child-placing or child-caring agency, which entity shall be authorized to
take steps for the permanent placement of the child.

SEC. 3. Definition of Terms. – For purposes of this Rule:

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 (a.) “Child” is a person below eighteen (18) years of age at the time of the filing of the
petition for adoption.

(b.)“A child legally available for adoption” refers to a child who has een
b voluntarily or
involuntarily committed to the Department or to a duly licensed and accredited child-placing or
child-caring agency, freed of the parental authority of his biological parents, or in case of
rescission of adoption, his guardian or adopter(s).

(c.) “Voluntarily committed child” is one whose parents knowingly and willingly relinquish
parental authority over him in favor ofthe Department.

(d.)“Involuntarily committed child” is one whose parents, known or unknown, have been
permanently and judicially deprived of parental authority over him due to abandonment;
substantial, continuous or repeated neglect andabuse; or incompetence to discharge parental
responsibilities.

(e.) “Foundling” refers to a deserted or abandoned infant or child whoseparents,

guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar
institution with unknown facts of birth and parentage and registered in the Civil Register as a
“foundling.”

(f.) “Abandoned child” refers to one whohas no proper parental care or guardianship or
whose parents have deserted him for a period of at least six (6) continuous months and has
been judicially declared as such.

(g.) Dependent child” refers to one who is without a parent, guardian or custodian
or one
whose parents, guardian or other custodian for good cause desires to be relieved of his care
and custody and is dependent upon the public for support.

(h.) “Neglected child” is one whose basic needs have been deliberately not attended to

or inadequately attended to, physically or emotionally, by his parents or guardian.

(i.) “Physical neglect” occurs when the child is malnourished, ill-clad and without proper
shelter.

(j.) “Emotional neglect” exists when a child is raped, seduced, maltreated, exploited,
overworked or made to work under conditions not conducive to good health or made to beg in
the streets or public places, or placed in moral danger, or exposed to drugs, alcohol, gambling,
prostitution and other vices.

(k.) “Child-placement agency” refers to an agency duly licensed and accredited by the
Department to provide comprehensive child welfare services including, but not limited to,
receiving applications for adoption, evaluating the prospective adoptive parents and preparing
the adoption home study report.

(l.) “Child-caring agency” refers to an agency duly licensed and accredited by the
Department that provides 24-hour residential care services for abandoned, orphaned, neglected
or voluntarily committed children.

(m.) “Department” refers to the Department of Social Welfare and Development.

(n.) “Deed of Voluntary Commitment” refers to the written and notarized instrument
relinquishing parental authority and committing the child to the care and custody of the

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Department executed by the child‟sbiological parents or in their absence, mental incapacity or
death, by the child‟s legal guardian, to b
e witnessed by an authorized representative of the
Department after counseling and other services have been made available to encourage the
biological parents to keep the child.

(o.) “Child Study Report” refers to a study made by the court social workerof the child‟s
legal status, placement history, psychological, social, spiritual, medical, ethno-cultural
background and that of his biological family needed indetermining the most appropriate
placement for him.

(p.) “Home Study Report” refers to a study made by the court social worker
of the
motivation and capacity of the prospective adoptive parents to provide a home that meets the
needs of a child.

(q.) “Supervised trial custody” refers to the period of time during which a social worker
oversees the adjustment and emotional readiness of both adopters and adoptee in stabilizing
their filial relationship.

(r.) “Licensed Social Worker” refers to one who p ossesses a degree in bachelor of
science in social work as a minimum educational requirement and who has passed the
government licensure examination for social workers as required by Republic Act No. 4373.

(s.) “Simulation of birth” is the tampering of the civil registry to make itappear in the birth
records that a certain child was born to a person who is not his biological mother, thus causing
such child to lose his true identity and status.

(t.) “Biological Parents” refer to the child‟s mother and father by nature.

(u.) Pre-Adoption Services” refer to psycho-social services provided by professionally-

trained social workers of the Department, the social services units of local governments, private

and government
placement health
agencies andfacilities, Family Courts,
other individuals licensed
or entities and accredited
involved in adoptionchild-cari
ng andby
as authorized child-
the
Department.

(v.) “Residence” meansa person‟s actual stay in the Philippines for three (3) continuous
years immediately prior to the filing of a petition for adoption and which is maintaineduntil the
adoption decree is entered. Temporary absences for professional, business, health, or
emergency reasons not exceeding sixty (60) days in one (1) year does not break the continuity
requirement.

(w.) “Alien” refers to any person, not a Filipino citizen, who enters and remains in the
Philippines and is in possession of a valid passport or travel documents and visa.

SEC. 4. Who may adopt. – The following may adopt:

(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal
rights, of good moral character, has not been convicted of any crime involving moral turpitude;
who is emotionally and psychologically capable of caring for children, at least sixteen (16) years
older than the adoptee, and who is in a position to support and care for his children in keeping
with the means of the family. The requirement of a 16-year difference between the ageof the

$$'
adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or
is the spouse of the adoptee‟s parent;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals:
Provided, That his country has diplomatic relations with the Republic of the Philippines, that he
has been living in the Philippines for at least three (3) continuous years prior to the filing of the
petition for adoption and maintains such residence until the adoption decree is entered, that he
has been certified by his diplomatic or consular office or any appropriate government agency to
have the legal capacity to adopt in his country, and that his government allows the adoptee to
enter his country as his adopted child. Provided, further, That the requirements on residency
and certification of the alien‟s qualification to adopt in his country may be waived for the

following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate child of his Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship
and clearance of his financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by
the other spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided,
however, That the other spouse has signified his consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child
of the other, joint parental authority shall be exercised by the spouses.

SEC. 5. Who may be adopted. – The following may be adopted:

(1) Any person below eighteen (18) years of age who has been voluntarily committed
to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared
available for adoption;
(2) The legitimate child of one spouse, by the other spouse;
(3) An illegitimate child, by a qualified adopter to raise the status of the former to that

of legitimacy;
(4.)A person of legal age regardless of civil status, if, prior to the adoption, said person
has been consistently considered and treated by the adopters as their own child since minority;
(5.) A child whose adoption has been previously rescinded; or

$$(
 (6.)A child whose biological or adoptive parents have died: Provided, That no
proceedings shall be initiated within six (6) months from the time of death of said parents.
(7.) A child not otherwise disqualified by law or these rules.

SEC. 6. Venue. – The petition for adoption shall be filed with the Family Court of the
province or city where the prospective adoptive parents reside.

SEC. 7. Contents of the Petition . – The petition shall be verified and specifically state at
the heading of the initiatory pleading whether the petition contains an application for change of
name, rectification of simulated birth, voluntary or involuntary commitment of children, or
declaration of child as abandoned, dependent or neglected.

(1.) If the
(a.)adopter is a Filipinofacts;
The jurisdictional citizen, the petition shall allege the following:

(b.)That the petitioner is of legal age, in possession of full civil capacity and legal
rights; is of good moral character; has not been convicted of any crime involving moral
turpitude; is emotionally and psychologically capable of caring for children; is at least
sixteen (16) years older than the adoptee, unless the adopter is the biological parent of
the adoptee or is the spouse of the adoptee‟s parent;and is in a position to support and
care for his children in keeping with the means of the family and has undergone pre-
adoption services as required by Section 4 of Republic Act No. 8552.

(2.) If the adopter is an alien, the petition shall allege the following:

(a.)The jurisdictional facts;

(b.) Sub-paragraph 1(b) above;

(c.)That his country has diplomatic relations with the Republic of the Philippines;

(d.)That he has been certified by his diplomatic or consular office or any

appropriate government agency to have the legal capacity to adopt in his country
and his government allows the adoptee to enter his country as his adopted child
and reside there permanently as an adopted child; and

(e.)That he has been living in the Philippines for at least three (3) continuous
years prior to the filing of the petition and he maintains such residence until the
adoption decree is entered.

The requirements of certification of the alien‟s qualification to adopt in his country and of
residency may be waived if the alien:
(i) is a former Filipino citizen whoseeks to adopt a relative within the fourth degree of
consanguinity or affinity; or
(ii) seeks to adopt the legitimate child ofhis Filipino spouse; or
(iii) is married to a Filipino citizen and seeks toadopt jointly with his spouse arelative
within the fourth degree of consanguinity or affinity of the Filipino spouse.

(3.) If the adopter is the legal guardian of the adoptee, the petition shall allege that
guardianship had been terminated and the guardian had cleared his financial accountabilities.

$$)
 (4.) If the adopter is married, the spouse shall be a co-petitioner for joint adoption except
if:

(a) one spouse seeks to adopt the legitimate child ofthe other, or
(b) if one spouse seeks to adopt his own illegitimate child and the other spouse
signified written consent thereto, or
(c) if the spouses are legally separated fromeach other.

(5.) If the adoptee is a foundling, the petition shall allege the entries which should appear
in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name
and citizenship of adoptive mother and father, and the date and place of their marriage.

(6.) If the petition prays for a change of name, it shall also state the cause or reason for
the change of name.

In all petitions, it shall be alleged:

(a) The first name, surname or names, age and residence of the adoptee as
shown by his record of birth, baptismal or foundling certificate and school records.
(b) That the adoptee is not disqualified by law to be adopted.
(c) The probable value and character of the estate of the adoptee.
(d) The first name, surname or names by which the adoptee is to be known and
registered in the Civil Registry.

A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of

the 1997 Rules of Civil Procedure.

Sec. 8. Rectification of Simulated Birth. – In case the petition also seeks rectification of
a simulated of birth, it shall allege that:

(a) Petitioner is applying for rectification of a simulated birth;

(b) The simulation of birth was made prior to the date of effectivity of
Republic Act No. 8552 and the application for rectification of the birth registration
and the petition for adoption were filed within five years f rom said date;
(c) The petitioner made the simulation of birth for the best interests of
the adoptee; and
(d) The adoptee has been consistently considered and treated by
petitioner as his own child.

SEC. 9. Adoption of a foundling, an abandoned, dependent or neglected child . – In

case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall
allege:

(a) The facts showing that the child is a foundling, abandoned,

dependent or neglected;
(b) The names of the parents, if known, and their residence. If the

child has ifno

guardian, known or living parents, then the name and residence of the
any;
(c) The name of the duly licensed child-placement agency or
individual under whose care the child is in custody; and

$$*
 (d) That the Department, child-placement or child-caring agency is
authorized to give its consent.

SEC. 10. Change of name. – In case the petition also prays for change of name, the
title or caption must contain:
(a) he registered name of the child;
(b) Aliases or other names by which the child has been known; and
(c) The full name by which the child is to be known.

SEC. 11. Annexes to the Petition . – The following documents shall be attached to the
petition:

A. Birth, baptismal or foundling certificate, as the case may be, and school records
showing the name, age and residence of the adoptee;

B. Affidavit of consent of the following:

1. The adoptee, if ten (10) years of age or over;
2. The biological parents of the child, if known, or the legal guardian, or the child-
placement agency, child-caring agency, or the proper government instrumentality
which has legal custody of the child;
3. The legitimate and adopted children of the adopter and of the adoptee, if any,
who are ten (10) years of age or over;
4. The illegitimate children of the adopter living with him who are ten (10) years of
age or over; and
5. The spouse, if any, of the adopter or adoptee.

C. Child study report on the adoptee and his biological parents;

D. If the petitioner is an alien, certification by his diplomatic or consular office or any

appropriate government agency that he has the legal capacity to adopt in his country
and that his government allows the adoptee to enter his country as his own adopted
child unless exempted under Section 4(2);

E.Home study report on the adopters. If the adopter is an alien or residing abroad but
qualified to adopt, the home study report by a foreign adoption agency duly
accredited by the Inter-Country Adoption Board; and

F. Decree of annulment, nullity or legal separation of the adopter as well as that of the
biological parents of the adoptee, if any.

SEC. 12. Order of Hearing. – If the petition and attachments are sufficient in form and
substance, the court shall issue an order which shall contain the following:

(1.) the registered name of the adoptee in the birth certificate and the names by which
the adoptee has been known which shall be stated in the caption;

(2.) the purpose of the petition;

(3.) the complete name which the adoptee will use if the petition is granted;

$%+
 (4.) the date and place of hearing which shall be set within six (6) months from the date
of the issuance of the order and shall direct that a copy thereof be published before the date of
hearing at least once a week for three successive weeks in a newspaper of general circulation
in the province or city where the court is situated; Provided, that in case of application for
change of name, the date set for hearing shall not be within four (4) months after the last
publication of the notice nor within thirty (30) days prior to an election.

The newspaper shall be selected by raffle under the supervision of the Executive Judge.

(5.) a directive to the social worker of the court, the social service office of the local
government unit or any child-placing or child-caring agency, or the Department to prepare and

submit childdue
the petition andtohome study reports
unavailability at thebefore the
time of hearing
the filing ofif the
suchlatter;
reports
andhad not been attached to

(6.) a directive to the social worker of the court to conduct counseling sessions with the
biological parents on the matter of adoption of the adoptee and submit her report before the
date of hearing.

At the discretion of the court, copies of the order of hearing shall also be furnished the
Office of the Solicitor General through the provincial or city prosecutor, the Department and the
biological parents of the adoptee, if known.
If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor
General shall be mandatory.

SEC. 13. Child and Home Study Reports . – In preparing the child study report on the
adoptee, the concerned social worker shall verify with the Civil Registry the real identity and
registered name of the adoptee. If the birth of the adoptee was not registered with the Civil
Registry, it shall be the responsibility of the social worker to register the adoptee and secure a
certificate of foundling or late registration, as the case may be.

The social worker shall establish that the child is legally available for adoption and the
documents in support thereof are valid and authentic, that the adopter has sincere intentions
and that the adoption shall inure to the best interests of the child.

In case the adopter is an alien, the home study report must show the legal capacity to
adopt and that his government allows the adoptee to enter his country as his adopted child in
the absence of the certification required under Section 7(b) of Republic Act No. 8552.

If after the conduct of the case studies, the social worker finds that there are grounds to
deny the petition, he shall make the proper recommendation to the court, furnishing a copy
thereof to the petitioner.

SEC. 14. Hearing. – Upon satisfactory proof that the order of hearing has been
published and jurisdictional requirements have been complied with, the court shall proceed to
hear the petition. The petitioner and the adoptee must personally appear and the former must
testify before the presiding judge of the court on the date set for hearing.

The court shall verify from the social worker and determine whether the biological parent
has been properly counseled against making hasty decisions caused by strain or anxiety to give
up the child; ensure that all measures to strengthen the family have been exhausted; and

$%!
ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and
interest.

SEC. 15. Supervised Trial Custody. – Before issuance of the decree of adoption, the
court shall give the adopter trial custody of the adoptee for a period of at least six (6) months
within which the parties are expected to adjust psychologically and emotionally to each other
and establish a bonding relationship. The trial custody shall be monitored by the social worker
of the court, the Department, or the social service of the local government unit, or the child-
placement or child-caring agency whichsubmitted and prepared the case studies. During said
period, temporary parental authority shall be vested in the adopter.

The court
the parties if it finds motu
may,that theproprio
same or upon
shall bemotion
for theofbest
any interests
party, reduce
of thethe period or
adoptee, exempt
stating the
reasons therefor.

An alien adopter however must complete the 6-month trial custody except the following:
a) a former Filipino citizen who seeks to adopt a relative within the fourth
(4th) degree of consanguinity or affinity; or
b) one who seeks to adopt the legitimate child of his Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to adopt jointly with his
or her spouse the latter‟s relative within the fourth (4th) degree of consanguinity or
affinity.

If the child is below seven (7) years of age and is placed with the prospective adopter
through a pre-adoption placement authority issued by the Department, the court shall order that
the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from
the date the adoptee is placed with him.

The social worker shall submit to the court a report on the result of the trial custody
within two weeks after its termination.

SEC. 16. Decree of Adoption . – If the supervised trial custody is satisfactory to the
parties and the court is convinced from the trial custody report and the evidence adduced that
the adoption shall redound to the best interests of the adoptee, a decree of adoption shall be
issued which shall take effect as of the date the srcinal petition was filed even if the petitioners
die before its issuance.

The decree shall:

A. State the name by which the child is to be known and registered;

B. Order:

1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of
the 15-day reglementary period within which to appeal;

2) the adopter to submit a certified true copy of the decree of adoption and the

certificate within
registered of finality
thirty to
(30)the Civil
daysfromRegistrar where
receipt of the the child
certificate was srcinally
of finality. In case
of change of name, the decree shall be submitted to the Civil Registrar where
the court issuing the same is situated
.

$%#
 (3.) the Civil Registrar of the place where the adoptee was registered:

a. to annotate on the adoptee‟s srcinal certifi cate of birth the decree

of adoption within thirty (30) days from receipt of the certificate of finality;

b. to issue a certificate of birth which shall not bear any notation that
it is a new or amended certificate and which shall show, among others, the
following: registry number, date of registration, name of child, sex, date of birth,
place of birth, name and citizenship of adoptive mother and father, and the date and
place of their marriage, when applicable;

which canc.be opened

to sealonly
the srcinal certificate
upon order of court
of the birth in the civil
which registry
issued records of
the decree
adoption; and

d. to submit to the court issuing the decree of adoption proof of

compliance with all the foregoing within thirty days from receipt of the decree.

If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling
was registered, to annotate the decree of adoption on the foundling certificate and a new birth
certificate shall be ordered prepared by the Civil Registrar in accordance with the decree.

SEC. 17. Book of Adoptions . – The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each case, compliance by the Civil Registrar with
Section 16(B)(3) and all incidents arising after the issuance of the decree.

SEC. 18. Confidential Nature of Proceedings and Records . – All hearings in adoption
cases, after compliance with the jurisdictional requirements shall be confidential and shall not be
open to the public. All records, books and papersrelating to the adoption cases inthe files of
the court, the Department, or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for
security reasons or for purposes connected with or arising out of the adoption and will be for the
best interests of the adoptee, the court may, upon proper motion, order the necessary
information to be released, restricting the purposes for which it may be used.

SEC. 19. Rescission of Adoption of the Adoptee . – The petition shall be verified and
filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the
Department, if he is a minor, or if he is over eighteen (18) years of age but is incapacitated, by
his guardian or counsel.
The adoption may be rescinded based on any of the following grounds committed by the
adopter:
1) repeated physical and verbal maltreatment by the adopter despite having
undergone counseling;
2) attempt on the life of the adoptee;

3)
4) sexual assaultor
abandonment orfailure
violence; or
to comply with parental obligations.

$%$
 Adoption, being in the best interests of the child, shall not be subject to rescission by the
adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of
the Civil Code.

SEC. 20. Venue. – The petition shall be filed with the Family Court of the city or
province where the adoptee resides.

SEC. 21. Time within which to file petition . – The adoptee, if incapacitated, must file the
petition for rescission or revocation of adoption within five (5) years after he reaches the age of
majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery
from such incompetency.

SEC. 22. Order to Answer. – The court shall issue an order requiring the adverse party
to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and
copy of the petition shall be served on the adverse party in such manner as the court may
direct.

SEC. 23. Judgment. – If the court finds that the allegations of the petition are true, it
shall render judgment ordering the rescission of adoption, with or without costs, as justice
requires.
The court shall order that the parental authority of the biological parent of the adoptee, if
known, or the legal custody of the Department shall be restored if the adoptee is still a minor or
incapacitated and declare that the reciprocal rights and obligations of the adopter and the
adoptee to each other shall be extinguished.
The court shall further declare that successional rights shall revert to its status prior to
adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to
judicial rescission shall be respected.
It shall also order the adoptee to use the name stated in his srcinal birth or foundling
certificate.
The court shall further order the Civil Registrar where the adoption decree was
registered to cancel the new birth certificate of the adoptee and reinstate his srcinal birth or
foundling certificate.

SEC. 24. Service of Judgment. – A certified true copy of the judgment together with a
certificate of finality issued by the Branch Clerk of the Court which rendered the decision in
accordance with the preceding Section shall be served by the petitioner upon the Civil Registrar
concerned within thirty (30) days from receipt of the certificate of finality. The Civil Registrar
shall forthwith enter the rescission decree in the register and submit proof of compliance to the
court issuing the decree and the Clerk of Court within thirty (30) days from receipt of the decree.
The Clerk of Court shall enter the compliance in accordance with Section 17 hereof.

SEC. 25. Repeal. - This supersedes Rule 99 onAdoption and Rule 100 of the Rules of
Court.

B. INTER-COUNTRY ADOPTION

SEC. 26. Applicability. – The following sections apply to inter-country adoption of

Filipino children by foreign nationals and Filipino citizens permanently residing abroad.

$%%
 SEC. 27. Objectives. – The State shall:

a.) consider inter-country adoption as an alternative means of child care, if the child
cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared
for in the Philippines;
b) ensure that the child subject ofinter-country adoption enjoys the same protection
accorded to children in domestic adoption; and

c) take all measures to ensure thatthe placement arising therefromdoes not result in
improper financial gain for those involved.

SEC. 28. Where to File Petition. – A verified petition to adopt a Filipino child may be
filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court
having jurisdiction over the place where the child resides or may be found.

.
It may be filed directly with the Inter-Country Adoption Board

SEC. 29. Who may be adopted. – Only a child legally available for domestic adoption
may be the subject of inter-country adoption.

SEC. 30. Contents of Petition . – The petitioner must allege:

a.) his age and the age of the child to be adopted, showing that heis at least
twenty-seven (27) years of age and at least sixteen (16) years older than the child to be
adopted at the time of application, unless the petitioner is the parent by nature of the
child to be adopted or the spouse of such parent, in which case the age difference does
not apply;
b.)if married, the name of the spouse who must be joined as co-petitioner except
when the adoptee is a legitimate child of his spouse;
c.) that he has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the appropriate
counseling from an accredited counselor in his country;

d.) that he has not been convicted of a crime involving moral turpitude;

e.) that he is eligible to adopt under his national law;

f.) that he can provide the proper care and support and instill the necessary
moral values and example to all his children, including the child to be adopted;

g.) that he agrees to uphold the basic rights of the child, as embodied under
Philippine laws and the U. N. Convention on the Rights of the Child, and to abide by the
rules and regulations issued to implement the provisions of Republic Act No. 8043;

h.) that he comes from a country with which the Philippines has diplomatic
relations and whose government maintains a similarly authorized and accredited agency
and that adoption of a Filipino child is allowed under his national laws; and
i.)that he possesses all the qualifications and none of the disqualifications

$%&
 provided in this Rule, in Republic Act No. 8043 and in allother applicable Philippine
laws.

SEC. 31. Annexes. - The petition for adoption shall contain ht e following annexes
written and officially translated in English:

a) Birth certificate of petitioner;

b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment
dissolving the marriage;
c) Sworn statement of consent of petitioner‟s biological or adopted children above
ten (10) years of age;
d) Physical, medical and psychological evaluation of the petitioner certified by a
duly licensed physician and psychologist;
e) Income tax returns or any authentic document showing the current financial
capability of the petitioner;
f) Police clearance of petitioner issued within six (6) months before the filing of the
petitioner;
g) Character reference from the local church/minister, the petitioner‟s employer and
a member of the immediate community who have known the petitioner for at least five (5) years;
h) Full body postcard-size pictures of the petitioner and his immediate family taken
at least six (6) months before the filing of the petition.

SEC. 32. Duty of Court. – The court, after finding that the petition is sufficient in form
and substance and a proper case for inter-country adoption, shall immediately transmit the
petition to the Inter-Country Adoption Board for appropriate action.

SEC. 33. Effectivity. - This Rule shall takeeffect on August 22, 2002 following its
publication in a newspaper of general circulation.

APPENDIX ―K‖

[REPUBLIC ACT NO. 7610]

AN ACT PROVIDING FOR STRONGER DETERRENCE AND

SPECIAL PROTECTION AGAINST CHILD ABUSE,

EXPLOITATION AND DISCRIMINATION, PROVIDING

$%'
 PENALTIES FOR ITS VIOLATION, AND FOR OTHER

PURPOSES

Be it enacted by the Senate and House of Representatives of

the Philippines in Congress assembled:

ARTICLE I

TITLE, POLICY, PRINCIPLES AND DEFINITION OF TERMS

SECTION 1. Title. - This Act shall be known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."

SEC. 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy
of the State to provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their development; provide
sanctions for their commission and carry out a program for prevention and deterrence of and
crisis intervention in situations of child abuse, exploitation and discrimination.

The State shall intervene on behalf of the child when the parent, guardian, teacher or
person having care or custody of the child fails or is unable to protect the child against abuse,
exploitation and discrimination or when such acts against the child are committed by the said
parent, guardian, teacher or person having care and custody of the same.

It shall be the policy of the State to protect and rehabilitate children gravely threatened or
endangered by circumstances which affect or will affect their survival and

normal development and over which they have no control.

The best interests of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities, and legislative bodies, consistent with the principle of First Call
for Children as enunciated in the United Nations Convention on the Rights of the Child. Every

$%(
effort shall be exerted to promote the welfare of children and enhance their opportunities for a
useful and happy life.

SEC. 3. Definition of Terms. -

(a) "Children" refers to persons below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition;

(b) "Child abuse" refers to the maltreatment, whetherhabitual or not, of the child which
includes any of thefollowing:

(1) Psychological and physical abuse, neglect, cruelty,sexual abuse and

emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a humanbeing;

(3) Unreasonable deprivation of his basic needs forsurvival, such as food and
shelter; or

(4) Failure to immediately give medical treatment to an injured child

resulting in serious impairment of his growthand development or in his permanent
incapacity or death.

(c) "Circumstances which gravely threaten or endanger the survival and normal
development of children" include, but are not limited to, the following:

(1) Being in a community where there is armed connect or being affected by

armed conflict-related activities;

(2) Working under conditions hazardous to life, safety andmorals which unduly

interfere with their normal development;

$%)
 (3) Living in or fending for themselves in the streets of urban or rural areas
without the care of parents or a guardian or any adult supervision needed for
their welfare;

(4) Being a member of an indigenous cultural community and/or living under

conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has
inadequate access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogousto those above stated which endanger the life,
safety or normal development of children.

(d) Comprehensive program against child abuse, exploitation and discrimination" refers
to the coordinated program of services and facilities to protect children against:

(1) Child prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows,

(4) Other acts of abuse; and

(5) Circumstances which threaten or endanger the survival

and normal development of children.

ARTICLE II

PROGRAM ON CHILD ABUSE,

EXPLOITATION AND DISCRIMINATION

SEC. 4. Formulation of the Program. - There shall bea comprehensive program to be

formulated by the Department of Justice and the Department of Social Welfare and
Development in coordination with other government agencies and private sector concerned,
within one (1) year from the effectivity of this Act, to protect children against child prostitution

$%*
and other sexual abuse; child trafficking; obscene publications and indecent shows; other acts
of abuse; and circumstances which endanger child survival and normal development.

ARTICLE III

CHILD PROSTITUTION AND OTHER SEXUAL ABUSE

SEC. 5. Child Prostitution and Other Sexual Abuse. -Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.The penalty of reclusion temporal in its
medium period to reclusion perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include,
but are not limited to, thefollowing:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute

by means of written or oral advertisements or other similar

means;

(3) Taking advantage of influence or relationship to

procure a child is a prostitute;

(4) Threatening or using violence towards a child to engage

him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary

Benefit to a child with the intent to engage such child in

prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code,

$&+
for rape or lascivious conduct. as the case maybe: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; and

(c) Those who derive profit or advantage there from, whether as manager or owner of
the establishment where the prostitution take place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which engages in prostitution in addition to
the activity for which the license has been issued to said establishment.

SEC. 6. Attempt to Commit Child Prostitution. - There is an attempt to commit child

prostitution under Section 5,paragraph (a) hereof when any person who, not being a relative of
a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel,
motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other
hidden or secluded area under circumstances which would lead a reasonable person to believe
that the child is about to be exploited in prostitution and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5
hereof when any person is receiving services from a child in a sauna parlor or bath, massage
clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that
prescribed for the consummated felony under Section 5 hereof shall be imposed upon the
principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper
case, under the Revised Penal Code.

ARTICLE IV

CHILD TRAFFICKING

SEC. 7. Child Trafficking. - Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and selling of a child for money, or for any
other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its maximum period when thevictim is under twelve
(12) years of age.

SEC. 8. Attempt to Commit Child Trafficking. - There is an attempt to commit child

trafficking under Section 7 of this Act:

$&!
 (a) When a child travels alone to a foreign country without valid reason therefore and
without clearance issued by the Department of Social Welfare and Development or written
permit or justification from the child's parents or legal guardian;

(b) When a pregnant mother executes an affidavit of consent for adoption for a
consideration;

(c) When a person, agency, establishment or child-caring institution recruits women or

couples to bear children for the purpose of child trafficking;

(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil
registrar or any other person simulates birth for the purpose of child trafficking; or

(e) When a person engages in the act of finding children among low-income families,
hospitals, clinics, nurseries, day-care centers, or other child-caring institutions who can be
offered for the purpose of child trafficking.

A penalty lower by two (2) degrees than that prescribed for the consummated felony
under Section 7 hereof shall be imposed upon the principals of the attempt to commit child
trafficking under this Act.

ARTICLE V

OBSCENE PUBLICATIONS AND INDECENT SHOWS

SEC. 9. Obscene Publications and Indecent Shows.– Any person who shall hire,
employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent
shows, whether live or in video, pose, or model in obscene publications or pornographic
materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its
medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of
age, the penalty shall be imposed in its maximum period.

$&#
 Any ascendant, guardian, or person entrusted in any capacity with the care of a child
who shall cause and/or allow such child to be employed or to participate in anobscene play,
scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of
prision mayor in its medium period.

ARTICLE VI

OTHER ACTS OF ABUSE

SEC. 10. Other Acts of Neglect, Abuse, or Exploitation and Other Conditions Prejudicial
to the Child Development.

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the child's development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum
period.

(b) Any person who shall keep or have in his company a minor, twelve (12) years or
under or who is ten (10) years or more his junior in any public or private place, hotel, motel, beer
joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist
resort or similar places shall suffer the penalty of prision mayor in its

maximum period and a fine of not less than Fifty thousand pesos (P5O,00): Provided, That this
provision shall not apply to any person who is related within the fourth degree of consanguinity
or affinity or any bond recognized by law, local custom and tradition, or acts in the performance
of asocial, moral or legal duty.

(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act
to keep or have in his company a minor as provided in the preceding paragraph shall suffer the
penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos
(P40,000):Provided, however, That should the perpetrator be an

ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision
mayor in its maximum period, a fine of not less than Fifty thousand pesos (P 50,000), and the
loss of parental authority over the minor.

$&$
 (d) Any person, owner, manager or one entrusted with the operation of any public or
private place of accommodation, whether for occupancy, food, drink or otherwise, including
residential places, who allows any person to take along with him to such place or places any
minor herein described shall be imposed a penalty of prision mayor in its medium period and a
fine of not less than Fifty thousand pesos (P50,000),and the loss of the license to operate such
a place or establishment.

(e) Any person who shall use, coerce, force or intimidate a street child or any other child
to:

(1) Beg or use begging as a means of living;

(2) Act as conduit or middlemen in drug trafficking or

pushing; or

(3) Conduct any illegal activities, shall suffer the

penalty of prision correccional in its medium period to

reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable under
Articles 248, 249, 262, paragraph 2,and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and
serious physical injuries, respectively, shall be reclusion perpetua when the victim is under
twelve (12) years of age. The penalty for the commission of acts punishable under Articles 337,
339, 340and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of
minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by
law when the victim is under twelve (12) years of age.

The victim of the acts committed under this section shall be entrusted to the care of the
Department of Social Welfare and Development.

ARTICLE VII

SANCTIONS FOR ESTABLISHMENTS OR ENTERPRISES

$&%
 SEC. 11. Sanctions for Establishments or Enterprises which Promote, Facilitate, or
Conduct Activities Constituting Child Prostitution and Other Sexual Abuse, Child Trafficking
Obscene Publications and Indecent Shows, and Other Acts of Abuse. - All establishments and
enterprises which promote or facilitate child prostitution and other sexual abuse, child trafficking,
obscene publications and indecent shows, and other acts of abuse shall be immediately closed
and their authority or license to operate cancelled, without prejudice to the owner or manager
thereof being prosecuted under this Act and/or the Revised Penal Code, as amended, or special
laws. A sign with the words "off limits" shall be conspicuously displayed outside the
establishments or enterprises by the Department of Social Welfare and Development for such
period which shall not be less than one(1) year, as the Department may determine. The
unauthorized removal of such sign shall be punishable by prision correccional.

An establishment shall be deemed to promote or facilitate child prostitution and other

sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of
abuse if the acts constituting the same occur in the premises of said establishment under this
Act or in violation of the Revised Penal Code, as amended. An enterprise such as a sauna,
travel agency, or recruitment agency which: promotes the aforementioned acts as part of a tour
for foreign tourists; exhibits children in a lewd or indecent show; provides child masseurs for
adults of the same or opposite sex and said services include any lascivious conduct with the
customer; or solicits children for activities constituting the aforementioned acts shall be deemed
to have committed the

acts penalized herein.

ARTICLE VIII

WORKING CHILDREN

SEC. 12. Employment of Children. - Children below fifteen(15) years of age may be
employed: Provided, That, thefollowing minimum requirements are present:

(a) The employer shall secure for the child a work permitfrom the Department of Labor
and Employment;

(b) The employer shall ensure the protection, health,safety and morals of the child;

(c) The employer shall institute measures to preventexploitation or discrimination taking

into account the systemand level of remuneration, and the duration and arrangementof working
time; and

$&&
 (d) The employer shall formulate and implement a continuous program for training and
skill acquisition of the child.

The Department of Labor and Employment shall promulgate rules and regulations
necessary for the effective implementation of this section.

CultureSEC. 13. Non-formal

and Sports Education
shall promulgate for Working
a course designChildren.
– The
under its Department
non-formal of Education,
education program
aimed at promoting the intellectual, moral and vocational efficiency of working children who
have not undergone or finished elementary or secondary education. Such course design shall
integrate the learning process deemed most effective under given circumstances.

SEC. 14. Prohibition on the Employment of Children in Certain Advertisement. - No

person shall employ child models in all commercials or advertisements promoting alcoholic
beverages, intoxicating drinks, tobacco and its by products, and violence.

SEC. 15. Duty of Employer. - Every employer shall comply with the duties provided for in
Articles 108 and 109 of Presidential Decree No. 603.

SEC. 16. Penalties. - Any person who shall violate any provision of this Article shall
suffer the penalty of a fine of not less than One thousand pesos (P1,000) but not more than Ten
thousand pesos (P10,000) or imprisonment of not less than three (3) months but not more than
three (3) years, or both at the discretion of the court: Provided, That, in case ofrepeated
violations of the provisions of this Article, the offender's license to operate shall be revoked.

ARTICLE IX

CHILDREN OF INDIGENOUS CULTURAL COMMUNITIES

SEC. 17. Survival, Protection and Development. - In addition to the rights guaranteed to
children under this Act and other existing laws, children of indigenous cultural communities shall
be entitled to protection, survival and development consistent with the customs and traditions of
their respective communities.

$&'
 SEC. 18. System of and Access to Education. – The Department of Education, Culture
and Sports shall develop and institute an alternative system of education for children of
indigenous cultural communities which is culture-specific and relevant to the needs and the
existing situation in their communities. The Department of Education, Culture and Sports shall
also accredit and support non-formal but functional indigenous educational programs conducted
by non-governmental organizations in said communities.

SEC. 19. Health and Nutrition. - The delivery of basic social services in health and
nutrition to children of indigenous cultural communities shall be given priority by all government
agencies concerned. Hospitals and other health institutions shall ensure that children of
indigenous cultural communities are given equal attention. In the provision of health and
nutrition services to children of indigenous cultural communities, indigenous health practices
shall be respected and recognized.

SEC. 20. Discrimination. - Children of indigenous cultural communities shall not be

subjected to any and all forms of discrimination.

Any person who discriminates against children of indigenous cultural communities shall
suffer a penalty of arresto mayor in its maximum period and a fine of not less than Five
Thousand Pesos (P5,000) not more than Ten thousand pesos(P10,000).

SEC. 21. Participation. - Indigenous cultural communities, through their duly-designated

or appointed representatives shall be involved in planning, decision-making,

implementation, and evaluation of all government programs affecting children of indigenous

cultural communities. Indigenous institutions shall also be recognized and

respected.

ARTICLE X

CHILDREN IN SITUATIONS OF ARMED CONFLICT

SEC. 22. Children as Zones of Peace. - Children are hereby declared as Zones of
Peace. It shall be the responsibility of the State and all other sectors concerned to resolve
armed conflicts in order to promote the goal of children as zones of peace. To attain this
objective, the following policies shall be observed:

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 (a) Children shall not be the object of attack and shall been titled to special respect.
They shall be protected from any form of threat, assault, torture or other cruel, inhumane or
degrading treatment;

(b) Children shall not be recruited to become members of the Armed Forces of the
Philippines or its civilian units or other armed groups, nor be allowed to take part in the fighting,
or used as guides, couriers, or spies;

(c) Delivery of basic social services such as education, primary health and emergency
relief services shall be kept unhampered;

(d) The safety and protection of those who provide services including those involved in
fact-finding missions from both government and nongovernment institutions shall be ensured.
They shall not be subjected to undue harassment in the performance of their work;

(e) Public infrastructure such as schools, hospitals and rural health units shall not be
utilized for military purposes such as command posts, barracks, detachments, and supply
depots; and

(f) All appropriate steps shall be taken to facilitate the reunion of families temporarily
separated due to armed conflict.

SEC. 23. Evacuation of Children During Armed Conflict. Children shall be given priority
during evacuation as a result of armed conflict. Existing community organizations shall be
tapped to look after the safety and well-being of children during evacuation operations.
Measures shall be taken to ensure that children evacuated are accompanied by persons
responsible for their safety and well-being.

SEC. 24. Family Life and Temporary Shelter.– Whenever possible, members of the
same family shall be housed in the same premises and given separate accommodation from
other evacuees and provided with facilities to lead a normal family

life. In places of temporary shelter, expectant and nursing mothers and children shall be given
additional food in proportion to their physiological needs. Whenever feasible, children shall be
given opportunities for physical exercise, sports and outdoor games.

$&)
 SEC. 25. Rights of Children Arrested for Reasons Related to Armed Conflict. - Any child
who has been arrested for reasons related to armed conflict, either as combatant, courier, guide
or spy is entitled to the following rights:

(a) Separate detention from adults except where familiesarc accommodated as family
units;

(b) Immediate free legal assistance;

(c) Immediate notice of such arrest to the parents orguardian of the child; and

(d) Release of the child on recognizance within twenty-four (24) hours to the custody of
the Department of Social Welfare and Development or any responsible member of the
community as determined by the court.

If after hearing the evidence in the proper proceedings the court should find that the
aforesaid child has committed the acts charged against him, the court shall determine the
imposable penalty, including any civil liability chargeable against him. However, i nstead of
pronouncing judgment of conviction, the court shall suspend all further proceedings and shall
commit such child to the custody or care of the Department of Social Welfare and Development
or to any training institution operated by the Government, or duly-licensed agencies or any other
responsible person, until he has had reached eighteen (18) years of age or, for a shorter period
as the court may deem proper, after considering the reports and recommendations of the
Department of Social Welfare and Development or the agency or responsible individual under
whose care he has been committed.

The aforesaid child shall be subject to visitation and supervision by a representative of

the Department of Social Welfare and Development or any duly-licensed agency or such other
officer as the court may designate subject tosuch conditions as it may prescribe.

The aforesaid child whose sentence is suspended can appeal from the order of the court
in the same manner as appeals in criminal cases.

SEC. 26. Monitoring and Reporting of Children in Situations of Armed Conflict. - The
chairman of the barangay affected by the armed conflict shall submit the names of children
residing in said barangay to the municipal social welfare and development officer within twenty-
four (24) hours from the occurrence of the armed conflict.

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 ARTICLE XI

REMEDIAL PROCEDURES

SEC. 27. Who May File a Complaint. - Complaints on cases of unlawful acts committed
against children as enumerated herein may be filed by the following:

(a) Offended party;

(b) Parents or guardians;

(c) Ascendant or collateral relative within the third

degree of consanguinity;

(d) Officer, social worker or representative of a licensed

child-caring institution;

(e) Officer or social worker of the Department of Social

Welfare and Development;

(f) Barangay chairman; or

(g) At least three (3) concerned, responsible citizens

where the violation occurred.

SEC. 28. Protective Custody of the Child. - The offended party shall be immediately
placed under the protective custody of the Department of Social Welfare and Development
pursuant to Executive Order No. 56, series of 1986. In the regular performance of this function,
the officer of the Department of Social Welfare and Development shall be free from any
administrative, civil or criminal liability. Custody proceedings shall be in accordance with the
provisions of Presidential Decree No. 603.

SEC. 29. Confidentiality. - At the instance of the offended party, his name may be
withheld from the public until the court acquires jurisdiction over the case. It shall be unlawful for
any editor, publisher, and reporter or columnist in case of printed materials, announcer or
producer in case of television and radio broadcasting, producer and director of the film in case
of the movie industry, to cause undue and sensationalized publicity of any case of violation of
this Act which results in the moral degradation and suffering of the offended party.

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 SEC. 30. Special Court Proceedings. - Cases involving violations of this Act shall be
heard in the chambers of the judge of the Regional Trial Court duly designated as Juvenile and
Domestic Relations Court. Any provision of existing law to the contrary notwithstanding and with
the exception of habeas corpus, election cases, and cases involving detention prisoners and
persons covered by Republic Act No. 4908, all courts shall give preference to the hearing or
disposition of cases involving violations of this Act.

ARTICLE XII

COMMON PENAL PROVISIONS

SEC. 31. Common Penal Provisions. –

(a) The penalty provided under this Act shall be imposed in its maximum period if the
offender has been previously convicted under this Act;

(b) When the offender is a corporation, partnership or association, the officer or

employee thereof who is responsible for the violation of this Act shall suffer the penalty imposed
in its maximum period;

(c) The penalty provided herein shall be imposed in its maximum period when the
perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second
degree of consanguinity or affinity, or a manager or owner of an establishment which has no
license to operate or its license has expired or has been revoked;

(d) When the offender is a foreigner, he shall be deported immediately after service of
sentence and forever barred from entry to the country; (e) The penalty provided for in this Act
shall be imposed in its maximum period if the offender is a public officer or employee: Provided,
however, That if the penalty imposed is reclusion perpetua or reclusion temporal, then the
penalty of perpetual or temporary absolute disqualification shall also be imposed: Provided,
finally, That if the penalty imposed is prision correccional or arresto mayor, the penalty of
suspension shall also be imposed; and(f) A fine to be determined by the court shall be imposed
and administered as a cash fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of each child victim, or any immediate member of his family if the
latter is the perpetrator of the offense.

$'!
 ARTICLE XIII

FINAL PROVISIONS

SEC. 32. Rules and Regulations. - Unless otherwise provided in this Act, the
Department of Justice, in coordination with the Department of Social Welfare and Development,
shall promulgate rules and regulations for the effective implementation of this Act. Such rules
and regulations shall take effect upon their publication in two (2) national newspapers of general
circulation.

SEC. 33. Appropriations. - The amount necessary to carry out the provisions of this Act
is hereby authorized to be appropriated in the General Appropriations Act of the year following
its enactment into law and thereafter.

SEC. 34. Separability Clause. - If any provision of this Act is declared invalid or
unconstitutional, the remaining provisions not affected thereby shall continue in full force

and effect.

SEC. 35. Repealing Clause. - All laws, decrees, or rules inconsistent with the provisions
of this Act are hereby repealed or modified accordingly.

SEC. 36. Effectivity Clause. - This Act shall take effect upon completion of its publication
in at least two (2) national newspapers of general circulation.

Appendix ―L‖

Republic Act No. 9255

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME

OF THEIR FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF
EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE "FAMILY
CODE OF THE PHILIPPINES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

$'#
 SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family
Code of the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has
been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is
made by the father. Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child."

SECTION 2. Repealing Clause. – All laws, presidential decrees, executive orders,

proclamations, rules and regulations, which are inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.

SECTION 3. Effectivity Clause. – This Act shall take effect fifteen (15) days from its
publication in the Official Gazette or in two (2) newspapers of general circulation.

February 24, 2004

Appendix ―M‖

REPUBLIC ACT. NO. 9858

AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN

BORN TO PARENTS BELOW MARRYING AGE, AMENDING
FOR THE PURPOSE THE FAMILY CODE OF THE
PHILIPPINES, AS AMENDED

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family
Code of the Philippines", as amended, is hereby further amended to read as follows:

$'$
 "Art. 177. Children conceived and born outside of wedlock of parents
who, at the time of conception of the former, were not disqualified by any
impediment to marry each other, or were so disqualified only because either
or both of them were below eighteen (18) years of age, may be legitimated."

"Art. 178. Legitimation shall take place by a subsequent valid marriage

between parents. The annulment of a voidable marriage shall not affect the
legitimation."

Section 2. Implementing Rules. – The civil Registrar General shall, in consultation with
the chairpersons of the Committee on Revision of Laws of the House of Representatives and
the Committee on Youth, Women and Family Relations of the Senate, the Council for the
Welfare of Children, the Department of Justice (DOJ), the Department of Foreign Affairs (DFA),
the office of the Supreme Court Administrator, the Philippine Association of Civil Registrars
(PACR) and the UP Law Center, issue the necessary rules/regulations for the effective
implementation of this Act not later than one (1) month from its effectivity.

Section 3. Repealing Clause. – All laws, presidential decrees, executive orders,

proclamations and/or administrative regulations which are inconsistent with the provisions of this
Act are hereby amended, modified, superseded or repealed accordingly.

Section 4. Effectivity Clause. – This Act shall take effect fifteen (15) days after its
complete publication in the Official Gazette or in at least two (2) newspapers of national
circulation.

APPENDIX ―N‖

REPUBLIC ACT NO. 9048

AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL

REGISTRAR OR THE CONSUL GENERAL TO CORRECT

A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY

AND/OR CHANGE OF FIRST NAME OR NICKNAME IN

THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL

ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376

AND 412 OF THE CIVIL CODE OF THE PHILIPPINES

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

$'%
 SECTION 1. Authority to Correct Clerical or TypographicalError and Change of First
Name or Nickname. – No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname which
can be corrected or changed by the concerned city or municipal civil registrar or consul general
in accordance with the provisions of this Act and its implementing, rules and regulations.

SEC. 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(1) "City or municipal civil registrar" refers to the head of the local civil registry office of
the city or municipality, as the case may be, who is appointed as such by the city or municipal
mayor in accordance with the provisions of existing laws.

(2) "Petitioner" refers to a natural person filing the petition and who has direct and
personal interest in the correction of a clerical or typographical error in an entry or change of
first name or nickname in the civil register.

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which
is visible to the eyes or obvious to the understanding, and can be corrected or changed only by
reference to other existing record or records:Provided, however, That no correction must
involve the change of nationality, age,

status or sex of the petitioner

(4) "Civil register" refers to the various registry books andrelated certificates and
documents kept in the archives of the local civil registry offices, Philippine Consulate and of the
Office of the Civil Registrar General.

(5) "Civil registrar general" refers to the administrator of the National Statistics Office
which is the agency mandated to carry out and administer the provision of laws on civil
registration.

(6) "First name" refers to a name or a nickname given to a person which may consist of
one or more names in addition to the middle and last names.

$'&
 SEC. 3. Who May File the Petition and Where. – Any person having direct and personal
interest in the correction of a clerical or typographical error in an entry and/or change of first
name or nickname in the civil register may file in person, a verified petition with the local civil
registry office of the city or municipality where the record being sought to be corrected or
changed is kept. In case the petitioner has already migrated to another place in the country and
it would not be practical for such party, in terms of transportation expenses, time and effort, to
appear in person before the local civil registrar keeping the documents to be corrected or
changed, the petition, may be filed in person, with the local civil registrar of the place where the
interested party is presently residing or domiciled. The two (2) local civil registrars concerned
will then communicate to facilitate the processing of the petition.

Citizens of the Philippines, who are presently residing or domiciled in foreign countries,
may file their petition in person with the nearest Philippine Consulates. The petitions filed with
the city or municipal civil registrar or the consul general shall be processed in accordance with
this Act and its implementing rules and regulations. All petitions for the correction of clerical or
typographical errors and/or change of first names or nicknames may be availed of only once.

SEC. 4. Grounds for Change of First Name or Nickname.– The petition for change of
first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the
petitioner, and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

SEC. 5. Form and Contents of the Petition. – The petition shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The
affidavit shall set forth facts necessary to establish the merits of the petition

and shall show affirmatively that the petitioner is competent totestify to the matters stated. The
petitioner shall state the particular erroneous entry or entries which are sought to be corrected
and/or the changed sought to be made. The petition shall be supported with the following
documents:

(1.) A certified true machine copy of the certificate or of the page of the registry book
containing the entry or entries sought to be corrected or changed;

$''
 (2) At least two (2) public or private documents showing the correct entry or entries upon
which the correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar, or the
consul general may consider relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the
documents mentioned in the immediately preceding paragraph. In addition, the petition shall be
published at least once a week, for two (2) consecutive weeks, in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from the appropriate law
enforcement agencies that he has no pending case or no criminal record. The petition and its
supporting papers shall be filed in three(3) copies to be distributed as follows: first copy, to the
concerned city or municipal civil registrar, or the consul general; second copy, to the Office of
the Civil Registrar General; and the third copy, to the petitioner.

SEC. 6. Duties of the City or Municipal Civil Registrar or the Consul General. – The city
or municipal civil registrar or the consul general, to whom the petition is presented, shall
examine the petition and its supporting documents. He shall post the petition in a conspicuous
place provided for that purpose for ten (10) consecutive days after he finds the petition and its
supporting documents sufficient in form and substance. The city or municipal civil registrar or
the consul general shall act on the petition and shall render a decision not later than five (5)
working days after the completion of the posting and/or publication requirement. He shall
transmit a copy of his decision together with the records of the proceedings to the Office of the
Civil Registrar General within five (5) working days from the date of the decision.

SEC. 7. Duties and Powers of the Civil Registrar General. – The civil registrar general
shall, within ten (10) working days from receipt of the decision granting a petition, exercise the
power to impugn such decision by way of an objection based on the following grounds:

(1) The error is not clerical or typographical;

(2) The correction of an entry or entries in the civil register is substantial or controversial
as it affects the civil status of a person; or

(3) The basis used in changing the first name or nickname of a person does not fall
under Section 4.The civil registrar general shall immediately notify the city or municipal civil
registrar or the consul general of the action taken on the decision. Upon receipt of the notice
thereof, the city or municipal civil registrar, or the consul general shall notify the petitioner of
such action. The petitioner may seek reconsideration with the civil registrar general or file the
appropriate petition with the proper court. If the civil registrar general fails to exercise his power

$'(
to impugn the decision of the city or municipal civil registrar or of the consul general within the
period prescribed herein, such decision shall become final and executory. Where the petition is
denied by the city or municipal civil registrar or the consul general, the petitioner may either
appeal the decision to the civil registrar general or file the appropriate petition with the proper
court.

SEC. 8. Payment of Fees. – The city or municipal civil registrar or the consul general
shall be authorized to collect reasonable fees as a condition for accepting the petition. An
indigent petitioner shall be exempted from the payment of the said fee.

SEC. 9. Penalty Clause. – A person who violates any of the provisions of this Act shall,
upon conviction, be penalized by imprisonment of not less than six (6) years but not more than
twelve (12) years, or a fine of not less than Ten Thousand Pesos (P10,000) but not more than
One hundred thousand pesos(P100,000), or both, at the discretion of the court. In addition, if
the offender is a government official or employee, he shall suffer the penalties provided under
civil service laws, rules and regulations.

SEC. 10. Implementing Rules and Regulations. – The civil registrar general shall, in
consultation with the Department of Justice, the Department of Foreign Affairs, the Office of the
Supreme Court Administrator, the University of the Philippines Law Center and the Philippine
Association of Civil Registrars, issue the necessary rules and regulations for the effective
implementation of this Act not later than three (3) months from the effectivity of this law.

SEC. 11. Retroactivity Clause. – This Act shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance with the Civil Code and other
laws.

SEC. 12. Separability Clause. – If any portion or provision of this Act is declared void or
unconstitutional, the remaining portions or provisions thereof shall not be affected by such
declaration.

SEC. 13. Repealing Clause. – All laws, decrees, orders, rules and regulations, other
issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.

SEC. 14. Effectivity Clause. – This Act shall take effect fifteen (15) days after its
complete publication in at least two (2)national newspapers of general circulation.

Approved, March 22, 2001.

$')
$'*