Académique Documents
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No one shall be charged with notice of the statute’s Publication not Required (I – L)
provision until publication is completed and the 15 day 1. Interpretative regulations and those internal in nature,
period has expired. regulating only the personnel of the administrative
agency.
Exception: Unless otherwise provided by the law (EO 2. Letters of Instructions issued by administrative
No. 200). superiors on rules/guidelines to be followed by
subordinates in the performance of their duties
The exception refers to the “15-day period” only and not (Tañada vs. Tuvera, ibid).
the requirement of publication. Publication is
indispensable, absence of which will not render the law Date of effectivity of Municipal Ordinances is NOT
effective (Tañada v. Tuvera G.R. No. L-63915, December covered by this rule but by the Local Government Code
29, 1986). (Tañada vs. Tuvera, supra).
No publication required, binding on parties after the lapse Exception: Rule does NOT apply to computation of age;
of appeal period, and will bind all future cases with each year is counted based on birth anniversary.
identical facts, until reversed by SC.
Policy if the Last Day is a Sunday or a Legal
The application or interpretation placed by the Court Holiday
upon a law is part of the law as of the date of enactment 1. If the act to be performed within the period is
of said law because the Supreme Court’s interpretation prescribed or allowed (a) by the Rules of Court, (b) by
merely establishes the contemporaneous legislative an order of the court, or (c) by any other applicable
intent that the construed law purports to carry into effect statute, the last day will automatically be considered
(People v. Licera G.R. No. L-39990, July 2, 1975). the next working day.
2. If the act to be performed within the period arises from
HOWEVER, when a doctrine is overruled and a different a contractual relationship, the act will become due
view is adopted, the new doctrine should be applied despite the fact that the last day falls on a Sunday or
prospectively and should not prejudice parties who relied Holiday.
on the old doctrine (People v. Jabinal G.R. No. L-30061,
February 27, 1974). P ROVISION ON C ONFLICT OF
L AW (A RTS .14-17)
C USTOMS (A RTS .11 AND 12)
1. Penal Laws and laws of public security (Article
Customs 14) : Territoriality rule governs regardless of the
Rules of conduct formed by repetition of acts uniformly nationality but subject to principles of international law
observed as a social rule. They are legally binding and and to treaty stipulations.
obligatory.
General Rule: Customs must be proved as a fact 2. Laws relating to family rights and duties, or to
according to the rules of evidence. status, condition and legal capacity of persons
(Article 15) : Nationality rule applies regardless of
Exception: A court may take judicial notice of a custom if their place of residence.
there is already a decision rendered by the same court
recognizing the custom. Exception: Divorce validly obtained abroad by alien
spouse capacitating him or her to remarry, the Filipino
Requisites to Make a Custom an Obligatory Rule: spouse shall have capacity to remarry under Philippine
(P 2OT) law. (Article 26 (2) Family Code)
1. Plurality or repetition of acts;
2. Practiced by the great mass of the social group; 3. Laws on property (real and personal)
3. The community accepts it as a proper way of acting,
such that it is considered as obligatory upon all; Lex Rei Sitae: The law of the country where the
4. Continued practice for a long period of time. property is situated shall govern property transactions.
(Article 16 (1))
R ULE ON P ERIODS (A RT .13)
Exception: Order and amount of successional rights,
intrinsic validity of testamentary provisions, and
Rule on Periods capacity to succeed governed by the national law of
1. Years - 365 days, unless year is identified; decedent (Article 16 (2)).
2. Months - 30 days, unless month identified;
succession.
4. Laws on forms and solemnities Rules on Personal Law: Domiciliary Rule and
Nationality Rule Distinguished
Lex Loci Celebrationis: Forms and solemnities of Domiciliary Rule Nationality Rule
contracts, wills, and other public instruments (extrinsic
validity) shall be governed by the laws of the country in Basis for determining Basis for determining
which they are executed (Article 17). personal law of an personal law is his
individual is his DOMICILE CITIZENSHIP
Exceptions:
a.Marriage between Filipinos solemnized abroad shall 5. Renvoi Doctrine: Occurs when a citizen of another
be void though valid abroad when void under country dies as a domiciliary of another country. Where
Philippine laws. (Article 26(1) FC) the conflict rules of the forum refer to a foreign law, and
b. Intrinsic Validity of Contracts: Validity is determined the latter refers it back to the internal law, the law of
by the following rules: the forum shall apply.
i. The law stipulated by the parties shall be applied;
ii. In default thereof, and the parties are of the same Transmission Theory: If the foreign law refers it to a
nationality, their national law shall be applied; third country, the said country’s law shall govern.
iii. If the parties are not of the same nationalities, the
law of the place of the perfection of the obligation 6.Doctrine of Processual Presumption: The foreign
shall govern its fulfillment; law, whenever applicable, should be proved by the
iv. If the above places are not specified and they proponent thereof; otherwise, such law shall be
cannot be deduced from the nature and presumed to be exactly the same as the law of the
circumstances of the obligation, then the law of forum.
the passive subject shall apply.
Rule on Prohibitive Laws
Lex Loci
Lex Nationalii Lex Rei Sitae
Celebrationis General Rule: Prohibitive laws concerning persons,
Art. 15, CC Art. 16, CC Art. 17, CC their acts or property, and laws which have for their
Citizenship is the Law of the place Law of the place object public order, public policy or good customs are
basis forwhere the where the NOT rendered ineffective by laws, or judgments
determining the property is contract was promulgated or by determinations or conventions agreed
personal law situated is the executed is the upon in foreign country. (Art. 17(3))
applicable basis for basis for
determining law determining law Exception: Art. 26, par. 2 Family Code (ex. Divorce
applicable applicable Law)
Covers family Covers both real Covers only the
rights and duties, and personal forms and
status, condition property solemnities H UMAN R ELATIONS
and legal (extrinsic validity)
capacity of ABUSE OF RIGHT (Art. 19)
persons. Elements: (LEP)
Exception: Exceptions: Exceptions: 1. Existence of a legal right or duty;
Art. 26, par. 2 of (CIAO) 1. Art. 26, 2. Which is exercised in bad faith;
Family Code a. Capacity to par. 1 of 3. For the sole intent of prejudicing or injuring another.
succeed; Family Code
b. Intrinsic 2. Intrinsic Doctrine of Violenti Non Fit Injuria ( to which a
validity of the validity of person assents is not esteemed in law as injury )
will; contracts Refers to self-inflicted injuries or to the consent to injury
c. Amount of which precludes the recovery of damages by one who
successional has knowingly and voluntarily exposed himself to danger,
rights; even if he is not negligent in doing so (Nikko Hotel
d. Order of
Damnum Absque Injuria ( damage without injury ) Accion in Rem Verso and Solutio Indebiti
A person who exercises his legal right does no injury.
Solutio Indebiti
HOWEVER, it cannot be said that a person exercises a Accion In Rem Verso
(Art. 2154)
right when he unnecessarily prejudices another or
offends morals or good customs. It is not necessary that the
payment was made by
When damages result from a person’s exercise of rights, mistake, payment could Payment was made by
it is damnum absque injuria (ABS-CBN v. Republic have been made knowingly mistake is an essential
Broadcasting Corp. G.R. No. 128690, January 21, 1999). and voluntarily but element to maintain the
nevertheless, there would action for recovery.
ACTS CONTRARY TO LAW (Art. 20) be recovery of what has
Every person who, contrary to law, willfully or negligently been paid.
causes damage to another, shall indemnify the latter for
the same. Requisites: (JELA)
1. Enrichment is without just or legal ground
ACTS CONTRA BONUS MORES (Art. 21) 2. Defendant has been enriched;
3. Plaintiff has suffered a loss; and
Elements: (L-C-I) 4. He has no other action based on contract, quasi–
1.There is a legal act; contract, crime or quasi–delict.
2.But which is contrary to morals, good customs, public
order or public policy; and, For a more comprehensive discussion of Articles 19-35,
3.It is done with intent to injure. please see discussion thereof under Torts.
a. Breach of constitutional and other rights (Art. 32) Minority does not exempt the minor from certain
b. Defamation, fraud, physical injuries (Art. 33) obligations, as when the latter arise from his acts or
c. Refusal or failure of city or municipal police to give from property relations. (Art. 38) Thus, he may acquire
protection (Art. 34) property using the capital of his parents, said property
d. Quasi-delict or culpa-aquiliana (Art.2177) to belong to the latter in ownership and usufruct.
2. Insanity or imbecility
The Civil Code has SUPPLETORY application in matters 3. State of being deaf mute
governed by special laws. Deaf mute may either be sane or insane.
4. Prodigality – The state of squandering money or
property with a morbid desire to prejudice the heirs of a
C IVIL P ERSONALITY (A RT .37) person (Martinez v. Martinez, 1 Phil. 182).
5. Civil interdiction
Civil Personality
It is the aptitude of being the subject, active or passive, of Modifications/ limitations on capacity to act (Art.
rights and obligations. 39): (FI 3T P 2A 3D)
1. Family Relations;
Juridical capacity and Capacity to Act (Paras, E. 2. Insanity;
Civil Code of the Philippines Annotated 15 th ed. 3. Imbecility;
(2002), p. 236) 4. Insolvency;
Juridical Capacity Capacity To Act 5. Trusteeship;
Fitness to be the subject Power to do acts with legal 6. Penalty;
of legal relations (Art. 37) effects (Art. 37) 7. Prodigality;
8. Age;
Passive Active 9. Alienage;
Inherent Merely acquired 1. Absence; and
Lost through death and 2. State of being deaf-mute.
Lost only through death
other causes
Can exist without capacity Cannot exist without Note: The consequences of the restrictions and
to act juridical capacity modifications on a person’s capacity to act are provided
Cannot be limited or Can be restricted, modified by the Civil Code, other codes, special laws and the
restricted or limited Rules of Court.
A conceived child is already entitled to support from its Rule 131 Section 3 (jj). That except for purposes of
progenitors (Quimiguing vs. Icao, G.R. No. L-26795, July succession, when two persons perish in the same
31, 1970) and can be acknowledged even before it is calamity, such as wreck, battle, or conflagration, and it is
born (De Jesus v. Syquia, 58 Phil. 866). not shown who died first, and there are no particular
circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting
When is a child considered born: (Art. 41) from the strength and the age of the sexes, according to
the following rules:
General Rule: For civil purposes, the fetus is 1. If both were under the age of fifteen years, the older
considered born if it is alive at the time it is completely is deemed to have survived;
delivered from the mother’s womb. 2. If both were above the age sixty, the younger is
deemed to have survived;
Exception: If the fetus had an intra-uterine life of less 3. If one is under fifteen and the other above sixty, the
than 7 months, it is NOT deemed born if it dies within 24 former is deemed to have survived;
hours after its complete delivery from the maternal womb 4. If both be over fifteen and under sixty, and the sex be
(Article 41). different, the male is deemed to have survived, if the
sex be the same, the older;
Illustration: 5. If one be under fifteen or over sixty, and the other
Intra-uterine life When considered between those ages, the latter is deemed to have
born survived.
7 months or more Alive upon complete
delivery JURIDICAL PERSONS (Art. 44 to 46)
- regardless whether the A juridical person is a being of legal existence
child dies within 24 susceptible of rights and obligations, or of being the
hours or not subject of juridical relations (Roldan vs. Philippine
Less than 7 months Alive upon complete Veterans Board G.R. No. L-11973, June 30, 1959)
delivery AND at least 24
hours thereafter Who are juridical persons:
1. State and its political subdivisions
The legitimacy or illegitimacy of a child attaches upon 2. Corporations for public interest - governed
conception (Continental Steel Manufacturing Corp. v. either by the Corporation Code or their special charters
Hon. Accredited Voluntary Arbitrator, et al., G.R. No. passed by the legislature.
182836, October 13, 2009).
Personality begins as soon as they have been
How civil personality is extinguished constituted according to law
Civil personality is extinguished by death. The effect of
death upon the rights and obligations of the deceased is 3. Corporations, partnerships and associations for private
determined by law, by contract and by will (Art. 42). interest
“…the basic social institutions of marriage and the family General Rule: It is not by itself an actionable wrong
in the preservation of which the State has the strongest (Hermosisima vs. CA L-14628, September 30, 1960).
interest; the public policy here involved is of the most One cannot seek specific performance to compel
fundamental kind. In Article II, Section 12 of the marriage.
Constitution, there is set forth the following basic state
policy: 'The State recognizes the sanctity of family life Exceptions: To be actionable, there must be another act
and shall protect and strengthen the family as a basic independent of the breach of promise to marry which
autonomous social institution. The same sentiment has gives rise to liability as where there was financial
been expressed in the Family Code of the Philippines in damage, social humiliation, and moral seduction.
Article 149: 'The family, being the foundation of the
nation, is a basic social institution which public policy 1. Mere breach of promise to marry is not an actionable
cherishes and protects. Consequently, family relations wrong; but to formally set a wedding and go through all
are governed by law and no custom, practice or the preparations and publicity, only to walk out of it
agreement destructive of the family shall be recognized when the matrimony is about to be solemnized, is quite
or given effect. different. This is palpably and unjustifiably contrary to
good customs for which defendant must be held
Marriage and ordinary contract distinguished answerable in damages pursuant to Art. 21 NCC.
Marriage Ordinary Contract (Wassmer vs. Velez, No. L-20089, December 26,
Special contract Merely a contract 1964)
Social institution Merely a contract 2. Where a man’s promise to marry was the proximate
Governed by law on Governed by law on cause of giving herself unto him in sexual congress
marriage contracts and there is proof he had no intention of marrying her,
Not subject to stipulations the promise being a deceptive device, damages may
Generally subject to be awarded pursuant to Art. 21 NCC because of the
except in property
stipulations fraud and deceit behind it and the willful injury to her
relations
Minors may contract honor and reputation (Baksh vs. CA, G.R. No. 97336,
through their parents or February 19, 1993).
Legal capacity is required
guardians or in some
cases by themselves ESSENTIAL REQUISITES OF MARRIAGE: (LC)
Contracting parties must 1. Legal capacity of the contracting parties, who must be
only be two persons – one Two or more parties a male and a female
is a female and the other regardless of gender a. Eighteen years old or above
is a male b. Not under any impediment mentioned in Arts. 37
Parties can fix a period for and 38 (Art. 5)
its efficacy to be 2. Consent freely given in the presence of a solemnizing
Permanent union ineffective after a few officer (Art. 2)
years No particular form required
Capable of intelligently understanding the nature and
Breach of obligations of consequences of the act
husband and wife does
not give rise to an action FORMAL REQUISITES OF MARRIAGE: (ALM)
for damages. The law Breach of ordinary 1. Authority of the solemnizing officer
provides penal and civil contracts gives rise to an 2. Valid Marriage License
sanctions such as action for damages 3. Marriage ceremony where the contracting parties
prosecution for adultery or appear before the solemnizing officer, with their
concubinage and personal declaration that they take each other as
proceedings for legal husband and wife in the presence of not less than two
separation. witnesses of legal age (Art. 3)
Can be dissolved only by Can be dissolved by
death or annulment, not mutual agreement and by Effects of noncompliance with the requisites
by mutual agreement other legal causes (Art. 4)
Essential Formal
Breach of promise to marry Absence Void ab initio
(ex: expired marriage license; one of No prescribed form or religious rite for solemnization of
the parties is below 18 years old at marriage is required.
the time of the marriage)
Voidable Voidable The absence of two witnesses of legal age is merely an
irregularity but the party responsible for the irregularity
(ex: consent shall be civilly, criminally, and administratively liable.
obtained
Defect
through force Marriages by proxy
and 1.If it was solemnized in the Philippines, the marriage is
intimidation; VOID because physical appearance is required under
Art. 45, 46) Art. 6.
Valid Valid, but person 2.If performed abroad, whether between Filipinos or
responsible for foreigners or mixed, the controlling article is Art. 26 of
irregularity shall the Family Code. (Paras, p. 377-378)
be civilly and
criminally liable Authority of solemnizing officer
It is not the presence or absence of the solemnizing
Except: when officer which constitutes the formal requirement but the
parties over 18 absence or presence of the solemnizing officer’s
but below 21 authority at the time of the solemnization of the marriage
failed to obtain (Arañes vs. Occiano A.M. No. MTJ-02-1390 April 11,
parental consent, 2002; Navarro vs. Domagtoy A.M. No. MTJ-96-
in which case the 1088. July 19, 1996).
marriage is
voidable (Art. 14) General Rule: The solemnizing officer is not duty bound
to investigate whether the marriage license was regularly
(example of issued.
irregularity: no
witnesses of legal Must only determine if it was issued by a competent
age, or only one official (Alcantara vs. Alcantara G.R. No. 167746 August
witness of legal 28, 2007)
Irregularity age, or witnesses
but not of legal If so, it may be presumed that the said official fulfilled the
age during the duty to ascertain whether the contracting parties fulfilled
marriage the requirements of law (People vs. Janssen G.R. No. L-
ceremony (Sta. 31763 December 27, 1929).
Maria, M.,
Persons and Exception: In cases of marriage in articulo mortis, in
Family Relations, remote places, and between a man and a woman living
2010, p. 127); together as husband and wife for at least 5 years without
issuance of legal impediment to marry each other
marriage license
despite absence Solemnizing officer must take steps to ascertain the
of publication prior ages, relationship, and qualifications of contracting
to the completion parties (Art. 29)
of the 10-day
period for
Persons authorized to Requisites for the
publication
solemnize marriages exercise of their
(Alcantara vs.
(Art. 7) (PMJ-C³) authority
Alcantara G.R.
No. 167746 Priest, rabbi, imam or a. Duly authorized by his
August 28, 2007) ministers of any church church or religious
or religious sect sect;
Marriage ceremony (Art. 6)
Exceptions:
1. Marriage in articulo mortis; Requisites:
2. Marriage in remote places; a. The man and woman must have been living as
3. Marriage at a house or place designated by the parties husband and wife for at least five years before the
in a sworn statement to that effect, with the written marriage;
request of both parties to the solemnizing officer (Sta. b. The parties must have no legal impediment to marry
Maria, M., Persons and Family Relations, 2010, p. each other;
140) c. The fact of absence of legal impediment between
the parties must be present at the time of marriage;
Note: This provision is only directory and the d. The parties must execute an affidavit before any
requirement that the marriage be solemnized in a person authorized by law to administer oaths stating
particular or a public place is not an essential requisite. that they have lived together for at least five years
(Sta. Maria, M., Persons and Family Relations, 2010, p. (and are without legal impediment to marry each
140) other); and
e. The solemnizing officer must execute a sworn
Valid marriage license (Art. 9) statement that he had ascertained the qualifications
A formal requisite of marriage of the parties and that he had found no legal
impediment to their marriage (Manzano v. Sanchez
Issued by the local civil registrar of the city or municipality G.R. No. MTJ–00–1329, March 08, 2001).
where EITHER contracting party habitually resides.
The 5–year period should be computed on the basis
The license is valid in any part of the Philippines for 120 of cohabitation as husband and wife where the only
days from date of issue, which is the date when the local missing factor is the marriage contract to validate the
civil registrar signed the license. union (ex: if both cohabited at the age of 17,
counting starts when parties reach 18 years).
Automatically cancelled at the expiration of the period if
contracting parties have not made use of it (Art. 20) This 5–year period should be the years immediately
before the day of the marriage and it should be a
Exceptions to the marriage license requirement period of cohabitation characterized by
(MARCO): EXCLUSIVITY – meaning no legal impediment was
1. Among Muslims or members of ethnic cultural present at any time within the 5 years and
communities solemnized in accordance with their CONTINUITY – that is unbroken (Republic v. Dayot,
customs, rites and practices (Art. 33) G.R. No. 175581, March 8, 2008).
Exception only applies to Muslims and members of the 5. Solemnized outside the Phil. where no marriage
ethnic groups of the Cordillera Autonomous Region license is required by the country where they were
because they have a separate law—Code of Muslim solemnized (Art. 26 par. 1)
Personal Laws of the Philippines and Organic Act of
the Cordillera Autonomous Region (RA 6766). Other Solemnizing of a marriage involving a foreign
ethnic groups are still governed by the Family Code contracting party in the Philippines (Art. 21)
(Sta. Maria, M., Persons and Family Relations, 2010, When either or both parties are foreign citizens, they
p. 187). must first submit a CERTIFICATE OF LEGAL CAPACITY
TO MARRY issued by their diplomatic/consular officials
2. In articulo mortis (Art. 27) before marriage license can be obtained.
Ratio: A certificate of legal capacity is necessary because 118904. April 20, 1998) that when the question of
the Philippines, insofar as marriage is concerned, whether a marriage has been contracted arises in
adheres to the national law of the contracting parties with litigation, said marriage may be proven by relevant
respect to their legal capacity to contract marriage. evidence. To prove the fact of marriage, the following
Without this certification of legal capacity, the local civil would constitute competent evidence: the testimony of a
registrar will not issue the marriage license (Sta. Maria, witness to the matrimony, the couple’s public and open
M., Persons and Family Relations, 2010, p. 151). cohabitation as husband and wife after the alleged
wedlock, the birth and the baptismal certificates of
Exception: Marriage of both foreign citizens will be children born during such union, and the mention of such
solemnized by their country’s consul-general assigned in nuptial in subsequent documents.
the Philippines, if their country’s law allows the same
Marriage
Stateless persons or refugees from other countries shall Marriage license certificate/marriage
submit an affidavit stating circumstances to show contract
capacity to contract marriage before a marriage license Formal requisite; Not essential for the
can be obtained (Art. 21 par. 2). validity of the marriage;
Absence renders Best evidence to prove
Marriage certificate (Art. 22) marriage void ab initio existence (not validity)
Best documentary evidence of the existence of a except in the cases of marriage
marriage (Tenebro vs. CA G.R. No. 150758 February 18, provided under Art. 27
2004). to 34
Issued by the local civil Issued by the person
A mere photostat copy of a marriage certificate is a registrar (Art. 19) solemnizing the
worthless piece of paper (Vda. De Chua vs. CA, G.R. marriage (Art. 23)
No. 116835, March 5, 1998) but if such photostat copy Issued before the Issued after the
emanated from the Office of the Local Civil Registrar and solemnization of the solemnization of the
duly certified by the local civil registrar as an authentic marriage marriage
copy of the records in his office, such certified photostat
copy is admissible as evidence (Sta. Maria, M., Persons Note: Marriage certificate is NOT an essential requisite
and Family Relations, 2010, p. 154). of marriage and should NOT be confused with a
marriage license.
Testimony of one of the parties to the marriage,
witnesses or solemnizing officer is admissible to prove
the fact of marriage (Balogbog v. CA, G.R. No. 83598, M ARRIAGE C ELEBRATED
March 7, 1997).
O UTSIDE THE P HILIPPINES
It may also be proved by parol evidence (Sta. Maria, M., (A RT .26)
Persons and Family Relations, 2010, p.156).
VALIDITY OF MARRIAGE
Mere cohabitation is not direct proof of marriage, and it General Rule: Where one or both parties in the
must be proved by proper documents or by oral marriage are citizens of the Philippines, the foreign
testimony in case they have been lost (Sta. Maria, M., marriage is valid in this country if solemnized in
Persons and Family Relations, 2010, p.158). accordance with the laws of the country of celebration
(Art. 26).
Once the presumption of marriage arises, other evidence
may be presented in support thereof. The evidence need In case a Filipino contracts a foreign marriage which is
not necessarily or directly establish the marriage but null and void in the place where it was solemnized, the
must at least be enough to strengthen the presumption of same shall also be null and void in the Philippines even if
marriage. Every intendment of law leans toward such was valid if celebrated under Philippine laws.
legitimizing marriage (Delgado vda de De la Rosa v.
Heirs of Marciana vda de Damian, GR No 155733, If both are foreigners, lex loci celebrationis applies.
January 27, 2006).
Exceptions: Foreign marriages shall not be recognized
The Supreme Court rules in (Trinidad vs. CA, G.R. No. in the Philippines if: (B 2MA-PIP)
2. Bigamous or polygamous except as provided in Art. Article 26(2) applies where parties were Filipino
41, FC (Art. 35(4)) citizens at the time of the marriage was celebrated,
3. Contracted through mistake of one party as to the and later on, one of them becomes naturalized as a
identity of the other (Art. 35(5)) foreign citizen and obtains a divorce decree: the
4. Contracted following the annulment or declaration of reckoning point is their citizenship at the time the valid
nullity of a previous marriage but before partition divorce is obtained abroad by the alien spouse
(Art.35(6)) capacitating the latter to remarry (Rep. v. Obrecido III,
5. Void due to psychological incapacity (Art. 36) G.R. No. 154380, Oct. 5, 2005).
6. Incestuous (Art.37)
7. Void for reasons of public policy (Art. 38) In Edgar San Luis v. Felicidad Sagalongos (G.R. No.
134029, February 6, 2007), it was held that a Filipino
Note: The existence of the pertinent provision of the who had been divorced by his alien spouse abroad
foreign marriage law must be shown to prove a foreign may NOT validly remarry in the Philippines if the
marriage. marriage was solemnized BEFORE the Family Code
took effect. It was noted that there is no need to
It is well-settled in our jurisdiction that our courts cannot retroactively apply Art. 26 paragraph 2 of the Family
take judicial notice of foreign laws. Like any other facts, Code, since there is sufficient jurisprudential basis
they must be alleged and proved. Australian marital laws allowing the Court to rule in the affirmative.
are not among those matters that judges are supposed to
know by reason of their judicial function. The power of There must be a showing that the divorce decree gave
judicial notice must be exercised with caution, and every the foreigner spouse legal capacity to remarry because
reasonable doubt upon the subject should be resolved in in some jurisdictions, remarriage may be limited or
the negative (Garcia vs. Recio, G.R. No. 138322 October prohibited (Bayot v. Bayot, G.R. No. 155635 & 163979,
2, 2001). November 7, 2008).
Interestingly, in Lucio Morigo v. People, (GR No. 145226, General rule: A marriage contracted by any person
Feb. 6, 2004), the SC ruled that a judicial declaration of during the subsistence of a previous valid marriage
nullity is NOT NEEDED where NO MARRIAGE shall be null and void (Gomez v. Lipana, GR. No. L–
CEREMONY at all was performed by a duly authorized 23214, June 30, 1970).
solemnizing officer, as where the parties merely signed a
marriage contract on their own without the presence of Elements of bigamy (Art. 349, RPC):
the solemnizing officer. a. The offender has been legally married.
b. The marriage has not been legally dissolved or in
The requirement for a declaration of absolute nullity of a case his or her spouse is absent, the absent spouse
marriage is also for the protection of the spouse who, could not yet be presumed dead according to the
believing that his or her marriage is illegal and void, Civil Code.
marries again. With the judicial declaration of the nullity c. The offender contracts a second or subsequent
of his or her marriage, the person who marries again marriage.
cannot be charged with bigamy. A judicial declaration of d. The second or subsequent marriage has all the
nullity is required before a valid subsequent marriage can essential requisites for validity.
be contracted; or else, what transpires is a bigamous .
marriage, reprehensible and immoral. (Teves vs. People, Exception: Before the celebration of the
G.R. No. 188775, August 24, 2011). subsequent marriage, a declaration of presumptive
death is obtained after complying with the following
For purposes other than remarriage, such as but not requirements: (JAB)
limited to determination of heirship, legitimacy or i. Judicial declaration of presumptive death; present
illegitimacy of a child, settlement of estate, dissolution of spouse must file a summary proceeding for the
property regime or criminal case, other evidence is declaration of the presumptive death of the
acceptable to show the nullity of the marriage and the absentee without prejudice to the latter’s
court may pass upon the validity of marriage so long as it reappearance.
is essential to the determination of the case (Niñal vs. ii. Absence of the other spouse must have been for
Bayadog, G.R. No. 133778, March 14, 2000). 4 consecutive years, or 2 years where there was
danger of death under circumstances laid down in
Collateral attack of marriage is allowed. Art. 391 of the NCC;
iii. Well-founded belief of the present spouse who
In a case for concubinage, the accused need not present wishes to marry that absent spouse is already
a final judgment declaring his marriage void, for he can dead; and
adduce evidence in the criminal case of the nullity of his
marriage other than proof of a final judgment declaring There is no well-founded belief that the absent
his marriage void (Beltran vs. People, G.R. No. 137567, spouse is already dead when the present party
June 20, 2000). fails to conduct a diligent search for the missing
party (Republic v. Nolasco, G.R. No. 94053,
I. VOID MARRIAGES DUE TO ABSENCE OF ANY March 17, 1993).
OF THE ESSENTIAL OR FORMAL REQUISITES:
Note: This is intended to protect the present (Republic vs. Tango G.R. No. 161062 July 31,
spouse from criminal prosecution for bigamy 2009).
under Art 349 of the Revised Penal Code .
However, if the bigamous marriage was committed Note: Enumeration in Art 35 is NOT exclusive. Other
abroad, the guilty party cannot be criminally VOID marriages include:
prosecuted for bigamy in the Philippines as our 1. Marriages in a play, drama, or movie
penal statutes are territorial in nature. 2. Marriages between two boys and two girls
3. Marriages in jest
Exception to the exception: If both spouses of the 4. Common law marriages
subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations II. PSYCHOLOGICAL INCAPACITY (Art. 36)
made by one in favor of the other are revoked by
operation of law (Art. 44). No less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital
Effect of reappearance of absent spouse: covenants that concomitantly must be assumed and
discharged by the parties to the marriage. Its meaning is
General rule: The subsequent bigamous marriage confined to the most serious cases of personality
under Article 41 remains valid despite reappearance disorders clearly demonstrative of an utter insensitivity or
of the absentee spouse. inability to give meaning and significance to the marriage.
This psychological condition must exist at the time the
Exception: Subsequent marriage is automatically marriage is celebrated (Santos vs. CA, G.R. No. 112019,
terminated if the reappearance was recorded in a January 4, 1995).
sworn statement in the civil registry of the residence
of the parties to the subsequent marriage at the Psychological incapacity
instance of any interested person with due notice to It is the downright incapacity or inability to take
said spouses, without prejudice to the fact of cognizance of and to assume the basic marital
reappearance being judicially determined in case obligations. The burden of proving psychological
such fact is disputed. incapacity is on the plaintiff. The plaintiff must prove that
the incapacitated party, based on his or her actions or
Exception to the exception: If there was a behavior, suffers a serious psychological disorder that
previous judgment annulling or declaring the first completely disables him or her from understanding and
marriage a nullity, the subsequent bigamous discharging the essential obligations of the marital state.
marriage remains valid. The psychological problem must be grave, must have
existed at the time of marriage, and must be incurable
Notes: If the absentee reappears, but no step is (Kalaw v. Fernandez, G.R. No. 166357, September 19,
taken to terminate the subsequent marriage either 2011).
by affidavit or by court action, the absentee’s mere
reappearance even if made known to the spouses in In Marable v. Marable, G.R. No. 178741, January 17,
the subsequent marriage will not terminate such 2011, the Supreme Court ruled that “the term
marriage (SSS v. Bailon, G.R. No 165545, March ‘psychological incapacity’ to be a ground for the nullity of
24, 2006). marriage under Article 36 of the Family Code, refers to a
serious psychological illness afflicting a party even before
By express provision of law (Art. 247, FC), the the celebration of the marriage. These are the disorders
judgment of the court in a summary proceeding shall that result in the utter insensitivity or inability of the
be immediately final and executory. As a matter of afflicted party to give meaning and significance to the
course, it follows that no appeal can be had of the marriage he or she has contracted. Psychological
trial court’s judgment in a summary proceeding for incapacity must refer to no less than a mental (not
the declaration of presumptive death of an absent physical) incapacity that causes a party to be truly
spouse under Article 41 of the Family Code. It goes incognitive of the basic marital covenants that
without saying, however, that an aggrieved party concomitantly must be assumed and discharged by the
may file a petition for certiorari to question abuse of parties to the marriage.”
discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in Requisites of psychological incapacity: (JIG)
accordance with the Doctrine of Hierarchy of Courts
1. Juridical Antecedence – Must be rooted in the 3. Marital obligations refer to Art. 68–71, 220,221 and
history of the party antedating the marriage, although 225 of the FC;
the overt manifestations may emerge only after the 4. Plaintiff has burden of proof;
marriage; and 5. Incapacity proven to be existing at the time of the
2. Incurability – Must be incurable or, even if it celebration of marriage;
were otherwise, the cure would be beyond the means 6. Trial court must order the prosecuting attorney or fiscal
of the party involved; and the Solicitor General to appear for the state;
3. Gravity – must be grave/serious such that the 7. Illness is grave enough to bring about disability to
party would be incapable of carrying out the ordinary assume essential marital obligations; and
duties required in a marriage (Santos vs. CA, G.R. No. Interpretations of the National Appellate Matrimonial
112019, January 4, 1995). Tribunal of the Catholic Church of the Philippines while
not controlling should be given great respect.
May involve a senseless, protracted and constant refusal
to comply with the essential marital obligations by one or Note: The Supreme Court said that the provisions of
both of the spouses although he, she or they are Article 36 should be interpreted on a case-to-case basis.
physically capable of performing such obligations (Chi The Court said: “Let it be remembered that each case
Ming Tsoi v. CA, G.R. No. 119190, Jan. 16, 1997). involving the application of Article 36 must be treated
distinctly and judged not on the basis of a priori
A person who is unable to distinguish between fantasy assumptions, predilections or generalizations but
and reality would be unable to comprehend the legal according to its own attendant facts. Courts should
nature of the marital bond much less its psychic meaning interpret the provision on a case-to-case basis, guided by
and the obligations attached to the marriage, including experience, the findings of experts and researchers in
parenting. One unable to adhere to reality cannot be psychological disciplines, and by decisions of church
expected to adhere as well to any legal or emotional tribunals.” (Aurelio vs. Aurelio, G.R. No. 175367, June 6,
commitments (Antonio v. Reyes, G.R. No. 155800, 2011).
March 10, 2006).
In Te v. Yu-Te (G.R. No. 161793, February 13, 2009), the
While disagreements on money matters would, no doubt, SC stressed that it is the court, on a case to case basis,
affect the other aspects of one’s marriage as to make the which determines whether a party to a marriage is
wedlock unsatisfactory, this is not a sufficient ground to psychologically incapacitated, and that each case should
declare a marriage null and void. In fact, the Court takes be treated differently. In ruling that the doctrine in
judicial notice of the fact that disagreements regarding Republic vs. CA and Molina (1997) was inapplicable, the
money matters are common, and even normal Court declared that cases of psychological incapacity
occurrences between husbands and wives (Tongol vs. should be decided not on the basis of a priori
Tongol, G.R. No. 157610, October 19, 2007). assumptions, predictions or generalizations but
according to its own facts. Courts should interpret the
Petitioner is not entitled to moral damages based on provision on a case-to-case basis; guided by experience,
declaration of psychological incapacity because the the findings of experts and researchers in psychological
award of moral damages should be predicated, not on disciplines, and by decisions of church tribunals. While it
the mere act of entering into the marriage, but on specific was not suggesting the abandonment of the Molina
evidence that it was done deliberately and with malice by doctrine, it ruled that said doctrine has become a strait-
a party who had known of his or her disability and yet jacket, forcing all sizes to fit into and be bound by it, and
willfully concealed the same (Noel Buenaventura v. CA, in conveniently applying said doctrine, has allowed
et al., G.R. No. 127358, March 31, 2005). diagnosed sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously debase and
Jurisprudential guidelines (Molina doctrine ) pervert the sanctity of marriage.
(Republic v. Molina G.R. No. 108763, February 13, In ruling that both parties to the marriage were
1997): (PROBE PIG) psychologically incapacitated, the Court also stressed
1. Incapacity must be permanent or incurable; that the expert opinion on the psychological and mental
2. Root cause of the psychological incapacity must be: temperament of the parties must not be discounted, but
a. Medically or clinically identified must instead be considered as decisive evidence.
b. Alleged in the complaint:
i. Sufficiently proven by experts The wife’s promiscuity and the psychiatrist’s report that
ii. Clearly explained in the decision she was suffering from social personality disorder
Final judgment denying a petition for nullity on the ground Determination if two persons are relatives up to the
of psychological incapacity bars a subsequent petition for 4 th civil degree:
declaration of nullity on the ground of lack of marriage 1. Consider the nearest and immediate common
license. There is res judicata (Mallion vs. Alcantara, G.R. ascendant
No. 141528, October 31, 2006). 2. Count the number of relatives from one of them to the
common ascendant and from the common ascendant
In petitions for the declaration of nullity of marriage, the to the other one.
burden of proof to show the nullity of marriage lies with
the plaintiff. Unless the evidence presented clearly Relationship by consanguinity is in itself not capable of
reveals a situation where the parties, or one of them, dissolution. Hence, the mere fact that a common
could not have validly entered into a marriage by reason ascendant, a grandfather for example, died does not
of a grave and serious psychological illness existing at sever the blood relationship of first cousins.
the time it was celebrated, we are compelled to uphold
the indissolubility of the marital tie (Republic v. Galang, Two views on termination of marriage on the
G.R. No. 168335, June 6, 2011). “affinity prohibition”
a. Relationship by affinity terminates with the termination even after death of impugned after death of
of the marriage whether there are children or not in the parties one of the parties
marriage. Co–ownership of Generally Conjugal
b.Relationship by affinity is dissolved if one of the properties through joint Partnership or Absolute
spouses dies and the spouses have no living issues or actual contributions Community
children; it does not cease if there are living issues or Always void Valid until annulled
children of the marriage ‘in whose veins the blood of Action for declaration of
the parties are commingled, since the relationship of Action prescribes
nullity does not prescribe
affinity was continued through the medium of the issue
of marriage (Sta. Maria, M., Persons and Family See Comparative Chart on Effects of Declaration of
Relations, 2010, p. 251-253). Nullity, Annulment and Termination of Marriage in Art. 41
and Legal Separation.
than her husband; claim is just or legal, does not vitiate consent (Art.
1335 par. 3 and 4, NCC)
Must have been done in bad faith. If the woman did
not expressly inform the man of her pregnancy but Undue influence
such physical condition was readily apparent to the It is when a person takes improper advantage of
man, he cannot claim lack of knowledge thereof another, depriving the latter of reasonable freedom of
(Buccat vs. Buccat, G.R. No. 47101, April 25, 1941). choice.
c. Concealment of a sexually transmissible disease, Factors to consider: the confidential, family, spiritual
regardless of its nature, existing at the time of the and other relations between the parties or the fact that
marriage; and the person alleged to have been unduly influenced was
suffering from mental weakness or was ignorant or in
Nature or gravity of disease is irrelevant; it is enough financial distress (Art 1337, NCC).
that there was concealment at the time of the
ceremony. 5. Physical incapability of either party to consummate the
marriage with the other, and such incapacity continues
d. Concealment of drug addiction, habitual alcoholism, and appears to be incurable (impotency)
homosexuality or lesbianism existing at the time of
the marriage Impotency being an abnormal condition should not be
presumed. The presumption is in favor of potency
Note: There is fraud when, through insidious words (Jimenez vs. Cañizares G.R. No. L-12790 August 31,
or machinations of one of the contracting parties, the 1960).
other is induced to enter into a contract which,
without them, he would not have agreed to (Art. Article 45(5) of the Family Code refers to lack of power
1338, NCC). to copulate. Incapacity to consummate denotes the
permanent inability on the part of the spouses to
The enumeration in Article 46 is exclusive. Hence, perform the complete act of sexual intercourse. Non-
misrepresentation as to character, health, rank, consummation of a marriage may be on the part of the
fortune or chastity is NOT a ground for annulment husband or of the wife and may be caused by a
(Anaya vs. Palaroan, GR. No. L–27930, November physical or structural defect in the anatomy of one of
26, 1970) the parties or it may be due to chronic illness and
inhibitions or fears arising in whole or in part from
4. Vitiated consent of either party through force, psychophysical conditions. It may be caused by
intimidation or undue influence psychogenic causes, where such mental block or
disturbance has the result of making the spouse
Criminal liability attaches to anyone who uses violence, physically incapable of performing the marriage act
intimidation and fraud in contracting a marriage (Art. (Alcazar vs. Alcazar G.R. No.174451 October 13,
350 RPC) 2009).
Persons Prescrip-
Grounds Ratifi-
Refusal on the part of a Filipino girl to submit to a Who May tive
(F 2I 2NS) cation
physical examination to determine impotency does Sue Period
NOT raise the presumption of impotency because of Relative
the natural modesty of our native girls. ( Jimenez v. guardian Anytime
Canizares, L-12790, August 31, 1960) or persons before the
having death of Free
6. Sexually transmissible disease of either party found to legal either party cohabita-
be serious and appears to be incurable. charge of tion after
Elements: (ESSA) the insane insane
a.Existing at the time of marriage During regains
b.Sexually transmissible disease lucid sanity
c. It is serious; and Insane interval or
d.Appears incurable spouse after
ACTION FOR ANNULMENT OF VOIDABLE regaining
MARRIAGES (Art. 47) sanity
Persons Prescrip- Parent/
Grounds Ratifi- Anytime
Who May tive legal
(F 2I 2NS) cation before the
Sue Period guardian
“no
Free having
consent” Free
Within 5 cohabita- charge of
party cohabita-
Force, Injured years from tion after Non– the “no–
reaches 21 tion after
intimida- party the time disap- consent consent”
reaching
tion, or the force, pearance party
age of 21
undue intimida- of force, Within 5
“No
influence tion, or intimida- years after
consent”
undue tion / undue reaching
party
influence influence 21
ceased respect- Within 5
No ratifica-
tively years after
tion since
Free Injured the
STD defect is
cohabita- party celebration
perma-
tion even of the
Within 5 nent.
with full marriage
years from
Injured know-ledge
Fraud the Note: Whichever comes first may convalidate the
party of
discovery marriage: cohabitation OR prescription.
facts
of fraud
constitu-
ting the Additional requirements for annulment or
fraud declaration of nullity (Art. 48 par. 1; Supreme Court
Within 5 En Banc Resolution A.M. 02-11-10-SC)
No Prosecuting attorney or fiscal should:
Incapabi- years after
ratification 1. Appear on behalf of the state
lity to Injured the
since 2. Take steps to prevent collusion between the parties
consum- party celebration
defect is 3. Take care that evidence is not fabricated or
mate of the
permanent suppressed (Sec.9)
marriage
Insanity Sane Anytime Free
spouse before the cohabita- There will be collusion only if the parties had arranged to
who has death of tion after make it appear that a ground existed or had been
no know- either party insane committed although it was not, or if the parties had
ledge of regains connived to bring about a matrimonial case even in the
the sanity absence of grounds therefor (Ocampo vs. Florenciano,
insanity G.R. No. L–13553, February 23, 1960).
Visitation rights flow from the natural right of both parents 3. Registration of the entry of judgment granting petition
to each other’s company. There being no such parent– for declaration of absolute nullity or annulment in the
child relationship between them, Gerardo has no Civil Registry where the marriage was celebrated and
demandable right to visit the child of Mario with Theresa in the Civil Registry of the place where the FC was
(Concepcion vs. CA GR. No. 12345, August 31, 2005). located.
4. Registration of approved partition and distribution of
Decision on the nullification of the marriage properties of the spouses in the proper Registry of
No judgment shall be based upon stipulation of facts or Deeds where the real properties are located.
confession of judgment (Art. 48 par. 2).
Note: The rule applies to Legal Separation.
Stipulation of facts
An admission by both parties made in court agreeing to Effects of nullity
the existence of the act constituting the ground for 1. Either of the former spouses may marry again after
annulment or for the declaration of nullity. complying with the requirements of Art. 52 (Art. 53).
2. On Children (Art. 54)
Confession of judgment a. Those conceived or born before the judgment or
The admission made in court by the respondent annulment or absolute nullity of the marriage under
admitting fault as invoked by the plaintiff to sever the Art. 36 has become final and executory, shall be
marriage ties (Sta. Maria, M., Persons and Family considered legitimate.
Relations, 2010, p. 319). b. Those conceived or born of the subsequent
marriage under Art. 53 shall likewise be legitimate.
If the defendant spouse fails to answer the complaint, the
court CANNOT declare him or her in default; instead, it In both instances under Articles 40 and 45, the marriages
should order the public prosecutor to determine if are governed either by absolute community of property or
collusion exists between the parties (Section 6, Rule 18 conjugal partnership of gains unless the parties agree to
of the Revised Rules of Court; Sec. 13 (b); Supreme a complete separation of property in a marriage
Court En Banc Resolution A.M. 02-11-10-SC). settlement entered into before the marriage. Since the
property relations of the parties is governed by absolute
If aside from a stipulation of facts or a confession of community of property or conjugal partnership of gains,
judgment, sufficient evidence was presented, the court there is a need to liquidate, partition and distribute the
may render a judgment annulling the marriage (Ocampo properties (Dino v. Dino, G.R. No. 178044, January 19,
v. Florenciano, GR. No. L–13553, February 23, 1960). 2011).
A decree of legal separation or relative divorce does not There must be absolute cessation of marital relations,
affect the marital status, there being no severance of the duties, and rights, with the intention of perpetual
vinculum (Laperal v. Republic G.R. No. L-18008 October separation (Partosa-Jo vs. CA, G.R. No. 82606,
30, 1962). December 18, 1992). Abandonment implies total
renunciation of duties.
A legal separation involves nothing more than bed-and-
board separation of the spouses (Lapuz v. Eufemio G.R. 8. Physical violence or moral pressure to compel
No. L-30977 January 31, 1972). petitioner to change religious or political affiliation
9. Contracting by respondent of a subsequent bigamous
marriage; and
10. Sexual infidelity or perversion.
EXCLUSIVE GROUNDS FOR LEGAL Sexual perversion includes engaging in such behavior
SEPARATION: (Art. 56) (PAA-ID-LAMBS) not only with third persons but also with the spouse
1. Repeated physical violence or grossly abusive (Sta. Maria, M., Persons and Family Relations, 2010,
conduct directed against the petitioner, a common p. 359).
child, or a child of the petitioner
2. Attempt of the respondent to corrupt or induce the Note: Mere preponderance of evidence will suffice to
petitioner, a common child, or a child of the petitioner, prove the existence of these grounds EXCEPT the 4 th
to engage in prostitution, or connivance in such ground.
corruption or inducement
RA 9262 Anti-Violence Against Women and
Refers to prostitution only and irrespective of the age Children (March 8, 2004)
of the child (Sta. Maria, M., Persons and Family
Relations, 2010, p. 356) Acts of Violence:
1. Causing physical harm to the woman or her child;
The law does not give a cause of action to the 2. Threatening to cause the woman or her child physical
petitioner to file a case for legal separation on the harm;
ground that the respondent-spouse committed the 3. Attempting to cause the woman or her child physical
ground provided in Art. 55(3) upon his or her own child harm;
with another person. However, such act may be a 4. Placing the woman or her child in fear of imminent
cause to suspend or terminate, depending on the physical harm;
severity, the parental authority of the respondent over 5. Attempting to compel or compelling the woman or her
his own child pursuant to Art. 231 (2) and (4) of he child to engage in conduct which the woman or her
Family Code (Sta. Maria, M., Persons and Family child has the right to desist from or desist from conduct
Relations, 2010, p. 357). which the woman or her child has the right to engage
in, or attempting to restrict or restricting the woman's or
3. Attempt by the respondent against the life of the her child's freedom of movement or conduct by force
petitioner or threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against
The attempt on the life of the spouse must proceed the woman or child. This shall include, but not limited
from an evil design and not from any justifiable cause to, the following acts committed with the purpose or
like self-defense or from the fact that the spouse effect of controlling or restricting the woman's or her
caught the other in flagrante delicto having carnal child's movement or conduct:
knowledge with another man or woman (Sta. Maria, a. Threatening to deprive or actually depriving the
M., Persons and Family Relations, 2010, p. 359-360). woman or her child of custody to her/his family;
b. Depriving or threatening to deprive the woman or her
4. Final judgment sentencing the respondent to children of financial support legally due her or her
imprisonment of more than 6 years even if pardoned family, or deliberately providing the woman's children
5. Drug addiction or habitual alcoholism of the insufficient financial support;
respondent c. Depriving or threatening to deprive the woman or her
6. Lesbianism or homosexuality of the respondent child of a legal right;
7. Abandonment of the petitioner by the respondent
d. Preventing the woman in engaging in any legitimate disqualified from having custody of her children. In no
profession, occupation, business or activity or case shall custody of minor children be given to the
controlling the victim's own money or properties, or perpetrator of a woman who is suffering from battered
solely controlling the conjugal or common money, or woman syndrome (Sec. 28, RA 9262).
properties;
GROUNDS FOR DENIAL OF PETITION (Art. 56):
6. Inflicting or threatening to inflict physical harm on (C 4–MP–DR)
oneself for the purpose of controlling her actions or 1. Condonation of the offense or act complained of.
decisions;
7. Causing or attempting to cause the woman or her child Condonation
to engage in any sexual activity which does not It is the act of forgiving the offense after its commission
constitute rape, by force or threat of force, physical (Sta. Maria, M., Persons and Family Relations, 2010,
harm, or through intimidation directed against the p. 362).
woman or her child or her/his immediate family;
8. Engaging in purposeful, knowing, or reckless conduct, Failure of the husband to look for his adulterous wife is
personally or through another that alarms or causes NOT condonation to wife's adultery (Ocampo v.
substantial emotional or psychological distress to the Florenciano, G.R. No. L–13553, February 23, 1960).
woman or her child. This shall include, but not be
limited to, the following acts: The act of the husband in having sexual intercourse
a. Stalking or following the woman or her child in public with his wife in spite of his knowledge of the latter’s
or private places; infidelity is an act of implied condonation. A single
b. Peering in the window or lingering outside the voluntary act of sexual intercourse by the innocent
residence of the woman or her child; spouse after discovery of the offense is ordinarily
c. Entering or remaining in the dwelling or on the sufficient to constitute condonation (Bugayong vs.
property of the woman or her child against her/his Ginez, G.R. No. L-10033, December 28, 1956).
will;
d. Destroying the property and personal belongings or 2. Consent to commission of offense or act complained of
inflicting harm to animals or pets of the woman or
her child; and Consent is prior to the act; condonation comes after
e. Engaging in any form of harassment or violence; (People v. Schneckenburger, 73 Phil 413).
9.Causing mental or emotional anguish, public ridicule or There is consent when either of the spouses agreed to
humiliation to the woman or her child, including, but not or did not object, despite full knowledge, to the act
limited to, repeated verbal and emotional abuse, and giving rise to a ground for legal separation, before such
denial of financial support or custody of minor children act was in fact committed (Sta. Maria, M., Persons
of access to the woman's child/children (Sec. 5, RA and Family Relations, 2010, p. 363).
9262).
3. Connivance between parties of commission of
In cases of legal separation, where violence as offense or act constituting ground
specified in RA 9262 is alleged, Article 58 of the
Family Code on the 6 months cooling-off period shall Connivance or procurement
NOT apply. The court shall proceed on the main case Denotes direction, influence, personal exertion, or
and other incidents of the case as soon as possible. other action with knowledge and belief that such action
The hearing on any application for a protection order would produce certain results and which results are
filed by the petitioner must be conducted within the produced (Cohen, Divorce and Alimony in North
mandatory period specified (Sec. 19, RA 9262). Carolina, 59, IV, p. 98 as cited Sta. Maria, p. 364).
The woman victim of violence shall be entitled to the 4. Collusion between parties
custody and support of her child/children. Children
below seven (7) years old older but with mental or Collusion
physical disabilities shall automatically be given to the It is a corrupt agreement between the spouses by
mother, with right to support, unless the court finds making it appear that the marriage is defective due
compelling reasons to order otherwise. A victim who is to the existence of any of the grounds and agreeing
suffering from battered woman syndrome shall not be to represent such false or non-existent cause of
action before the proper court to procure divorce or No legal separation may be decreed unless the Court
legal separation (Sta. Maria, M., Persons and Family has taken steps toward the reconciliation of the spouses
Relations, 2010, p. 317). and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (Art. 59)
5. Mutual guilt or where both parties have given ground
for legal separation Note: The wife who has been granted legal separation
cannot petition to be allowed to revert to her maiden
6. Prescription name (Art. 372, NCC).
An action for legal separation shall be filed within 5 Even if the parents are separated de facto, still in the
years from time of occurrence of the cause (Art. 57) absence of judicial grant of custody to one parent, both
parents are entitled to the custody of their child. The
7. Death of either party during the pendency of the case remedy of habeas corpus may be resorted to by the
(Lapuz–Sy vs. Eufemio, G.R. No. 113842, August 3, parent who has been deprived of the rightful custody of
1994) the child (Salientes v. Abanilla, G.R. No. 162734, August
29, 2006). A decree of legal separation, on the ground of
8. Reconciliation of the spouses during the pendency of concubinage, may issue upon proof of preponderance of
the case evidence in the action for legal separation. No criminal
proceedings or conviction is necessary.
By filing in the same proceeding a joint manifestation
under oath, duly signed by the spouses (Art. 65) RECONCILIATION OF LEGALLY SEPARATED
SPOUSES
Cooling–off period If the spouses should reconcile, the corresponding joint
6-month period from the filing of the petition designed to manifestation under oath duly signed by them shall be
give the parties enough time to further contemplate their filed with the court in the same proceeding for legal
positions with the end in view of attaining reconciliation separation (Art. 65).
between them. No action for Legal Separation shall be
tried during such period (Art. 58). Effects of reconciliation of the spouses (Art. 66)
1. The legal separation proceedings, if still pending, shall
It is a mandatory requirement and its non-compliance thereby be terminated at whatever stage.
makes the decision infirm (Pacete vs. Carriaga, G.R. No. 2. The final decree of legal separation shall be set aside,
53880, March 17, 1994). but the separation of property and any forfeiture of
share of the guilty spouse already effected shall
The cooling-off period does not mean the overruling of subsist, unless the spouses agree to revive their
provisions as custody, alimony, and support pendente former property regime.
lite.
Revival of property regime (Art. 67)
A writ of preliminary mandatory injunction for the return of Agreement of revival and motion for its approval shall be
the wife’s paraphernal property can in the meantime be filed in court in the same proceeding for legal separation
heard and granted during the 6-month period (Somosa- and shall be executed under oath and shall specify:
Ramos v. Vamenta, G.R. No. L-34132 July 29, 1972). 1. Properties to be contributed anew to restored regime;
2. Those to be retained as separated properties of each
Effects of filing petition: (Art. 61) spouse;
1. The spouses shall be entitled to live separately from 3. Names of all known creditors, addresses, and amounts
each other owing to each.
2. In the absence of an agreement between the parties,
the court shall designate the husband, the wife, or a After due hearing, court shall take measures to protect
third person to manage the absolute community or interest of creditors and such order shall be recorded in
conjugal partnership property (Art. 61) the proper registries of properties but the same shall not
3. The husband shall have no more right to have sexual prejudice creditors not listed or notified, unless debtor-
intercourse with his wife. spouse has sufficient separate properties to
satisfy creditor’s claim.
The grounds alleged must be proved. No judgment on the pleadings, summary judgment or
confession of judgment shall be allowed.
Summary proceeding;
judgment may be Notes:
rendered based on Stipulation of facts- an admission by both parties made in court agreeing to the existence of
affidavits, documentary the act constituting the ground for annulment or for the declaration of nullity.
evidence or oral Confession of judgment- the admission made in court by the respondent admitting fault as
testimonies at the sound invoked by the plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family
discretion of the court Relations, 2010, p. 319).
(Art. 246)
In legal separation cases, no decree shall be issued unless the Court has take steps toward
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable (Art. 59).
After decree:
To the innocent spouse but no child under 7 shall be separated from the mother unless there are
compelling reasons
Child Support
Support in case of During pendency:
dispute shall be decided 1. Written agreement
by the court in separate 2. In the absence thereof, from properties of the absolute community of property (ACP) or
proceedings for custody conjugal partnership (CP)
but same considerations
as in Declaration of After Decree:
Nullity Either parent/ both may be ordered by court to give an amount necessary for support in
proportion to resources/means of giver and necessities of recipient
Spousal Support
During pendency:
1. Written agreement
2. In the absence thereof, from properties of the ACP or CP, considered as advance to be
deducted from share during liquidation
3. Restitution if after final judgment court finds that person providing support pendente lite is
not liable therefor (Sec. 7, Rule 61, ROC)
Property Relations
1. ACP or CP shall be dissolved and liquidated 1. ACP or CP shall be dissolved
2. If either spouse contracted marriage in bad faith, he or she has no right to any and liquidated.
share of net profits earned by ACP or CP 2. Offending spouse has no
3. Net profits shall be forfeited in favor of common children, or if none, children of right to any share of net
guilty spouse by previous marriage, or in default thereof, the innocent spouse profits earned by ACP or CP
4. In all other cases of void marriage, Art. 147 and 148 applies (Valdes vs. RTC) 3. Net profits shall be forfeited
in favor of common children,
In addition, for marriages under Art. 40 and 45: or if none, children of guilty
1. All creditors of spouses and of the ACP or CP shall be notified of the proceedings spouse by previous
for liquidation marriage, or in default
2. Conjugal dwelling and lot on which it is situated shall be adjudicated pursuant to thereof, the innocent spouse.
Art. 102 and 129
Presumptive Legitime
1. Delivery of presumptive legitime of all common children
computed as of date of final judgment without prejudice
to ultimate successional rights of children accruing
upon death of either or both parents
2. Shall be considered as advances on common
children’s legitime (Art. 51)
Donation Propter Nuptias
1. Shall remain valid, 1. Shall remain valid, unless 1. Shall remain valid, 1. Donor is given option to
unless donee donee contracted marriage unless donee revoke; if donor decides to
contracted marriage in bad faith, in which case, contracted marriage revoke, must do so within 5
in bad faith, in donation is revoked by in bad faith, in which years from finality of decree
which case, operation of law. case, donation is 2. But if ground for legal
donation is revoked 2. If both spouses of revoked by operation separation is sexual infidelity
aggrieved party may apply to the court for relief. (Art 72.)
R IGHTS
AND O BLIGATIONS
BETWEEN THE H USBAND AND The relief may take on many forms: filing a case for legal
separation if there are grounds for the same; filing an
THE W IFE (LORF-JM)
action for declaration of nullity based on Art 36 if the
neglect is such that it does not create a functional marital
1. Live together life; petitioning the court for receivership, for judicial
separation of property, or for authority to be the sole
Act of living together is a voluntary act of the spouses administrator of community property or conjugal
which cannot be compelled by any proceeding in court. partnership.(Sta Maria, Melencio Jr. S., Persons and
Family Relations Law,page 408 ex., 3-4 [2010])
Only the moral obligation of the spouses constitutes the
motivating factor for making them observe the said EXERCISE OF PROFESSION
duties and obligations which are highly personal
(Ramirez-Cuaderno v Cuaderno, 12 SCRA 505). General Rule: Both can engage in any lawful enterprise
or profession WITHOUT the consent of the other.
If the wife refuses unjustifiably to live with her husband,
the court will admonish but not order her return; and Exception: The other spouse may object only on valid,
even if an order is made, contempt proceeding against serious and moral grounds.
the wife will not prosper. The only remedy here for the
husband is to refuse to grant support (Mariano B. In case of disagreement, court shall decide whether (1)
Arroyo v. Dolores C. Vasquez de Arroyo, 42 Phil. 54). the objection is proper; and (2) the benefit accrued to the
family prior to the objection or thereafter [Art. 73 (2)].
2. Observe mutual love, respect and fidelity
If a husband compels the wife to desist from pursuing a
3. Render mutual help & support profession or any other conduct which the wife has the
right to engage in, this can be considered acts of violence
4. Fix the family domicile against women under RA 9262 (Sta. Maria, M., Persons
a. Both husband and wife shall fix the family domicile. In and Family Relations, 2010, M. p. 409 )
case of disagreement, the court shall decide.
b. The court may exempt one spouse from living with RULE IF BUSINESS BENEFITED FAMILY
the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. General rule:
However, such exemption shall not apply if the same
is not compatible with the solidarity of the family (Art 1. Debts and obligations incurred of whatever nature and
69). regardless of the time they were incurred but
redounding to the benefit of the family shall be
5. Joint responsibility for the support of the family chargeable to the ACP or the CPG.
a. Expenses shall be paid from the community property
b. In the absence thereof, from income or fruits of their 2. An obligation incurred as a result of a spouse’s exercise
separate properties of a legitimate profession is an obligation redounding to
c. In the absence or insufficiency thereof, from their the benefit of the family shall be shouldered by the ACP
separate properties (Art. 70) or CPG.
When parties stipulate in their MS that local custom Note: It is argued by some law practitioners and authors
shall apply or that ACP regime shall not govern but fail that while no person below 18 can enter into a valid
to stipulate what property regime will be applied. marriage and since the MS is required to be executed
before the marriage, one below 18 may execute a MS as
4.In the absence of local custom, rules on co–ownership long as he or she is 18 or above at the time of marriage.
will apply (Art. 74).
Efficacy of marriage settlement (Art. 81)
upon the celebration of the marriage shall be valid 2. Donation in MS not more than one-fifth (1/5) of present
property (Art. 84)
2. Property relations shall be governed by Philippine laws,
regardless of the place of the celebration of the Any excess shall be considered void and the donation
marriage or the parties’ residence (Art. 80). will be reduced to one-fifth.
General Rule: Must be made before the marriage, in If one of the requisites is not complied with, it may still be
writing, signed by parties valid as an ordinary donation.
Exceptions: Modifications made through judicial decree For donation of present property to be valid, the rules
during the marriage: governing ordinary donations under Title III of Book III of
1. In case of revival of former property regime between the Civil Code must be observed.
reconciling spouses after decree of legal separation has
been issued (Art. 66, 67) Please refer to Property on requisites for valid donations.
2. When abandoned spouse files petition for judicial
separation of property under Art. 128 DPN of future property
3. When a spouse files petition for judicial separation of DPN of future property is allowed by way of exception to
property for sufficient cause under Art. 135 Art. 751 of NCC (which provides that donations cannot
4. Petition for voluntary dissolution of property regime comprehend future property). It is governed by the law on
under Art. 136 testamentary succession both as to intrinsic and extrinsic
validity. However said DPN can only be revoked by the
DONATION BY REASON OF MARRIAGE donor only on the basis of Art. 86 of the FC (Art. 84 par.
Donations propter nuptias (DPN) are made by one spouse 2).
in favor of the other or by a stranger. It is without onerous
consideration, the marriage being merely the occasion or DPN of encumbered property
motive for the donation, not its causa. Being liberalities, The donation is valid because the donor is still the owner,
they remain subject to reduction for inofficiousness upon even if it is encumbered. If mortgage is foreclosed and
the donor’s death, should they infringe the legitime of a sold at a lesser price, donee is not liable for deficiency but
forced heir (Mateo vs. Lagua, No. L-26270, October 30, if sold for more, donee is entitled to excess (Art. 85).
1969).
Donations propter nuptias and ordinary donations
Requisites: (Art. 82) (COB) Donations Propter
Ordinary Donations
1. In consideration of marriage Nuptias
2. In favor of one or both of the future spouses Formalities
3. Made before celebration of marriage Governed by the rules on Governed by rules on
ordinary donations except donations (Arts. 725–773,
Rules in case of donation by the would-be spouses that if future property is NCC)
to each other: (MOAC) donated, it must conform
1. There must be a valid MS stipulating a property regime with formalities of wills
other than ACP (Art. 84). Present Property
May be donated but only No limit except that donor
Grounds for revocation (VoCALRI) Note: No waiver of rights allowed during the marriage
1. Marriage not celebrated or declared Void ab initio except in case of judicial separation of property. The
except those made in MS that do not depend on waiver must be in a public instrument and recorded in the
celebration of marriage office of the local civil registrar where the marriage
contract was recorded as well as in the proper registry of
If made by a stranger, action for revocation may be property (Art. 89 and 77). The same applies to CPG (Art.
brought under ordinary rules on prescription: if in 107).
writing, brought within 10 years and if oral, within 6
years (Albano, Ed Vincent S., Persons and Family Rule on games of chance (Art. 95)
Relations, 2006). Loss: Shall be borne by the loser-spouse and shall not be
charged to the community property
2. Marriage without parental consent Winnings: Shall form part of the community property (Art.
3. Marriage is annulled and donee is in bad faith 95)
4. Upon legal separation, the donee being the guilty
spouse Exception: If said ticket was gratuitously given by a friend
5. Complied with resolutory condition to a spouse, only upon express provision of the donor will
6. Donee commits acts of ingratitude as specified by Art. it be considered part of the community property.
765 of NCC (Art. 86).
Note: The same applies to CPG (Art. 123).
II. CONJUGAL PARTNERSHIP OF GAINS (CPG) payable in partial payments/ installments and collected
It is that formed by a husband and wife whereby they during the marriage (Art. 119).
place in a common fund the proceeds, products, fruits and
income of their separate properties, and those acquired by Disposition of CPG
either or both spouses through their efforts or by chance, A wife’s consent to the husband’s disposition of conjugal
the same to be divided between them equally (as a property does not always have to be explicit or set forth in
general rule) upon the dissolution of the marriage or the any particular document, so long as it is shown by the acts
partnership (Art. 106). of the wife that such consent was indeed given ( Pelayo v.
CA, G.R. No. 141323 June 8, 2005).
The CPG shall be governed by the rules on the
CONTRACT OF PARTNERSHIP in all that is not in The sale of conjugal property requires the consent of both
conflict with what is provided in the chapter on CPG or by spouses; otherwise the sale shall be void, including the
the spouses in their MS (Art. 108). portion of the conjugal property pertaining to the husband
who contracted the sale (Homeowners and Savings Loan
Before the presumption under Art. 116 applies (that Bank vs. CA, GR No 153802, March 11, 2005).
properties acquired during marriage are presumed
conjugal), there must be proof that the property was Exclusive property of each spouse (OGREC) (Art.
acquired during the marriage. This is a condition sine qua 109)
non for the operation in favor of conjugal ownership 1. That which is brought to the marriage as his/her own,
(Metrobank, et al. v. Tan, GR No. 163712, November 30, whether with or without legitimate descendants
2006). 2. Acquired during the marriage by gratuitous title
Properties under conjugal partnership (L 2C 2 FONTI) Property donated/left by will to spouses, jointly with
1. Obtained from labor, industry, work or profession of designation of determinate shares, shall pertain to
either or both spouses donee-spouse as exclusive property; in the absence of
2. Livestock existing upon dissolution of partnership in designation, property shall be divided between them but
excess of number of each kind brought to the marriage shall belong to them exclusively (Art. 113).
by either spouse
3. Acquired by chance such as winnings from gambling, If spouse does not accept his/her part of the donation,
but losses therefrom shall be borne exclusively by loser- accretion sets in favor of the other spouse who will own
spouse all of property donated as separate property.
4. Acquired during the marriage by onerous title with
conjugal funds Accretion will not apply if donor so provides or if there is
designation of determinate properties (i.e. house, car).
Damages for physical injuries inflicted by a third person
are exclusive property (Lilius vs. Manila Railroad Co. If donation is onerous, charges shall be borne by
G.R. No. 42551 September 4, 1935) exclusive property of donee-spouse, whenever
advanced by the CPG.
Damages from illegal detention of exclusive property
pertains to CPG if detention deprived the CP of the use Retirement benefits, pensions, annuities, gratuities,
and earnings thereof (Bismorte vs. Aldecoa, G.R. No. L- usufructs, and similar benefits acquired by gratuitous
5586, December 10, 1910). title are exclusive properties; if by onerous title during
marriage (i.e. contributions to pension funds or
Note: The registration of the property in either party’s deduction from salaries of common funds), they are CP
name alone is immaterial if the property was acquired (Art. 115).
with conjugal funds (Marigsa v. Macabuntoc, G.R. No.
4883, September 27, 1910). Unearned increment (such as increase in the value of
the paraphernal property) belongs to the spouse
5. Fruits of the conjugal property during the marriage concerned.
6. Acquired through occupation such as fishing
7. Net fruits of their exclusive property 3. Acquired by right of redemption, barter or exchange
8. Share of either spouse in hidden treasure (Art. 117) with property belonging to either spouse
9. Interest falling due during the marriage on principal
amount of credit belonging to one spouse which is
Ownership still belongs to person who has right of the principal property at the time of the improvement, the
redemption, even if conjugal funds are used to redeem, entire property shall belong to CPG subject to
subject to reimbursement reimbursement of the value of the principal property at the
time of the improvement to the owner-spouse.
If separate property in addition to conjugal funds were
used as part of purchase price of a new property, the Accession: if the cost of the improvement of the plus
new property shall be considered conjugal value is equal to or less than the value of the principal
property at the time of the improvement, the entire
4. Purchased with exclusive money of either spouse property remains the exclusive property of the spouse,
subject to reimbursement of the value of the cost of
5. Principal amount of credit belonging to one spouse improvement
payable in partial payments/ installments, which will be
fully paid during the marriage (Art. 119). The obligation to reimburse rests on the spouse upon
whom ownership of the entire property is vested. There is
Use of Exclusive Properties: (PISI) no obligation on the part of the purchaser of the property
1. Payment of personal debts in case the property is sold by the owner-spouse (Ferrer
2. Fines and indemnities v. Ferrer, G.R. No. 166496, November 29, 2006).
3. Support of illegitimate children of the owner-spouse
4. In case of insufficiency of the CPG CHARGES UPON AND OBLIGATIONS OF ACP and CPG
(Sta. Maria, M., Persons and Family Relations, 2010, p. ACP (Art. 94) CPG (Art. 121)
504) Support of the spouses, their common children, and
legitimate children of either spouse
The spouses retain the ownership, possession, For illegitimate children,
administration and enjoyment of their exclusive properties For illegitimate children, support from separate
(Art. 110). support from separate property of person obliged
property of person obliged to give support. In case of
A spouse may mortgage, encumber, alienate or otherwise to give support. In case of insufficiency or absence of
dispose of his or her exclusive property, without the insufficiency or absence of separate property, CP shall
consent of the other spouse, and appear alone in court to separate property, ACP advance support,
litigate with regard to the same (Art. 111). shall advance support, chargeable to share of
chargeable to share of parent upon liquidation, but
Transfer of administration of the exclusive property of parent upon liquidation only after obligations in Art.
either spouse does not confer ownership of the same 121 have been covered
(Rodriguez v. De la Cruz, G.R. No. L-3629, September Debts and Obligations Contracted During Marriage
28, 1907). a. By the administrator spouse designated in
MS/appointed by court/one assuming sole
Property bought on installment (Art. 118) administration
Property bought on installments paid partly from exclusive b. By one without the consent of the other
funds of the spouses and partly from conjugal funds: c. By one with the consent of other
1. If full ownership was vested before the marriage – it d. By both spouses
shall belong to the buyer-spouse (ex: contract to sell,
full payment made during marriage using CP) For (a) and (b), creditor has burden of proving benefit to
family and ACP/CPG chargeable to extent of benefit
2. If full ownership was vested during the marriage – it proven, otherwise, chargeable to separate property of
shall belong to the conjugal partnership (ex: contract of obligor spouse
sale)
For (c) and (d), benefit to family presumed
In both cases, there is reimbursement upon liquidation. In All taxes, liens, charges and expenses including minor
(1), owner-spouse reimburses the CP. In (2), CP shall repairs upon ACP or CP
reimburse the owner-spouse.
ACP (Art. 94) CPG (Art. 121) donation of conjugal partnership property, which is
Taxes and Expenses for prohibited.
mere preservation during
Taxes and Expenses for marriage upon separate The conjugal partnership is NOT liable for an indemnity
mere preservation during property of either spouse, agreement entered into by the husband to accommodate
marriage upon separate regardless of whether used a third party (Security Bank v. Mar Tierra Corp., GR No.
property of either spouse by family because use and 143382, November 29, 2006).
used by family enjoyment of separate
property of the spouses PROVISIONS COMMON TO ACP AND CPG
belong to the partnership
Expenses to enable either spouse to commence/complete A. Administration of property ( ACP: Art. 96-98/
a professional, vocational or other activity for self- CPG: Art. 124-125)
improvement
General Rule: Administration shall belong to both
Value donated/promise by both spouses in favor of spouses jointly.
common legitimate children for exclusive purpose of Exceptions:
commencing or completing professional or vocational 1.In case of disagreement, husband’s decision shall
course or other activity for self-improvement prevail, subject to recourse to the court by the wife for
Expenses of litigation between spouses unless suit found proper remedy within 5 years from date of contract
to be groundless implementing such decision
1. Ante-Nuptial Debts For Ante-Nuptial Debts, 2.In case one spouse is incapacitated or unable to
Chargeable to ACP if same as ACP but in case of participate in the administration of the common
redounded to benefit of insufficiency of separate properties, the other spouse may assume sole powers
family property, obligations of administration (Art. 96).
2. Personal debts not enumerated in Art. 121 These powers do NOT include:
redounding to benefit must first be satisfied a. Disposition
of family such as before such debts may be b. Encumbrance
liabilities incurred by chargeable to the CP
reason of crime or Written consent of other spouse or authority of the
quasi-delict, court is required, otherwise disposition or encumbrance
chargeable to separate is VOID.
property of debtor
spouse The husband and wife are the joint administrators of their
3. In case of insufficiency properties forming part of the conjugal partnership and
of separate property, absolute community of properties. The right vested upon
chargeable to ACP but them to ½ of the conjugal assets does not vest until the
considered advances dissolution and liquidation of the conjugal partnership. The
deductible from share sale by the husband of property belonging to the conjugal
of debtor-spouse upon partnership or the absolute community without the
liquidation consent of the wife or authority of the court is void (Abalos
vs. Macatangay, G.R. No. 155043, September 30, 2004).
Note: The separate properties shall be solidarily and
subsidiarily liable for the obligations if the community or The transaction, however, shall be construed as a
conjugal properties are insufficient. continuing offer on the part of the consenting spouse and
the third person, until acceptance by the other spouse or
Benefits that might accrue to a husband in his signing a authorization by the court before the offer is withdrawn by
surety or guarantee agreement not in favor of the family either or both offerors (ACP: Art. 96;CPG: Art. 124).
but in favor of his employer corporation are not benefits
that can be considered as giving a direct advantage Neither spouse may donate any community property
accruing to the family. Hence, the creditors cannot go without the consent of the other but either may, without
against the conjugal partnership property in satisfying the the other’s consent, make moderate donations for charity
obligation subject of the surety agreement. A contrary view or on occasions of family rejoicing or family distress (ACP:
would put in peril the conjugal partnership property by Art. 98; CPG:Art. 125).
allowing it to be given gratuitously similar to cases of
Exception: In ACP, either spouse may dispose by will of 3. In the absence of sufficient community property, the
his or her interest in the ACP (Art. 97) separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present
B. Remedies of present spouse in case of shall, upon proper petition in a summary proceeding, be
abandonment by the other spouse or failure to given judicial authority to administer or encumber any
comply with obligations (marital, parental or specific separate property of the other spouse and use
property relations) the fruits or proceeds thereof to satisfy the latter's share
1. Receivership (Art. 100).
1. Judicial separation of property
2. Authority to be the sole administrator of the D. Steps in liquidation of ACP and CPG (Art. 102 and
absolute community (ACP: Art. 101; CPG: Art. 128) 129)
1. Inventory of ACP or CPG properties and
A spouse is deemed to have abandoned the other when exclusive property of each spouse
he or she has left the conjugal dwelling without any
intention of returning. Three (3) months’ disappearance or Separate property included as it is solidarily liable to
failure to give within the same period any information as to creditors and will be used to pay them if ACP or CPG
a spouse’s whereabouts prima facie raises a presumption is insolvent
that the absent spouse has no intention of returning
(ACP: Art. 101 par. 3; CPG: Art. 108 par. 3). Should also include receivables from each spouse
for:
C. Grounds for termination (ACP: Art. 99-101; CPG: a. Amounts advanced for personal debts of each
Art. 126-128) : (LADS) spouse
1. Decree of legal separation b. Support pendent elite of each spouse
c. For CPG, include value of improvements
2. Annulment or declaration of nullity of marriage constructed on separate property
Surviving spouse shall liquidate ACP within 1 year from Must first pay out of the ACP or CP property, if
death of deceased spouse if no judicial settlement is insufficient, spouses solidarily liable with separate
instituted, failure to do so upon lapse of 1 year period properties
makes any disposition or encumbrance of ACP void
For CPG, must first reimburse spouse for separate
Mandatory regime of complete separation of property property acquired by CP due to increased value
governs subsequent marriage of surviving spouse if thereof as a result of improvements thereon
he/she fails to comply with liquidation of ACP of
previous marriage 2. Delivery to each spouse of his/her separate
property if any
4. Judicial separation of property 3. For CPG, unless owner indemnified from
whatever source, payment of loss or deterioration of
Note: Effect of separation in fact (ACP: Art. 102; CPG: movables belonging to either spouse that was used
Art. 127) for the benefit of the family
4. Division of net assets (for ACP) or net profits
General Rule: The separation in fact between husband (CPG), which are not subject to forfeiture
and wife shall not affect the regime of ACP/CPG
Use of Exclusive Properties: (PISI)
Exceptions: a. Payment of personal debts
1. The spouse who leaves the conjugal home or refuses b. Fines and indemnities
to live therein, without just cause, shall not have the c. Support of illegitimate children of the owner-spouse
right to be supported; d. In case of insufficiency of the CPG
2. When the consent of one spouse to any transaction of (Sta. Maria, M., Persons and Family Relations,
the other is required by law, judicial authorization shall 2010, p. 504)
be obtained in a summary proceeding;
5. Delivery of presumptive legitime, if any, to the
through their joint efforts and owned by them in equal belonged to the deceased spouse before the same shall
shares in the absence of proof to the contrary. Rules on have passed into the possession of another; and
co- ownership govern their property relations. 3. Brothers and sisters and brothers-in-law and sisters-in-
law, if living together.
T HE F AMILY
Running of prescriptive periods
The family is a basic social institution which public policy Unless otherwise provided by the Family Code and
cherishes and protects (Art. 149); hence, no suit between other laws, Art. 1109 of the Civil Code provides that
members of the family shall prosper unless a compromise prescription does not run between:
between the parties has failed (Art. 151). Family relations a. Husband and wife, even though there be a separation
are governed by law and no custom, practice or of property agreed upon in the marriage settlements
agreement destructive of the family shall be recognized or or by judicial decree;
given effect (Art. 149). b. Parents and children during the latter’s minority or
insanity;
Family relations include : c. Guardian and ward during the continuance of the
1. Between husband and wife guardianship. (Sta. Maria, m., persons and family
2. Between parents and children relations 2010 ed., p. 589)
3. Among other ascendants and descendants
4.Among brothers and sisters whether full or half–blood FAMILY HOME
(Art. 150) It is constituted jointly by the husband and wife or by an
unmarried head of a family; is the dwelling house where
Mandatory Prior Recourse to Compromise they and their family reside, and the land on which it is
No suit between members of the same family shall situated (Art. 152).
prosper UNLESS it appears from the verified complaint or
petition that earnest efforts toward a compromise have General Rule: The family home is exempt from
been made, and that the same have failed. If it is shown execution, forced sale or attachment.
that no such efforts were, in fact, made, the case must be
dismissed (Art. 151). Rationale: When the creditors seize the family house,
they virtually shatter the family itself.
Exceptions:
1. When a stranger is involved in the suit Exceptions: (PLMN)
1. Debts incurred prior to constitution (Art. 153);
Ratio: The interest of such stranger may differ from the
interest of members of the same family. (Sta. Maria, M., Note: Art. 153 cannot be given retroactive effect to
Persons and Family Relations, 2010, p. 588) shield the homes of debtors from execution of judgment
arising from debts which became due and demandable
2. In cases where compromise is invalid under the Civil prior to the effectivity of the Family Code. To be able to
Code (Art. 2035): (CV JAFF) avail of the benefits of a family home in relation to debts
a. Civil status of persons which matured prior to August 3, 1988, it must be
b. Validity of marriage or a legal separation shown that the home was constituted either judicially or
c. Jurisdiction of courts extrajudicially pursuant to the old Civil Code (Sta.
d. Any ground for legal separation Maria, M., Persons and Family Relations, 2010, p. 591).
e. Future support
f. Future legitime 2. Debts due to laborers, mechanics, architects, builders,
material men and others who have rendered service or
The term “suit” provided by law clearly implies only civil furnished materials for the construction of the building
actions. (Manalo vs. CA, G.R. No. 129242, January 26, (Art. 155);
2000) On the other hand, Art. 332 of the Revised Penal 3. Debts secured by mortgages on family home (Art. 155);
Code provides for exemption from criminal, but not civil 4. Non–payment of taxes on home (Art. 155)
liability, for the crimes of theft, swindling or malicious
mischief committed or caused by the following: If ever the family home is subject of an attachment, the
1. Spouses, ascendants and descendants, or relative by beneficiaries thereof have to move for the quashal of
affinity in the same line; the writ of attachment. If no motion for the quashal of
2. The widowed spouse with respect to the property which the writ or attachment or levy is filed, the benefit of
exemption is considered waived (Honrado v. Court of The family home is shielded from immediate partition
Appeals, G.R. No. 166333, November 25, 2005). under Article 159 regardless of its ownership. This
signifies that even if the family home has passed by
As a rule, the family home is exempt from execution, succession to the co-ownership of the heirs, or has been
forced sale or attachment. However, Article 155(3) of willed to any one of them, this fact alone cannot transform
the Family Code explicitly allows the forced sale of a the family home into an ordinary property, much less
family home “for debts secured by mortgages on the dispel the protection cast upon it by the law. The rights of
premises before or after such constitution.” In this case, the individual co-owner of the family home cannot
there is no doubt that spouses Fortaleza voluntarily subjugate the rights granted under Article 159 to the
executed on January 28, 1998 a deed of Real Estate beneficiaries of the family home (Arriola v. Arriola, G.R.
Mortgage over the subject property which was even No. 177703, January 28, 2008).
notarized by their original counsel of record. And
assuming that the property is exempt from forced sale, 8. To be a beneficiary (other than the husband and the
spouses Fortaleza did not set up and prove to the wife or an unmarried person who is the head of the
Sheriff such exemption from forced sale before it was family), three requisites must concur:
sold at the public auction (Sps. Fortaleza and Ofelia a. They must be either the parent, ascendant,
Fortaleza v. Sps. Lapitan, G.R. No. 178288, August 15, descendant, brother or sister whether legitimate or
2012). illegitimate (Art. 154).
b. They must live in the family home
Outline of provisions regarding the family home: c. They are dependent for legal support upon the head
1. It is constituted on the dwelling house of the family and of the family.
the land on which house is situated Thus in Patricio vs. Dario III (G.R. No. 170829,
2. Deemed constituted from time of actual occupation as a November 20, 2006) a grandson was not considered
family residence (Art. 153) a beneficiary of a family home owned by his
3. Continues to be such as long as any of its beneficiaries grandparent because, while the said grandchild was
actually resides therein (Art. 153) living in the said family home, he was not dependent
4. Must be part of the properties of the absolute for support on the grandparent, who was the head of
community or the conjugal partnership or owned by the family where the grandchild lived, but on his
person constituting it (may be either or both spouses father.
or the single head of a family) (Art. 156)
d. In-laws, provided the home is jointly constituted by
Property that is the subject of a conditional sale on husband and wife. But this law definitely excludes
installments where ownership is reserved by the vendor maids and overseers (Manacop v. CA, G.R. No.
only to guarantee payment of the purchase price may 102855 November 13, 1992).
be constituted as a family home. (Art. 156 par. 2) 8. Every person may constitute or be the beneficiary of
5. Must be permanent (Sta. Maria, M., Persons and one (1) family home only. (Art. 161)
Family Relations, 2010, p. 590). 9. May be alienated, sold, donated, assigned or
6. Rule applies to valid and voidable and even to common- encumbered by the owners provided the written consent
law spouses under Articles 147 and 148 of the following are obtained:
7. Continues despite death of one or both spouses or a. The person who constituted
unmarried head of the family for 10 years, or as long as the same,
a minor beneficiary lives therein. Heirs cannot partition b. His or her spouse, and
the same unless the court finds compelling reasons c. Majority of the beneficiaries of
therefor. (Art. 159). legal age give their consent. (Art. 158)
Paternity
It is the civil status relationship of the father to the child. Legitimate Illegitimate
If child’s filiation has been
Filiation expressly recognized by
It is the civil status or relationship of the child to the father the father through the
or mother. record of birth appearing in
The filiation of children may be by nature or by adoption. the civil register, or when
Natural filiation may be legitimate or illegitimate (Art. 163). an admission in a public
document or private
LEGITIMATE AND ILLEGITIMATE CHILDREN handwritten instrument is
DISTINGUISHED made by the father. (Sec.1,
Legitimate Illegitimate RA 9255)
Conceived and born Parental Authority
outside a valid marriage or Sole parental authority of
Joint authority of parents
inside a void ab initio mother
Conceived or born during a marriage such as bigamous Support
valid marriage (Art. 164) and incestuous marriages Entitled to receive support
and marriage declared void from any of his or her direct
for being contrary to law ascendants and Entitled to receive support
and public policy (Art. 165) descendants in accordance only up t his or her
Conceived or born before with the priority set by law grandparents or
the judgment of annulment in Art. 195 and 199 (Sta. grandchildren as provided
Born after the decree of
or absolute nullity of Maria, M., Persons and for in Art. 195(2) and (3)
annulment of a voidable
marriage if the ground is Family Relations, 2010, p. (Sta. Maria, M., Persons
marriage
psychological incapacity 650). and Family Relations,
(Art. 54) 2010, p. 650).
Born in a subsequent void Preferential right to support
marriage due to failure to over mother if father has no No such preference
comply with Art. 52 and 53 sufficient means to meet
(Art. 54) both claims
Product of artificial Successional Right
insemination provided both Entitled to ½ of legitimate
Entitled to inheritance
spouses authorized or child’s inheritance
ratified such procedure in a Beneficiary Right Under the SSS (RA 8282) and
written instrument, GSIS (RA 8291)
executed and signed Primary beneficiary Not primary beneficiaries
before birth of child and Paternity Leave under RA 8187 (Paternity Leave Act
recorded (Art. 164) of 1996)
Conceived or born of Father is entitled to No such benefit
mothers who might have paternity leave of 7 days
declared against its with full pay
legitimacy or was
sentenced as an adulteress RULE ON CHILDREN CONCEIVED AS A RESULT
(Art. 167) OF ARTIFICIAL INSEMINATION
Legitimated: conceived and The status of the child is legitimate if all the requirements
born outside of wedlock of under Art. 164 are complied with namely:
parents without impediment 1. Both spouses authorize or ratify such insemination
at the time of conception 2. The authorization or ratification is in a written instrument
and had subsequently signed by them before the birth of the child
married 3. The instrument is recorded in the civil registry together
Use of Surname with the birth certificate of the child.
Right to bear father’s Generally required to use
surname mother’s surname Note: Even if the above requirements are not complied
with and the husband does not impugn the legitimacy of
Exception: the child on grounds provided by Art. 166 within the
prescriptive period, the child shall still be considered Macaraig (G.R. No. L-2474, May 30, 1951), the Court
legitimate because the child has been conceived or born ruled that the fact that the husband was seriously sick
during the valid marriage of the parents pursuant to Article with tuberculosis was not sufficient to overcome the
164 par. 1. presumption of legitimacy. Impossibility of access by
husband to wife would include absence during the
RULES ON IMPUGNING LEGITIMACY (Art. 166 and initial period of conception; impotence which is
167) patent, continuing and incurable; and imprisonment,
Necessarily applies only to a situation where the child has unless it can be shown that cohabitation took place
been delivered by a woman who is the child’s natural through corrupt violation of prison regulations.
mother (Sta. Maria, M., Persons and Family Relations,
2010, p. 609). 2. Biological or scientific proof that the child could not
have been that of the husband;
In the event that any of the grounds enumerated in Art. Note: Racial dissimilarity may be a considered
166 is proven, the child will neither be legitimate nor sufficient scientific proof (Watkins vs. Carlton, 37 VA [10
illegitimate in so far as the husband is concerned. Simply, Leigh] 586 as cited Sta. Maria, p. 617).
the husband and the child will not be related to each other
in any manner considering that the husband did not For sterility to constitute proof of non-paternity, the
participate in any way as to the child’s precreation. In so husband must be shown to be completely sterile at the
far as the mother is concerned, the child will be time when the child was conceived (Sta. Maria, M.,
considered illegitimate (Sta. Maria, M., Persons and Persons and Family Relations, 2010, p. 618).
Family Relations, 2010, p. 609).
3. Vitiated consent in artificial insemination
Grounds for impugning legitimacy : (PBC)
1. Physical impossibility of the husband to have sexual Note: The mistake, fraud, violence, intimidation or
intercourse with his wife within the first 120 days of the undue influence can be exerted by not only the spouses
300 days immediately preceding the child’s birth, due against each other but also by third persons on both of
to: the spouses or on any one of them. In any case, only
a. Physical incapacity of the husband; the husband can impugn the legitimacy of the child, or
the heirs in special cases provided in Art. 171.
Note: Must be proved by convincing and persuasive
evidence hence, the fact that a husband, who was Prescriptive periods to file action to impugn
never separated from his wife, has been absolutely legitimacy:
stiff in th hips at the time of the conception of the child 1. One year, from knowledge of birth or recording in the
has been held as not conclusive enough to overturn civil register, if husband or heirs live in the SAME
the presumption of legitimacy. (State vs. Reed, 107 city/municipality where the birth took place or was
W Va. 563, as cited Sta. Maria, p. 616) recorded.
2. Two years, if both reside in the Philippines.
b. Husband and the wife were living separately; 3. Three years, if the child’s birth took place or was
recorded in the Philippines while the husband has his
Note: Mere remoteness of the wife from the husband residence abroad, or vice versa (Art. 170).
is not sufficient to disavow paternity. Hence, the bare
testimony by the husband that he and his wife were Note: The question of legitimacy cannot be collaterally
living thirty miles away from each other at the time of attacked. It can be impugned only in a direct action.
the conception of the child is not enough to show the (Liyao Jr. vs. Liyao, G.R. No. 138961, March 7, 2002)
illegitimacy of the child without any showing that the
sexual intercourse with the wife was not possible Parties who can impugn legitimacy of a child:
(Skott vs. State, 46 ALR 3d 180 as cited Sta. Maria,
p.616). General Rule: Only the husband may impugn.
c. Serious illness of the husband which absolutely Exception: The heirs may impugn within the same period
prevented sexual intercourse in the following cases:
1 If the husband dies before the expiration of the period
Note: Must be such as to absolutely prevent him from fixed for bringing his action
engaging in sexual intercourse. Hence in Andal v.
2 If he should die after the filing of the complaint without Child born at any time after June 28, 2012 (even if before
having desisted therefrom; or July 26, 2012) is presumed to be filiated with the second
3 If the child was born after the husband’s death (Art. husband.
171).
Note: The legitimacy or illegitimacy of a child born after
An assertion by the mother against the legitimacy of her three hundred days following the termination of the
child cannot affect the legitimacy of the child born or marriage shall be proved by whoever alleges such
conceived within a valid marriage. A mother has no right illegitimacy or illegitimacy (Art. 169).
to disavow a child because maternity is never uncertain
(Concepcion v. CA, GR No 123450, August 31, 2005). Note: Art. 169 negates any presumption of filiation for a
child born after 300 days from the termination of a
The death of the putative father does not ipso facto marriage, in the absence of a subsequent marriage (Sta.
negate the application of DNA testing for as long as Maria, M., Persons and Family Relations, 2010, p. 627).
appropriate biological samples of his DNA exist. In such a
case the petitioner must show the impossibility of PROOF OF FILIATION
obtaining an appropriate biological sample that can be General Rule: Filiation of legitimate (or illegitimate)
utilized for the conduct of DNA testing (Estate of Rogelio children is established by any of the following: (RA)
Ong v. Diaz, G.R. No. 171713, December 17, 2007). 1. The record of birth appearing in the civil registry or a
final judgment
STATUS OF CHILDREN BORN WITHIN 300 DAYS 2. An admission of legitimate (or illegitimate) filiation in a
FROM THE TERMINATION OF A FIRST MARRIAGE public document or a private handwritten instrument
AND THE CELEBRATION OF A SUBSEQUENT and signed by the parent concerned.
MARRIAGE (Art. 168 and 169)
Exceptions: In the absence of any of the foregoing
Requisites: (TS–WBN) evidence, such legitimate or illegitimate filiation shall be
1. First marriage terminated proved by: (OA)
2. Mother contracted subsequent marriage
3. Subsequent marriage was contracted within 300 days 1. Open and continuous possession of the status of a
after termination of previous marriage legitimate or illegitimate child;
4. Child was born within 300-day period 2. Any other means allowed by the Rules of Court and
5. No evidence as to status of child special laws (Art. 172).
a. An act or declaration concerning pedigree (Sec. 33,
Rules on presumption of filiation in case of two Rule 130, Rules of Court)
marriages: b. Family reputation or tradition concerning pedigree
1. To first marriage, if child was born before the lapse of (Sec. 34, Rule 130, Rules of Court)
180 days after celebration of 2nd marriage, provided it c. Common reputation respecting pedigree (Sec. 35,
was born within 300 days after termination of the 1st Rule 130, Rules of Court)
marriage. d. Judicial admission (Sec. 2, Rule 129, Rules of Court)
2. To second marriage, if child was born after 180 days e. Admission of a party (Sec. 22, Rule 130, Rules of
following celebration of 2nd marriage, whether born Court)
within 300 days after termination of 1st marriage or f. Admission by silence (Sec. 23, Rule 130, Rules of
afterwards (Art. 168). Court)
Hence: In Dela Cruz vs. Garcia (G.R. No. 177728, July 31,
Child born on or before June 28, 2012 is presumed to be 2009), a handwritten autobiography of the father was
filiated to the first husband. recognized as evidence of filiation although not
signed. The Court ruled that “where the private
handwritten instrument is accompanied by other the apparent desire to have and treat the child as such
relevant and competent evidence, it suffices that the in all relations in society and in life, not accidentally, but
claim of filiation therein be shown to have been made continuously” (Jison vs. CA, GR. No. 8454, April 13,
and handwritten by the acknowledging parent as it is 1956).
merely corroborative of such other evidence.”
If the unsigned record of birth can be a proof of filiation
Action to Claim Legitimacy (Art. 173) of the child, it would be easy for a woman to vest
Who may claim: legitimate status to an illegitimate child. Hence, an
1. Child – exclusive and personal right of child which may unsigned record of birth cannot be used as proof of
be brought anytime during his lifetime, regardless of the filiation (Reyes v. Court of Appeals, GR. 39537, March
proof presented to support his claim 19, 1985).
2. Transmitted to heirs of the child within a period of 5
years in case RIGHTS OF CHILDREN
a. Child dies during minority Legitimate Illegitimate
b. Child dies in a state of insanity
c. Child dies after action has already been instituted Use of father & mother’s Use of mother‘s surname
surname
Action to Claim Illegitimacy Note: However, R.A.
Illegitimate children may establish their illegitimate filiation 9255 amended Art. 176,
in the same way and on the same evidence as legitimate FC
children (Art. 175). Receive support from Receive support only up
ascendants or to grandparent and
1. If illegitimate filiation is established by a record of birth descendants of the same grandchildren
in the civil register or a final judgment, or an admission line.
of filiation in a public document or a private handwritten Entitled to the legitime in Legitime is ½ of the
instrument signed by the parent concerned, the action succession legitime of a legitimate
for recognition may be brought by the child during his child
lifetime (Guy, vs. CA, G.R. No. 163707, September 15,
2006). Right to inherit ab No right to inherit as
intestato from legitimate such
2. If the action is based upon open and continuous children and relatives of
possession of the status of an illegitimate child, or any his father and mother
other means allowed by the rules or special laws, it may
be only brought during the lifetime of the alleged parent R.A. No. 9255
(Guy vs. CA, ibid). An Act Allowing Illegitimate Children to use the surname of
their Father, amending for the purpose Article 176 of EO
3. Unlike an action for legitimacy, the right to claim for No. 209, otherwise known as the "FAMILY CODE OF THE
status is NOT transmissible to the heirs. PHILIPPINES" (approved February 24, 2004).
“Continuous” does not mean that the concession of Illegitimate children may use the surname of their
status shall continue forever but only that it shall not be father if:
of an intermittent character while it is continuous. The 1. Their filiation has been expressly recognized by the
possession of such status means that, the father has father through the record of birth appearing in the civil
treated the child as his own, directly and not through register, or
others, spontaneously, and without concealment, 2.When an admission in a public document or private
though without publicity. There must be a showing of handwritten instrument is made by the father; Provided,
permanent intention of the supposed father to consider that the father has the right to institute an action before
the child as his own by continuous and clear the regular courts to prove non-filiation during his
manifestation of paternal affection and care (Mendoza lifetime.
vs. CA, G.R. No. 86302 September 24, 1991).
LEGITIMATED CHILDREN
The paternal affection and care must not be attributed
to pure charity. “Such acts must be of such a nature that Legitimation
they reveal not only the conviction of paternity, but also
It is a remedy by means of which those who in fact were ascendants (Art. 181)
conceived and born outside of wedlock and should 4. Legitimation may be impugned only by those who are
therefore be considered illegitimate are by legal fiction prejudiced in their rights.
considered legitimate. It shall take place only by the Generally refers to those who would suffer economic or
subsequent valid marriage between the biological parents. material injury by legitimation such as testamentary or
intestate heirs (Sta. Maria, M., Persons and Family
Requisites: (NIM) Relations, 2010, p. 663).
1. The child is illegitimate.
2. The parents at the time of the child’s conception are not Legitimation may be impugned within 5 years from the
disqualified by any impediment from marrying each time their cause of action accrues, that is, from the
other or were so disqualified only because either or both death of the putative parent.
of them were below eighteen (18) years of age (Art.
177, as amended by R.A. 9858). Legitimation may be impugned on grounds like:
3. There is a valid marriage subsequent to the child’s birth a. The subsequent marriage of the child’s parents is
(Art. 178). void;
b. The child allegedly legitimated is not natural; or
Note: Children born out of wedlock to parents who were c. The child is not really the child of the alleged
not allowed by law to marry for being minors are now parents.
qualified for legitimation. This has been made possible by
RA 9858, approved on December 20, 2009 and has A DOPTION
amended Article 177 of the Family Code of the
Philippines. Before RA 9858, Article 177 stated that only
children born out of wedlock to parents who were not The process of making a child, whether related or not to
disqualified from getting married at the time of conception the adopter, possess in general, rights accorded to a
could be legitimized.Under the present law, legitimation legitimate child (Paras, E. Civil Code of the Philippines
would automatically take place upon marriage of the Annotated, 2002 ed., p. 685).
parents. Moreover, couples who had children when they
were below the marrying age would not need to go Adoption statutes, being humane and salutary, hold the
through the process of having to adopt their own offspring interest and welfare of the child to be of paramount
just so their kids could enjoy the rights of legitimate consideration and are designed to provide homes,
children. parental care and education for unfortunate, needy or
orphaned children and give them the protection of society
Notes: Laws providing for the process of legitimation are and family in the person of the adopter as well as to allow
remedial in character intended for the benefit and childless couples to experience the joys of parenthood
protection of the innocent offspring and, therefore, may be and give them legally a child in the person of the adopted
applied retrospectively (Lund’s Estate, 162 ALR 606) and for the manifestation of their natural parental instincts.
must be liberally construed (Cardenas vs. Cardenas, 12 Every reasonable intendment should be sustained to
Ill. App 2d 497, 63 Alr2rd 1001 as cited in Sta. Maria, p. promote and fulfill these noble and compassionate
659). objectives of the law (In re: Petition for adoption of
Effects of legitimation: Michelle P. Lim, G.R. No. 168992-93 May 21, 2009).
1. Legitimated children shall enjoy the same rights as
legitimate children (Art. 179) Nature of adoption proceedings
1.Adoption is a juridical act. Only an adoption made
Note: Legitimation creates for the legitimated child the through the court, or in pursuance with the procedure
total and full extent of the blood-relationship existing laid down under Rule 99 of the Rules of Court is valid in
within the family to include all descendants, ascendants this jurisdiction. It is not of natural law at all, but is
and collateral relative, unlike in adoption where only a wholly and entirely artificial. To establish the relation,
parent-child relationship is created. (Sta. Maria, M., the statutory requirements must be strictly carried out,
Persons and Family Relations, 2010, p. 661) otherwise, the adoption is an absolute nullity (Lazatin
vs. Hon. Judge Campos, G.R. No. L-42955-56 July 30,
2. The effects of legitimation shall retroact to the time of 1979).
the child’s birth (Art. 180) 2.Adoption proceedings are IN REM and publication
3. The legitimation of children who died before the serves as constructive notice to the whole world
celebration of the marriage shall benefit their (Santos vs. Aranzanso, L-23828, February 28, 1966).
f. Has not been convicted of any crime involving moral Other factors to be considered in evaluating prospective
turpitude parents:
g. Emotionally and psychologically capable of caring for 1. Total personality of the applicants
children 2. Emotional maturity
3. Quality of marital relationship
2. Alien (S-DELL) 4. Feeling about children
a. Same qualifications as a Filipino 5. Feeling about childlessness and readiness to adopt
b. Country has diplomatic relations with the Philippines. 6. Motivation (Sta. Maria, M., Persons and Family
c. Certified by said office that his government allows the Relations, 2010, p. 681).
adoptee to enter his country as his adopted child
d. Has been living in the Philippines for at least three (3) Who may be adopted: (Sec. 8) (DARILL)
continuous years prior to the application for adoption 1. Child whose biological or adoptive parents have died,
and maintains such residence until the adoption provided that no proceedings shall be initiated within 6
decree is entered, months from the time of death of said parents
The Board shall ensure that all possibilities for the A copy of the final decree of adoption of the child,
adoption of the child under the Family Code have been including certificate of citizenship/naturalization whenever
exhausted and that inter–country adoption is in the best applicable, shall be transmitted by the foreign adoption
interest of the child. agency to the Board within 1 month after its issuance
(Sec. 53, Implementing Rules of RA 8043)
Supervision of trial custody (Sec. 14)
Mandatory period of 6 months from the time of placement Presumption of illegal adoption: (Sec. 57,
before a decree of adoption may be issued. During this Implementing Rules of RA 8043) (CPEN)
period, the adopting parents shall submit a progress 1. Consent for adoption was acquired through or
report of the child’s adjustment which shall be taken into attended by coercion, fraud, improper material
consideration in issuing the decree of adoption. inducement
2. Procedures and safeguards provided by law for
1. Starts upon actual physical transfer of the child to the adoption were not complied with
3. Has exposed or subjected the child to be adopted to For support of legitimate ascendants, descendants
danger, abuse or exploitation (legitimate/illegitimate), brothers and sisters
4. No authority to effect adoption from the Board (legitimate/illegitimate), only separate property of person
obliged to give support shall be answerable. In the
absence of separate property, the CPG or ACP shall
S UPPORT advance support deductible from share of spouse obliged
upon liquidation (Art. 197).
Support
It comprises everything indispensable for sustenance, In case of legitimate descendants which are the common
dwelling, clothing, medical attendance, education and children of the spouse or the legitimate children of either
transportation in keeping with the financial capacity of the spouse. In which case, the ACP or CPG shall be
family (Art. 194). principally charged for their support as mandated by law in
Art. 94(1) and Art. 121(1). This is different from personal
Kinds: (LJC) support owing to them from the father or mother as
1. Legal – one required or given by law; provided in Art. 194 and 197.
2. Judicial – required by the court to be given whether
pendente lite or in a final judgment; Order of liability if several persons obliged to give
3. Conventional – given by agreement. support: (Art. 199) (SDAB)
Characteristics: (MR P 2INE) 1. Spouse
1. Mandatory 2. Descendants in the nearest degree
2. Reciprocal on the part of those who are by law bound to 3. Ascendants in the nearest degree
support each other 4. Brothers and sisters
3. Personal
4. Provisional character of support judgment If the obligation to give support falls upon two or more
5. Intransmissible persons, payment shall be divided between them in
6. Not subject to waiver or compensation proportion to their resources. In case of urgent need and
7. Exempt from attachment or execution special circumstances, the court may order only one of
(A. Tolentino, Commentaries and Jurisprudence on the them to furnish support provisionally subject to the right to
Civil Code of the Philippines, Vol. I, 1990 ed. p. 575) claim from the others the share due them (Art. 200).
Persons obliged to support each other: (Art. 195) When two or more recipients at the same time claim for
1. Spouses support and the person legally obliged to give does not
2. Legitimate ascendants and descendants have sufficient means to satisfy all claims:
3. Parents and their legitimate children, and the legitimate 1. The order of liability provided by law shall be followed.
and illegitimate children of the latter 2. If the concurrent obligees should be the spouse and a
4. Parents and their illegitimate children, and the legitimate child subject to parental authority, the child shall be
and illegitimate children of the latter preferred. (Art. 200)
5. Legitimate brothers and sisters whether full or half-
blood provided: In Mangonon vs. CA (G.R. No. 125041, June 30, 2006) ,
the Supreme Court ordered the grandfather, who was
Brothers and sisters NOT legitimately related whether proven to be well-off to support his grandchildren on the
full or half-blood are likewise entitled to support to the basis of Art. 199, considering that their parents were not
full extent under Art. 194 except when the need for capable of supporting the children.
support of the brother or sister, being of age, is due to a
cause imputable to claimant’s fault or negligence (Art. If the obligation to give support falls upon two or more
196) persons, the payment shall be divided between them in
proportion to their resources. [Art. 200 (1st par)]
Note: Art. 197 providing for the source from where the
support should be taken out highlights the fact that the In case of or urgent need and special circumstances, the
people enumerated in Art. 195 have a personal obligation court may order only one of them to furnish support
to support each other (Sta. Maria, M., Persons and Family provisionally subject to the right to claim from the others
Relations, 2010, p. 763). the share due them (Art. 200 [2nd par]).
When two or more recipients at the same time claim for 2. The person obliged to support unjustly refuses or fails
support and the person legally obliged to give does not to give the support; and
have sufficient means to satisfy all claims: 3. A third person furnishes the support to the needy
1. The order of liability provided by law shall be followed. individual.
2. If the concurrent obliges should be the spouse
and a child subject to parental authority, the child shall Support from Stranger
be preferred (Art. 200 [3rd par]). 1. When, without the knowledge of the person obliged to
give support, it is given by a stranger, the latter shall
Obligation to give support arising from: have a right to claim the same from the former, unless it
appears that he gave it without any intention of being
Spousal and general
Parental authority reimbursed (Art 206)
familial ties
(Title IX) 2. When the person obliged to support another unjustly
(Title VIII)
refuses or fails to give support when urgently needed by
Ends upon the Ideally lasts during the the latter, any third person may furnish support to the
emancipation of the child obligee’s lifetime needy individual, with a right of reimbursement from the
Pertains to parents, Passes on to the person obliged to give support (Art. 207)
passing to ascendants only ascendants not only upon
upon its termination or default of the parents but Logically, the sisters would, thru their mother, turn to their
suspension also for the latter’s inability uncle (Noel Daban) for their sustenance and education
to provide sufficient support when petitioner (their father) failed to give the same, a
(Lim vs. Lim, G.R. No. 163209, Oct. 30 2009) failing which stretched from their pre-schooling days to
their college years. Since such failure has been
The governing text are the relevant provisions in Title VIII established, it is not amiss to deduce, as did the trial court
of the Civil Code, as amended, on Support, not the and the CA, that Noel Daban who, owing to consideration
provisions in Title IX on Parental Authority. While both of kinship, had reasons to help, indeed lent his sister Lea
areas share a common ground in that parental authority money to support her children. Mention may also be made
encompasses the obligation to provide legal support, they that, contextually, the resulting juridical relationship
differ in other concerns including the duration of the between the petitioner and Noel Daban is a quasi-
obligation and its concurrence among relatives of differing contract, an equitable principle enjoining one from unjustly
degrees. Thus, although the obligation to provide support enriching himself at the expense of another (Lacson vs.
arising from parental authority ends upon the Lacson, G.R. No. 150644 August 28, 2006).
emancipation of the child, the same obligation arising from
spousal and general familial ties ideally lasts during the Support Pendente Lite (Art. 198 in relation to Rule 61
obligee’s lifetime.. Also, while parental authority under Title of the Rules of Court)
IX (and the correlative parental rights) pertains to parents,
passing to ascendants only upon its termination or During the proceedings for legal separation or for
suspension, the obligation to provide legal support passes annulment of marriage, and for declaration of nullity of
on to ascendants not only upon default of the parents but marriage, the spouses and their children shall be
also for the latter’s inability to provide sufficient supported from the properties of the absolute community
support. (Lim vs. Lim, G.R. No. 163209, October 30, or the conjugal partnership.
2009)
Mutual support between the spouses ceases after final
Requisites in order for support from stranger to be judgment.
reimbursable:
In case of legal separation, the court may order the guilty
Under Art. 206: spouse to support the innocent spouse.
1. Stranger gives support to another person with the
intention to be reimbursed; and In determining the amount to be awarded as support
2. Person obliged to give support to the recipient does not pendent lite, it is not necessary to go fully into the merits
have knowledge of the stranger’s act of the case, it being sufficient that the court ascertain the
kind and amount of evidence it may deem sufficient to
Under Art. 207: enable it to justly resolve the application, one way or the
1. There is an urgent need to be supported on the part of other, in view of the merely provisional character of the
the recipient; resolution to be entered. Mere affidavits may satisfy the
court to pass upon the application for support pendente law is not absolute. The law will not permit the husband to
lite. It is enough that the facts be established by affidavits evade or terminate his obligation to support his wife if the
or other documentary evidence appearing in the record wife is driven away from the conjugal home because of his
(Reyes vs. Ines-Luciano, G.R. No. L-48219 February 28, wrongful acts. In the case at bar, the wife was forced to
1979). leave the conjugal abode because of the lewd designs
and physical assault of the husband, she can therefore
Amount of support claim support from the husband for separate maintenance
It shall be in proportion to the resources or means of the even outside the conjugal home (Goitia vs. Campos-
giver and to the necessities of the recipient (Art. 201, See Rueda G.R. No. G.R. No. 11263, November 2, 1916).
Lam vs. Chua, G.R. No.131286. March 18, 2004). It shall
be increased or reduced proportionately, according to the As to how the obligation to support can be performed, Art.
increase or reduction of necessities of the recipient and 204 provides that the person obliged to give support shall
the resources or means of the person obliged (Art. 202). have the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the
Support is rooted on the fact that the right and duty to family dwelling the person who has the right to receive
support, especially the right to education, subsists even support. The latter alternative cannot be availed of in case
beyond the age of majority (Estate of Hilario M. Ruiz vs. there is a moral or legal obstacle thereto, such as the
CA, G.R. No. 118671, January 29, 1996). strained relationship between the parties (Ma. Belen B.
Mangonon vs. CA, G.R. No. 125041, June 30, 2006).
Demand for support (Art. 203) Exemption of support from attachment or execution
The obligation to give support shall be demandable from The right to receive support as well as money or property
the time the person who has a right to receive the same obtained as such support shall not be levied upon on
needs it for maintenance, but it shall not be paid except attachment or execution (Art. 205). But in case of
from the date of judicial or extrajudicial demand. contractual support or that given by will, the excess in
amount beyond that required for legal support shall be
Support must be demanded and the right to it established subject to levy on attachment or execution (Art. 208).
before it becomes payable. For the right to support does
not arise from the mere fact of relationship, even from Only salary "due" the judgment debtor is subject to
relationship of parents and children, but from ‘imperative attachment and execution, and then only if it is not made
necessity’ without which it cannot be demanded, and the to appear by the affidavit of the debtor or otherwise that
law presumes that such necessity does not exist unless such earnings are necessary for the support of his family.
support is demanded. (Sy vs. CA, G.R. No. 124518, Dec. Under the Revised Rules, so much of the earnings of the
17, 2007) debtor for his personal services within the month
preceding the levy as are necessary for the support of his
Payment of the amount for support starts only from the family (Sec. 12, Rule 39) is exempt from execution
time support has been judicially or extra-judicially (Avendaño vs. Alikapala, G.R. No. L-21189 November
demanded for the right to support does not arise from the 28, 1964).
mere fact of relationship but from imperative necessity
without which it cannot be demanded, and the law
presumes that such necessity does not exist, unless P ARENTAL A UTHORITY (PA)
support is demanded (Jocson vs. Empire Insurance Co.,
G.R. No. L-10792, April 30, 1958). Parental authority is the sum total of the right of the
parents over the persons and property of their
Performance of obligation to support (Art. 204) unemancipated children. It is pursuant to the natural right
1. Paying the allowance fixed; or and duty of parents over the same and it includes caring
2. Receiving and maintaining in the family dwelling the for and rearing of such children for civic consciousness
person who has a right to receive support provided that and efficiency and the development of their moral and
there is no moral or legal obstacle to do so. physical character and well-being (Art. 209).
Note: The law provides that the husband, who is obliged Parental Preference Rule
to support the wife, may fulfill the obligation either by The natural parents, who are of good moral character and
paying her a fixed pension or by maintaining her in his who can reasonably provide for the child, are ordinarily
own home at his option. However, this option given by
the surviving parent exercised by surviving under seven as these are reasons deemed compelling
parent unless court to preclude the application of the exclusive maternal
appoints another person custody regime under the second paragraph of Article
a guardian 213.
Note: The new spouse, As to the bias favoring the mother over the father in
by virtue of his or her case of separation: At any rate, the rule’s seeming
marrying the surviving harshness or undesirability is tempered by ancillary
parent, does not agreements the separated parents may wish to enter such
automatically possess as granting the father visitation and other privileges.
parental authority over These arrangements are not inconsistent with the regime
the children of the of sole maternal custody under the second paragraph of
surviving parent unless Article 213 which merely grants to the
such new spouse mother final authority on the care and custody of the
adopts the children. minor under seven years of age, in case of
(Sta. Maria, M., Persons disagreements.
and Family Relations,
2010, p. 784) As to the limited period of application of preference:
Legal separation of PA shall be exercised by Further, the imposed custodial regime under the second
parents the parent designated paragraph of Article 213 is limited in duration, lasting only
by the court until the child’s seventh year. From the eighth year until
the child’s emancipation, the law gives the separated
Exception: parents freedom, subject to the usual contractual
If child is under seven limitations, to agree on custody regimes they see fit to
years old, the mother adopt.
shall have custody over
said child. Writ of habeas corpus in child custody cases
Habeas corpus may be resorted in cases where rightful
Exception to the custody is withheld from a person entitled thereto
exception: (Salientes vs. Abanilla G.R. No. 162734 August 29, 2006).
Unless the court finds
compelling reasons to The controversy does not involve the question of personal
order otherwise. freedom, because an infant is presumed to be in the
Death, absence or Substitute parental custody of someone until he attains majority age. In
unsuitability of both authority shall be passing on the writ in a child custody case, the court deals
parents exercised by the with a matter of an equitable nature. Not bound by any
surviving grandparent. mere legal right of parent or guardian, the court gives his
In case several survive, or her claim to the custody of the child due weight as a
the court shall consider claim founded on human nature and considered generally
the best interests of the equitable and just. Therefore, these cases are decided,
child in the designation. not on the legal right of the petitioner to be relived from
unlawful imprisonment or detention, as in the .case of
Doctrines regarding the maternal preference adults, but on the court’s view of the best interests of
granted by Art. 213 par. 2 as decided in Dacasin vs. those whose welfare requires that they be in custody of
Dacasin (G.R. No. 168785 February 5, 2010) one person or another. Hence, the court is not bound to
deliver a child into the custody of any claimant or of any
Maternal preference cannot be subject to an persons, but should, in the consideration of the facts,
agreement between the separated spouses: Indeed, leave it in such custody as its welfare at the time appears
the separated parents cannot contract away the provision to require. In short, the child’s welfare is the supreme
in the Family Code on the maternal custody of children consideration (Sombong vs. CA, G.R. No.
below seven years anymore than they can privately agree 111876. January 31, 1996).
that a mother who is unemployed, immoral, habitually
drunk, drug addict, insane or afflicted with a Maternal Preference/ Tender Years Rule
communicable disease will have sole custody of a child
The same order of preference shall be observed when Parental authority shall be entrusted in summary
appointment of guardian over property of child becomes judicial proceeding to:
necessary. 1. Heads of children’s homes,
2. Orphanages, or
Private respondents' (grandparents) demonstrated love 3.Similar institutions duly accredited by the proper
and affection for the boy, notwithstanding, the legitimate government agency (Art. 217)
father is still preferred over the grandparents. The latter's SPECIAL PARENTAL AUTHORITY (Art. 218 and
wealth is not a deciding factor, particularly because there 219)
is no proof that at the present time, petitioner is in no Can only be exercised over minors while under their
position to support the boy. The fact that he was unable to supervision, instruction or custody. The authority and
provide financial support for his minor son from birth up to supervision also attach to all authorized activities whether
over three years when he took the boy from his in-laws inside or outside the school, entity or institution.
without permission, should not be sufficient reason to strip
him of his permanent right to the child's custody. While The following shall be held principally and solidarily liable
petitioner's previous inattention is inexcusable and merits for damages caused by the acts or omissions of the
only the severest criticism, it cannot be construed as unemancipated minor:
abandonment. His appeal of the unfavorable decision 1. School
against him and his efforts to keep his only child in his
custody may be regarded as serious efforts to rectify his No distinction between academic or non-academic (arts
past misdeeds. To award him custody would help enhance and trades)
the bond between parent and son. It would also give the
father a chance to prove his love for his son and for the Note: In Amadora vs. CA (G.R. No. L-47745 April 15,
son to experience the warmth and support which a father 1988), the Court has come to the conclusion that the
can give (Santos vs. CA, G.R. No. 113054 March 16, Art. 218 and 219 should apply to all schools, academic
1995). as well as non-academic. Where the school is academic
rather than technical or vocational in nature,
Note: The person exercising substitute parental authority responsibility for the tort committed by the student will
shall have the same authority over the person of the child attach to the teacher in charge of such student,
as the parents (Art. 233). following the first part of the provision. This is the
general rule. In the case of establishments of arts and
Rule in case of foundlings, abandoned, neglected or trades, it is the head thereof, and only he, who shall be
abused children and other children similarly held liable as an exception to the general rule. In other
situated: (Art. 217) words, teachers in general shall be liable for the acts of
their students except where the school is technical in
Foundling nature, in which case it is the head thereof who shall be
Newborn child abandoned by its parents who are answerable. Following the canon of reddendo singula
unknown (Bouvier’s Law Dictionary, 3rd Revision, p. 1293) singulis "teachers" should apply to the words "pupils
and students" and "heads of establishments of arts and committed outside the
trades" to the word "apprentices." custody of the school,
entity or institution, for
2. Administrators and teachers the primary liability of
3. Individual, entity or institution engaged in child care the parents to attach
under Art. 221, the
As held in the case of Palisoc vs. Brillantes (G.R. No. L- unemancipated child
29025 October 4, 1971), the phrase "so long as (the must be living in their
students) remain in their custody" means the protective company AND under
and supervisory custody that the school and its heads and their parental authority.
teachers exercise over the pupils and students for as long
as they are at attendance in the school, including recess The principle of parental liability (under Art. 221) is a
time. There is nothing in the law that requires that for such species of vicarious liability, or the doctrine of imputed
liability to attach, the pupil or student who commits the negligence where a person is not only liable for torts
tortious act must live and board in the school. In the view committed by himself, but also for torts committed by
of the Court, the student is in the custody of the school others with whom he has a certain relationship and for
authorities as long as he is under the control and influence whom he is responsible. Parental liability is, in other
of the school and within its premises, whether the words, anchored upon the parental authority coupled with
semester has not yet begun or has already ended. the presumed parental dereliction in the discharge of the
duties accompanying such authority (Tamargo vs. CA,
Note: In no case shall the persons exercising special G.R. No. G.R. No. 85044 June 3, 1992).
parental authority inflict corporal punishment upon the
child (Art. 233).
and to provide for their upbringing in keeping with their In case of disagreement, the father's decision shall
means; prevail, unless there is a judicial order to the contrary.
2. To give them love and affection, advice and counsel,
companionship and understanding; Note: Two cases where a parent cannot be the
3. To provide them with moral and spiritual guidance, administrator of the property of his children under the
inculcate in them honesty, integrity, self-discipline, self- provisions on succession, Art. 923 and Art. 1035 of the
reliance, industry and thrift, stimulate their interest in Civil Code.
civic affairs, and inspire in them compliance with the
duties of citizenship; Exception: Parents are required to file a bond where
4. To furnish them with good and wholesome educational the market value of the property or the annual income of
materials, supervise their activities, recreation and the child exceeds P50,000. The bond shall not be less
association with others, protect them from bad than ten per centum (10%) of the value of the property
company, and prevent them from acquiring habits or annual income, to guarantee the performance of the
detrimental to their health, studies and morals; obligations prescribed for general guardians.
5. To represent them in all matters affecting their
interests; Fruits and profits of industry of child:
6. To demand from them respect and obedience; a. Owned by the child;
7. To impose discipline on them as may be required b. Shall be devoted exclusively to the child’s support
under the circumstances; and and education unless the title or transfer provides
8. To perform such other duties as are imposed by law otherwise.
upon parents and guardians. c. Parent may only use such fruits and income shall be
limited primarily to the child's support and secondarily
Procedure for imposing discipline on the child (Art. to the collective daily needs of the family.
223)
1. Parent or person exercising parental authority, may Administration of parents’ property by
petition the proper court of the place where the child unemancipated child (Art. 227)
resides, for an order providing for disciplinary measures 1. The net proceeds of such property shall belong to the
over the child. parents-owner.
a. Relief prayed for may include commitment in an 2. The child shall be given a reasonable monthly
institution in child care duly accredited by the proper allowance in an amount not less than that which the
government authority for not more than 30 days. owner would have paid if the administrator were a
b. If petition is granted, parent shall not interfere with stranger, unless the owner, grants the entire proceeds
the implementation of the decision but shall continue to the child.
to provide for his support. 3. The proceeds given in whole or in part shall not be
charged to the child's legitime.
2. There will be a summary hearing and the child shall Kinds of Properties of a Minor
be entitled to the assistance of counsel, either of his
choice or appointed by the court. Adventitious (Art. 226) Profectitious (Art. 227)
3. If in the same proceeding the court finds the petitioner
at fault, irrespective of the merits of the petition, or when Earned or acquired by the
Property given by the
the circumstances so warrant, the court may also order child through his work or
parents to the child for the
the deprivation or suspension of parental authority or industry by onerous or
latter to administer
adopt such other measures as it may deem just and gratuitous title
proper.
4. The court may terminate the commitment of the child Owned by the child Owned by the parents
whenever just and proper (Art. 224)
Child is also the
II. Upon the Property of the Children (Art. 225 and usufructuary, but the child’s
226) Parents are the
use of the property shall be
The father and the mother shall jointly exercise legal usufructuary
secondary to the collective
guardianship over the property of the unemancipated daily needs of the family
common child without the necessity of a court
appointment. Property administered by Property administered by
2. In case of legally separated spouses, when the consent 7. The judgment of the court shall be immediately final and
of one spouse to any transaction of the other is required executory.
by law, judicial authorization shall be obtained in a
summary proceeding (Art. 100 [2])
3. In case of legally separated spouses, when the
F INAL P ROVISIONS
community property is not sufficient for the support of Retroactive Effect
the family each spouse is liable with his/her separate The Family Code shall have retroactive effect insofar as it
property. The spouse present shall petition the court for does not prejudice or impair vested or acquired rights in
the administration of the specific separate property of accordance with the Civil Code or other laws (Art 256).
the other spouse and the use the fruits or proceeds to
satisfy the latter’s share (Art. 100 [3]).
4. To confer parental authority over foundlings, F UNERALS
abandoned, neglected, and abused children to heads of
children’s homes and orphanages (Art. 217) General Guidelines:
5. To provide for disciplinary measures over the child at 1. Duty and right to make arrangement for funerals is in
the motion of the parents or any person exercising over accordance with right and duty to support under Article
parental authority (Art. 223) 199, FC. In case of descendants of the same degree, or
6. For the filing of a bond to enable the parents of a minor brothers and sisters, the eldest shall be preferred (Art.
to exercise of legal guardianship latter’s properties, 305 NCC).
when the value of said properties exceed Php 50,000 2. The funeral shall be in keeping with the social position
(Art. 225) of the deceased (Art. 306 NCC)
3. The funeral shall be in accordance with the expressed
7. Determination of the value of the presumptive legitimes
wishes of the deceased
in cases of partition of the conjugal dwelling (Art. 51)
a. In the absence of the expressed wishes, his
8. In case of disagreement in fixing the family domicile
religious beliefs or affiliation shall determine funeral
(Art. 69)
rites
9. In case of objection to a spouse’s exercise of legitimate a. In case of doubt, the persons in Art. 199, FC
profession (Art. 73) shall decide, after consulting other members of the
10. In case of disagreement in the administration and family (Art. 307 NCC)
enjoyment of the community property/conjugal 4. No human remains shall be retained, interred, disposed
partnership (Art. 96, 124) of or exhumed without the consent of the persons in Art.
199, FC (Art. 308 NCC)
Procedure: (Art. 239-248) F-NOPED-J 5. Any person who disrespects the dead or allows the
1. Upon filing of verified petition in the family court where same or wrongfully interferes with a funeral shall be
the spouses reside (or in the RTC, if there is no family liable for damages (Art. 309 NCC)
court), jurisdiction of said court over the petition shall 6. If the deceased is married, the tombstone or
attach upon proof of notice to the other spouse. mausoleum is deemed a part of the funeral expense
2. Notice to the non-petitioning spouse shall include a and chargeable against ACP or CPG (Art. 310 NCC)
show cause order why the petition should not be
granted
3. The non-petitioning spouse is given the opportunity to U SE OF S URNAMES
answer on or before the date set for the initial
conference as indicated in the notice. Child Surname
4. The preliminary conference shall be conducted by the Legitimate Surname of father
judge personally, and the spouses shall not be Legitimated Surname of father
accompanied by counsel. After the initial conference, Conceived before the
the spouses may be assisted by counsel at the court’s decree annulling a voidable Surname of father
discretion. marriage
5. The court may proceed ex parte and render judgment if Illegitimate Generally, surname of
despite all efforts, the non-petitioning spouse does not mother. May use surname
appear. of father if filiation has been
6. If both spouses are present during the initial conference expressly recognized by the
and the petition is not resolved then, the petition shall father through the record of
be decided in a summary hearing on the basis of birth appearing in the civil
affidavits submitted.
The administration shall cease when: Extraordinary circumstances under Art. 391: (LAO)
i. Absentee reappears personally or through an agent 1. Person on board a vessel or airplane lost during sea
ii. Death is proven voyage or missing, counted from the loss of the vessel
iii. Third person appears and shows proof that he or airplane
acquired absentee’s property when absentee was 2. Person in armed forces who took part in war
still alive. 3. Person in danger of death under other circumstances
and his existence has not been known
3. Presumptive death- When the absentee is presumed
dead. (Art. 390, 391) Note: A well-founded belief that the absentee is already
dead is required before an absent spouse may be
declared presumably dead. The requisites are: (4-RBF)
a. Absent spouse has been missing for 4 years or 2
consecutive years if the disappearance is under Art.
391 of the Civil Code;
b. Present spouse wishes to remarry; General Rule: Every civil registrar shall be civilly
c. Present spouse has a well- founded belief that the responsible for any unauthorized alteration made in any
absent spouse is dead; civil register, to any person suffering damage thereby.
d. Present spouse files a summary proceeding for the
declaration of presumptive death of the absent Exception: If the civil register proves that he has taken
spouse (Republic v. Nolasco, G.R. NO. 14053, March every reasonable precaution to prevent the unlawful
13, 1993). alteration.
The legal requirement on the need for judicial declaration Change of first name or nickname Under R.A. 9048
of presumptive death does not apply to a marriage (An Act Authorizing City or Municipal Civil Registrar or the
celebrated under the (Old) Civil Code as the law itself Consul General to Correct a Clerical or Typographical
presumed as dead the spouse who disappeared for a Error in an Entry and/or Change of First Name or
period of seven (7) years where the present spouse has Nickname in the Civil Registrar without Need of a Judicial
no news of the absentee being alive, or for less than Order, Amending For This Purpose Arts. 376 And 412 Of
seven (7) years where the absentee was generally The Civil Code)
presumed dead (Valdez vs. Republic, G.R. No. 180863,
September 8, 2009). Hence, proof of “well- founded” belief Authority to correct clerical or typographical error
is not required. and change of first name or nickname: (Sec. 1)
(HAR) 1. Fix the time and place for the hearing of the same
1. New first name or nickname has been habitually and 2. Cause reasonable notice thereof to be given to the
continuously used by the petitioner and he has been persons named in the petition.
publicly known by that first name or nickname in the 3.Cause the order to be published once a week for 3
community; consecutive weeks in a newspaper of general
2. The change will avoid confusion circulation in the province. (Sec. 4)
3. First name or nickname is ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
Opposition may be filed by the civil registrar and any
Note: R.A. 9048 does NOT sanction a change of first person having or claiming any interest under the entry
name on the ground of sex reassignment. To rule whose cancellation or correction is sought within 15
otherwise may create grave complications in the civil days from notice of the petition, or from the last date of
registry and public interest (Republic v. CA, GR NO. publication of such notice. (Sec. 5)
97906, May 21, 1992).
Orders expediting the proceedings and preliminary
Middle names serve to identify the maternal lineage or injunction for the preservation of the rights of the parties
filiation of a person as well as further distinguish him from pending such proceedings may be granted by the court.
others who may have the same given name and surname (Sec. 6)
as he has. The dropping of the middle name of a minor so
that he will not be different from his classmates in After hearing, the court may either dismiss the petition
Singapore and on the additional ground that it would or issue an order granting the cancellation or correction
cause confusion and difficulty in its pronunciation in prayed for. In either case, a certified copy of the
Singapore does not constitute proper and reasonable judgment shall be served upon the civil registrar
cause to drop it from his registered complete name. As he concerned who shall annotate the same in his record.
is of tender age, he may not yet understand and (Sec. 7)
appreciate the value of the change of his name and
granting of the same at this point may just prejudice him in
his rights under our laws (In Re: Petition for Change of Entries subject to cancellation or correction upon
Name and/or Correction/Cancellation of Entry in Civil good and valid grounds (Sec.2)
Registry of Julian Lin Carulasan Wang vs. Cebu City Civil 1. Births
Registrar, G.R. No. 159966, March 30, 2005). 2. Marriages
3. Deaths
Please refer to Remedial Law Memory Aid for a 4. Legal separations
comprehensive discussion of the procedural aspects of 5. Judgments of annulments of marriage
change of name. 6. Judgments declaring marriages void from the beginning
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10.Naturalization
Cancellation or correction of entries in the Civil 11.Election, loss or recovery of citizenship
Registry (Rule 108, Rules of Court) 12.Civil interdiction
13.Judicial determination of filiation
Any person interested in any act, event, order or decree 14.Voluntary emancipation of a minor
concerning the civil status of persons which has been 15. Changes of name
recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto,
with the Court of First Instance of the province where the
corresponding civil registry is located. (Sec 1)