PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEW 1

I. Effect and Application of Laws – New Civil Code

A. When law takes effect, NCC Art. 2

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette, or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided. (As amended by
E.O. 200)

EXECUTIVE ORDER NO. 200 June 18, 1987

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL

GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE
PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY

WHEREAS, Article 2 of the Civil Code partly provides that "laws shall take effect
after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided . . .;"

WHEREAS, the requirement that for laws to be effective only a publication

thereof in the Official Gazette will suffice has entailed some problems, a
point recognized by the Supreme Court in Tañada. et al. vs. Tuvera, et al.
(G.R. No. 63915, December 29, 1986) when it observed that "[t]here is much to
be said of the view that the publication need not be made in the Official Gazette,
considering its erratic release and limited readership";

WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of

general circulation could better perform the function of communicating the
laws to the people as such periodicals are more easily available, have a
wider readership, and come out regularly"; and

WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should
accordingly be amended so the laws to be effective must be published either in
the Official Gazette or in a newspaper of general circulation in the country;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby order:

Sec. 1. Laws shall take effect after fifteen days following the completion of
their publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided.

Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil Code of
the Philippines," and all other laws inconsistent with this Executive Order are
hereby repealed or modified accordingly.
 Sec. 3. This Executive Order shall take effect immediately after its publication in
the Official Gazette.

Done in the City of Manila, this 18th day of June, in the year of Our Lord,
nineteen hundred and eighty-seven.

GENERAL CIRCULATION: Metropolitan Bank and Trust Company, Inc. G.R. No. 173976,
February 27, 2009

“True, to be a newspaper of general circulation, it is enough that it is published

for the dissemination of local news and general information, that it has a
bona fide subscription list of paying subscribers, and that it is published at
regular intervals. Over and above all these, the newspaper, must be available
to the public in general, and not just to a select few chosen by the
publisher. Otherwise, the precise objective of publishing the notice of sale in the
newspaper will not be realize.

In fact, to ensure a wide readership of the newspaper, jurisprudence suggests

that the newspaper must also be appealing to the public in general. The
Court has, therefore, held in several cases that the newspaper must not be
devoted solely to the interests, or published for the entertainment, of a
particular class, profession, trade, calling, race, or religious denomination.
The newspaper need not have the largest circulation so long as it is of general
circulation.” (citing Perez v. Perez, G.R. No. 107075, September 1, 1994, 236
SCRA 148, 156.

The Civil Code took effect on August 30, 1950. In the case of Lara v. del
Rosario, one year after its publication is reckoned from the date of actual
release.

Tañada vs. Tuvera, 136 SCRA 27, 14 SCRA 446

G.R. No. 63915; December 29, 1986

FACTS:
Due process is invoked by the petitioners in demanding the disclosure of a number of
presidential decrees which they claimed had not been published, as required by law. The
government argued that while publication is necessary as a rule, it is not so when it is
“otherwise provided”, as when the decrees themselves decrees that they were to become
effective immediately upon their approval. In the decision in the original petition, the court
affirmed the necessity for the publication of some decrees, and ordered respondents to
publish in the Official Gazette all unpublished Presidential Decrees which were of general
application, and unless so published, they shall have no binding force and effect.

In the case at bar, the subject of contention is Article 2 of the Civil Code which provides
for publication of laws and their effectivity.

ISSUE:
What is meant by the clause “unless it is otherwise provided” by Article 2 of the Civil
Code?
RULING:
The Supreme Court Rules that the clause “unless it is otherwise provided” refers
to the date of the effectivity and not to the requirement of publication itself, which
cannot in any event be omitted. This clause does not mean that the legislature may make
the law effective immediately upon its approval, or on any other date, without its previous
publication.

Publication is indispensable in every case, but the legislature may in its

discretion provide that the usual fifteen-day period shall be shortened or extended. An
example as pointed out by the present Chief Justice in his separate concurrence in the original
decision is the Civil Code, which did not become effective after fifteen days from its publication
in the Official Gazette, but “one year after such publication”. The general rule did not apply
because it was “otherwise provided”.

It is not correct to say that under the disputed clause, publication may be dispensed
with altogether. The reason is that omission would offend due process insofar as it
would deny the public knowledge of the laws that are supposed to govern it. Surely, if
the legislature could validly provide a law shall become effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period of time), it is not
unlikely that persons not aware of it would be prejudiced as a result; and they would be so not
because of failure to comply with it, but simply because they did not know of its existence.

Significantly, this is not true only of penal laws as is commonly supposed. One can
think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.

UMALI V. ESTANISLAO [209 S 446 (1992)] - Reiterating Tanada v. Tuvera, The

clause "unless it is otherwise provided" refers to the date of effectivity and not
to the requirement of publication itself which cannot in any event be omitted.
This clause does not mean that the legislator may make the law effective
immediately upon approval, or on any other date without its previous
publication. Publication is indispensable in every case, but the legislature may
in its discretion provide that the usual fifteen (15) day period shall be
shortened or extended.

WHAT LAWS ARE INCLUDED:

PESIGAN V. ANGELES [129 S 174] HELD: We hold that said EO should not be
enforced against the Pesigans on 4/2/82 because it is a penal regulation (the
confiscation and forfeiture provision or sanction makes EO 626-A a penal
statute) published more than 2 months later in the OG dated 6/14/82. It
became effective only 15 days thereafter as provided in Art. 2, NCC and Sec. 11
of the Revised Admin. Code. The word "laws" in Art. 2 includes circulars and
regulations which prescribe penalties. Publication is necessary to apprise the
public of the contents of the regulations and make the said penalties binding
on the persons affected thereby.
PEOPLE V. VERIDIANO II [132 s 523] HELD: When private resp. Go Bio, Jr.
committed the act complained of in May 1979 (at the time he issued the
check-- the law penalizes the act of making or drawing and issuance of a
bouncing check and not only the fact of its dishonor), there was no law
penalizing such act. Following the special provision of BP 22, it became
effective only on 6/29/79. The copy editor of the OG made a certification that
the penal statute in question was made public only on 6/14/79 and not on the
printed date 4/9/79. Differently stated, 6/14/79 was the date of publication of
BP 22.

Before the public may be bound by its contents especially its penal provisions,
the law must be published and the people officially informed of its contents.
For, if a statute had not been published before its violation, then, in the eyes of
the law, there was no such law to be violated and, citing TANADA V. TUVERA
[136 S 27] - Invoking the people's right to be informed on matters of public
concern, a right recognized in the Constitution, as well as the principle that
laws to be valid and enforceable must be published in the OG or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel
respondent public officials to publish, and/or cause the publication in the OG
of various PDs, LOIs, general orders, proclamations, EOs, letters of
implementation and administrative orders. Respondents contend, among
others that publication in the OG is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect, publication in
the OG is indispensable for their effectivity. The point stressed is anchored on
Art. 2 of NCC.

HELD: The interpretation given by respondent is in accord with this Court's

construction of said article. In a long line of decisions, this Court has ruled
that publication in the OG is necessary in those cases where the legislation
itself does not provide for its effectivity date-- for then the date of publication
is material for determining its date of effectivity, which is the 15th day
following its publication-- but not when the law itself provides for the date
when it goes into effect. Respondent's argument, however, is logically correct
only insofar as it equates the effectivity of laws with the fact of publication.
Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Art. 2 does not preclude the requirement
of publication in the OG, even if the law itself provides for the date of its
effectivity. xxx The publication of all presidential issuances "of a public nature"
or "of general applicability" is mandated by law. The clear object of the law is to
give the general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no
notice whatsoever, not even a constructive one. It is needless to say that the
publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically
informed of its contents.

TANADA V. TUVERA [146 S 446] - xxx [T]he clause "unless it is otherwise

provided" refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective immediately upon
approval, or on any other date, without its previous publication. Publication is
indispensable in every case, but the legislature may in its discretion provide
that the usual 15-day period shall be shortened or extended. It is not correct to
say that under the disputed clause publication may be dispensed with
altogether. The reason is that such omission would offend due process insofar
as it would deny the public knowledge of the laws that are supposed to govern
it.

Conclusive presumption of knowledge of the law.-- The conclusive presumption

that every person knows the law presupposes that the law has been published if
the presumption is to have any legal justification at all. The term laws should
refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do
not apply to them directly.

RULE: All statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin 15 days after
publication unless a different effectivity date is fixed by the legislature.

Coverage.-- Covered by this rule are PDs and EOs promulgated by the President
in the exercise of legislative powers. Administrative rules and regulations must
also be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. Interpretative regulations and those merely
internal in nature, i.e., regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.

PUBLICATION MUST BE IN FULL OR IT IS NO PUBLICATION at all since its

purpose is to inform the public of the contents of the laws. The mere mention
of the number of the PD, the title of such decree, its whereabouts, the
supposed date of effectivity, and in a mere supplement of the OG cannot satisfy
the publication requirement. This is not even substantial compliance.

General application of the provision: The law takes effect on the 16th day.
Consequently the accused could not have committed the alleged crime.
The effectivity clause of BP 22 states that "This Act shall take effect 15 days
after publication in the OG." The term "publication" in such clause should be
given the ordinary accepted meaning, i.e., to make known to the people in
general. If the legislature had intended to make the printed date of issue of the
OG as the point of reference, then it could have so stated in the special
effectivity provision of BP 22.

RULES:

General Rule: It must be published either in the Official Gazette or in a

newspaper of general circulation.

Exception: The law itself may provide for a different mode of publication, either
as to form (published in some other way provided it is a reasonable mode of
publication) or effectivity date (a reasonable period from publication; cannot be
immediately upon approval). This is so because Art. 2 is only a law. The
requirement of publication applies to all laws.

Publication in the OG is not an absolute requirement (J. Feliciano, concurring

in Tanada v. Tuvera,) Rationale.-- The rationale for requiring publication is to
give notice to the public in determining their actions so as to conform to the
law.

Q: Is a law granting citizenship required to be published?

A: Supreme Court answered the question in the affirmative. "The term laws
should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do
not apply to them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such a law does not affect
the public although it unquestionably does not apply directly to the people.
The subject of such law is a matter of public interest which any member of the
body politic may question in the political forums, or, if he is a proper party,
even in the courts of justice. In fact, a law without any bearing on the public
would be invalid as an intrusion of privacy or a class legislation or as an ultra
vires act of the legislature." (Tanada v. Tuvera, 146 S 446, 453.)

When do laws become effective?

The effectivity of a law will depend on whether or not it has provided a specific
date for its effectivity. If there is no date specified for its effectivity, the law
becomes effective “after fifteen days following the completion of its publication
on the OG or newspaper of general circulation.” Or on the 16 th day following
the law’s complete publication. If the law is voluminous and is published in
series, the reckoning shall begin from the release of the last of the series.

If the law provided a specific date for its effectivity (i.e. one year after
publication), it becomes effective only upon the lapse of said period following
its complete publication and not before.
A law which provides for its immediate effectivity upon approval becomes
effective only after its compete publication and not immediately after its
signing by the President.
Meaning of “unless otherwise provided”. – refers to the date of effectivity of
laws and not to the requirement of publication (Tanada v. Tuvera, 146 SCRA
446). Publication is indispensable. No law can become effective upon approval
without publication. To rule otherwise, is to run into collision with the
constitutional requirements of the due process clause of the Constitution.

Publication is required of a Central Bank Circular and Executive Order if

Punitive in Character.

B. Ignorance of the Law, NCC Art. 3

Art. 3. Ignorance of the law excuses no one from compliance therewith.

Reasons for Presumption of Knowledge of Law—

(1) If laws will not be binding until they are actually known, then social life will
be impossible, because most laws cannot be enforced due to their being
unknown to many;
(2) It is absurd to absolve those who do not know the law and increase the
obligations of those who know it;
(3) It is almost impossible to prove the contrary, when a person claims
ignorance of the law;
(4) In our conscience, we carry norms of right and wrong, and a sense of duty,
so that our reason indicates many times what we have to do; and in more
complicated juridical relations, there are lawyers who should be consulted.

What Laws Covered.-- Philippine laws are covered. There is no conclusive

presumption of knowledge of foreign laws. Even our courts cannot take judicial
notice of them. Ignorance of a foreign law will not be a mistake of law but a
mistake of fact.
And with respect to local laws, the article is limited to mandatory and
prohibitory laws. It does not include those which are merely permissive.
(Manresa.)

No Exceptions Admitted.-- The rule is based on public interest and is designed

precisely to avoid abuse through allegation that the law has not come to the
knowledge of a party. But it has been held by our CA that the rule should not
be applied with equal force to minors who, due to their lack of intelligence,
must be treated differently. (Peo. v. Navarro, 51 OG 4062.)

Rule applies only to domestic laws, foreign laws are excluded. –the rule
applies to all domestic laws whether penal or civil and whether substantive or
procedural. It applies only to mandatory or prohibitive laws and not to
permissive or suppletory laws. Permissive laws may or may not be complied
with although not mean to be broken. The rule does not apply to ignorance of
foreign laws because our courts do not generally take judicial notice of them.
The existence of foreign laws must be pleaded and proved as matters of fact.

Effect of Ignorance of Foreign Laws. – Ignorance of a foreign law is not a

mistake of the law but a mistake of fact.

Processual Presumption. – A foreign law is a matter of fact which must be

proven with evidence. In the absence of any contrary evidence, it is presumed
to be the same as our domestic law. ( Miciano vs. Bruno, 50 Phil 867; Estate of
Suntay, 50 O.G. 5321)

Mistake of Fact.-- Ignorance may either be of law or of fact. Ignorance of fact

(ignorantia facti) may excuse a party from the legal consequences of his
conduct; but not ignorance of law, for ignorantia juris neminem excusat.

Difficult Question of Law.-- In specific instances provided by law, mistake as to

difficult legal questions has been given the same effect as a mistake of fact,
e.g., Art. 526, par. 3 which provides: "Mistake upon a doubtful or difficult
question of law may be the basis of good faith."

Article 3 creates a conclusive presumption which in some instances may be

unreasonable or harsh. But the alternative is worse, which is anarchy. Because
the law realizes its severity, it is sometimes mitigated e.g in Art. 526, par. 3.

Other examples:

Art. 1334. Mutual error as to the legal effect of an agreement when the real
purpose of the parties is frustrated, may vitiate consent.

Art. 2155. Payment by reason of a mistake in the construction or application of

a difficult question of law may come within the scope of the preceding article.

Art. 2154. If something is received when there is no right to demand it and it

was unduly delivered through mistake, the obligation to return it arises.

KASILAG V. RODRIGUEZ [ 69 P 217] - The question to be answered is whether

the petitioner should be deemed a possessor in Good Faith because he was
unaware of any flaw in his title or in the manner of its acquisition by which it
is invalidated. Ignorance of the law is the keynote of the rule. From the facts as
found by the CA, we can neither deduce nor presume that the petitioner was
aware of a flaw in his title or in the manner of its acquisition, aside from the
prohibition contained in Sec. 116. This being the case, the question is whether
GF may be premised upon ignorance of the laws. Gross and inexcusable
ignorance of the law may not be the basis of Good Faith but excusable
ignorance may be such basis (if it is based upon ignorance of a fact.) It is a fact
that the petitioner is not conversant with the laws because he is not a lawyer.
In accepting the mortgage of the improvements he proceeded on the well-
grounded belief that he was not violating the prohibition regarding the
alienation of the land. In taking possession thereof and in consenting to
receive its fruits, he did not know, as clearly as a jurist does, that the
possession and enjoyment of the fruits are attributes of the contract of
antichresis and that the latter, as a lien, was prohibited by Sec. 116. Thus, as
to the petitioner, his ignorance of the provisions of sec. 116 is excusable and
may be the basis of Good Faith. x x x

C. Retroactivity of Laws, NCC Art. 4

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.

Concept of Retroactive Law.-- A retroactive law is one intended to affect

transactions which occurred, or rights which accrued, before it became
operative, and which ascribes to them effects not inherent in their nature, in
view of the law in force at the time of their occurrence. It is one which creates
a new obligation and imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past. There is retroactivity
when a law is made applicable to situations or acts already done before the
passage of said law. Retroactive law creates a new obligation, imposes a new
duty or attaches a new disability in respect to a transaction already past.

Reason for the Article.-- A law that has not yet become effective cannot be
considered as conclusively known by the people. To make a law binding even
before it has taken effect may lead to arbitrary exercise of legislative power.
The rule against retroactivity is intended to protect vested rights.

General Rule is Prospectivity – The general rule on the effectivity of laws is

that laws operate prospectively. Statutes have only a prospective operation
unless the intention given them is a retrospective effect and is expressly
declared or is necessarily implied from the language used. If there is doubt,
the doubt must be resolved against retrospectivity. (Montilla vs. Agustinian
Corp., 24Phil. 220) Retroactive operation must be expressed in the statute
itself. But even if the retrospectivity of the law is not expressly provided, if the
same is necessarily implied in the language therein used, retroactive operation
is allowed. (Segovia v. Noel, 47 Phil. 543)

Exceptions to Rule:

(1) When the law itself so expressly provides.-- This has two exceptions:
(a) when the retroactivity of a penal statute will make it an ex post
facto law, (“Sec. 22. No ex post facto law or bill of attainder shall be
enacted. Sec. 22, Article III, 1987 Constitution) and

Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal althou
gh it was legal when done, or increases the penalty for a crime after it is committed. Such laws are speci
fically prohibited by the Phil.. Constitution.
ex post facto
adjective affecting a previous act, after the act is committed, after the
fact, afterward, at a later period, at a later time, at a subsequent period, at a
succeeding time, directly after, following in time, later, later in
time, retroactive, thereafter

(b) When the retroactive effect of the statute will constitute an

impairment of the obligation of contract. (“Sec. 10. No
law impairing the obligation of contracts shall be passed.” Sec.
10, Article III, 1987 Constitution)
(2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar as
they favor the accused who is not a habitual criminal, even though at the
time of the enactment of such laws final sentence has already been
rendered. (Art. 22, RPC)

Art. 22. Retroactive effect of penal laws. – Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5, Art. 62
of the RPC, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.

Art. 62. (5) Habitual delinquency shall have the following effects:
Xxx
For the purpose of this article, a person shall be deemed to be a
habitual delinquent, if within a period of ten years from the
date of his release or last conviction of the crimes of serious or less
serious physical injuries, robo, hurto, estafa, or falsification, he is
found guilty of any of said crimes a third time or oftener. (As
amended by R.A. No. 7659)

(3) In case of Remedial statutes.-- Remedial statutes are those which refer to
the method of enforcing rights or of obtaining redress of their invasion.

(4) In case of Curative statutes.-- Curative statutes are those which undertake
to cure errors and irregularities, thereby validating juridical or
administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by
reason of some statutory disability or the failure to comply with some
technical requirement. But these statutes cannot violate constitutional
provisions, nor destroy vested rights of a third person. They cannot affect a
judgment that has become final.

(5) In case of laws interpreting others.-- These are laws which are intended to
clarify doubts or interpret an existing law.

(6) In case of laws creating new rights.-- The principle that a new law shall not
have retroactive effect only governs rights arising from acts done under
the rule of the former
law; but if a right be declared for the first time by a new law it shall take effect
from the time of such declaration, even though it has arisen from acts subject
to the former laws, provided that it does not prejudice another acquired right
of the same origin.

(7) If the law is of an emergency measure and authorized by the police power of
the State.

(8) Tax laws – which impose taxes may be given retroactive effect. Liability for
taxes is incidental to social existence. (Lorenzo vs. Posadas, 64Phil 353)

D. Mandatory or Prohibitory Laws, NCC Art. 5

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws

shall be void, except when the law itself authorizes their validity.

Mandatory and Directory Laws.-- Directory laws are those provisions which are
mere matter of form, or which are not material, do not affect any substantial
right, and do not relate to the essence of the thing to be done, so that
compliance is a matter of convenience rather than substance. Mandatory laws
are statutory provisions which relate to matters of substance, affect substantial
rights and are the very essence of the thing required to be done.
A mandatory law is one which prescribes some element as a requirement, e.g.,
Art. 804 which requires that a will must be in writing. A prohibitory law is one
which forbids something, e.g., Art. 818 which forbids joint wills.

Other examples:

Art. 739 –prohibiting the making of donations to certain persons

Art. 749 – mandating that a donation of an immovable property must be
in a public instrument
Art. 804- requiring that a will be in writing.
Art. 818- prohibiting the making of a joint will by two or more persons,
Art. 1287 – declaring compensation as not proper in deposit or
commodatum.
Art. 2012- disqualifying certain persons to become beneficiaries in life
insurance policies.

Exceptions to the above provision.

1. When the law itself authorizes its validity.-- "Law" here refers to the
juridical order in its totality.

i.e. Art. 349 of the RPC punishes bigamy. However, if bigamy is

committed under the circumstances provided in Art. 41 of the FC, the
subsequent bigamous marriage is considered valid.

2. Where the law itself authorizes its validity, but punishes the violator,
e.g., where the marriage was solemnized by a person who does not have legal
authority, but the party or parties believing in good faith, that such person has
authority to do so, then the marriage is valid but the person who
solemnized the same shall be criminally liable

i.e. Art. 351 of the RPC punishes widows for premature marriages. If a
widow remarries within the prohibited period of 301 days, nevertheless, the
marriage remains valid but without prejudice to her criminal liability.

Article 351 has now been repealed

A law that penalizes (with imprisonment) widowed women who marry within 301 days after
losing their husbands has been scrapped.
President Benigno Aquino III recently issued Republic Act No. 10655, an edict that repeals the
crime of “premature marriage” under the country’s Revised Penal Code.
“Be it enacted … Without prejudice to the provisions of the Family Code on paternity and
filiation, Article 351 of the Revised Penal Code, punishing the crime of premature marriage
committed by a woman, is hereby repealed,” the edict, which was issued last March 13, 2015
but was made public only March 27, stated.
Article 351 prescribes said that: “Any widow who shall marry within 301 days from the death of
her husband or [before] having delivered if she shall have been pregnant at the time of his death,
shall be punished by arresto mayor [one month and one day to six months imprisonment] and
[be made to pay] a fine not exceeding P500 (Dh41).
“The same penalties shall be imposed upon any woman whose marriage shall have been
annulled or dissolved, if she shall marry before her delivery or before the expiration of the
period of three hundred and one day after the legal separation,” Article 351 said.

3. Where the law merely makes the act voidable, e.g., a marriage
celebrated through violence or intimidation or physical incapacity or fraud is
valid until it is annulled. (Art. 45, FC)

4. Where the law declares the act as void, but recognizes legal effects
arising from it, e.g., children born of void marriage are classified as
illegitimate children entitled to the rights in Art. 176, Family Code.

Under Art. 36 of the FC, a marriage under Art. 36 is void but children
born before the final declaration of nullity of the marriage are
considered legitimate. (Art. 54, FC)

E. Waiver of Rights, NCC Art. 6

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a
right recognized by law.
Elements of Right.-- Every right has 3 elements: (1) the subjects, (2) the object,
and (3) the efficient cause.
(1) The subjects of rights are persons; rights exist only in favor of persons.
There are 2 kinds of subjects:
(a) the active subject, who is entitled to demand the enforcement of the
right; and (b) the passive subject, who is duty-bound to suffer its enforcement.

(2) Things and services constitute the object of rights.

(3) The efficient cause is the fact that gives rise to the legal relation.

Kinds of Rights.-- Rights may be classified into political and civil; the former
include those referring to the participation of persons in the government of the
State, while the latter include all others. Civil rights may be further classified
into: The rights of personality, family rights and the patrimonial rights. The
rights to personality and family rights are not subject to waiver; but
patrimonial rights can generally be waived.

a. Natural rights – assured by natural law.

b. Civil rights – are such as belong to every citizen of the country such as
rights of property, marriage, equal protection of the laws, freedom of
contract, . This are rights appertaining to a person by virtue of his citizenship
in a state.
c. Political rights – consists in the power to participate, directly or
indirectly, in the establishment or administration of government. i.e. right
of suffrage, the right to hold public office, and the right to petition.

Renunciation or Waiver.-- Waiver is defined as the relinquishment of a

known right with both knowledge of its existence and an intention to
relinquish it. Voluntary choice is the essence of waiver.

Exceptions to the Rule that Rights can be waived.—

(1) If the waiver is contrary to one of the five considerations (law, public order,
public policy, morals or good customs), e.g., you cannot waive future support
because it is against the law and public policy;
(2) if the waiver would be prejudicial to a 3rd party with a right recognize by
law, e.g., in a stipulation pour atrui, the creditor cannot waive the stipulation
in favor of a third person.

Elements of a Valid Waiver:

(1) Existence of a right;

(2) Knowledge of existence thereof;
(3) An intention to relinquish the right (implied in this is the capacity to
dispose of the right.) (Herrera v. Borromeo, 152 S 171.)

The renunciation must be made in a clear and unequivocal manner. The

formality required by law for such renunciation, if any, should be followed; if no
particular formality is required, the renunciation may even be tacit, provided
the intent to renounce can be clearly established.

Scope of Waiver.-- The doctrine of waiver is generally applicable to all rights

and privileges to which a person is legally entitled, whether secured by
contract, conferred by statute, or guaranteed by the Constitution, provided
such rights and privileges rest in the individual and are intended for his sole
benefit.

Waiver of Obligations.-- Generally, obligations cannot be renounced. But a

person may exempt himself from an obligation which is inherent in a right,
upon the renunciation of such right. For example Art. 628- Should there be
several dominant estates, the owners of all of them shall be obliged to
contribute to the expenses referred to in the preceding article, in proportion to
the benefits which each may derive from the work. Anyone who does not wish
to contribute may exempt himself by renouncing the easement for the benefit
of the others. X x x

Renunciation of Real Rights.-- According to Valverde, while the renunciation of

a personal right requires the consent of the debtor (as in case of remission or
condonation) the renunciation of a real right is unilateral and depends upon
the exclusive will of the owner of the right.

PEOPLE V. DONATO [198 S 130 (1991)] - The doctrine of waiver extends to the
rights and privileges of any character, and since the word "waiver" covers any
conceivable right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of which he is
the owner or which belongs to him or to which he is legally entitled whether
secured by contract, conferred with statute, or guaranteed by constitution,
provided such rights and privileges do not infringe on the rights of others, and
further provided the waiver of the right or privilege is not forbidden by law, and
does not contravene public policy. Rights guaranteed to one accused of a crime
fall naturally into two classes: (a) Those in which the state, as well as the
accused, is interested, and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class cannot be
waived, those of the second may be. (Commonwealth v. Petrillo). This Court has
recognized waivers of constitutional rights such as the rights against
unreasonable searches and seizures, the right to counsel and to remain silent,
and the right to be heard. The right to bail is another of the constitutional
rights which can be waived. It is a right personal to the accused and whose
waiver would not be contrary to law, public order, morals or good customs, or
prejudicial to a third person with a right recognized by law.

F. Repeal of Laws, NCC Art. 7

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only

when they are not contrary to the laws or the Constitution.

Reason for the Article.-- Since laws are promulgated by competent authority of
the State, they can cease to have effect only through the will of the State.

Repeal of Laws.-- There are 2 kinds of repeal of a law:

(1) express or declared repeal, contained in a special provision of a
subsequent law, and
(2) implied or tacit repeal, which takes place when the provisions of the
subsequent law are incompatible or inconsistent with those of an earlier law.

Requisites of Implied Repeals:

(1) the laws cover the same subject matter, and
(2) the latter is repugnant to the earlier.

Repeal of Repealing Law.-- When a law which expressly repeals a prior law is
itself repealed, the law first repealed shall not be revived unless expressly so
provided. But if the prior law was repealed, not expressly but by implication,
the repeal of the repealing law will revive the prior law, unless the language of
the last law provides otherwise.

Revival of a Repealed Law - A repealed law may or may not be revived, when
the repealing law which repealed it, is itself repealed. The revival depends on
the manner how the first law was repealed.

a. If the first law is repealed by IMPLICATION by the second law, and the second
law is itself repealed by the third law, the first law is revived unless otherwise provided
in the third law.

b. However, if the first law is repealed EXPRESSLY by the second law, and the
second law is repealed by third law, the first law is not revived, unless expressly so
provided (Sec. 14, Revised Administrative Code)

The general rule is, in case of implied repeal, there is revival and in case
of express repeal, there is no revival. Exception, if the contrary is provided.

G. Judicial Decisions, NCC Art. 8

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution

shall form part of the legal system of the Philippines

This is a common law principle. This shows that our New Civil Code is not a
full-blooded Civil Law scion.
Decisions not Source of Law.-- Jurisprudence, in our system of government,
cannot be considered as an independent source of law; it cannot create law. But
the Court's interpretation of a statute constitutes part of the law as of the date
it was originally passed, since the construction merely establishes
contemporaneous legislative intent that the interpreted law carried into effect.
Judicial decisions are not laws but have the force and effect of laws.

Doctrine of stare decisis.-- The doctrine of stare decisis is based on the

principle that once a question of law has been examined and decided, it should
be deemed settled and closed to further argument. The doctrine, however, is
flexible; so, that when, in the light of changing conditions, a rule has ceased to
be of benefit and use to society, the courts may rightly depart from it.

PEOPLE V. LICERA [65 S 270 (1975)] - F: In 1961, accused was granted an

appointment as secret agent of Governor Leviste. In 1965, accused was charged
with illegal possession of firearms. The Supreme Court held that where at the
time of his appointment, People v. Macarandang (1959) was applicable, which
held that secret agents were exempt from the license requirement, and later
People v. Mapa (1967) was decided, the earlier case should be held applicable.

HELD: Art. 8 of the Civil Code decrees that judicial decisions applying or
interpreting the laws or the Constitution form part of this jurisdiction's legal
system. These decisions, although in themselves not law, constitute evidence
of what the laws mean. The application or interpretation placed by the courts
upon a law is part of the law as of the date of the enactment of the said law
since the Court's application or interpretation merely establishes the
contemporaneous legislative intent that the construed law purports to carry
into effect. A new doctrine abrogating an old rule operates prospectively and
should not adversely affect those favored by the old rule.

PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] - Where accused who were
charged with murder, filed a motion to quash on the ground of lack of
jurisdiction, which the lower court granted, and the government, following, the
doctrine of People v. Salico which held that an appeal by the government does
not place accused in double jeopardy, this interpretation, though later
abandoned, must be held applicable to accused, and they cannot invoke the
defense of double jeopardy. People v. Salico has long become final and
conclusive and has become the law of the case. It may be erroneous, judged by
the law on double jeopardy as recently interpreted by the Supreme Court. Even
so, it may not be disturbed and modified. The Supreme Court's recent
interpretation of the law may be applied to new cases, but certainly not to an
old one finally and conclusively determined.

"Law of the case” has been defined as the opinion delivered on a former appeal.
More specifically, it means that whatever is once irrevocably established as the
controlling legal rule of decision between the same parties in the same case
continues to be the law of the case, whether correct on general principles or
not, so long as the facts on which such decision was predicated continue to be
the facts of the case before the court." [21 C.J.S. 330]

H. Duty to Render Judgment, NCC Art. 9

Art. 9. No judge or court shall decline to render judgment by reason of the

silence, obscurity or insufficiency of the laws.

In a situation contemplated by this Article, the judge will be guided by customs

and principles of right and justice. The defect of this article is that the Code
Commission omitted the second paragraph of Art. 6 of the OCC, from which the
provision came which provided that "if there is no law exactly applicable xxx
the customs of the place shall be applied, and in default thereof, the general
principles of law. But this is not completely abrogated because of Articles 10
and 11.

Applicability of Article.-- This article does not apply to criminal prosecutions,

because when there is no law punishing an act, the case must be dismissed,
however, reprehensible the act may seem to the judge.

Obscurity or Deficiency of Law.-- If the law is vague or obscure, the court

should clarify it in the light of the rules of statutory construction; if it is silent
or insufficient, the court should fill the deficiency by resorting to customs or
general principles of law.

Concept of Customs.-- Custom may be defined as the juridical rule which

results from a constant and continued uniform practice by the members of a
social community, with respect to a particular state of facts, and observed with
a conviction that it is juridically obligatory.

Requisites of Custom.—

(1) plurality of acts, or various resolutions of a juridical question raised

repeatedly in life;
(2) uniformity, or identity of the acts or various solutions to the juridical
questions;
(3) general practice by the great mass of the social group;
(4) continued performance of these acts for a long period of time;
(5) general conviction that the practice corresponds to a juridical
necessity or that it is obligatory; and
(6) the practice must not be contrary to law, morals or public order.

Custom distinguished from Law.-- As to origin, custom comes from the society,
while law comes from the governmental power of the State; the former is
spontaneous, while the latter is a conscious creation. As to form, custom is
tacit, being manifested in acts or usages, while law is express, manifested in
solemn and official form. The former is unwritten law, the latter is written law.
What Custom Applied.-- When the place where the court is located and the
domicile of the parties are different, and each place has a different custom, it
is to be presumed that they knew the custom of their domicile and not that of
the court's location. If the domiciles of the parties are different and they have
different customs, Manresa believes that there is no reason for making a
preference, and the matter should be treated as if there is no custom. Sanchez
Roman sustains the view, however, that in the absence of reasons for
preference, the general rule should be to apply the custom of the place for the
performance or consummation of the juridical act.

I. Presumption and Applicability of Custom, NCC Arts 10-12

Art. 10. In case of doubt in the interpretation or application of laws, it is

presumed that the lawmaking body intended right and justice to prevail.

Art. 11. Customs which are contrary to law, public order or public policy shall
not be countenanced.

Art. 12. A custom must be proved as a fact, according to the rules of evidence.

Custom can be applied suppletorily only if custom is not contrary to any law.

YAO KEE V. SY-GONZALES [167 S 737] - Sy-Kiat, a Chinese national, died in

1977 in Kaloocan City, where he was residing, leaving behind substantial real
and personal properties here in the Philippines. Petition for letters of
administration filed by his natural children, was opposed on the ground that Sy
Kiat was legally married to Yao Kee, in Fookien, China on 1/13/31 and that
the oppositors are the legitimate children. The probate court rendered
judgment in favor of the oppositors; this was modified and set aside by the CA
which held that both sets of children were acknowledged natural children. Both
parties moved for partial reconsideration.

HELD: For failure to prove the foreign law or custom, and consequently, the
validity of the marriage in accordance with said law or custom, the marriage
between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. In the
case at bar, petitioners did not present any competent evidence relative to the
law and customs of China on marriage. The testimonies of Yao and Gan Ching
cannot be considered as proof of China's law or custom on marriage not only
because they are self-serving evidence, but more importantly, there is no
showing that they are competent to testify on the subject matter.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly

observed (practiced) as a social rule, legally binding and obligatory." The law
requires that "a custom must be proved as a fact, according to the rules of
evidence." On this score the Court had occasion to state that "a local custom as
a source of right cannot be considered by a court of justice unless such custom
is properly established by competent evidence like any other fact." The same
evidence, if not one of a higher degree, should be required of a foreign custom.

J. Legal Periods, NCC Art. 13

Art. 13. When the laws speaks of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each; months, of
thirty days; days of twenty-four hours; and nights from sunset to sunrise.

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

In computing a period, the first day shall be excluded, and the last day
included.

Art. 13 has been superseded by Sec. 31, Book I of EO 292 (Administrative Code
of 1987) which provides that

Sec. 31. Legal Periods.-- "Year" shall be understood to be twelve (12) calendar months;
"months" of thirty (30) days, unless it refers to a specific calendar month in which case it
shall be computed according to the number of days the specific month contains; "day," to
a day of twenty four (24) hours; and "nights," from sunset to sunrise.

This article applies only to legal provisions and not to contracts, where the
parties may stipulate on the manner of computing years, months and days.

Meaning of "Week."-- The term "week," when computed according to the

calendar, means a period of 7 days beginning on Sunday and ending on
Saturday, but where the word is used simply as a measure of duration of time
and without reference to the calendar, it means a period of seven (7)
consecutive days without regard to the day of the week on which it begins.
Meaning of "Month."-- There are several senses in which the term "month" may
be understood. A "lunar" month is composed of 28 days. A "calendar" month as
designated in the calendar, without regard to the number of days it may
contain, etc. The Code, however, does not use "month" in either of these
senses, but strictly in a legal sense, as a period composed of 30 days.

Computation of Time.-- When the act and the period are contractual, not
required by law, court order, or rule of court, the exception referring to
Sundays and holidays does not apply, and the act must be done on the last day,
even if the latter should be a Sunday or a holiday. This is in consonance with
the rule that the contract is the law between the contracting parties.

NAMARCO V. TECSON [29 S 70 (1969)] - ISSUE: Whether or not the present

action for the revival of a judgment is barred by the statute of limitations.

HELD: The very conclusion thus reached by appellant shows that its theory
contravenes the explicit provision of Art. 13 limiting the connotation of each
"year"-- as the term is used in our laws-- to 365 days. [The action to enforce a
judgment which became final on

December 21, 1955 prescribes in 10 years. Since the Civil Code computes
"years" in terms of 365 days each, the action has prescribed on December 19,
1955, since the two intervening leap years added two more days to the
computation. It is not the calendar year that is considered.]

QUIZON V. BALTAZAR [76 S 560 (1977)] - The RPC provides that an action for
serious oral defamation prescribes in six months. The months should be
computed by the regular 30 days, not the calendar months. Hence, where the
crime was committed on November 11, 1963, and the action was filed exactly
180 days later, said action was filed on time.

K. Applicability of Penal Laws, NCC Art. 14

Art. 14. Penal laws and those of public security and safety shall be obligatory upon
all who live or sojourn in Philippine territory, subject to the principles of public
international law and to treaty stipulations.

There are 2 principles involved here: Territoriality and Generality. Territoriality means that our
criminal laws are enforceable only within Philippine territory. Exception to the territoriality
principle is Article 2 of RPC.

Generality which means that within the Philippine territory, our criminal laws will apply to anyone,
citizen or alien. Our penal laws equally apply to aliens who live or sojourn in the Philippines based
on the principle that during their stay, they owe allegiance to the country though temporary in
nature. The same rule is embodied in Article 2 of the RPC.

Example illustrating the territorial theory: If a Filipino murders his sweetheart

in New York he cannot be prosecuted in the Philippines for the crime of
murder. This is because the crime was committed outside of our territorial
jurisdiction.

Example illustrating the protective theory- If a Filipino government official in

Japan commits a crime therein the exercise of his official functions, he can be
tried therefor in the Philippines and by the Phil. Courts, even if the offense
took place in a foreign state. (Art. 2, No. 4, RPC)

PROTECTIVE THEORY- adherents of the protective principle say that any

state whose national interests may be jeopardized has jurisdiction over
criminal offenses, even if committed outside of its territory and in some cases,
even if committed by an alien in order that it may properly protect itself.
Example Article 2 of the RPC.

Art. 2. Application of its provisions.- Except as provided in the treaties and

laws of preferential application, the provisions of this Code shall be enforced
not only with the Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction, against those
who:

1. Should commit an offense while on a Philippine ship or airship;

2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the Government of
the Philippine Islands;
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number;
4. While being public officers or employees, should commit an offense
in the exercise of their functions; or
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of this Code.

Exceptions: (1) treaty stipulations which exempted some persons within the jurisdiction of the
Philippine courts. and
(2) those who under principles of public international law enjoy diplomatic
immunities (from suit) such as heads of states, foreign ambassadors or diplomats
provided they do not travel incognito.[consuls are subject to the jurisdiction of
our criminal courts (Schneckenburger v. Moran.)]

Exemption under International Law.-- Under the theory of extraterritoriality (where the State has
jurisdiction over certain cases committed outside of its jurisdiction, a juridical power extending
beyond the physical limits of a particular state or country Art. 2, RPC), foreigners may be exempted
from the operation of the Philippine laws in the following cases:

(1) When the offense is committed by a foreign sovereign while in Phil. territory;
(2) When the offense is committed by diplomatic representatives; and
(3) When the offense is committed in a public or armed vessel of a foreign country.

CRIMES COMMITTED ABOARD PUBLIC VESSELS – whether the crime committed aboard a
public vessel (such as a battleship) took place on the high seas or within our territorial waters (or
maritime zone) the country whose flag the vessel carries has jurisdiction on the theory that the
vessel is an extension of the territory of the said state. (US vs. Fowler, 1Phil 14)
CRIMES COMMITTED ABOARD PRIVATE OR MERCHANT VESSELS-

1. If the crime committed aboard a private merchant vessel occurred

on the HIGH SEAS, the country of the flag of the vessel has jurisdiction. Thus
if the vessel carries the French flag, Phil. Courts have no jurisdiction EXCEPT
of course in instances enumerated under Art. 2 of the RPC ie, piracy.

2. If the crime aboard a private or merchant vessel of a foreign state

took place INSIDE PHIL. TERRITORIAL WATERS, - two theories have generally
been used to determine the question of jurisdiction: the ENGLISH RULE (which
emphasizes the TERRITORIAL PRINCIPLE) and the FRENCH RULE (which
stresses the nationality theory)
 a. ENGLISH RULE – here the territory where the crime was committed
(Phil.) will have jurisdiction except:

1. in matters relating to the INTERNAL ORDER and DISCIPLINE

IN THE vessel.

2. and those which AFFECT SOLELY THE SHIP AND ITS

OCCUPANTS such as minor or petty criminal offenses
committed by members of the crew.

b. FRENCH RULE – under this rule, the state whose flag is flown by the
vessel, would have jurisdiction EXCEPT if the crime affects the
peace, order, security, and safety of the territory.

In PEOPLE V. WONG Cheng (46 Phil 729), the SC expressly stated

that the ENGLISH RULE obtains in the Phils., and as authority
therefor, it cited the case of US v. Look Chaw (18 Phil 573).

The difference between the two rules is largely academic and

theoretically, the two rules being essentially the same. Thus, if aboard a
German ship anchored in Manila Bay, the crime murder is committed, under
the English Rule, the Phils. Would have jurisdiction in view of the general rule,
under the French Theory, the Phils would also have jurisdiction, under the
exception for the crime indeed affects the peace and security of the territory.
Whether we follow therefore the English or the French rule on the matter is
insignificant: the effect is the same.

SC case:

1. The mere possession of opium aboard a foreign vessel in transit is not

triable by our Courts because mere possession thereof, without being used in
our territory, is not considered a disturbance of the public order. (US vs. Look
Chaw, 18 Phil 573)

2. On the other hand, “to smoke opium within our territorial limits, even
though aboard a foreign merchant ship, is certainly a breach of the public order
here established, because it causes such drug to produce its pernicious effects
within our territory.
BAR QUESTION – 1961

A French vessel in transit is anchored along a pier at Port Area, Manila. There
was found in a cabin of one of the members of the crew, who is a Frenchman, a
package of opium. The French sailor admitted possession of the same. May he
be criminally prosecuted for illegal possession of opium in our courts? Why?

Suppose the package of opium was already lowered from the boat and placed on
a abanca that was floating on the water alongside the vessel ready to be brough
ashore, may a criminal prosecution be filed in the Phils.? Why?
ANSWER:

1. No prosecution will succeed in the case involving merely the illegal

possession of opium, because there is actually no disturbance of the public
order in the Phils. (US v Look Chaw, 18 Phil 573)

2. The act, however, of placing the opium aboard the banca, ready to
be brought ashore is violation of our public morals, safety and order,
consequently, the act should be punished. ( People v. Wong Cheng, 46 Phil.
729)

Public merchant vessels as well as airships of Philippine registry are also considered parts of the
Philippine territory. Crimes committed within these vessels and airships are triable by Philippine
court although said vessels are in international waters or space.

Offenses in Merchant Vessels.-- A merchant vessel of foreign registry does not enjoy the
extraterritorial privilege of foreign public or war vessels. An offense committed on such vessel
while it is in a Philippine port, constituting a breach of public order and a violation of the policy
established by the legislature, is triable in Philippine ports.

L. Conflict of Laws, NCC Arts. 15-18, relative to Divorce, Art. 26 (2)

Art. 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad.

Theories on Personal Law.—

a. Domiciliary theory, followed in the US, according to which the

personal laws of a person are determined by his domicile.

b. Nationality theory which makes nationality or citizenship as the

basis for determining the personal laws of an individual. In the Philippines,
we follow the nationality or citizenship theory.

Capacity to Contract.-- If under the law of the State of which a party to a

contract is a citizen, he is already of age at the time he enters into the
contract, he cannot set such contract aside on the ground of minority, even if
under the laws of the Philippines he is still a minor. (Government vs. Frank, 13
P 238.)

MARRIAGES: LEX LOCI CELEBRATIONIS Art. 26 FC – all marriages solemnized

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

1. Fil. first cousins get married in California, where the marriage is

considered valid. Will their marriage be recognized in the Philippines? ANS.:
No, because such marriage is incestuous as determined by Phil. Law.

2. A fil step-brother wanted to marry his Fil step –sister in the Phils.,
but because in our country, a step-brother cannot validly marry a step-sister,
the two decided to get married in California, where let us say, the marriage is
valid. Will our courts recognize the validity of their marriage abroad?

Yes, because it is valid in the place of celebration and the marriage is

neither bigamous, polygamous, or incestuous as determined by Phil. Law.
Article 26 of the FC does not prohibit it.

Renunciation of Allegiance.-- The question of how a citizen may strip himself

of the status as such citizen is governed by his national law.

TENCHAVEZ V. ESCANO (Fil. Spouse obtained divorce from her Fil. spouse then
later obtained US citizenship. Fil spouse files for legal separation and damages.
[15 SCRA 355] - F: Pastor Tenchavez (PT), 32, married Vicenta Escano (VE), 27
on Feb. 24, 1948, in Cebu City. As of June 1948, the newly-weds were already
estranged. On 6/24/50, VE left for the US. On 8/22/50, she filed a verified
complaint for divorce against the herein plaintiff in the State of Nevada on the
ground of "extreme cruelty, entirely mental in character." On 10/21/50, a
decree of divorce was issued by the Nevada Court. On 9/13/54, VE married an
American Russel Leo Moran in Nevada. She now lives with him in California and
by him, has begotten children. She acquired American citizenship on 8/8/58.
On 7/30/55, PT filed a complaint for legal separation and damages against VE
and her parents in the CFI-Cebu.

HELD: At the time the divorce decree was issued, VE like her husband, was still
a Filipino citizen. She was then subject to Philippine law under Art. 15, NCC.
Philippine law, under the NCC then in force, does not admit absolute divorce
but only provides for legal separation. For Philippine courts to recognize
foreign divorce decrees between Filipino citizens would be a patent violation of
the declared policy of the State, especially in view of the 3rd par. of Art. 17,
NCC. Moreover, recognition would give rise to scandalous discrimination in
favor of wealthy citizens to the detriment of those members of our society
whose means do not permit them to sojourn abroad and obtain absolute divorce
outside the Philippines. Therefore, a foreign divorce between Filipino citizens,
sought and decreed after the effectivity of the NCC, is not entitled to
recognition as valid in this jurisdiction.

VAN DORN V. ROMILLO [139 SCRA 139] - Petitioner Alice Reyes Van Dorn is a
citizen of the Philippines while private respondent Richard Upton is a US
citizen; they were married in HK in 1972; after the marriage, they established
their residence in the Philippines and begot 2 children; the parties were
divorced in Nevada, US, in 1982; and petitioner has remarried also in Nevada,
this time to Theodore Van Dorn. On 6/18/83, Upton filed a suit against
petitioner in the RTC-Pasay, stating that petitioner's business in Ermita, Mla.
(the Galleon Shop), is conjugal prop. and asking that petitioner be ordered to
render an accounting of that business, and that Upton be declared as having
the right to manage the conjugal prop.

It is true that owing to the nationality principle embodied in Art. 15, NCC, only
Philippine nationals are covered by the policy against absolute divorces the
same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. In this
case, the divorce in Nevada released private respondent from the marriage from
the stand of American law, under which divorce dissolves the marriage. Thus,
pursuant to his national law, Upton is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. xxx. To maintain, as Upton
does, that under our laws, petitioner has to be considered still married to him
and still subject to a wife's obligations under the NCC cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not continue to be one
of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be
observed.

OBLIGATION OF A FOREIGN NATIONAL TO SUPPORT HIS MINOR CHILD

UNDER PHILIPPINE LAW
G.R. No. 193707, December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO
VAN WILSEM, Petitioner, vs. ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
Petitioner Norma and respondent Ernst Johan contracted marriage in Holland. They were blessed
with a son named Roderigo, who at the time of the filing of the instant petition was sixteen (16)
years of age. Unfortunately, their marriage bond ended by virtue of a Divorce Decree issued by
the appropriate Court of Holland. At that time, their son was only eighteen (18) months old.
Thereafter, petitioner and her son came home to the Philippines. According to
petitioner, respondent made a promise to provide monthly support to their son in the amount of
Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less). However,
since the arrival of petitioner and her son in the Philippines, respondent never gave support to the
son, Roderigo.
Not long thereafter, respondent came to the Philippines and remarried in Cebu City, and since
then, have been residing thereat. Petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter.
Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A.
No. 9262 for the latter’s unjust refusal to support his minor child with petitioner. Thereafter, the
Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an
information for the crime charged against herein respondent with the RTC-Cebu.
The RTC-Cebu issued the herein assailed Order, dismissing the instant criminal case against
respondent on the ground that the facts charged in the information do not constitute an offense
with respect to the respondent who is an alien,
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s
obligation to support their child under Article 195 of the Family Code, thus, failure to do so
makes him liable under R.A. No. 9262 which "equally applies to all persons in the Philippines
who are obliged to support their minor children regardless of the obligor’s nationality." The
RTC-Cebu issued an Order denying petitioner’s Motion for Reconsideration. Hence, the
present Petition for Review on Certiorari.

ISSUE: Does a foreign national have an obligation to support his minor child under our
Philippine Law?

RULING:
A foreign national has an obligation to support his minor child. Petitioner cannot rely on
Article 195 of the Family Code in demanding support from respondent, who is a foreign
citizen, since Article 15 of the New Civil Code stresses the principle of nationality. In other
words, insofar as Philippine laws are concerned, specifically the provisions of the Family
Code on support, the same only applies to Filipino citizens. By analogy, the
same principle applies to foreigners such that they are governed by their national law with
respect to family rights and duties.

The obligation to give support to a child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland or the Netherlands he is subject to the
laws of his country, not to Philippine law, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so.
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son
under Article 195 of the Family Code as a consequence of the Divorce Covenant obtained in
Holland. This does not, however, mean that respondent is not obliged to support petitioner’s
son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has
the burden of proving the foreign law. In the present case, respondent hastily concludes that
being a national of the Netherlands, he is governed by such laws on the matter of provision of
and capacity to support. While respondent pleaded the laws of the Netherlands in advancing
his position that he is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does
not impose upon the parents the obligation to support their child (either before, during or after
the issuance of a divorce decree). In view of respondent’s failure to prove the national law of
the Netherlands in his favor, the doctrine of processual presumption shall govern. Under
this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic or internal law . Thus,
since the law of the Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with Philippine law,
which enforces the obligation of parents to support their children and penalizing the non-
compliance therewith. Such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of financial support when the latter is
entitled thereto.

INTRINSIC VALIDITY OF THE CONTRACT: The intrinsic validity of a contract

(including the consideration or cause thereof, the interpretation of the
instruments, and the nature and amount of damages for breach or non-
performance) must be governed by the “proper law of the contract ( the lex
contractus, considered in the broad sense). This is the law voluntarily agreed
upon by the parties (the lex loci voluntatis) or the law intended by them
expressly or impliedly (the lex loci intentionis). While this rule is not expressly
provided for in our laws, this is followed by most legal systems.

Lex Rei Sitae:

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary successions, both with respect to the

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

Art. 16 par. 1 provides that the lex situs or lex rei sitae governs real or
personal property. This rule applies even to incorporeal property. In Tayag v.
Benguet Consolidated, 26 SCRA__, the Supreme Court said that Philippine
courts have jurisdiction over shares of stocks located in the Philippines.

The rule of mobilia sequuntur personam (movables follow the owner) in

personal property has yielded to the lex situs because of the great increase in
modern times of the amount and variety of property not immediately
connected with the person of the owner.

EXAMPLES:

A Chinese donated in Germany in favor of a Filipino a parcel of land in

the Philippines.

a. The law of which country governs the formalities of the donation?

Why?

b. The law of which country governs the capacity of the Chinese to

make the alienation? Why?

c. The law of which country governs the intrinsic validity of the

donation? Why?
 ANSWER:

a. The law of the Philippines – the lex rei sitae – governs the
formalities of the donation (Art. 16 CC). The lex loci
celebrationis doctrine does not apply because the transaction
relates to land and must therefore be governed by the law of the
place where the land is situated.

b. The law of the Philippines – the lex rei sitae – governs the capacity
of the Chinese to alienate (Art. 16) here the doctrine of national law
under Article 15 of the CC yields precisely because the subject
matter is land.

c. The law of the Philippines – the lex rei sitae governs the intrinsic
validity of the donation 9Art. 16). The general rule of lex loci
voluntatis (law of the place voluntarily agreed upon) or lex loci
intentionis ( law of the place intended) yields to the lex rei sitae
rule because the subject matter is land.

DAVID A. NOVERAS vs. LETICIA T. NOVERAS, G.R. No. 188289, August 20, 2014
David and Leticia are US citizens who own properties in the USA and in the
Philippines. Leticia obtained a decree of divorce from the Superior Court of
California in June 2005 wherein the court awarded all the properties in the
USA to Leticia. The trial court erred in recognizing the divorce decree. The
foreign judgment and its authenticity must be proven as facts under our rules
on evidence, together with the alien’s applicable national law to show the effect
of the judgment on the alien himself or herself. The recognition may be made
in an action instituted specifically for the purpose or in another action where a
party invokes the foreign decree as an integral aspect of his claim or defense.
With respect to their properties in the Philippines, Leticia filed a petition for
judicial separation of conjugal properties. The Court ruled that the Philippine
courts did not acquire jurisdiction over the California properties of David and
Leticia. Indeed, Article 16 of the Civil Code clearly states that real property as
well as personal property is subject to the law of the country where it is
situated. Thus, liquidation shall only be limited to the Philippine properties.

EXCEPTIONS TO THE RULE IN THE CASE OF REAL PROPERTY:

1. in case of successional rights to real property, what should control

IS THE national law of the deceased (Art. 16, par. 2, CC0

2. Capacity to succeed (in inheritance problems) is also governed by

the NATIONAL LAW of the deceased 9Art. 1039, CC)

Example:

A Turkish citizen died leaving parcels of land in the Philippines.

How should our court distribute the successional rights of his heirs
to said real property? Suppose one of the compulsory heirs is a
Chinese, what law governs the capacity of this Chinese heir to
inherit land in our country?

Ans: The successional rights of the heir to the parcels of land in

the Philippines shall be governed not by the lex rei sitae but by
the national law of the deceased, that is, by Turkish law.
Similarly the capacity of the Chinese heir to inherit
Philippine realty is also determined by Turkish law for this
is the decedent’s national law (Art. 1039)

3. Contracts involving real property but which do not deal with the
title (transfer) to such real property shall not necessarily be
governed by the lex rei sitae. The proper law of the contract –
which is the lex loci voluntatis or the lex loci intentionis
should be regarded as controlling.

Example: In Manila a German, owning land in Switzerland, agreed to pay

as salary to a Japanese employee, 10% of the annual produce of the land in
Switzerland, on condition that said land would not be expropriated by the Swiss
authorities. It was the mutual desire of both parties that the stipulation of
their employment contract should be governed by Phil laws. What laws govern
the extrinsic and intrinsic validity of their agreement?

ANSWER: The EXTRINSIC validity of the agreement is governed by Phil

law because the contract was celebrated in our country. The INTRINSIC
validity shall be determined by Phil law for this was likewise the lex loci
voluntatis. The fact that the contract involved land located in Switzerland is
of no moment, for the agreement does not concern itself with any transfer of
title thereto, at least as between the parties. The fact that this case deals with
foreign land in a way is merely incidental (US case)

4. In contracts where real property is given by way of security, the

principal contract (which is generally the contract of loan) is governed by the
proper law of the contract; the accessory contract of mortgage is of course
governed by the law of the state where the real property mortgaged is situated.

a. If the principal contract is valid as tested by the lex loci voluntatis

or the lex intentionis, the validity of the accessory contract of mortgage is still
to be determined by the lex
rei sitae. If the mortgage is void by the lex rei sitae, the principal contract can
still remain valid.

b. If on the other hand, tested by the lex loci voluntatis or the lex
loci intentionis, the principal contract of loan is void, the mortgage would
undoubtedly be also void (for the accessory loses standing should the principal
be invalid), even if considered independently by itself the mortgage would have
been regarded as valid by the lex rei sitate.
Law on Succession.-- The law governing succession may be considered from the
point of view of (a) the execution of wills, and (b) the distribution of property.
The formalities of execution of will are generally governed by the law of the
place of execution (Art. 17, par. 1.) But the distribution of the estate is
governed by the law of the nation of the deceased.

Applicability of Foreign Law.-- The second paragraph of this article can be

invoked only when the deceased was vested with a descendible interest in
property within the jurisdiction of the Philippines.

Exceptions to the Lex Situs Rule. – In succession, whether intestate or

testamentary. These incidents are governed by the national law of the
deceased irrespective of the nature of the property involved and regardless of
the country wherein said property may be found:

1. Order of succession in intestacy – which settles questions of

preference in succession. i.e. the rule that the nearest heirs exclude the
farthest heirs from the succession.

2. Amount of succession rights

3. Intrinsic validity of the provisions of the will – which refers to the

effectiveness of the dispositions in the will. E.g. validity of the preterition
of an heir.

4. Capacity to succeed. (Art. 1039, CC)

The intrinsic validity of the provisions of the will of a foreigner who dies
in the Philippines is to be determined by the laws of his own state or country,
and not by those of the Philippines. Thus, a condition in a will of a foreigner
that his legatee respect his order that his property be distributed according to
the laws of the Philippines instead of the laws of his own country, was held
illegal and considered as not written.

Renvoi Doctrine- Literally, it means “referring back” which arises where our law
refers a case to another country for solution, but the law of that country refers
it back to our country for determination. When the reference is made back to
the law of the forum, that is known as “remission” (or “single renvoi”) while the
reference made to a third state is known as “transmission” (double renvoi)

Lex Loci Celebrationis:

Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.

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

The rule in par. 1 is known as the lex loci celebrationis.

Validity and Effects of Obligations.-- The code fails to mention the law which
shall govern the validity and effects of obligations.

(1) First, the law designated by the parties shall be applied;

(2) if there is no stipulation on the matter, and the parties are of the
same nationality, their national law shall be applied;
(3) if this is not the case, the law of the place of perfection of the
obligation shall govern its essence and nature, and the law of the place of
the performance shall govern its fulfillment;
(4) but if these places are not specified and they cannot be deduced from
the nature and circumstances of the obligation, then the law of the
domicile of the passive subject shall apply. (Manresa and Valverde.)

(SINGLE RENVOI) example AZNAR V. GARCIA [61 O.G. No. 46 p. 7303 (1963)] -
Where the testator was a citizen of California, and domiciled in the Philippines,
the amount of successional rights should be governed by his national law.
However, since the conflicts of law rules of California provides that in case of
citizens who are residents of another country, the law of the country of
domicile should apply, then Philippine law on legitimes was applied. Hence,
under Philippine laws, the acknowledged natural daughter cannot be deprived
of her legitime.

BELLIS V. BELLIS [20 S 358 (1967)] - Where the testator was a citizen of Texas
and domiciled in Texas, the intrinsic validity of his will should be governed by
his national law. Since Texas law does not require legitimes, then his will which
deprived his illegitimate children of the legitimes is valid. While Art. 17, par. 3
provides that prohibitive laws of our country concerning persons and their
property shall not be rendered ineffective by contrary laws in a foreign country,
this cannot be considered an exception to Art. 16 which categorically provides
for the situations when the national law shall apply. Precisely, Congress deleted
the phrase "notwithstanding the provisions of this and the next preceding
article" when they incorporated Art. 11 of the Old Civil Code as Art. 17 of the
New Civil Code, while reproducing without substantial change Art. 10
paragraph 2 of the Old Civil Code as Art. 16 of the New Civil Code. It must have
been their purpose to make Art. 16, paragraph 2, a specific provision in itself
which must be applied in testate and intestate successions. Thus, in Miciano v.
Brimo, a provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national law, is
illegal and void, for his national law cannot be ignored in regard to those
matters that Art. 10 - now Art. 16 - states said national law shall govern.
Baviera: Why was Texas law applied when there was no proof of Texas law?

Other Conflict of Law Rules:

Art. 829. A revocation done outside the Philippines, by a person who does not
have his domicile in this country, is valid when it is done according to the law
of the place where the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the revocation takes
place in this country, when it is in accordance with the provisions of this Code.

Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.

Art. 1753. The law of the country to which the goods are to be transported
shall govern the liability of the common carrier for their loss, destruction or
deterioration.

Art. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 36, 37 and 38.
xxx. (Family Code.)

- Art. 35 (1) - must not be below 18

- Art. 35 (4) - not bigamous or polygamous

- Art. 35 (5) - no mistake as to identity of the other party
- Art. 35 (6) - void marriages for failure to comply with Art. 53 on recording in
the Civ Registry of the judgment of annulment or absolute nullity of marriage,
partition and distribution of properties of the spouses, and the delivery of the
children's presumptive legitimes.

- Art. 36 - psychological incapacity

- Art. 37 - incestuous marriages

- Art. 38 - void marriages by reason of public policy.

- Art. 26. Xxx Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law. (As amended by EO No.
227, prom. July 17, 1987) (Family Code.) This is a qualified divorce law.
Q: Would the ruling in Tenchavez still be the same, even after the amendment
introduced in Art. 26 by EO 227?
A: Yes, because the Tenchavez spouses are Filipinos. Art. 26 par. 2 does not
apply to them. Note in the Van Dorn v. Romillo ruling, we are not told, at
whose instance the divorce was obtained.

Requisites of Art. 26 par. 2:

(1) one of the spouses is a foreigner;
(2) a divorce decree is obtained
(3) the divorce decree is obtained at the instance of the foreign spouse
(4) under the divorce decree, the foreigner-spouse acquires the capacity
to remarry.

Q: Suppose at the time of the marriage, both spouses are Filipinos. Afterwards,
one becomes naturalized. Would Art. 26 par. 2 still be applied?

This refers to the formal or extrinsic requirements only, namely (1) authority of
the solemnizing officer; (2) valid marriage license; (3) marriage ceremony.
As to the essential or intrinsic requirements, namely (1) legal capacity and (2)
consent, these must be complied with in accordance with the national law of
the parties.

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the

property relations of the spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property is
located; and
(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country whose laws
require different formalities for their extrinsic validity. (Family Code.)

Art. 18. In matters which are governed by the Code of Commerce and special
laws, their deficiency shall be supplied by the provisions of this Code.

Exceptions to Article.-- The Code does not observe the principle contained in
this article with consistency. There are special cases expressly provided in the
Code itself, where the special law of the Code of Commerce is made only
suppletory, while the NCC is made primary law. For Example, Art. 1766
provides that: "In all matters not regulated by this Code, the rights and
obligations of common carriers shall be governed by the Code of Commerce and
by special laws."

I. EFFECT AND APPLICATION OF LAWS:

A. Theory of Statutes

1. Universality: Penal laws and those of general welfare and those of public security are
binding on all who reside and sojourn in the Philippine territory. (Art. 14)

Prohibitive laws concerning persons, their acts and their property, and those intended to
promote public order and good morals, shall not be made nugatory by any foreign laws
or judgments nor by an action or agreement made in a foreign country. (Art. 17, p. 3)

Basis of the rule is the right of the State to protect itself and its policies in order to
achieve its ends.

2. Ignorance of the law: Ignorance of the law excuses no one from compliance therewith.
(Art. 3)

 Applies to all kinds of statues, substantive or remedial, civil or penal, as a matter

of necessity, to prevent evasion of the law.
 But foreign laws must be alleged and proved and courts will not take judicial
cognizance thereof.
 But ignorance of the law (if excusable) is not contrary to the existence of good
faith.

3. Validity of acts contrary to law: Acts performed against the provisions of mandatory or
prohibitory laws are void, except in cases where the law itself provides for their validity

B. Effects of law in relation to time. General Rule. Non-Retroactivity .

Laws shall have no retroactive effect unless they provide the contrary (Art. 4)

Exceptions: (retroactive operation)

1. Express provision or clear intent of the law, unless the law is void as contrary to
the prohibition against ex post facto penal statutes or affects vested rights or
impairs the obligations of contracts.
2. Penal statutes where the new law favors the accused or convict, who is not a
habitual delinquent, by lightening the penalty or extinguishing the liability. (see
Art. 22 of the RPC)
3. Procedural statues because there are not vested rights in procedural laws
4. Emergency laws intended to meet exigencies which require immediate action.
5. Curative laws which are intended to correct errors or irregularities incurred in
judicial or administrative proceedings, acts of public officers. But they must not
impair vested rights
6. Laws creating new rights provided no vested rights of others are affected.

C. Effects of law in relation to space (Conflict of laws)

1. General Principle: Territoriality. Operation of a law is co-extensive with territorial

sovereignty (Art. 14), particularly in case of penal laws, and laws for public security and safety.
 2. Exceptions: (a) Treaty, (b) Diplomatic representatives

3. Rules of the Civil Code, without prejudice to specific provisions

a. Personal statutes follow the citizen into foreign territory. “Laws affecting family
rights and duties, or the status, condition and legal capacity of persons are binding
on citizens of the Philippines, even though living abroad.” (Art. 15)

i. Reciprocity demands application of his national law to a foreigner.

ii. Capacity to enter into a contract is determined by the party’s national law.

b. Personal property is subject to the laws of the country where it is situated. (Art.
16, p.1). The rule “mobilia sequuntur personam” has been abandoned.

c. Real Property is governed by |the laws of the country where it is situated.” (“lex
rei sitae”) (Art. 16)

d. Succession: “Nevertheless, legal and testamentary successions in respect to the

order of succession as well as the extent of successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or
the country in which it is situated. (Art. 16, par. 2)

4. Formalities in juridical transactions: “The forms and solemnities of contracts, wills and
other public instruments are governed by the laws of the country in which they are
executed.” (Art. 17, par. 1)

i. Exception as to testaments: Under Art. 817, testaments may be executed in the

Philippines by an alien according to the formalities prescribed by the Philippine
Law of the National Law of the testator; and wills executed by Filipinos out of
the Philippine Islands, if valid under the laws of the country where made, may be
allowed in the Philippines as if executed according to Philippine Law (Art. 815)
and foreigners may validly execute wills abroad according to the local law, the
testator’s national law or the Civil Code (Art. 816). And revocations of wills
done out of the Philippines must be made according to the law of the place or that
of the testator’s domicile. (art. 829)
ii. Exception as to documents executed abroad: When such instruments are
authenticated by diplomatic or consular officials of the Philippines abroad, the
formalities required by the Philippine laws for their exception shall be observed.
(Art. 17, par. 2)
5. Renvoi doctrine: Where our law provides that a foreign law should be applied, such
application takes place despite any provision of that foreign law that another law should
apply in case of conflict.

II. Human Relations – New Civil Code

A. General philosophical principle. Supremacy of honesty, justice and good faith: Every
person must, in the exercise of his rights and in the performance of his duties – act with
justice, give everyone his due; and Observe honesty and good faith. (Art. 19)
 B. Relation between criminal cases and civil action (Civil Obligation ex delicto)

1. General Rule – Pendency of the criminal action is a bar to the filing of the civil
action on the same facts.

2. Exceptions to the general rule:

a. A civil action for damages, entirely separate and distinct from the criminal action,
may be brought by offended party in the following cases:
b. In all these cases, the civil action shall proceed independently of the criminal
prosecution and shall require only a preponderance of evidence (not proof beyond a
reasonable doubt) (Arts. 32, 33, 34)

A. NCC Art. 19-22, relative to breach of promise to marry

Art. 19. Every person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due, and observe honesty and
good faith.
(PRINCIPLE OF ABUSE OF RIGHTS)

Art. 20. Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.

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

Rationale/Reason behind the Principle – “the exercise of a right ends when the
right disappears, and it disappears when it is abused especially to the prejudice
of others.” The exercise of a right must be in accordance with the purpose to
which it was established; there must be no intention to injure another.

Art. 21 was adopted to remedy the countless gaps in the statutes, which leave
so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury. This article should vouchsafe adequate legal
remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes.

CASES:

Albenson vs. Court of Appeals 217 SCRA 16 ,G.R. No. 88694 January 11, 1993

Albenson Ent. delivered mild steel plates to Guaranteed Industries Inc. A Pacific Banking Corporation Check was
paid and drawn against the account of EL Woodworks. Check was later dishonored for the reason ―Account
Closed. Company traced source of check and later discovered that the signature belonged to one Eugenio Baltao.
Albenson made an extrajudical demand upon Baltao but later denied that he issued the check or that the signature
was his. Company filed a complaint against Baltao for violation of BP 22. It was later discovered that private
respondent had a son: Eugene Baltao III, who manages the business establishment, EL Woodworks. No effort
from the father to inform Albenson of such information. Rather the father filed complaint for damages against
Albenson.

Because of the alleged unjust filing of a criminal case against him for allegedly
issuing a check which bounced in violation of Batas Pambansa Bilang 22 for a
measly amount of P2,575.00, respondent Baltao filed before the Regional Trial
Court of Quezon City a complaint for damages against herein petitioners
Albenson Enterprises, Jesse Yap, its owner, and Benjamin Mendiona, its
employee

SC ruling:

Petitioners contend that the civil case filed in the lower court was one for malicious prosecution. Citing the case
of Madera vs. Lopez (102 SCRA 700 [1981]), they assert that the absence of malice on their part absolves them
from any liability for malicious prosecution. Private respondent, on the other hand, anchored his complaint for
Damages on Articles 19, 20, and 21 of the Civil Code.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain
standards which may be observed not only in the exercise of one's rights but also in the performance of
one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe
honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself
legal because recognized or granted by law as such, may nevertheless become the source of some illegality.
When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held
responsible. Although the requirements of each provision is different, these three (3) articles are all related to
each other. As the eminent Civilist Senator Arturo Tolentino puts it: "With this article (Article 21), combined
with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become
much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any
malevolent exercise of a right which could not be checked by the application of these articles" (Tolentino, 1
Civil Code of the Philippines 72).
There is however, no hard and fast rule which can be applied to determine whether or not the principle of abuse
of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated,
resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the circumstances
of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]).

The ELEMENTS OF AN ABUSE OF RIGHT under ARTICLE 19 are the following:

(1) There is a legal right or duty;

(2) which is exercised in bad faith; (act with justice, give everyone his due, and observe honesty and
good faith)
(3) for the sole intent of prejudicing or injuring another.

ARTICLE 20 speaks of the general sanction for all other provisions of law which do not especially provide
for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the
exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered
thereby.

ARTICLE 21 deals with acts contra bonus mores, and has the following elements:

1) There is an act which is legal;

2) but which is contrary to morals, good custom, public order, or public policy;
3) and it is done with intent to injure.
Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis
for an award of damages.

There is a common element under Articles 19 and 21, and that is, the act must
be intentional. However, Article 20 does not distinguish: the act may be done
either "willfully", or "negligently".

Assuming, arguendo, that all the three (3) articles, together and not independently of each one, could be validly
made the bases for an award of damages based on the principle of "abuse of right", under the circumstances, We
see no cogent reason for such an award of damages to be made in favor of private respondent.

Certainly, petitioners could not be said to have violated the aforestated principle of abuse of right. What prompted
petitioners to file the case for violation of Batas Pambansa Bilang 22 against private respondent was their failure
to collect the amount of P2,575.00 due on a bounced check which they honestly believed was issued to them by
private respondent. Petitioners had conducted inquiries regarding the origin of the check, and yielded the
following results: from the records of the Securities and Exchange Commission, it was discovered that the
President of Guaranteed (the recipient of the unpaid mild steel plates), was one "Eugenio S. Baltao"; an inquiry
with the Ministry of Trade and Industry revealed that E.L. Woodworks, against whose account the check was
drawn, was registered in the name of one "Eugenio Baltao"; verification with the drawee bank, the Pacific
Banking Corporation, revealed that the signature appearing on the check belonged to one "Eugenio Baltao".

In a letter dated December 16, 1983, counsel for petitioners wrote private respondent demanding that he make
good the amount of the check. Counsel for private respondent wrote back and denied, among others, that private
respondent ever transacted business with Albenson Enterprises Corporation; that he ever issued the check in
question. Private respondent's counsel even went further: he made a warning to defendants to check the veracity
of their claim. It is pivotal to note at this juncture that in this same letter, if indeed private respondent wanted to
clear himself from the baseless accusation made against his person, he should have made mention of the fact that
there are three (3) persons with the same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr. (private
respondent), and Eugenio Baltao III (private respondent's son, who as it turned out later, was the issuer of the
check). He, however, failed to do this. The last two Baltaos were doing business in the same building — Baltao
Building — located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild steel plates were ordered in the name of
Guaranteed of which respondent Eugenio S. Baltao is the president and delivered to Guaranteed at Baltao
building. Thus, petitioners had every reason to believe that the Eugenio Baltao who issued the bouncing check is
respondent Eugenio S. Baltao when their counsel wrote respondent to make good the amount of the check and
upon refusal, filed the complaint for violation of BP Blg. 22.

Private respondent, however, did nothing to clarify the case of mistaken

identity at first hand. Instead, private respondent waited in ambush and
thereafter pounced on the hapless petitioners at a time he thought was
propitious by filing an action for damages. The Court will not countenance this
devious scheme.

The criminal complaint filed against private respondent after the latter refused to make good the amount of the
bouncing check despite demand was a sincere attempt on the part of petitioners to find the best possible means by
which they could collect the sum of money due them. A person who has not been paid an obligation owed to him
will naturally seek ways to compel the debtor to pay him. It was normal for petitioners to find means to make the
issuer of the check pay the amount thereof. In the absence of a wrongful act or omission or of fraud or bad faith,
moral damages cannot be awarded and that the adverse result of an action does not per se make the action
wrongful and subject the actor to the payment of damages, for the law could not have meant to impose a penalty
on the right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).
In the case at bar, private respondent does not deny that the mild steel plates were ordered by and delivered to
Guaranteed at Baltao building and as part payment thereof, the bouncing check was issued by one Eugenio
Baltao. Neither had private respondent conveyed to petitioner that there are two Eugenio Baltaos conducting
business in the same building — he and his son Eugenio Baltao III. Considering that Guaranteed, which received
the goods in payment of which the bouncing check was issued is owned by respondent, petitioner acted in good
faith and probable cause in filing the complaint before the provincial fiscal.

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to
vex and humiliate a person, and that it was initiated deliberately by the defendant knowing that his charges were
false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not
make one liable for malicious prosecution. (Manila Gas Corporation vs. Court of Appeals, 100 SCRA 602
[1980]). Still, private respondent argues that liability under Articles 19, 20, and 21 of the Civil Code is so
encompassing that it likewise includes liability for damages for malicious prosecution under Article 2219 (8).
True, a civil action for damages for malicious prosecution is allowed under the New Civil Code, more
specifically Articles 19, 20, 26, 29, 32, 33, 35, and 2219 (8) thereof. In order that such a case can prosper,
however, the following three (3) elements must be present, to wit: (1) The fact of the prosecution and the further
fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; (2)
That in bringing the action, the prosecutor acted without probable cause; (3) The prosecutor was actuated or
impelled by legal malice (Lao vs. Court of Appeals, 199 SCRA 58, [1991]).

Thus, a party injured by the filing of a court case against him, even if he is
later on absolved, may file a case for damages grounded either on the principle
of abuse of rights, or on malicious prosecution. As earlier stated, a complaint
for damages based on malicious prosecution will prosper only if the three (3)
elements aforecited are shown to exist. In the case at bar, the second and third
elements were not shown to exist. It is well-settled that one cannot be held
liable for maliciously instituting a prosecution where one has acted with
probable cause.

In the final analysis, there is no proof or showing that petitioners acted

maliciously or in bad faith in the filing of the case against private respondent.
Consequently, in the absence of proof of fraud and bad faith committed by
petitioners, they cannot be held liable for damages (Escritor, Jr. vs.
Intermediate Appellate Court, 155 SCRA 577 [1987]). No damages can be
awarded in the instant case, whether based on the principle of abuse of rights,
or for malicious prosecution. The questioned judgment in the instant case
attests to the propensity of trial judges to award damages without basis. Lower
courts are hereby cautioned anew against awarding unconscionable sums as
damages without bases therefor.

CUSTODIO VS COURT OF APPEALS, 2533 SCRA 483, G.R. No. 116100 Decided on: February 9, 1996

The proper exercise of a lawful right cannot constitute a legal wrong for which
an action will lie, although the act may result in damage to another, for no
legal right has been invaded. One may use any lawful means to accomplish a
lawful purpose and though the means adopted may cause damage to another,
no cause of action arises in the latter's favor. An injury or damage occasioned
thereby is damnum absque injuria. The courts can give no redress for hardship
to an individual resulting from action reasonably calculated to achieve a lawful
means.
Coverage of Art. 20. – Generally, when law does not provide its own sanctions.
In which case, this Article provides the general sanction – the indemnification
FOR DAMAGES.

Reason for Art. 21. – Fully aware that there are countless gaps in statutes,
which leave so many victims of moral wrongs helpless, even though they have
actually suffered material and moral injury, the Code Commission has deemed
it necessary in the interest of justice, to incorporate Art. 21, CC.

Requisites for Recovery of Damage under Art. 21. – Damages are recoverable
even though no positive law has been violated but it is necessary that the act
should have been willfully done and more it is contrary to morals, good
customs and public policy.

GLOBE MACKAY V. CA [176 S 778 (1989)] –

While an employer has the right to dismiss an employee who was involved in
anomalous transactions, the right of dismissal should not be exercised in an
abusive manner, such as by making accusations of being a crook, forcing him
to take a forced leave, threatening to file a hundred suits against him. Hence,
the employer is liable for damages.

BARONS MARKETING CORP. VS. CA, G.R. No. 126486

Decided on: February 9, 1998

Where a creditor filed a case of collection of sum of money. Debtor offered to

pay by installment with interest after the debt was due and demandable. The
creditor refused the offer for settlement of the debtor. Is the creditor liable for
abuse of rights in refusing to accept payment by installment with interest?

The question, therefore, is whether private respondent intended to prejudice or injure petitioner when it rejected
petitioner's offer and filed the action for collection.

We hold in the negative. It is an elementary rule in this jurisdiction that good faith is presumed and that the
burden of proving bad faith rests upon the party alleging the same. In the case at bar, petitioner has failed to
prove bad faith on the part of private respondent. Petitioner's allegation that private respondent was motivated by
a desire to terminate its agency relationship with petitioner so that private respondent itself may deal directly with
Meralco is simply not supported by the evidence. At most, such supposition is merely speculative.

Moreover, we find that private respondent was driven by very legitimate reasons for rejecting petitioner's offer
and instituting the action for collection before the trial court. As pointed out by private respondent, the
corporation had its own "cash position to protect in order for it to pay its own obligations." This is not such "a
lame and poor rationalization" as petitioner purports it to be. For if private respondent were to be required to
accept petitioner's offer, there would be no reason for the latter to reject similar offers from its other debtors.
Clearly, this would be inimical to the interests of any enterprise, especially a profit-oriented one like private
respondent. It is plain to see that what we have here is a mere exercise of rights, not an abuse thereof. Under
these circumstances, we do not deem private respondent to have acted in a manner contrary to morals, good
customs or public policy as to violate the provisions of Article 21 of the Civil Code.
Globe Mackay vs. Court of Appeals 176 SCRA 778
G.R. No. 81262 August 25, 1989

Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio Corporation
(GLOBE MACKAY) in a dual capacity as a purchasing agent and administrative assistant to the engineering
operations manager. In 1972, GLOBE MACKAY discovered fictitious purchases and other fraudulent
transactions for which it lost several thousands of pesos.

According to private respondent it was he who actually discovered the anomalies and reported them on
November 10, 1972 to his immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry who was
then the Executive Vice-President and General Manager of GLOBE MACKAY.

On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry confronted
him by stating that he was the number one suspect, and ordered him to take a one week forced leave, not to
communicate with the office, to leave his table drawers open, and to leave the office keys. On November 20,
1972, when private respondent Tobias returned to work after the forced leave, petitioner Hendry went up to him
and called him a "crook" and a "swindler." Tobias was then ordered to take a lie detector test. He was also
instructed to submit specimen of his handwriting, signature, and initials for examination by the police
investigators to determine his complicity in the anomalies.
On December 6,1972, the Manila police investigators submitted a laboratory crime report clearing private
respondent of participation in the anomalies.

Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G. Fernandez, who
on December 10, 1972, submitted a report finding Tobias guilty. This report however expressly stated that further
investigation was still to be conducted. Nevertheless, on December 12, 1972, petitioner Hendry issued a
memorandum suspending Tobias from work preparatory to the filing of criminal charges against him. On
December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after investigating
other documents pertaining to the alleged anomalous transactions, submitted a second laboratory crime report
reiterating his previous finding that the handwritings, signatures, and initials appearing in the checks and other
documents involved in the fraudulent transactions were not those of Tobias. The lie detector tests conducted on
Tobias also yielded negative results.

Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the report of the
private investigator, was, by its own terms, not yet complete, petitioners filed with the City Fiscal of Manila a
complaint for estafa through falsification of commercial documents, later amended to just estafa. Subsequently
five other criminal complaints were filed against Tobias, four of which were for estafa through Falsification of
commercial document while the fifth was for of Article 290 of' the Revised Penal Code (Discovering Secrets
Through Seizure of Correspondence). Two of these complaints were refiled with the Judge Advocate General's
Office, which however, remanded them to the fiscal's office. All of the six criminal complaints were dismissed by
the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the criminal complaints with the
Secretary of Justice, who, however, affirmed their dismissal.

In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his employment
has been terminated effective December 13, 1972. He filed a labor case eventually the parties settled.
Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO). However,
petitioner Hendry, without being asked by RETELCO, wrote a letter to the latter stating that Tobias was
dismissed by GLOBE MACKAY due to dishonesty. Private respondent Tobias filed a civil case for damages
anchored on alleged unlawful, malicious, oppressive, and abusive acts of petitioners.

Petitioners contend that they could not be made liable for damages in the lawful exercise of their right to dismiss
private respondent. On the other hand, private respondent contends that because of petitioners' abusive manner in
dismissing him as well as for the inhuman treatment he got from them, the Petitioners must indemnify him for the
damage that he had suffered.
One of the more notable innovations of the New Civil Code is the codification of "some basic principles that
are to be observed for the rightful relationship between human beings and for the stability of the social
order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE
PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the old Code which merely
stated the effects of the law, but failed to draw out its spirit, incorporated certain fundamental precepts which
were "designed to indicate certain norms that spring from the fountain of good conscience" and which were also
meant to serve as "guides for human conduct [that] should run as golden threads through society, to the end that
law may approach its supreme ideal, which is the sway and dominance of justice" ( Id.) Foremost among these
principles is that pronounced in Article 19 which provides:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain
standards which must be observed not only in the exercise of one's rights but also in the performance of one's
duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty
and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is
exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article
19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it
does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21
would be proper.

Article 20, which pertains to damage arising from a violation of law, provides that:

Art. 20. Every person who contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.

However, in the case at bar, petitioners claim that they did not violate any provision of law since they were
merely exercising their legal right to dismiss private respondent. This does not, however, leave private respondent
with no relief because Article 21 of the Civil Code provides that:

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

This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral wrongs
helpless, even though they have actually suffered material and moral injury" [ Id.] should "vouchsafe adequate
legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for
specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18,1978, 83 SCRA 237,
247].

In determining whether or not the principle of abuse of rights may be invoked,

there is no rigid test which can be applied. While the Court has not hesitated to
apply Article 19 whether the legal and factual circumstances called for its
application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186
(1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R.
No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558,
July 31,1981,106 SCRA 391; United General Industries, Inc, v. Paler G.R. No. L-
30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21,
1987, 153 SCRA 183] the question of whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 or
other applicable provision of law, depends on the circumstances of each case.
And in the instant case, the Court, after examining the record and considering
certain significant circumstances, finds that all petitioners have indeed abused
the right that they invoke, causing damage to private respondent and for which
the latter must now be indemnified.

The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who reported the
possible existence of anomalous transactions, petitioner Hendry "showed belligerence and told plaintiff (private
respondent herein) that he was the number one suspect and to take a one week vacation leave, not to
communicate with the office, to leave his table drawers open, and to leave his keys to said defendant (petitioner
Hendry)". This, petitioners do not dispute. But regardless of whether or not it was private respondent Tobias who
reported the anomalies to petitioners, the latter's reaction towards the former upon uncovering the anomalies was
less than civil. An employer who harbors suspicions that an employee has committed dishonesty might be
justified in taking the appropriate action such as ordering an investigation and directing the employee to go on a
leave. Firmness and the resolve to uncover the truth would also be expected from such employer. But the high-
handed treatment accorded Tobias by petitioners was certainly uncalled for. And this reprehensible attitude of
petitioners was to continue when private respondent returned to work on November 20, 1972 after his one week
forced leave. Upon reporting for work, Tobias was confronted by Hendry who said. "Tobby, you are the crook
and swindler in this company." Considering that the first report made by the police investigators was submitted
only on December 10, 1972 the statement made by petitioner Hendry was baseless. The imputation of guilt
without basis and the pattern of harassment during the investigations of Tobias transgress the standards of human
conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the right of the employer
to dismiss an employee should not be confused with the manner in which the right is exercised and the
effects flowing therefrom. If the dismissal is done abusively, then the employer is liable for damages to the
employee [Quisaba v. Sta. Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA
771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA 107]
Under the circumstances of the instant case, the petitioners clearly failed to exercise in a legitimate manner their
right to dismiss Tobias, giving the latter the right to recover damages under Article 19 in relation to Article 21 of
the Civil Code.

But petitioners were not content with just dismissing Tobias. Several other
tortious acts were committed by petitioners against Tobias after the latter's
termination from work. Towards the latter part of January, 1973, after the
filing of the first of six criminal complaints against Tobias, the latter talked to
Hendry to protest the actions taken against him. In response, Hendry cut short
Tobias' protestations by telling him to just confess or else the company would
file a hundred more cases against him until he landed in jail. Hendry added
that, "You Filipinos cannot be trusted." The threat unmasked petitioner's bad
faith in the various actions taken against Tobias. On the other hand, the
scornful remark about Filipinos as well as Hendry's earlier statements about
Tobias being a "crook" and "swindler" are clear violations of 'Tobias' personal
dignity [See Article 26, Civil Code]

The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in October
1974, stating that Tobias had been dismissed by GLOBE MACKAY due to dishonesty. Because of the letter,
Tobias failed to gain employment with RETELCO and as a result of which, Tobias remained unemployed for a
longer period of time. For this further damage suffered by Tobias, petitioners must likewise be held liable for
damages consistent with Article 2176 of the Civil Code. Petitioners, however, contend that they have a "moral, if
not legal, duty to forewarn other employers of the kind of employee the plaintiff (private respondent herein)
was." Petitioners further claim that "it is the accepted moral and societal obligation of every man to advise or
warn his fellowmen of any threat or danger to the latter's life, honor or property. And this includes warning one's
brethren of the possible dangers involved in dealing with, or accepting into confidence, a man whose honesty and
integrity is suspect" [Id.]. These arguments, rather than justify petitioners' act, reveal a seeming obsession to
prevent Tobias from getting a job, even after almost two years from the time Tobias was dismissed.

Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias. Petitioners
contend that there is no case against them for malicious prosecution and that they cannot be "penalized for
exercising their right and prerogative of seeking justice by filing criminal complaints against an employee who
was their principal suspect in the commission of forgeries and in the perpetration of anomalous transactions
which defrauded them of substantial sums of money"

While sound principles of justice and public policy dictate that persons shall have free resort to the courts
for redress of wrongs and vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)],
the right to institute criminal prosecutions cannot be exercised maliciously and in bad faith [Ventura v.
Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila Electric Co., G.R. No.
L-13016, May 31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints should not be
used as a weapon to force an alleged debtor to pay an indebtedness. To do so would be a clear perversion of
the function of the criminal processes and of the courts of justice. And in Hawpia CA, G.R. No. L-20047, June
30, 1967. 20 SCRA 536 the Court upheld the judgment against the petitioner for actual and moral damages and
attorney's fees after making a finding that petitioner, with persistence, filed at least six criminal complaints
against respondent, all of which were dismissed.

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design to
vex and humiliate a person and that it was initiated deliberately by the defendant knowing that the charges
were false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30,1980, 100 SCRA
602]. Concededly, the filing of a suit by itself, does not render a person liable for malicious prosecution [Inhelder
Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere dismissal by the fiscal of the
criminal complaint is not a ground for an award of damages for malicious prosecution if there is no competent
evidence to show that the complainant had acted in bad faith [Sison v. David, G.R. No. L-11268, January
28,1961, 1 SCRA 60]. In the instant case, however, the trial court made a finding that petitioners acted in bad
faith in filing the criminal complaints against Tobias x x x

In addition to the observations made by the trial court, the Court finds it
significant that the criminal complaints were filed during the pendency of the
illegal dismissal case filed by Tobias against petitioners. This explains the haste
in which the complaints were filed, which the trial court earlier noted. But
petitioners, to prove their good faith, point to the fact that only six complaints
were filed against Tobias when they could have allegedly filed one hundred
cases, considering the number of anomalous transactions committed against
GLOBE MACKAY. However, petitioners' good faith is belied by the threat made
by Hendry after the filing of the first complaint that one hundred more cases
would be filed against Tobias. In effect, the possible filing of one hundred more
cases was made to hang like the sword of Damocles over the head of Tobias. In
fine, considering the haste in which the criminal complaints were filed, the fact
that they were filed during the pendency of the illegal dismissal case against
petitioners, the threat made by Hendry, the fact that the cases were filed
notwithstanding the two police reports exculpating Tobias from involvement in
the anomalies committed against GLOBE MACKAY, coupled by the eventual
dismissal of all the cases, the Court is led into no other conclusion than that
petitioners were motivated by malicious intent in filing the six criminal
complaints against Tobias.

RCPI VS DIONELA 143 SCRA 657 G.R. No. L-44748 August 29, 1986
The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the
offended party, Loreto Dionela, reading as follows:

176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO DIONELA CABANGAN LEGASPI
CITY WIRE ARRIVAL OF CHECK FER LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-
PER 115 PM
SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA
DITO KAHIT BULBUL MO

Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the

telegram sent to him not only wounded his feelings but also caused him undue
embarrassment and affected adversely his business as well because other
people have come to know of said defamatory words. Defendant corporation as
a defense, alleges that the additional words in Tagalog was a private joke
between the sending and receiving operators and that they were not addressed
to or intended for plaintiff and therefore did not form part of the telegram and
that the Tagalog words are not defamatory. The telegram sent through its
facilities was received in its station at Legaspi City. Nobody other than the
operator manned the teletype machine which automatically receives telegrams
being transmitted. The said telegram was detached from the machine and
placed inside a sealed envelope and delivered to plaintiff, obviously as is. The
additional words in Tagalog were never noticed and were included in the
telegram when delivered.

Petitioner's contentions do not merit our consideration. The action for damages was filed in the lower court
directly against respondent corporation not as an employer subsidiarily liable under the provisions of Article 1161
of the New Civil Code in relation to Art. 103 of the Revised Penal Code. The cause of action of the private
respondent is based on Arts. 19 and 20 of the New Civil Code (supra). As well as on respondent's breach of
contract thru the negligence of its own employees.

Petitioner is a domestic corporation engaged in the business of receiving and

transmitting messages. Every time a person transmits a message through the
facilities of the petitioner, a contract is entered into. Upon receipt of the rate
or fee fixed, the petitioner undertakes to transmit the message accurately.
There is no question that in the case at bar, libelous matters were included in
the message transmitted, without the consent or knowledge of the sender.
There is a clear case of breach of contract by the petitioner in adding
extraneous and libelous matters in the message sent to the private respondent.
As a corporation, the petitioner can act only through its employees. Hence the
acts of its employees in receiving and transmitting messages are the acts of the
petitioner. To hold that the petitioner is not liable directly for the acts of its
employees in the pursuit of petitioner's business is to deprive the general
public availing of the services of the petitioner of an effective and adequate
remedy. In most cases, negligence must be proved in order that plaintiff may
recover. However, since negligence may be hard to substantiate in some cases,
we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for itself),
by considering the presence of facts or circumstances surrounding the injury.

University of the East vs. Jader G.R. No. 132344

Decided on; February 17, 2000, Ponente: YNARES-SNTIAGO, J.:

Facts: Petitioner was enrolled in the defendant‘s College of Law. He failed to take the regular examination in
Practice Court 1 for which he was given an incomplete grade. He enrolled for the second semester as a fourth
year student, and filed an application for the removal of the incomplete grade which was approved by the Dean.
In the meantime, the faculty members and the Dean met to deliberate who among the fourth year students should
be allowed to graduate. The plaintiff‘s name appeared on the tentative list, he also attended the investiture
ceremonies to which he tendered blowout afterwards. He thereafter prepared himself for the bar examination and
took review classes. However, he was not able to take the bar examination because his academic requirements is
not complete. Consequently, respondent sued petitioner for damages alleging that he suffered moral shock
besmirched reputation, wounded feelings, sleepless nights, when he was not able to take the 1988 bar
examinations arising from the latter‘s negligence. He prayed for an award of moral damages, unrealized income,
attorney‘s fees and cost of suit.

Issue: Whether or not an educational institution can be held liable for damages for misleading a student into
believing that the latter had satisfied all the requirements for graduation when such is not the case.

Held: The Supreme Court held that UE is liable for damages. It is the
contractual obligation of the school to timely inform and furnish sufficient
notice and information to each and every student as to whether he or she had
already complied with the entire requirement for the conferment of a degree or
whether they should be included among those who will graduate. The school
cannot be said to have acted in good faith. Absence of good faith must be
sufficiently established for a successful prosecution by the aggrieved party in
suit for abuse of right under Article 19 of the Civil Code.

RAMA VS. CA, G.R. No. L-44484 , Decided on: March 16, 1987 Ponente: ALAMPAY, J.:

Facts: A resolution was passed by herein petitioner Rama, then Vice Governor of Cebu, with co-respondents
Mandeola and Castillo, members Sangguniang Panlunsod of Cebu, to mechanize the maintenance and repair of
all roads and bridges of the province, to economize in the expenditure of its Road and Bridges (R&B) Fund, etc.
To implement such policy, the Provincial Board resolved to abolish around 30 positions and 200 employees were
dismissed – the salaries of whom were derived from the R&B fund. The Local Government, however, bought
heavy equipment worth 4 million pesos, hired around 1000 new employees, renovated the office of the provincial
engineer and provided him with a Mercedes Benz.

Upon petition by herein respondents (dismissed employees), the then CFI of Cebu declared said Resolution null
and void and ordered the reinstatements of 56 dismissed employees and pay their back wages. Upon appeal by
both parties, then CA affirmed the lower court‘s decision, plus an award of moral damages of P1000 for each of
the employees, considering that the case involved quasi-delict. The CA found that the employees were dismissed
because of their different political affiliations – that they were identified with the Liberal Party of Sergio Osmeña
Jr.

ISSUE: Whether or not petitioners-public officials (Gov. Espina, Rama, Mendiola and Carillo) are personally
liable for damages for adopting a resolution which abolished positions to the detriment of the occupants thereof.

HELD: In principle, a public officer by virtue of his office alone is not immune from damages in his
personal capacity arising from illegal acts done in bad faith. A different rule would sanction the use of
public office as a tool of oppression. [Tabuena vs. CA, 8 SCRA 413,1961].

Thus, in Correa vs. CFI of Bulacan, 92 SCRA 312 (1979), a mayor was held liable for illegally dismissing a
policeman even if he had relinquished his position. The SC in that case held that a public officer who commits a
tort or other wrongful act, done in excess or beyond the scope of his duty is not protected by his office and is
personally liable thereof like any private individual. This personal liability has been applied to cases where a
public officer removes another officer or discharges an employee wrongfully, the reported cases saying that by
reason of non-compliance with the requirements of law in respect to removal from office, the officials were
acting outside their official authority.

The officials in these consolidated cases are personally liable for damages
because their precipitate dismissal of provincial employees through an
ostensibly legal means. Such act of the petitioners of dismissing employees
who are of rival political party, to recommend their own protégées who even
outnumbered the dismissed employees, reflected the petitioners‘ malicious
intent. Municipal officers are liable for damages if they act maliciously or
wantonly, and if the work which they perform is done rather to injure an
individual than to discharge a public duty. A public officer is civilly liable for
failure to observe honestly and in good faith in the performance of their duties
as public officers or for willfully or negligently causing loss or injury to another
(Art. 20, CC) or for willfully causing loss or injury to another in a manner that
is contrary to morals, good custom and/or public policy (Art. 21, CC).

SPOUSES ALEJANDRO MANZANILLA AND REMEDIOS VELASCO v

WATERFIELDS INDUSTRIES CORPORATION, represented by its President,
ALIZA MA. G.R No. 177484, July 18, 2014. J. DEL CASTILLO

Waterfields Corp. and the spouses Manzanilla entered into a contract of lease.
When Waterfields breached the contract by failing to pay rent, the lessors
brought an ejectment suit. Waterfields claims that if it was ejected prior to the
expiration of the lease, it would be tantamount to unjust enrichment as
Waterfields already introduced substantial improvements on the property. The
principle of unjust enrichment requires two conditions: (1) that a person is
benefited without a valid basis or justification, and (2) that such benefit is
derived at the expense of another.” It does not, however, apply in this case
since any benefit that the spouses Manzanilla may obtain from the subject
premises cannot be said to be without any valid basis or justification. It is well
to remind Waterfields that they violated the contract of lease and that they
failed to vacate the premises upon demand. Hence, the spouses Manzanilla are
justified in recovering the physical possession thereof and consequently, in
making use of the property. Besides, in violating the lease by failing to pay the
rent, Waterfields took the risk of losing the improvements it introduced
thereon in favor of the spouses Manzanilla.

RAUL SESBRENO VS. COURT OF APPEALS, G.R. No. 160689 March 26, 2014, J.
BERSAMIN

This case concerns the claim for damages of petitioner Raul H. Sesbreño
founded on abuse of rights. Sesbreño accused the violation of contract (VOC)
inspection team dispatched by the Visayan Electric Company (VECO) to check
his electric meter while conducting an unreasonable search in his residential
premises. It is worth noting that the VOC inspectors decided to enter the main
premises only after finding the meter of Sesbreño turned upside down, hanging
and its disc not rotating. Their doing so would enable them to determine the
unbilled electricity consumed by his household. The circumstances justified
their decision, and their inspection of the main premises was a continuation of
the authorized entry. Although the act is not illegal, liability for damages may
arise should there be an abuse of rights. The concept of abuse of rights
prescribes that a person should not use his right unjustly or in bad faith;
otherwise, he may be liable to another who suffers injury. There is an abuse of
rights if when the act is performed without prudence or in bad faith. In order
that liability may attach under the concept of abuse of rights, the following
elements must be present, to wit: (a) the existence of a legal right or duty, (b)
which is exercised in bad faith, and (c) for the sole intent of prejudicing or
injuring another. There is no hard and fast rule that can be applied to ascertain
whether or not the principle of abuse of rights is to be invoked. The resolution
of the issue depends on the circumstances of each case. However, Sesbreño did
not persuasively demonstrate that there was an intervention of malice or bad
faith on the part of (VOC) inspection team during the inspection of the main
premises, or any excessiveness committed by them in the course of the
inspection. But Sesbreño did not. On the other hand, the CA correctly observed
that the inspection did not zero in on Sesbreño’s residence because the other
houses within the area were similarly subjected to the routine inspection. The
court eliminated any notion of malice or bad faith.

ARTICLE 21 OF THE CIVIL CODE: CONTRA BONUS MORES

Rule on BREACH OF PROMISE TO MARRY, Not Actionable, Exception: There is

no law which imposes the duty or obligation to marry somebody. The freedom
of choice in finding a life-partner is universally accepted and respected.
Breach of promise to marry is not actionable (De Jesus vs. Syquia, 58Phil.866).
The proposed chapter on Breach of Promise Suits included in the draft of the
Civil Code was omitted in the Civil Code by Congress. This is a clear
manifestation of the legislative not to sanction suits for promise to marry as
such, otherwise many “innocent men may become the victims of designing and
unscrupulous females” (Hermosisima cs. CA; Estopa vs. Piansay, Jr. 109 Phil.
640) However, a breach of promise to marry may give rise to damages under
certain circumstances:

a. No Recovery of Moral Damages except when there is criminal or moral seduction. - There
can be no recovery of moral damages for mere breach of promise to marry. There must be
deception, enticement, superior power or abuse of confidence on the part of the seducer to
which the woman yielded (Tanjanco vs. CS, 125 Phil. 158). Thus, if the sexual intercourse
was due to mutual lust of the parties who are both or legal age damages could NOT be claimed
(Hermosisima vs. CA).

b. Actual Damages Suffered, Recoverable

c. In case of Birth of Child, support for the child can be demanded

PE VS PE 5 SCRA 200 G.R. No. L-17396 May 30, 1962

Plaintiffs are the parents, brothers and sisters of one Lolita Pe. At the time of her disappearance on April 14,
1957, Lolita was 24 years old and unmarried. Defendant is a married man and works as agent of the La Perla
Cigar and Cigarette Factory. He used to stay in the town of Gasan, Marinduque, in connection with his aforesaid
occupation. Lolita was staying with her parents in the same town. Defendant was an adopted son of a Chinaman
named Pe Beco, a collateral relative of Lolita‘s father. Because of such fact and the similarity in their family
name, defendant became close to the plaintiffs who regarded him as a member of their family. Sometime in 1952,
defendant frequented the house of Lolita on the pretext that he wanted her to teach her how to pray the rosary.
The two eventually fell in love with each other and conducted clandestine trysts not only in the town of Gasan
but also in Boac where Lolita used to teach in a barrio school. They exchanged love notes with each other the
contents of which reveal not only their infatuation for each other but also the extent to which they had carried
their relationship. The rumors about their love affairs reached the ears of Lolita‘s parents sometime, in 1955, and
since then defendant was forbidden from going to their house and from further seeing Lolita. The plaintiffs even
filed deportation proceedings against defendant who is a Chinese national. The affair between defendant and
Lolita continued nonetheless.

Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B España
Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she left, her brothers and
sisters checked up on her things and found that Lolita‘s clothes were gone. However, plaintiffs found a note on a
crumpled piece of paper inside Lolita‘s aparador. Said note, written on a small slip of paper approximately 4″ by
3″ in size, was in a handwriting recognized to be that of defendant‘s. In English it reads:

Honey, suppose I leave here on Sunday night, and that‘s 13th of this month and we will have a date on the 14th,
that‘s Monday morning at 10 a.m.

Reply
Love

The disappearance of Lolita was reported to the police authorities and the NBI but up to the present there is no
news or trace of her whereabouts.

The present action is based on Article 21 of the New Civil Code which provides:

Any person who wilfully causes loss or injury to another in a manner which is
contrary to morals, good customs or public policy shall compensate the latter
for the damage.

The circumstances under which defendant tried to win Lolita‘s affection cannot
lead, to any other conclusion than that it was he who, thru an ingenious
scheme or trickery, seduced the latter to the extent of making her fall in love
with him. This is shown by the fact that defendant frequented the house of
Lolita on the pretext that he wanted her to teach him how to pray the rosary.
Because of the frequency of his visits to the latter‘s family who was allowed
free access because he was a collateral relative and was considered as a
member of her family, the two eventually fell in love with each other and
conducted clandestine love affairs not only in Gasan but also in Boac where
Lolita used to teach in a barrio school. When the rumors about their illicit
affairs reached the knowledge of her parents, defendant was forbidden from
going to their house and even from seeing Lolita. Plaintiffs even filed
deportation proceedings against defendant who is a Chinese national.
Nevertheless, defendant continued his love affairs with Lolita until she
disappeared from the parental home. Indeed, no other conclusion can be drawn
from this chain of events than that defendant not only deliberately, but
through a clever strategy, succeeded in winning the affection and love of Lolita
to the extent of having illicit relations with her. The wrong he has caused her
and her family is indeed immeasurable considering the fact that he is a married
man. Verily, he has committed an injury to Lolita‘s family in a manner
contrary to morals, good customs and public policy as contemplated in Article
21 of the new Civil Code.

HERMOSISIMA VS COURT OF APPEALS 109 Phil 629, G.R. No. L-14628 September 30, 1960

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complainant,

filed -her child, Chris Hermosisima, as natural child- moral damages for alleged
breach of promise. Petitioner admitted the paternity of child and expressed
willingness to support the latter, but denied having ever promised to marry the
complainant.

The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise
to marry. The pertinent facts are:

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then
a teacher in the Sibonga Provincial High School in Cebu, and petitioner, who
was almost ten (10) years younger than she, used to go around together and
were regarded as engaged, although he had made no promise of marriage prior
thereto. In 1951, she gave up teaching and became a life insurance underwriter
in the City of Cebu, where intimacy developed among her and the petitioner,
since one evening in 1953, when after coming from the movies, they had
sexual intercourse in his cabin on board M/V "Escaño," to which he was then
attached as apprentice pilot. In February 1954, Soledad advised petitioner that
she was on the family way, whereupon he promised to marry her. Their child,
Chris Hermosisima, was born on June 17, 1954, in a private maternity and
clinic. However, subsequently, or on July 24, 1954, defendant married one
Romanita Perez. Hence, the present action, which was commenced on or about
October 4, 1954.

In as much as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58
Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the
right to recover money or property advanced . . . upon the faith of such promise".

The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best,
however, to change the law thereon. We quote from the report of the Code Commission on said Proposed Civil
Code:

Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in
the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated in said
articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might
arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral
damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement
to be broken.

Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book
I thereof:
Art. 56. A mutual promise to marry may be made expressly or impliedly.
Art. 57. An engagement to be married must be agreed directly by the future spouses.
Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by
a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen
years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil
action for damages in case of breach of the promise.
Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even
though approved by the parent or guardian.
Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction
shall not be affected.
Art. 61. No action for specific performance of a mutual promise to marry may be brought.
Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor
without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may
institute the action.
Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also
compensation for mental and moral suffering.
Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who
cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged
person who is rejected.
Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what
he or she has received from the other as gift on account of the promise of the marriage.
These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the
corresponding Senate Committee, from which we quote:

The elimination of this Chapter is proposed. That breach of promise to marry is

not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58
Phil., 866. The history of breach of promise suit in the United States and in
England has shown that no other action lends itself more readily to abuse by
designing women and unscrupulous men. It is this experience which has led to
the abolition of the rights of action in the so-called Balm suit in many of the
American States.

Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by

her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman after
all, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be recovered
from him under the provision of Article 2219, paragraph 3, of the new Civil Code.

Apart from the fact that the general tenor of said Article 2219, particularly the
paragraphs preceding and those following the one cited by the Court of
Appeals, and the language used in said paragraph strongly indicates that the
"seduction" therein contemplated is the crime punished as such in Article as
such in Article 337 and 338 of the Revised Penal Code, which admittedly does
not exist in the present case, we find ourselves unable to say that petitioner is
morally guilty of seduction, not only because he is approximately ten (10) years
younger than the complainant — who around thirty-six (36) years of age, and as
highly enlightened as a former high school teacher and a life insurance agent
are supposed to be — when she became intimate with petitioner, then a mere
apprentice pilot, but, also, because, the court of first instance found that,
complainant "surrendered herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" "by having a fruit of their engagement even
before they had the benefit of clergy."
ERLINDA ESTOPA, plaintiff-appellee, vs. LORETA PIANSAY, JR., defendant-appellant.

"this is an action for recovery of moral and exemplary damages and attorney's fees. There is no dispute regarding
the facts of this case. The plaintiff Erlinda Estopa, a beautiful girl of twenty-three, residing in Bago, Negros
Occidental, with her widowed mother, Felicidad Estopa, stated that she fell in love and submitted herself
completely to the defendant Loreta Piansay, Jr., sometime in September, 1957, after a courtship that lasted for a
couple of months during which period the defendant consistently promised and succeeded to make her believe in
him that he was going to marry her; that sometime in December, 1957, the plaintiff was informed reliably that
defendant was backing out from his promise of marriage so she demanded defendant's compliance to his promise
in order to vindicate her honor, and plaintiff went to the extent of asking the help of defendant's parents, but all
her efforts were in vain. Finally, realizing that her efforts were futile but knowing that her cause was not
completely lost, she decided to file her complaint, not to compel defendant to marry her, but to demand from him
a compensation for the damages that she sustained." There is no claim for any other kind of damages. In fact,
Erlinda Estopa filed no brief here. And her complaint merely alleged "social humiliation, mental anguish,
besmirched reputation, wounded feeling and moral shock."

We have today decided that in this jurisdiction, under the New Civil Code, the mere breach of a promise to
marry is not actionable. (Hermosisima vs. Court of Appeals, Supra, 631); and we have reversed the Cebu court's
award for moral damages in breach of promise suit. Consistently with such ruling, Loreta Piansay, Jr. may not be
condemned to pay moral damages, in this case. Now, as plaintiff has no right to moral damages, she may not
demand exemplary damages. (She lays no claim to temperate or compensatory damages.)

WASSMER VS VELEZ 10 Phil 1440 G.R. No. L-20089 December 26, 1964
BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate planning
and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and
set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:

Dear Bet —
Will have to postpone wedding — My mother opposes it. Am leaving on the Convair today.
Please do not ask too many people about the reason why — That would only create a scandal.
Paquing

But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .
PAKING

Thereafter Velez did not appear nor was he heard from again.
It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for
the damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage,
which was subsequently issued. Their wedding was set for September 4, 1954. Invitations were printed and
distributed to relatives, friends and acquaintances. The bride-to-be's trousseau, party dresses and other apparel for
the important occasion were purchased. Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received. And then, with but
two days before the wedding, defendant, who was then 28 years old, simply left a note for plaintiff stating: "Will
have to postpone wedding — My mother opposes it ... " He enplaned to his home city in Mindanao, and the next
day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never
returned and was never heard from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere
breach of promise to marry is not an actionable wrong. But to formally set a
wedding and go through all the above-described preparation and publicity, only
to walk out of it when the matrimony is about to be solemnized, is quite
different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21
aforesaid.

CONSTANTINO VS MENDEZ 209 SCRA 18 G.R. No. 57227 May 14, 1992

It appears on record that on June 5, 1975, petitioner Amelita Constantino filed

an action for acknowledgment, support and damages against private
respondent Ivan Mendez. The case was filed with the then CFI of Davao, 10th
Judicial District and docketed as Civil Case No. 8881. In her complaint,
Amelita Constantino alleges, among others, that sometime in the month of
August, 1974, she met Ivan Mendez at Tony's Restaurant located at Sta. Cruz,
Manila, where she worked as a waitress; that the day following their first
meeting, Ivan invited Amelita to dine with him at Hotel Enrico where he was
billeted; that while dining, Ivan professed his love and courted Amelita; that
Amelita asked for time to think about Ivan's proposal; that at about 11:00
o'clock in the evening, Amelita asked Ivan to bring her home to which the
latter agreed, that on the pretext of getting something, Ivan brought Amelita
inside his hotel room and through a promise of marriage succeeded in having
sexual intercourse with the latter; that after the sexual contact, Ivan confessed
to Amelita that he is a married man; that they repeated their sexual contact in
the months of September and November, 1974, whenever Ivan is in Manila, as a
result of which Amelita got pregnant; that her pleas for help and support fell on
deaf ears; that Amelita had no sexual relations with any other man except Ivan
who is the father of the child yet to be born at the time of the filing of the
complaint; that because of her pregnancy, Amelita was forced to leave her work
as a waitress; that Ivan is a prosperous businessman of Davao City with a
monthly income of P5,000 to P8,000. As relief, Amelita prayed for the
recognition of the unborn child, the payment of actual, moral and exemplary
damages, attorney's fees plus costs.

Petitioner's assertion that Ivan is her first and only boyfriend is belied by her own letter addressed to Mrs.
Mendez where she revealed the reason for her attachment to Ivan who possessed certain traits not possessed by
her boyfriend. She also confided that she had a quarrel with her boyfriend because of gossips so she left her
work. An order for recognition and support may create an unwholesome atmosphere or may be an irritant in the
family or lives of the parties so that it must be issued only if paternity or filiation is established by clear and
convincing evidence. The burden of proof is on Amelita to establish her affirmative allegations that Ivan is the
father of her son. Consequently, in the absence of clear and convincing evidence establishing paternity or
filiation, the complaint must be dismissed.

As regards Amelita's claim for damages which is based on Articles 19 & 21 of

the Civil Code on the theory that through Ivan's promise of marriage, she
surrendered her virginity, we cannot but agree with the Court of Appeals that
mere sexual intercourse is not by itself a basis for recovery. Damages could
only be awarded if sexual intercourse is not a product of voluntariness and
mutual desire. At the time she met Ivan at Tony's Restaurant, Amelita was
already 28 years old and she admitted that she was attracted to Ivan. Her
attraction to Ivan is the reason why she surrendered her womanhood. Had she
been induced or deceived because of a promise of marriage, she could have
immediately severed her relation with Ivan when she was informed after their
first sexual contact sometime in August, 1974, that he was a married man. Her
declaration that in the months of September, October and November, 1974,
they repeated their sexual intercourse only indicates that passion and not the
alleged promise of marriage was the moving force that made her submit herself
to Ivan.

GASHEM SHOOKAT BAKSH VS COURT OF APPEALS 219 SCRA 115 G.R. No. 97336
Decided on: February 19, 1993 Ponente: DAVIDE, JR., J.:

FACTS: This is an appeal by certiorari. On October 27, 1987, without the assistance of counsel, private
respondent filed with the aforesaid trial court a complaint for damages against petitioner for the alleged violation
of their agreement to get married. She alleges in said complaint that she is 20 years old, single, Filipino and a
pretty lass of good moral character and reputation duly respected in her country. Petitioner, on the other hand, is
an Iranian citizen residing at Lozano Apartments, Guilig, Dagupan City, and is an exchange student, before
August 20, 1987 the latter courted and proposed to marry her, she accepted his love on the condition that they get
married; they therefore agreed to get married. The petitioner forced her to live with him in the Lozano
apartments. She was a virgin at that time; after a week before the filing of complaint, petitioner‘s attitude towards
her started to change. He maltreated and threatened to kill her; as a result of the complaint. Petitioner repudiated
the marriage agreement and asked her not to live with him anymore and that the petitioner is already married to
someone in Bacolod City. Private respondent then prayed for judgment ordering petitioner to pay her damages.
On the other hand, petitioner claimed that he never proposed marriage to or agreed to be married with the private
respondent and denied all allegations against him. After trial on the merits, the lower court ordered petitioner to
pay the private respondent damages.

ISSUE: Whether or not Article 21 of the Civil Code applies to the case at bar.

HELD: The existing rule is that a breach of promise to marry per se is not an actionable wrong.
Notwithstanding, Article 21, which is designed to expand the concepts of torts and quasi-delicts in this
jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible
for human foresight to specifically enumerate and punish in the statute books. Article 2176 of the Civil
Code, which defines quasi-delicts thus:

―Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.

In the light of the above laudable purpose of Article 21, the court held that
where a man‘s promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in
sexual congress, proof that he had, in reality, no intention of marrying her and
that the promise was only subtle scheme or deceptive device to entice or
inveigle her to accept him and obtain her consent to sexual act could justify
the award of damages pursuant to Article 21 not because of such breach of
promise of marriage but because of the fraud and deceit behind it, and the
willful injury to her honor and reputation which followed thereafter. It is
essential however, that such injury should have been committed in a manner
contrary to morals, good customs, or public policy.

Art. 21 of the Civil Code for inducing the daughter to live with him in a manner
contrary to morals and good customs. Under the New Civil Code, it is not
necessary that there be a breach of promise of marriage in order that the
plaintiff in an action for acknowledgment of natural child and support may
recover damages. The reason given by the Code Commission is that in case a
girl is already of age and was seduced, no action for Seduction under the RPC
would lie, however, the girl and her family would have suffered incalculable
damages, which must be compensated.

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

Article 22. UNJUST ENRICHMENT -ACCION IN REM VERSO. – This action is for
the recovery of what has been paid without just cause. It can only be availed of
if there is no other remedy to enforce it based on contract, quasi-contract,
crime or quasi-delict. The action is only subsidiary.

Article 22 is the incorporation of the doctrine that “no person should unjustly
enrich himself at the expense of another.”

Distinguished from Solutio Indebiti (Art. 2154- If something is received when

there is no right to demand it, and it was unduly delivered through mistake,
the obligation to return it arises). In rem verso, it is not necessary that the
payment be made by mistake. Payment could have been knowingly and
voluntarily made, but nevertheless, there would be recovery of what has been
paid. In solutio indebiti, payment was made by mistake which is an essential
element to maintain the action.

VELAYO V. SHELL [54 O.G. No. 46 p. 7303 (1956)] - Where the creditors of an
insolvent company entered into a memorandum of agreement as to the manner
of disposal of the only asset of the company the proceeds to be distributed
fairly among them, the act of the a member of the committee to implement
such agreement, in assigning its credit to a sister company in the U.S. which
filed a collection suit and attached the plane, constitutes bad faith and a
betrayal of confidence in violation of Art. 19 as implemented by Art. 21.

PNB V. CA [83 S 237 (1978)] - While the Board of Directors of PNB had the power
to approve the lease of the sugar quota allotments of its debtor, its act in
unduly refusing to grant such approval when the terms of the lease were
reasonable constitutes a violation of Art. 21 of the Civil Code.
Baviera: The Board of Directors should have been held liable, not the bank.
BALANE V. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] - Where a man by virtue of
a notarized agreement, convinced the 19-year old daughter of petitioner, to live
with him, and later on left her when she got pregnant, he can be made to
recognize his child and is liable for damages

CARLOS A. LORIA vs. LUDOLFO P. MUÑOZ, G.R. No. 187240, October 15, 2014,
J. Leonen

The PRINCIPLE OF UNJUST ENRICHMENT HAS TWO CONDITIONS:

First, a person must have been benefited without a real or valid basis or
justification.
Second, the benefit was derived at another person’s expense or damage.

In this case, Loria received P2,000,000.00 from Muñoz for a subcontract

of a government project to dredge the Masarawag and San Francisco Rivers in
Guinobatan, Albay. However, contrary to the parties’ agreement, Muñoz was
not subcontracted for the project. Nevertheless, Loria retained the
P2,000,000.00. Thus, Loria was unjustly enriched. He retained Muñoz’s money
without valid basis or justification. Under Article 22 of the Civil Code of the
Philippines, Loria must return the P2,000,000.00 to Muñoz.

DOMINGO GONZALO VS. JOHN TARNATE JR., G.R. NO. 160600, JANUARY 15,
2014, J. Bersamin

Gonzalo, who was the sole contractor of the project in question, subcontracted
the implementation of the project to Tarnate in violation of the statutory
prohibition. Their subcontract was illegal because it did not bear the approval
of the DPWH Secretary. Necessarily, the deed of assignment was also illegal,
because it sprung from the subcontract. Thus, Tarnate and Gonzalo entered
into an illegal contract. While it is true that under Article 1412 (1) of the Civil
Code, the guilty parties to an illegal contract cannot recover from one another
and are not entitled to an affirmative relief because they are in pari delicto or
in equal fault, the doctrine of in pari delicto is not always rigid. An accepted
exception arises when its application contravenes well-established public
policy. In this jurisdiction, public policy has been defined as "that principle of
the law which holds that no subject or citizen can lawfully do that which has a
tendency to be injurious to the public or against the public good." Under the
principle of unjust enrichment exists then, Gonzalo would be unjustly enriched
at the expense of Tarnate, who provided the materials, if the latter was to be
barred from recovering because of the rigid application of the doctrine of in
pari delicto. The prevention of unjust enrichment called for the exception to
apply in Tarnate’s favor.

Art. 23. Even when an act or event causing damage to another's property was
not due to the fault or negligence of the defendant, the latter shall be liable for
indemnity if through the act or event he was benefitted.
Art. 24. In all contractual, property or other relations, when one of the parties
is at a disadvantage on account of his moral dependence, ignorance, indigence,
mental weakness, tender age or other handicap, the courts must be vigilant for
his protection.

Art. 24 tempers Art. 3 (ignorance of the law excuses no one from compliance
therewith). In one case the SC held that Article 3 should not be applied with
equal force to minors, who due to their lack of intelligence, should be treated
differently. ( People vs. Navarro)

Courts are directed to be wary and cautious, as not to neglect the extra
protection needed by the disadvantaged and the handicapped. The law seeks
the welfare of the incapacitated, disadvantaged and handicapped being unable
to fully protect themselves. This is anchored on the doctrine of PARENS
PATRIAE – the inherent power and authority of the State to provide protection
of the person and property of a person non sui juris. Under that doctrine, the
State has the sovereign power of guardianship over persons of minors. (Gov’t of
the P.I. vs. Monte de Piedad, 35 Phil. 728).

Generally, when laws are doubtful, the doubt is resolved in favor of the weak or
disadvantaged. This is specially true in labor laws wherein case of doubt, the
laws are interpreted in favor of the laborer or employee. (Abella vs. NLRC, 152
SCRA 140)

Art. 25. Thoughtless extravagance in expenses for pleasure or display during a

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

The intention of the law is salutary to the country because it is geared

towards the prevention of social unrest, agitation, turmoil and dissatisfaction.
Feelings of envy and deprivation in the minds of the unprivileged will be
inflamed if they see and perceive extravagant indulgences in frivolities and
ostentations in time of public want and need. Sad to say, that the law is just
stuck on paper because its door is not fully open for the law’s effective
operation. It is restrictive and because of this the law becomes unavailing.
Only government institutions or private charitable institutions could initiate
actions to enjoin lavish and unconcerned spending during periods of acute
public want or emergency. The law does not qualify and define what would
constitute “thoughtless extravagance” or “acute public want or emergency”.
Private citizens or civic organizations not involved in charitable work are not
qualified to file actions under this provision of the Civil Code.

Art. 26. Every person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall produce a cause of
action for damages, prevention and other relief:
 (1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition.

REVERENCE FOR HUMAN PERSONALITY –

Prying into the privacy of another’s residence – A man’s house no

matter how humble is his castle and all are bound to respect its privacy. It is
for this reason also that searches in one’s house without a valid search warrant
is unlawful;

Under the phrase, “and similar acts”, includes the instance where a CCTV of a
business establishment was placed directly on the office of another business
establishment.

In explaining the inclusion of no. 2, the Code Commission said: The acts
referred to in no. 2 “meddling with or disturbing the private life or family
relations of another” are multifarious, and yet many of them are not within
the purview of the laws in force. Alienation of the affection of another’s wife or
husband, unless it constitutes adultery or concubinage is not condemned by
the law, as much as it may shock society. There are numerous acts, short of
criminal unfaithfulness, whereby the husband or wife breaks the marital vows,
thus causing untold moral suffering to the other spouse. Why should not those
acts be the subject matter of a civil action for moral damages?

A woman cannot be made liable for alienation of the affections of the husband
(of another woman) for being merely the object of the affections of said
husband. To be liable, she must have done some active acts calculated to
alienate the affections of the husband. She must, in a sense, be a “pursuer, not
merely the pursued.” )Loper vs. Askin, 164 NYS 1036)

A prostitute is not liable for alienation of affection of the husband of another

woman for having sexual intimacies with him on a chance occasion.

But , a defendant, who purposely entices the spouse of another, to alienate his
or her affections with his or her spouse, even if there are no sexual intimacies
is liable for damages under the Article.

RULE WHEN THERE IS NOT MORE AFFECTION TO ALIENATE – it may happen

that a man and his wife have no more affections for one another. If there is no
more affection that could be alienated, no recovery of damages could be made
(Madison vs. Neuburger, 224 NYS 461). This authority may be applied in the
Philippines, if the spouses have reached that point where reconciliation has
become highly improbable such as when both have been living with their own
live-in partners peacefully and are endowed with children.

ALIENATION FROM ONE’S FRIENDS – a person who committed affirmative acts

intended to alienate the existing friendship of one with his friends is liable for
damages. A man is a social being and for being so, he needs friends to socialize
with and to depend upon in case of need. To alienate him wrongfully or with
malice from his friends, is to cause him suffering for which he is entitled to
damages.

PRIVACY:

LAGUNZAD V. GONZALES [92 S 476 (1979)] - An agreement whereby a film

producer would pay the heirs and relatives of Moises Padilla a sum of money in
order to depict them in the movie which he included a love interest angle
depicting the mother and a sweetheart, is not a violation of freedom of
expression. While it is true that the film producer purchased the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need
for prior consent and authority from the deceased's heirs to portray publicly
episodes in said deceased's life and in that of his mother and the members of
his family. As held in Schuyler v. Curtis, "a privilege may be given the surviving
relatives of a deceased person to protect his memory, but the privilege exists
for the benefit of the living, to protect their feelings and to prevent a violation
of their own rights in the character and memory of the deceased."

"Being a public figure ipso facto does not automatically destroy in toto a
person's right to privacy. The right to invade a person's privacy to disseminate
public information does not extend to fictional or novelized representation of a
person, no matter how public a figure he or she may be. In the case at bar,
while it is true that petitioner exerted efforts to present a true-to-life story of
Moises Padilla, petitioner admits that he included a little romance in the film
because without it, it would be a drab story of torture and brutality."

"The right of freedom of expression, indeed, occupies a preferred position in

the hierarchy of civil liberties. However, it is limited by the clear and present
danger rule and the balancing of interest test. The latter requires the court to
take conscious and detailed consideration of the interplay of interest
observable in a given situation. The interests observable in this case are the
right to privacy and freedom of expression. Taking into account the interplay
of those interest, we hold that under the particular circumstances presented,
and considering the obligations in the contract, the validity of such contract
must be upheld because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern."

AYER V. CAPULONG [160 S 865 (1988) En Banc] - Senator Enrile cannot object
to his inclusion in the movie on the EDSA Revolution by invoking his right to
privacy. "The right of privacy or "the right to be let alone" is not an absolute
right. A limited intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information sought to
be elicited from him or to be published about him constitutes matters of a
public character. Succinctly put, the right of privacy cannot be invoked to
resist publication and dissemination of matters of public interest. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary
citizen." As distinguished from Lagunzad v. Gonzales, which involved a film
biography necessarily including at least his immediate family, the subject
matter of the move in this case is one of public concern and does not relate to
the individual or public life of Senator Enrile.

Art. 27. Any person suffering material or moral loss because a public servant or
employee refuses or neglects, without just cause, to perform his official duty
may file an action for damages and other relief against the latter, without
prejudice to any disciplinary administrative action that may be taken.

This law applies only to acts of NONFEASANCE which means “non-performance

of some acts which a person is obliged or has responsibility to perform;
omission to perform a required duty at all or, total neglect of duty” (Desmarais
vs. Wachusett Regional District , 360 Mass 591)

Nonfeasance – the omission of an act which a person ought to do;

Misfeasance – is the improper doing of an act which a person might lawfully do’
Malfeasance - is the doing of an act which a person out not to do at all.

Example – A civil registrar sat on the applications of a couple for a marriage

licenses. He refused or neglected to issue the licenses applied for. This is
NONFEASANCE. If the registrar issued the licenses applied for within 24 hours
after the filing of the applications instead of the required 10 days, this is
improper issuance of license and constitutes MISFEASANCE. If the registrar
issued licenses to the applicants who are not of legal age and who obviously
look so, the issuance is an illegal act which he should not have done at all. This
is MALFEASANCE.

DUTY MUST BE MINISTERIAL – for a public servant to be held liable under the
Article, the duty which he refused or failed to perform, must be ministerial in
character, that is, the law absolutely requires him to perform it. If the duty is
discretionary, he is not liable for his refusal or neglect to perform it, unless, he
acted in a notoriously arbitrary manner. Or he acted willfully, maliciously, or
with gross neglect.

GOOD FAITH IS NOT A DEFENSE - The reason is that an officer is under

constant obligation to discharge the duties of his office, and it is not necessary
to show that his failure to act was due to malice or willfulness. However, good
faith may mitigate the amount of damages for which the public servant is
liable.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises
or in labor through the use of force, intimidation, deceit, machinations, or any
other unjust, oppressive or high-handed method shall give rise to a right of
action by the person who thereby suffers damages.

Unfair competition consists in employing deception or any other means

contrary to good faith by which any person shall pass off the goods
manufactured by him or in which he deals, or his business, or services for those
of the one having established goodwill, or committing any acts calculated to
produce such result. )Second par. Sec. 29, RA No. 166)

Unfair competition is punishable under Artl 189 of the RPC>.

WILLAWARE PRODUCTS CORPORATION vs. JESICHRIS MANUFACTURING

CORPORATION, G.R. No. 195549, September 3, 2014, J. Peralta

The issue for resolution is: whether or not petitioner committed acts
amounting to unfair competition under Article 28 of the Civil Code. The
instant case falls under Article 28 of the Civil Code on human relations, and
not unfair competition under Republic Act No. 8293, as the present suit is a
damage suit and the products are not covered by patent registration. A fortiori,
the existence of patent registration is immaterial in the present case. The
concept of "unfair competition" under Article 28 is very much broader than
that covered by intellectual property laws. Under the present article, which
follows the extended concept of "unfair competition" in American jurisdictions,
the term covers even cases of discovery of trade secrets of a competitor,
bribery of his employees, misrepresentation of all kinds, interference with the
fulfillment of a competitor’s contracts, or any malicious interference with the
latter’s business. Article 28 of the Civil Code provides that unfair competition
in agricultural, commercial or industrial enterprises or in labor through the use
of force, intimidation, deceit, machination or any other unjust, oppressive or
high-handed method shall give rise to a right of action by the person who
thereby suffers damage. What is being sought to be prevented is not
competition per se but the use of unjust, oppressive or highhanded methods
which may deprive others of a fair chance to engage in business or to earn a
living. Thus, when a manufacturer of plastic kitchenware products employed
the former employees of a neighboring partnership engaged in the manufacture
of plastic automotive parts; deliberately copied the latter’s products and even
went to the extent of selling these products to the latter’s customers, there is
unfair competition.

B. Independent Civil Actions –

EXCLUDE: to be covered by Remedial Law

C. Prejudicial Questions – EXCLUDE: to be covered by Remedial Law

 Concept: A prejudicial civil question refers to a dispute of purely civil character but so connected in
such a manner to the crime on which the criminal case is based that it is determinative of the guilt or
innocence of the accused.

Art. 29. When the accused in a criminal prosecution is acquitted on the ground
that his guilt has not been proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the defendant, the court
may require the plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt,
the court shall so declare. In the absence of any declaration to that effect, it
may be inferred from the text of the decision whether or not the acquittal is
due to that ground.

MENDOZA V. ALCALA [2 S 1032 (1961)] - Where the accused in a criminal case

for estafa is acquitted on the ground that the prosecution has not proven his
guilt beyond reasonable doubt, a civil action based on the same transaction
may prosper. (1) The conclusion that his guilt has not been proven beyond
reasonable doubt is equivalent to one of reasonable doubt. Thus, a civil action
may prosper. (2) Under the Rules of Court, the extinction of the penal action
does not carry with it extinction of civil unless there is a declaration that fact
from which civil is based did not exist. (3) Although no reservation was made,
the declaration in the criminal case that the obligation is purely civil amounts
to a reservation of the civil action in favor of the offended party. (4)
Furthermore, since estafa involves fraud, an independent civil action may
prosper under Art. 33 of the Civil Code.

MENDOZA V. ARRIETA [91 S 113 (1979)] - Where in a multiple highway accident

involving a truck which hit a jeep which then hit a Mercedes Benz coming from
the opposite direction, two criminal actions for reckless imprudence was filed
against the drivers of the truck and jeep, and the driver of the truck was found
guilty and the driver of the jeep acquitted, a civil action for damages against
the owner of the truck would prosper as there is no res judicata, the parties
and causes of action being different. Furthermore, under Art. 31 of the Civil
Code, When the civil action is based on an obligation not arising from crime,
the civil action may proceed independently of the criminal proceedings
regardless of result of the latter. Citing Garcia v. Florido,

"As we have stated at the outset, the same negligent act causing damages may
produce a civil liability arising from crime or create an action for quasi-delict
or culpa extra-contractual. The former is a violation of the criminal law, while
the latter is a distinct and independent negligence, having always had its own
foundation and individuality. Some legal writers are of the view that in
accordance with Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for criminal negligence and
regardless of the result of the latter. Hence, the proviso in Section 2 of Rule
111 (requiring reservation of civil actions) with reference to Articles 32, 33,
and 34 of the Civil Code, is contrary to the letter and spirit of the said articles,
for these articles were drafted and are intended to constitute as exceptions to
the general rule stated in what is now Section 1 of Rule 111. The proviso,
which is procedural, may also be regarded as an unauthorized amendment of
substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide
for the reservation required in the proviso."
However, a civil action for damages against the owner-driver of the jeep would
not prosper because civil liability arising from crime co-exists with criminal
liability in criminal cases. Hence, the offended party had the option to
prosecute on civil liability arising from crime or from quasi-delict. His active
participation in the criminal case implies that he opted to recover the civil
liability arising from crime. Hence, since the acquittal in the criminal case,
which was not based on reasonable doubt, a civil action for damages can no
longer be instituted.

REPUBLIC V. BELLO [120 S 203 (1983)] - Where a cashier was acquitted in a

Malversation case on the ground that his guilt was not proven beyond
reasonable doubt, since he spent the money for a legitimate purpose, a civil
case for the recovery of the amounts will prosper since there was no
declaration in the criminal case that the facts from which the civil action
might arise did not exist.

PADILLA V. CA [129 S 558 (1990)] - Where in the complaint for Grave Coercion
against the mayor and policemen, they were acquitted on the ground that their
guilt has not been proven beyond reasonable doubt, such acquittal will not bar
a civil case for damages arising from the demolition of petitioner's market
stalls. The acquittal on the ground that their guilt has not been proven beyond
reasonable doubt refers to the element of Grave Coercion and not to the fact of
that the stalls were not demolished. Under the Rules of Court, the extinction of
penal action carries with it the extinction of civil only if there is a declaration
that facts from which civil may arise did not exist. Also, Art. 29 of the Civil
Code does not state that civil liability can be recovered only in a separate civil
action. The civil liability can be recovered either in the same or a separate
action. The purpose of recovering in the same action is to dispense with the
filing of another civil action where the same evidence is to be presented, and
the unsettling implications of permitting reinstituttion of a separate civil
action. However, a separate civil action is warranted when (1) additional facts
are to be established; (2) there is more evidence to be adduced; (3) there is full
termination of the criminal case and a separate complaint would be more
efficacious than a remand. Hence, CA did not err in awarding damages despite
the acquittal.

REYES V. SEMPIO-DY [141 S 208 (1986)] - Where the private complainant in an

information for intriguing against honor was represented by a private
prosecutor but defendant pleaded guilty and was sentenced to a fine, a civil
case damages is will prosper despite the lack of reservation and the
intervention of a private prosecutor, because there was no opportunity to
present evidence by reason of the unexpected plea of guilty. Roa v. De La Cruz
is not applicable because in that case, there was a full-blown hearing where a
private prosecutor participatedly actively but failed to present evidence to
support the claim for damages. Hence, a civil action could not prosper.
Furthermore, under Art. 33, there is no requirement for reservation to file an
independent civil action arising from defamation.

MAXIMO V. GEROCHI [144 S 326 (1986)] - Where the accused was acquitted of
Estafa on the ground of failure to establish guilt beyond reasonable doubt and
that if accused had any obligation, it was civil in nature, the court can award
civil liability in the same case without need of the institution of a separate civil
action. Citing Padilla v. CA, the court may acquit and at the same time order
payment of civil liability in the same case. The rationale is that there is no
reason to require a separate civil action where the facts to be proved in the
civil case have been proven in the criminal case, and due process has already
been accorded to the accused, and to prevent needless clogging of court
dockets and unnecessary duplication of litigation.

Art. 30. When a separate civil action is brought to demand civil liability arising
from a criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of.

Art. 31. When the civil action is based on an obligation not arising from the act
or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of the
latter.

Art. 32. Any public officer or employee, or any private individual, who directly
or indirectly obstructs, defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public
use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in peaceable assembly to petition the Government
for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of immunity
or reward to make such confession, except when the person confessing
becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless
the same is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(19) Freedom of access to the courts.

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

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence.

Art. 34. When a member of a city or municipal police force refuses or fails to
render aid or protection to any person in case of danger to life or property,
such peace officer shall be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action .

Rule 111, Sec. 2. Institution of separate civil action. - Except in the cases
provided for in Section 3 hereof, after the criminal action has been
commenced, the civil action which has been reserved cannot be instituted until
final judgment has been rendered in the criminal action.

(a) Whenever the offended party shall have instituted the civil action (arising
from the crime - Baltic) as provided for in the first paragraph of section 1
hereof before the filing of the criminal action is subsequently commenced, the
pending civil action shall be suspended, in whatever stage before final
judgment it may be found, until final judgment in the criminal action has been
rendered. However, if no final judgment has been rendered by the trial court in
the civil action, the same may be consolidated with the criminal action upon
application with the court trying the criminal action. If the application is
granted, the evidence presented and admitted in the civil action shall be
deemed automatically reproduced in the criminal action, without prejudice to
the admission of additional evidence that any party may wish to present. In
case of consolidation, both the criminal and the civil actions shall be tried and
decided jointly.
(b) Extinction of the penal action does not carry with it extinction of the civil,
unless the extinction proceeds from a declaration (need not be an express
declaration- Baltic) in a final judgment that the fact from which the civil might
arise did not exist. (Rules of Court.)

ABELLANA V. MARAVE [57 S 106 (1974)] - Where accused appealed his

conviction by the City Court of Physical injuries thru reckless imprudence to
the CFI, and while the case was on appeal, the heirs of the victim filed an
independent civil action against him and his employer in another branch, the
civil action will prosper despite the lack of reservation. The restrictive
interpretation of the Rules of Court provision on civil actions requiring
reservation as to include the independent civil action under Art. 33 does not
only result in the emasculation of the civil code provision but also gives rise to
a serious constitutional question. Article 33 is quite clear. "The right to
proceed independently of the criminal prosecution under Article 33 of the Civil
Code is a SUBSTANTIVE RIGHT, not to be frittered away by a construction that
could render it nugatory, if through oversight, the offended parties failed at the
initial stage to seek recovery for damages in a civil suit. The grant of power to
this Court, both in the present constitution and under the 1935 Charter, does
not extend to any diminution, increase or modification of substantive right.

ESCUETA V. FANDIALAN [61 S 278 (1974)] - Where the cause of action for
physical injuries accrued in 1952, and a criminal action for Frustrated
Homicide was filed in 1955 and a reservation of civil action was made, and a
civil action for damages was filed in 1956 but was dismissed for lack of
interest, when the civil action was refiled in 1968, the said civil action has
already prescribed. Since there was a reservation of the civil action, the
prescription period for an action based on tort applies, which is 4 years from
cause of action [Art. 1146 (1)]. Furthermore, no reservation was even required
since it is an independent civil action under Art. 33.

Had no reservation been made, the civil case would have been impliedly
instituted with the criminal, and since accused was convicted in 1955, an
action to enforce judgment would only expire after ten years from judgment
[Art. 1144 (3)]. Thus, where the offended party reserves the right to file a
separate action for damages arising from physical injuries, the cause of action
prescribes in four years, not ten years.

MADEJA V. CARO [126 S 295 (1983)] - Where accused was charged with
Homicide thru reckless imprudence, pending the criminal action, an
independent civil action under Art. 33 may proceed independently of the
criminal case. Citing Carandang v. Santiago [97 P 94 (1955)], "The term
"physical injuries" is used in the generic sense, not the crime of physical
injuries defined in the Revised Penal Code. It includes not only physical
injuries but consummated, frustrated and attempted homicide." Defamation
and fraud are also used in their generic sense because there are no specific
provisions in the Revised Penal Code using these terms as means of offenses
defined therein.

Art. 35. When a person, claiming to be injured by a criminal offense, charges

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

Art. 36. Pre-judicial questions, which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed by rules of
court which the Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.

Rule 111, Sec. 5. Elements of prejudicial question. - The two (2) essential
elements of a prejudicial question are:
(a) the civil action involves an issue similar or intimately related to the issue
raised in the criminal action;
(b) the resolution of such issue determines whether or not the criminal action
may proceed. (Rules of Court.)

Rule 111, Sec. 6. Suspension by reason of prejudicial question. - A petition for

suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the fiscal or the court
conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the same
criminal action any time before the prosecution rests. (ibid.)

Bigamy - Art. 349, RPC. Contracting of second or subsequent marriage:

a. before legal dissolution of first marriage

b. before declaration of presumptive death of absent spouse.
MERCED V. DIAZ [109 P 156 (1960)] - Where the husband files a civil case for
annulment of the second marriage on the ground of lack of consent, and the
second wife subsequently files a criminal case for bigamy against him, the civil
case for annulment is a prejudicial question to be determined before the
criminal case can proceed. Consent is an essential element of a valid marriage.
Without consent, the marriage is void. But the question of invalidity cannot
ordinarily be decided in the criminal action for bigamy but in a civil action for
annulment. Since the validity of the second marriage, subject of the
action for bigamy, cannot be determined in the criminal case, and since
prosecution for bigamy does not lie unless the elements of the second marriage
appear to exist, it is necessary that a decision in a civil action to the effect
that the second marriage contains all the essentials of a marriage must first be
secured.

LANDICHO V. RELOVA [22 S 731 (1968)] - Where the first wife filed a criminal
action for bigamy against the husband, and later the second wife filed a civil
case for annulment of the marriage on the ground of force and intimidation,
and the husband later files a civil case for annulment of marriage against the
first wife, the civil cases are not prejudicial questions in the determination of
his criminal liability for bigamy, since his consent to the second marriage is
not in issue. "The mere fact that there are actions to annul the marriages
entered into by accused in a bigamy case does not mean that "prejudicial
questions" are automatically raised in civil actions as to warrant the
suspension of the criminal case. In order that the case of annulment of
marriage be considered a prejudicial question to the bigamy case against the
accused, it must be shown that petitioner's consent to such marriage must be
the one that was obtained by means of duress, force and intimidation to show
that his act in the second marriage must be involuntary and cannot be the
basis of his conviction for the crime of bigamy. The situation in the present
case is markedly different. At the time the petitioner was indicted for bigamy,
the fact that two marriage ceremonies had been contracted appeared to be
indisputable. And it was the second spouse, not the petitioner who filed the
action for nullity on the ground of force, threats and intimidation. And it was
only later that petitioner as defendant in the civil action, filed a third party
complaint against the first spouse alleging that his marriage with her should be
declared null and void on the ground of force, threats and intimidation.
Assuming the first marriage was null and void on the ground alleged by
petitioner, that fact would not be material to the outcome of the criminal case.
Parties to the marriage should not be permitted to judge for themselves its
nullity, for the same must be submitted to the judgment of a competent court
and only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration, the presumption is that the
marriage exists. Therefore, he who contracts a second marriage before the
judicial declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy."

PERSONS
I. Persons and Personality – New Civil Code

1. Concepts. A person is every being capable of having any kind of right and obligations.
Whoever is a person, as defined by law, has personality or juridical capacity.

2. Kinds of persons
3. Natural
4. Juridical

3. Natural persons and their personality

4. Personality begins at birth, provided:

i. The foetus is alive at the time it is completely delivered from the mother’s womb
(Art. 41); or
ii. It lives 24 hours separate from the mother’s womb, if the foetus had less than 7
months of intrauterine life (Art. 41). If the premature foetus does not live 24
hours, it is not a person, regardless of causes of death.

5. Provisional personality

A conceived child, for all purposes favorable to it, is considered already born, provided it
is subsequently born with the requirements provided by Art. 41 of the Civil Code. Thus,
a conceived child may be a donee, even if not born (Art. 742) and be an heir, to be
supported at the expense of the estate of the de cujus (Art. 1025, p. 2); and may be
acknowledged.

6. Termination of personality

i. Unlike birth, physical and legal death are identical.

ii. Presumption of death:

Under the Rules of Court; Where persons perish in same calamity (wreck, battle or
conflagration)-

a. If both are under 15, the older is presumed to have survived;

b. If both are over 60, the younger;
c. If one is under 15, the other over 60, the younger
d. If both are over 15 and under 60, and the sexes be different, the male is presumed to have
survived; if the sexes be the same, then the older
e. If one is under 15 or over 60, the other over 15 and under 60, the latter

7. Kinds of capacity

i. Juridical capacity is the fitness to be the subject (active or passive) of

legal relations.
ii. Capacity to act is the power to do or carry out acts that will have juridical
effect, by altring or affecting the legal situation of others. Unlike juridical capacity,
 capacity to act can be acquired and may be lost by a person in varying degrees (Art.
37)

8. Circumstances affecting capacity to act of natural persons

a. Age
b. Sickness, which includes impotency, blindness, imbecility, insanity, prodigality,
deafmutism
i. Marriage
j. Family relationship
k. Paternity and filiation
l. Citizenship
m. Crime in relation to civil interdiction

Note: No incapacity arises from sex, religious belief or political opinion (Art. 39)

9. Effect of incapacities:

Persons under disability are susceptible of rights, and even obligations, if arising either –

a. From their acts (not contracts) such as culpa aquiliana, crimes; or

b. From relations between the property of the incapacitated and that of another (e.g.
legal easements) (Art. 38)

Concept of Person.-- In a juridical sense, the term "person" is now understood

as any being, physical or moral, real or juridical and legal, susceptible of rights
and obligations, or of being the subject of legal relations. (Sanchez Roman.)

Classes of Persons.-- (1) human beings or men, called natural persons; and (2)
entities formed by the association of men, known as juridical persons, or as
artificial, fictitious, abstract, or moral persons.

Status of persons.-- The status of a person is the legal condition or class to

which one belongs in society; it is the legal or juridical position of the
individual in society, or with regard to the rest of the community. The status of
a person may be political or civil.

Civil status may be grouped into 3 classes: (a) status as a member of the
society; (b) status as member of a family; and (c) status w/ respect to the
person himself. The qualities which create a status are only those inherent in
the person himself.

Characteristics of status.-- The status of a person is outside the commerce of

man; hence, (1) it is inalienable, (2) it is imprescriptible, (3) it cannot be the
object of compromise, (4) the action to claim it cannot be renounced, and (5)
the rights arising from it cannot be exercised by creditors.

I. CIVIL PERSONALITY
Concept of Personality.-- Personality is the quality derived from being a person.
While a person is any being susceptible of rights and obligations, personality is
the aptitude of that becoming the subject, active or passive, of juridical
relations.

Characteristics.-- (1) It is not a being, but a quality of certain beings; (2) it is

not a physical element, but a juridical concept; (3) it is not an object of
contract, or of possession, and cannot be impaired by agreement; (4) it is a
matter of public interest.

A. Capacity to Act
1. Civil Personality, NCC Art. 37

Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired and
may be lost.

Tolentino: Kinds of Capacity.-- Capacity may be (1) juridical capacity, and (2)
capacity to act. The union of these 2 forms the full civil capacity. (Balane calls
the 2 the constitutive elements of personality.)

Juridical capacity is synonymous to legal capacity and to personality. They all

refer to the aptitude for the holding and enjoyment of rights. On the other
hand, capacity to act refers to the aptitude for the exercise of rights, and is
often referred to merely as "capacity."
Comparison.-- Juridical capacity (JC) is just one, indivisible, irreducible, and
essentially the same for all men; it is an inherent and ineffaceable attribute of
man, and attaches to him by the mere fact of his being a man. But capacity to
act (CA) is conditional and variable. It is acquired and may be lost. The mere
existence of man is not sufficient to confer capacity to act, because this
capacity requires both intelligence and will; xxx Thus, JC can exist w/o CA, but
the existence of the latter implies that of the former.
Balane: JC has no degrees, either you have it or not. CA has degrees.

Juridical Capacity distinguished from Capacity to Act:

1. JC is inherent in every human being (not in artificial persons) while

CA is not; the latter is merely acquired upon fulfillment of certain
conditions or requisites fixed by law.
2. JC can exist without capacity to act, but CA cannot exist without
JC;
3. JC is the capacity to be the subject of legal relations, whereas CA is
capacity to do acts with binding or legal effects;
4. JC is lost only through death, whereas CA may be lost through
grounds other than death.

Capacity of Public Interest.-- The capacity or incapacity of persons depends

upon the law and cannot be modified, extended, or restricted by agreement.
Both JC and CA are not rights, but qualities of persons; hence, they cannot be
alienated or renounced.

2. Restrictions on Capacity to Act, NCC 38-39

Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute,

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

Causes of Incapacity

Minority.-- The unemancipated minor cannot enter into contracts (Art. 1327);
but he may be estopped from disavowing his contract if he has misled the other
party as to his age. The SC has held that:

xxx [T]he sale of real estate, effected by minors who have already passed the
ages of puberty and adolescence and are near the adult age, when they pretend
to have already reached their majority, while in fact they have not, is valid,
and they cannot be permitted afterwards to excuse themselves from
compliance w/ the obligation assumed by them or seek their annulment. This
doctrine is entirely in accord w/ the provisions of our law on estoppel.
(Mercado vs. Espiritu, 37 Phil. 215). But there is authority to the effect that
misrepresentation of an incapacitated person does not bind him.

"xxx Misrepresentation made by a party as to his age does not estop him from
denying that he was of age or from asserting that he was under age, at the time
he entered into the contract, for the breach of w/c an action is brought. Under
the principle of estoppel, the liability resulting from misrepresentation has its
juridical source in the capacity of the person making the misrepresentation to
bind himself. If the person making the misrepresentation cannot bind himself
by contract, he cannot also be bound by any misrepresentation he may have
made in connection therewith. A person entering into a contract must see to it
that the other party has sufficient capacity to bind himself." (Young vs. Tecson,
39 OG 953.)

Bambalan v. Maramba 51 Phil 417

Facts:
-Petitioner Isidro Bambalan, a minor, owned a piece of land
-Isidro was forced by his mother Paula Prado to sell the land to Genovena Muerong,
since she was threatening Paula of imprisonment due to the load Genoveva gave
Paula.
-To have the document of the sale acknowledged, the respondent even purchased the
cedula of the petitioner
-Isidro didn‘t try to conceal his age; in fact the respondent was well aware that
Isidro was a minor.
-Decision in Mercado vs. Espiritu cannot be used since the petitioner didn‘t try
to hide his age
*The land in question wasn‘t even registered in the Register of Deeds; the sale of the
land cannot be executed without registration as provided in section 50 of Act. 496

Issue: Was the sale of the land valid or void, since Isidro was a minor at the
execution of the alleged sale?

Held: The sale of the land is void. 1.) because Isidro is incapacitated to enter
into such contracts, 2.) because the land wasn‘t even registered and hence, cannot
be sold.

Ratio:
Art. 1390 NCC: The following contracts are voidable or annullable, even though
there may have been no damage to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a contract...
Art. 38 NCC: Minority, insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction are mere restrictions on capacity to act (aptitude for
the exercise of rights), and do not exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or from property relations, such as
easements.
Art. 1397 NCC: The action for the annulment of contracts may be instituted by all
who are thereby obliged principally or subsidiarily. However, persons who are
capable cannot allege the incapacity of those with whom they contracted; nor can
those who exerted intimidation, violence, or undue influence, or employed fraud, or
caused mistake base their action upon these flaws of the contract. (1302a)

Suan Chian v. Alcantara 85 Phil 669

Under the doctrine laid down by Mercado v Espiritu, herein followed, to bind a minor
who represents himself to be of legal age, it is not necessary for his vendee to
actually part with cash, as long as the contract is supported by a valid consideration.
The circumstance that about one month after the date of the conveyance, the
appellee informed the appellants of his minority, is of no moment, because
appellee‘s previous misrepresentation had already estopped him from
disavowing the contract.

Braganza v. Villa-Abrille 105 Phil 456

Facts: Rosario Braganza and her sons loaned from De Villa Abrille P70,000 in
Japanese war notes and in consideration thereof, promised in writing to pay him
P10,00 + 2% per annum in legal currency of the Philippines 2 years after the
cessation of the war. Because they have no paid, Abrille is sued them in March 1949.
The Manila Court of First Instance and CA held the family solidarily liable to pay
according to the contract they signed. The family petitioned to review the decision of
the CA whereby they were ordered to solidarily pay De Villa Abrille P10,000 + 2%
interest, praying for consideration of the minority of the Braganza sons when they
signed the contract.
Issue: Whether or not the boys, who were 16 and 18 respectively, are to be
bound by the contract of loan they have signed.

Held: The SC found that Rosario will still be liable to pay her share in the contract
because they minority of her sons does not release her from liability. She is ordered
to pay 1/3 of P10,000 + 2% interest.
However with her sons, the SC reversed the decision of the CA which found them
similarly liable due to their failure to disclose their minority. The SC sustained
previous sources in Jurisprudence – ―in order to hold the infant liable, the fraud
must be actual and not constructive. It has been held that his mere silence
when making a contract as to his age does not constitute a fraud which can be
made the basis of an action of deceit.

The boys, though not bound by the provisions of the contract, are still liable to
pay the actual amount they have profited from the loan. Art. 1340 states that
even if the written contract is unenforceable because of their non-age, they
shall make restitution to the extent that they may have profited by the money
received. In this case, 2/3 of P70,00, which is P46,666.66, which when
converted to Philippine money is equivalent to P1,166.67.

Insanity or Imbecility.-- Insanity includes the various forms of mental disease,

either inherited or acquired, in w/c there is a perversion of the mentality, as
when the person is suffering from illusions, hallucinations, or delusions,
unnatural exaltation or depression, or insane ideas of persecution or power.

An insane person cannot make a valid will or testament (Art. 798); and he
cannot validly give consent to contracts (Art. 1327, par. 2.) Imbecility is a
defect in the quantity of mental development. The mental ages up to the
completed eighth year are included.

US v. Vaquilar 27 Phil 88
Facts: Evaristo Vaquilar was found guilty of killing criminal, of the t
his wife and his daughter, as well as injuring other not of a crime. h
persons with a bolo. Eyewitnesses testified that the person with a
defendant appeared to be insane prior to the an unsound The court t
commission of the crimes. They also testified that mind at the further h
the appellant was complaining of pains in his head time he held that e
and stomach prior to the killing. The witnesses‘ committed mere w
evidence for insanity include: the crimes. mental a
 ―appellants eyes were very big and red with his The fact depravity, s
sight penetrating at the time he was killing his that a or moral i
wife. person insanity n
 ―he looked at me he was crazy because if he was acts crazy which a
not, he wouldn‘t have killed his family is not results not n
 at the moment of cutting those people, ―he conclusive from any o
looked like a madman; crazy because he would cut that he is disease of r
anybody at random insane. the mind, m
 sister said, ―…then he pursued me….he must The but from a al
have been crazy because he cut me‖ popular perverted s
meaning of condition t
Issue: Whether or not these pieces of evidence are ―crazy is of the a
sufficient to declare the accused as insane, not moral t
therefore exempt from criminal liability. synonymo system e
us with the where the o
Held: The evidence is insufficient to declare legal terms person is f
him insane. The appellant‘s conduct was ―insane. mentally m
consistent with the acts of an enraged The sane, does i
conduct of not exempt n
the one from d
appellant criminal .
after he was responsibil
confined in ity. In the
jail is not absence of
inconsisten proof that
t with the the
actions of a defendant
sane person had lost
(not saying his reason
a word in or became
the cell, demented
crying out after a few
loud at moments
night) who prior to or
has during the
reflected perpetrati
and felt on of the
remorse crime, it
after the is
commission presumed
People v. Rafanan 204 SCRA 65

The law presumes every man to be sane. A

person accused of a crime has the burden of
proving his affirmative allegation of insanity.
Standard of Legal insanity by People v Formigones (2 distinguishable tests):
i. Test of cognition – complete deprivation of intelligence in committing the [criminal]
act.
ii. Test of violation – that there be a total deprivation of the will

The law presumes every man to be sane. A person accused of a crime has the burden
of proving his affirmative allegation of insanity.

Standard Oil v. Arenas

Facts: The SOCNY sued the 5 debtors for payment, including the appellant Vicente
Villanueva who acted as surety to the loan. The CFI of Manila ordered the defendants
to pay jointly and severally to the plaintiffs SOCNY. While the judgment was in the
course of execution, Elisa Villanueva, wife of Vicente appeared and alleged that her
husband was declared insane on July 24, 1909, and that on Oct. 11, she was
authorized by the court as guardian to institute the proper legal proceedings for the
annulment of several bonds given by her husband while in a state of insanity.

Issues: (1)Whether or not suffering from monomania of wealth necessarily

warrants the conclusion that the person does not have capacity to act. (2)
Whether or not the appellant, was incapable of entering into contract at the time the
bond was executed on December 15, 1908.

Held: The court affirmed the trial court decision that Villanueva possessed the
capacity to act. The SC held that there is no evidence to warrant the conclusion,
in a judicial decision, that a person suffering from monomania of wealth is
really insane and therefore is deranged and incapable of binding himself in a
contract. From the testimony of his wife, it seemed that Vicente has the liberty to go
wherever he wished, that he had property of his own and was not deprived of its
management, as well as the fact that he had never squandered any large sum of
money.

As for the 2nd issue, there was no direct proof that showed that at the date of
the giving of the bond, December 15, 1908, the appellant was incapable of
acting because of insanity. The witnesses who as physicians, testified that they
observed insane periods in Villanueva twice prior to 1903, once on 1908, but
none at the time of the execution of the said bond on December 15, 1908. It
was also shown that the wife never before sought to legally deprive her husband
management over his estate knowing full well that he was insane.

People v. Rafanan 204 SCRA 65

Standard of Legal insanity by People v Formigones (2 distinguishable tests):

i. Test of cognition – complete deprivation of intelligence in committing the [criminal]
act.
ii. Test of violation – that there be a total deprivation of the will
The law presumes every man to be sane. A person accused of a crime has the burden
of proving his affirmative allegation of insanity.

Deaf-Mutism.-- A deaf-mute can make a valid will, so long as its content have
been communicated or made known to him in some practicable manner (Art.
807.) But when the deaf-mute does not know how to read and write, he cannot
give consent to contracts (1327, par. 2, and he cannot personally accept or
repudiate an inheritance (1048.)

Civil Interdiction-- This is an accessory penalty imposed upon persons who are
sentenced to a principal penalty not lower than reclusion temporal (Art. 41,
RPC.) Art. 34 of the RPC provides:

Art. 34. Civil interdiction shall deprive the offender during the time of his
sentence of the rights of parental authority, or guardianship, either as to
the person or property of any ward, of marital authority, of the right to
manage his property, and of the right to dispose of such property by any
act or any conveyance inter vivos.

Prodigality.-- A spendthrift or prodigal is "a person who, by excessive drinking,

gambling, idleness or debauchery of any kind shall so spend, waste or lessen his
estate as to expose himself or his family to want or suffering. Prodigality in
itself does not limit the capacity of a person to act. It seems erroneous to
include prodigality in the Art. 38 because as a circumstance w/c limits
capacity, because there is no specific provision of law which implements this
general provision. It is not the circumstance of prodigality, but the fact of
being under guardianship, that restricts the capacity to act of the spendthrift.

Obligations of Incapacitated Persons.-- They may have obligations arising from

all sources, except contracts. They have obligations arising from law, such as
those imposed on family relations. Incapacitated persons are also civilly liable
for crimes committed by them, even if they are exempted from criminal
liability (Art. 101, RPC.) They are liable for quasi-delicts, under the express
provisions of Articles 2181 and 2182.

They are liable on quasi-contracts, on the principle that nobody can unjustly
enrich himself at the expense of another.

Where necessaries are delivered to a minor or other incapacitated person, he

must pay a reasonable price therefore. (Art. 1489.)

Art. 39. The following circumstances, among others, modify or limit capacity to
act: age, insanity, imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence, insolvency and trusteeship. The
consequences of these circumstances are governed by this Code, other codes,
the Rules of Court, and in special laws. Capacity to act is not limited on
account of religious belief or political opinion.
A married woman, eighteen years of age or over, is qualified for all acts of civil
life, except in cases specified by law.

There is a lapse in the enumeration. Art. 38 enumerates 6 circumstances

limiting, modifying or restricting capacity to act whereas Art. 39 enumerates
11. The two articles could have been merged into one article. The enumeration
made here is not exclusive of other circumstances modifying capacity to act.

Guardianship of Incompetents.-- For definition of incompetents, see Rule 93,

Sec. 2, ROC.

Even without guardianship, persons under civil interdiction, deaf-mutes who do

not know how to read and write, and those of unsound mind, are of limited
capacity. With respect, however, to hospitalized lepers, prodigals, and those
who cannot take care of themselves and manage their prop., it is the fact of
guardianship which will limit their capacity to act.

Family Relations.-- Ascendants and descendants, brothers and sisters, and

collateral relatives within the 4th civil degree (as cousins), cannot validly
marry; their marriage would be incestuous or against public policy and void.

Husband and wife, during the marriage, cannot give donations to each other
except moderate gifts during family rejoicing (Arts. 98, 125, FC); they cannot
sell or lease properties to one another unless the sale or lease is excepted
under the laws (Art. 1490 and 1646, CC); they cannot also enter into a
universal partnership (1782), prescription does not run between husband and
wife (Art. 1109).

There are situations when relatives cannot testify against each other- the
spouses cannot testify against each other (Sec. 22, Rule 130, RC), a descendant
cannot be compelled to testify against his parents and grandparents (Art. 215,
FC)

Alienage.-- Citizenship may affect the right of persons in matters where the
State may validly discriminate between aliens and its citizens for reasons of
public policy, w/o doing violence to the equal protection of the laws. See
constitutional provisions. Aliens cannot exercise political rights; they cannot
acquire lands except through succession (Art. XII, Sec. 7, 1987 Constitution);
they cannot operate public utilities (Art. XIV, Sec. 8, 18978 Constitution);
they cannot engage in coastwise trade (Sec. 1172, Revised Administrative
Code); they cannot practice some professions exclusive to Filipinos like
practice of law same in exceptional cases (Rule 138, Secs. 2, 3 and 4, RRC);
they cannot own and manage mass media (Art. XIV, Sec. 11, 1987
Constitution); they cannot engage in Retail Trade (R.A. No. 1180)

Absence.-- A person is absent when he disappears from his domicile, and his
whereabouts are unknown, either 2 years or 5 years (Art. 384). He can also be
presumed dead, if absent for at least 7 years or 4 years under certain dangerous
circumstances. (Art. 391, CC)(381.) He cannot properly administer his
properties, and so another person is appointed to administer them.

Insolvency.-- When a person has been adjudicated an insolvent, he cannot

dispose of his property existing at the time of the commencement of the
insolvency proceedings; and no payments of property or credit can be made to
him.

Trusteeship- a trustee cannot acquire by prescription the property he holds

under express trust for another unless he repudiates the trust; a trustee cannot
appropriate for himself the property under trust which he merely holds for the
benefit of another; a trustee is not allowed to become the buyer of the trust
property; if the trust is express, the trustee is restricted by the provisions of
the trust agreement and the law.

Physical condition.-- Physical incapacity to enter into the married state, or

impotence, is a ground for annulment of marriage [Art. 55(5), FC], and a person
who is blind, or deaf or dumb, cannot be a witness to the execution of a will.
(820.)

B. Restriction on Capacity to Act

1. Minority

Sec. 1. Art. 234 of EO 209, the Family Code of the Philippines, is hereby
amended to read as follows:

"Emancipation takes place by the attainment of majority. Unless otherwise

provided, majority commences at the age of eighteen years."
xxx (R.A. 6809.)

a. Civil Acts

Art. 797. Persons of either sex under eighteen years of age cannot make a will.

Art. 1489. Xxx When necessaries are sold and delivered to a minor or other
person without capacity to act, he must pay a reasonable price therefor.
Necessaries are those referred to in article 290. (par. 2.) Basis of liability: quasi-
contract

Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen and
twenty one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such consent shall be manifested in
writing by the interested party, who personally appears before the proper local
registrar, or in the form of an affidavit made in the presence of two witnesses
and attested before any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications for marriage
license, and the affidavit, if one is executed instead, shall be attached to said
applications. (Family Code.)

b. Delicts
Art. 101. Xxx
xxx
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with civil law. (par. 3 thereof,
Revised Penal Code.)

c. Quasi-Delicts

Art. 2182. If the minor or insane person causing damage has no parents or
guardian, the minor or insane person shall be answerable with his own property
in an action against him where a guardian ad litem shall be appointed.

2. Insane and Imbeciles

a. Civil Acts

Art. 1323. An offer becomes ineffective upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance is conveyed.

Art. 1327. The following cannot give consent to a contract:

(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to write.

Art. 1399. When the defect of the contract consists in the incapacity of one of the parties,
the incapacitated person is not obliged to make any restitution except insofar as he has
been benefited by the thing or price received by him.

b. Delicts & Quasi-Delicts

Art. 101. Xxx

Xxx Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said insane,
imbecile, or minor shall respond with their own property, excepting property exempt
from execution, in accordance with civil law. (par. 3 thereof, Revised Penal Code.)

Art. 2182. If the minor or insane person causing damage has no parents or guardian, the
minor or insane person shall be answerable with his own property in an action against
him where a guardian ad litem shall be appointed.

3. Deaf-Mutes
 Art. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to
write.

Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be
witnesses to the execution of a will mentioned in article 805 of this Code.
4. Prodigals

Rule 92, Sec. 2. Meaning of word "incompetent".-- Under this rule, the word
"incompetent" includes persons suffering the penalty of civil interdiction or
who are hospitalized lepers, prodigals, deaf and dumb who are unable to read
and write, those who are of unsound mind, even though they have lucid
intervals, and persons not being of unsound mind, but by reason of age,
disease, weak mind, and other similar causes, cannot, without outside aid, take
care of themselves and manage their property, becoming thereby an easy prey
for deceit and exploitation. (Rules of Court.)

5. Civil Interdiction

Art. 34. Civil interdiction. - Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos. (Revised Penal Code.)

Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property: (1) That the spouse of the petitioner has been sentenced
to a penalty which carries with it civil interdiction; xxx. (Family Code.)

Art. 142. The administration of all classes of exclusive property of either

spouse may be transferred by the court to the other spouse: (3) When one
spouse is sentenced to a penalty which carries with it civil interdiction; xxx.
(Family Code.)

6. Insolvency

Sec. 70. If any debtor, being insolvent, or in contemplation of insolvency,

within thirty days before the filing of a petition by or against him, with a
view to giving a preference to any creditor or person having claim against him
or who is under any liability for him, procures any part of his property to be
attached, sequestered, or seized on execution, or makes any payment, pledge,
mortgage, assignment, transfer, sale, or conveyance of any part of his property,
either directly or indirectly, absolutely or conditionally, to anyone, the person
receiving such payment, pledge, mortgage, assignment, transfer, sale or
conveyance or to be benefited thereby, or by such attachment or seizure,
having reasonable cause to believe that such debtor is insolvent, and that such
attachment, sequestration, seizure, payment, pledge, mortgage, conveyance,
transfer, sale, or assignment is made with a view to prevent his property from
coming to his assignee in insolvency, or to prevent the same from being
distributed ratably among his creditors, or to defeat the object of, or in any way
hinder, impede, or delay the operation of or to evade any of the provisions of
this Act, such attachment, sequestration, seizure, payment, pledge, mortgage,
transfer, sale, assignment, or conveyance is void, and the assignee, or the
receiver may recover the property or the value thereof, as assets of such
insolvent debtor. If such payment, pledge, mortgage, conveyance, sale,
assignment, or transfer is not made in the usual and ordinary course of
business of the debtor, of if such seizure is made under a judgment which the
debtor has confessed or offered to allow, that fact shall be prima facie evidence
of fraud. Any payment, pledge, mortgage, conveyance, sale, assignment, or
transfer of property of whatever character made by the insolvent within one
month before the filing of a petition in insolvency by or against him, except for
a valuable pecuniary consideration made in good faith, shall be void. All
assignments, transfers, conveyances, mortgages, or encumbrances of real
estate shall be deemed, under this section, to have been made at the time
the instrument conveying or affecting such realty was filed for record in the
office of the Register of Deeds of the province or city where the same is
situated. (Insolvency Law, R.A 1956.)

Art. 1830. Dissolution (of partnership) is caused:

xxx
(6) By the insolvency of any partner or of the partnership;
xxx

Art. 1919. Agency is extinguished:

xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal
or of the agent; xxx

Art. 2238. So long as the conjugal partnership or absolute community

subsists, its property shall not be among the assets to be taken possession
of by the assignee for the payment of the insolvent debtor's obligations,
except insofar as the latter have redounded to the benefit of the family. If it is
the husband who is insolvent, the administration of the conjugal
partnership or absolute community may, by order of the court, be transferred
to the wife or to a third person other than the assignee.

7. Alienage

Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State. Such activities may be directly undertaken by the
State, or it may enter into co-production, joint venture, production-sharing
agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period of not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions
as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant. The
State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment to Filipino citizens. The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided
by law, based on real contributions to the economic growth and general
welfare of the country. In such agreements, the State shall promote the
development, and use of local scientific and technical resources.

The President shall subsequently notify the Congress of every contract

entered into in accordance with this provisions within thirty days from its
execution. (Constitution.)

Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands

shall be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain. (ibid.)

Art. XII, Sec. 8. Notwithstanding the provisions of Section 6 of this

Article, a natural-born citizen of the Philippines who has lost his Philippine
citizenship may be a transferee of private lands subject to limitations provided
by law. (ibid.)

Art. XII, Sec. 11. No franchise, certificate, or any other form of

authorization for the operation of a public utility shall be granted except
to citizens of the Philippines or to corporations or associations organized
under the laws of the Philippines at least sixty per centum of whose capital is
owned by such citizens, nor shall such franchise, certificate or
authorization be exclusive in character or for a longer period than fifty
years. Neither shall any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteration, or repeal by
Congress when the common good so requires. The State shall encourage equity
participation in public utilities by the general public. The participation of
foreign investors in the governing body of any public utility shall be limited
to their proportionate share in its capital, and all executive and managing
officers of such corporation or association must be citizens of the
Philippines. (ibid.)

Art. XVI, Sec. 11. (1) The ownership and management of mass media shall
be limited to citizens of the Philippines, or to corporations, cooperatives or
associations, wholly owned and managed by such citizens.

The Congress shall regulate or prohibit monopolies in commercial mass

media when the public interest so requires. No combination in restraint of
trade or unfair competition therein shall be allowed.

(2) The advertising industry is impressed with public interest, and shall
be regulated by law for the protection of consumers and the promotion of
the general welfare. Only Filipino citizens or corporations or associations
at least seventy per centum of the capital of which is owned by such citizens
shall be allowed to engage in the advertising industry. The participation of
foreign investors in the governing body of entities in such industry shall
be limited to their proportionate share in the capital thereof, and all the
executive and managing officers of such entities must be citizens of the
Philippines. (ibid.)

Art. XIV, Sec. 4. (2) Educational institutions, other than those established by
religious groups and mission boards, shall be owned solely by citizens of
the Philippines, or corporations or associations at least sixty per centum of
the capital of which is owned by such citizens. The Congress may, however,
require increased Filipino equity participation in all educational
institutions. The control and administration of all educational institutions
shall be vested in Filipino citizens. No educational institution shall be
established exclusively for aliens and no group of aliens shall comprise more
than one-third of the enrolment in any school. The provisions of this
subsection shall not apply to schools established for foreign diplomatic
personnel and their dependents and, unless otherwise provided by law, for
other temporary foreign residents. (ibid.)

Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following article.

Art. 5 P.D. No. 603, otherwise known as the “Child and Youth Welfare Code”
amended Article 40 of the Civil Code. The amendment and the law now
provide that:

The civil personality of the child shall commence from the time of his
conception for all purposes favorable to him, subject to the requirements of
Article 41 of the Civil Code.
Personality from Birth.-- Birth means the removal of the foetus from the
mother's womb.

Conceived Child.-- The personality of the conceived child has 2 characteristics:

(1) it is essentially limited, because it is only for purposes favorable to the
child, and (2) it is provisional or conditional, because it depends upon the child
being born alive later, such that if it is not born alive, its personality
disappears as if it had never existed.

Period of Conception.-- Legally, in a normal child, the period of conception is

the first 120 days of the 300 days preceding the birth of the child.

The following provisions of the NCC are relevant:

Art. 742. Donations made to conceived and unborn children may be

accepted by those persons who would legally represent them if they were
already born.

Art. 1025. In order to be capacitated to inherit, the heir, devisee or

legatee must be living at the moment the succession opens, except in case of
representation, when it is proper. A child already conceived at the time of the
death of the decedent is capable of succeeding provided it be born later under
the conditions prescribed in article 41.

GELUZ V. CA [2 S 801 (1961)] - F: Nita Villanueva came to know the defendant

(Antonio Geluz) for the first time in 1948-- thru her aunt. In 1950, she became
pregnant by her present husband before they were legally married. To conceal
her pregnancy from her parents, she had herself aborted by def. After the
marriage w/ the plaintiff, she again became pregnant. As she was employed in
the COMELEC and her pregnancy proved to be inconvenient, she had herself
aborted again by def. in Oct 1953. Less than 2 years later, she again became
pregnant. On 2/21/55, she again repaired to the defendant's clinic. Nita was
again aborted of a 2-month old foetus, in consideration of the sum of P50. It is
the third and last abortion that constitutes plaintiff's basis in filing this action
and award of damages The CA and the trial court predicated the award of
damages upon the provisions of the initial par. of Art. 2206 of the NCC.

RULING: This award, we believe, to be error for the said art., in fixing an award
for the death of a person, does not cover the case of an unborn foetus that is
not endowed with personality.

RATIO: Parents of unborn foetus cannot sue for damages on its behalf. A
husband of a woman who voluntarily procured her abortion could not recover
damages from the physician who caused the same. (1) Since an action for
pecuniary damages on account of personal injury or death pertains primarily to
the injured, no such right of action could derivatively accrue to the parents or
heirs of an unborn child. In fact, even if a cause of action did accrue on behalf
of the unborn child, the same was extinguished by its pre-natal death, since no
transmission to anyone can take place from one that lacked juridical
personality (or juridical capacity, as distinguished from capacity to act). It is no
answer to invoke the provisional personality of a conceived child (conceptus
pro nato habetur) under Article 40 of the Civil Code, because that same article
expressly limits such provisional personality by imposing the condition that
the child should be subsequently born alive: "provided it be born later with the
condition specified in the following article." In the present case, there is no
dispute that the child was dead when separated from its mother's womb. (2)
This is not to say that the parents are not entitled to collect any damages at
all. But such damages must be those inflicted directly upon them, as
distinguished from the injury or violation of the rights of the deceased, his
right to life and physical integrity. Because the parents cannot expect either
help, support or services from an unborn child, they would normally be limited
to moral damages for the illegal arrest of the normal development of the spes
hominis that was the foetus, i.e., on account of distress and anguish attendant
to its loss, and the disappointment of their parental expectations (Art. 2217,
CC), as well as to exemplary damages, if the circumstances should warrant
them (Art. 2230, CC). But in this case, there is no basis for an award of moral
damages, evidently because the husband's indifference to the previous
abortions clearly indicates that he was unconcerned with the frustration of his
parental hopes and affection.

Geluz vs CA, July 20, 1961

It is unquestionable that the appellant’s act in provoking the abortion of appellee’s wife,
without medical necessity to warrant it, was a criminal and morally reprehensible act,
that cannot be to severely condemned; and the consent of the woman or that of her
husband does not excuse it. But the immorality or illegality of the act does not justify an
award of damage that, under the circumstances on record, have no factual or legal
basis.

Quimiguing vs ICAO, 34 SCRA 132 (1970

A conceived child, although as yet unborn, is given by law a provisional personality of its
own for all purposes favorable to it, as explicitly provided under article 40 of the civil
code.

Nature: Appeal from order of the Zamboanga del Norte CFI. Reyes, J.B.L., J.:

Facts: Icao, a married man, succeeded in having sex with Quimiguing several times
by force and intimidation and without her consent (rape!); as a result Quimiguing
became pregnant, despite efforts and drugs supplied by Icao. Quimiguing claims
support at Php 120.00/month, damages and attorney‘s fees. Icao moved to dismiss
the complaint for lack of cause of action since complainant did not allege that the
child had indeed been born; trial judge sustained defendant‘s motion. Hence, this
appeal.
Issue: WON the case merits the protection of Art. 40 NCC and if so then does
the child have the rights, through the mother, to claim support.

Held: YES.

Ratio: Plaintiff, through an amended complaint, avers that as a result of the

intercourse, she had later given birth to a baby girl. The SC says that since, as
provided in Article 40 NCC (the conceived child shall be considered born for all
purposes favorable to it, provided, it be born later with the conditions specified in
following article), petitioner Quimiguing‘s child, since time of conception, and as
having fulfilled the requirement of having been born later, has a right to
support from its progenitors, particularly of the defendant-appellee.

Disposition: Orders of the lower court reversed and set aside and case
remanded to lower court for further proceedings.

De Jesus v. Syquia 58 Phil 866

Facts: Antonia de Jesus went to court for the purpose of recovering damages from
Cesar Syquia stemming from a breach of a promise to marry and to compel the
defendant to recognize and support her two children. Cesar Syquia had an affair with
Antonia de Jesus which resulted in de Jesus giving birth to a baby boy on June 17,
1931. For a year or so, Syquia supported de Jesus and his child. He, however, lost
interest in the relationship when De Jesus became pregnant with their second child.
Syquia left and eventually married another woman. De Jesus now claims that Syquia
broke his promise to marry her.

Issue: Whether de Jesus can claim damages for breach of promise to marry

Held: The trial court did not grant damages to de Jesus for supposed breach of
contract. Action for breach of promise to marry has no standing in civil law. At
any rate, such promise was not satisfactorily proven by De Jesus. During the
course of their relationship, defendant never expressed anything to that effect.

Continental Steel v. Montaño, G.R. NO. 182836 , Oct.13, 2009 603 SCRA 621

Whether or not, a death of a fetus is considered a death of a dependent of the

parent. One need not acquire civil personality first before he/she could die.
Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death.

FACTS: Hortillano, an employee of petitioner Continental Steel, filed a claim for Paternity
Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to the
CBA. The claim was for Hortillano’s unborn child who died. Hortillano’s wife had a premature
delivery while she was on her 38 th week of pregnancy. The female fetus died during the labor.
The company granted Hortillano’s claim for paternity leave but denied his claims for
bereavement leave and death benefits. Hortillano claimed that the provision in CBA did not
specifically state that the dependent should have first been born alive or must have acquired
juridical personality. Petitioner argued that the said provision of CBA did not contemplate death
of an unborn child or a fetus without legal personality. They also claimed that there are two
elements for the entitlement of the benefit: 1) death; and 2) status of legitimate dependent.
None which existed in Hortillano’s case. They further contend that the only one with civil
personality could die, based on Art 40-42 of Civil Code. Hence, according to petitioner, the
unborn child never die. Labor Arbiter Montano argued that the fetus had the right to be
supported by the parents from the very moment he/she was conceived. Petitioner appealed to
CA but CA affirmed Labor Arbiter’s decision. Hence, this petition.

ISSUE: W/N only one with juridical personality can die.

HELD: No. The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for
the legal definition of death is misplaced. Article 40 provides that a conceived child
acquires personality only when it is born, and Article 41 defines when a child is
considered born. Article 42 plainly states that civil personality is extinguished by
death. The issue of civil personality is irrelevant in this case. Arts 40-42 do not provide
at all definition of death. Life is not synonymous to civil personality. One need not
acquire civil personality first before s/he could die. The Constitution in fact recognizes the
life of the unborn from conception.

ISSUE: W/N a fetus can be considered as a dependent.

HELD: Yes. Even an unborn child is a dependent of its parents. The fetus would
have not reached 38-39 weeks without depending upon its mother.

3. Birth, NCC 40-41

Art. 41. For civil purposes, the foetus is considered born if it is alive at the
time it is completely delivered from the mother's womb. However, if the foetus
had an intrauterine life of less than seven months, it is not deemed born if it
dies within twenty-four hours after its complete delivery from the maternal
womb.

Separation from Mother.-- This is produced by the cutting of the umbilical

cord, whether the removal takes place naturally or by surgical operation.

Alive at Birth.-- The duration of extra-uterine life is immaterial; for acquisition

of juridical personality, it is enough that the child lives even for an instant.

Test of Life.-- The general opinion is that independent life required for juridical
personality can be shown only by complete respiration. The cry of the child,
although it is not a necessary sign of life, is evidence that it has acquired
complete respiration. Another indication of complete respiration is the floating
of the lungs when placed in water; this means that air has penetrated into the
lungs by breathing.
Viability Not Required.-- Viability means that the child is capable of living, and
this is determined by the extent of the development of its organs.

Premature Birth.-- In this case, if the child does not live 24 hours completely
separated from the mother's womb, it does not acquire juridical personality.
This is an absolute requirement for feotuses which have an intrauterine life of
less than 7 mos. (Balane quoting Manresa and JBL.)

"The aborted creature does not reach the category of a natural person and
consequently is not born in the contemplation of law." (Geluz v. CA, supra.)
This is so, even if the child is killed before the period lapses and it can be
proved that it could have survived that period if it had not been prevented by
the willful act of another. On the other hand, juridical personality is acquired
even if the survival for 24 hours is caused only by medical or scientific means
w/o w/c the child would have died before the lapse of that period.

Outline of Articles 40 & 41:

1. For civil personality to be acquired, one must be born.-- A foetus is

born after it is completely separated from the mother's womb w/c is
produced by the cutting of the umbilical cord; after the separation, the child
now survives by itself.

There was an additional requirement in the OCC: only that foetus is

considered born w/c has a "uniform form." This has been taken out in the
NCC.
The question of determining the exact duration of intrauterine life is a problem
even medical science is not equipped to answer as of the moment.

2. Once birth occurs, personality for favorable purposes retroacts from

the moment of conception.-- The retroactivity rule is qualified-- only for
purposes favorable to the child.

3. The presumptive or presumed personality accorded to an unborn child

is conditional and for a limited purposes only. It is conditional because the
presumed personality will be perfected only if the foetus is born alive; if not
the foetus would not attain the status of a person at any moment. Further,
the presumption is only for purposes favorable to the foetus.

A conceived unborn child is entitled to inherit by will or by intestacy (Art.

1025, CC); it can be a recipient of donations that are not burdensome; and its
filiation can be recognized by its parents.

Aborted foetus is without personality and is not covered by Article 2206

of the Civil Code.

4. Death, NCC 42-43

 Extinguishment
a. Contracts

Art. 42. Civil personality is extinguished by death. The effect of death upon the rights and
obligations of the deceased is determined by law, by contract and by will.

Natural Death.-- This article refers to natural or physical death, because this is the only kind of death
recognized by present legislation. The law does not recognize the so-called "civil death," known to
legislation in the past, by virtue of w/c a man who was alive was considered dead for all purposes
because of a conviction for crime or of the taking of a religious profession.

Physical death and legal death are the same. (Balane)

However, though personality has been extinguished the rights and obligations of the deceased are not
necessarily extinguished by his death. The law, the contracts he entered into, and the will he made, if
any, will determine the consequences of his death on his rights and obligations.

The following provisions of the NCC are relevant:

Art. 777. The rights to the succession are transmitted from the moment of death of the decedent.

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death.

Art. 1919. Agency is extinguished:

xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal or of his agent.
xxx

Art. 1830. Dissolution (of partnership) is caused:

xxx
(5) By the death of any partner.
xxx

Art. 603. Usufructuary is extinguished:

(1) By the death of the usufructuary, unless a contrary intention clearly appears;
xxx.

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where
the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the value of the property he received
from the decedent.

Others: death dissolves a marriage (Art. 130, FC); death of a parent

permanently terminated parental authority (Art. 228, par. 1, FC); death of a
spouse terminates community or conjugal partnership of gains (Art. 99 and
130, FC)
 For certain purposes like settlement of an estate where some credits have
to be collected and some obligations have to be paid, the estate of a deceased
person is considered as a continuity of the personality of the deceased. The
said estate can sue and be sued.

b. Criminal Liability

Art. 89. How criminal liability is totally extinguished. - Criminal liability is totally
extinguished:

(1) By the death of the convict, as to the personal penalties; and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender occurs
before final judgment

a. Compare Art. 43 with Rule 131, Sec. 3 (jj)Presumption of Survivorship

Limjoco v Intestate Estate of Pio Fragante 80 Phil 776

Estate continues personality:

The state or the mass of property, rights and assets left by the decedent, instead of
the heirs directly liable, become vested and charged with his rights and obligations
which survive after his demise. Under the present legal system, rights and
obligations which survive after death have to be exercised and fulfilled only by the
estate of the deceased.

Dumlao v. Quality Plastics 70 SCRA 472

Service of summons on a dead person is void. He had no more civil personality.

His juridical capacity, which is the fitness to be the subject of legal relations,
was lost through death.
Eugenio v. Velez

A man and woman not legally married who cohabit for many years as husband and
wife, who represent themselves to the public as husband and wife, and who are
reputed to be husband and wife in the community where they live may be considered
legally ―married in common law jurisdictions but not in the Philippines.
Right to bury a dead person does not include a common law husband who is still
married.

Marcos v. Manglapus G.R. No. 88211 (October 27, 1989)

Death of Mr. Marcos has not changed the factual scenario under which the Court‘s
decision was rendered. The threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect, have not been shown to have
ceased.
Art. 43. If there is doubt, as between two or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no transmission
of rights from one to the other.

Art. 43 specifically applies only to persons who are called to succeed each
other. The proof of death must be established by positive evidence. However,
it can likewise be established by circumstantial evidence derived from facts.

However, if there is no proof as to who died first, the presumption operates and
the presumption is that the parties died at the same time. In addition, the law
makes it clear that there shall be no transmission of rights from one to the
other. In other words, there is no succession between the two of them but
their respective heirs will inherit from them.

The above presumption applies only if the following conditions are present:

1. The parties are heirs to one another – such as father and a son
(without issue);
2. There is no proof that one died ahead of the other – such as when
an airplane where the parties are passengers exploded in the sky with no
survivors;

Under The Rules of Court on the presumption of survivorship, the same applies
whenever the parties who died are NOT called upon to succeed each other.
Otherwise, Article 43 of the Civil Case applies.

JURIDICAL PERSONS

Art. 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by
law; their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which
the law grants a juridical personality, separate and distinct from that of each shareholder,
partner or member. (35a)

Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the
laws creating or recognizing them. Private corporations are regulated by laws of general
application on the subject.

Partnerships and associations for private interest or purpose are governed by the provisions of
this Code concerning partnerships.
Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur
obligations and bring civil or criminal actions, in conformity with the laws and regulations of
their organization.

Art. 47. Upon the dissolution of corporations, institutions and other entities for public interest or
purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in
pursuance of law or the charter creating them. If nothing has been specified on this point, the
property and other assets shall be applied to similar purposes for the benefit of the region,
province, city or municipality which during the existence of the institution derived the principal
benefits from the same.

Barlin v. Ramirez 7 Phil 41

Nature: Appeal from a judgment of the CFI of
Camarines. Willard, J.:

Facts: Ramirez, having been appointed parish priest by

the plaintiff Barlin, took possession of the Church in
1901 until a successor had been appointed in 1902.
Defendant Ramirez refused to surrender the Church
and Barlin filed a suit; the municipality of Lagonoy
joined Ramirez as defendants, claiming possession and
ownership of the Church and contesting Barlin‘s
authority and capacity to order that Ramirez be
replaced and surrender the Church to the appointed
successor.

Issue: WON the Catholic Church is the rightful owner of

the Church?

Held: Yes.

Ratio: The Roman Catholic Church is a juridical

entity in the Philippine Islands, and under Article
46 of the Civil Code, Juridical persons may acquire
and possess property of all kinds as well as incur
obligations and bring civil or criminal actions, in
conformity with the laws and regulations of their
organization.
Disposition: Judgment of the Lower Court affirmed.
Camid vs. Office of the President G.R. No. 161414 (January 17, 2005)

It has been opined that municipal corporations may exist by prescription where
it is shown that the community has claimed and exercised corporate functions, with
the knowledge and acquiescence of the legislature, and without interruption or
objection for period long enough to afford title by prescription.

B. Domicile and residence of person, NCC 50-51

CITIZENSHIP AND DOMICILE

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

(1) Those who were citizens of the Philippines at the time of the adoption of the
Constitution of the Philippines;

(2) Those born in the Philippines of foreign parents who, before the adoption of said
Constitution, had been elected to public office in the Philippines;

(3) Those whose fathers are citizens of the Philippines;

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine citizenship;

(5) Those who are naturalized in accordance with law.

Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are
governed by special laws.

Art. 50. For the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons is the place of their habitual residence.

Article 48 has been repealed by the 1973 Constitution and the latter by the
1987 Constitution. The 1987 Constitution declares who are the citizens of the
Philippines:

Theories Determinative of Citizenship:

1. Jus Sanguinis – Where citizenship is conferred by virtue of blood

relationship traceable to the father or mother. In the Philippines, this
principle is followed. Thus the 1987 Constitution provides, “Those whose
fathers or mothers are citizens of the Philippines” are citizens of the
Philippines (Art. IV, Sec. 1, 1987 Constitution)

2. Jus Soli – Where citizenship is conferred by virtue of the place of birth.

Followed in the United States. A child born in the U.S. is an American citizen.
 The abandonment of the principle of jus soli previously applied in the
Phils. did not affect the citizenship of those already declared Filipinos on the
ground of res judicata (Tan Chong vs. Sec. of Labor, 79 Phil. 249).

“Section 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
(4.) Those who are naturalized in accordance with law.”

Section 2. Natural born citizens are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine citizenship in accordance
with Paragraph (3), Section 1, hereof shall be deemed natural born citizens.”

“Section 3. Philippine citizenship may be lost or reacquired in the manner

provided by law.”

“Section. 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed, under the law, to
have renounced it.”

“Section 5. Dual allegiance of citizens is inimical to the national interest and

shall be dealt with by law.” (Art. IV, 1987 Constitution)

Kinds of Filipino Citizens:

(1) Natural born Filipino citizen – is one who is a Filipino from birth and does
not have to perform any act to acquire his Philippine citizenship (Art. IV, Sec.
2, 1987 Constitution). This must be distinguished from a native born Filipino
who is born in the Philippines. A natural born Filipino may be born in a foreign
country of Filipino parents.

(2) Naturalized Filipino citizen – is one who became a Filipino through

judicial proceedings in accordance with the Naturalization Law (CA No. 473)

(3) Filipino citizen by election – is one who by exercising the option to elect
Philippine citizenship, within a reasonable time after reaching majority age (18
years under RA 6809) becomes a Filipino citizen (Art. IV, Sec. 3, 1987
Constitution)

(4.) Filipino citizen by legislative act – is one who becomes a Filipino citizen
by virtue of a legislative act exemplified by the aliens accorded Philippine
citizenship by the late Pres. Ferdinand E. Marcos through presidential decrees.
Congress may also by law directly accord Philippine citizenship to an alien.
(5.) Filipino citizen by marriage - is a foreign woman married to a Filipino,
and who has all the qualifications and none of the disqualifications for
Philippine citizenship. Same rule applies to a foreign woman married to a
foreigner who becomes a naturalized Filipino. This kind of situation can arise
through a treaty.

Citizens of the Philippines Under the 1987 Constitution (Article IV, Section1):

(1) Citizens at the time of the adoption of the Constitution - At the time of
the adoption of the 1987 Constitution the following are the citizens of the
Philippines –

a. Those who are Filipino citizens under the provisions of the

Philippine Bill of 1902 and the Jones Law of 1916;

b. Those who were naturalized as Filipino citizens prior to the

adoption of the 1935 Constitution;

c. Those who had been declared Filipino citizens by final judgment of

our courts.

d. Those who had elected Philippine citizenship.

e. Those born in the Philippines of foreign parents and had been

elected to public office before the adoption of the 1935 Constitution.

(2) Those whose mothers or fathers are citizens of the Philippines. – Under
the 1987 Constitution, if the father or mother of a child is a Filipino citizen,
such child is a natural born Filipino, even if the other parent is an alien.

The Phil. Citizenship of the mother, unlike under the 1935 Constitution,
confers natural born citizenship upon her children, without the necessity of
election of Philippine citizenship upon reaching the age of majority. The
Constitution followed the equality rule.

(3) Those born before January 17, 1973 of Filipino mothers, who elected
Phil. Citizenship upon attaining the age of majority. - the date January 17,
1973 signifies the date of ratification of the 1973 Constitution during the time
of Pres. Marcos.

The right to elect Phil. Citizenship permitted under the 1987

Constitution is available only to those born before January 17, 1973 of Filipino
mothers who exercised the right within a reasonable time after becoming of
age. Exercising the right within 3 years after reaching the age of majority is
reasonable (Opinion, Sec. of Justice No. 1220, S. 1948). Election made five
years after attaining the age of majority is no longer reasonable. The right is
lost (Lim Teco vs. Comm. Of Customs, 24 Phil. 84).
 Children born before January 17, 1973 and who are already 21 years
before said date and had elected Philippine citizenship, are citizens under par.
1, Art. IV, that is, citizens at the time of the adoption of the new Constitution.

During his minority, the child has only an inchoate right because he does
not yet have the opportunity to elect Phil. Citizenship. Therefore, he is still an
alien until he could exercise the right (Villahermosa vs. Commissioner of
Immigration, 80 Phil. 541).

(4) Those who are naturalized in accordance with law. – A foreigner may
become a Filipino citizen by naturalization either through judicial proceedings
in accordance with the Revised Naturalization Law (CA No. 437) or through
direct action of the Legislature.

NATIONAL POLICY ON GRANT OF CITIZENSHIP TO FOREIGNERS- the law on

citizenship is political in character and the national policy is one for selective
admission to Philippine citizenship (Roa vs. Collector of Customs, 23 Phil. 315;
Brito vs. Commission of Immigration, 121 Phil. 1325)

Illegitimate Child of Filipino mother and a alien father is a Filipino Citizen-

the Philippine adheres to the rule of private international law that the
illegitimate child of a Filipino mother with a foreigner is a Filipino citizen (US
vs Ong, 29 Phil. 332; Leon Ratunil Sy Quimsun vs. Republic, 92 Phil. 675)

Citizenship of an alien woman married to a Filipino citizen – the alien woman

ipso facto becomes a Filipino citizen (native born or naturalized) provided she
is not disqualified to be a citizen of the Philippines under Sec. 4, CA No. 473
(Revised Naturalization Law; Moy Ya Lim Yao vs. Comm. Of Immigration, 41
SCRA 292) The Moy Ya case reversed the ruling in the case of Zita Ngo Burca
(19 SCRA 186), which ruled that an alien woman married to a Filipino must
still file a petition for naturalization before she can become a Filipino citizen.

Similarly, an alien woman who married a foreigner who later is naturalized as

Filipino will follow the citizenship of her husband from the taking of his oath of
allegiance to the Republic of the Philippines provided she does not suffer from
any disqualification and has all the qualifications to become a Filipino citizen.

No automatic Acquisition of Philippine Citizenship by an Alien Woman

Marrying a Filipino Citizen. – The alien woman who marries a Filipino citizen
must prove that she is not disqualified to become a Filipino citizen. The
procedure is for her to file a petition for the cancellation of her alien certificate
of registration with the Commission on Immigration and Deportation.

How: “The alien woman must file a petition for the cancellation of her
alien certificate of registration alleging, among other things that she is married
to a Filipino citizen and that she is not disqualified from acquiring her
husband’s citizenship pursuant to section 4 CA No. 473, as amended. Upon the
filing of said petition, which should be accompanied or supported by the joint
affidavit of the petitioner and her husband to the effect and thus secure
recognition of her status as a Filipino citizen. “ Opinion No. 38, series of 1958
of then Acting Secretary Jesus G. Berrera; still followed by commission of
Immigration and Deportation. Judicial recourse would be available to the
petitioner in a case of adverse action by the Immigration Commissioner. If the
woman is already a Filipino citizen, there is no need to pass through this
administrative proceeding.

The presence of qualifications is determined at the time of the filing of

the petition for naturalization (Dy vs. Republic, 15 SCRA 530)

Dual Citizenship – When there is concurrent permanent allegiance to two

countries, dual citizenship results. Dual citizenship declared inimical to the
nation interest (Art. IV, Sec. 5, 1987 Constitution) Rationale: a citizen of dual
allegiance may circumvent or negate any of the provisions of Art. XII on
“National Economy and Patrimony,” and such is “inimical to the national
interest” (Sec. 2, Art. XII, 1987 Constitution) The provision against dual
citizenship that it shall be dealt with by law has no retroactive effect (Aznar
vs. COMELEC, 185 SCRA 703)

Acquisition of Citizenship- the law that governs acquisition of citizenship is CA No. 473, as amended.
The law provides that for a foreigner to be able to become a Philippine citizen, a proper petition shall be
filed in the proper court which, after due hearing, shall issue the certificate of naturalization.

Loss and Reacquisition of Citizenship- the law that governs the loss or reacquisition of citizenship is CA
No. 63 as amended by RA No. 106. Grounds for loss of citizenship are as follows:

1. By naturalization in a foreign country;

2. By express renunciation of citizenship;
3. By subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining 21 years of age or more; Provided, however, That a Filipino may not divest
himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any
country;

4. By rendering service to, or accepting commission in, the armed forces of a foreign
country: Provided, That the rendering of service to, or acceptance of such commission in, the armed
forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of
the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the
following circumstances is present: x x x

5. By cancellation of the certificate of naturalization;

6. By having been declared by competent authority a deserter of the Phil. Armed forces in
time of war, unless subsequently, a plenary pardon or amnesty has been granted; and

In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her
husband’s country, she acquires his nationality (Sec. 1, CA No. 63 as amended).
Grounds for Reacquisition of citizenship:

1. By naturalization; Provided, that the applicant possess none of the disqualification

prescribed in sec. 4 of CA No. 473;

2. By repatriation of deserters of the Army, Navy or Air Corps: Provided, That a woman
who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the
provisions of CA No. 63, as amended, after the termination of the marital status; and

3. By direct act of the Congress of the Philippines.

DUAL CITIZENSHIP:

“Republic Act No. 9225 August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP
PERMANENT.
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER
PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title – this act shall be known as the "Citizenship Retention and Re-acquisition Act of 2003."

Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of another
country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired
Philippine citizenship upon taking the following oath of allegiance to the Republic:

"I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities
of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily
without mental reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall
retain their Philippine citizenship upon taking the aforesaid oath.

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen
(18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed
citizenship of the Philippines.

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this
Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of
the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003"
and other existing laws;
 (2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office
as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of
the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they
renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by,
or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens.

Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any other
section or provision not affected thereby shall remain valid and effective.

Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this
Act are hereby repealed or modified accordingly.

Section 8. Effectivity Clause – This Act shall take effect after fifteen (15) days following its publication in the Official
Gazette or two (2) newspaper of general circulation.”

Personal Law of Stateless Persons - which shall govern their civil status and
legal capacity shall be determined:

1. By the law of domicile (habitual residence)

2. In default thereof, by the law of the place of his temporary
residence.

ARTICLE 50:

Domicile: Domicile denotes a fixed permanent residence to which, when absent

for business or pleasure, one has the intention of returning and depends on
facts and circumstances in the sense that they disclose intent (Ong Huan Tin
vs. Republic, 126 Phil. 201; Corre vs. Corre, 100 Phil. 321).

RESIDENCE is used to indicate a place of abode, whether permanent or

temporary.

DOMICILE is residence coupled with the intention to remain for an unlimited

time. No length of residence without intention of remaining will constitute
domicile. A man may have a residence in one place and a domicile in another
place. He may have as many residences as he wants but he can only have one
domicile.

A woman may have lived for so many years in different places and may
have even registered as a voter in a certain place but that place may not
necessarily be her domicile if it is not her residence where she really has the
intention of returning (Romualdez-Marcos vs. COMELEC, 238 SCRA 300)

DOCTRINE: If a person retains his domicile of origin for purposes of the residence requirement, the 1
year period is irrelevant because wherever he is, he is a resident of his domicile of origin. Second, if a
person reestablishes a previously abandoned domicile, the 1 year requirement must be satisfied. (Bernas
book)

FACTS:

1.) Imelda Marcos established her domicile in Tacloban City, which was her father’s hometown, in 1938
when she was 8 years old. She pursued her studies (GS,HS, College) in the aforementioned city and
subsequently taught in the Leyte Chinese School. In 1952, she went to Manila to work in the House of
Representatives. Two years after, she married Pres. Ferdinand Marcos when he was still a Congressman
in Ilocos Norte and registered there as a voter. In1959, her husband was elected a Senator and they lived
in San Juan, Rizal where she again registered as a voter. And in 1965, she lived in the Malacanang
Palace when her husband became the President. This time, she registered as a voter in San Miguel,
Manila. After their exile in Hawaii, she ran for President in 1992 and indicated in her CoC that she was
a resident and register voter of San Juan, Metro Manila.

2.) Marcos filed her CoC for the position of Representative of the First District of Leyte.

3.) The incumbent Representative, Montejo, filed for her disqualification alleging that she did not meet
the 1 year constitutional requirement for residency.
4.) Apparently, she wrote down in her CoC in item no.8, which asked for the number of years of
residency, that she had been a resident for 7 months.
5.) Marcos filed an amended CoC changing “7 months” to “since childhood”, claiming that it was an
honest misinterpretation that she thought she was being asked for her actual and physical presence in
Tolosa, and not her domicile.
6.) The COMELEC found the petition for her disqualification meritorious and cancelled her amended
CoC. For them, it was clear that Marcos has not complied with the 1 year residency requirement.

In election cases, the term residence has always been considered synonymous with domicile.
This is the intention to reside in the place coupled with the personal presence.

When she returned after her exile, she did not choose to go back to Tacloban. Thus, her animus
revertendi (intention to return) points to Manila.

Pure intention to reside in Tacloban is not sufficient, there must be conduct indicative of such intention.
7.) The COMELEC denied her motion for reconsideration but issued a resolution allowing for her
proclamation should she obtain the highest number of votes. On the same day, however, the COMELEC
reversed itself and directed the suspension of her proclamation.
8.) Marcos found out that she was won by a landslide in the said elections and prayed for her
proclamation. Hence, this petition.

ISSUE: W/N the petitioner was a resident, for election purposes, of the First District of Leyte for a
period of one year.

RULING + RATIO:
The case at hand reveals that there is confusion as to the application of ‘Domicile’ and ‘Residence’ in
election law.

Originally, the essential distinction between residence and domicile lies in the fact that residence is the
PHYSICAL presence of a person in a given area and domicile is where a person intends to remain or his
permanent residence. A person can only have a single domicile.

It was ascertained from the intent of the framers of the1987 Constitution that residence for
election purposes is synonymous with domicile. It cannot be contested that the petitioner held various
residences in her lifetime. The Courts reiterate that an individual does not lose his domicile even if she
has maintained different residences for different purposes. None of these purposes pointed to her
intention of abandoning her domicile of origin. The Courts ruled in favor of Marcos because of the ff
reasons:

1. A minor follows domicile of her parents. Tacloban became Imelda’s domicile of origin by operation
of law when her father brought them to Leyte;

2. Domicile of origin is only lost when there is actual removal or change of domicile, a bona fide
intention of abandoning the former residence and establishing a new one, and acts which correspond
with the purpose. In the absence and concurrence of all these, domicile of origin should be deemed to
continue.
3. A wife does not automatically gain the husband’s domicile because the term “residence” in Civil Law
does not mean the same thing in Political Law. When Imelda married late President Marcos in1954, she
kept her domicile of origin and merely gained a new home and not domicilium necessarium. Civil Code
Art. 110: The husband shall fix the residence of the family. Sobrang distinguished yung residence at
domicile sa Civil law.
4. Assuming that Imelda gained a new domicile after her marriage and acquired right to choose a new
one only after the death of Pres. Marcos, her actions upon returning to the country clearly indicated that
she chose Tacloban, her domicile of origin, as her domicile of choice. To add, petitioner even obtained
her residence certificate in1992 in Tacloban, Leyte while living in her brother’s house, an act, which
supports the domiciliary intention clearly manifested. She even kept close ties by establishing
residences in Tacloban, celebrating her birthdays and other important milestones.

DISPOSITION: COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.

Romualdez-Marcos vs COMELEC
248 SCRA 300
Facts:
March 8, 1995 – Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor.
March 23, 1995 – Montejo, incumbent of and candidate for the same position, filed a
petition for cancellation and disqualification with the COMELEC, alleging that
Marcos did not meet the residency requirement.
March 29, 1995 – Marcos filed an Amended/Corrected Certificate of Candidacy in the
COMELEC‘s head office in Intramuros claiming that her error in the first certificate
was the result of an ―honest misrepresentation and that she has always
―maintained Tacloban City as her domicile or residence.
April 24, 1995 – COMELEC Second Division by a vote of 2-1 came up with a
Resolution that found Montejo‘s petition for disqualification meritorious, Marcos‘
corrected certificate of candidacy void, and her original certificate cancelled.
May 7, 1995 – COMELEC en banc denied Marcos‘ Motion for Reconsideration of the
Resolution drafted on April 24.
May 11, 1995 – COMELEC issued another Resolution allowing Marcos‘
proclamation to the office should the results of the canvass show that she
obtained the highest number of votes. However, this was reversed and instead
directed that the proclamation would be suspended even if she did win.
May 25, 1995 – In a supplemental petition, Marcos declared that she was the
winner of the said Congressional election.

Issues/ Held/Ratio:

(1) WON plaintiff had established legal residency required to be a voter,

and thus candidate, of the first district of Leyte.

Yes. It is the fact if residence, not a statement in a certificate of candidacy

which out to be decisive in determining whether or not an individual has
satisfied the constitution‘s residency qualification requirement (as intended by
the framer’s of the constitution)

The confusion of the ―honest mistake made when she filed her Certificate of
Candidacy can be attributed to the fact that the entry for residence is
immediately followed by the entry for the number of years and months in the
residence where the candidate seeks to hold office immediately after the
elections. This honest mistake should not be allowed to negate the fact of
residence in the First District. The instances (i.e. when Marcos lived in Manila
and Ilocos after marrying her husband) used by the COMELEC to disqualify
Marcos were only actual residences incurred during their marriage; and as
such, she was required to change residences and apply for voter‘s registration
in these cited locations. When she got married to the late dictator, it cannot be
argued that she lost her domicile of origin by operation of law stated in Article
110 of the CC and further contemplated in Article 1094 of the same code. It is
the husband’s right to transfer residences to wherever he might see fit to raise
a family. Thus, the relocation does not mean or intend to lose the wife‘s
domicile of origin. After the death of her husband, her choice of domicile was
Tacloban, Leyte as expressed when she wrote the PCGG chairman seeking
permission to rehabilitate their ancestral house in Tacloban and their farm in
Olot, Leyte.

As discussed during the deliberations of the 1987 Constitution by Mr. Nolledo

and Mr. Davide, and Mrs. Rosario and Mr. De Los Reyes in the RECORD OF
THE 1987 CONSTITUTIONAL CONVETION July 22, 1986.

The husband shall fix the residence of the family. But the court may exempt
the wife from living with the husband if he should live abroad unless in the
service of the Republic.

The husband and wife are obligated to live together, observe mutual respect
and fidelity, and render mutual help and support.

(2) WON COMELEC the proper jurisdiction in disqualifying the plaintiff under
Article 78 of the Omnibus Election Code had already lapsed, thereby
transmitting jurisdiction to the House of Representatives.

Yes. The mischief in petitioner’s contention lies in the fact that our courts and
other quasi-judicial bodies would then refuse to render judgments merely on
the ground of having failed to reach a decision within a given or prescribed
period. In any event, Sections 6 and 7 of R.A. 6646 in relation to Sec. 78 of
B.P. 881, it is evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending disqualification case under Sec. 78
of B.P. 881 even after the elections.

(3) WON the House of Representatives Electoral Tribunal (HRET) had

jurisdiction over the question of the petitioner‘s qualifications after the
elections.

No. The HRET‘s jurisdiction of all contests relating to the elections, returns,
and qualifications of members of Congress begins only after a candidate has
become a member of the House of Representatives.
Puno, J. (Concurring):

All her life, Marcos’ domicile of origin was Tacloban. When she married the
former dictator, her domicile became subject to change by law and the right to
change it was given by Article 110 of the CC. She has been in Tacloban since
1992 and has lived in Tolosa since August 1994. Both places are within the
First Congressional District of Leyte.

Francisco, J. (Concurring):

Residence for election purposes means domicile. Marcos has been in Tacloban
since 1992 and has lived in Tolosa since August 1994. Both places are within
the First Congressional District of Leyte.

Romero, J. (Separate):
Women‘s rights as per choosing her domicile after husband‘s death is evident
in this case. Marcos‘ living in Leyte is sufficient to meet the legal residency
requirement.

Vitug, J. (Separate):
It seems unsound to vote for someone who has already been declared
disqualified. The Court refrain from any undue encroachment on the ultimate
exercise of authority by the Electoral Tribunal on matters which, by no less
than a constitutional fiat, are explicitly within their exclusive domain. Voted
for dismissal.

Mendoza, J. (Concurring):
The issue is whether or not the COMELEC has the power to disqualify
candidates on the ground that they lack eligibility for the office to which they
seek to be elected. It has none and the qualifications of candidates may be
questioned only in the event they are elected, by filing a petition for quo
warranto or an election protest in an appropriate forum (not necessarily
COMELEC, but the HRET).

Padilla, J. (Dissenting):
Provisions in the Constitution should be adhered to. The controversy
should not be blurred by academic disquisitions. COMELEC did not
commit grave abuse of discretion in holding the petitioner disqualified.
And the law is clear that in all situations, the votes cast for a disqualified
candidate shall not be counted.

Regalado, J. (Dissenting):
A woman loses her domicile of origin once she gets married. The death of her
husband does not automatically allow her domicile to shift to its original.
Such theory is not stated in any of the provisions of law.

Davide, Jr. J. (Dissenting):

A writ of certiorari may only be granted if a government branch or
agency has acted without or in excess of its jurisdiction. The COMELEC‘s
resolutions are within the scope and jurisdiction of this particular
agency‘s powers. In agreement with Regalado, re: woman’s domicile

A minor follows the domicile of his parents.

Domicile of origin can only be lost and a change of domicile occurs

when the following requisites are present:

1.) an actual removal or an actual change of domicile;

2) a bona fide intention of abandoning the former place of

residence and establishing a new one;

and 3) acts which correspond with the purpose (Romualdez-Marcos

vs. COMELEC, 238SCRA 300)

Under the Family Code, the husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide (Art. 69, FC)

Requisites of Domicile:

(1) physical presence; the fact of residing or personal presence in a

particular place;

(2) animus manendi (intent to remain) (Gallego v. Vera, 73 P 453.);

the intention to remain in said place permanently

(3) animus non revertendi (intention not to return to one's old

domicile as his permanent place.)

Three kinds of Domicile:

(1) Domicile of Origin.-- Domicile of the parents of a person at the time

he was born

(2) Domicile of Choice.-- Domicile chosen by a person to change his

original domicile.

Aside from the 2 requisites mentioned above, a third requisite must

be present in domicile of choice, animus non revertendi (intention not to
return to one's old domicile as his permanent place.)

(3) Domicile by Operation of Law.-- E.g., Art. 69, FC.

 Art. 69 FC- The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling reasons
for the exemption. However, such exemption shall not apply if the same
is not compatible with the solidarity of the family.

Three Rules in Domicile:

(1) A man must have a domicile somewhere.

(2) A domicile once established remains until a new one is acquired.

(3) A man can have only 1 domicile at a time.

Domicile and Residence. Domicile is not the same as residence. Domicile

is residence plus habituality.

For the exercise of civil rights and fulfillment of civil obligations, the
domicile of natural persons (not juridical) is the place where they
habitually reside. But for purposes that are political in nature, domicile
is determined by the criteria indicated in the subsisting political laws.

In the Philippines, the term “residence” when used in election, suffrage

and naturalization laws, it means “domicile” (political or legal residence)
which imports not only intention to reside in a fixed place, but also
personal presence in the place, coupled with conduct indicative of such
intention (Nuval vs. Guray, 52 Phil. 645)

Where the residence of a person is not his habitual residence, then

residence is different from domicile. Thus, a man may have a residence
in one place and a domicile in another. In residence, the relation is one
of fact to a place; while in domicile, it is legal or juridical, independent of
the necessity of physical presence.

A man can have but one domicile for one and the same purpose at any
time, but he may have numerous places of residence. His place of
residence generally is his place of domicile, but is not by any means
necessarily so; since no length of residence without intention of
remaining will not constitute domicile (Uytengsu vs. Republic, 95 Phil
890; Ong vs. Republic, 109 Phil 772; Ujano vs. Republic, 123 Phil 1017;
Koh vs. CA, 70 SCRA 298)

The deliberations of the 1987 Constitution on the residence

qualification for certain elective positions have placed beyond doubt the
principle that when the Constitution speaks of “residence” in election
law, it actually means only “domicile”

“xxx that an individual does not lose his domicile even if he has
lived and maintained residence in different places. Residence, it bears
repeating, implies a factual relationship to a given place for various
purposes. The absence from legal residence or domicile to pursue a
profession, to study or to do other things of a temporary or semi-
permanent nature does not constitute loss of residence.

Xxx

Second, domicile of origin is not easily lost. To successfully effect

a change of domicile, one must demonstrate:

1. An actual removal or an actual change of domicile; residence

or bodily presence in the new locality;

2. A bona fide intention or abandoning and change of domicile;

an intention to remain in the new locality (animus manendi)
3. Acts which correspond with the purpose; an intention to
abandon the old domicile (animus non revertendi)

The purpose to remain in or at the domicile of choice must be for

an indefinite period of time. The acts of the person must conform with
his purpose. The change of residence must be voluntary; the residence
at the place chosen for the domicile must be actual; and to the fact of
residence there must be added the animus manendi (Gallego v. Verra, 73
Phil. 453)

Mere absence from one’s domicile of origin “to pursue studies,

engage in business, or practice of his vocation, is not sufficient to
constitute abandonment or loss of such residence.”

In the absence of clear and positive proof based on these criteria,

the residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity of residence be rebutted for a change of residence requires an
actual and deliberate abandonment, and one cannot have two legal
residences at the same time.

Importance of Understanding Domicile.-- In case of revocation of wills

(Art. 829), place of performance of obligation (Art. 1251, par. 3), renvoi
(Aznar v. Garcia)

Right to Change Domicile or Liberty of Abode is a Constitutional Right. –

Every person has the liberty of abode and the right to change the same
(Art. III, Sec. 6, 1987 Constitution. )

In Villavicencio vs. Lukban, 39 Phil. 778, it was held that the city
officials of Manila acted illegally in forcibly hoarding prostitutes and in
hustling them on board steamers for transportation to Davao as laborers.
This is forcing them to change their domiciles against their will. The
Writ of habeas corpus was granted to allow the return of the women to
Manila.

Expulsion is a Crime – A public officer or employee who without

authority expels a person from the Philippines or compels him to change
his residence is criminally liable (Art. 127, RPC). Violation of the
fundamental rights of persons like the liberty of abode and freedom to
change the same, will give rise to civil damages (Art. 32[10], CC).

Residence Certificate, Not Determinative of Domicile – The place where a

residence certificate was obtained and the data contained therein are not
conclusive as to the real residence or domicile of a person holding said
certificate.

Art. 51. When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same shall be
understood to be the place where their legal representation is established
or where they exercise their principal functions.

Domicile of Juridical Persons – are generally fixed in the law creating or

recognizing them. If the domicile had not been fixed, then the domicile
is in the place where their legal representation is established or where
they exercise their principal functions.

Domestic corporations are required to state in their Articles of

Incorporation the place where their principal office is located, which
must be within the Philippines (BP Blg. 68, Corporation Code, Sec. 14).
And foreign corporations are required to indicate in their application for
business license to do business, the specific address of their principal
office in the country of incorporation; also, they must indicate the
names and addresses of their resident agents, as well as the places in the
Philippine where the corporations intend to operated (Corporation Code,
sec, 125)

II. Marriage – Family Code (Aug. 3, 1988- EFFECTIVITY DATE)

EXCLUDE: Muslim Code, (PD 1083)

 Marriage as a special contract cannot be restricted by discriminatory policies of

private individuals or corporations.
 Marriage is not an ordinary contract
 Marriage creates a social status or relation between the contracting parties in which,
not only the contracting parties but the State as well, are interested.

1. Special contract

 Cannot be restricted by discriminatory policies of private individuals or

corporations

i.e Phil. Telegraph and Telephone Co. vs. NLRC (272 SCRA 596), where a
company’s policy disqualified from work any woman worker who contracts
marriage. SC invalidated such policy as it not only runs afoul of the
constitutional provision on equal protection but also on the fundamental
policy of the State toward marriage. Said policy strikes at the very essence,
ideals, and purpose of marriage as an inviolable social institution and,
ultimately, of the family as the foundation of the nation. Said policy is a
discriminatory conduct derogatory of the laws of the land.
FACTS:

PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de

Guzman specifically as “Supernumerary Project Worker”, for a fixed period from
November 21, 1990 until April 20, 1991 as reliever for C.F. Tenorio who went on
maternity leave. She was again invited for employment as replacement of
Erlina F. Dizon who went on leave on 2 periods, from June 10, 1991 to July 1,
1991 and July 19, 1991 to August 8, 1991.

On September 2, 1991, de Guzman was again asked to join PT&T as a

probationary employee where probationary period will cover 150 days. She
indicated in the portion of the job application form under civil status
that she was single although she had contracted marriage a few
months earlier. When petitioner learned later about the marriage, its branch
supervisor, Delia M. Oficial, sent de Guzman a memorandum requiring her to
explain the discrepancy. Included in the memorandum, was a reminder
about the company’s policy of not accepting married women for
employment. She was dismissed from the company effective January 29,
1992. Labor Arbiter handed down decision on November 23, 1993
declaring that petitioner illegally dismissed De Guzman, who had
already gained the status of a regular employee. Furthermore, it was
apparent that she had been discriminated on account of her having
contracted marriage in violation of company policies.

ISSUE: Whether the alleged concealment of civil status can be grounds

to terminate the services of an employee.

HELD:

Article 136 of the Labor Code, one of the protective laws for women,
explicitly prohibits discrimination merely by reason of marriage of a
female employee. It is recognized that company is free to regulate
manpower and employment from hiring to firing, according to their
discretion and best business judgment, except in those cases of
unlawful discrimination or those provided by law.

PT&T’s policy of not accepting or disqualifying from work any woman

worker who contracts marriage is afoul of the right against
discrimination provided to all women workers by our labor laws and by
our Constitution. The record discloses clearly that de Guzman’s ties with
PT&T were dissolved principally because of the company’s policy that married
women are not qualified for employment in the company, and not merely
because of her supposed acts of dishonesty.

The government abhors any stipulation or policy in the nature adopted by

PT&T. As stated in the labor code:

“ART. 136. Stipulation against marriage. — It shall be unlawful for an employer

to require as a condition of employment or continuation of employment that a
woman shall not get married, or to stipulate expressly or tacitly that upon
getting married, a woman employee shall be deemed resigned or separated, or
to actually dismiss, discharge, discriminate or otherwise prejudice a woman
employee merely by reason of marriage.”

The policy of PT&T is in derogation of the provisions stated in Art.136

of the Labor Code on the right of a woman to be free from any kind of
stipulation against marriage in connection with her employment and it
likewise is contrary to good morals and public policy, depriving a
woman of her freedom to choose her status, a privilege that is
inherent in an individual as an intangible and inalienable right. The
kind of policy followed by PT&T strikes at the very essence, ideals and
purpose of marriage as an inviolable social institution and ultimately,
family as the foundation of the nation. Such policy must be prohibited
in all its indirect, disguised or dissembled forms as discriminatory
conduct derogatory of the laws of the land not only for order but also
imperatively required.

2. Prohibits Mail Order Bride – Penal Offense R.A. 6955, June 13, 1990, marriage is
vested with public interest.

TRAFFICKING IN WOMEN – RA No. 9208, the anti-Trafficking in

Persons Act of 2003, which prohibits – “to introduce or match for
money, profit, or material, economic or other consideration, any person
or, as provided for under RA No. 6955, any Filipino woman to a foreign
national, for marriage for the purpose of acquiring, buying, offering,
selling or trading him/her to engage in prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt bondage;

c) to offer or contract marriage, real or simulated, for the purpose

of acquiring, buying, offering, selling, or trading them to engage in
prostitution, pornography, sexual exploitation, forced labor or slavery,
involuntary servitude or debt bondage.”

3. Constitutional Protection of marriage and the family

 “The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic social institution.” (Sec. 12, Art. II)
 Sec. 15 of the Constitutions deals exclusively with the family
 The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development (Sec. 1, Art. 15).
 Marriage is an inviolable social institution and the foundation of the family and
shall be protected by the State ( Sec. 2, Art. 15)
 SC ruling, “The right to marry, establish a home and bring up children is a
central part of the liberty protected by the Due Process Clause.”
 The right to enter into a marriage has also been regarded as within the ambit of
the constitutional right of association. The freedom to marry has long been
recognized as one of the vital personal rights essential to the orderly pursuit of
happiness by free men (Loving v. Virginia, 388 US)
 Marriage is one of the “basic civil rights of man” fundamental to our very
existence and survival (Skinner v. State of Oklahoma, 316 US 535)

4. The constitutional provisions on marriage, however, do not imply that the legislature
cannot enact a law allowing absolute divorce. The legislature has the plenary power to
 decide what sort of situations allowing absolute divorce may be recognized within the
limits allowed by the Constitution.

5. While a lawful marriage seeks to create a permanent union between man and woman, it
does not shed the spouses’ integrity or their privacy as individuals

In Zulueta vs. CA, 253 SCRA 699, where a wife, to get evidence of infidelity in a case
for legal separation she filed against her husband, ransacked his office and forcibly took
documents and letters of the husband addressed to his paramour, the SC ruled that the
wife cannot use the said documents and letters as evidence because they were obtained
in violation of her husband’s constitutional right to privacy.

Cecilia Zulueta vs Court of Appeals and Alfredo Martin (253 SCRA 699) GR no.
107383 February 20, 1996

Facts: Cecilia Zulueta is the Petitioner who offset the private papers of her husband Dr.
Alfredo Martin. Dr. Martin is a doctor of medicine. When he was not in his house his
wife took the 157 documents consisting of diaries, cancelled check, greeting cards,
passport and photograph between private respondents and his alleged paramours, by
means of forcibly opening the drawers and cabinets. Cecilia Zulueta filed the papers for
the evidence of her case of legal separation and for disqualification from the practice of
medicine against her husband.

Dr. Martin brought the action for recovery of the documents and papers and for damages
against Zulueta, with the Regional Trial Court of Manila, Branch X. The trial court
rendered judgment for Martin, declaring him the capital/exclusive owner of the
properties described in paragraph 3 of Martin’s Complaint or those further described in
the Motion to Return and Suppress and ordering Zulueta and any person acting in her
behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as
nominal damages; P5,000.00, as moral damages and attorney’s fees; and to pay the costs
of the suit. On appeal, the Court of Appeals affirmed the decision of the Regional Trial
Court. Zulueta filed the petition for review with the Supreme Court.

Issue: WON The papers and other materials obtained from forcible intrusion and from
unlawful means are admissible as evidence in court regarding marital separation and
disqualification from medical practice.

Ruling/Held: The documents and papers are inadmissible in evidence. The

constitutional injunction declaring “the privacy of communication and
correspondence to be inviolable is no less applicable simply because it is the wife
who thinks herself aggrieved by her husband’s infidelity, who is the party against
whom the constitutional provision is to be enforced.

The only exception to the prohibition in the Constitution is if there is a lawful order
from a court or when public safety or order requires otherwise, as prescribed by law.
Any violation of this provision renders the evidence obtained inadmissible for any
purpose in any proceeding. The intimacies between husband and wife do not justify
any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her. The
law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the
 consent of the affected spouse while the marriage subsists. Neither may be examined
without the consent of the other as to any communication received in confidence by one
from the other during the marriage, save for specified exceptions. But one thing is
freedom of communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity that each
owes to the other.

A. Requisites
1. Nature of Marriage, Art. 1
Definitions of Marriage.-- The term marriage has 2 distinct meanings. In one sense, it
is limited to the procedure by which a man and a woman become husband and wife.
In this concept, it is defined as "that act by which a man and a woman unite for life, with
the intent to discharge towards society and one another those duties which result from
the relation of husband and wife."

In the second sense, marriage is a status involving duties and responsibilities w/c are
no longer matters for private regulations, but the concern of the State. xxx As such,
it is defined as "the civil status of one man and one woman, legally united for life, with
rights and duties which, for the establishment of families and the multiplication of the
species, are, from time to time may thereafter be, assigned by law to matrimony."
(Balane quoted Tolentino on the meaning of marriage.)

Purposes of Marriage.-- In general: (1) reproduction, (2) education of the offspring, and
(3) mutual help. The immediate purpose is the constitution of a complete and perfect
community between two individuals of different sexes; the remote purpose is the
preservation of the human race.

Art. 1. Marriage is a special contract of permanent union between a man

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

Marriage a Social Institution.-- Marriage is a contract only in form, but in

essence it is an institution of public order, founded on custom and morality. It
is a contract sui generis which cannot be compared to any other contract.

CHARACTERISTICS:

(1) It is civil in character, because it is established by the State independently of

its religious aspect;

(2) it is an institution of public order or policy, governed by rules established by

law which cannot be made inoperative by the stipulation of the parties;

(3) it is an institution of natural character, because one of its objects is the

satisfaction of the intimate sentiments and needs of human beings for the organic
perpetuation of man.

Marriage is a contract. Art. 52, NCC provides that marriage is not a mere contract. Art.
1, FC, on the other hand provides that M is a special contract. Both emphasize that
marriage is not just a contract.

Differentiated from Ordinary Contracts:

(1) As to parties: Ordinary contracts (OC) may be entered into by any no. of
persons, whether of the same or different sex, while marriage (M) can be entered
into only by one man and one woman;

(2) As to contractual rights and obligations: In OC, the agreement of the parties
have the force of law bet. them while in M, the law fixes the duties and rights of
the parties;

(3) As to termination: OC can be terminated by mutual agreement of the parties,

while M cannot be so terminated; neither can it be terminated even though one of
the parties subsequently becomes incapable of performing his part; and

(4) As to breach: Breach of OC gives rise to an action for damages, while breach
of the obligations of a husband or a wife does not give rise to such an action; the
law provides penal and civil sanctions, such as prosecution for adultery or
concubinage, and procedure for legal separation;

(5) As to effect: OC do not create status, M does.

Quite logically, marriage is the starting point of any family relation because in
our legal system, the family is the keystone of society, the basic unit of society.
And marriage is the keystone of the family. This is a value judgment. Marriage
does not have to be the keystone of the family. But we choose it to be that way.
xxx Much arguments have been raised regarding the status of children on the
distinction of legitimate from illegitimate children. There are those who propose
the abolition of the distinction as it is not the fault of the illegitimate child that he
is such. But one of the unintended consequence of abolishing the distinction is to
erode the institution of marriage. Are we ready to take that path?

PRINCIPAL EFFECTS OF MARRIAGE:

(1) personal and economic relations bet. the spouses, which become sources of
important. rights and duties;

(2) the legitimacy of sexual union and of the family;

(3) the personal and economic relations bet. parents and children, w/c gives rise
to considerable rights and duties;

(4) the family relationship, from which flow various juridical consequences, such
as impediments to marriage, right to support, and rights to inheritance;

(5) incapacity of the spouses to make donations to each other;

(6) disqualification of the spouses to testify against each other;

(7) modification of crim. liability, such as by way of exemption when one spouse
defends the other from unlawful aggression or is his accessory after the fact, or
 mitigation when the crime is committed in vindication of a grave offense to the
spouse, or aggravation when the injured is the spouse of the offender, such as in
parricide.

Contract to Marry.-- Where parties mutually agree to marry each other at some future
time, there is a contract to marry. xxx It can be distinguished from an ordinary contract
in that the promise of either party cannot be enforced by court action, because the
consent to the actual marriage must be purely voluntary.

Breach of Promise.-- There is repudiation where before the time set for the performance
of the marriage, one party declares that he will not carry it out, or refuses to further
communicate with or maintain a suitor's relation w/ the other party, or puts himself in a
position where he cannot execute the contract, as when he marries another.

Damages for Breach.-- [T]he action for breach of promise to marry has no standing in
the civil law, apart from the right to recover money or property advanced by the plaintiff
upon the faith of such promise." (De Jesus v. Syquia, 58 P 866.)
We believe that an action based purely on breach of the contract to marry, will not lie.
xxx It is true that she may suffer from wounded feelings and mental anguish, and these
are recognized as elements of moral damages under article 2217; but before such
damages can be recovered, there must first be a right of action, and there is no law
granting a right of action on breach of contract to marry. However, we believe that if the
action for damages is based on tort or quasi-delict, or on articles 19, 21, or 22 of the
present Code, there would be a sufficient legal basis or right of action for damages.

Effect of Seduction.-- xxx [I]t is possible legally to base an action upon the carnal
knowledge of the plaintiff. by the def., or upon the seduction, as a fact separate from the
contract to marry. The promise to marry would only be the means of accomplishing the
seduction. If the offended woman has been led to submit to carnal intercourse by the
promise of marriage, she should be entitled to damages, not only on the basis of tort or
quasi-delict, but under the provisions of art. 21. xxx The essence of the action would not
be the breach of the contract, but the tortious or wrongful act or seduction accomplished
through the deceitful promise.

Abuse of right.-- Even when there has been no seduction, we believe that under art. 19,
damages, may under certain circumstances, be recovered against a party who repudiates
a contract to marry; but the basis of the action cannot be the mere breach of contract
itself, but some act constituting an abuse of right.

Unjust enrichment.-- Another legal basis in connection with a breach of contract to

marry is art. 22 on unjust enrichment. xxx Gifts to the person to whom the donor is
engaged to be married are considered legally as conditional, and upon breach of the
engagement by the donee, may be recovered by the donor. (Domalagan v. Bolifer, 33 P
471.)

Oral Agreement.-- Under 1403 "an agreement made in consideration of marriage, other
a mutual promise to marry," shall be unenforceable by action, unless the same, or some
note or memorandum thereof, be in writing, and subscribed the party sought to be
charged. (Statute of Frauds.)

It seems to us that the writing is not necessary in an action for damages for
breach of a contract to marry. First, where the party who sues for damages has already
given the consideration for the promise of the def., it is unjust to deny the action on the
 plea of the Statute of Frauds. Second, the Statute should apply only when the action is to
enforce the contract; but not when it is for damages for breach.

Goitia v. Campos Rueda [35 P 252] –

This is an action for support by G (wife) against R (husband). After 1 mo. of

marriage, R repeatedly demanded from G to perform "unchaste and lascivious acts on
R's genitals." Because of G's refusal, R maltreated G by word and deed, inflicting bodily
injuries on G. To escape R's lewd designs and avoid further harm, G left the conjugal
home and took refuge in her parent's house. G filed an action for support w/ the trial
court. this was dismissed on the ground that R could not be compelled to give support if
G lived outside of the conjugal home, unless there was legal separation G appealed.

HELD: Marriage is something more than a mere contract. It is a new

relation, the rights, duties, and obligations of which rest not upon the agreement of
the parties but upon the general law w/c defines and prescribes those rights, duties,
and obligations. Marriage is an institution, in the maintenance of w/c in its purity
the public is deeply interested. It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any contract they may make. The
reciprocal rights arising from this relation, so long as it continues, are such as the
law determines from time to time and none other. When the legal existence of the
parties is merged into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the benefit of
society as well as the parties. And when the object of a marriage is defeated by
rendering its continuance intolerable to one of the parties and productive of no
possible good to the community, relief in some way should be obtainable.

The law provides that the H, who is obliged to support the wife, may fulfill this
obligation either by paying her a fixed pension or by maintaining her in his own home at
his option. However, the option given by law is not absolute. The law will not permit
the H to evade or terminate his obligation to support his wife if the wife is driven
away from the conjugal home because of the H's own wrongful acts. In this case,
where the wife was forced to leave the conjugal abode because of the lewd designs and
physical assaults of the H, the W may claim support from the H for separate
maintenance even outside of the conjugal home.

MARRIAGE AS CONTRACT AND SOCIAL INSTITUTION:

Tuazon vs CA, 256 SCRA 158

Our Family Law is based on the policy that marriage is not a mere contract,
but a social institution in which the State is vitally interested.

Perido vs Perido, 63 SCRA 97

It is the union (and inviolable social institution) of one man with one woman for
the reciprocal blessings of a domestic home life, and for the birth, rearing, and
education of children. In one case, the Supreme Court ruled that marriage is
also a new relation in the maintenance of which the general public is
interested.

People v. Casao, 220 SCRA 362

The offer of the accused to marry the victim establishes his guilt. As a rule in rape
cases, an offer of marriage is an admission of guilt
People vs. Borromeo,133 SCRA 106, 109 (1984)
Persons living together in apparent matrimony are presumed, in the absence of
any counter-presumption or evidence special to the case, to be in fact married.
The reason is that such is the common order of society, and if the parties were
not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law.

People v. Ignacio, 81 SCAD 138 (1997)

Appellant’s own admission that she was married to the victim was a
confirmation of the semper praesumitur matrimonio and the
presumption that a man and a woman so deporting themselves as
husband and wife had verily acted into a lawful contract of marriage.

ALEJANDRO ESTRADA vs. SOLEDAD S. ESCRITOR

A.M. No. P-02-1651. August 4, 2003.

FACTS:
Soledad S. Escritor, a court interpreter, admittedly while still married to another,
cohabited with Luciano Quilapio, Jr. since 1980, who was himself married to another.
Escritor and Quilapio had a nineteen-year old son. Alejandro Estrada, the private
complainant herein, was not personally related to Escritor nor did he personally know
her. However, he wanted the Court to declare the relationship of Escritor with Quilapio
as immoral in consonance with the pertinent provision of the Administrative Code. In
her defense, Escritor contended that under the rules of the Jehovah's Witnesses, a
religious sect of whom she is a member, the act of signing a Declaration Pledging
Faithfulness, is sufficient to legitimize a union which would otherwise be
classified as adulterous and bigamous. Escritor and Quilapio's declarations are
recorded in the Watch Tower Central office. They were executed in the usual and
approved form prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, "Maintaining Marriage in Honor Before God and Men," in the March
15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. Escritor
alleged that in compliance with the foregoing rules, she and her partner signed the
Declaration Pledging Faithfulness in 1991, and by virtue of such act, they are for
all purposes, regarded as husband and wife by the religious denomination of
which they are devout adherents. Although in 1998 Escritor was widowed, thereby
lifting the legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal impediments for both are
lifted, the couple can already register their marriage with the civil authorities and the
validity of the declarations ceases. The elders in the congregations can then solemnize
their marriage as authorized by Philippine law. In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.

ISSUE:
1. Whether or not respondent's right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.

2. Whether or not respondent should be found guilty of the administrative charge

of “gross and immoral conduct” and be penalized by the State for such conjugal
arrangement.
HELD:
1. While Escritor's cohabitation with Quilapio conforms to the religious beliefs of
the Jehovah's Witnesses, the cohabitation violates Article 334 of the Revised Penal
Code. The State cannot interfere with the religious beliefs of the Jehovah's
Witnesses, in the same way that the Jehovah's Witnesses cannot interfere with
the State's prohibition on concubinage. The free exercise of religion protects
practices based on religious grounds provided such practices do not violate
existing laws enacted in the reasonable exercise of the State's police
power. Under the Revised Administrative Code of 1987, one of the grounds for
disciplinary action is "conduct prejudicial to the best interest of the service." The
penalty for a first offense is suspension of six months and one day to one year. A
second offense is punishable with dismissal from the service. Escritor, however,
deserves the same compassionate treatment accorded to a similarly situated court
employee in De Dios v. Alejo if Escritor should end her unlawful relationship with
Quilapio. In De Dios, the Court, in deciding not to dismiss an employee because he
finally terminated his cohabitation with another woman Given the circumstances, it
would deem unduly harsh to penalize Escritor for cohabiting for the last 23 years with a
man she believes is her husband and she knows is the father of her son. No third party
has claimed or suffered injury because of their cohabitation. On the contrary,
suspending or even dismissing her for her continued cohabitation would only work
hardship on her family. Accordingly, respondent Soledad S. Escritor is suspended for
six months and one day without pay for conduct prejudicial to the best interest of the
service. However, the suspension shall be lifted immediately upon Escritor's
manifestation to this Court that she has ceased cohabiting with Luciano D. Quilapio, Jr.
Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio,
during or after her suspension and while Quilapio's marriage with his legal wife still
subsists, shall merit the penalty of dismissal from the service.

2. A distinction between public and secular morality and religious morality should
be kept in mind. The jurisdiction of the Court extends only to public and secular
morality.

The Court states that our Constitution adheres the benevolent neutrality approach that
gives room for accommodation of religious exercises as required by the Free Exercise
Clause. This benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.

The state’s interest is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. “There is nothing in the
OCA’s (Office of the Court Administrator) memorandum to the Court that demonstrates
how this interest is so compelling that it should override respondent’s plea of religious
freedom. Indeed, it is inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of evidence should be
discharged by the proper agency of the government which is the Office of the Solicitor
General”.

In order to properly settle the case at bar, it is essential that the government be given
an opportunity to demonstrate the compelling state interest it seeks to uphold in
opposing the respondent’s position that her conjugal arrangement is not immoral and
punishable as it is within the scope of free exercise protection. The Court could not
prohibit and punish her conduct where the Free Exercise Clause protects it, since this
would be an unconstitutional encroachment of her right to religious freedom.
Furthermore, the court cannot simply take a passing look at respondent’s claim of
religious freedom but must also apply the “compelling state interest” test.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator.
The Solicitor General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent's claimed religious
belief and practice; (b) to present evidence on the state's "compelling interest" to
override respondent's religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondent's religious
freedom. The rehearing should be concluded thirty (30) days from the Office of the
Court Administrator's receipt of this Decision.

I. REQUISITES OF A VALID MARRIAGE

There are two kinds of requisites, the essential and the formal.

There are three ESSENTIAL REQUISITES:

(1) legal capacity of the contracting parties,

(2) consent freely given and
(3) difference in sex (other commentators opine that this third is already included in
legal capacity.)

on the other hand, there are also 3 FORMAL REQUISITES:

(1) authority of the solemnizing officer,

(2) a valid marriage license and
(3) some form of ceremony.

Distinction.--Absence, Defect, Irregularity of Requisites:

(1) Absence of a requisite, whether essential or formal, renders the M void

Absence means a total want of a requisite. E.g., the total absence of a marriage license
(absence of a formal requisite) which renders the M void.

(2) A defect in the essential requisite makes the M voidable

E.g., where the consent of either party was vitiated by intimidation.

(3) An irregularity in the formal requisite does not affect the validity of the marriage but
this is w/o prejudice to the criminal, civil or administrative liability of erring officials.

E.g., where the marriage license was issued w/o complying w/ the 10-day posting
requirement. (Art. 17, FC.)

1. Difference in Sex (an essential requisite)-- Articles 2 par. 1, 4 par. 1, 39

A. Validity of Marriage – in determining the validity of marriage, it is to be tested by the

law in force at the time the marriage was contracted.

1. Requisites for validity of marriage:

a. Essential requisites:
i. Legal capacity of the contracting parties who must be a male and
a female; and

Legal capacity defined: male or female of the age of 18 years or upwards not under any
of the impediments in Articles 37 (incestuous marriages), 38 void marriages by
reason of public policy). (Art. 5)

ii. Consent freely given in the presence of the solemnizing officer

(Art. 2, FC) – consent of the contracting parties and not their parents should they be
18 years old and up.

b. Formal requisites: (Art. 3)

1. Authority of the solemnizing officer

Authorized solemnizing officers are:

1. incumbent member of the judiciary within the court’s jurisdiction;

2. any priest, rabbi, imam, or minister of any church or religious sect duly authorized
by his church or religious sect and registered with the civil registrar general, acting
within the limits of the written authority granted him;

3. any ship captain or airplane chief only when the marriage is in articulo mortis;

4. any military commander of a unit to which a chaplain is assigned, in the absence of

the latter, during military operation where the marriage is in articulo mortis;

5. any consul-general, consul or vice consul where the marriage is abroad between
Filipino citizens ;

6. mayors (Local Government Code)

Absence of authority of the solemnizing officer- the marriage is void, however, where
either or both of the contracting parties believing in good faith that the solemnizing
officer had the legal authority to do so, the marriage is valid (Art. 35, p. 2)

2. A valid marriage license except where no marriage license is

necessary:

a. marriage in articulo mortis (art. 27)

b. residence of either or both parties are in far areas and no means of transportation
to appear before the local civil registrar; (Art. 28)

c. marriage among Muslims or among members of the ethnic cultural communities,

provided they are solemnized in accordance with their customs, rites, practices; (Art. 33)

d. co-habitation for at least five years and without any legal impediments to marry
each other; (Art. 34)
MARRIAGE LICENSE:

1. Shall be issued by the local civil registrar of the city or municipality where either
contracting party habitually resides. (Art. 9)

2. Local civil registrar shall prepare a notice of the intended marriage of the contracting
parties which must be posted for 10 consecutive days on the bulletin board outside the
office of the local civil registrar which notice shall request all persons having knowledge of
any impediment to the marriage to advice the local civil registrar of the same. (Art. 17)

In case of any impediment known to the local civil registrar or brought to this attention, he
shall note down the same and his findings thereon on the application for a marriage license,
but shall nonetheless issue said license after the completion of the period of publication,
unless ordered otherwise by a competent court at his own instance or that of any interested
party. (Art. 18)

3. The license shall be valid in any part of the Philippines for a period of 120 days from the
date of issue, and shall be deemed automatically cancelled at the expiration of said period if
the contracting parties have not made use of it. (Art. 20)

4. A marriage ceremony which takes place with the appearance of the contracting parties
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witness of legal age.

Note that “No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary however, contracting parties to appear personally before the
solemnizing officer and declare in the presence of not less than two witnesses of legal age
that they take each other as husband and wife.” (Art. 6)

“The marriage shall be solemnized publicly in the chambers of the judge, or in open
court, in the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul as the case may be, , and not elsewhere, except in the cases of marriage
contracted at the point of death or in remote places, x x x or where both of the parties
request x x x in writing in which case the marriage may be solemnized at a house or
place designated by them xx x” (Art. 8)

Effect of absence or defect in any of the requisites:

a. The absence of any of the essential or formal requisites shall render the marriage
void (Art. 4)

Note: Case of NAVARRO VS. DOMAGTOY, July 19, 1996 where the court held
that “where judge solemnizing a marriage outside his court’s jurisdiction, there is a
resultant irregularity in the formal requisite, which, while it may not affect the validity
of the marriage, may subject the officiating official to administrative liability.”

Complainant Mayor Rodolfo Navarro of Dapa, Surigao del Norte filed this case in
the Supreme Court against respondent Judge Henando Domagtoy of MCTC of Monica-
Burgos, Surigao del Norte, for gross misconduct as well as inefficiency and ignorance of
the law.

First, on Sept. 24, 1994, Judge Domagtoy solemnized the marriage of Gaspar
Tagadan and Arlyn Borja despite his knowledge that Tagadan was merely separated
from his wife. Second, he performed a marriage ceremony between Floriano Sumaylo
and Gemma del Rosario in October 1994 at respondent judge’s residence in Dapa, SDN.
As to the first, Domagtoy contended that he merely relied on the affidavit issued by
the RTC Judge of Bassey, Samar, which stated that Tagadan and his wife have not seen
each other for almost seven years. However, the certified true copy of the marriage
contract between Tagadan and Borja showed that his civil status was “separated”.

ISSUE:
(1) Whether or not a court may solemnize another marriage of a husband who was
merely separated from his wife for almost seven years.
(2) Whether or not a Judge may solemnize a marriage at his residence.

HELD:
(1) Article 41 of the Family Code expressly provides that a marriage contracted by
any person during the subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage the prior spouse had been absent for
four consecutive years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under
the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in the
Code for the declaration of presumptive death. Absent this judicial declaration, he remains
to be married to Penñ aranda. Wittingly or unwittingly, it was manifest error on the
part of respondent judge to have accepted the joint affidavit submitted by Tagadan.
Such neglect or ignorance of the law has resulted in a bigamous and therefore void
marriage.

(2) Art. 7. A marriage may be solemnized by (1) any incumbent member of the
judiciary within the court’s jurisdiction xxx . Article 8, however, states that marriages shall
be solemnized publicly in the chambers of the judge or in open court, in the church, chapel
or temple, or in the office of the consul-general, consul or vice consul, as the case may be,
and not elsewhere, except in cases of marriages contracted on the point of death or in
remote places in accordance with Art. 29 of the Family Code, or where both parties
manifest in writing in which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.

There is no pretense that neither Sumaylo or del Rosario were at the point of
death or in a remote place. Moreover, the written request presented addressed to the
respondent judge is the “authority of the solemnizing officer”. Under Art. 8, which is
only a discretionary provision, refers only to the venue of the marriage ceremony
and does not alter or qualify the authority of the solemnizing officer as provided in
the preceding provision.

Judges who are appointed to specific jurisdiction may officiate in marriages

only within said areas and not beyond. Where a judge solemnizes a marriage
outside his court’s jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3 which while it may not affect the validity of the
marriage, may subject the officiating official to administrative liability.
 Copies of the certificates must be transmitted, not later than fifteen (15) days after
the marriage, to the local civil registrar of the place where the marriage was solemnized.
Proper receipts shall be issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate.

There is no justification for missing records save fortuitous events. However, the
records show that the loss was occasioned by carelessness on respondent Judge’s part.

Judge Domagtoy was suspended for six months for demonstrating gross ignorance
of the law.

b. A defect in any of the essential requisites shall render the marriage

voidable; (Art. 4, par. 2)

c. An irregularity in the formal requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable. (Art. 4 par. 3)

2. LEGAL CAPACITY re must be a male and a female

Question of SEX CHANGE

 Silverio vs. Republic 537 SCRA 373, October 19, 2007 (Sex Change)

When is a man a man and when is a woman a woman? In particular does the
law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a person’s sex? May a person successfully petition for
a change of name and sex appearing in the birth certificate to reflect the result of
a sex reassignment surgery?”

“Petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of
his first name and sex in his birth certificate before the RTC. Petitioner alleged
that he is a male transsexual, that is, ‘anatomically male but feels, thinks and acts
as a female’ and that he had always identified himself with girls since childhood.
Feeling trapped in a man’s body, x x x His attempts to transform himself to a
‘woman’ culminated on January 27, 2001 when he underwent sex reassignment
surgery in Bangkok, Thailand. He then lived as a female and was engaged to be
married. The court granted the petition for change of name to Mely and gender
from ‘male’ to ‘female.’ The OSG filed a petition before the CA alleging that
there is no law allowing the change of entries in the birth certificate by reason of
sex alteration. The CA rendered a decision in favor of the Republic and set aside
the decision of the trial court.

SUPREME COURT RULING:

1. A person’s first name cannot be changed on the ground of sex

reassignment.

A change of name does not alter one’s legal capacity or civil status. RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in the
 civil registry and the public interest. Before a person can legally change
his given name, he must present proper or reasonable cause or any
compelling reason justifying such. In addition, he must show that he will
be prejudiced by the use of his true and official name. In this case, he
failed to show, or even allege, any prejudice that he might suffer as a
result of using his true and official name.

2. No law allows the change of entry in the birth certificate as to sex on

the ground of sex reassignment.

Sec. 2© of RA 9048 defines what a “clerical or typographical error “ is.

Which refers to a mistake committed in the performance of clerical work
in writing, copying, transcribing or typing an entry in the civil register
that is harmless and innocuous such as misspelled name or misspelled
place of birth or the like which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to
other existing record or records: Provided, however, that no correction
must involve the change of nationality, age, status or sex of the petitioner.
Under RA 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change
for which the applicable procedure is Rule 108 of the Rules of Court in
relation to Article 412 of the Civil Code as well as Articles 407 and 408
of the same code. However, no reasonable interpretation of the
provision can justify the conclusion that it covers the correction on the
ground of sex reassignment. To correct, simply means “to make or set
right; to remove the faults or error from’ while to change means to
“replace something with something else of the same kind or with
something that serves as a substitute.” The birth certificate of petitioner
contained no error.

A person’s sex is an essential factor in marriage and family relations. It

is a part of a person’s legal capacity and civil status. X x x But there is
no such law in the Phils. Governing sex reassignment and its effects.

The sex of a person is determined at birth, visually done by the birth

attendant by examining the genitals of the infant. Considering that there
is no law legally recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not attended by error,
is immutable.

The changes sought by petitioner will have serious and wide-ranging

legal and public consequences. X x x However, marriage, one of the
most sacred social institutions, is a special contract of permanent union
between a man and a woman. One of its essential requisites is the legal
capacity of the contracting parties who must be a male and a female. To
grant the changes sought by petitioner will substantially reconfigure and
greatly alter the laws on marriage and family relations. It will allow the
union of a man with another man who has undergone sex reassignment.

3. Neither may entries in the birth certificate as to first name or sex be

changed on the ground of equity
 “The remedies petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.”

Change of name- The State has an interest in the names borne by individuals
and entities for purposes of identification. A change of name is a
privilege, not a right. Petitions for change of name are controlled by
statutes. Article 376 of the Civil Code provides that no person can
change his name or surname without judicial authority.

Clerical Error Law (RA 9048) - RA 9048 now governs the change of first
name. It vests the power and authority to entertain petitions for change
of first name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over applications for
change of first name is now primarily lodged with the said administrative
officers. The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Rules
of Court, until and unless administrative petition for change of name is
first filed and subsequently denied.

When God created man, He made him in the likeness of God; He created them
male and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North Wind! North Wind! Please let us
out!," the voices said. She pecked the reed once, then twice. All of a sudden,
the bamboo cracked and slit open. Out came two human beings; one was a
male and the other was a female. Amihan named the man "Malakas" (Strong)
and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the
law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a person’s sex? May a person successfully petition for
a change of name and sex appearing in the birth certificate to reflect the result
of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a

petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No.
02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of
live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s body, he consulted several
doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.
Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in
fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed from
"Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s
Journal Tonight, a newspaper of general circulation in Metro Manila, for three
consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established.

No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz,
Jr. and his American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its
relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more
in consonance with the principles of justice and equity. With his sexual
[re-assignment], petitioner, who has always felt, thought and acted like a
woman, now possesses the physique of a female. Petitioner’s misfortune
to be trapped in a man’s body is not his own doing and should not be in
any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness
on the part of the petitioner and her [fiancé] and the realization of their
dreams.

Finally, no evidence was presented to show any cause or ground to deny the
present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and

ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from
"Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG,
filed a petition for certiorari in the Court of Appeals. 6 It alleged that there is no
law allowing the change of entries in the birth certificate by reason of sex
alteration.

On February 23, 2006, the Court of Appeals 7 rendered a decision8 in favor of the
Republic. It ruled that the trial court’s decision lacked legal basis. There is no
law allowing the change of either name or sex in the certificate of birth on
the ground of sex reassignment through surgery. Thus, the Court of
Appeals granted the Republic’s petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207. Petitioner
moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex

Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change
of name and sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex. (emphasis
supplied)

Petitioner believes that after having acquired the physical features of a female,
he became entitled to the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities
for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes. 13 In this
connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial
authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of

First Name or Nickname. – No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with
the provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name. 14 It vests the power and
authority to entertain petitions for change of first name to the city or municipal
civil registrar or consul general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative petition for change of name is
first filed and subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.

RA 9048 likewise provides the grounds for which change of first name may be
allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The petition
for change of first name or nickname may be allowed in any of the following
cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used
by the petitioner and he has been publicly known by that first name or nickname
in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he
thought he transformed himself into through surgery. However, a change of
name does not alter one’s legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the civil registry
and the public interest.

Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. 19 In addition,
he must show that he will be prejudiced by the use of his true and official
name.20 In this case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of
petitioner’s first name was not within that court’s primary jurisdiction as the
petition should have been filed with the local civil registrar concerned, assuming
it could be legally done. It was an improper remedy because the proper remedy
was administrative, that is, that provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had no merit since
the use of his true and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far
as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On

the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal

issue and the court must look to the statutes. 21 In this connection, Article 412 of
the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected

without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA
9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings
and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such
errors.22 Rule 108 now applies only to substantial changes and corrections
in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall
mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other
existing record or records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner. (emphasis
supplied)

Under RA 9048, a correction in the civil registry involving the change of

sex is not a mere clerical or typographical error. It is a substantial change
for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the
Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.25 However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error
from" while to change means "to replace something with something else of the
same kind or with something that serves as a substitute." 26 The birth certificate
of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is
necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages, naturalization and deaths)
and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences
that touch upon the legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast, sex reassignment is
not among those acts or events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum
total of capacities and incapacities) of a person in view of his age, nationality
and his family membership.27

The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at his
own will, such as his being legitimate or illegitimate, or his being married or not.
The comprehensive term status… include such matters as the beginning and
end of legal personality, capacity to have rights in general, family relations, and
its various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is

a part of a person’s legal capacity and civil status. In this connection,
Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.

But there is no such special law in the Philippines governing sex

reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the

physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local civil registrar not later than
thirty days after the birth, by the physician or midwife in attendance at the birth
or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born;
and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth. 29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not attended by
error,30is immutable.31

When words are not defined in a statute they are to be given their common and
ordinary meaning in the absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a female" 32 or
"the distinction between male and female." 33 Female is "the sex that produces
ova or bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in
everyday understanding do not include persons who have undergone sex
reassignment. Furthermore, "words that are employed in a statute which had at
the time a well-known meaning are presumed to have been used in that sense
unless the context compels to the contrary." 36 Since the statutory language of
the Civil Register Law was enacted in the early 1900s and remains unchanged,
it cannot be argued that the term "sex" as used then is something alterable
through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be

Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the
principles of justice and equity. It believed that allowing the petition would cause
no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioner’s first step towards his eventual marriage to
his male fiancé. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the
changes sought by petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It will allow the union of a
man with another man who has undergone sex reassignment (a male-to-
female post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code40 and
the presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court,41 among others. These laws underscore the public policy in
relation to women which could be substantially affected if petitioner’s petition
were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage
in judicial legislation. The duty of the courts is to apply or interpret the
law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to

do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name
and for correction or change of entries in the civil registry, where they may be
 filed, what grounds may be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to confer on a
person who has undergone sex reassignment the privilege to change his
name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of
that privilege.

It might be theoretically possible for this Court to write a protocol on when a

person may be recognized as having successfully changed his sex. However,
this Court has no authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can only apply or interpret
the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of

happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life
is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not by
the courts.

WHEREFORE, the petition is hereby DENIED.

2. Kinds of Requisites, Arts. 2-3

Art. 2. No marriage shall be valid, unless these essential requisites are

present:

(1) Legal capacity of the contracting parties who must be a male and a
female;

(2) Consent freely given in the presence of the solemnizing officer.

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of
this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.

The phrase "who must be a male and a female" was not found in the NCC.

Art. 4. The absence of any of the essential or formal requisites shall

render the marriage void ab initio, except as stated in Article 35 (2). Xxx

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. Xxx

2. Some Form of Ceremony (a formal requisite.)-- Articles 3 par. 3, 4 par.

1, 6
Art. 3. The formal requisites of marriage are:
xxx
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.

Ceremony of Marriage.-- The requirement of a marriage ceremony

prevents the recognition in the Philippines of what are known as
"common law marriages." A common law marriage is a present agreement
bet. a man and a woman with capacity to enter into such relationship, to
take each other as H and W, followed by cohabitation.

3. Effect of absence of requisites, Art. 4

Art. 4. The absence of any of the essential or formal requisites shall

render the marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall render the marriage

VOIDABLE as provided in article 45.

An irregularity in the formal requisites shall not affect of the marriage

but the party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable.

4. Essential – Art. 5
a. Age, Art. 5

Art. 5. Any male or female of the age of eighteen years or upwards

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

5. Ceremony, Art. 6

Art. 6. No prescribed form or religious rite for the solemnization of the

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

In case of a marriage in articulo mortis, when the party at the point of

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

Requisites of some form of ceremony:

(1) Personal appearance of the contracting parties in the presence of the
solemnizing officer. This rules out proxy marriages.

(2) The declaration that they declare in some manner that they take each
other as H & W. This provision is worded broadly. There is no set formula
for the declaration, no particular words are required. It does not even
have to be oral provided that there is sufficient manifestation of their
will that they take each other as H & W.

(3) Presence of at least 2 witnesses of legal age. Some say that the
absence of this 3rd requisite renders the marriage void. Others say it is
only an irregularity.

It is not necessary to the validity of the marriage that the contracting

parties should recite precisely the words of the statute. It is enough that
the words employed evidence mutual consent.

Martinez v. Tan [12 P 731] -- Plaintiff. Rosalia Martinez commenced this

action for the cancellation of the cert. of marriage and for damages.
Plaintiff claimed that what took place before the justice of the peace did
not constitute a legal marriage under Gen. Orders No. 68, Sec. 6, "No
particular form for the ceremony of marriage is required, but the parties
must declare, in the presence of the person solemnizing the marriage,
that they take each other as husband and wife." CFI found for defendant.

HELD: The parties addressed a signed petition to the justice of the peace
stating that they had agreed to marry, and asking the justice of the
peace to marry them. Before the justice of the peace, they stated under
oath that they ratified the contents of their petition and insisted on
what they asked for. This statement was signed by them, in the presence
of witnesses that they produced. A certificate was then made out by the
justice of the peace, signed by him and the witnesses, stating the parties
had been married by him. Both the parties knew the contents of the
document w/c they signed. Under the circumstances, what took place
before the justice of the peace amounted to a marriage.

Failure to Sign or Issue Certificate.-- The certificate is merely of

evidentiary value, and failure to sign the same does not render the
marriage a nullity. The consent can be proved by other competent
evidence, such as the testimony of the solemnizing officer, of the parties
themselves, of the witnesses to the marriage, and of others present at
the wedding.

6. Formal – Arts. 7, 31, 32

Art. 8. The marriage shall be solemnized publicly in the chambers of the

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

Sempio-Dy: This provision is only directory, not mandatory, so that non-

compliance therewith will not invalidate the marriage.

SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)] - The mere fact
that the marriage took place on a Sunday also would not necessarily
vitiate the marriage on the ground that it constitutes a violation of the
requirement that the marriage shall be solemnized publicly in the office
of the judge in open court.

3. Legal Capacity (an essential requisite.)-- Art. 2 par. 1

Art. 2. No marriage shall be valid, unless these essential requisites are

present:
(1) Legal capacity of the contracting parties who must be a male and a
female; xxx
a. Age.-- Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39

Art. 5. Any male or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37 and 38, may
contract marriage.

Age of Consent.-- The age for each party provided in Art. 5 is generally
known as the "age of consent." for marriage. Eighteen yrs is the "age of
consent" because below this age, a party to a marriage cannot give a
binding valid consent. 18 yrs. old is an absolute minimum.

Age of Legal Capacity.-- For a perfect consent that would result in a valid
binding marriage, the parties should be 21 yrs. of age. The age of 21 is,
thus, the "age of legal capacity" to marry.

Effect of Penal Law.-- Under Art. 344, RPC, the marriage of the offender
with the offended party shall extinguish the criminal action or remit the
penalty already imposed upon him.

Q: If the victim of the crimes of rape, seduction, abduction, and acts of

lasciviousness happens to be a girl less than 18 yrs. old, can she validly
marry the offender?

A: We believe that she can. It is submitted that the circumstances

contemplated by the RPC are of an exceptional character, and should be
considered as an exception to the provisions of the FC on the legal
capacity to marry. xxx If merely because she is below the age of consent
she will not be permitted to marry the offender, then we will have the
absurd case where the law gives a remedy w/ one and denies it w/ the
other hand.

7. SOLEMNIZING AUTHORITY, ART. 7-8, 10

“Any incumbent member of the judiciary within the court’s jurisdiction”

 NAVARRO VS. DOMAGTOY, 259 SCRA 129 (July 19, 1996)
Administrative Matter in the Supreme Court. Gross Misconduct and Inefficiency

Complaint of Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro

against Municipal Circuit Trial Court Judge Hernando Domagtoy.

1. On Sept. 27, 1994, respondent judge solemnized a wedding despite

knowledge that the groom is merely separated from his first wife without
securing a declaration of presumptive death of the absent spouse; judge
solemnized the marriage on the basis merely of an affidavit of two persons that
the absent spouse (wife) has not been heard of for the past seven years from the
time she left the husband and their children; and

2. The respondent judge performed a marriage ceremony outside his court’s

jurisdiction on October 27, 1994. The wedding having been solemnized at the
respondent judge’s residence which does not fall within his jurisdictional area.

SC held:
1. First ground of complaint:

Art. 41 FC provides the institution of a summary proceeding of

presumptive death of the absent spouse

“Even if the spouse present has a well-founded belief that the absent
spouse was already dead, a summary proceeding for the declaration of
presumptive death is necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely incorporated in the Family
Code to discourage subsequent marriages where it is not proven that the previous
marriage has been dissolved or a missing spouse is factually or presumptively
dead, in accordance with pertinent provisions of law.”

2. Second ground of complaint:

Art. 7 IRT to Art. 8 of the Family Code.

Respondent judge points to Article 8 and its exceptions as the

justification for his having solemnized the marriage outside his court’s
jurisdiction. Art. 8 of the FC that marriage can be held outside of the judge’s
chambers or courtroom only in the following instances:
1. at the point of death,
2. in remote places in accordance with Art. 29, or
3. upon request of both parties in writing in a sworn statement to this
effect

The marriage solemnized by the respondent judge does not fall under the first 2
exceptions and the written request presented addressed to the respondent judge
was made by only one party to the marriage (Gemma del Rosario)

Art. 7 no.1 – the elementary principle underlying this provision is the authority
of the solemnizing judge. Under Art. 3, one of the formal requisites of marriage
is the “authority of the solemnizing officer.” Under Art. 7, marriage may be
solemnized by, among others, any incumbent member of the judiciary within the
court’s jurisdiction.” Article 8, which is a directory provision, refers only to the
 venue of the marriage ceremony and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding provision. Non-compliance
herewith will not invalidate the marriage.

A priest who is commissioned and allowed by his local ordinary to marry the
faithful, is authorized to do so only within the area of the diocese or place
allowed by his Bishop. An appellate court Justice or a Justice of this Court has
jurisdiction over the entire Philippines to solemnize marriages, regardless of the
venue, as long as the requisites of the law are complied with. However, judges
who are appointed to specific jurisdictions, may officiate in weddings only
within said areas, and not beyond. Where a judge solemnizes a marriage outside
his court’s jurisdiction, there is a resultant irregularity in the formal requisite laid
down in Art. 3, which while it may not affect the validity of the marriage, may
subject the officiating official to administrative liability.

Respondent judge demonstrated a lack of understanding of the basic principles

of civil law. Respondent judge was suspended with a stern warning.

 BESO VS. DAGUMAN, 323 SCRA 566, January 28, 2000

Administrative Matter. Neglect of Duty and Abuse of Authority

Respondent Judge Juan J. Daguman, Jr. was charged with solemnizing a

marriage outside of his jurisdiction and of negligence in not retaining a copy
and not registering the marriage contract with the office of the Local Civil
Registrar. Marriage was solemnize in the residence of respondent judge.

Respondent judge answered that the marriage was solemnized outside of his
territory because he was physically indisposed and unable to report to his court.
The contracting parties came to his residence urgently requesting the celebration
of their marriage, because complainant had to leave the following day for
abroad, they already had their witnesses with them, to go to another place would
entail added expenses and when she leaves for abroad it will take a long time
before she returns such that their marriage license would lapse.

Respondent judge answered that he believed in good faith that by solemnizing

the marriage right then and there he was leaning on the side of liberality of the
law so that it may not be too expensive and complicated for citizens to get
married.

SC held that respondent judge was not clothed with authority to solemnize a
marriage in the city of Calbayog and cited the case of Navarro vs.
Domagtoy:

Thus respondent Judge should be reminded that a priest who is

commissioned and allowed by his ordinary to marry the faithful,
is authorized to do so only within the area of the diocese or place
allowed by his Bishop. An appellate court justice or a Justice of
this Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, Judges who
are appointed to specific jurisdictions may officiate in weddings
 only within said areas and not beyond. Where a judge solemnizes
a marriage outside his court’s jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Article 3, which
while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability.

Considering that respondent Judges jurisdiction covers the municipality

of Sta. Margarita-Tarangan-Pagsanjan, Samar only, he was not clothed
with authority to solemnize a marriage in the City of Calbayog

A judge must also observe extra precautions to ensure that the event is properly
documented in accordance with Art. 23 of the FC. The loss of the documents
were due to the carelessness of the judge.

Respondent judge was fined with a stern warning that a repetition of the same or
similar infractions will be dealt with more severely.

 ARANES VS. OCCIANO, 380 SCRA 402, April 11, 2002

Administrative Mater for gross ignorance of the law.

Complaint that the respondent judge solemnized the marriage of complainant

without the requisite marriage license and outside of his territorial
jurisdiction. Since the marriage was a nullity, complainant was deprived of her
right to inherit the “vast properties” left by her spouse since she was not
recognized as the spouse.

Respondent judge answered that he had scheduled the solemnization of the

marriage in his sala but was informed that the groom had a difficulty walking
and could not stand the rigors of traveling. It was requested that respondent
judge solemnize the marriage instead in Nabua, to which request he acceded.

He answered that when he found out there was no marriage license he refused to
solemnize the marriage and suggested it be reset but due to the earnest pleas of
the parties, the influx of visitors , and the delivery of provisions for the occasion,
he proceeded to solemnize the marriage out of human compassion. Also because
he feared that if he resets the wedding, it might aggravate the physical condition
of Orobio who just suffered from a stroke. He admonish the parties to give him
the marriage license thereafter.

SC : Under the Judiciary Reorganization Act of 1980, or B.P. 129, the authority
of the regional court judges and judges of inferior courts to solemnize marriages
is confined to their territorial jurisdiction as defined by the Supreme. The SC
went on to cite the case of Navarro vs. Domagtoy.

The next line of the case, was that the SC ruled to suspend the respondent judge
for 6 months on the ground that he act of solemnizing a marriage outside of his
jurisdiction constitutes gross ignorance of the law.

Respondent judge should also be faulted for “solemnizing a marriage without the
requisite marriage license. In People vs. Lara, we held that a marriage which
preceded the issuance of the marriage license is void, and that the
 subsequent issuance of such license cannot render valid or even add an iota
of validity to the marriage. Except in cases provided by law, it is the marriage
license that gives the solemnizing officer the authority to solemnize a marriage.
Respondent judge did not possess such authority when he solemnized the
marriage of petitioner. In this respect, respondent judge acted in gross ignorance
of the law,”

NOTE: all these cases are administrative cases against a judge. The issue before the
Supreme Court was the noncompliance of the law or irregularities in the performance of
the judge’s duties. The validity of the marriage here was not the main issue before the
Supreme Court. Are the decisions regarding solemnization of the marriage merely an
obiter dictum then.

a. Exceptions – Art. 35 (2)

5. Authority of Solemnizing Officer.-- Articles 3 par. 1, 4 par. 1, 7, 10, 31,
32, 35 par. 2

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

xxx

Tolentino: Authority of the solemnizing officer.-- Q: Would a marriage be void for want
of authority of the solemnizing officer entered into under the NCC, now be considered
validated under the FC, if either or both parties believed in good faith that such officer
had the legal authority to solemnize the marriage?

A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance w/ the NCC or other
laws." The present FC may be given a curative or remedial effect and validate the
marriage in question.

Art. 4. The absence of any of the essential or formal requisites shall

render the marriage void ab initio, except as stated in Article 35 (2).
Xxx

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's

jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with the
civil registrar general, acting within the limits of the written authority
granted him by his church or religious sect and provided that at least one
of the contracting parties belongs to the solemnizing officer's church or
religious sect;
(3) Any ship captain or airplane chief only in the cases mentioned in
Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in
the absence of the latter, during a military operation, likewise only in the
cases mentioned in Article 32; or
 (5) Any consul-general, consul or vice-consul in the case provided in
Article 10.

NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b) (1)
(xviii)], mayors have again been given the authority to solemnize marriages.

Sempio-Dy: Members of the Judiciary.-- The jurisdiction of the members of the SC, the
CA, the Sandiganbayan, and the Court of Tax Appeals to solemnize marriages is the
entire country, w/c is their territorial jurisdiction.
The jurisdiction of the RTC judges and judges of MTCs to solemnize marriages is their
territorial jurisdiction as defined by the SC.

REQUISITES FOR AUTHORITY OF PRIEST OR MINISTER:

(1) He must be registered in the office of the Civ. Registrar General;

(2) he must have a written authority to solemnize marriages given by his church
or religious sect;
(3) he must act w/in the limits of such authority; and
(4) at least one of the contracting parties must belong to the solemnizing officer's
church or religious sect.

PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)] - A marriage performed by a
minister whose authority to solemnize a marriage has expired is void ab initio.

Ship Captains, Airplane Chiefs, Military Commanders.-- These officers can

solemnize only one kind of marriage-- a marriage in articulo mortis or at the point of
death.

Art. 31. A marriage in articulo mortis between passengers or crew members may
also be solemnized by a ship captain or by an airplane pilot not only while the ship
is at sea or the plane is in flight, but also during stopovers at ports of call.

Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who may not
be the captain or chief. We believe the controlling designation is "airplane chief." It is
the head of the crew and who has the command of the airplane who must be deemed to
have been given by law the authority to solemnize marriages.

Art. 32. A military commander of a unit, who is a commissioned officer, shall

likewise have authority to solemnize marriages in articulo mortis between persons
within the zone of military operations, whether members of the armed forces or
civilians.

Consul-generals, Consuls, Vice-consuls.-- An ambassador, even if he is the head of a

diplomatic mission, has no authority to solemnize marriage. The reason for this is that,
while an ambassador takes care of the relations between the Philippines and the country
to w/c he is assigned, the consuls take care of matters affecting Filipino citizens in the
area of their responsibility.

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a

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

Art. 35. The following marriages shall be void from the beginning:
xxx

(2) Those solemnized by any person not legally authorized to perform marriages unless
church marriages were contracted with either or both parties believing in good faith that
the solemnizing officer had the legal authority to do so;
xxx

8. License Required – Arts 3 (2), 9, 11, 20, 26

Marriage License (a formal requisite.)-- Articles 3 par. 2, 4 pars 1 & 3, 35

par. 3, 9 to 21 with exceptions in 27 to 34

Art. 3. The formal requisites of marriage are:

xxx

(2) A valid marriage license except in the cases provided for in Chapter 2
of this Title; xxx

Art. 4. The absence of any of the essential or formal requisites shall

render the marriage void ab initio, except as stated in Article 35 (2).
xxx

An irregularity in the formal requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable.

COSCA V. PALAYPAYON, JR. [237 S 249 (1994)] Complainants allege that

respondent judge solemnized marriages even w/o the requisite marriage
license. Thus, several couples were able to get married by the simple
expedient of paying the marriage fees to resp. Baroy, Clerk of Court II of
the Mun. Trial Court of Tinambac, Camarines Sur, despite the absence of
a marriage license. xxx. As a consequence, their marriage contracts did
not reflect any marriage license. In addition, resp. Judge did not sign
their marriage contracts and did not indicate the date of solemnization
the reason being that he allegedly had to wait for the marriage license to
be submitted by the parties w/c was usually several days after the
ceremony. Indubitably, the marriage contracts were not filed w/ the local
civil registrar.

HELD: On the charge regarding illegal marriages, the FC pertinently

provides that the formal requisites of marriage, inter alia, a valid
marriage license except in the cases provided for therein.
Complementarily, it declares that the absence of any of the essential or
formal requisites shall generally render the marriage void ab initio and
that, while an irregularity in the formal requisites shall not affect the
validity of the marriage, the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.
MARRIAGE LICENSE
Arts. 9-34 Family Code ; PD 965 (1976)

CASES WHERE MARRIAGE WAS SOLEMNIZED WITHOUT A MARRIAGE

LICENSE:

 REPUBLIC VS. CA, 236 257

“At the time the subject marriage was solemnized on June 24, 1970, the law
governing marital relations was the New Civil Code. The law, provides that no
marriage shall be solemnized without a marriage license first issued by a local
civil registrar. Being one of the essential requisites of a valid marriage, absence
of a license would render the marriage void ab initio.”

Defined SECRET MARRIAGE – a legally non-existent phrase but ordinarily

used to refer to a civil marriage celebrated without the knowledge of the relatives
and/or friends of either or both of the contracting parties.

 MORENO VS. MORENO, 246 SCRA 120, JULY 14, 1995

Where a judge solemnizes a marriage in the absence of a marriage license

Administrative Case against the judge.

“Respondent, by his own admission that he solemnized the marriage between

complainant and Marcelo Moreno without the required marriage license, has
dismally failed to live up to his commitment to be the ‘embodiment of
competence, integrity and independence’ and to his promise to be ‘faithful to the
law.’

Respondent cannot hide behind his claim of good faith and Christian motives
which, at most, would serve only to mitigate his liability but not exonerate him
completely. Good intentions could never justify violation of the law
Citing the case of Cosca, et al. v. Palaypayon, Jr., et al. (A.M. No. MTJ-92-721,
Sept. 30, 1994)

“On the charge regarding illegal marriages the Family Code pertinently provides
that the formal requisites of marriage are, inter alia, a valid marriage license
except in the cases provided for therein. Complementarily, it declares that the
absence of any of the essential or formal requisites shall render the marriage
void ab initio and that, while an irregularity in the formal requisites shall not
affect the validity of the marriage, the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.

X x x. The Revised Penal Code provides that ‘priests or ministers of any

religious denomination or sect, or civil authorities who shall perform or
authorize any illegal marriage ceremony shall be punished in accordance with
the provisions of the Marriage Law.’ This is of course, within the province of the
prosecutorial agencies of the Government.”

ALCANTARA VS. ALCANTARA 531 SCRA 446 (Marriage License)

 The marriage having been solemnized on 8 December 1982, or prior to the effectivity of
the Family code, the applicable law to determine its validity is the civil Code which was
the law in effect at the time of its celebration.

A valid marriage license is a requisite of marriage under Article 53 of the Civil

Code, the absence of which renders the marriage void ab initio.

To be considered void on the ground of absence of a marriage license, the

law requires that the absence of such marriage license must be apparent on the
marriage contract or at the very least, supported by a certification from the local
civil registrar that no such marriage license was issued to the parties. Certification
issued by the civil registrar enjoys the presumption that official duty has been
regularly performed and the issuance of the marriage license was done in the
regular conduct of official business.

Issuance of a marriage license in a city or municipality, not the residence of

the contracting parties, and issuance of a marriage license despite the absence of
publication are considered mere irregularities that do not affect the validity of the
marriage. An irregularity in any of the formal requisites of marriage does not
affect its validity but the party or parties responsible for the irregularity are civilly,
criminally, and administratively liable.

 All authorized solemnizing officer enumerated under the law including a mayor
can solemnize a marriage in articulo mortis

 Articles 29-30 of the Family Code- merely DIRECTORY requirements. Non-

compliance of the same will not affect the validity of the marriage, for as long as all
other requirements of law are present. However under the Marriage Law of 1920 – a
solemnizing officer who solemnized a marriage in articulo mortis without complying
with his duties under the Family Code is criminally liable.

 Muslims are governed by the Code of Muslim Personal Laws of the Philippines
which does not require securing a marriage license prior to contract marriage. Other
ethnic groups, however, must comply with all other essential and formal requisites i.e.
authority of the solemnizing officer.

Cohabitation for Five Years, no need for a marriage license, provided:

Ninal vs. Bayadog (Mar. 14, 2000, 328 SCRA 122):

This involved two marriages contracted prior to the effectivity of the Family Code. The
Supreme Court held that there must be no such legal impediment during the whole five
year period pursuant to Article 76 of the Civil Code.

Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their
marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death
on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito
and respondent Norma Badayog got married without any marriage license. In lieu
thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that
they had lived together as husband and wife for at least five years and were thus exempt
from securing a marriage license. On February 19, 1997, Pepito died in a car accident.
After their father’s death, petitioners filed a petition for declaration of nullity of the
marriage of Pepito to Norma alleging that the said marriage was void for lack of a
marriage license. The case was filed under the assumption that the validity or invalidity
of the second marriage would affect petitioners successional rights. Norma filed a
motion to dismiss on the ground that petitioners have no cause of action since they are
not among the persons who could file an action for "annulment of marriage" under
Article 47 of the Family Code.

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59,
dismissed the petition after finding that the Family Code is "rather silent, obscure,
insufficient" to resolve the following issues:

(1) Whether or not plaintiffs have a cause of action against defendant in asking for the
declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of this instant suit, their father Pepito G. Nial
is already dead;

(2) Whether or not the second marriage of plaintiffs deceased father with defendant is
null and void ab initio;

(3) Whether or not plaintiffs are estopped from assailing the validity of the second
marriage after it was dissolved due to their fathers death.

Thus, the lower court ruled that petitioners should have filed the action to declare null
and void their father’s marriage to respondent before his death, applying by analogy
Article 47 of the Family Code which enumerates the time and the persons who could
initiate an action for annulment of marriage. Hence, this petition for review with this
Court grounded on a pure question of law. Sc m

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of
the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis
of petitioners averment that the allegations in the petition are true and correct." It was
thus treated as an unsigned pleading which produces no legal effect under Section 3,
Rule 7, of the 1997 Rules. However, upon motion of petitioners, this Court reconsidered
the dismissal and reinstated the petition for review.

The two marriages involved herein having been solemnized prior to the effectivity of the
Family Code (FC), the applicable law to determine their validity is the Civil Code which
was the law in effect at the time of their celebration. A valid marriage license is a
requisite of marriage under Article 53 of the Civil Code, the absence of which renders
the marriage void ab initio pursuant to Article 80(3) in relation to Article 58. The
requirement and issuance of marriage license is the States demonstration of its
involvement and participation in every marriage, in the maintenance of which the
general public is interested. This interest proceeds from the constitutional mandate
that the State recognizes the sanctity of family life and of affording protection to
the family as a basic "autonomous social institution." Specifically, the Constitution
considers marriage as an "inviolable social institution," and is the foundation of family
life which shall be protected by the State. This is why the Family Code considers
marriage as "a special contract of permanent union" and case law considers it "not just
an adventure but a lifetime commitment."

However, there are several instances recognized by the Civil Code wherein a marriage
license is dispensed with, one of which is that provided in Article 76, referring to the
marriage of a man and a woman who have lived together and exclusively with each
other as husband and wife for a continuous and unbroken period of at least five years
before the marriage. The rationale why no license is required in such case is to avoid
exposing the parties to humiliation, shame and embarrassment concomitant with
the scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicants name for a marriage license. The publicity
attending the marriage license may discourage such persons from legitimizing their
status. To preserve peace in the family, avoid the peeping and suspicious eye of
public exposure and contain the source of gossip arising from the publication of
their names, the law deemed it wise to preserve their privacy and exempt them
from that requirement.

There is no dispute that the marriage of petitioners father to respondent Norma was
celebrated without any marriage license. In lieu thereof, they executed an affidavit
stating that "they have attained the age of majority, and, being unmarried, have lived
together as husband and wife for at least five years, and that we now desire to marry
each other." The only issue that needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting
of the five year period in order to exempt the future spouses from securing a marriage
license. Should it be a cohabitation wherein both parties are capacitated to marry each
other during the entire five-year continuous period or should it be a cohabitation
wherein both parties have lived together and exclusively with each other as husband and
wife during the entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have either
disappeared or intervened sometime during the cohabitation period?

Working on the assumption that Pepito and Norma have lived together as husband
and wife for five years without the benefit of marriage, that five-year period should
be computed on the basis of a cohabitation as "husband and wife" where the only
missing factor is the special contract of marriage to validate the union. In other
words, the five-year common-law cohabitation period, which is counted back from
the date of celebration of marriage, should be a period of legal union had it not
been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without any distinction as to whether
the parties were capacitated to marry each other during the entire five years, then
the law would be sanctioning immorality and encouraging parties to have common
law relationships and placing them on the same footing with those who lived
faithfully with their spouse. Marriage being a special relationship must be
respected as such and its requirements must be strictly observed. The presumption
that a man and a woman deporting themselves as husband and wife is based on the
approximation of the requirements of the law. The parties should not be afforded
any excuse to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their marriage. There
should be no exemption from securing a marriage license unless the circumstances
clearly fall within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be united in
matrimony and that anyone who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local civil registrar. The Civil Code
provides:

Article 63: "x x x. This notice shall request all persons having knowledge of any
impediment to the marriage to advice the local civil registrar thereof. x x x."
Article 64: "Upon being advised of any alleged impediment to the marriage, the local
civil registrar shall forthwith make an investigation, examining persons under oath. x x
x" Sdaad

This is reiterated in the Family Code thus:

Article 17 provides in part: "x x x. This notice shall request all persons having
knowledge of any impediment to the marriage to advise the local civil registrar thereof.
x x x."

Article 18 reads in part: "x x x. In case of any impediment known to the local civil
registrar or brought to his attention, he shall note down the particulars thereof and his
findings thereon in the application for a marriage license. x x x."

This is the same reason why our civil laws, past or present, absolutely prohibited the
concurrence of multiple marriages by the same person during the same period. Thus, any
marriage subsequently contracted during the lifetime of the first spouse shall be illegal
and void, subject only to the exception in cases of absence or where the prior marriage
was dissolved or annulled. The Revised Penal Code complements the civil law in that
the contracting of two or more marriages and the having of extramarital affairs are
considered felonies, i.e., bigamy and concubinage and adultery. The law sanctions
monogamy.

In this case, at the time of Pepito and respondents marriage, it cannot be said that they
have lived with each other as husband and wife for at least five years prior to their
wedding day. From the time Pepito’s first marriage was dissolved to the time of his
marriage with respondent, only about twenty months had elapsed. Even assuming that
Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent
had started living with each other that has already lasted for five years, the fact remains
that their five-year period cohabitation was not the cohabitation contemplated by law. It
should be in the nature of a perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage contract. Pepito had a subsisting
marriage at the time when he started cohabiting with respondent. It is immaterial
that when they lived with each other, Pepito had already been separated in fact
from his lawful spouse. The subsistence of the marriage even where there was
actual severance of the filial companionship between the spouses cannot make any
cohabitation by either spouse with any third party as being one as "husband and
wife". Scs d

Having determined that the second marriage involved in this case is not covered by the
exception to the requirement of a marriage license, it is void ab initio because of the
absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to
declare their fathers marriage void after his death?

Contrary to respondent judge’s ruling, Article 47 of the Family Code cannot be applied
even by analogy to petitions for declaration of nullity of marriage. The second ground
for annulment of marriage relied upon by the trial court, which allows "the sane spouse"
to file an annulment suit "at any time before the death of either party" is inapplicable.
Article 47 pertains to the grounds, periods and persons who can file an annulment suit,
not a suit for declaration of nullity of marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage. Voidable and void marriages are not
identical. A marriage that is annulable is valid until otherwise declared by the court;
whereas a marriage that is void ab initio is considered as having never to have taken
place and cannot be the source of rights. The first can be generally ratified or confirmed
by free cohabitation or prescription while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in a direct proceeding while a void
marriage can be attacked collaterally. Consequently, void marriages can be questioned
even after the death of either party but voidable marriages can be assailed only during
the lifetime of the parties and not after death of either, in which case the parties and their
offspring will be left as if the marriage had been perfectly valid. That is why the action
or defense for nullity is imprescriptible, unlike voidable marriages where the action
prescribes. Only the parties to a voidable marriage can assail it but any proper interested
party may attack a void marriage. Void marriages have no legal effects except those
declared by law concerning the properties of the alleged spouses, regarding co-
ownership or ownership through actual joint contribution, and its effect on the children
born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as
well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime
governing voidable marriages is generally conjugal partnership and the children
conceived before its annulment are legitimate. Sup ma

Contrary to the trial court’s ruling, the death of petitioners’ father extinguished the
alleged marital bond between him and respondent. The conclusion is erroneous and
proceeds from a wrong premise that there was a marriage bond that was dissolved
between the two. It should be noted that their marriage was void hence it is deemed as if
it never existed at all and the death of either extinguished nothing.

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to
establish the nullity of a marriage. "A void marriage does not require a judicial decree to
restore the parties to their original rights or to make the marriage void but though no
sentence of avoidance be absolutely necessary, yet as well for the sake of good order of
society as for the peace of mind of all concerned, it is expedient that the nullity of the
marriage should be ascertained and declared by the decree of a court of competent
jurisdiction." "Under ordinary circumstances, the effect of a void marriage, so far as
concerns the conferring of legal rights upon the parties, is as though no marriage had
ever taken place. And therefore, being good for no legal purpose, its invalidity can be
maintained in any proceeding in which the fact of marriage may be material, either
direct or collateral, in any civil court between any parties at any time, whether before or
after the death of either or both the husband and the wife, and upon mere proof of the
facts rendering such marriage void, it will be disregarded or treated as non-existent by
the courts." It is not like a voidable marriage which cannot be collaterally attacked
except in direct proceeding instituted during the lifetime of the parties so that on the
death of either, the marriage cannot be impeached, and is made good ab initio. But
Article 40 of the Family Code expressly provides that there must be a judicial
declaration of the nullity of a previous marriage, though void, before a party can enter
into a second marriage and such absolute nullity can be based only on a final judgment
to that effect. For the same reason, the law makes either the action or defense for the
declaration of absolute nullity of marriage imprescriptible. Corollarily, if the death of
either party would extinguish the cause of action or the ground for defense, then the
same cannot be considered imprescriptible. J

However, other than for purposes of remarriage, no judicial action is necessary to

declare a marriage an absolute nullity. For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may pass
 upon the validity of marriage even in a suit not directly instituted to question the same
so long as it is essential to the determination of the case. This is without prejudice to any
issue that may arise in the case. When such need arises, a final judgment of declaration
of nullity is necessary even if the purpose is other than to remarry. The clause "on the
basis of a final judgment declaring such previous marriage void" in Article 40 of the
Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.

Article 34 of the Family Code. “No license shall be necessary for the marriage of a
man and a woman who have lived together as husband and wife for at least five
years and without any legal impediment to marry each other. X x x”

“The cohabitation of the couple living together as husband and wife must meet two
conditions (a) they must live as such for at least five years; and (b) they must be without
any legal impediment to marry each other. While both conditions must concur, they do
not qualify each other which means, during the five-year period, it is not necessary that
they must not have suffered from any legal impediment. The second condition as to the
absence of any legal impediment must be construed to refer only to the time of the
actual marriage celebration. Thus, the parties must be without legal impediment only at
the time of the marriage ceremony and not during all those previous five (5) years. This
must be the interpretation because the essential requirements under Art. 2 and the formal
requirements under Art. 3 for a valid marriage must be present only at the celebration of
the marriage and not at any other point in time. The five-year period is not among the
essential and formal requirements. Neither could such time element add or diminish the
legal effects of the said essential and formal requirements. This, in fact, is the intention
of the drafters of the Family Code. It was Justice Puno who recommended the phrase
relative to the absence of legal impediment, thus:

Justice Puno suggested that they say “and having no legal impediment ro
marry.”

Justice Reyes, however, commented that the provision may be

misinterpreted to mean that during the five years, the couple should
have capacity to marry each other. Justice Puyno opined that the idea in
the provision is that, at the time of the marriage, there is no legal
impediment to said marriage Judge Diy remarked that it may appear that
they were consenting to an adulterous relationship. Justice Caguiao
pointed out that what is important is that at the time of the marriage,
both parties are capacitated to marry. (Minutes of the 150 th joint Civil
Code and Family Code committees held on August 9, 1986, p.3)

This must be the interpretation of the law if the intention of the Code
Commission is to really improve the previous provision contained in art.
76 of the CC, it must be noted that the said Art. 76 of the Civil Code,
which has been repealed by Art. 34 of the Family Code, had 3 conditions
for the exemption to apply, namely: 1) the contracting parties must have
lived as husband and wife for at least 5 years; 2) they must have attained
the age of majority; and 3) they must be unmarried.

Although these conditions should likewise concur, they do not qualify

each other. Clearly, instead of providing specific conditions such as the
attainment of the age of majority and the status of ebing “unmarried”
which seem to indicate that, under the Civil Code, these were the only
legal impediments pertinent in determining the application of the
exemption, the FC now provides a broader condition by an amendment
providing that no legal impediment must exist with respect to the
contracting parties. There are no more specific types of legal
impediments. The phrase “legal impediment” under Art. 34 of the FC
refers to any possible ground or basis under the FC, including non-age
and the status of being already married among others, to make a
marriage inform. But the presence or absence of such legal impediment
should only be considered at the time of the celebration of the marriage
ceremony.

Unlike Art. 34 of the FC, the repealed Art. 76 of the CC made it

mandatory that, during the whole 5-year period, the contracting parties
must be unmarried. Hence, under the repealsed law, a person who was
married at anytime during the 5-year period and who was living with
another person cannot avail of the exception in case he or she intends to
marry his or her live-in partnet after his or her legitimate spouse died. In
short, there must be no such legal impediment during the whole 5-year
period (Ninal vs. Bayadog, March 14, 2000, 328 SCRA 122). Under Article
34 of the FC, however, for as long as there is no legal impediment at the
time of the marriage ceremony the parties can avail of the exception
(Manzano v. Sanchez, March 8, 2001). Hence, under the FC, a spouse
who was living-in with his or her paramour can avail of this exception
and marry his or her paramour without a marriage license after the death
of his or her legal spouse.

Manzano vs. Sanchez Case the SC held :

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man and a

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

For this provision on legal ratification of marital cohabitation to

apply, the following requisites must concur:
1. The man and woman must have been living together as husband and wife for
at least five years before the marriage;
2. The parties must have no legal impediment to marry each other;
3. The fact of absence of legal impediment between the parties must be
present at the time of marriage;
 4. The parties must execute an affidavit stating that they have lived together for
at least five years [and are without legal impediment to marry each other]; and
5. The solemnizing officer must execute a sworn statement that he had
ascertained the qualifications of the parties and that he had found no legal
impediment to their marriage.[6]

Not all of these requirements are present in the case at bar. It is

significant to note that in their separate affidavits executed on 22
March 1993 and sworn to before respondent Judge himself,
David Manzano and Luzviminda Payao expressly stated the fact
of their prior existing marriage. Also, in their marriage contract,
it was indicated that both were separated.

It is unfortunate that in the case of Office of the Court Administrator v.

Necessario, April 2, 2013 , the SC, in administratively ruling against
judges who irregularly solemnized marriages from 2003-2007, made a
statement that for the exception to apply, “the parties should have been
capacitated to marry each other during the entire period and not only at
the time of the marriage.” This is erroneous. The basis used by the SC
was Ninal vs. Bayadog, which clearly was a case applying not Art. 34 of
the FC but the old Art. 76 of the CC. Be, that as it may, considering that
the case is an administrative one which does not deal with the validity of
a marriage, the statement may be considered an obiter dictum which
does not create a precedent.

Cosca vs. Palaypan, (237 SCRA 249): (started cohabiting when barely 13 because
affidavit states one of the parties was 18 years old at the time the affidavit of
cohabitating was executed)

Where the judge solemnized a marriage without the parties applying and presenting a
marriage license on the basis of the affidavit they executed. However, one of the
contracting parties was only 18 years of age at the time he executed said affidavit stating
therein that they have been cohabiting with one another for the past six years. Supreme
Court held that the judge acted improperly and that the affidavit was probably forged.
The Supreme Court did not, however, state that the marriage is void.

G.R. No. 160172 February 13, 2008

REINEL ANTHONY B. DE CASTRO, petitioner, vs. ANNABELLE ASSIDAO-DE
CASTRO, respondent. (EFFECT OF A FALSIFIED AFFIDAVIT OF COHABITATION – it is
as if there was no affidavit executed; it is a mere scrap of paper)

Petitioner and respondent met and became sweethearts in 1991. They planned to get
married, thus they applied for a marriage license with the Office of the Civil Registrar of
Pasig City in September 1994. They had their first sexual relation sometime in October
1994, and had regularly engaged in sex thereafter. When the couple went back to the Office
of the Civil Registrar, the marriage license had already expired. Thus, in order to push
through with the plan, in lieu of a marriage license, they executed an affidavit dated 13
March 1995 stating that they had been living together as husband and wife for at least five
years. The couple got married on the same date, with Judge Jose C. Bernabe, presiding
judge of the Metropolitan Trial Court of Pasig City, administering the civil rites.
Nevertheless, after the ceremony, petitioner and respondent went back to their respective
homes and did not live together as husband and wife.
On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro.
Since the child’s birth, respondent has been the one supporting her out of her income as a
government dentist and from her private practice.

On 4 June 1998, respondent filed a complaint for support against petitioner before the
Regional Trial Court of Pasig City (trial court. In her complaint, respondent alleged that she
is married to petitioner and that the latter has "reneged on his responsibility/obligation to
financially support her "as his wife and Reinna Tricia as his child."

Petitioner denied that he is married to respondent, claiming that their marriage is void ab
initio since the marriage was facilitated by a fake affidavit; and that he was merely prevailed
upon by respondent to sign the marriage contract to save her from embarrassment and
possible administrative prosecution due to her pregnant state; and that he was not able to
get parental advice from his parents before he got married. He also averred that they never
lived together as husband and wife and that he has never seen nor acknowledged the child.

In its Decision dated 16 October 2000, the trial court ruled that the marriage between
petitioner and respondent is not valid because it was solemnized without a marriage
license. However, it declared petitioner as the natural father of the child, and thus
obliged to give her support. Petitioner elevated the case to the Court of Appeals, arguing
that the lower court committed grave abuse of discretion when, on the basis of mere
belief and conjecture, it ordered him to provide support to the child when the latter is
not, and could not have been, his own child.

The Court of Appeals denied the appeal. Prompted by the rule that a marriage is
presumed to be subsisting until a judicial declaration of nullity has been made, the
appellate court declared that the child was born during the subsistence and validity of
the parties’ marriage. In addition, the Court of Appeals frowned upon petitioner’s refusal
to undergo DNA testing to prove the paternity and filiation, as well as his refusal to state
with certainty the last time he had carnal knowledge with respondent, saying that
petitioner’s "forgetfulness should not be used as a vehicle to relieve him of his
obligation and reward him of his being irresponsible." Moreover, the Court of Appeals
noted the affidavit dated 7 April 1998 executed by petitioner, wherein he voluntarily
admitted that he is the legitimate father of the child.

Two key issues are presented before us. First, whether the trial court had the jurisdiction
to determine the validity of the marriage between petitioner and respondent in an action
for support and second, whether the child is the daughter of petitioner.

Anent the first issue, the Court holds that the trial court had jurisdiction to determine the
validity of the marriage between petitioner and respondent. The validity of a void
marriage may be collaterally attacked.19 Thus, in Niñal v. Bayadog, we held:

However, other than for purposes of remarriage, no judicial action is necessary to

declare a marriage an absolute nullity. For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may pass
upon the validity of marriage even in a suit not directly instituted to question the same
so long as it is essential to the determination of the case. This is without prejudice to any
issue that may arise in the case. When such need arises, a final judgment of declaration
of nullity is necessary even if the purpose is other than to remarry. The clause "on the
basis of a final judgment declaring such previous marriage void" in Article 40 of the
Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.
Likewise, in Nicdao Cariño v. Yee Cariño,21 the Court ruled that it is clothed with
sufficient authority to pass upon the validity of two marriages despite the main case
being a claim for death benefits. Reiterating Niñal, we held that the Court may pass
upon the validity of a marriage even in a suit not directly instituted to question the
validity of said marriage, so long as it is essential to the determination of the case.
However, evidence must be adduced, testimonial or documentary, to prove the existence
of grounds rendering such a marriage an absolute nullity.

Under the Family Code, the absence of any of the essential or formal requisites shall
render the marriage void ab initio, whereas a defect in any of the essential requisites
shall render the marriage voidable. In the instant case, it is clear from the evidence
presented that petitioner and respondent did not have a marriage license when they
contracted their marriage. Instead, they presented an affidavit stating that they had been
living together for more than five years. However, respondent herself in effect admitted
the falsity of the affidavit when she was asked during cross-examination, thus—

ATTY. CARPIO:

Q But despite of (sic) the fact that you have not been living together as husband and
wife for the last five years on or before March 13, 1995, you signed the Affidavit, is that
correct?

A Yes, sir.

The falsity of the affidavit cannot be considered as a mere irregularity in the

formal requisites of marriage. The law dispenses with the marriage license
requirement for a man and a woman who have lived together and exclusively with
each other as husband and wife for a continuous and unbroken period of at least
five years before the marriage. The aim of this provision is to avoid exposing the
parties to humiliation, shame and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the publication of every
applicant’s name for a marriage license. In the instant case, there was no
"scandalous cohabitation" to protect; in fact, there was no cohabitation at all. The
false affidavit which petitioner and respondent executed so they could push
through with the marriage has no value whatsoever; it is a mere scrap of paper.
They were not exempt from the marriage license requirement. Their failure to
obtain and present a marriage license renders their marriage void ab initio.

Anent the second issue, we find that the child is petitioner’s illegitimate daughter, and
therefore entitled to support.

Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children. Thus, one can prove illegitimate filiation through
the record of birth appearing in the civil register or a final judgment, an admission of
legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned, or the open and continuous possession of the status of a
legitimate child, or any other means allowed by the Rules of Court and special laws.

The Certificate of Live Birth of the child lists petitioner as the father. In addition,
petitioner, in an affidavit waiving additional tax exemption in favor of respondent,
admitted that he is the father of the child, thus stating:
 1. I am the legitimate father of REIANNA TRICIA A. DE CASTRO who was born on
November 3, 1995 at Better Living, Parañaque, Metro Manila;30

We are likewise inclined to agree with the following findings of the trial court:

That Reinna Tricia is the child of the respondent with the petitioner is supported not
only by the testimony of the latter, but also by respondent’s own admission in the course
of his testimony wherein he conceded that petitioner was his former girlfriend. While
they were sweethearts, he used to visit petitioner at the latter’s house or clinic. At times,
they would go to a motel to have sex. As a result of their sexual dalliances, petitioner
became pregnant which ultimately led to their marriage, though invalid, as earlier ruled.
While respondent claims that he was merely forced to undergo the marriage ceremony,
the pictures taken of the occasion reveal otherwise (Exhs. "B," "B-1," to "B-3," "C," "C-
1" and "C-2," "D," "D-1" and "D-2," "E," "E-1" and "E-2," "F," "F-1" and "F-2," "G,"
"G-1" and "G-2" and "H," "H-1" to "H-3"). In one of the pictures (Exhs. "D," "D-1" and
"D-2"), defendant is seen putting the wedding ring on petitioner’s finger and in another
picture (Exhs. "E," "E-1" and "E-2") respondent is seen in the act of kissing the
petitioner.

Borja-Manzano vs Sanchez
354 SCRA 1, March 8, 2001

Fact of the Case: In a sworn Complaint Affidavit filed with the Office of the Court
Administrator on May 12, 1999, complainant Herminia Borja-Manzano charges respondent
Judge Roque Sanchez with gross ignorance of the law for solemnizing a marriage between her
husband and other women, who were both bound by a prior existing marriage.

Respondent Judge on his Comment claims that when he officiated the marriage
between Manzano and Payao, he did not know that Manzano was legally married. What he
knew was that the two had been living together as husband and wife for seven years already
without the benefit of marriage, as manifested in their joint affidavit. Also in their affidavits,
Manzano and Payao expressly stated the fact of their prior existing marriage. Their marriage
contract indicated that both were “separated”. That their prior marriage had been marked by
constant quarrels, they had both left their families and had never cohabited or communicated
with their spouses anymore. Judge Sanchez alleges that on the basis of those affidavits, he
agreed to solemnize the marriage. He prayed that the complaint be dismissed for lack of merit
and for being designed merely to harass him.

The Court Administrator recommended that respondent Judge be found guilty and
ordered to pay a fine P2,000 with a warning that a repetition will be dealt with more severely.
Respondent Judge reiterate his plea for the dismissal of the complaint.

Issue: Whether or not the complaint of Borja-Manzano is valid.

Held: Yes. The Judge demonstrated gross ignorance of the law when he solemnized a void and
bigamous marriage. Marital cohabitation for a long period of time are merely exemption from
marriage license. It could not serve as a justification for respondent Judge to solemnize a
subsequent marriage vitiated by the impediment of a prior existing marriage. A Judge ought to
know that a subsisting previous marriage is an impediment, which would make the subsequent
marriage null and void.

Manzano vs Sanchez
AM No. MTJ-001329, March 8, 2001

FACTS:

Herminia Borja-Manzano was the lawful wife of the late David Manzano having been married
on May 21, 1966 in San Gabriel Archangel Parish in Caloocan. They had four children. On
March 22, 1993, her husband contracted another marriage with Luzviminda Payao before
respondent Judge. The marriage contract clearly stated that both contracting parties were
“separated” thus, respondent Judge ought to know that the marriage was void and bigamous.
He claims that when he officiated the marriage of David and Payao, he knew that the two had
been living together as husband and wife for seven years as manifested in their joint affidavit
that they both left their families and had never cohabit or communicated with their spouses due
to constant quarrels.

ISSUE: Whether the solemnization of a marriage between two contracting parties who both
have an existing marriage can contract marriage if they have been cohabitating for 5 years under
Article 34 of Family Code.
HELD:

Among the requisites of Article 34 is that parties must have no legal impediment to marry each
other. Considering that both parties have a subsisting marriage, as indicated in their marriage
contract that they are both “separated” is an impediment that would make their subsequent
marriage null and void. Just like separation, free and voluntary cohabitation with another
person for at least 5 years does not severe the tie of a subsisting previous marriage. Clearly,
respondent Judge Sanchez demonstrated gross ignorance of the law when he solemnized a void
and bigamous marriage.

REPUBLIC V. DAYOT, March 28, 2008, 550 SCRA 435

The records disclose that on 24 November 1986, Jose and Felisa were
married at the Pasay City Hall. The marriage was solemnized by Rev.
Tomas V. Atienza. In lieu of a marriage license, Jose and Felisa executed
a sworn affidavit, also dated 24 November 1986, attesting that both of
them had attained the age of maturity, and that being unmarried, they
had lived together as husband and wife for at least five years.

Jose filed a petition for declaration of nullity of his marriage to Felisa before
the RTC of Pasay City. According to him, she was deceived by Felisa, who
was his landlady, into signing a set of papers which he later found out to be
their marriage contract, when she invited him to Pasay City Hall to fetch a
package. Furthermore, their marriage was celebrated without a license, as the
affidavit of cohabitation they executed was false, they not having complied
with the 5-year requirement of cohabitation prior to marriage since they were
introduced to each other five months before their marriage. In her answer,
Felisa averred that her marriage to Jose is valid; they maintained the
relationship between man and wife without marriage since 1980 but deferred
marriage on account of their age; while her marriage to Jose was subsisting,
the latter contracted marriage with Rufina, to which she filed criminal and
civil actions against him, resulting in his suspension by the Office of the
Ombudsman for one year.
The RTC dismissed Jose’s complaint, citing it as incredible and ruled his
marriage to Felisa valid in the absence of fraud or trickery, which even if
present was already barred by prescription. On appeal to the Court of
Appeals, the CA initially dismissed Jose’s case but reversed itself on motion
for reconsideration. According to the CA, applying Ninal vs. Bayadog, it
ruled that inasmuch as Jose and Felisa’s period of cohabitation did not extend
for at least five years, their marriage was solemnised without a marriage
license, hence vid from the very beginning. It was at this juncture that the
OSG filed a petition for review of the CA ruling, alleging that Jose did not
come to court with clean hands, hence he must not benefit, on account of
equity, on his fraudulent conduct. Further, the presumption of marriage must
be upheld.
The Supreme Court:

“Marriages of exceptional character are, doubtless, the exceptions to the rule

on the indispensability of the formal requisite of a marriage license. Under
the rules of statutory construction, exceptions, as a general rule, should be
strictly but reasonably construed. They extend only so far as their language
fairly warrants, and all doubts should be resolved in favor of the general
provisions rather than the exception. Where a general rule is established by
statute with exceptions, the court will not curtail the former or add to the
latter by implication. For the exception in Article 76 to apply, it is a sine qua
non thereto that the man and the woman must have attained the age of
majority, and that, being unmarried, they have lived together as husband and
wife for at least five years.

A strict but reasonable construction of Article 76 leaves us with no other

expediency but to read the law as it is plainly written. The exception of a
marriage license under Article 76 applies only to those who have lived
together as husband and wife for at least five years and desire to marry each
other. The Civil Code, in no ambiguous terms, places a minimum period
requirement of five years of cohabitation. No other reading of the law can be
had, since the language of Article 76 is precise. The minimum requisite of
five years of cohabitation is an indispensability carved in the language of the
law. For a marriage celebrated under Article 76 to be valid, this material fact
cannot be dispensed with. It is embodied in the law not as a directory
requirement, but as one that partakes of a mandatory character. It is worthy to
mention that Article 76 also prescribes that the contracting parties shall state
the requisite facts in an affidavit before any person authorized by law to
administer oaths; and that the official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain the ages
and other qualifications of the contracting parties and that he found no legal
impediment to the marriage.

It is indubitably established that Jose and Felisa have not lived together for
five years at the time they executed their sworn affidavit and contracted
marriage. The Republic admitted that Jose and Felisa started living together
only in June 1986, or barely five months before the celebration of their
marriage. The Court of Appeals also noted Felisa’s testimony that Jose was
introduced to her by her neighbor, Teresita Perwel, sometime in February or
March 1986 after the EDSA Revolution. The appellate court also cited
 Felisa’s own testimony that it was only in June 1986 when Jose commenced
to live in her house.

Moreover, it is noteworthy that the question as to whether they satisfied the

minimum five-year requisite is factual in nature. A question of fact arises
when there is a need to decide on the truth or falsehood of the alleged facts.
Under Rule 45, factual findings are ordinarily not subject to this Court’s
review. It is already well-settled that:

The general rule is that the findings of facts of the Court of Appeals are
binding on this Court. A recognized exception to this rule is when the Court
of Appeals and the trial court, or in this case the administrative body, make
contradictory findings. However, the exception does not apply in every
instance that the Court of Appeals and the trial court or administrative body
disagree. The factual findings of the Court of Appeals remain conclusive on
this Court if such findings are supported by the record or based on substantial
evidence.

Therefore, the falsity of the affidavit dated 24 November 1986, executed by

Jose and Felisa to exempt them from the requirement of a marriage license, is
beyond question.

We cannot accept the insistence of the Republic that the falsity of the
statements in the parties’ affidavit will not affect the validity of marriage,
since all the essential and formal requisites were complied with. The
argument deserves scant merit. Patently, it cannot be denied that the marriage
between Jose and Felisa was celebrated without the formal requisite of a
marriage license. Neither did Jose and Felisa meet the explicit legal
requirement in Article 76, that they should have lived together as husband and
wife for at least five years, so as to be excepted from the requirement of a
marriage license.”
xxx
“Similarly, we are not impressed by the ratiocination of the Republic that as a
marriage under a license is not invalidated by the fact that the license was
wrongfully obtained, so must a marriage not be invalidated by a fabricated
statement that the parties have cohabited for at least five years as required by
law. The contrast is flagrant. The former is with reference to an irregularity of
the marriage license, and not to the absence of one. Here, there is no marriage
license at all. Furthermore, the falsity of the allegation in the sworn affidavit
relating to the period of Jose and Felisa’s cohabitation, which would have
qualified their marriage as an exception to the requirement for a marriage
license, cannot be a mere irregularity, for it refers to a quintessential fact that
the law precisely required to be deposed and attested to by the parties under
oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere
scrap of paper, without force and effect. Hence, it is as if there was no
affidavit at all

Under the exception (Art. 34 FC), the contracting parties shall state the
fact of their cohabitation for at least 5 years and the absence of any legal
impediment to marry in an affidavit before any person authorized by law
to administer oaths. The solemnizing officer shall also state under oath
that he ascertained the qualifications of the contracting parties and
found no legal impediment to the marriage. The failure of the
solemnizing officer to investigate shall not invalidate the marriage.

DIRECTORY REQUIREMENTS – the procedure laid down in Arts. 29 to 30

of the FC relative to the duties of the solemnizing officer with respect to
the affidavit he or she has to execute is merely directory in character.
Non-observance of the requirements will not render the marriage void or
annulable (Loria v. Felix, 55 O.G. 8118). However, under the Marriage
Law of 1929, any officer, priest, or minister who, having solemnized a
marriage in articulo mortis or any other marriage of an exceptional
character, shall fail to comply with the provisions of Chapter II of this
Act (now Chapter 2, Title I of the FC) shall be punished by imprisonment
for not less than 1 month or more than 2 years or a fine of not less than
300 pesos or more than 2thousand pesos, or both, in the discretion of
the court.

Art. 35. The following marriages shall be void from the beginning:
xxx
(3) Those solemnized without license, except those falling under Article
41;
xxx

REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil

Registrar that the alleged marriage license could not be found in his
records is adequate to prove that no license was issued. Angelina Castro
and Edwin Cardenas were married in a civil ceremony in the city court of
Pasay w/o the knowledge of Angelina's parents. The marriage lasted only
for a couple of mos. Angelina decided to migrate to the US but wanted to
put in order her marital status bef. leaving. She consulted a lawyer
regarding the possible annulment of her marriage. It was discovered that
there was no license issued to Cardenas by the Civil Registrar of Pasig.
The Civil Registrar certified that the alleged license no. does not appear
from the records. The trial court denied the petition. The CA reversed
the trial court, hence, this petition for review on certiorari.

HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R

132, ROC. The certification of due search and inability to find, issued by
the civil registrar of Pasig, enjoys probative value, he being the officer
charged under the law to keep a record of all data relative to the issuance
of a marriage license. Unaccompanied by any circumstance of suspicion,
and pursuant to Sec. 29, R 132 of ROC, a cert. of due search and inability
to find sufficiently proved that his office did not issue the marriage
license. There being no marriage license, the marriage of Angelina and
Edwin is void ab initio.

(1) Where to apply -- Arts 9-10.

Art. 9. A marriage license shall be issued by the local civil registrar of the
city or municipality where either contracting party habitually resides,
except in marriages where no license is required in accordance with
Chapter 2 of this Title.
Sempio-Dy: The solemnizing officer is not required to investigate w/n
the license was issued in the place required by law. (Peo. v. Jansen 54 P
176.)

Art. 10. Marriages between Filipino citizens abroad may be solemnized by

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

Sempio-Dy: By "Filipinos citizens abroad" may mean Filipinos

permanently residing abroad or who are mere transients or vacationists
there.
Consuls on home assignment in the Phils. cannot solemnize marriages.

Salonga, Private International Law II, 1995 ed. (hereinafter Salonga):

Consular Marriages.-- xxx The prevailing rule is that a marriage
performed before a consular or diplomatic agent empowered by a sending
State to officiate marriages is valid in the receiving State only if the
latter has agreed to his acting in that capacity.

(2) Requirements for issuance

(a) application -- Art. 11

Art. 11. Where a marriage license is required, each of the contracting

parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person
having charge, in case the contracting party has neither father nor
mother and is under the age of 21 years.
The applicants, their parents or guardians shall not be required to exhibit
their residence certificates in any formality in connection with the
securing of the marriage license.

(b) Proof of capacity -- Articles 12-14; Art. 21

Art. 12. The local civil registrar, upon receiving such application, shall
require the presentation of the original birth certificates or, in default
thereof, the baptismal certificates of the contracting parties or copies of
such documents duly attested by the persons having custody of the
originals. These certificates or certified copies of the documents required
by this Article need not be sworn to and shall be exempt from the
documentary stamp tax. The signature and official title of the person
issuing the certificate shall be sufficient proof of its authenticity. If
either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified copy of either because of the
destruction or loss of the original, or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has
not been received though the same has been required of the person
having custody thereof at least 15 days prior to the date of the
application, such party may furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to administer oaths.
Such instrument shall contain the sworn declaration of two witnesses of
lawful age, setting forth the full name, residence and citizenship of such
contracting party and of his or her parents, if known, and the place and
date of birth of such party. The nearest of kin of the contracting parties
shall be preferred as witnesses, or in their default, persons of good
reputation in the province or the locality. The presentation of birth or
baptismal certificate shall not be required if the parents of the
contracting parties appear personally before the local civil registrar
concerned and swear to the correctness of the lawful age of said parties,
as stated in the application, or when the local civil registrar shall, by
merely looking at the applicants upon their personally appearing before
him, be convinced that either or both of them have the required age.

Documents Required.-- To prove the ages of the contracting parties, the

following may be required by the local civil registrar:

(1) Original or certified copies of birth certificates.

(2) In the absence of birth certificates, the original or certified copies of
baptismal certificates.
(3) In the absence of the above documents, the party may present his
residence certificate or the affidavit of 2 witnesses.
(4) Affidavit of two persons (preferably next of kin) stating name and
age of contracting parties;

When Proof of Age Dispensed With:

(1) When the parents of the contracting parties appear personally before
the local civ. reg. and swear to the correctness of their ages;
(2) When the local civ. reg. is convinced, by merely looking at the parties
that they have the required ages;

(3) When a party has formerly married, but is widowed, or divorced, or

the previous marriage has been invalidated. (see art. 13.)

Art. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of
his or her previous marriage. In case the death certificate cannot be
secured, the party shall make an affidavit setting forth this circumstance
and his or her actual civil status and the name and date of death of the
deceased persons.

Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, they shall, in addition to the requirements of the
preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or persons
having legal charge of them, in the order mentioned. Such consent shall
be in writing by the interested party, who personally appears before the
proper local civil registrar, or in the form of an affidavit made in the
presence of two witnesses and attested before any official authorized by
law to administer oaths. The personal manifestation shall be recorded in
both applications for marriage license, and the affidavit, if one is
executed instead, shall be attached to said application.

Reason for parental consent.-- The parental consent of parties below 21

years is required in order to supplement the natural incapacity of such
parties, whose inexperience may lead them to a union w/c is difficult or
prejudicial for them.

Effect of Previous Marriage.-- A person below 21 who has been previously

married, but whose marriage has terminated by the death of the spouse
does not need parental consent to remarry even if he or she is still below
21.

Effect of RA 6809.-- The reduction of the age of majority and

emancipation does not affect the requirement of the present article, w/
respect to persons who have living parents.

Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not
otherwise incapacitated, he cannot be placed under guardianship and
would have nobody "having legal charge" of him. Whose consent will be
required?

A: In view of the impossibility of compliance, it seems that "parental

consent" need not be secured.
Remarriage of Widowed Mother.-- A widowed mother who has remarried
retains her parental authority over her children (art. 212, FC), and thus,
her consent is still required for the marriage of a child below 21 yrs. old.

Specific Consent Required.-- The better view xxx is that the consent
must refer to marriage with a particular person. The law intends that the
child should benefit from the experience of the parent, and that the
latter save the former from what may be an unwise union.

Form of Consent.-- It must be in writing. It may be made in either of 2

ways: (1) by the parent personally appearing bef. the local civ. reg. and
signing the instrument of consent, or (2) by executing an affidavit of
consent in the presence of 2 witnesses without having to appear before
the local civil registrar.
Revocation of Consent.-- Once consent has been given and the proper
license issued, it should be irrevocable except for cause. To allow its
revocation, w/o any reason is to subject the effectivity of the license
issued by the government to the whim and caprice of the parent. xxx We
believe, however, that revocation for just cause must be made known to
the parties and to the local civil registrar to have any effect.

Effect of Want of Consent.-- Aside from the civil sanction of nullity of the
marriage, there is also a penal sanction. If the parties knowingly entered
into the marriage w/o parental consent, or the solemnizing officer has
celebrated it knowing of such absence when it was needed, they will
become subject to the penal consequences imposed by Act No. 3613 and
the RPC.

EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] - Parental consent may be

made expressly or impliedly, such as by the presence of the mother
during the marriage ceremony, without any objections.

Art. 21. When either or both of the contracting parties are citizens of a
foreign country, it shall be necessary for them before a marriage license
can be obtained, to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the
certificate of legal capacity herein required, submit an affidavit stating
the circumstances showing such capacity to contract marriage.

The legal capacity of a foreigner to marry is recognized by our laws as

governed by the law of the country of which he is a citizen. This is in
accordance w/ the nationality theory of personal laws which is followed
by the Philippines.

Stateless Persons and Refugees.-- Q: What is the legal capacity of a

stateless person?
A: Having no personal law of his own, since he owes no allegiance to any
particular country, his legal capacity should be determined by the laws of
the Philippines under which he temporarily enjoys protection. The
provisions of the FC apply to him.

Salonga: The net effect of Art. 21 is to leave it to the Government of the

alien to decide almost conclusively the question of whether or not he or
she can marry in the Philippines. It is the interpretation of that
Government through its diplomatic or consular officials, that is
controlling, except where the M is bigamous or universally incestuous.
Any abuse of that discretion is a matter which the alien must take up
with his own Government.

Q: Suppose, however, that, w/o such a cert., the marriage is solemnized--

is the marriage valid?

A: Yes. The M should be considered as valid, assuming that the lack of

cert. is the only defect. It is not one of the void marriages enumerated in
the NCC (now the FC); the cert. of legal capacity is not an essential
requisite of marriage.

(c) Parental advice -- Art. 15

Art. 15. Any contracting party between the age of twenty-one and
twenty-five shall be obliged to ask their parents or guardian for advice
upon the intended marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued till after three
months following the completing of the publication of the application
therefor. A sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice given, if
any, shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated in
the sworn statement.

Tolentino: Effect of Emancipation.-- The need for parental advice

depends on filial relationship and not on parental authority.

Q: When the child is an orphan over 21 but below 25 yrs. old, he would be
emancipated and cannot be under the authority of a guardian. Who will
give the parental advice in such a case?
A: The solution may be anomalous, but it seems that such advice is
dispensed with, due to impossibility of compliance.

(d) Marriage Counseling -- Art. 16

Art. 16. In the cases where parental consent or parental advice is needed,
the party or parties concerned shall, in addition to the requirements of
the preceding articles, attach a certificate issued by a priest, imam, or
minister authorized to solemnize marriage under Article 7 of this Code or
a marriage counselor duly accredited by the proper government agency
to the effect that the contracting parties have undergone marriage
counseling. Failure to attach said certificate of marriage counseling shall
suspend that issuance of the marriage license for a period of three
months from the completion of the publication of the application.
Issuance of the marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions but shall not affect
the validity of the marriage. Should only one of the contracting parties
need parental consent or parental advice, the other party must be
present at the counseling referred to in the preceding paragraph.

Marriage Counseling.-- Both of the intended spouses are required to

undergo marriage counseling if one or both of them are bet. 18 and 25
years of age.

Reason for the Requirement.-- It is intended to prepare the youth for

entering into the married state, w/ instructions on the responsibilities of
the future couple to each other, to their children, and to society.

(e) Publication -- Art. 17

Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for marriage
license and other data given in the applications. The notice shall be
posted for ten consecutive days on a bulletin board outside the office of
the local civil registrar located in a conspicuous place within the building
and accessible to the general public. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local
civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication.

(f) Investigation of Impediments -- Art. 18.

Art. 18. In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof and
his findings thereon in the application for marriage license, but shall
nonetheless issue said license after the completion of the period of
publication, unless ordered otherwise by a competent court at his own
instance or that of any interested party. No filing fee shall be charged for
the petition nor a corresponding bond required for the issuance of the
order.

(g) Payment of fees -- Art. 19.

Art. 19. The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of the marriage
license. No other sum shall be collected in the nature of a fee or tax of
any kind for the issuance of said license. It shall, however, be issued free
of charge to indigent parties, that is, those who have no visible means of
income or whose income is insufficient for their subsistence, a fact
established by their affidavit, or by their oath before the local civil
registrar.

(h) Family Planning certificate -- PD 965

(3) Place where valid -- Art. 20

Art. 20. The license shall be valid in any part of the Philippines for a
period of one hundred twenty days from the date of issue, and shall be
deemed automatically cancelled at the expiration of said period if the
contracting parties have not made use of it. The expiry date shall be
stamped in bold characters on the face of every license issued.

The automatic cancellation of the license is not a mere irregularity or

defect; the license is non-existent. The marriage is void ab initio.

(4) Period of validity -- Art. 20, supra.

(5) Duties of the Civil Registrar -- Articles 24-25

Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents and
affidavits filed in connection with applications for marriage licenses shall
be exempt from documentary stamp tax.

Art. 25. The local civil registrar concerned shall enter all applications for
marriage licenses filed with him in a registry book strictly in the order in
which the same are received. He shall record in said book the names of
the applicants, the date on which the marriage license was issued, and
such other data as may be necessary.

PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official Receipt of the Local
Civil Registrar due to lack of the regular form may be considered as a
valid license.

(6) When no license needed -- Articles 27-34 Chapter 2

a. Foreign National – Art. 21

Art. 21. When either or both of the contracting parties are citizens of a
foreign country, it shall be necessary for them before a marriage license
can be obtained, to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the
certificate of legal capacity herein required, submit an affidavit stating
the circumstances showing such capacity to contract marriage.

b. Exceptions – Arts. 27, 28, 31-32, 34

Art. 27. In case either or both of the contracting parties are at the point
of death, the marriage may be solemnized without necessity of a
marriage license and shall remain valid even if the ailing party
subsequently survives.

Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar,
the marriage may be solemnized without the necessity of a marriage license.

Art. 31. A marriage in articulo mortis between passengers or crew

members may also be solemnized by a ship captain or by an airplane pilot
not only while the ship is at sea or the plane is in flight but also during
stopovers at ports of call.

Art. 33. Marriages among Muslims or among members of the ethnic

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

Art. 34. No license shall be necessary for the marriage of a man and a
woman who have lived together as husband and wife for at least five
years and without any legal impediment to marry each other. The
contracting parties shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications
of the contracting parties and found no legal impediment to the
marriage.

Manzano vs. Sanchez

A.M. No. MTJ-00-1339 (March 8, 2001)

Facts:
Herminia Borja-Mariano was married to the late David Manzano on May
21, 1966. They had four children. However, on March 22, 1993, David
contracted another marriage with Luzviminda Payao before Judge Roque
Sanchez. During that time, Payao was also married to Domingo Relos.
Payao and David, had, prior to the solemnization, issued an affidavit
stating that they were both married; however due to incessant quarrels,
they both left their families and they no longer communicated with
them. They lived together as husband & wife for 7 years. Judge agreed to
solemnize the marriage. Herminia filed charges of gross ignorance of the
law against Sanchez.

Issue:
WON Payao and David‘s marriage is valid.

Held:
No. Although the couple had lived together for seven years (as the
affidavit shows and which the Judge relied on in crafting his decision),
Article 34 of the FC also requires that there must be no legal impediment
to marry each other. Also in their marriage contract, it was indicated
that both were ―separated. The judge ought to know that a subsisting
previous marriage (regardless of the couple being separated) is a legal
impediment which would make the subsequent marriage null and void.
And besides, free and voluntary cohabitation with another for at least
five years does not severe the tie of a subsisting previous marriage.

9. Marriage Certificate, Art. 22

Presumption of Marriage.- That a man and a woman deporting

themselves as husband and wife have entered into a lawful contract of
marriage is a presumption which is considered satisfactory if
uncontradicted, but may be contradicted and overcome by evidence. The
law and public policy favor matrimony for law presumes morality instead
of immorality; marriage and not concubinage; legitimacy and not
bastardy. Said presumption gains strength through the lapse of time.

Proof of Marriage. – When the question as to whether or not a marriage

has been contracted arises in litigation, said marriage may be proved by
evidence of any kind (Pugeda vs. Trias, 4 SCRA 849). But the primary or
best evidence of a marriage is the marriage contract or the marriage
certificate (Lim Tanhu vs. Ramolete, 66 SCRA 425).

Failure to present a marriage certificate is not fatal in a case where a

marriage is in dispute, as the parties can still rely on the presumption of
marriage. (Rivera vs. IAC, 182 SCRA 322) a marriage, like any other
contract, may be proved by parol evidence. Testimony by one of the
parties or witnesses to the marriage, or by the person who solemnized
the same, is admissible (Pugeda vs. Trias, 4 SCRA 849) and competent to
prove marriage (Balogbog vs. CA, March 7, 1997).

EXCLUDE: Duties of a Civil Registrar, Arts. 12-19, 23-25

B. Effect of Marriage celebrated abroad and foreign divorce, Art. 26

MARRIAGES UNDER ARTICLE 26

All marriages solemnized outside of the Philippines, in accordance with the laws in
force in the country where they are solemnized, and valid there as such, shall also
be valid in the Philippines except Article 35 (1), (4), (5) (6), 36, 37 and 38.

 those contracted by any party below 18 years of age

 Those bigamous or polygamous marriages not falling under Art. 41
 Those contracted through mistake of one contracting party as to the identity
of the other; and
 Those subsequent marriages that are void under Art. 53 (compliance with
recording requirements after declaration of nullity ort annulment of
marriage)

Art. 26, 2nd par.:

“Where a marriage between A Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry”

Art. 26 par. 1 follows the principle of lex loci celebrationis as a matter of

international comity. However, the exception is based on the fact that no state is
bound by comity to give effect in its courts to laws which are repugnant to its
own laws and policy. This is because every sovereign state is the conservator of
its own morals and the good order of society. Each sovereign state has the right
to declare what marriages it will or will not recognize, regardless of whether the
participants are domiciled within or without its borders and notwithstanding such
marriages’ validity under the laws of a foreign state where such marriages were
contracted.

VALID THERE VALID HERE, VOID THERE VOID HERE even if it

would have been valid had the marriage been solemnized here.

EXAMPLES OF MARRIAGES RECOGNIZED AS VALID THERE though

void if solemnized here- marriages without a license solemnized abroad
and proxy marriages; or marriages solemnized by i.e. a professor of law
abroad provided valid in the country where it is solemnized; however, if
the marriage was solemnized inside the Philippine Consulate abroad,
such marriage must observe the forms and solemnities established by
Philippine laws (Art. 17 of the CC)
Tenchavez v, Escano, 15 SCRA 256 – This is a case where a fil. wife
obtained a divorce from her fil husband in Nevada, USA, the divorce,
though recognized in the USA or even in the rest of the world, was
declared by the SC as not recognizable here in the Philippines.
Therefore, insofar as the Phils. is concerned, the wife, in entering into a
subsequent marriage with an American by virtue of the divorce,
technically committed adultery.

EXCEPTIONS where the marriage will not be recognized here:

1. If either or both of the contracting parties are below 18 years of

age – reason: Phil. adheres to the capacity of the contracting parties
being governed by their national law. Art. 15 and par. 2 of Art. 17 CC.

Note however, that the law says “where one or both are below 18
years of age”. It would seem that the law does not distinguish even if
one party is a foreigner such that the marriage would not be recognized
here even if recognized in his country if he were capacitated under his
laws. However, Art. 21 provides that an alien who marries in the Phils.
need only submit his certificate of capacity to marry. Such that if we
follow the rule in art. 26 par. 1 (a) the marriage would be valid if
celebrated here provided he submitted his capacity to marry but void if
celebrated in his country pursuant to Art. 26 par. 1. The better rule is
that the marriage should still be considered valid even if solemnized
abroad since we also follow Art. 15 with regards an aliens capacity which
is governed by his national laws. Art. 26 should cover only marriages
between Filipinos.

2. BIGAMOUS AND POLYGAMOUS MARRIAGES

3. mistake of identity OF THE OTHER CONTRACTING PARTY.

4. Void marriages under art. 53 of the FC – failure to cause the

registration of the judicial decree of annulment or declaration of nullity
with the local civil registrar, to partition and distribute their properties
and to deliver the presumptive legitime of their children, any subsequent
marriage is void.

5. Psychological incapacity

6. marriages between ascendants and descendants of any degree as

well as between brothers and sisters, whether of the full or half blood.
Incestuous marriages

7. Marriages void by reason of public policy Art. 38

Common Law marriages not recognized here because our laws use the
word “solemnized”- implies a ceremonial marriage and not one which was
“contracted” or merely performed by way of mere agreement of the
parties, such as in the cases of common-law marriage.
SAME SEX MARRIAGE – not recognized here in the Philippines.
(capacity of parties- must be a man and a woman; Art. 17 par. 2-
prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

DIVORCE:

Par. 2 -Note: Applies to marriages where both were Filipinos at the time of the marriage
and subsequently, one of the spouses becomes a foreigner, provided the requisites under
Art. 26 par. 2 are complied with.

Absolute divorce between Filipinos not recognized in the Philippines…

G.R. No. 171914, July 23, 2014, SOLEDAD L. LAVADIA, PETITIONER, VS. HEIRS OF
JUAN LUCES LUNA, REPRESENTED BY GREGORIO Z. LUNA AND EUGENIA
ZABALLERO-LUNA, RESPONDENTS.

Summary: marriage between fils; subsequently a divorce is secured by fil spouse

abroad and granted. DIVORCE NOT RECOGNIZED in Phils.; subsequent marriage
between Atty. Luna andSoledad is bigamous.

Atty. Luna, a practicing lawyer up until his death, married Eugenia in 1947. Their marriage
begot seven children, including Gregorio. After two decades of marriage, Atty. Luna
and his wife agreed to live separately as husband and wife, and executed an
Agreement For Separation and Property Settlement” whereby they agreed to live
separately and to dissolve their conjugal property. On January 2, 1976, Atty. Luna
obtained a divorce decree of his marriage with Eugenia from the Dominican
Republic. On the same day, he married Soledad.

In 1977, Atty. Luna organized a new law firm with several other lawyers. The new law office
thru Atty. Luna obtained a condominium unit which they bought on an installment
basis. After full payment, the condominium title was registered in the names of the
lawyers with pro-indiviso shares. When the law office was dissolved, the
condominium title was still registered in the names of the owners, with Atty. Luna’s
share fixed at 25/100. Atty. Luna established a new law firm with Atty. Dela Cruz.
After Atty. Luna’s death in 1997, his share in the condominium unit, his law books
and furniture were taken over by Gregorio, his son in the first marriage. His 25/100
share in the condominium was also rented out to Atty. Dela Cruz.
Soledad, the second wife, then filed a complaint against the heirs of Atty. Luna.
According to him, the properties were acquired by Atty. Luna and her during their
marriage, and because they had no children, 3/4 of the property became hers, 1/2
being her share in the net estate, and the other half bequeathed to her in a last will and
testament of Atty. Luna.

The RTC ruled against her, and awarded the properties to the heirs of Atty. Luna from the first
marriage, except for the foreign law books, which were ordered turned over to her.
Both parties appealed to the Court of Appeals. The Court of Appeals modified the RTC
judgment by awarding all the properties, including the law books to the heirs of Atty.
Luna from the first marriage.
In her petition before the Supreme Court, Zenaida alleged that the CA erred in holding that the
Agreement For Separation and Property Settlement between Atty. Luna and Eugenia
(the first wife) is ineffectual, hence the conjugal property was not dissolved.
In deciding the case, the Supreme Court answered it by way of determining whether the
divorce decree between Atty. Luna and Eugenia was valid, which will decide
who among the contending parties were entitled to the properties left behind by
Atty. Luna.

The Supreme Court:

The divorce between Atty. Luna and Eugenia was void:

“From the time of the celebration of the first marriage on September 10, 1947 until the
present, absolute divorce between Filipino spouses has not been recognized in
the Philippines. The non-recognition of absolute divorce between Filipinos has
remained even under the Family Code, even if either or both of the spouses are
residing abroad. Indeed, the only two types of defective marital unions under
our laws have been the void and the voidable marriages. As such, the remedies
against such defective marriages have been limited to the declaration of nullity
of the marriage and the annulment of the marriage.”

No judicial approval of the Agreement for Separation and Property Settlement:

“Considering that Atty. Luna and Eugenia had not entered into any marriage settlement prior to
their marriage on September 10, 1947, the system of relative community or conjugal
partnership of gains governed their property relations. This is because the Spanish
Civil Code, the law then in force at the time of their marriage, did not specify the
property regime of the spouses in the event that they had not entered into any
marriage settlement before or at the time of the marriage. Article 119 of the Civil
Code clearly so provides, to wit:

Article 119. The future spouses may in the marriage settlements agree upon absolute or relative
community of property, or upon complete separation of property, or upon any other
regime. In the absence of marriage settlements, or when the same are void, the
system of relative community or conjugal partnership of gains as established in this
Code, shall govern the property relations between husband and wife.”

Atty. Luna’s marriage with Soledad was bigamous, and void from the very beginning,
hence, their property relations is governed by the rules on co-ownership:

“In the Philippines, marriages that are bigamous, polygamous, or incestuous are void. Article 71
of the Civil Code clearly states:

Article 71. All marriages performed outside the Philippines in accordance with the laws in force
in the country where they were performed, and valid there as such, shall also be valid
in this country, except bigamous, polygamous, or incestuous marriages as determined
by Philippine law.

Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before

the first marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
proceedings.[23] A bigamous marriage is considered void ab initio.
Due to the second marriage between Atty. Luna and the petitioner being void ab initio by virtue
of its being bigamous, the properties acquired during the bigamous marriage were
governed by
the rules on co-ownership, conformably with Article 144 of the Civil Code, viz:

Article 144. When a man and a woman live together as husband and wife, but they are not
married, or their marriage is void from the beginning, the property acquired by either
or both of them through their work or industry or their wages and salaries shall be
governed by the rules on co-ownership.(n)

In such a situation, whoever alleges co-ownership carried the burden of proof to confirm such
fact. To establish co-ownership, therefore, it became imperative for the petitioner to
offer proof of her actual contributions in the acquisition of property. Her mere
allegation of co-ownership, without sufficient and competent evidence, would
warrant no relief in her favor. As the Court explained in Saguid v. Court of Appeals:

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-
ownership of properties acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. The claim of co-ownership of the petitioners
therein who were parties to the bigamous and adulterous union is without basis
because they failed to substantiate their allegation that they contributed money in the
purchase of the disputed properties. Also in Adriano v. Court of Appeals, we ruled
that the fact that the controverted property was titled in the name of the parties to an
adulterous relationship is not sufficient proof of co-ownership absent evidence of
actual contribution in the acquisition of the property.”

Considering that Zenaida failed to adduce evidence of ownership of the properties subject of the
case, the subject properties were awarded in favour of the heirs of Atty. Luna from
the first marriage.

Petition denied.

ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as
Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay
City and RICHARD UPTON respondents. G.R. No. L-68470 October 8, 1985

SUMMARY: Wife is a Fil married to an American. He divorces her. She marries another
alien. Former husband files a case for accounting and to be appointed as manager of their
properties in the Phil.

MELENCIO-HERRERA, J.:

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside
the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they begot
two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were
divorced in Nevada, United States, in 1982; and that petitioner has re-married also in
Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-
P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the
ground that the property involved is located in the Philippines so that the Divorce Decree
has no bearing in the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. Certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. Prohibition would then
lie since it would be useless and a waste of time to go ahead with the proceedings. We consider
the petition filed in this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the American
Court that they had no community of property; that the Galleon Shop was not established
through conjugal funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy that
the acts and declaration of a foreign Court cannot, especially if the same is contrary to
public policy, divest Philippine Courts of jurisdiction to entertain matters within its
jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The
pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address as No. 381 Bush Street, San Francisco,
California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the
divorce on the ground of incompatibility with the understanding that there were neither
community property nor community obligations. As explicitly stated in the Power of Attorney
he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada,
to represent him in the divorce proceedings:
 xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer,

appear on my behalf and do an things necessary and proper to represent me,
without further contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx

There can be no question as to the validity of that Nevada divorce in any of the States of
the United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the
Union. What he is contending in this case is that the divorce is not valid and binding in
this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces the
same being considered contrary to our concept of public police and morality. However,
aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. In this case, the divorce in Nevada released
private respondent from the marriage from the standards of American law, under
which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife without a husband,
is unknown to the law. When the law provides, in the nature of a penalty that the guilty
party shall not marry again, that party, as well as the other, is still absolutely freed from
the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his own
country's Court, which validly exercised jurisdiction over him, and whose decision he does
not repudiate, he is estopped by his own representation before said Court from asserting
his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged
to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the ends
of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner, vs.

HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City
Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute

divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides us the opportunity to lay down a decisional rule on what hitherto appears to be
an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar
of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980.

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by
a separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the
Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage
and that they had been living apart since April, 1982.

Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where
the same is still pending as Civil Case No. 83-15866.

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner. The records show that under
German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction.

On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence. However, upon review, the respondent city fiscal approved a resolution, dated
January 8, 1986, directing the filing of two complaints for adultery against the petitioner. The
complaints were accordingly filed and were eventually raffled to two branches of the Regional
Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and
William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI
presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda
Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge
Leonardo Cruz, Branch XXV, of the same court.

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. A
similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The
Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer further proceedings" and to
elevate the entire records of both cases to his office for review.

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon. As a consequence, Judge Leonardo Cruz suspended
proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset
the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for
review then pending before the Secretary of Justice. A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, which motion was denied by the respondent
judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former was ordered
detained until she submitted herself for arraignment. Later, private respondent entered a plea of
not guilty.

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition,
with a prayer for a temporary restraining order, seeking the annulment of the order of the
lower court denying her motion to quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide the charge of adultery, which is a
private offense that cannot be prosecuted de officio (sic), since the purported complainant,
a foreigner, does not qualify as an offended spouse having obtained a final divorce decree
under his national law prior to his filing the criminal complaint."

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoñez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner.

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other
crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed
by the offended spouse. It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal, requirement. While
in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary
Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is
that complaint which starts the prosecutory proceeding and without which the court cannot
exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the
person who can legally file the complaint should be the offended spouse, and nobody else.
Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is
made for the prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and successive
rule in the prosecution of the first four offenses above mentioned do not apply to adultery
and concubinage. It is significant that while the State, as parens patriae, was added and
vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal
action for a deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents, grandparents or
guardian, such amendment did not include the crimes of adultery and concubinage. In
other words, only the offended spouse, and no other, is authorized by law to initiate the
action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar and
express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to
dismiss in civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean
that the same requirement and rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and fundamentally commenced by the
State, through the People of the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the
offended spouse assumes a more predominant role since the right to commence the action,
or to refrain therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial. Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the
marital relationship is still subsisting at the time of the institution of the criminal action
for, adultery. This is a logical consequence since the raison d'etre of said provision of law
would be absent where the supposed offended party had ceased to be the spouse of the
alleged offender at the time of the filing of the criminal case.

In these cases, therefore, it is indispensable that the status and capacity of the complainant
to commence the action be definitely established and, as already demonstrated, such status
or capacity must indubitably exist as of the time he initiates the action. It would be absurd
if his capacity to bring the action would be determined by his
status before or subsequent to the commencement thereof, where such capacity or status
existed prior to but ceased before, or was acquired subsequent to but did not exist at the
time of, the institution of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue
as to when precisely the status of a complainant as an offended spouse must exist where a
criminal prosecution can be commenced only by one who in law can be categorized as
possessed of such status. Stated differently and with reference to the present case, the inquiry
would be whether it is necessary in the commencement of a criminal action for adultery
that the marital bonds between the complainant and the accused be unsevered and
existing at the time of the institution of the action by the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse
no longer has the right to institute proceedings against the offenders where the statute
provides that the innocent spouse shall have the exclusive right to institute a prosecution
for adultery. Where, however, proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of the criminal
proceedings to a conclusion.

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband
or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense
is said to have been committed, he had ceased to be such when the prosecution was
begun; and appellant insists that his status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense is against the unoffending spouse, as
well as the state, in explaining the reason for this provision in the statute; and we are of
the opinion that the unoffending spouse must be such when the prosecution is
commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that
in cases of such nature, the status of the complainant vis-a-vis the accused must be
determined as of the time the complaint was filed. Thus, the person who initiates the
adultery case must be an offended spouse, and by this is meant that he is still married to
the accused spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned in view of
the nationality principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., after a divorce was granted by a
United States court between Alice Van Dorn a Filipina, and her American husband, the latter
filed a civil case in a trial court here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated
the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the Union.
...

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces the
same being considered contrary to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. ...
Under the same considerations and rationale, private respondent, being no longer the
husband of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the
decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect once
a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family, which is said to be one of the reasons for the particular
formulation of our law on adultery, since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast
obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed before the termination of the marriage by a judicial declaration of its
nullity ab initio. The same rule and requisite would necessarily apply where the termination of
the marriage was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby
made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute

divorce as valid also in the Philippines, the fact is that the husband in the instant case, by
the very act of his obtaining an absolute divorce in Germany can no longer be considered
as the offended party in case his former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the woman to have sexual
relations with others. A contrary ruling would be less than fair for a man, who is free to
have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and binding in
the Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in
what he calls a "socially grotesque situation," where a Filipino woman is still married to a man
who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury to the
people or residents of the forum. Consequently since to recognize the absolute divorce as valid
on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage
would be still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be considered void
both with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact
that the husband was an American with a Filipino wife because in said case the validity of the
divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Llorente vs. CA, 345 SCRA 593; November 23, 2000

The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy
from March 10, 1927 to September 30, 1957.
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as
Paula) were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula
stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate
of Naturalization No. 5579816 was issued in his favor by the United States District Court,
Southern District of New York.
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was
granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines. He
discovered that his wife Paula was pregnant and was living in and having an adulterous
relationship with his brother, Ceferino Llorente.
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of
Nabua as Crisologo Llorente, with the certificate stating that the child was not legitimate and
the line for the father’s name was left blank.
 Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple
drew a written agreement to the effect that (1) all the family allowances allotted by the United
States Navy as part of Lorenzos salary and all other obligations for Paulas daily maintenance
and support would be suspended; (2) they would dissolve their marital union in accordance with
judicial proceedings; (3) they would make a separate agreement regarding their conjugal
property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her
adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo
peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paulas
father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.
Lorenzo returned to the United States and on November 16, 1951 filed for
divorce with the Superior Court of the State of California in and for the County of San
Diego. Paula was represented by counsel, John Riley, and actively participated in the
proceedings. On November 27, 1951, the Superior Court of the State of California, for the
County of San Diego found all factual allegations to be true and issued an interlocutory
judgment of divorce.
On December 4, 1952, the divorce decree became final.
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. Apparently, Alicia had
no knowledge of the first marriage even if they resided in the same town as Paula, who did not
oppose the marriage or cohabitation.
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. Their twenty-
five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente.
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized
by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses
Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his
property to Alicia and their three children, to wit:

(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and
lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal
properties and other movables or belongings that may be found or existing therein;

(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties
whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-
Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras,
Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines
Sur;

(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my
children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real
properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No.
188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title
Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines;

(4) That their respective shares in the above-mentioned properties, whether real or personal
properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could
only be sold, ceded, conveyed and disposed of by and among themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and
Testament, and in her default or incapacity of the latter to act, any of my children in the order of
age, if of age;

(6) I hereby direct that the executor named herein or her lawful substitute should served (sic)
without bond;

(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore
executed, signed, or published, by me;

(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes
Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and
my children with respect to any real or personal properties I gave and bequeathed respectively
to each one of them by virtue of this Last Will and Testament.[17]

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur,
a petition for the probate and allowance of his last will and testament wherein Lorenzo moved
that Alicia be appointed Special Administratrix of his estate.
On January 18, 1984, the trial court denied the motion for the reason that the testator
Lorenzo was still alive.
On January 24, 1984, finding that the will was duly executed, the trial court admitted the
will to probate.
On June 11, 1985, before the proceedings could be terminated, Lorenzo died.
On September 4, 1985, Paula filed with the same court a petition for letters of
administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos
surviving spouse, (2) that the various property were acquired during their marriage, (3) that
Lorenzos will disposed of all his property in favor of Alicia and her children, encroaching on
her legitime and 1/2 share in the conjugal property.
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a
petition for the issuance of letters testamentary.
On October 14, 1985, without terminating the testate proceedings, the trial court gave due
course to Paulas petition in Sp. Proc. No. IR-888.
On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol Star.
On May 18, 1987, the Regional Trial Court issued a joint decision, thus:

Wherefore, considering that this court has so found that the divorce decree granted to the late
Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so
the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she
is not entitled to receive any share from the estate even if the will especially said so her
relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1).

On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so
declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void
and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties,
and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and
then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic)
Llorente, for them to partition in equal shares and also entitled to the remaining free portion in
equal shares.
Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo
Llorente. As such let the corresponding letters of administration issue in her favor upon her
filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the
court within three (3) months a true and complete inventory of all goods, chattels, rights, and
credits, and estate which shall at any time come to her possession or to the possession of any
other person for her, and from the proceeds to pay and discharge all debts, legacies and charges
on the same, or such dividends thereon as shall be decreed or required by this court; to render a
true and just account of her administration to the court within one (1) year, and at any other time
when required by the court and to perform all orders of this court by her to be performed.

On the other matters prayed for in respective petitions for want of evidence could not be
granted.

SO ORDERED.

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted
decision.
On September 14, 1987, the trial court denied Alicias motion for reconsideration but
modified its earlier decision, stating that Raul and Luz Llorente are not children legitimate or
otherwise of Lorenzo since they were not legally adopted by him. Amending its decision of
May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of
Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of
the estate.
On September 28, 1987, respondent appealed to the Court of Appeals.
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with
modification the decision of the trial court in this wise:

WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION
that Alicia is declared as co-owner of whatever properties she and the deceased may have
acquired during the twenty-five (25) years of cohabitation.

SO ORDERED.

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration
of the decision.
On March 21, 1996, the Court of Appeals,[34] denied the motion for lack of merit.
Hence, this petition.
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised, the
issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial
court for ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at
the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4)
death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
 The Civil Code clearly provides:

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity
of persons are binding upon citizens of the Philippines, even though living abroad.

Art. 16. Real property as well as personal property is subject to the law of the country where it
is situated.

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

True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the
foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine,
where the case was referred back to the law of the decedents domicile, in this case, Philippine
law.
We note that while the trial court stated that the law of New York was not sufficiently
proven, in the same breath it made the categorical, albeit equally unproven statement that
American law follows the domiciliary theory hence, Philippine law applies when determining
the validity of Lorenzos will.
First, there is no such thing as one American law. The "national law" indicated in Article
16 of the Civil Code cannot possibly apply to general American law. There is no such law
governing the validity of testamentary provisions in the United States. Each State of the union
has its own law applicable to its citizens and in force only within the State. It can therefore refer
to no other than the law of the State of which the decedent was a resident. Second, there is no
showing that the application of the renvoi doctrine is called for or required by New York State
law.
The trial court held that the will was intrinsically invalid since it contained dispositions in
favor of Alice, who in the trial court’s opinion was a mere paramour. The trial court threw the
will out, leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2)
of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144
of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already
probated as duly executed in accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal circumstances here obtAining.

Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are covered by the policy against
absolute divorces, the same being considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided
they are valid according to their national law.
 Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven
that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner,
the ruling in Van Dorn would become applicable and petitioner could very well lose her right to
inherit from him.
In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his
country, the Federal Republic of Germany. There, we stated that divorce and its legal effects
may be recognized in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife
Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects
of this divorce (as to the succession to the estate of the decedent) are matters best left to the
determination of the trial court.
Validity of the Will
The Civil Code provides:

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine laws
shall be observed in their execution. (underscoring ours)

The clear intent of Lorenzo to bequeath his property to his second wife and children by her
is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was
a foreigner, not covered by our laws on family rights and duties, status, condition and legal
capacity.
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best
proved by foreign law which must be pleaded and proved. Whether the will was executed in
accordance with the formalities required is answered by referring to Philippine law. In fact, the
will was duly probated.
As a guide however, the trial court should note that whatever public policy or good customs
may be involved in our system of legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the amount of successional rights to
the decedent's national law.
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-
G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N.
Llorente by the Superior Court of the State of California in and for the County of San Diego,
made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the
intrinsic validity of Lorenzo N. Llorentes will and determination of the parties successional
rights allowing proof of foreign law with instructions that the trial court shall proceed with all
deliberate dispatch to settle the estate of the deceased within the framework of the Rules of
Court.
 X and Y married on February 22, 1937. On November 16, 1943, X became a US
citizen. On November 16, 1951, X filed for divorce from his Filipino spouse. On
January 16, 1958, X married Z.

VALIDITY OF FOREIGN DIVORCE- owing to nationality principle in Article 15 of

the Civil Code, only Philippine nationals are covered by the policy against absolute
divorce. Aliens may obtain divorces abroad provided they are valid according to their
national law. In Pilapil vs. Ibay-Somera, divorce and its legal effects may be recognized
in the Philippines in view of the nationality principle on the status of persons.

Republic v. Orbecido, 472SCRA 114, October 5, 2005

In 1981 X married Y in the Philippines. Their marriage was blessed with a son and
daughter. In 1986, Y left for the United States bringing along their son. A few years
later, X discovered that his wife had been naturalized as an American citizen. Sometime
in 2000, X learned from his son that his wife had obtained a divorce decree and then
married Z. X thereafter filed with the trial court a petition for authority to remarry. Will
the petition prosper?

Yes. X can remarry under Article 26 of the Family Code. Par. 2 of said article include
case involving parties who, at the time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a
divorce decree.

Two elements must be present (1) there is a valid marriage that has been celebrated
between a Filipino citizen and a foreigner; and (2) a valid divorce is obtained abroad by
the alien spouse capacitating him or her to remarry. When Y was naturalized as an
American citizen, there was still a valid marriage that has been celebrated between her
and X. The naturalized alien wife subsequently obtained a valid divorce capacitating
her to remarry. Thus, X the “divorced” Filipino spouse, should be allowed to remarry.

“Par. 2 of Art. 26 should be interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other party were a foreigner at
the time of the solemnization of the marriage. To rule otherwise would be to sanction
absurdity and injustice.

The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.”

Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to
remarry, can the Filipino spouse likewise remarry under Philippine law?

Before us is a case of first impression that behooves the Court to make a definite ruling
on this apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision dated May 15,
2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and
its Resolution dated July 4, 2002 denying the motion for reconsideration. The court a quo had
declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the
impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of
the Family Code and by reason of the divorce decree obtained against him by his
American wife, the petitioner is given the capacity to remarry under the
Philippine Law.

IT IS SO ORDERED.

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United
Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a
son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A
few years later, Cipriano discovered that his wife had been naturalized as an American
citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a
divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by
him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the
petition, the court granted the same. The Republic, herein petitioner, through the Office of the
Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26

OF THE FAMILY CODE

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a
petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that
governs respondents situation. The OSG posits that this is a matter of legislation and not of
judicial determination.

For his part, respondent admits that Article 26 is not directly applicable to his case but insists
that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry,
he is likewise capacitated by operation of law pursuant to Section 12, Article II of the
Constitution.

At the outset, we note that the petition for authority to remarry filed before the trial court
actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of
the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
 Section 1. Who may file petition. Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or other governmental regulation may,
before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and for
a declaration of his rights or duties, thereunder.. . .

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy;
(2) the controversy must be between persons whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial
determination.

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between

two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of marriage while respondent, a
private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for
relief, has legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues and puts into question
the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply
to the case of respondent? Necessarily, we must dwell on how this provision had come about in
the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No.
209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26
thereof states:
All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35, 37,
and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order
No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A
second paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance

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

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by
the case at hand. It seems to apply only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the
time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife
was naturalized as an American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings on the Family Code, the Catholic
Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph
2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose
spouses are Filipinos who divorce them abroad. These spouses who are
divorced will not be able to re-marry, while the spouses of foreigners who
validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce
even for Filipino citizens. For those whose foreign spouses validly
divorce them abroad will also be considered to be validly divorced here
and can re-marry. We propose that this be deleted and made into law only
after more widespread consultation. (Emphasis supplied.)

Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil
Code Revision Committee, is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van
Dorn v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and
a foreigner. The Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the
marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign
citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals. In Quita, the parties were, as in this case, Filipino citizens when they got married.
The wife became a naturalized American citizen in 1954 and obtained a divorce in the
same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by
his naturalized foreign spouse is no longer married under Philippine law and can thus
remarry.

Thus, taking into consideration the legislative intent and applying the rule of
reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases
involving parties who, at the time of the celebration of the marriage were Filipino citizens,
but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party
were a foreigner at the time of the solemnization of the marriage. To rule otherwise would
be to sanction absurdity and injustice. Where the interpretation of a statute according to
its exact and literal import would lead to mischievous results or contravene the clear
purpose of the legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may therefore be extended
to cases not within the literal meaning of its terms, so long as they come within its spirit or
intent.

If we are to give meaning to the legislative intent to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer
married to the Filipino spouse, then the instant case must be deemed as coming within the
contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a

Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration
of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the
alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still
a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry.
Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in
this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSGs theory that the proper remedy of the Filipino
spouse is to file either a petition for annulment or a petition for legal separation. Annulment
would be a long and tedious process, and in this particular case, not even feasible, considering
that the marriage of the parties appears to have all the badges of validity. On the other hand,
legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence,
the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of respondents wife. It is
settled rule that one who alleges a fact has the burden of proving it and mere allegation is not
evidence.

Accordingly, for his plea to prosper, respondent herein must prove his allegation that
his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree
can be recognized by our own courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it. Such foreign law must also
be proved as our courts cannot take judicial notice of foreign laws. Like any other fact,
such laws must be alleged and proved. Furthermore, respondent must also show that the
divorce decree allows his former wife to remarry as specifically required in Article 26.
Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter
into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the

Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a
Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship
and remarried, also to remarry. However, considering that in the present petition there is no
sufficient evidence submitted and on record, we are unable to declare, based on respondents
bare allegations that his wife, who was naturalized as an American citizen, had obtained a
divorce decree and had remarried an American, that respondent is now capacitated to remarry.
Such declaration could only be made properly upon respondents submission of the aforecited
evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The

assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

G.R. No. 167109 February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner, vs. COURT OF APPEALS, MANILA,

ORLANDO B. CATALAN and MEROPE E. BRAGANZA, Respondent

Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini,

Pangasinan. Thereafter, they migrated to the United States of America and allegedly became
naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April
1988.

Two months after the divorce, or on June 16, 1988, Orlando married respondent Merope in
Calasiao, Pangasinan. Contending that said marriage was bigamous since Merope had a prior
subsisting marriage with Eusebio Bristol, petitioner filed a petition for declaration of nullity
of marriage with damages in the RTC of Dagupan City against Orlando and Merope.

Respondents filed a motion to dismiss on the ground of lack of cause of action as petitioner was
allegedly not a real party-in-interest, but it was denied. Trial on the merits ensued.

On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the dispositive
portion of which reads:

WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and against
defendants Orlando B. Catalan and Merope E. Braganza, as follows:

1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is declared

null and void ab initio;

2) The defendants are ordered jointly and severally to pay plaintiff by way of moral
damages the amount of P300,000.00, exemplary damages in the amount of P200,000.00
and attorney’s fees in the amount of P50,000.00, including costs of this suit; and

3) The donation in consideration of marriage is ordered revoked and the property

donated is ordered awarded to the heirs of Juliana Braganza.

Xxx

Respondents appealed the decision to the Court of Appeals, which reversed the decision of the
RTC, thus:

WHEREFORE, premises considered, we hereby GRANT the appeal and consequently

REVERSE and SET ASIDE the appealed decision. We likewise DISMISS Civil Case No. D-
10636, RTC, Branch 44, Dagupan City. No costs.
After the motion for reconsideration was denied, petitioner filed the instant petition for review
raising the following issues:

WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION

THE NULLITY OF THE MARRIAGE BETWEEN RESPONDENTS;

WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE

QUESTIONED MARRIAGE VOID CONSTITUTES REVERSIBLE ERROR.

Petitioner contends that the bigamous marriage of the respondents, which brought
embarrassment to her and her children, confers upon her an interest to seek judicial remedy to
address her grievances and to protect her family from further embarrassment and humiliation.
She claims that the Court of Appeals committed reversible error in not declaring the marriage
void despite overwhelming evidence and the state policy discouraging illegal and immoral
marriages.

The main issue to be resolved is whether petitioner has the personality to file a petition for
the declaration of nullity of marriage of the respondents on the ground of bigamy.
However, this issue may not be resolved without first determining the corollary factual
issues of whether the petitioner and respondent Orlando had indeed become naturalized
American citizens and whether they had actually been judicially granted a divorce decree.

While it is a settled rule that the Court is not a trier of facts and does not normally undertake the
re-examination of the evidence presented by the contending parties during the trial of the
case, there are, however, exceptions to this rule, like when the findings of facts of the RTC and
the Court of Appeals are conflicting, or when the findings are conclusions without citation of
specific evidence on which they are based.

Both the RTC and the Court of Appeals found that petitioner and respondent Orlando were
naturalized American citizens and that they obtained a divorce decree in April 1988. However,
after a careful review of the records, we note that other than the allegations in the complaint and
the testimony during the trial, the records are bereft of competent evidence to prove their
naturalization and divorce.

The Court of Appeals therefore had no basis when it held:

In light of the allegations of Felicitas’ complaint and the documentary and testimonial evidence
she presented, we deem it undisputed that Orlando and Felicitas are American citizens and had
this citizenship status when they secured their divorce decree in April 1988. We are not
therefore dealing in this case with Filipino citizens whose marital status is governed by the
Family Code and our Civil Code, but with American citizens who secured their divorce in the
U.S. and who are considered by their national law to be free to contract another marriage. x x x

Further, the Court of Appeals mistakenly considered the failure of the petitioner to refute or
contest the allegation in respondents’ brief, that she and respondent Orlando were American
citizens at the time they secured their divorce in April 1988, as sufficient to establish the fact of
naturalization and divorce. We note that it was the petitioner who alleged in her complaint that
they acquired American citizenship and that respondent Orlando obtained a judicial divorce
decree. It is settled rule that one who alleges a fact has the burden of proving it and mere
allegation is not evidence.

Divorce means the legal dissolution of a lawful union for a cause arising after marriage. But
divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage,
while the second suspends it and leaves the bond in full force. A divorce obtained abroad by an
alien may be recognized in our jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, before it can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it, which must be proved considering that our courts cannot take judicial notice of
foreign laws.

Without the divorce decree and foreign law as part of the evidence, we cannot rule on the issue
of whether petitioner has the personality to file the petition for declaration of nullity of
marriage. After all, she may have the personality to file the petition if the divorce decree
obtained was a limited divorce or a mensa et thoro; or the foreign law may restrict remarriage
even after the divorce decree becomes absolute. In such case, the RTC would be correct to
declare the marriage of the respondents void for being bigamous, there being already in
evidence two existing marriage certificates, which were both obtained in the Philippines, one in
Mabini, Pangasinan dated December 21, 1959 between Eusebio Bristol and respondent
Merope, and the other, in Calasiao, Pangasinan dated June 16, 1988 between the respondents.

However, if there was indeed a divorce decree obtained and which, following the national
law of Orlando, does not restrict remarriage, the Court of Appeals would be correct in
ruling that petitioner has no legal personality to file a petition to declare the nullity of
marriage, thus:

Freed from their existing marital bond, each of the former spouses no longer has any
interest nor should each have the personality to inquire into the marriage that the other
might subsequently contract. x x x Viewed from another perspective, Felicitas has no
existing interest in Orlando’s subsequent marriage since the validity, as well as any defect
or infirmity, of this subsequent marriage will not affect the divorced status of Orlando and
Felicitas. x x x

True, under the New Civil Code which is the law in force at the time the respondents were
married, or even in the Family Code, there is no specific provision as to who can file a petition
to declare the nullity of marriage; however, only a party who can demonstrate "proper interest"
can file the same. A petition to declare the nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party in interest and must be based on a cause of
action. Thus, in Niñal v. Bayadog, the Court held that the children have the personality to file
the petition to declare the nullity of the marriage of their deceased father to their stepmother as
it affects their successional rights.

Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages, which took effect on March 15, 2003, now specifically
provides:

SECTION 2. Petition for declaration of absolute nullity of void marriages. —

(a) Who may file. — A petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or the wife.

xxxx

In fine, petitioner’s personality to file the petition to declare the nullity of marriage cannot be
ascertained because of the absence of the divorce decree and the foreign law allowing it. Hence,
a remand of the case to the trial court for reception of additional evidence is necessary to
determine whether respondent Orlando was granted a divorce decree and whether the foreign
law which granted the same allows or restricts remarriage. If it is proved that a valid divorce
decree was obtained and the same did not allow respondent Orlando’s remarriage, then the trial
court should declare respondents’ marriage as bigamous and void ab initio but reduce the
amount of moral damages from P300,000.00 to P50,000.00 and exemplary damages
from P200,000.00 to P25,000.00. On the contrary, if it is proved that a valid divorce decree was
obtained which allowed Orlando to remarry, then the trial court must dismiss the instant petition
to declare nullity of marriage on the ground that petitioner Felicitas Amor-Catalan lacks legal
personality to file the same.

WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court for its
proper disposition. No costs.

BAYOT v. COURT OF APPEALS, 570 SCRA 472, November 7, 2008 – SC

affirmed the dismissal of a case for declaration of nullity on the ground
that the petitioner thereof already obtained a divorce in another country,
which can be recognized in the Phils. The petitioner and her husband
were former Fils. At the time of divorce they were already US citizens, for
the petitioner to file declaration of nullity of marriage here in the Phils.
She has no standing because we recognized the divorce decree secured
and as such she no longer has any standing to file for declaration of
nullity of marriage with prayer for support here in our courts because
there is no longer any marriage to speak of.

Three legal premises need to be underscored at the outset. First, a

divorce obtained abroad by an alien married to a Philippine national may
be recognized in the Philippines, provided the decree of divorce is valid
according to the national law of the foreigner. 31 Second, the reckoning
point is not the citizenship of the divorcing parties at birth or at the
time of marriage, but their citizenship at the time a valid divorce is
obtained abroad. And third, an absolute divorce secured by a Filipino
married to another Filipino is contrary to our concept of public policy
and morality and shall not be recognized in this jurisdiction.

Legal Effects of the Valid Divorce

Given the validity and efficacy of divorce secured by Rebecca, the same shall be given a res
judicata effect in this jurisdiction. As an obvious result of the divorce decree obtained, the
marital vinculum between Rebecca and Vicente is considered severed; they are both freed from
the bond of matrimony. In plain language, Vicente and Rebecca are no longer husband and wife
to each other. As the divorce court formally pronounced: "[T]hat the marriage between MARIA
REBECCA M. BAYOT and VICENTE MADRIGAL BAYOT is hereby dissolved x x x leaving
them free to remarry after completing the legal requirements."

Consequent to the dissolution of the marriage, Vicente could no longer be subject to a husband's
obligation under the Civil Code. He cannot, for instance, be obliged to live with, observe
respect and fidelity, and render support to Rebecca.

The divorce decree in question also brings into play the second paragraph of Art. 26 of the
Family Code, providing as follows:

Art. 26. x x x x
 Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine
law. (As amended by E.O. 227)

In Republic v. Orbecido III, we spelled out the twin elements for the applicability of the
second paragraph of Art. 26, thus:

x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26
as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and
a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to
remarry.

The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.

Both elements obtain in the instant case. We need not belabor further the fact of marriage of
Vicente and Rebecca, their citizenship when they wed, and their professed citizenship during
the valid divorce proceedings.

Not to be overlooked of course is the fact that Civil Decree No. 406/97 and the Agreement
executed on December 14, 1996 bind both Rebecca and Vicente as regards their property
relations. The Agreement provided that the ex-couple's conjugal property consisted only their
family home, thus:

9. That the parties stipulate that the conjugal property which they acquired during
their marriage consists only of the real property and all the improvements and
personal properties therein contained at 502 Acacia Avenue, Ayala Alabang, Muntinlupa,
covered by TCT No. 168301 dated Feb. 7, 1990 issued by the Register of Deeds of
Makati, Metro Manila registered in the name of Vicente M. Bayot, married to Rebecca
M. Bayot, x x x.46 (Emphasis ours.)

This property settlement embodied in the Agreement was affirmed by the divorce court which,
per its second divorce decree, Civil Decree No. 406/97 dated March 4, 1997, ordered that,
"THIRD: That the agreement entered into between the parties dated 14 th day of December 1996
in Makati City, Philippines shall survive in this Judgment of divorce by reference but not
merged and that the parties are hereby ordered and directed to comply with each and every
provision of said agreement."

Rebecca has not repudiated the property settlement contained in the Agreement. She is thus
estopped by her representation before the divorce court from asserting that her and Vicente's
conjugal property was not limited to their family home in Ayala Alabang.

No Cause of Action in the Petition for Nullity of Marriage

Upon the foregoing disquisitions, it is abundantly clear to the Court that Rebecca lacks, under
the premises, cause of action. Philippine Bank of Communications v. Trazo explains the concept
and elements of a cause of action, thus:
 A cause of action is an act or omission of one party in violation of the legal right of the
other. A motion to dismiss based on lack of cause of action hypothetically admits the
truth of the allegations in the complaint. The allegations in a complaint are sufficient to
constitute a cause of action against the defendants if, hypothetically admitting the facts
alleged, the court can render a valid judgment upon the same in accordance with the
prayer therein. A cause of action exists if the following elements are present, namely:
(1) a right in favor of the plaintiff by whatever means and under whatever law it arises
or is created; (2) an obligation on the part of the named defendant to respect or not to
violate such right; and (3) an act or omission on the part of such defendant violative of
the right of the plaintiff or constituting a breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an action for recovery of damages.49

One thing is clear from a perusal of Rebecca's underlying petition before the RTC, Vicente's
motion to dismiss and Rebecca's opposition thereof, with the documentary evidence attached
therein: The petitioner lacks a cause of action for declaration of nullity of marriage, a suit which
presupposes the existence of a marriage.

To sustain a motion to dismiss for lack of cause of action, the movant must show that the claim
for relief does not exist rather than that a claim has been defectively stated or is ambiguous,
indefinite, or uncertain. With the valid foreign divorce secured by Rebecca, there is no more
marital tie binding her to Vicente. There is in fine no more marriage to be dissolved or nullified.

Aliens may obtain divorces abroad, which may be recognized in the

Philippines, provide, they are valid according to their national law. The
foreign marital law and the divorce decree must be duly proven and
cannot be taken judicial notice of (Garcia v. Recio, October 2, 2001). Our
civil law adheres to the nationality rule on the matter of status or legal
capacity of a person (Recto v. harden, 100 Phil 427; Van Dorn v. Romillo,
139 SCRA 139; Pilapil v. Ibay-Somera, 174 SCRA 653). This means that
as to a person’s status or legal capacity, the law of the country of the
person shall determine such status or legal capacity.

FOREIGNER FILING PETITION FOR RECOGNITION OF DIVORCE –

CORPUS V. STO. TOMAS, August 11, 2010. Where a foreigner (former Fil
now Canadian citizen) files a petition for recognition of the divorce he
secured in Canada against his Fil wife. The former fil. Would want to
cause the recognition since he wanted to marry another Fil. But when he
caused the registration in his marriage certificate with his former Fil.
spouse, although the NSO registered it, they informed him that there
must be a judicial decree of foreign divorce. His former wife did not
oppose the petition but filed a manifestation saying she consents to the
petition. Trial court dismissed the case on the ground that : “ The alien
spouse can claim no right under the second par. of Art. 26 of the FC as
the substantive right it established is in favor of the Fil. Spouse. SC held
– the provision of par. 2 Art. 26 of the FC was included in the law “ to
avoid the absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse. The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status, settling the
doubts created by the divorce decree. Essentially, the second par. of Art.
26 of the FC provided the Fil. Spouse a substantive right to have his or
her marriage to the alien spouse considered as dissolved, capacitating
him or her to remarry. Without the 2 nd par. of Art. 26 of the FC the
judicial recognition of the foreign decree of divorce , whether in a
proceeding instituted precisely for that purpose or as a related issued in
another proceeding, would be of no significance to the Fil. Spouse since
our laws do not recognize divorce as a mode of severing the marital bond;
Art. 17 of the CC provides that the policy against absolute divorces
cannot be subverted by judgments promulgated in a foreign country. The
inclusion of the 2nd par. in Art. 26 of the FC provides the direct exception
to this rule and serves a basis for recognizing the dissolution of the
marriage between the Fil. Spouse and his or her alien spouse.

Additionally, an action based on the second par. of Art. 26 of the

FC is not limited to the recognition of the foreign divorce decree. If the
court finds that the decree capacitated the alien spouse to remarry, the
courts can declare that the Fil spouse is likewise capacitated to contract
another marriage.

Given the rationale and intent behind the enactment, and the
purpose of the 2nd par. of Art. 26 of the FC, the RTC was correct in
limiting the applicability of the provision for the benefit of the Fil.
Spouse. In other words, only the Fil. Spouse can invoke the second par.
of Art. 26 of the FC; the alien spouse can claim no right under this
provision.

HOWEVER, the SC qualifies its conclusion – stating that this conclusion

is not sufficient basis to dismiss foreigner’s petition or his legal interest
to petition the RTC for the recognition of his foreign divorce decree. The
foreign divorce decree itself, after its authenticity and conformity with
the alien’s national law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in favor of Gilbert,
pursuant to sec. 48, Rule 39 of the RC which provides for the effect of
foreign judgments. (b) in case of a judgment or final order against a
person, the judgment or final order is presumptive evidence or a right as
between the parties and their successors in interest by a subsequent
title.

Subsequently, the SC order the remand of the case to the RTC , given
that Art. 26 interests that will be served and the Fil wife’s obvious
conformity with the petition, remand the case in order to allow other
interested parties to oppose the foreign judgment and overcome a
petitioner’s presumptive evidence of a right by proving want of
jurisdiction, want of notice, collusion, fraud or clear mistake of law or
fact. X x x as the foreign judgment once recognized shall have the effect
of res judicata between the parties as provided in Sec. 48, Rule 39 of the
RC.

SC went on further to state that the Pasig Civil Registry office

registration of the divorce decree on the marriage certificate of the
former spouses was null and void and cannot produce any legal effect. It
was not in Art. 417 of the CC which declares that “no entry in the civil
registry shall be changed or corrected, without judicial order.” Rule 108
of the RC provides the jurisdictional and procedural requirements that
must be complied with before a judgment. Authoring the cancellation or
correction, may be annotated in the civil registry. accordance with Art

NOTE CASE OF OFFICE OF THE COURT ADMINISTRATOR V.

NECESSARIO, A.M. NO. MJT-07-1691, APRIL 2, 2013

The SC, in administrative ruling against judges who irregularly

solemnized marriages from 2003 – 2007, made a statement that for the
exception to apply, The judges’ gross ignorance of the law is also evident
when they solemnized marriages under Article 34 of the Family Code
without the required qualifications and with the existence of legal
impediments such as minority of a party. Marriages of exceptional
character such as those made under Article 34 are, doubtless, the
exceptions to the rule on the indispensability of the formal requisite of a
marriage license. Under the rules of statutory construction, exceptions
as a general rule should be strictly but reasonably construed. The
affidavits of cohabitation should not be issued and accepted pro forma
particularly in view of the settled rulings of the Court on this matter.
The five-year period of cohabitation should be one of a perfect union
valid under the law but rendered imperfect only by the absence of the
marriage contract. The parties should have been capacitated to marry
each other during the entire period and not only at the time of the
marriage.

The SC used the case of Ninal v. Bayadog which was a case applying NOT
Art. 34 of the FC but the old Art. 76 of the CC. be that as it may,
considering that the case is an administrative one which does not deal
with the validity of a marriage, the statement may be considered an
obiter dictum which does not create a precedent.

A.M. No. MTJ-14-1842 February 24, 2014

REX M. TUPAL, Complainant, vs.JUDGE REMEGIO V. ROJO, Branch 5, Municipal Trial Court
in Cities (MTCC), Bacolod City, Negros Occidental, Respondent.

RESOLUTION
LEONEN, J.:

Municipal trial court judges cannot notarize affidavits of cohabitation of parties whose
marriage they will solemnize.

Rex M. Tupal filed with the Office of the Court Administrator a complaint against Judge
Remegio V. Rojo for violating the Code of Judicial Conduct and for gross ignorance of the law.

Judge Remegio V. Rojo presides Municipal Trial Court in Cities, Branch 5, Bacolod City,
Negros Occidental. Judge Rojo allegedly solemnized marriages without the required marriage
license. He instead notarized affidavits of cohabitation and issued them to the contracting
parties. He notarized these affidavits on the day of the parties’ marriage. These "package
marriages" are allegedly common in Bacolod City.

As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to
examine whether the parties have indeed lived together for at least five years without legal
impediment to marry. The Guidelines does not state that the judge can notarize the
parties’ affidavit of cohabitation.
Thus, affidavits of cohabitation are documents not connected with the judge’s official
function and duty to solemnize marriages. Notarizing affidavits of cohabitation is
inconsistent with the duty to examine the parties’ requirements for marriage. If the
solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine
and review the affidavit’s statements before performing the marriage ceremony. Should
there be any irregularity or false statements in the affidavit of cohabitation he notarized,
he cannot be expected to admit that he solemnized the marriage despite the irregularity or
false allegation.

Thus, judges cannot notarize the affidavits of cohabitation of the parties whose marriage
they will solemnize. Affidavits of cohabitation are documents not connected with their
official function and duty to solemnize marriages.

C. Void and Voidable marriages

1. Void Marriage – Arts. 5, 35, 36-8, 52-3

a. Absence of Requisites, Art. 35
b. Psychological incapacity, Art. 36
c. Incestuous marriages, Arts. 37-38

A. Void Marriages
1. Absence of Essential or Formal Requisites (Art. 35)
2. Void marriages under Art. 35
Those contracted by any party below 18 years of age
Those solemnized by any person not legally authorized to perform marriages
Those solemnized without a license
Those bigamous or polygamous marriages not falling under Art. 41

Note: Article 41 refers to a valid bigamous marriage

Those contracted through mistake of one contracting party as to the identity of

the other; and
Those subsequent marriages that are void under Art. 53

3. Psychological Incapacity of one or both of the contracting parties to perform his

or her essential marital obligations (Art. 36)
4. Incestuous marriages, whether the relationship between the parties be legitimate
or illegitimate (Art. 37)

4.1 Between ascendants and descendants of any degree; and

4.2 Between brothers and sisters, whether of the full or half-blood

5. Marriages declared void by reason of public policy (Art. 38)

Between collateral blood relatives, whether legitimate or illegitimate, up to the

fourth civil degree;
Between step-parents and step-children
Between parents-in-law and children-in-law
Between the adopting parent and the adopted child;
Between the surviving spouse of the adopting parents and the adopted child;
Between the surviving spouse of the adopted child and the adopter;
Between an adopted child and a legitimate child of the adopter
 Between the adopted children of the same adopter
Between parties where one, with the intention to marry the other, killed that
other person’s spouse or his or her own spouse

6. Marriages under Art. 40

“The absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis of a final judgment declaring such previous marriage
void.

7. Marriages under Art. 44

“If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations by reason of the marriage and
testamentary dispositions made by one in favor of the other are revoked by
operation of law.”

8. Failure to comply with the recording requirements under Art. 52 (Art. 53)

Either of the former spouses may marry again after complying with the
requirements in Art. 52; otherwise, the subsequent marriage is void.

“The judgment of annulment or of absolute nullity of the marriage, the partition

and distribution of the properties of the spouses, and the delivery of the
children’s presumptive legitimes shall be recorded in the appropriate civil
registry and registries of property. (Art. 52)

EXLUSIVE – no other void marriages other than those specifically

provided by law.

i.e. marriage between stepbrother and stepsister is valid

GROUNDS for void marriages may co-exist in one case. Hence a petition
may contain many grounds for nullity of marriage but it has only one
cause of action, which is the nullity of the marriage (MALLION V.
ALCANTARA, October 31, 2006).

However, in Mallion v. Alcantara, October 31, 2006, where the

petitioner, after being denied the nullity of his marriage via a petition
based on psychological incapacity, subsequently filed another petition
for nullity of marriage based on the absence of a marriage license, the SC
directed the dismissal of the subsequent case on the ground that the
petitioner violated the rule on splitting-a-cause of action, the rule on res
judicata applied and that the petitioner waived the defect. The SC said
that a case for nullity of marriage involved only one cause of action
which was to declare the marriage void. The different grounds for nullity
of marriage did not mean different causes of action. Hence, in not
invoking the ground of absence of a marriage license in the first case and
then in filing a subsequent case invoking the said ground, the petitioner
violated the rule on splitting of cause of action. Accordingly, the
petitioner was considered to have been barred by res judiciata.
According to the SC, not having invoked the ground of absence of a
marriage license in the first case and the petitioner was considered to
have impliedly admitted the validity of the celebration of the marriage
and that he had therefore waived all the defects.

(NOTE- This ruling appears to have given more weight to procedure

rather than substantial law which would be contrary to the doctrine that
no amount of ratification, waiver, acquiescence, or estoppel can validate
a void marriage. This is because a void marriage is void from the very
beginning.

VOID from VOIDABLE – a void marriage is different from a voidable or

annullable marriage under Art. 45. In Suntay v. Cojuangco-Suntay ( Dec.
29, 1998, the SC said “a marriage that is annulled presupposes that it
subsists but later ceases to have legal effect when it is terminated
through court action. But in nullifying a marriage, the Court simply
declares a status or condition which already exists from the beginning.”

DISTINCTIONS between void and voidable marriages:

1. Voidable marriage is valid until otherwise declared by the court;

Void ab initio is considered as having never to have taken place and
cannot be the source of rights;

2. Voidable m. can be ratified or confirmed by free cohabitation or

prescription; void m. can never be ratified or cured by any act of any of
the contracting parties. Neither can estoppel or acquiescence apply to
remedy the infirmity;

i.e. If one party is 16 and alleged in an affidavit that he/she is 21

and the other consented to this it will not cure the infirmity, there is no
estoppel.

If, in order not to secure a marriage license, the parties executed

an affidavit that they have been cohabiting for 5 years when in truth
they have only been cohabiting for 2 years, the marriage is void for lack
of a valid marriage license. ( De Castro v. De-Castro, Feb. 13, 2008, 545
SCRA 162; Republic v. Dayot, March 28, 2008, 550 SCRA 435)

3. Voidable m. cannot be assailed collaterally except in a direct

proceeding; void m. can be collaterally attacked. An exception where a
direct attack is necessary is in case of Art. 40, and when a donor desires
to revoke a donation propter nuptias, there must first be a judicial
declaration of nullity of the marriage before he can revoke the donation
propter nuptias.

4. Consequently, void m can be questioned even after the death of

either party but voidable m can be assailed only during the lifetime of
the parties and not after death of either, in which case the parties and
their offspring will be left as if the marriage had been perfectly valid;

5. Action or defense for nullity is imprescriptible unlike voidable m.

where the action prescribes;
6. Only the parties (or those designated by the law such as parents
and guardians) to a voidable m. can assail it but any proper interested
party may attack a void m.

7. Void m. have no legal effect except those declared by law

concerning the properties of the alleged spouses, regarding co-ownership
or ownership through actual joint contribution, and its effects on the
children born to such void m. as provided in Art. 50 irt to Arts. 43 and
44 as well as Arts. 51, 53 and 54 of the FC. On the contrary, the
property regime governing voidable m. is generally conjugal partnership
or absolute community and the children conceived before its annulment
are legitimate (Ninal v. Bayadog, 328 SCRA 122)

BAD FAITH OR GOOD FAITH – as a general rule, GF and BF are

immaterial in determining whether a marriage is null and void. The
action to declare a marriage void may be filed by either party i.e. even
the spouse who is psychologically incapacitated.

The equitable doctrine of unclean hands where the Court should

not grant relief to the wrongdoer is not a rule as applied in nullity
actions because it is merely judge-made and has no statutory basis.

While the FC generally refers to an “injured party” in annullable or

voidable marriages, it does not make any statutory reference to an
“injured party” in null and void marriages. This is also because what is
sought to be protect is the interest and public policy of the State. In
declaring a marriage void, the State expresses that it does not consider a
union in a void marriage as serving the fundamental purpose of the state
of fostering and nurturing a family which is the foundation of society.
Nonetheless, the party who knew that he or she was entering a void
marriage before its solemnization may be held liable for damages by the
other contracting party under the provisions of Human Relations in the
CC (Arts. 19,. 20, 21)

However, with respect to property disposition bad faith is material

in a void marriage. As a general rule, in a void marriage, the property
regime is one of co-ownership. Disposition will be in accordance with
Arts. 147 and 148 where there is one party in GF and the other in bf, the
share of the spouse in bf will be forfeited in accordance with the
provision of law. Exception void marriage under Art. 40 and in the
distribution of the properties Art. 50 irt to Art. 43 will apply.

Abbas v. Abbas, Jan. 30, 2013 – SC held that, even if a party’s

intention in filing a declaration of nullity case were less than pure as the
intention was merely to evade a bigamy case, such fact will not prevent
the declaration of nullity on the basis of a clear showing that there was
absence of a marriage license warranting such declaration.

EXCEPTIONS TO GF/BF:
 (1) Art. 35 (2) where either of the contracting parties is in GF in
believing that a solemnizing officer has authority to solemnize a
marriage though he or she actually has none, the marriage will be
considered valid;

(2)Art. 41 referring to valid bigamous marriage/presumptive death –

one requisite is that at the time of the subsequent marriage ceremony,
the present spouse is in good faith together with the subsequent spouse
of the presumptive death of the absent spouse and had a well-founded
belief that the absent spouse is already dead.; otherwise, the subsequent
marriage shall be considered void (Art. 44)

In these two cases the GF of one of the parties shall make the
marriage valid; however, the BF of both parties to the marriage will make
the marriage void.

VOID MARRIAGES:

1. BELOW 18 YEARS OF AGE (Art. 35)

Consent of the parents to the marriage is immaterial, the marriage would

still be void.
Neither will subsequent consent of the parents ratify such void marriage.

2. NON-AUTHORITY OF THE SOLEMNIZING OFFICER (Art. 35)

EXCEPTION – if either or both of the contracting parties, not the

solemnizing officer, believed in good faith that the solemnizing officer
had the authority to solemnize the marriage. The GF must be with
respect only to the belief that they were honestly married and that the
solemnizing officer had the authority to solemnize the marriage.

3. MISTAKE IN IDENTITY – (Art. 35) there is absolutely no consent

here because the person under the mistaken belief, did not intend to
marry the other. Mistake as to the physical identity of the other person
and not mistake as to name, character, pedigree, pecuniary means,
temperaments, acquirements, condition in life.

4. NO MARRIAGE LICENSE – unless falling under the exception where

no marriage license is required.

5. BIGAMOUS/POLYGAMOUS MARRIAGES

Bigamy – without judicial declaration, the void nature of the previous

marriage cannot be used as a defense in a bigamy case. There can be
criminal liability for bigamy even of the first marriage is void and there is
no judicial declaration of nullity.

The accused may still be charged with bigamy, even if there is a

subsequent declaration of nullity of the second marriage, so long as the
first marriage was still subsisting when the second marriage was
celebrated. (Capili v. People and Tismo-Capili, July 3, 2013)
6. VOID UNDER ART. 53 (Art. 35) – failure to comply with the
recording requirement with the civil registrar, with the register of
deeds, and the partition and delivery of the presumptive legitime.

7. ART. 37 INCESTUOUS MARRIAGES – between ascendants and

descendants of whatever degree; brothers and sisters, whether full or
half blood

8. ART. 38 VOID BY REASON OF PUBLIC POLICY

1. Between collateral blood relatives, whether legitimate or

illegitimate, up to the fourth civil degree;

2. Between step-parents and step-children;

3. Between parents-in-law and children-in-law

4. Between the adopting parent and the adopted child;

5. Between the surviving spouse of the adopting parent and the

adopted child;

6. Between the surviving spouse of the adopted child and the adopter;

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

8. Between the adopted children of the same adopter; and

9. Between parties where one, with the intention to marry the other,
killed that other person’s spouse or his or her own spouse.

Reason – the marriages under Art. 38 will not serve the fundamental
objective of nurturing a stable family unit that can effectively be the
foundation of society

MARRIAGE BETWEEN PARENT-IN-LAW AND CHILDREN-IN-LAW; EFFECT

OF TERMINATION OF MARRIAGE ON THE AFFINITY PROHIBITION – In
the event that the marriage is annulled or nullified in accordance with
law, there can be no question that the relationship by affinity between
step-parents and step-children as well as parents-in-law and children-in-
law is terminated, the said persons become strangers to each other and
this will allow them to marry each other legally.

INTESTATE ESTATE OF G.R. No. 181409

MANOLITA GONZALES VDA.
DE CARUNGCONG, represented
by MEDIATRIX CARUNGCONG,
as Administratrix, Petitioner,

-versus-
 PEOPLE OF THE PHILIPPINES
and WILLIAM SATO,
Respondents. Promulgated:

February 11, 2010

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. No criminal,

but only civil liability shall result from the commission of the crime of
theft, swindling, or malicious mischief committed or caused mutually
by the following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same

line;

2. The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession
of another; and
3. Brothers and sisters and brothers-in-law and sisters-
in-law, if living together.

The exemption established by this article shall not be applicable

to strangers participating in the commission of the crime. (emphasis
supplied)

For purposes of the aforementioned provision, is the

relationship by affinity created between the husband and the blood
relatives of his wife (as well as between the wife and the blood
relatives of her husband) dissolved by the death of one spouse, thus
ending the marriage which created such relationship by
affinity? Does the beneficial application of Article 332 cover the
complex crime of estafa thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly

appointed administratrix[1] of petitioner intestate estate of her
deceased mother Manolita Gonzales vda. de Carungcong, filed a
complaint-affidavit[2] for estafa against her brother-in-law, William
Sato, a Japanese national. Her complaint-affidavit read:

I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of

legal age, single, and resident of Unit 1111, Prince Gregory
Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly
sworn, depose and state that:
1. I am the duly appointed Administratrix of the Intestate Estate
of Manolita Carungcong Y Gonzale[s], docketed as Spec. Procs. No.
[Q]-95-23621[,] Regional Trial Court of Quezon City, Branch 104,
being one (1) of her surviving daughters. Copy of the Letters of
Administration dated June 22, 1995 is hereto attached as Annex A to
form an integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve

the properties of the Intestate Estate of Manolita Carungcong Y
Gonzale[s], but also to recover such funds and/or properties as property
belonging to the estate but are presently in the possession or control of
other parties.

3. After my appointment as Administratrix, I was able to confer

with some of the children of my sister Zenaida Carungcong Sato[,] who
predeceased our mother Manolita Carungcong Y Gonzales, having died
in Japan in 1991.

4. In my conference with my nieces Karen Rose Sato and Wendy

Mitsuko Sato, age[d] 27 and 24 respectively, I was able to learn that
prior to the death of my mother Manolita Carungcong Y Gonzale[s],
[s]pecifically on o[r] about November 24, 1992, their father William
Sato, through fraudulent misrepresentations, was able to secure the
signature and thumbmark of my mother on a Special Power of Attorney
whereby my niece Wendy Mitsuko Sato, who was then only twenty (20)
years old, was made her attorney-in-fact, to sell and dispose four (4)
valuable pieces of land in Tagaytay City. Said Special Power of
Attorney, copy of which is attached as ANNEX A of the Affidavit of
Wendy Mitsuko Sato, was signed and thumbmark[ed] by my mother
because William Sato told her that the documents she was being made
to sign involved her taxes. At that time, my mother was completely
blind, having gone blind almost ten (10) years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my

mother in the presence of Wendy, my other niece Belinda Kiku Sato,
our maid Mana Tingzon, and Governor Josephine Ramirez who later
became the second wife of my sisters widower William Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed

the document in the belief that they were in connection with her taxes,
not knowing, since she was blind, that the same was in fact a Special
Power of Attorney to sell her Tagaytay properties.

7. On the basis of the aforesaid Special Power of Attorney,

William Sato found buyers for the property and made my niece Wendy
Mitsuko Sato sign three (3) deeds of absolute sale in favor of (a) Anita
Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary
Public Vicente B. Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68,
Book No. V, Series of 1992 of Notary Public Vicente B. Custodio) and
(c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of
1993 of Notary Public Toribio D. Labid). x x x

8. Per the statement of Wendy Mitsuko C. Sato, the

considerations appearing on the deeds of absolute sale were not the true
and actual considerations received by her father William Sato from the
buyers of her grandmothers properties. She attests that Anita Ng
actually paid P7,000,000.00 for the property covered by TCT No. 3148
and P7,034,000.00 for the property covered by TCT No. 3149. All the
aforesaid proceeds were turned over to William Sato who undertook to
make the proper accounting thereof to my mother, Manolita
Carungcong Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee

Tsai paid P8,000,000.00 for the property covered by Tax Declaration
No. GR-016-0735, and the proceeds thereof were likewise turned over
to William Sato.

10. The considerations appearing on the deeds of sale were

falsified as Wendy Mitsuko C. Sato has actual knowledge of the true
amounts paid by the buyers, as stated in her Affidavit, since she was the
signatory thereto as the attorney-in-fact of Manolita Carungcong Y
Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any
position to oppose or to refuse her fathers orders.

12. After receiving the total considerations for the properties sold
under the power of attorney fraudulently secured from my mother,
which total P22,034,000.00, William Sato failed to account for the same
and never delivered the proceeds to Manolita Carungcong Y Gonzale[s]
until the latter died on June 8, 1994.

13. Demands have been made for William Sato to make an

accounting and to deliver the proceeds of the sales to me as
Administratrix of my mother’s estate, but he refused and failed, and
continues to refuse and to fail to do so, to the damage and prejudice of
the estate of the deceased Manolita Carungcong Y Gonzale[s] and of the
 heirs which include his six (6) children with my sister Zenaida
Carungcong Sato. x x x[3]

Wendy Mitsuko Satos supporting affidavit and the special power of

attorney allegedly issued by the deceased Manolita Gonzales vda. de
Carungcong in favor of Wendy were attached to the complaint-
affidavit of Mediatrix.
In a resolution dated March 25, 1997, the City Prosecutor of
Quezon City dismissed the complaint.[4] On appeal, however, the
Secretary of Justice reversed and set aside the resolution dated March
25, 1997 and directed the City Prosecutor of Quezon City to file an
Information against Sato for violation of Article 315, paragraph 3(a)
of the Revised Penal Code.[5] Thus, the following Information was
filed against Sato in the Regional Trial Court of Quezon City, Branch
87:[6]

INFORMATION
The undersigned accuses WILLIAM SATO of the crime of ESTAFA
under Article 315[,] par. 3(a) of the Revised Penal Code, committed as
follows:

That on or about the 24th day of November, 1992, in Quezon

City, Philippines, the above-named accused, by means of deceit, did,
then and there, wil[l]fully, unlawfully and feloniously defraud
MANOLITA GONZALES VDA. DE CARUNGCONG in the following
manner, to wit: the said accused induced said Manolita Gonzales Vda.
De Carungcong[,] who was already then blind and 79 years old[,] to
sign and thumbmark a special power of attorney dated November 24,
1992 in favor of Wendy Mitsuko C. Sato, daughter of said accused,
making her believe that said document involved only her taxes, accused
knowing fully well that said document authorizes Wendy Mitsuko C.
Sato, then a minor, to sell, assign, transfer or otherwise dispose of to
any person or entity of her properties all located at Tagaytay City, as
follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or
less and covered by T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T.
No. 3148 with Tax Declaration No. GR-016-0722, Cadastral Lot No.
7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T.
No. 3149 with Tax Declaration No. GR-016-0721, Cadastral Lot No.
7104;
4. Eight Hundred Eighty Eight (888) square meters more or less with Tax
Declaration No. GR-016-1735, Cadastral Lot No. 7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and

once in the possession of the said special power of attorney and other
pertinent documents, said accused made Wendy Mitsuko Sato sign the
three (3) Deeds of Absolute Sale covering Transfer Certificate of Title
[TCT] No. 3148 for P250,000.00, [TCT] No. 3149 for P250,000.00 and
[Tax Declaration] GR-016-0735 for P650,000.00 and once in
possession of the proceeds of the sale of the above properties, said
accused, misapplied, misappropriated and converted the same to his
own personal use and benefit, to the damage and prejudice of the heirs
of Manolita Gonzales Vda. De Carungcong who died in 1994.

Contrary to law.[7]

Subsequently, the prosecution moved for the amendment of the

Information so as to increase the amount of damages
from P1,150,000, the total amount stated in the deeds of sale,
to P22,034,000, the actual amount received by Sato.
Sato moved for the quashal of the Information, claiming that under
Article 332 of the Revised Penal Code, his relationship to the person
allegedly defrauded, the deceased Manolita who was his mother-in-
law, was an exempting circumstance.

The prosecution disputed Satos motion in an opposition dated

March 29, 2006.
In an order dated April 17, 2006,[8] the trial court granted Satos
motion and ordered the dismissal of the criminal case:

The Trial Prosecutors contention is that the death of the wife of

the accused severed the relationship of affinity between accused and his
mother-in-law. Therefore, the mantle of protection provided to the
accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised

Penal Code convinces this Court of the correctness of the contention of
the [d]efense. While it is true that the death of Zenaida Carungcong-
Sato has extinguished the marriage of accused with her, it does not
erase the fact that accused and Zenaida’s mother, herein complainant,
are still son[-in-law] and mother-in-law and they remained son[-in-law]
and mother-in-law even beyond the death of Zenaida.

Article 332(1) of the Revised Penal Code, is very explicit and states no
proviso. No criminal, but only civil liability[,] shall result from the
commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses, ascendants
and descendants, or relatives by affinity in the same line.

Article 332, according to Aquino, in his Commentaries [to] Revised

Penal Code, preserves family harmony and obviates scandal, hence
even in cases of theft and malicious mischief, where the crime is
committed by a stepfather against his stepson, by a grandson against his
grandfather, by a son against his mother, no criminal liability is incurred
by the accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40
OG 12th Supp. 63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information

meritorious, the same is GRANTED and, as prayed for, case is hereby
DISMISSED.

SO ORDERED.[9] (underlining supplied in the original)

The prosecutions motion for reconsideration[10] was denied in an

order dated June 2, 2006.[11]

Dissatisfied with the trial courts rulings, the intestate estate of

Manolita, represented by Mediatrix, filed a petition for certiorari in
the Court of Appeals[12] which, however, in a
[13]
decision dated August 9, 2007, dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of
Zenaida did not extinguish the relationship by affinity between her
husband, private respondent Sato, and her mother Manolita, and does
not bar the application of the exempting circumstance under Article
332(1) of the Revised Penal Code in favor of private respondent Sato.

We further agree with the submission of the [Office of the

Solicitor General (OSG)] that nothing in the law and/or existing
jurisprudence supports the argument of petitioner that the fact of death
of Zenaida dissolved the relationship by affinity between Manolita and
private respondent Sato, and thus removed the protective mantle of
Article 332 of the Revised Penal Code from said private respondent;
and that notwithstanding the death of Zenaida, private respondent Sato
remains to be the son-in-law of Manolita, and a brother-in-law of
petitioner administratrix. As further pointed out by the OSG, the filing
of the criminal case for estafa against private respondent Sato already
created havoc among members of the Carungcong and Sato families as
private respondents daughter Wendy Mitsuko Sato joined cause with
her aunt [Mediatrix] Carungcong y Gonzales, while two (2) other
children of private respondent, William Francis and Belinda Sato, took
the side of their father.

There is a dearth of jurisprudence and/or commentaries

elaborating on the provision of Article 332 of the Revised Penal Code.
However, from the plain language of the law, it is clear that the
exemption from criminal liability for the crime of swindling (estafa)
under Article 315 of the Revised Penal Code applies to private
respondent Sato, as son-in-law of Manolita, they being relatives by
affinity in the same line under Article 332(1) of the same Code. We
cannot draw the distinction that following the death of Zenaida in 1991,
private respondent Sato is no longer the son-in-law of Manolita, so as to
exclude the former from the exempting circumstance provided for in
Article 332 (1) of the Revised Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the
rule in statutory construction that where the law does not distinguish,
the courts should not distinguish. There should be no distinction in the
application of law where none is indicated. The courts could only
distinguish where there are facts or circumstances showing that the
lawgiver intended a distinction or qualification. In such a case, the
courts would merely give effect to the lawgivers intent. The solemn
power and duty of the Court to interpret and apply the law does not
include the power to correct by reading into the law what is not written
therein.

Further, it is an established principle of statutory construction that

penal laws are strictly construed against the State and liberally in favor
of the accused. Any reasonable doubt must be resolved in favor of the
accused. In this case, the plain meaning of Article 332 (1) of the
Revised Penal Codes simple language is most favorable to Sato. [14]

The appellate court denied reconsideration.[15] Hence, this

petition.

Petitioner contends that the Court of Appeals erred in not reversing

the orders of the trial court. It cites the commentary of Justice Luis B.
Reyes in his book on criminal law that the rationale of Article 332 of
the Revised Penal Code exempting the persons mentioned therein
from criminal liability is that the law recognizes the presumed co-
ownership of the property between the offender and the offended
party. Here, the properties subject of the estafa case were owned by
Manolita whose daughter, Zenaida Carungcong-Sato (Satos wife),
died on January 28, 1991. Hence, Zenaida never became a co-
owner because, under the law, her right to the three parcels of
land could have arisen only after her mother’s death. Since
Zenaida predeceased her mother, Manolita, no such right came
about and the mantle of protection provided to Sato by the
relationship no longer existed.

Sato counters that Article 332 makes no distinction that the

relationship may not be invoked in case of death of the spouse at the
time the crime was allegedly committed. Thus, while the death of
Zenaida extinguished her marriage with Sato, it did not dissolve the
son-in-law and mother-in-law relationship between Sato and
Zenaidas mother, Manolita.

For his part, the Solicitor General maintains that Sato is covered by
the exemption from criminal liability provided under Article 332.
Nothing in the law and jurisprudence supports petitioners claim that
Zenaidas death dissolved the relationship by affinity between Sato
and Manolita. As it is, the criminal case against Sato created havoc
among the members of the Carungcong and Sato families, a situation
sought to be particularly avoided by Article 332s provision
exempting a family member committing theft, estafa or malicious
mischief from criminal liability and reducing his/her liability to the
civil aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of

the Revised Penal Code. In particular, it calls for the determination of
the following: (1) the effect of death on the relationship by affinity
created between a surviving spouse and the blood relatives of the
deceased spouse and (2) the extent of the coverage of Article 332.

EFFECT OF DEATH ON RELATIONSHIP

BY AFFINITY AS ABSOLUTORY CAUSE

Article 332 provides for an absolutory cause[16] in the

crimes of theft, estafa (or swindling) and malicious mischief. It limits
the responsibility of the offender to civil liability and frees him from
criminal liability by virtue of his relationship to the offended party.

In connection with the relatives mentioned in the first paragraph, it

has been held that included in the exemptions are parents-in-law,
stepparents and adopted children.[17] By virtue thereof, no criminal
liability is incurred by the stepfather who commits malicious
mischief against his stepson;[18] by the stepmother who commits theft
against her stepson;[19] by the stepfather who steals something from
his stepson;[20] by the grandson who steals from his grandfather; [21] by
the accused who swindles his sister-in-law living with him; [22] and by
the son who steals a ring from his mother.[23]
Affinity is the relation that one spouse has to the blood
relatives of the other spouse. It is a relationship by marriage or
a familial relation resulting from marriage.[24] It is a fictive kinship, a
fiction created by law in connection with the institution of marriage
and family relations.
If marriage gives rise to ones relationship by affinity to the
blood relatives of one’s spouse, does the extinguishment of marriage
by the death of the spouse dissolve the relationship by affinity?

Philippine jurisprudence has no previous encounter with the

issue that confronts us in this case. That is why the trial and appellate
courts acknowledged the dearth of jurisprudence and/or
commentaries on the matter. In contrast, in the American legal
system, there are two views on the subject. As one Filipino author
observed:

In case a marriage is terminated by the death of one of the spouses,

there are conflicting views. There are some who believe that
relationship by affinity is not terminated whether there are children or
not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in other
jurisdictions is that, if the spouses have no living issues or children and
one of the spouses dies, the relationship by affinity is dissolved. It
follows the rule that relationship by affinity ceases with the dissolution
of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56
Am Dec. 288). On the other hand, the relationship by affinity is
continued despite the death of one of the spouses where there are living
issues or children of the marriage in whose veins the blood of the
parties are commingled, since the relationship of affinity was continued
through the medium of the issue of the marriage (Paddock vs. Wells, 2
Barb. Ch. 331, 333).[25]

The first view (the terminated affinity view) holds that relationship
by affinity terminates with the dissolution of the marriage either by
death or divorce which gave rise to the relationship of affinity
between the parties.[26] Under this view, the relationship by affinity is
simply coextensive and coexistent with the marriage that produced it.
Its duration is indispensably and necessarily determined by the
marriage that created it. Thus, it exists only for so long as the
marriage subsists, such that the death of a spouse ipso facto ends the
relationship by affinity of the surviving spouse to the deceased
spouses blood relatives.

The first view admits of an exception. The relationship by affinity

continues even after the death of one spouse when there is a
surviving issue.[27] The rationale is that the relationship is preserved
because of the living issue of the marriage in whose veins the blood
of both parties is commingled.[28]

The second view (the continuing affinity view) maintains that

relationship by affinity between the surviving spouse and the kindred
of the deceased spouse continues even after the death of the deceased
spouse, regardless of whether the marriage produced children or not.
[29]
Under this view, the relationship by affinity endures even after the
dissolution of the marriage that produced it as a result of the death of
one of the parties to the said marriage. This view considers that,
where statutes have indicated an intent to benefit step-relatives or in-
laws, the tie of affinity between these people and their relatives-by-
marriage is not to be regarded as terminated upon the death of one of
the married parties.[30]

After due consideration and evaluation of the relative merits of the

two views, we hold that the second view is more consistent with the
language and spirit of Article 332(1) of the Revised Penal Code.

First, the terminated affinity view is generally applied in cases of jury

disqualification and incest.[31] On the other hand, the continuing
affinity view has been applied in the interpretation of laws that intend
to benefit step-relatives or in-laws. Since the purpose of the
absolutory cause in Article 332(1) is meant to be beneficial to
relatives by affinity within the degree covered under the said
provision, the continuing affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of relatives by

affinity in the same line is couched in general language.
The legislative intent to make no distinction between the spouse of
one’s living child and the surviving spouse of one’s deceased child
(in case of a son-in-law or daughter-in-law with respect to his or her
parents-in-law)[32] can be drawn from Article 332(1) of the Revised
Penal Code without doing violence to its language.

Third, the Constitution declares that the protection and strengthening

of the family as a basic autonomous social institution are policies of
the State and that it is the duty of the State to strengthen the solidarity
of the family.[33] Congress has also affirmed as a State and national
policy that courts shall preserve the solidarity of the family. [34] In this
connection, the spirit of Article 332 is to preserve family harmony
and obviate scandal.[35] The view that relationship by affinity is not
affected by the death of one of the parties to the marriage that created
it is more in accord with family solidarity and harmony.

Fourth, the fundamental principle in applying and in

interpreting criminal laws is to resolve all doubts in favor of the
accused. In dubio pro reo. When in doubt, rule for the accused.
[36]
This is in consonance with the constitutional guarantee that the
accused shall be presumed innocent unless and until his guilt is
established beyond reasonable doubt.[37]

Intimately related to the in dubio pro reo principle is the rule

of lenity.[38] The rule applies when the court is faced with two
possible interpretations of a penal statute, one that is prejudicial to
the accused and another that is favorable to him. The rule calls for
the adoption of an interpretation which is more lenient to the
accused.

Lenity becomes all the more appropriate when this case is viewed
through the lens of the basic purpose of Article 332 of the Revised
Penal Code to preserve family harmony by providing an absolutory
cause. Since the goal of Article 332(1) is to benefit the accused, the
Court should adopt an application or interpretation that is more
favorable to the accused. In this case, that interpretation is the
continuing affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal

Code, we hold that the relationship by affinity created between the
surviving spouse and the blood relatives of the deceased spouse
survives the death of either party to the marriage which created the
affinity. (The same principle applies to the justifying circumstance of
defense of one’s relatives under Article 11[2] of the Revised Penal
Code, the mitigating circumstance of immediate vindication of grave
offense committed against ones relatives under Article 13[5] of the
same Code and the absolutory cause of relationship in favor of
accessories under Article 20 also of the same Code.)

SCOPE OF ARTICLE 332 OF

THE REVISED PENAL CODE
 The absolutory cause under Article 332 of the Revised Penal
Code only applies to the felonies of theft, swindling and malicious
mischief. Under the said provision, the State condones the criminal
responsibility of the offender in cases of theft, swindling and
malicious mischief. As an act of grace, the State waives its right to
prosecute the offender for the said crimes but leaves the private
offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the

felonies mentioned therein. The plain, categorical and unmistakable
language of the provision shows that it applies exclusively to the
simple crimes of theft, swindling and malicious mischief. It does not
apply where any of the crimes mentioned under Article 332 is
complexed with another crime, such as theft through falsification or
estafa through falsification.[39]

The Information against Sato charges him with estafa.

However, the real nature of the offense is determined by the facts
alleged in the Information, not by the designation of the offense.
[40]
What controls is not the title of the Information or the designation
of the offense but the actual facts recited in the Information. [41] In
other words, it is the recital of facts of the commission of the offense,
not the nomenclature of the offense, that determines the crime being
charged in the Information.[42] It is the exclusive province of the court
to say what the crime is or what it is named. [43] The determination by
the prosecutor who signs the Information of the crime committed is
merely an opinion which is not binding on the court.[44]

A reading of the facts alleged in the Information reveals that

Sato is being charged not with simple estafa but with the complex
crime of estafa through falsification of public documents. In
particular, the Information states that Sato, by means of deceit,
intentionally defrauded Manolita committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that
time) and induced her to sign and thumbmark the same;
(b) he made Manolita believe that the said document was in connection
with her taxes when it was in fact a special power of attorney (SPA)
authorizing his minor daughter Wendy to sell, assign, transfer or
otherwise dispose of Manolitas properties in Tagaytay City;
(c) relying on Satos inducement and representation, Manolita signed and
thumbmarked the SPA in favor of Wendy Mitsuko Sato, daughter of
Sato;
(d) using the document, he sold the properties to third parties but he neither
delivered the proceeds to Manolita nor accounted for the same and
(d) despite repeated demands, he failed and refused to deliver the proceeds,
to the damage and prejudice of the estate of Manolita.

The above averments in the Information show that the estafa

was committed by attributing to Manolita (who participated in the
execution of the document) statements other than those in fact made
by her. Manolitas acts of signing the SPA and affixing her
thumbmark to that document were the very expression of her specific
intention that something be done about her taxes. Her signature and
thumbmark were the affirmation of her statement on such intention
as she only signed and thumbmarked the SPA (a document which she
could not have read) because of Satos representation that the
document pertained to her taxes. In signing and thumbmarking the
document, Manolita showed that she believed and adopted the
representations of Sato as to what the document was all about, i.e.,
that it involved her taxes. Her signature and thumbmark, therefore,
served as her conformity to Satos proposal that she execute a
document to settle her taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it

appear that Manolita granted his daughter Wendy a special power of
attorney for the purpose of selling, assigning, transferring or
otherwise disposing of Manolitas Tagaytay properties when the fact
was that Manolita signed and thumbmarked the document presented
by Sato in the belief that it pertained to her taxes. Indeed, the
document itself, the SPA, and everything that it contained were
falsely attributed to Manolita when she was made to sign the SPA.

Moreover, the allegations in the Information that

(1) once in the possession of the said special power of attorney and other
pertinent documents, [Sato] made Wendy Mitsuko Sato sign the three
(3) Deeds of Absolute Sale and

(2) once in possession of the proceeds of the sale of the above properties,
said accused, misapplied, misappropriated and converted the same to
his own personal use and benefit

raise the presumption that Sato, as the possessor of the falsified

document and the one who benefited therefrom, was the author
thereof.
 Furthermore, it should be noted that the prosecution moved for
the amendment of the Information so as to increase the amount of
damages from P1,150,000 to P22,034,000. This was granted by the
trial court and was affirmed by the Court of Appeals on certiorari.
This meant that the amended Information would now state that, while
the total amount of consideration stated in the deeds of absolute sale
was only P1,150,000, Sato actually received the total amount
of P22,034,000 as proceeds of the sale of Manolitas properties.
[45]
This also meant that the deeds of sale (which were public
documents) were also falsified by making untruthful statements as to
the amounts of consideration stated in the deeds.

Therefore, the allegations in the Information essentially

charged a crime that was not simple estafa. Sato resorted to
falsification of public documents (particularly, the special power of
attorney and the deeds of sale) as a necessary means to commit the
estafa.

Since the crime with which respondent was charged was not
simple estafa but the complex crime of estafa through falsification of
public documents, Sato cannot avail himself of the absolutory cause
provided under Article 332 of the Revised Penal Code in his favor.

EFFECT OF ABSOLUTORY CAUSE UNDER

ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS

The question may be asked: if the accused may not be held

criminally liable for simple estafa by virtue of the absolutory cause
under Article 332 of the Revised Penal Code, should he not be
absolved also from criminal liability for the complex crime of estafa
through falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of

estafa and falsification of public document is required for a proper
conviction for the complex crime of estafa through falsification of
public document. That is the ruling in Gonzaludov. People.[46] It
means that the prosecution must establish that the accused resorted to
the falsification of a public document as a necessary means to
commit the crime of estafa.

However, a proper appreciation of the scope and application of

Article 332 of the Revised Penal Code and of the nature of a complex
crime would negate exemption from criminal liability for the
complex crime of estafa through falsification of public documents,
simply because the accused may not be held criminally liable for
simple estafa by virtue of the absolutory cause under Article 332.

The absolutory cause under Article 332 is meant to address

specific crimes against property, namely, the simple crimes of theft,
swindling and malicious mischief. Thus, all other crimes, whether
simple or complex, are not affected by the absolutory cause
provided by the said provision. To apply the absolutory cause under
Article 332 of the Revised Penal Code to one of the component
crimes of a complex crime for the purpose of negating the existence
of that complex crime is to unduly expand the scope of Article 332.
In other words, to apply Article 332 to the complex crime of estafa
through falsification of public document would be to mistakenly treat
the crime of estafa as a separate simple crime, not as the component
crime that it is in that situation. It would wrongly consider the
indictment as separate charges of estafa and falsification of public
document, not as a single charge for the single (complex) crime of
estafa through falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives
its right to hold the offender criminally liable for the simple crimes of
theft, swindling and malicious mischief and considers the violation of
the juridical right to property committed by the offender against
certain family members as a private matter and therefore subject only
to civil liability. The waiver does not apply when the violation of the
right to property is achieved through (and therefore inseparably
intertwined with) a breach of the public interest in the integrity and
presumed authenticity of public documents. For, in the latter
instance, what is involved is no longer simply the property right
of a family relation but a paramount public interest.
The purpose of Article 332 is to preserve family harmony and
obviate scandal.[47] Thus, the action provided under the said provision
simply concerns the private relations of the parties as family
members and is limited to the civil aspect between the offender and
the offended party. When estafa is committed through falsification of
a public document, however, the matter acquires a very serious
public dimension and goes beyond the respective rights and liabilities
of family members among themselves. Effectively, when the offender
resorts to an act that breaches public interest in the integrity of public
documents as a means to violate the property rights of a family
member, he is removed from the protective mantle of the absolutory
cause under Article 332.
 In considering whether the accused is liable for the complex
crime of estafa through falsification of public documents, it would be
wrong to consider the component crimes separately from each
other. While there may be two component crimes(estafa and
falsification of documents), both felonies are animated by and result
from one and the same criminal intent for which there is only one
criminal liability.[48] That is the concept of a complex crime. In other
words, while there are two crimes, they are treated only as one,
subject to a single criminal liability.

As opposed to a simple crime where only one juridical right or

interest is violated (e.g., homicide which violates the right to life,
theft which violates the right to property),[49] a complex crime
constitutes a violation of diverse juridical rights or interests by means
of diverse acts, each of which is a simple crime in itself. [50] Since
only a single criminal intent underlies the diverse acts, however, the
component crimes are considered as elements of a single crime, the
complex crime. This is the correct interpretation of a complex crime
as treated under Article 48 of the Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or

ideal) plurality of crimes where the same criminal intent results in
two or more component crimes constituting a complex crime for
which there is only one criminal liability. [51] (The complex crime of
estafa through falsification of public document falls under this
category.) This is different from a material (or real) plurality of
crimes where different criminal intents result in two or more crimes,
for each of which the accused incurs criminal liability. [52] The latter
category is covered neither by the concept of complex crimes nor by
Article 48.

Under Article 48 of the Revised Penal Code, the formal

plurality of crimes (concursus delictuorum or concurso de delitos)
gives rise to a single criminal liability and requires the imposition of
a single penalty:

Although [a] complex crime quantitatively consists of two or

more crimes, it is only one crime in law on which a single penalty is
imposed and the two or more crimes constituting the same are more
conveniently termed as component crimes. [53] (emphasis supplied)

∞∞∞
 In [a] complex crime, although two or more crimes are actually
committed, they constitute only one crime in the eyes of the law as well
as in the conscience of the offender. The offender has only one criminal
intent. Even in the case where an offense is a necessary means for
committing the other, the evil intent of the offender is only one. [54]

For this reason, while a conviction for estafa through

falsification of public document requires that the elements of both
estafa and falsification exist, it does not mean that the criminal
liability for estafa may be determined and considered independently
of that for falsification. The two crimes of estafa and falsification
of public documents are not separate crimes but component
crimes of the single complex crime of estafa and falsification of
public documents.

Therefore, it would be incorrect to claim that, to be criminally

liable for the complex crime of estafa through falsification of public
document, the liability for estafa should be considered separately
from the liability for falsification of public document. Such approach
would disregard the nature of a complex crime and contradict the
letter and spirit of Article 48 of the Revised Penal Code. It would
wrongly disregard the distinction between formal plurality and
material plurality, as it improperly treats the plurality of crimes in the
complex crime of estafa through falsification of public document as a
mere material plurality where the felonies are considered as separate
crimes to be punished individually.

FALSIFICATION OF PUBLIC DOCUMENTS MAY BE A NECESSARY MEANS FOR

COMMITTING ESTAFA EVEN UNDER ARTICLE 315 (3[A])

The elements of the offense of estafa punished under Article

315 (3[a]) of the Revised Penal Code are as follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;

(3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal

Code, the law does not require that the document be falsified for the
consummation thereof, it does not mean that the falsification of the
document cannot be considered as a necessary means to commit the
estafa under that provision.

The phrase necessary means does not connote indispensable

means for if it did, then the offense as a necessary means to commit
another would be an indispensable element of the latter and would be
an ingredient thereof.[55] In People v. Salvilla,[56] the phrase necessary
means merely signifies that one crime is committed to facilitate and
insure the commission of the other.[57] In this case, the crime of
falsification of public document, the SPA, was such a necessary
means as it was resorted to by Sato to facilitate and carry out more
effectively his evil design to swindle his mother-in-law. In particular,
he used the SPA to sell the Tagaytay properties of Manolita to
unsuspecting third persons.

When the offender commits in a public document any of the

acts of falsification enumerated in Article 171 of the Revised Penal
Code as a necessary means to commit another crime, like estafa, theft
or malversation, the two crimes form a complex crime under Article
48 of the same Code.[58] The falsification of a public, official or
commercial document may be a means of committing estafa
because, before the falsified document is actually utilized to
defraud another, the crime of falsification has already been
consummated, damage or intent to cause damage not being an
element of the crime of falsification of a public, official or
commercial document.[59] In other words, the crime of falsification
was committed prior to the consummation of the crime of estafa.
[60]
Actually utilizing the falsified public, official or commercial
document to defraud another is estafa.[61] The damage to another is
caused by the commission of estafa, not by the falsification of the
document.[62]

Applying the above principles to this case, the allegations in

the Information show that the falsification of public document was
consummated when Sato presented a ready-made SPA to Manolita
who signed the same as a statement of her intention in connection
with her taxes. While the falsification was consummated upon the
execution of the SPA, the consummation of the estafa occurred only
when Sato later utilized the SPA. He did so particularly when he had
the properties sold and thereafter pocketed the proceeds of the sale.
Damage or prejudice to Manolita was caused not by the falsification
of the SPA (as no damage was yet caused to the property rights of
Manolita at the time she was made to sign the document) but by the
subsequent use of the said document. That is why the falsification of
 the public document was used to facilitate and ensure (that is, as a
necessary means for) the commission of the estafa.

The situation would have been different if Sato, using the same
inducement, had made Manolita sign a deed of sale of the properties
either in his favor or in favor of third parties. In that case, the damage
would have been caused by, and at exactly the same time as, the
execution of the document, not prior thereto. Therefore, the crime
committed would only have been the simple crime of estafa.[63] On
the other hand, absent any inducement (such as if Manolita herself
had been the one who asked that a document pertaining to her taxes
be prepared for her signature, but what was presented to her for her
signature was an SPA), the crime would have only been the simple
crime of falsification.[64]

WHEREFORE, the petition is hereby GRANTED. The

decision dated August 9, 2007 and the resolution dated January 23,
2008 of the Court of Appeals in CA-G.R. S.P. No. 95260
are REVERSED and SET ASIDE. The case is remanded to the trial
court which is directed to try the accused with dispatch for the
complex crime of estafa through falsification of public documents.

SO ORDERED.

RENATO C. CORONA
Associate Justice
Chairperson

ADOPTED CHILD can marry, however the parents, illegitimate child, and
other relatives, whether by consanguinity or affinity of the adopter. The
adopter can marry the legitimate, illegitimate or adopted child of the
adoptee, the natural parent, and other relatives whether by affinity or
consanguinity of the adopted. This is so because in adoption it is purely
personal between the adopter and the adoptee, no relationship is created
between the relatives of the adopter with the adoptee or between the
relatives of the adoptee with the adopter.

Spouse of the adopter or adopted can marry the adopter or adopted

provided the marriage was terminated or dissolved not through death
i.e. annulment, declaration of nullity. This is because the law phrases
the provision with the words “surviving spouse” which means the
marriage was dissolved through the death of the adopter or the adopted
spouse.

INTENTION TO KILL SPOUSE – involves moral turpitude which is

destructive not only of the family but the whole of society itself. No
prior conviction by the Court for the killing is required by law. Mere
preponderance of evidence to prove the killing is sufficient. It can be a
unilateral intention and need not be shared by the other spouse so that
even the unknowing party will be affected by the void character of the
marriage (Minutes of the Meeting of the Civil Law and Family Law
committees)

ARTICLE 36. A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity becomes manifest only
after the solemnization. (As amended by E.O. 227)

CASES IN PSYCHOLOGICAL INCAPACITY & ARTICLE 40

The law does not define what psychological incapacity is and

therefore, the determination is left solely with the courts on a case-to-
case basis. Determination of PI “depends on the facts of the case. Each
case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts” (Republic
v. Dagdag, Feb. 9, 2001, Aurelio v. Aurelio, June 6, 2011).

This absence of definition was intentionally made because the

situations contemplated by the law vary from one case to another.

Justice Eduardo Caguioa, “a code should not have so many

definitions, because a definition straight-jackets the concept, and
therefore, many cases that should go under it are excluded by the
definition. That’s why we leave it up to the court to determine the
meaning of psychological incapacity.”

PI should not be equated with insanity or a total mental inability to

function in all aspects of human life. The ground is restricted to PI “to
comply with the essential marital obligations” The malady or mental
disposition of one or both of the spouses must be such as to seriously
and effectively prevent them from having a functional and normal
marital life clearly conducive to bringing up a healthy personal inter-
marital relationship within the family which is necessary for its growth.
It must be a psychological illness afflicting a party even before the
celebration of the marriage (Perez-Ferraris v. Ferraris, July 17, 2006).

The ground, therefore , does not comprehend any and all forms of
mental incapacity so as to preclude the individual from performing
his/her profession or career. The incapacity is clearly limited to his or
her failure or disregard to comply with his/her essential marital
obligations. It is not mere stubborn refusal but can be attributed to
psychological causes. Psychological incapacity solely refers to the “lack
of appreciation of one’s marital obligations” (Code Commission) PI does
not refer to mental faculties and has nothing to do with consent; it refers
to obligations attendant to marriage (Minutes Family Law Committee)

PI to perform the essential marital obligations must be present at

the time of the marriage ceremony, but can be manifested later on
during the marriage. Such a marriage cannot be cured by cohabitation
considering that it is void. It is not equated with insanity because “in
insanity, there is the appearance of consent, which is the reason why it
is a ground for voidable marriages, PI does not refer to consent but to the
very essence of marital obligations.” (Justice Caguiao)

In Santos v. Santos, SC held that “Indeed, Article 36 of the Family

Code, in classifying marriages, contracted by a psychologically
incapacitated person as a nullity, should be deemed as an implement of
this constitutional protection of marriage. Given the avowed State
interest in promoting marriage as the foundation of the family, which in
turn serves as the foundation of the nation, there is a corresponding
interest for the State to defend against marriages ill-equipped to promote
family life. Void ab initio marriages under Article 36 do not further the
initiatives of the State concerning marriage and family, as they promote
wedlock among persons who, for reasons independent of their will, are
not capacitated to understand or comply with the essential obligations of
marriage.”

PROVING PSYCHOLOGICAL INCAPACITY – PI is psychosomatic and deals

with a state of mind and thus, can only be proven by indicators or
external manifestations of the person claimed to be PI. These indicators
must be clearly alleged in the complaint filed in court.

ESSENTIAL MARITAL OBLIGATIONS – Article 68 of the FC “the husband

and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support”. Procreation is likewise an
essential obligation – “evidently, one of the essential marital obligations
under the Family Code is to procreate children based on the universal
principle that procreation of children through sexual cooperation is the
basic end of marriage. Constant non-fulfillment of this obligation will
finally destroy the integrity or wholeness of the marriage.” (Chi Ming
Tsoi v. CA, 7266 SCRA 324)

If a spouse, although physically capable but simply refuses to

perform his or her essential marital obligations, and the refusal is
senseless and constant, Catholic tribunals attribute the causes to
psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the
prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity. (Chi Ming Tsoi)

Articles 220, 221, and 225 of the FC likewise enumerates the rights,
duties, and liabilities of parents relative to their parental authority over
their children. Failure to comply with these rights, duties, and
obligations is a good indicator of PI to perform essential marital
obligations (Toring v. Toring, August 3, 2010). The fear of a wife, who is
afraid of children, to engage in sexual intercourse is an indicator of PI
(Minutes Civil Law and Family Code committee)

CASES:
 Unreasonable attachment by the spouse to his or her family
(meaning his or her father or mother, brothers and sisters) or to the
spouse’s friends or “barkada” such that the importance and devotion
which should be given to his or her own spouse and children are
subordinated to the said attachment is good indicator of PI.

The manifestations of psychological incapacity must be attributed

to a psychological illness and not merely physical illness. (Bier v. Bier,
Feb. 27, 2008, 547 SCRA 123; Navales v. Navales, June 27, 2008;
Yambao v. Republic, Jan. 24, 2011; Ochosa v. Alano, Jan. 26, 2011;
Republic v. Galang, June 6, 2011)

Actual breakdown of family life characterized by separation of

husband and wife is also a good indicator of the presence of PI.

NOT PI:
1. separation or abandonment alone is not conclusive proof of PI
(Republic v. Quintero Hamano, 428 SCRA 735); Republic v. CA, Nov. 12,
2012; Republic v. Encelan, Jan 9, 2013)

2. Sexual infidelity alone or living an adulterous life does not

automatically prove PI (Ligeralde v. Patalinhug, April 15, 2010; Kalaw v.
Fernandez, Sept, 19, 2011).

3. Mere isolated idiosyncrasies of a spouse are not of themselves

manifestations of PI to perform the essential marital obligations.

4. PI cannot be mere refusal or neglect to comply with the

obligations, it must be downright incapacity to perform (Republic v.
Cabantug-Baguio, June 30, 2008; Baccay v. Baccay, Dec. 1, 2010). It is
important that “there must be proof of a natal or supervening disabling
factor that effectively incapacitated the respondent spouse from
complying with the basic marital obligations” (Suazo v. Suazo, March 12,
2010; Republic v. CA, Nov, 12, 2012).

PERSONAL CHARACTER OF PI – PI is a very personal and a limited one.

It does not mean that just because a person is PI to perform his or her
marital obligations with his or her present spouse, this would also be the
case with any other person other than his or her present spouse. The
fact that the person alleged to be PI is a foreigner does not negate the
existence of such incapacity.

EXPERT TESTIMONY – In the course of the proceedings, expert

testimonies of a psychologist or psychiatrist evaluating the behavioral
pattern of the person alleged to be PI is extremely helpful (Matias v.
Dagdag, Feb. 9, 2001). MARCOS vs. MARCOS (October 19, 2000), the SC
ruled that “the personal medical and psychological examination of
respondent is not a requirement for a declaration of psychological
incapacity” and that it is not a “condition sine qua non for such
declaration” (Republic v. Tayag San Jose, Feb. 28, 2007, 517 SCRA 123)
 However, the Court may or may not accept the testimony of the
psychologist or psychiatrist because the decision must be based on the
TOTALITY OF EVIDENCE (Paras vs. Paras, August 2, 2007, 529 SCRA 81).
Nevertheless, the testimony of an expert witness, like a psychiatrist or
psychologist, if credible and if consistent with the totality of evidence,
which is also credible, must be given great weight.

WHEN NOT EXAMINED BY EXPERT NOT NECESSARILY FATAL:

Azcueta v. Azcueta, May 26, 2009, the SC in granting the nullity of

marriage under Art. 36, due to the dependent personality disorder of the
respondent as reliably assessed by the competent psychiatrist who did
not personally examine the respondent said that “by the very nature of
Art. 36, courts, despite having the primary task and burden of decision-
making, must not discount, but, instead, must consider as decisive
evidence the expert opinion of the psychological and mental
temperaments of the parties.”

Antonio v. Reyes, March 10, 2006, SC even adhered to the medical

and clinical findings of the psychiatrist and psychologist who did not
personally examine the subject but who were given reliable data about
the respondent and read the pertinent court records in coming up with a
more reliable assessment that the respondent was a pathological liar, as
against the faulty clinical and medical findings of the psychiatrist of the
respondent who examined the respondent and claimed that he was not
suffering from a PI. The mere fact therefore that a psychiatrist
personally examined the subject person is not an assurance that his or
her findings would be sustained.

In Ting vs. Ting, March 31, 2009, the SC did not grant the nullity
of marriage. As between the psychiatrist presented by the petitioner and
the one presented by the respondent, the SC adhered to the findings of
the latter that respondent was not PI considering that the psychiatrist of
the respondent, aside from analyzing the transcripts of the respondent’s
deposition, was able to consider the psychiatric finding of another
psychiatrist who personally examined the respondent and also to
interview the respondent’s brothers compared. The psychiatrist of the
petitioner however merely evaluated the respondent by only analyzing
his deposition.

In Rumbaua v. Rumbaua, August 14, 2009, the SC denied the

nullity of marriage on the ground that the psychological report was very
general and did not state specific linkages between the personality
disorder and the behavioral pattern of the spouse during the marriage.

In another case, the husband sought to introduce the confidential

psychiatric evaluation report made by the psychiatrist with respect to
the wife. This was objected to by the counsel for the wife on the ground
that the report was within the privileged communication rule between
doctor and patient. The SC ruled that the testimony of the husband with
respect to the report was not within the doctor-patient privileged
communication rule since the one who would testify is not the doctor
but the husband. Also, the SC ruled that “neither can his testimony be
considered a circumvention of the prohibition because his testimony
cannot have the force and effect of the testimony of the physician who
examined the patient and executed the report. Also, when the husband
testified as to the findings of the physician with respect to the wife the
lawyer for the wife did not object on hearsay ground but merely on the
privileged rule, thus waived such objection and the evidence offered may
be admitted. (Krohn v. CA, June 14, 1994)

CERTIFICATION OF THE SOLICITOR GENERAL – is not anymore needed

pursuant to SC En Banc resolution in A.M. 00-11-01-SC

DAMAGES – In cases involving PI, the SC disallowed the award of moral

damages, exemplary damages and attorney’s fees on the ground that the
very nature of PI which is non-cognizance of one’s essential marital
obligations at the time of the marriage ceremony, negates bad faith,
which is an essential element in awarding moral damages, in contracting
the marriage. In the absence of bad faith no award of exemplary damages
and attorney’s fees can be granted. (Buenaventura vs. CA, march 31,
2005, 454 SCRA 261), d

I. LEOUEL SANTOS vs. CA, and JULIA BEDIA-SANTOS, (Jan. 4, 1995)

Defined Psychological Incapacity - “psychological incapacity’ should refer to no less

than a mental (not physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage which, as expressed by Art. 68 of the FC, include their mutual
obligations to live together, observe love, respect and fidelity and render help and support. X x
x the intendment of the law has been to confine the meaning of ‘psychological incapacity’
to the most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage. This
psychological condition must exist at the time the marriage is celebrated.”

The other forms of psychoses, if existing at the inception of marriage, like the state of a
party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable (Art. 46 FC). If
drug addiction, habitual alcoholism…. Should occur only during the marriage, they become
mere grounds for legal separation under Art. 55 FC. These provisions of the Code, however, do
not necessarily preclude the possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of psychological incapacity.”

“Marriage is not an adventure but a lifetime commitment.”

Leouel and Julia married on 20 September 1986 at Iloilo City in civil ceremonies
followed later by a church wedding. The two, thereafter, lived with Julia’s parents. Their
marriage was thereafter filled with arguments because, according to Leouel, of the frequent
interference by Julia’s parents into their family affairs. They also argued over when and where
they would start living independently from Julia’s parents, Julia would express also resentment
on Leouel’s spending a few days with his own parents.

On May 18, 1988, Julia left for the USA to work as a nurse despite L. pleas not to. It
was only after 7 months after her departure that J, called up L. for the first time by long
distance. She promised to return home but she never did. When L got a chance to visit the US,
he desperately tried to locate, or somehow get in touch with J but to no avail. When he returned
to the Philippines, he filed for nullity of their marriage based on Art. 36 of the Family Code.
L. argues that the failure of J. to return home, or at the very least to communicate with him, for
more than five years are circumstances that clearly show her psychological incapacity to enter
into married life.

Note: “The Committee did not give any examples of psychological incapacity for fear that
the giving of examples would limit the applicability of the provision under the principle of
ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a
case-to-case basis, guided by experience, the findings of experts and researches in
psychological disciplines, and by decisions of church tribunals which, although not binding on
the civil courts, may be given persuasive effect since the provision was taken from Canon Law.”

ELEMENTS OF Psychological Incapacity: which must concur:

1. One or both spouses must be psychologically incapacitated

2. The defect must result in a failure to comply with the essential obligations of
marriage; and
3. The problem must exist at the time of the celebration of marriage regardless of
when its actual manifestation become evident.

The case of Santos vs. Bedia Santos the Court moreover, required the following:

1. GRAVITY – the incapacity must be grave or serious such that the party would
be incapable of carrying out the ordinary duties required in a marriage;

2. JURIDICAL ANTECEDENCE – It must be rooted in the history of the party

antedating the marriage, although the overt manifestations may emerge only
after the marriage; and

3. INCURABILITY - It must be incurable or, even if it were otherwise, the cure

would be beyond the means of the party involved.

“x x x there is a natal or supervening disabling factor in the person, an adverse integral

element in the personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage. X x x “

II. MOLINA GUIDELINES (Republic vs. Molina)

Reynaldo Molina was alleged, by his wife Roridel, as highly immature and habitually
quarrelsome individual who thought of himself as a king to be served.

“x x x there is no clear showing to us that the psychological defect spoken of is an

incapacity. It appears to us to be more of a ‘difficulty,’ if not outright ‘refusal’ or ‘neglect’
in the performance of some marital obligations. Mere showing of ‘irreconcilable
differences’ and ‘conflicting’ personalities’ in no wise constitutes psychological incapacity.
It is not enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing so, due to
some psychological (not physical) illness.”
GUIDELINES:

1. The burden of proof to show the nullity of the marriage belongs to the plaintiff;
 2. The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. The incapacity must be psychological – not physical,
although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or psychically ill to
such an extent that the person could not have known the obligations he was assuming, or
knowing them, he could not have given valid assumption thereof.

3. The incapacity must be proven to be existing at “the time of the celebration” of the
marriage.

4. Such incapacity must also be shown to be medically or clinically permanent or

incurable. Such incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations. X x x

5. Such illness must be grave enough to bring about the disability of the party to assume
the essential obligations of marriage. Thus ‘mild characterological peculiarities, mood
changes, occasional emotional outburts’ cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, not refusal, neglect or difficulty,
much less ill will. In other words, there is a natal supervening disabling factor in the
person, an adverse integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby complying with the
obligations essential to marriage;

6. the essential marital obligations must be those embraced by Articles 68-71 and 220, 221
and 225 of the FC;

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic

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

CASES not constituting psychological incapacity:

1. The filing of one case after another against the husband, not P. I.

“According to him, the filing and the prosecution of these cases clearly showed that his
wife (herein petitioner) wanted not only to put him behind bars, but also to banish him
from the country. He contends that this ‘is very abnormal for a wife who, instead of
protecting the name and integrity of her husband as the father of her children, had acted
to the contrary.

We do not agree. The documents presented by respondent during the trial do not in any
way show the alleged psychological incapacity of his wife. It is the height of absurdity
and inequity to condemn her as psychologically incapacitated to fulfill her marital
obligations, simply because she filed cases against him. The evidence presented, even
if taken as true, merely established the prosecution of the cases against him. To rule that
the filings are sufficient to establish her psychological incapacity is not only totally
erroneous, but also grave abuse of discretion bordering on absurdity. (Choa vs. Choa)

2. Hot-temper, nagging , and extravagances; abandonment of respondent;

marriage to an American not by itself P.I.
 “Fely’s hot-temper, nagging, and extravagance; her abandonment of respondent Crasus;
her marriage to an American; and even her flaunting of her American family and her
American surname, may have hurt and embarrassed respondent Carsus and the rest of
the family. Nonetheless, the afore-described characteristics, behavior, and acts of Fely
do not satisfactorily establish a psychological or mental defect that is serious or grave,
and which has been in existence at the time of the celebration of the marriage, and is
incurable. Even when the rules have been relaxed and the personal examination of
Fely by a psychiatrist or psychologist is no longer mandatory for the declaration of
nullity of their marriage under Article 36 of the Family Code of the Phils., the
totality of evidence presented during trial by respondent, as spouse seeking the
declaration of nullity of marriage, must still prove the gravity, juridical
antecedence, and incurability of the alleged psychological incapacity, which it failed
to do so. (Republic vs. Iyoy, September 21, 2005)

3. Marital Infidelity

“Although he engaged in marital infidelity in at least two occasions, the same does not
appear to be symptomatic of a grave psychological disorder which rendered him
incapable of performing his spousal obligation. The same appears as the result of a
general dissatisfaction with his marriage rather than a psychological disorder
rooted in petitioner’s personal history.”

“It must be shown that the acts of unfaithfulness are manifestations of a disordered
personality which make petitioner completely unable to discharge the essential
obligations of marriage. X x x”

4. Overbearing ways, obsession with cleanliness, lack of support and respect

“Rather, we have here a case of a husband who is constantly embarrassed by his wife’s
outburst and overbearing ways, who finds his wife’s obsession with cleanliness and the
tight reign on his wallet ‘irritants’ and who is wounded by her lack of support and
respect for his person ad his position as a Judge. In our book, however, these
inadequacies of petitioner Juanita which led respondent Manuel to file a case against her
do not amount to psychological incapacity to comply with the essential marital
obligations.” (Carating-Siyangco v. Siyangco, 27 October 2004, 441 SCRA 422)

5. Immaturity

“From 1983 up to 1986, as private respondent could not find a stable job, it was agreed
that he would help petitioner in her business by delivering orders to customers.
However, because her husband was a spendthrift and had other women, petitioner’s
business suffered. Private respondent often had smoking and drinking sprees with his
friends and betted on fighting cocks. In 1982, after the birth of their first child,
petitioner discovered two love letters written by a certain Realita Villena to private
respondent. She knew Villena as a married student whose husband was working in
Saudi Arabia. When petitioner confronted private respondent, he admitted having an
extra-marital affair with Villena. Petitioner then pleaded with Villena to end her
relationship with private respondent. For his part, private respondent said he would end
the affairs, but he did not keep his promise. Instead, he left the conjugal home and
abandoned petitioner and their child. When private respondent came back, however,
petitioner accepted him, despite private respondent’s infidelity in the hope of saving
their marriage.
 Private respondent could not hold down a job and whatever retirement money he
received from early retirement he spent on himself. He continued having extra-marital
affairs with several women. He beat his wife when she confronted him about these
affairs.

“However, private respondent’s alleged habitual alcoholism, sexual infidelity or

perversion, and abandonment do not by themselves constitute grounds for finding
that he is suffering from a psychological incapacity within the contemplation of the
Family Code. It must be shown that these acts are manifestations of a disordered
personality which make private respondent completely unable to discharge the
essential obligations of the marital state, and not merely due to private
respondent’s youth and self-conscious feelings of being handsome. (Hernandez vs.
CA, 08December 1999, 320 SCRA 76)

6. Violence

“He was cruel and violent. He was a habitual drinker staying with friends from 4 PM
until 1AM. When cautioned to stop or, to at least minimize his drinking, respondent
would beat, slap and kick her. At one time., he chased petitioner with a loaded shotgun
and threatened to kill her in the presence of the children. The children themselves were
not spared physical violence.

“At all, petitioner has utterly failed, both in her allegations in the complaint and in her
evidence, to make out a case of psychological incapacity on the part of respondent, let
alone at the time of solemnization of the contract, so as to warrant a declaration of
nullity of the marriage. Emotional immaturity and irresponsibility, invoked by her,
cannot be equated with psychological incapacity (Guillen-Pesca v. Pesca, 17 April
2001, 356 SCRA 588)

7. Abandonment, Lack of Support

“We find respondent’s alleged mixed personality disorder, the ‘leaving-the-house’

attitude whenever they quarrel, the violent tendencies during epileptic attacks, the sexual
infidelity, the abandonment and lack of support and his preference to spend more time
with his band mates than his family, are not rooted on some debilitating psychological
condition but mere refusal or unwillingness to assume the essential obligations of
marriage. (Perez Ferraris vs. Ferraris, July 17, 2006)

8. Sexual Infidelity

“Respondent’s sexual infidelity can hardly qualify as being mentally or psychically ill to
such an extent that she could not have known the obligations she was assuming, or
knowing them, could not have given a valid assumption thereof. It appears that
respondent’s promiscuity did not exist prior to or at the inception of the marriage. What
is, in fact, disclosed by the records is a blissful marital union at its celebration, later
affirmed in church rites, and which produced four children.

Respondent’s sexual infidelity or perversion and abandonment do not by themselves

constitute psychological incapacity. Neither could her emotional immaturity and
irresponsibility be equated with psychological incapacity. These must not be merely
due to her youth, immaturity, and sexual promiscuity.”
III. MARCOS vs. MARCOS, 343 SCRA, (October 19, 2000)

Married twice civil then church wedding. Five children.

Both were assigned at Malcanang Palace then after downfall of then President Marcos, Wilson
left the military service.

RULING:

1. NEED FOR PERSONAL MEDICAL EXAMINATION - Guidelines in Santos that

PI must be characterized by gravity, juridical antecedence and incurability. The
foregoing guidelines do not require that a physician examine the person to be
declared psychologically incapacitated. In fact, the root cause may be “medically or
clinically identified.” What is important is the presence of evidence that can
adequately establish the party’s psychological condition. For indeed, if the totality
of evidence presented is enough to sustain a finding of PI, then actual medical
examination of the person concerned need not be resorted to.

2. TOTALITY OF EVIDENCE PRESENTED – is it enough to sustain the finding that

respondent is PI? Although respondent failed to provide material support to the
family and may have resorted to physical abuse and abandonment, the totality of his
acts does not lead to a conclusion of PI. There is absolutely no showing that his
“defects” were already present at the inception of the marriage or that they are
incurable. It was during the period he had no work that he drunk intermittently,
failed to give material and moral support and left the family home. Thus, his
alleged PI was traced only to said period and not to the inception of the marriage.
Nor is it incurable especially now that he is gainfully employed. PI is not to be
equated or confused with a divorce law that cuts the marital bond at the time the
causes therefore manifests themselves.

IV. DEDEL vs. COURT OF APPEALS, 421 SCRA 461 (January 29, 2004)

David Dedel met respondent Sharon L. Corpuz-Dedel while he was working in the advertising
business of his father. They exchanged marital vows before the City Court of Pasay on
September 28, 1966 which was later ratified in a church wedding on May 20, 1967. They have
four children.

Petitioner avers that during the marriage, Sharon turned out to be irresponsible and immature
wife and mother. She had extramarital affairs. She was once confined in the Manila Medical
City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. Petitioner alleged that despite
treatment, Sharon did not stop her illicit relationship with the Jordanian to whom she had 2
children. When the Jordanian left, she returned to petitioner with her two kids by the Jordanian.
Later when the Jordanian came back, she abandoned petitioner and went to Jordan. She returns
to country only on special occasions. Hence this petition to declare their marriage null and void
on the grounds of psychological incapacity.

Dr. Natividad A. Dayan declared Sharon was suffering from Anti-Social Personality Disorder
exhibited by her blatant display of infidelity; that she committed several indiscretions and had
no capacity for remorse, even bringing with her the 2 children she had with Mustafa Ibrahim to
live with petitioner. Such immaturity and irresponsibility in handling the marriage like her
repeated acts of infidelity and abandonment of her family are indications of Anti-Social
Personality Disorder amounting to psychological incapacity to perform the essential obligations
of marriage.
RULING – Reiterated ruling in Santos case that “psychological incapacity should refer to no
less than a mental (not physical) incapacity that causes a party to be truly incognitive of his
basic marital covenants that concomitantly must be assumed and discharged by the parties to
the marriage.

The difficulty in resolving the problem lies in the fact that personality disorder is a very
complex and elusive phenomenon which defies each analysis and definition. In this case,
respondent’s sexual infidelity can hardly qualify as being mentally or psychically ill to such an
extent that she could not have known the obligations she was assuming, or knowing them, could
not have given a valid assumption thereof. It appears that respondent’s promiscuity did not exit
prior to or at the inception of the marriage. What is, in fact, disclosed by the record is a blissful
marital union at its celebration, later affirmed in church rites, and which produced 4 children.

Respondent’s sexual infidelity or perversion and abandonment do not by themselves constitute

psychological incapacity within the contemplation of the Family Code. Neither could her
emotional immaturity and irresponsibility be equated with psychological incapacity. It must be
shown that these acts are manifestations of a disordered personality which make respondent
completely unable to discharge the essential obligations of the marital state, not merely due to
her youth, immaturity or sexual promiscuity. At best, the circumstances are grounds for legal
separation. We have pointed out in Marcos vs. Marcos, that Article 36 is not to be equated with
legal separation in which the grounds need not be rooted in psychological incapacity but on
physical violence, moral pressure, civil interdiction …. In short the grounds presented by
petitioner refer only to grounds of legal separation.

V. PEREZ-FERRARIS vs. BRIX FERRARIS, 495 SCRA 395, (July 17, 2006)

The term psychological incapacity to be a ground for nullity of marriage under Article 36 of the
Family Code, refers to a serious psychological illness afflicting a party even before the
celebration of the marriage. It is a malady so grave and so permanent as to deprive one of the
awareness of the duties and responsibilities of the matrimonial bond one is about to assume. As
all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with
certain personality disorders, there is hardly any doubt that the intendment of the law has been
to confine the meaning of “psychological incapacity” to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. X x x However, the root cause must be identified as a
psychological illness and its incapacitating nature must be fully explained which the petitioner
failed to convincingly demonstrate.

Proof should that early their marriage was fine and they started to have problems when petition
started doubting the fidelity of the respondent. Also Dr. Dayan’s prognosis that respondent has
a mixed personality disorder called “schizoid” and that he had a dependent and avoidant type of
personality was not explained at how she arrived at such a conclusion.

We find respondent’s alleged mixed personality disorder, the ‘leaving-the-house” attitude

whenever they quarreled, the violent tendencies during epileptic attacks, the sexual infidelity,
the abandonment and lack of support, and his preference to spend more time with his band
mates than his family, are not rooted on some debilitating psychological condition but a mere
refusal or unwillingness to assume the essential obligations of marriage.

AN UNSATISFACTORY MARRIAGE, HOWEVER, IS NOT A NULL AND VOID

MARRIAGE.

VI. Carating-Siayngco vs. Siayngco, 441 SCRA 422, October 27, 2004
Juanita and respondent Manuel got married at civil rites on 27 June 1973 and before Catholic
Church on 11 August 1973. After discovering that they could not have a child of their own, the
couple decided to adopt a baby boy in 1977. After 24 years of married life together, Manuel
filed for declaration of nullity on the ground of PI of Juanita. He alleged that all throughout
their marriage, his wife exhibited an over domineering and selfish attitude towards him which
was exacerbated by her extremely volatile and bellicose nature; that she incessantly complained
about almost everything and anyone connected with him like his elderly parents, the staff in his
office and anything not of her liking like the physical arrangement, tables, chairs, wastebaskets
in his office and with other trivial matters; that she showed no respect or regard at all for the
prestige and high position of his office as judge of MTC ; that she would yell and scream at him
and throw objects around the house within the hearing of their neighbors; that she cared even
less about his professional advancement as she did not even give him moral support and
encouragement; that her PI arose before the marriage, rooted in her deep-seated resentment and
vindicativeness for what she perceived as lack of love and appreciation from her own parents
since childhood. X x x

She countered that this were all lies and that they had a happy marriage and the case was filed
so the petitioner can be free to marry his paramour.

RULING: this is not like the case of Chi Ming Tsoi where in that case the court ruled that “the
senseless and protracted refusal of one of the parties to fulfill the above marital obligation is
equivalent to PI.” In that case, despite sharing the same bed from the time of their wedding
night in 22 May 1988 until their separation on 15 March 1989, never had coitus.

In this case, we have a husband who is constantly embarrassed by his wife’s outburst and
overbearing ways, who finds his wife’s obsession with cleanliness and the tight reign on his
wallet “irritants” and who is wounded by her lack of support and respect for his person and his
position as a Judge. These inadequacies pf Juanita do not amount to PI.

Referred again to Santos case for definition of PI and Republic vs. CA (Molina case) for the
guidelines.

Re PI of Manuel – what the evidence shows is that the only essential marital obligation which
respondent Manuel was not able to fulfill, if any, is the obligation of fidelity. Sexual infidelity,
per se, however, does not constitute PS. It must be shown that the his unfaithfulness is a
manifestation of a disordered personality which makes him completely unable to discharge the
essential obligations of the marital state and not merely due to his ardent wish to have a child of
his own flesh and blood.

Re PI of petitioner Juanita – respondent Manuel failed to prove that his wife’s lack of respect
for him, her jealousies and obsession with cleanliness, her outburst and her controlling nature
(especially with respect to his salary), and her inability to endear herself to his parents are grave
psychological maladies that paralyze her from complying with the essential obligations of
marriage. There is no showing also that these “defects” were already present at the inception
of the marriage and that they are incurable.

VII. DOMINGO vs. CA, 226 SCRA 572, September 17, 1993 (Article 40 FC)

Delia Soledad A. Domingo filed for petition for declaration of nullity of her marriage to
Roberto Domingo. Alleging that, unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing. She came to
know of their marriage only in 1983 when Erlinda sued them for bigamy.
Petitioner filed a motion to dismiss on the ground that the petition stated no cause of action.
The marriage being void ab initio, the petition for the declaration of its nullity is superfluous
and unnecessary.

ISSUE- Whether or not a petition for judicial declaration of a void marriage is necessary. If yes,
whether the same should be filed only for purposes of remarriage?

Petitioner relied on cases of Pp vs. Aragon and Pp. vs. Mendoza – which were earlier rulings of
the Court that no judicial decree is necessary to establish the invalidity of a void, bigamous
marriage.

With the Family Code now, it is settled. A declaration of the absolute nullity of a marriage is
now explicitly required either as a cause of action or a ground for defense. Where the absolute
nullity of a previous marriage is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law for said projected marriage to be free from legal
infirmity is a final judgment declaring the previous marriage void.

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner
submits that the same can be maintained only if it is for purposes of remarriage. Failure to
allege this purpose, according to petitioner’s theory, will warrant dismissal of the same.

VIII. Ching Ming Tsoi vs. CA, 266 SCRA 324

“If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic marriage
tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless
and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of
a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological
incapacity.

Evidently, one of the essential marital obligations under the Family Code is ‘To procreate
children based on the universal principle that procreation of children through sexual cooperation
is the basic end of marriage.’ Constant, nonfulfillment of this obligation will finally destroy the
integrity or wholeness of the marriage, In the case at bar, the senseless and protracted refusal of
one of the parties to fulfill the above marital obligation is equivalent to psychological
incapacity.

While the law provides that the husband and the wife are obliged to live together, observe
mutual love, respect, and fidelity, the sanction therefore is actually the ‘spontaneous, mutual
affection between husband and wife and not any legal mandate or court order.’ Love is useless
unless it is shared with another. X x x In the natural order, it is sexual intimacy which brings
spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of
creation. It is a function which enlivens the hope of procreation and ensures the continuation of
family relations.”

IX. Ngo-Te vs. Yu-Te G.R. No. 161793; Feb. 13. 2009

Predictably, however, in resolving subsequent cases,1[49] the Court has applied the
aforesaid standards, without too much regard for the law’s clear intention that each case is to be
treated differently, as “courts should interpret the provision on a case-to-case basis; guided by

1
experience, the findings of experts and researchers in psychological disciplines, and by
decisions of church tribunals.”

In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules,
as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the
Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was
sensitive to the OSG’s exaggeration of Article 36 as the “most liberal divorce procedure in the
world.”2[50] The unintended consequences of Molina, however, has taken its toll on people who
have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which,
like termites, consume little by little the very foundation of their families, our basic social
institutions. Far from what was intended by the Court, Molina has become a strait-jacket,
forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in
conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of
marriage. Ironically, the Roman Rota has annulled marriages on account of the personality
disorders of the said individuals.3[51]

The Court need not worry about the possible abuse of the remedy provided by Article
36, for there are ample safeguards against this contingency, among which is the intervention by
the State, through the public prosecutor, to guard against collusion between the parties and/or
fabrication of evidence.4[52] The Court should rather be alarmed by the rising number of cases
involving marital abuse, child abuse, domestic violence and incestuous rape.

In dissolving marital bonds on account of either party’s psychological incapacity, the

Court is not demolishing the foundation of families, but it is actually protecting the sanctity of
marriage, because it refuses to allow a person afflicted with a psychological disorder, who
cannot comply with or assume the essential marital obligations, from remaining in that sacred
bond. It may be stressed that the infliction of physical violence, constitutional indolence or
laziness, drug dependence or addiction, and psychosexual anomaly are manifestations of a
sociopathic personality anomaly.5[53] Let it be noted that in Article 36, there is no marriage to
speak of in the first place, as the same is void from the very beginning. 6[54] To indulge in
imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a
stillborn marriage.

The prospect of a possible remarriage by the freed spouses should not pose too much of
a concern for the Court. First and foremost, because it is none of its business. And second,
because the judicial declaration of psychological incapacity operates as a warning or a lesson
learned. On one hand, the normal spouse would have become vigilant, and never again marry a
person with a personality disorder. On the other hand, a would-be spouse of the
psychologically incapacitated runs the risk of the latter’s disorder recurring in their marriage.

Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case.
We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes,7[55] there is
need to emphasize other perspectives as well which should govern the disposition of petitions
for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once
more the principle that each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. And, to repeat for emphasis,
2
3
4
5
6
7
courts should interpret the provision on a case-to-case basis; guided by experience, the findings
of experts and researchers in psychological disciplines, and by decisions of church tribunals.

By the very nature of Article 36, courts, despite having the primary task and burden of
decision-making, must not discount but, instead, must consider as decisive evidence the
expert opinion on the psychological and mental temperaments of the parties.8[57]

Hernandez v. Court of Appeals9[59] emphasizes the importance of presenting expert

testimony to establish the precise cause of a party’s psychological incapacity, and to show that it
existed at the inception of the marriage. And as Marcos v. Marcos10[60] asserts, there is no
requirement that the person to be declared psychologically incapacitated be personally
examined by a physician, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity.11[61] Verily, the evidence must show a link, medical or the like,
between the acts that manifest psychological incapacity and the psychological disorder itself.

This is not to mention, but we mention nevertheless for emphasis, that the presentation
of expert proof presupposes a thorough and in-depth assessment of the parties by the
psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of
psychological incapacity.12[62] Parenthetically, the Court, at this point, finds it fitting to suggest
the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages,13[63] an option for the trial judge to refer the case to a court-appointed
psychologist/expert for an independent assessment and evaluation of the psychological state of
the parties. This will assist the courts, who are no experts in the field of psychology, to arrive at
an intelligent and judicious determination of the case. The rule, however, does not dispense
with the parties’ prerogative to present their own expert witnesses.

Going back, in the case at bench, the psychological assessment, which we consider as
adequate, produced the findings that both parties are afflicted with personality disorders—to
repeat, dependent personality disorder for petitioner, and narcissistic and antisocial personality
disorder for respondent. The seriousness of the diagnosis and the gravity of the disorders
considered, the Court, in this case, finds as decisive the psychological evaluation made by the
expert witness; and, thus, rules that the marriage of the parties is null and void on ground of
both parties’ psychological incapacity. We further consider that the trial court, which had a first-
hand view of the witnesses’ deportment, arrived at the same conclusion.

Indeed, petitioner, who is afflicted with dependent personality disorder, cannot assume
the essential marital obligations of living together, observing love, respect and fidelity and
rendering help and support, for he is unable to make everyday decisions without advice from
others, allows others to make most of his important decisions (such as where to live), tends to
agree with people even when he believes they are wrong, has difficulty doing things on his own,
volunteers to do things that are demeaning in order to get approval from other people, feels
uncomfortable or helpless when alone and is often preoccupied with fears of being abandoned.14
[67]
As clearly shown in this case, petitioner followed everything dictated to him by the persons
around him. He is insecure, weak and gullible, has no sense of his identity as a person, has no
cohesive self to speak of, and has no goals and clear direction in life.

8
9
10
11
12
13
14
 Although on a different plane, the same may also be said of the respondent. Her being
afflicted with antisocial personality disorder makes her unable to assume the essential marital
obligations. This finding takes into account her disregard for the rights of others, her abuse,
mistreatment and control of others without remorse, her tendency to blame others, and her
intolerance of the conventional behavioral limitations imposed by society. 15[68] Moreover, as
shown in this case, respondent is impulsive and domineering; she had no qualms in
manipulating petitioner with her threats of blackmail and of committing suicide.

Both parties being afflicted with grave, severe and incurable psychological incapacity,
the precipitous marriage which they contracted on April 23, 1996 is thus, declared null and
void.”

Psychological Incapacity.-- Articles 36, 39

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization. (As amended by E.O. No. 227)

Sempio-Dy: Provision is Taken from Canon Law.-- Par. 3 of Can 1095 of the New Code
of Canon Law provides that: "Matrimonial Consent”. The following are incapable of
contracting marriage:

xxx
xxx
3. Those who, because of causes of a psychological nature, are unable to assume
the essential obligations of marriage.

The Committee decided to adopt par. 3 of the New Code of Canon Law as a
ground for the declaration of nullity of marriage for the following reasons: (1) As
a substitute for divorce; (2) As a solution to the problem of Church-annulled
marriages; (3) As an additional remedy to parties who are imprisoned by a
marriage that exists in name only as they have long separated because of the
inability of one of them to perform the essential obligations of marriage.

Psychological Incapacity Distinguished from Vice of Consent.-- Psychological

incapacity is not a question of defective consent but a question of fulfillment of a
valid consent.

Psychological Incapacity Distinguished from Insanity.-- Mental incapacity or

insanity of some kind, like physical incapacity, is a vice of consent, while
psychological incapacity is not a species of vice of consent.

Q: Why Were No Examples of Psychological Incapacity Given in this Article?

A: The Committee did not give any examples of psychological incapacity for
fear that the giving of examples would limit the applicability of the provisions
under the principle of ejusdem generis. Rather, the Committee would like the
judge to interpret the provision on a case-to-case basis, guided by experience, the
findings of experts and researchers in psychological disciplines, and by decisions
of Church tribunals w/c, although not binding on the civil courts, may be given

15
persuasive effect since the provision was taken from Canon Law.

Q: Is the Psychologically Incapacitated Person Disqualified from Marrying

Again?

A: The Committee believes that there is no need to disqualify the

psychologically incapacitated from contracting another marriage bec. the fact of
his psychological incapacity for marriage would be revealed anyway when he
applies for a marriage license for the 2nd marriage, and the other party is thus
placed on guard to conduct discreet investigation about the matter.

General Characteristics of term "Psychological Incapacity": It must exhibit

gravity, antecedence and incurability: (1) Gravity, if the subject cannot carry out
the normal and ordinary duties of marriage and family shouldered by any
average couple existing under ordinary circumstances of life and work; (2)
antecedence, if the roots of the trouble can be traced to the history of the subject
before the marriage although its overt manifestation appear only after the
wedding; and (3) incurability, if treatments required exceed the ordinary means
of the subject, or involve time and expense beyond the reach of the subject.

Q: Who can File the Action to Declare the Marriage Void?

A: Either party, i.e., even the psychologically incapacitated can file the action.

Q: What is the Status of the Children under this Article?

A: The children conceived or born before the decree of nullity of marriage are
considered legitimate (Art. 54.)

SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of "psychological incapacity"

confined to the most serious cases of personality disorders demonstrative of
insensitivity or inability to give meaning and significance to the marriage.
F: On 9/20/86, Leouel Santos and Julia Rosario Bedia exchanged vows bef. a
mun. trial judge of Iloilo City. They lived w/ the wife's parents. One yr. later, a
child was born of their marriage. Quarrels marred the marriage bec. of frequent
interference by Julia's parents. On 5/18/88, Julia left for the US to work as a
nurse despite Leouel's pleas. For the first time in 7 mos. Julia called him up by
long distance promising to return home once her contract expires in 1/89. She
never did. When Leouel was in the US in 1990 to undergo a training program
under the auspices of the AFP, he tried to locate Julia, but to no avail. Hence this
action in Negros Oriental, under Art. 36, FC. Summons was served by
publication. Julia opposed the complaint, claiming it was Leouel who had been
irresponsible and incompetent. But she filed a manifestation stating she would
neither appear nor submit evidence. From an order of the lower court dismissing
the complaint for lack of merit, and the CA affirming said order, Leouel filed this
petition for certiorari.

HELD: It should be obvious, looking at all the disquisitions, including, and most
importantly, the deliberations of the FC Revision Committee itself, that the use
of the phrase "psychological incapacity" in Art. 36 has not been meant to
comprehend all such possible cases of psychoses as, likewise mentioned by some
ecclesiastical authorities, extremely law intelligence, immaturity, and like
circumstances. xxx Art. 36 cannot be taken and construed independently of, but
 must stand in conjunction w/, existing precepts in our marriage law. Thus
correlated, psychological incapacity should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage w/, as so expressed by Art. 68, FC include their mutual
obligations to live together, observe love, respect and fidelity and render help
and support.

(Balane: This is a tentative definition of psychological incapacity.) There is

hardly any doubt that the intendment of the law has been to confine the meaning
of "psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychologic condition must exist at the time
the marriage is celebrated. xxx.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. However, in the case of marriages celebrated before
the effectivity of this Code and falling under Article 36, such action or defense
shall prescribe in 10 years after this Code shall have taken effect. (As amended
by E.O. No. 227)

Tolentino: Retroactivity of Art. 36.-- By providing for a 10-yr prescriptive period

for marriages of this nature solemnized bef. the effectivity of the FC, the latter
has actually given a retroactive effect to the present article.
We submit that this is a juridical mistake. It is like an ex post facto provision
translated into the field of civil law. It contravenes the provisions of Art. 255 w/c
allows retroactivity of the FC provisions only when it does not impair or
prejudice vested or acquired rights.

Article 40 of the Family Code. The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void.

“If the first marriage is void and a party to that first marriage subsequently remarries
without obtaining a judicial declaration of nullity of the first marriage, the subsequent
marriage is likewise void. It is void not because it is bigamous but because it failed to
comply with the requirements under Article 40 of the Family Code.

On the other hand, a subsequent void bigamous marriage contemplates a situation where
such subsequent marriage was contracted at the time when the first marriage, which is
valid in all respects, was still subsisting.

In other words, in a bigamous void marriage, the subsisting first marriage is valid, while
in Article 40 in relation to Article 52 and 53 of the Family Code, the subsisting first
marriage is void.

However, in the case of NICDAO CARINO VS. CARINO, the Supreme Court held that
where the first marriage is void for having been solemnized without a marriage
license, the subsequent marriage of one of the parties was bigamous because the
first marriage, though void, was still presumed to be valid considering that there
was no judicial declaration of nullity of the first marriage.
 Article 40

In 1969 SPO4 Santiago Carino married Susan Nicdao Carino. He had 2 children with her. In 1992, SPO4
contracted a second marriage, this time with Susan Yee Carino. In 1988, prior to his second marriage,
SPO4 is already bedridden and he was under the care of Yee. In 1992, he died 13 days after his marriage
with Yee. Thereafter, the spouses went on to claim the benefits of SPO4. Nicdao was able to claim a total
of P140,000.00 while Yee was able to collect a total of P21,000.00. In 1993, Yee filed an action for
collection of sum of money against Nicdao. She wanted to have half of the P140k. Yee admitted that her
marriage with SPO4 was solemnized during the subsistence of the marriage b/n SPO4 and Nicdao but
the said marriage between Nicdao and SPO4 is null and void due to the absence of a valid marriage
license as certified by the local civil registrar. Yee also claimed that she only found out about the
previous marriage on SPO4’s funeral.

ISSUE: Whether or not the absolute nullity of marriage may be invoked to claim presumptive legitimes.

HELD: The marriage between Nicdao and SPO4 is null and void due the absence of a valid marriage
license. The marriage between Yee and SPO4 is likewise null and void for the same has been solemnized
without the judicial declaration of the nullity of the marriage between Nicdao and SPO4. Under Article 40
of the FC, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute
nullity of a previous marriage is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law, for said projected marriage to be free from legal
infirmity, is a final judgment declaring the previous marriage void. However, for purposes other
than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For
other purposes, such as but not limited to the determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of marriage even after the death of the parties
thereto, and even in a suit not directly instituted to question the validity of said marriage, so
long as it is essential to the determination of the case. In such instances, evidence must be
adduced, testimonial or documentary, to prove the existence of grounds rendering such a
previous marriage an absolute nullity. These need not be limited solely to an earlier final
judgment of a court declaring such previous marriage void.

The SC ruled that Yee has no right to the benefits earned by SPO4 as a policeman for their marriage is
void due to bigamy; she is only entitled to properties, money etc owned by them in common in
proportion to their respective contributions. Wages and salaries earned by each party shall belong to him
or her exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits earned by SPO4 as a cop even if
their marriage is likewise void. This is because the two were capacitated to marry each other for there
were no impediments but their marriage was void due to the lack of a marriage license; in their situation,
their property relations is governed by Art 147 of the FC which provides that everything they earned
during their cohabitation is presumed to have been equally contributed by each party – this includes
salaries and wages earned by each party notwithstanding the fact that the other may not have
contributed at all.

Crucial to the proper interpretation of Article 40 is the position in the provision of the
word “solely”. As it is placed, the same shows that it is meant to qualify “final
judgment declaring such previous marriage void.” Realizing the need for careful
craftsmanship in conveying the precise intent of the committee members, the provision
in question, as it finally emerged, did not state “The absolute nullity of a previous
marriage may be invoked SOLELY for purposes of remarriage…” in which case “solely
would clearly qualify the phrase “for purposes of remarriage.” That Article 40 as finally
formulated included the significant clause denotes that such final judgment declaring the
previous marriage void need not be obtained only or purposes of remarriage.
 Undoubtedly, one can conceive of other instances where a party might well invoke the
absolute nullity of a previous marriage for purposes other than remarriage, such as in
case of an action for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody and support of their
common children and the delivery of the latter’s presumptive legitimes. Evidence need
not be limited solely to an earlier final judgment of a court declaring such previous
marriage void.

Hence, where a party who has previously contracted a marriage which remains
subsisting desires to enter into another marriage which is legally unassailable, he is
required by law to prove that the previous one was an absolute nullity. But this he may
do on the basis solely of a final judgment declaring such previous marriage void.

ART. 40. THE ABSOLUTE NULLITY OF A PREVIOUS MARRIAGE MAY BE INVOKED

FOR PURPOSES OF REMARRIAGE ON THE BASIS SOLELY OF A FINAL JUDGMENT
DECLARING SUCH MARRIAGE VOID.

A. Judicial Declaration of Nullity of marriage for purposes of remarriage; Historical

Background:

1. People vs. Mendoza (95 Phil 845); September 28, 1954

People vs. Aragon (100 Phil 1033, February 28, 1957

NO NEED for judicial declaration of nullity of a void marriage

2. Gomez vs. Lipana (33 SCRA 614, June 30, 1970

Conseguera vs. Conseguera (37 SCRA 315, January 30, 1971

NEED judicial declaration of nullity of a void marriage

3. Odayat vs. Amante (77 SCRA 338, June 2, 1977

Tolentino vs. Paras (122 SCRA 525, May 30, 1983

NO NEED for judicial declaration of nullity of a void marriage

4. Wiegel vs. Sempio Diy (143 SCRA 499, August 19, 1986

NEED judicial declaration of nullity of a void marriage

5. Yap vs. Court of Appeals (145 SCRA 229, October 28, 1986

NO NEED for judicial declaration of nullity of a void marriage

6. August 3, 1988, Family Code took effect, Art. 40 thereof provides and
mandates that there is a need for judicial declaration of nullity of a void
marriage only for purposes of remarriage.

As a consequences of these changing rules, the status of a subsequent marriage

depends upon the law and jurisprudence on the matter at the time of the
solemnization of the said subsequent marriage.

B. CASES:
Roberto Domingo vs. Court of Appeals (226 SCRA 572, September 17, 1993)
PROPER INTERPRETATION OF ARTICLE 40 and the word “solely” therein

Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of
action. The marriage being void ab initio, the petition for the declaration of its nullity
is, therefore superfluous and unnecessary.
ISSUE: Whether or not a petition for judicial declaration of a void marriage is
necessary. If yes, whether or not the same should be filed only for
purposes of remarriage.

SC HELD: Traced history of Judicial declaration of void marriage for purposes of

marriage.

“The Family Law Revision Committee and the Civil Code Revision
committee which drafted what is now the Family Code of the Philippines
took the position that the parties to a marriage should not be allowed
to assume that their marriage is void even if such be the fact but
must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again. X x x”

“In fact, the requirement for a declaration of absolute nullity of a

marriage is also for the protection of the spouse who, believing that
his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.

Just over a year ago, the Court made the pronouncement that there is
a necessity for a judicial declaration of absolute nullity of a prior
subsisting marriage before contracting another in the recent case of
Terre vs. Terre (Adm. Case No. 2349, July 3, 1992, 211 SCRA 6, 11).
The Court, in turning down the defense of respondent Terre who was
charged with grossly immoral conduct consisting of contracting a second
marriage and living with another woman other than complainant while
his prior marriage with the latter remained subsisting, said that ‘for
purposes of determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first marriage was
null and void ab initio is essential.’

ISSUE: Petitioner submits that the necessity for a judicial declaration of absolute
nullity of marriage, the same can be maintained only if it is for purposes
of remarriage. Failure to allege this purposes, according to him, will
warrant dismissal of the same.

SC HELD: “Crucial to the proper interpretation of Article 40 is the position in the

provision of the word ‘solely.’ As it is placed, the same shows that it is
meant to qualify ‘final judgment declaring such previous marriage
void.’ Realizing the need for careful craftsmanship in conveying the
precise intent of the Committee members, the provision in question, as it
finally emerged, did not state ‘The absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage . . . ,’ in
which case ‘solely’ would clearly qualify the phrase ‘for purposes of
remarriage.’ X x x
 “That Article 40 as finally formulated induced the significant clause
denotes that such final judgment declaring the previous marriage void
need not be obtained only for purposes of remarriage. Undoubtedly,
one can conceive of other instances where a party might well invoke
the absolute nullity of a previous marriage for purposes other than
remarriage, such as in case of an action for liquidation, partition,
distribution and separation of property between the erstwhile
spouses, as well as an action for the custody and support of their
common children and the delivery of the latter’s presumptive
legitimes. In such cases, evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited solely to an
earlier final judgment of a court declaring such previous marriage void.
Hence, in the instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into another
marriage which is legally unassailable, he is required by law to prove
that the previous one was an absolute nullity. But this he may do on
the basis SOLELY of a final judgment declaring such previous
marriage void.”

Valdez vs. RTC, Br. 102, Quezon City (260SCRA 221, July 31, 1996) SC COURT
RECOGNIZES EXCEPTIONAL VOID MARRIAGE UNDER ARTICLE 40

“The rules set up to govern liquidation of either the absolute community

or the conjugal partnership of gains, the property regime recognized for valid
and voidable marriages (in the latter case until the contract is annulled), are
irrelevant to the liquidation of the co-ownership that exists between common-law
spouses. The first paragraph of Article 50 of the Family Code, applying
paragraphs (2), (3), (4), and (5) of Article 43, relates only, by its explicit terms, to
voidable marriages, and exceptionally to void marriages under Article 40 of the
Code, i.e., the declaration of nullity of a subsequent marriage contracted by a
spouse of a prior void marriage before the latter is judicially declared void. The
latter is a special rule that somehow recognizes the philosophy and an old
doctrine that void marriages are inexistent from the very beginning and no
judicial decree is necessary to establish their nullity. In now requiring for
purposes of remarriage, the declaration of nullity by final judgment of the
previously contracted void marriage, the present law aims to do away with any
continuing uncertainty on the status of the second marriage. It is not then
illogical for the provisions of Article 43, in relation to Articles 41 and 42 of the
Family Code, on the effects of the termination of a subsequent marriage
contracted during the subsistence of a previous marriage to be made applicable
pro hac vice. X x x”

Susan Nicdao Carino vs. Susan Yee Carino (351 SCRA 127, February 2, 2001) SC held
THAT ALTHOUGH A FIRST MARRIAGE IS VOID, IT IS PRESUMED VALID
UNTIL IT IS DECLARED VOID, SUCH THAT TO CONTRACT A SUBSEQUENT
MARRIAGE BEFORE DECLARATION OF NULLITY OF FIRST MARRIAGE, THE
SPOUSE IS GUILTY OG BIGAMY

First marriage between Santiago Carino and Susan Yee Carino (June 20, 1969) is
void because there was no marriage license. Without securing a judicial
 declaration of nullity of the marriage, Santiago contracted marriage with Susan
Yee Carino (November 10, 1992).

“Under Article 40 of the Family Code, the absolute nullity of a previous

marriage may be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. Meaning, where the absolute
nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final judgment
declaring the previous marriage void. However, for purposes other than
remarriage, no judicial action is necessary to declare a marriage an absolute
nullity. For other purposes, such as but not limited to the determination of
heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court
may pass upon the validity of marriage even after the death of the parties thereto,
and even in a suit not directly instituted to question the validity of said marriage,
so long as it is essential to the determination of the case. In such instances,
evidence must be adduced, testimonial or documentary, to prove the existence of
grounds rendering such previous marriage an absolute nullity. These need not
be limited solely to an earlier final judgment of a court declaring such
previous marriage void,”

SC held - “Considering that the marriage of respondent Susan Yee and

the deceased is a bigamous marriage, having been solemnized during the
subsistence of a previous marriage then presumed to be valid (between
petitioner and the deceased), the application of Article 148 is therefore
in order.”

NOTE: “The Supreme Court, while acknowledging that the previous marriage
was void for having been solemnized without a marriage license, nevertheless stated
that the subsequent marriage of one of the parties was bigamous because the first
marriage, though void was still presumed to be valid considering that there was no
judicial declaration of nullity of the first marriage. Accordingly the Supreme Court
applied the property regime under Article 148.”

“there would seem to be no distinction now between the voidness of the subsequent
marriage under Article 40 and the voidness of the subsequent marriage due to bigamy under
Article 41.” Valdez vs. RTC recognizes that the subsequent void marriage in Article 40
is a very exceptional void marriage.

ELEMENTS OF BIGAMY: (People vs. Cobar, CA-G.R. No. 19344, November 10, 1997.
Court of Appeals discussed the crime of bigamy and Article 40 of the FC. In this case, it was
the Solicitor General recommending the appellant’s acquittal for the following reasons:

Article 349 of the Revised Penal Code- BIGAMY is committed by any person who shall
contract a second or subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared presumptively dead by means
of a judgment rendered in the proper proceeding.

1. The offender has been legally married – this means that the former marriage
is either valid or voidable, the latter being presumed valid until it is judicially
annulled.
 2. The marriage has not been legally dissolved or in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according the Civil
Code.

The term legally dissolved used under Article 349 presupposes a prior valid
or voidable marriage. Such marriage is dissolved upon the death of either
spouse and in case of voidable marriage, by the annulment thereof. The
term could not be deemed to embrace a marriage which is void ab initio
because this is considered non-existent.

3. The offender contracts a second or subsequent marriage.

4. The second or subsequent marriage has all the essential requisites for
validity.

According to the CA, there is the absence of the first and fourth elements of bigamy. On
the first element, the first marriage is void and on the 4 th element, it is also void not because
it is bigamous but because of the failure to comply with Articles 40 and 52 of the Family
Code.

2. Prescription, Art. 39

The action or defense for the declaration of absolute nullity shall not
prescribe. (However, in case of marriage celebrated before the effectivity
of this Code and falling under Article 36, such action or defense shall
prescribe in ten years after this Code shall taken effect.) Amended by RA
8533, Feb. 23, 2998

3. Subsequent marriage, Arts. 40-44

Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.
Tolentino: [F]or purposes of remarriage it would be necessary to such
void M to secure a final judgment declaring it null and void from the
beginning. W/o such final judgment, the previous void marriage would
constitute an impediment to the remarriage, and a marriage license may
be denied.

xxx This article applies only when a license is to be obtained for a

subsequent marriage.

DOMINGO V. CA [226 SCRA 572 (1993)] - A spouse may petition for the
declaration of nullity of her marriage for a purpose other than her
remarriage.

F: Delia Domingo filed a pet. for decl. of nullity of her marriage w/

Roberto Domingo, on the ground that, unknown to her, he was previously
married at the time of their marriage. She prays that their marriage be
declared null and void and, as a consequence, to declare that she is the
exclusive owner of all properties she acquired during the marriage and to
recover them from him. Roberto moved to dismiss the petition on the
ground that the marriage being void ab initio, the petition for decl. of
nullity is unnecessary citing Peo. v. Aragon and Peo. v. Mendoza. Roberto
claims that decl of nullity is necessary under Art. 40, FC only for the
purpose of remarriage. The lower court denied the motion. CA affirmed
the denial.

HELD: The Declaration of nullity of a marriage under Art. 40 may be

resorted to even for a purpose other than remarriage. Crucial to the
proper interpretation of Art. 40 is the position of the word "solely." xxx.
As it is placed, it is meant to qualify "final judgment." Had the provision
been stated as follows: "The absolute nullity of a previous marriage may
be invoked solely for purposes of remarriage...," the word "solely" will
qualify "for purposes of remarriage" and the husband would have been
correct.
That Art. 40 as finally formulated included the significant clause denotes
that such final judgment declaring the previous marriage void need not
be obtained only for purposes of remarriage.

ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an

administrative complaint filed by Atienza for Gross Immorality and
Appearance of Impropriety against J. Brillantes, Presiding Judge of MTC,
Mla. It was alleged in the complaint that Brillantes has been cohabiting
w/ Yolanda De Castro (with whom Atienza had 2 children) when he
(Brillantes) was already married to one Zenaida Ongkiko w/ whom he has
5 children. xxx Resp. denies having been married to Ongkiko, although
he admits having 5 children w/ her. He alleges that while he and Ongkiko
went through a marriage ceremony, the same was not valid for lack of
marriage license. The second marriage bet. the two also lacked the
required license. He claims that when he married De Castro in LA,
California, he believed, in all GF and for all legal intents and purposes,
that he was single because his first marriage was solemnized w/o a
license.

HELD: Under the FC, there must be a judicial decl. of the nullity of a
previous marriage bef. a party thereto can enter into a 2nd marriage.
(Art. 40.) Art. 40 is applicable to remarriages entered into after the
effectivity of the FC regardless of the date of the first marriage. Said art.
is given "retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance w/ the NCC or other laws." (Art.
256, FC.) This is particularly true w/ Art. 40 w/c is a rule of procedure.
Resp. has not shown any vested right that was impaired by the
application of Art. 40 to his case.

The fact that procedural statutes may somehow affect the litigants'
rights may not preclude their retroactive application to pending actions.
The retroactive application of procedural laws is not violative of any
right of a person who may feel that he is adversely affected. The reason
is that as a general rule no vested right may attach to, nor arise from,
procedural laws.

Art. 41. A marriage contracted by any person during the subsistence of a

previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that
the absent spouse was already dead. In case of disappearance where there
is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only 2 years shall be
sufficient. For the purpose of contracting the subsequent marriage under
the preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.

Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the loss
of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The period was reduced in the FC to 2 years in the foregoing cases.

REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of

presumptive death under Art. 41, FC is available only for the purpose of
remarriage. Gregorio Nolasco was a seaman. During one of the calls of his
ship to England, he met Janet Monica Parker, a British subject. From
that chance meeting, Janet lived w/ Nolasco on his ship for 6 mos. When
Nolasco's contract expired in 1960, Janet went w/ him in returning home
to San Jose, Antique. In Jan. 1982, Nolasco married Janet in Catholic
sites in Antique.
After the marriage, Nolasco obtained another employment contract as a
seaman, leaving his pregnant wife w/ his parents. Sometime, in 1/83,
while working overseas, Nolasco received a letter from his mother
informing him that Janet had already given birth to his son. The letter
also informed him that Janet left Antique after giving birth. Xxx In 88, or
5 yrs. after the disappearance of Janet, Nolasco filed an action for the
decl. of presumptive death of his wife Janet under Art. 41, FC, claiming
that all his efforts to look for her proved fruitless. xxx The trial court
granted the petition. CA affirmed the ruling. Hence this petition for
review.

HELD: 1. A petition to declare an absent spouse presumptively dead may

not be granted in the absence of any allegation that the spouse present
will remarry.
2. There are 4 requisites for the declaration of presumptive death under
Art. 41:

1. That the absent spouse has been missing for 4 consecutive years, or 2
consecutive yrs. if the disappearance occurred where there is a danger of
death under the circumstances laid down in Art. 391.
2. That the spouse present wishes to remarry

3. That the spouse present has a well-founded belief that the absentee is
dead.

4. That the present spouse files a summary proceeding for the

declaration of presumptive death of the absentee.

The Court believes that resp. Nolasco failed to conduct a search for his
missing wife w/ such diligence as to give rise to a "well-founded belief"
that she is dead. The Court considers the investigation allegedly
conducted by Nolasco in his attempt to ascertain the whereabouts of
Janet as to sketchy to form the basis of a reasonable or well-founded
belief that she was already dead. For instance, when he arrived in
Antique, instead of seeking the help of local authorities or of the British
Embassy, he secured another seaman's contract and went to London. We
do not consider that walking into a major city w/ a simple hope of
somehow bumping into one particular person there xxx can be regarded
as a reasonable diligent search. The Court also views Nolasco's claim that
Janet declined to give any info. as to her personal background even after
marrying Nolasco as too convenient an excuse to justify his failure to
locate her.

ART. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. (amended by EO No. 227 dated July 17,
1987 and further amended by RA No. 8533 dated February 23, 1998)

PRESCRIPTIVE PERIOD – the time within which to file an action for the declaration of
nullity of a marriage or to invoke such nullity as a defense, whether in a direct or collateral
manner, does not prescribe.

In Ninal vs. Bayadog (328 SCRA 122, where the petition for the
declaration of nullity of marriage was filed by the children of the
deceased contracting party only after the latter’s death, the SC ruled
that such a petition can still proceed. The SC stated that a void marriage
is considered as having never to have taken place and will be treated as
non-existent by the courts. As such, the petition is imprescriptible and
can be filed by the children even after the death of the contracting party,
who was their father. The SC said that “if the death of either party would
extinguish the cause of action or the ground for defense, then the same
cannot be considered inprescriptible” which should not be the case.

However, under SC, En Banc, resolution in A.M. No. 02-11-10 which

took effect on March 15, 2003, the ruling in the Ninal case as to
prescription does not hold anymore because said resolution provides that
only the husband and wife can file the case, and, if filed, the case will be
closed or terminated if during its pendency, whether the husband or wife
should die. Moreover, under the said new rules on declaration of nullity,
the heirs cannot anymore file a case for the nullity of marriage of their
parents or of their parent with their step-parent (Enrico v. Heirs of
Medinaceli, Sept. 28, 2007, 534 SCRA 419)
 While the FC is silent as to who can file a petition to declare the
nullity of a marriage (Ninal v. Bayadog), under SC Resolution A. M. No.
02-11-10-SC only the husband or the wife can file a court case for the
declaration of nullity. Parents cannot file the case for declaration of
nullity of the marriage of their child; neither can the heir file said case
in relation to the marriage of his or her parent with another.

In Fujiki v. Marinay, June 26, 2013, the SC ruled that only the spouse in
the subsisting first marriage can file a case for declaration of nullity of a
subsequent bigamous marriage. The other “spouse” in the subsequent
marriage cannot file the case considering that his or her marriage is void.

However, a void marriage can still be collaterally attacked by any

interested party in any proceeding where the determination of the
validity of marriage is necessary to give rise to certain rights or to negate
certain rights. This can occur for example in an intestate proceeding
where certain heirs can attack the validity of the marriage of the
deceased parent so that the children of the deceased parent can be
considered illegitimate for purposes of inheritance.

ARTICLE 41.

BIGAMOUS MARRIAGE. As a general rule, a marriage contracted during

the lifetime of the first spouse is null and void (Gomez vs. Lipana, 33
SCRA 615)

A person who marries another knowing that the latter is already

married and that his marriage is valid and subsisting, can be prosecuted
for bigamy (Pp. vs. Archilla, 1 SCRA 698). Even if the first marriage is
annullable or voidable, any subsequent marriage celebrated without such
prior annullable or voidable marriage being in fact annulled, is bigamous
and therefore void ab initio.

If the previous marriage is void and there is a subsequent marriage

without judicial declaration of nullity of the first void marriage, the
subsequent marriage is also void technically because it does not comply
with Articles 40, 52, and 53, and not because it is bigamous. However, in
Nicdao Carino and the Mercado case, the Supreme Court appeared to
have said that, for as long as, the first void marriage is not judicially
declared void, any subsequent marriage is also bigamous.

EXCEPTION: A “bigamous” marriage may be considered valid if,

prior to the subsequent marriage and without prejudice to the effect of
the reappearance of the other spouse, the present spouse obtains a
judicial declaration of presumptive death via a summary proceeding in a
court of competent jurisdiction.

The judicial declaration is merely a statement to the effect that the

prior spouse is merely presumed dead. The declared presumption will
still be only prima facie, and can be overthrown by evidence (Pp. vs.
Archilla). The fact of death is not really established.

Republic v. Nolasco, 220 SCRA 20, March 17, 1993

ISSUE: Whether or not Nolasco has a well-founded belief that his wife is already
dead.

SC HELD: “When Article 41 is compared with the old provision of the Civil Code,
which it superseded, the following crucial differences emerge. Under
Article 41, the time required for the presumption to arise has been
shortened to four (4) years; however, there is need for a judicial
declaration of presumptive death to enable the spouse present to remarry.
Also, Article 41 of the Family Code imposes a stricter standard than the
Civil Code: Article 83 of the Civil Code merely requires either that there
be no news that such absentee is still alive; or the absentee is generally
considered to be dead and believed to be so by the spouse present, or is
presumed dead under Articles 390 and 391 of the Civil Code, The
Family Code upon the other hand, prescribes a “well-founded belief”
that the absentee is already dead before a petition for declaration of
presumptive death can be granted.

REQUISITES:

1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid down
in Article 391 of the Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the

absentee is dead; and

4. That the present spouse files a summary proceeding for the

declaration of presumptive death of the absentee.

Nolasco failed to comply with the 3rd requisite of “well-founded belief”

that the absent spouse is already dead.

BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a

subsequent marriage while the first marriage is subsisting, the second
marriage as a general rule is void for being bigamous. He who invokes
that the second marriage is voidable for being an exception under Art. 83
of the NCC has the burden of proving it.

Aurelio Camacho married Conseja Velasco in '42. In '62, w/o this

marriage being dissolved, Aurelio married Luisita Camacho in Tokyo. In
'67, Aurelio met Nenita Bienvenido. Aurelio courted and won her and
they cohabited until Aurelio's death in '88. In '82, Aurelio bought a house
and lot. In the deed of sale and in the TCT in his name, he was described
as single. In '84, he sold the said house and lot to Nenita. When Aurelio
died, Luisita filed an action to annul the sale to Nenita alleging that it
was in fraud of her as the legitimate wife of Aurelio. Nenita opposed the
action claiming that she was a buyer in GF. The trial court upheld the
sale in favor of Nenita. The CA reversed. Hence, this petition for review.

HELD: There is no presumption that the marriage bet. Aurelio and Luisita
is valid. As a general rule, under Art. 83, NCC, a subsequent marriage
contracted while the previous one is still subsisting is void. There are
exceptions to this rule but he who is invoking the exception has the
burden of proving the existence of the conditions for the said exception
to arise. In the case at bar, the burden of proof was on Luisita to show
that at the time of her marriage to Aurelio, Aurelio's first wife had been
absent for at least 7 yrs and that he had no news that she was alive. She
failed to discharge this burden. What applies, therefore, is the general
rule xxx. Consequently, there is no basis for holding that the prop. in
question was prop. of his conjugal partnership bet. Luisita and Aurelio
bec. there was no partnership in the first place.

Art. 42. The subsequent marriage referred to in the preceding Article

shall be automatically terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall

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

TERMINATION OF SUBSEQUENT MARRIAGE. Unless there is a judgment

annulling the previous marriage or declaring it void ab initio, automatic
termination of the subsequent marriage can be obtained by the recording
of the affidavit of reappearance of the absent spouse in the civil registry
of the residence of the parties to the subsequent marriage.

NOTE: This is the only instance where a marriage is terminated

extrajudicially. In case the reappearance is disputed, the same shall be
subject to judicial determination.

Marriage under Art. 41 is valid unless terminated under Art. 42. Notice
that the law uses the term "terminated" and not annulled. This is
because marriage under Art. 41 is a good marriage. The effect of the
affidavit of reappearance is that the subsequent marriage is terminated
unless it is judicially challenged.

If both parties to the subsequent marriage acted in BF (knowing that the

absent spouse is alive), the said marriage is void ab initio under Art. 44.

Q: If only one party has acted in BF, is the M valid?

A: If the spouse who contracted the 2nd M knew that in spite of the
absence of his spouse for the period provided in 41 said absent spouse
was alive, his 2nd M should be considered void as bigamous under 35(4),
because an essential element in 41 to make it an exception is wanting. If
such present spouse has acted in GF and the declaration of presumptive
death has been obtained, the BF of the 2nd spouse will not affect the
validity of the M, but the provisions of 43 will operate against him, such
as the revocation of donations by reason of M made to him, of his
designation as beneficiary in any insurance of the innocent spouse, and
his disqualification to inherit from the innocent spouse.

AFFIDAVIT OF REAPPEARANCE.- The subsequent marriage is

automatically terminated by the recording of the affidavit of
reappearance in the civil registry of the residence of the parties to the
subsequent marriage.

Any interested party may file this affidavit of reappearance (i.e.

parents, children of the other contracting spouse in the subsequent
marriage)

If the reappearance of the absent spouse is authentic, the judicial

declaration of presumptive death is immediately rendered functus
officio. The mere fact of reappearance, and not the recording of the
affidavit of reappearance, renders without legal effect the judicial
declaration of presumptive death. The only effect of the recording of the
affidavit of reappearance is to terminate the subsequent marriage.

When No Action Taken.-- If the absentee reappears, but no step is taken

to terminate the subsequent M, either by affidavit or by court action, his
mere reappearance, even if made known to the spouses in the 2nd M, will
not terminate such M.
[I]t is incorrect to say that the first M is dissolved by the celebration of
the 2nd. It would be more accurate to say that since the 2nd M has been
contracted because of a presumption that the former spouse is dead,
such presumption continues in spite of his physical reappearance, and by
fiction of law, he must be regarded as legally an absentee, until the
subsequent M is terminated as provided by law. The result of this is the
suspension of the legal effects of M as to him as long as the 2nd M
subsists.

GOMEZ V. LIPANA [38 S 615 (1958)] - Where a husband and his second
wife from whom he concealed his first marriage, acquired properties
during their marriage, the second marriage being void, is subject to
collateral attack in the intestate proceedings instituted by the judicial
administratrix for the forfeiture of the husband's share under Article
1417, Spanish Civil Code (no longer in force). "The legal situation arising
from these facts is that while insofar as the second wife was concerned,
she having acted in good faith, her marriage produced civil effects and
gave rise, just the same, to the formation of the conjugal partnership
wherein she was entitled to an equal share upon dissolution." The only
JUST AND EQUITABLE solution is to give one-half of the properties to
the second wife, and the other half to the conjugal partnership of the
first marriage.

CONSUEGRA V. GSIS [37 S 315 (1971)] - Where the husband designated

his second family as beneficiaries of his life insurance policy, upon his
death, both his first wife and second family share 50-50 in the benefits.
Since the first marriage has not been dissolved, his wife remains as his
legal heir. Although the second marriage is presumed void, having been
contracted during the subsistence of the first marriage, there is a need
for a judicial declaration of its nullity, which is no longer possible, the
death of the husband having terminated the second conjugal partnership
of gains.

Baviera: The court should not have applied Gomez v. Lipana, since there
is no provision in the Civil Code giving effect to a void marriage in good
faith.

PEOPLE V. MENDOZA [95 S 845 (1954)] - A subsequent marriage

contracted by any person during the lifetime of his spouse is illegal and
void from its performance, and no judicial decree is necessary to
establish its invalidity. A prosecution for bigamy based on said void
marriage will not lie.

PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza

Baviera: As a defense in bigamy, there is no need for judicial declaration
of nullity of a void marriage; as far as determination of property relations
is concerned, there is a need for such judicial declaration for purposes of
remarriage.

Art. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its

termination shall be considered legitimate, and their custody and
support in case of dispute shall be decided by the court in a proper
proceeding;
(2) The absolute community of property or the conjugal partnership, as
the case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits
of the community property or conjugal partnership property shall be
forfeited in favor of the common children or, if there are none, the
children of the guilty spouse by a previous marriage or, in default of
children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse
who acted in bad faith as beneficiary in any insurance policy, even if
such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall
be disqualified to inherit from the innocent spouse by testate and
intestate succession.

Art. 44. If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason of
marriage and testamentary dispositions made by one in favor of the
other are revoked by operation of law.
STATUS OF CHILDREN. Children conceived during the subsequent
marriage under Article 41 of the FC and before termination of the same
shall be considered legitimate. This status of the children will be
maintained even if one of the contracting parties is in bad faith. This
is so because where only one of the parties to the subsequent marriage is
in bad faith, the marriage is still valid. It is only when both parties
to the subsequent marriage are in bad faith is the subsequent
marriage considered void as provided in Article 44 of the FC.

Q: If the subsequent marriage is not terminated by the subsequent

reappearance or by judicial declaration, but by death, do these effects
arise?
A: It is submitted that generally if a subsequent M is dissolved by the
death of either spouse, the effects of dissolution of valid M shall arise.
The GF or BF of either spouse can no longer be raised, because, as in
annullable or voidable M, the M cannot be questioned except in a direct
action for annulment. But if both parties acted in BF, under 44, the M is
void ab initio. In such case, the validity of the M can be attacked
collaterally at any time, and the effects provided on 44 can be applied
even if the dissolution is by death of one of the spouses.

ART. 44. The good faith of the present spouse must be present up to the
time of the celebration of the subsequent marriage. This means up to the
time of the solemnization of the subsequent marriage.

Art. 53. Either of the former spouses may marry again after complying
with the requirements of the immediately preceding Article; otherwise,
the subsequent marriage shall be null and void.

Art. 52. The judgment of annulment or of absolute nullity of the

marriage, the partition and distribution of the properties of the spouses,
and the delivery of the children's presumptive legitimes shall be recorded
in the appropriate civil registry and registries of property; otherwise, the
same shall not affect third persons.

4. Annullable marriage, Arts. 14, 45-47

KINDS:

 No parental consent for a contracting party who is 18 years of age or over but
below 21 years of age;
 Unsound mind
 Consent was obtained through fraud
a. Non-disclosure of a previous conviction by final judgment of a crime
involving moral turpitude
b. Concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband
c. Concealment of sexually transmissible disease, regardless of its nature,
existing at the time of the marriage; or
d. Concealment of drug addiction, habitual alcoholism, or homosexuality or
lesbianism existing at the time of the marriage
 No other misrepresentation or deceit as to character, health, rank, fortune
or chastity shall constitute such fraud as will give grounds for action for
the annulment of marriage. (Art. 46)

 Consent was obtained by force, intimidation, or undue influence

 Physical incapability to consummate the marriage which appears incurable
 Affliction with a sexually transmissible disease found to be serious and appears
to be incurable

GROUND PARTY TO PRESCRIPTIVE

FILE SUIT PERIOD

1. No Parental Consent Parent or Guardian Anytime before said

Having legal charge of the contracting party
Party 18 but below 21 reaches 21

Party 18 and above Within 5 years

but below 21 after attaining 21

2. Insanity Sane spouse without Any time before

Knowledge of insanity death of either
Party

Relatives, guardian At any time before

Or person having death of either
Legal charge of insane party

Insane spouse During lucid

Interval or
Regaining sanity

3. Fraud Injured party Within 5 years

After discovery
Of the fraud

4. Vitiated Consent Injured Party Within 5 years from

Time force,
Intimidation or
Undue influence
Disappeared or
Ceased

5. Incapability to Injured party Within 5 years

Consummate or after the marriage

6. Sexually transmissible within 5 years from

Disease ceremony

2. EFFECTS of Void marriages under Article 40 and Voidable marriages (Art. 43)
  The ACP or CPG shall be dissolved and liquidated, but the guilty spouse shall
forfeit his or her share in the net profits of the community property in favor of
the common children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse;

 Donations by reason of marriage shall remain valid, except that if the donee is
the guilty spouse, such donations made to said donee are revoked by operation
of law;
 The innocent spouse may revoke the designation of the guilty spouse as a
beneficiary in any insurance policy even if such designation be stipulated as
irrevocable; and

 The guilty spouse shall be disqualified to inherit from the innocent spouse by
testate and intestate succession (Art. 50 IRT to Art. 43)

Physical Incapability.-- Articles 45 par. 5, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing at the time
of the marriage:
xxx
(5) That either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; xxx
xxx

Physical Incapacity: Requisites:

(1) The incapacity exists at the time of the celebration of the M;
(2) Such incapacity must be permanent (it continues to the time when the case
for annulment is being tried) and incurable;
(3) It must be unknown to the other contracting party;
(4) the other spouse must not himself/ herself be impotent.

This kind of marriage cannot be cured by ratification.

Tolentino xxx The physical incapacity referred to by the law as a ground for A of M, is
impotence [impotentia copulandi/ coeundi as distinguished from impotentia generandi
(sterility)], or that physical condition of the H or the W in which sexual intercourse w/ a
normal person of the opposite sex is impossible. Impotence refers to lack of power to
copulate, the absence of the functional capacity for the sexual act. The defect must be
lasting to be a ground for annulment. The test of impotence is not the capacity to
reproduce, but the capacity to copulate. (Sarao v. Gueverra)

The refusal of the wife to be examined does not create the presumption of her
impotency because Filipino girls are inherently shy and bashful. The trial court must
order the physical examination of the girl, because without proof of impotency, she is
presumed to be potent. To order her to submit to a physical examination does not
infringe on her constitutional right against self-incrimination (Sempio-Dy citing Jimenez
v. Canizares, Aug. 31, 1960.)

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

xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within
five years after the marriage.

Triennial Cohabitation.-- This doctrine provides that if the wife remains to be a

virgin after 3 yrs. of cohabitation, the H will be presumed to be impotent, and the
burden will be upon him to overcome the presumption and does not prevent
impotency to be proved by another proper evidence.

Balane: Some commentators say that this is disputable presumption is applicable

in our jurisdiction.

Tolentino: Action Barred.-- The action on this ground is barred in the following
cases:
(1) If the other party had knowledge of the incurable impotence bef. the
M, because this would imply that he renounces copulation, w/c is a
personal right;
(2) If both spouses are impotent, and such impotence existed bef. the M,
continues, and appears incurable, bec. in this case an impotent pltff could
not have expected copulation w/ the other spouse.

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

xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.

f. Disease.-- Articles 45 par. 6, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing at the time
of the marriage:
xxx
(6) That either party was afflicted with a sexually-transmissible diseases found to be
serious and appears to be incurable.

REQUISITES: Sexually-Transmissible Disease.-- Its requisites are: (1) The

disease must be sexually transmissible; (2) The disease is found to be serious; (3)
It must be apparently incurable; (4) The STD must exist at the time of the M; (5)
It was unknown to the other party when the M was solemnized; and (6) the other
party must himself/ herself be free from STD.

A marriage were either party was afflicted w/ STD may not be ratified by
cohabitation. Cohabitation here may be suicidal. Take note that there are two
voidable marriages that cannot be ratified by ratification: (1) voidable marriage
bec. of impotence (here, there will be contradiction in terms; how can you
cohabit if you are impotent?); (2) voidable marriage because of STD.
The reason for this cause for A is the danger to the health of the other spouse and
offsprings, giving rise to possibility of avoidance of sexual relations, and the
failure to attain one of the purpose of M, that is, the procreation of children and
raising of a family.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
 xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured
party, within five years after the marriage.

4. Consent (an essential requisite).-- Art. 2 par. 2

Art. 2. No marriage shall be valid, unless these essential requisites are present:
xxx
(1) Consent freely given in the presence of the solemnizing officer.

Mutual Consent.-- Such consent must be real, in the sense that it is not vitiated
by mistake, duress, or fraud. It must also be conscious or intelligent.

Effect of Mistake.-- Mistake as to the nature and legal consequences of the

ceremony or as to the identity or the person of one of the parties, renders the
marriage void for lack of consent [see Art. 35(5).] But a marriage is not
invalidated by mistake as to rank, fortune, character or health, of one of the
parties.

a. Insanity.-- Articles 45 par. 2, 47 par. 2

Art. 45. A marriage may be annulled for any of the following causes, existing at
the time of the marriage:
xxx
(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
xxx

Party of Unsound Mind.-- The test of unsoundness of mind is w/n the

party at the time of the M was capable of understanding the nature and
consequences of the M. xxx

Insanity must exist at the time of the M, to avoid it.

Somnambulism has the same effect as insanity. (Sanchez Roman.)

Burden of Proof.-- The presumption of the law is generally in favor of

sanity, and he who alleges the insanity of another has the burden of
proving it. But once general insanity is proved to exist, it is presumed to
continue; and if a recovery or a lucid interval is alleged, the burden to
prove such allegation is on the person making it.

Ratification.-- This Art., in par. 2, gives the right of action to annul to the
insane spouse and provides for ratification after regaining reason. No
right of action is given to the sane spouse; this is based on the assumption
that he knew of the insanity of the other party and is placed in estoppel.
But if he did not know of such insanity at the time of the M, he is given a
right of action under Art. 47, par. 2, at any time before the death of the
insane spouse.

Art. 47. The action for annulment of marriage must be filed by the
following persons and within the periods indicated herein:
xxx
 (2) For causes mentioned in number 2 of Article 45, by the sane spouse,
who had no knowledge of the other's insanity or by any relative or
guardian or person having legal charge of the insane at any time before
the death of either party, or by the insane spouse during a lucid interval or
after regaining sanity;
xxx

Where the sane spouse knew of the insanity of the other, he is estopped to
seek annulment where he has lived w/ the wife claimed to have been
insane for several years and children have been born to them

b. Fraud.-- Articles 45 par. 3, 46, 47 par. 3

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(3) That the consent of either party was obtained by fraud, unless such
party afterwards, with full knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and wife;
xxx

Marriage through Fraud.-- The FC limits the cases w/c would constitute
fraud sufficient for annulment of M to those enumerated in Art. 46.
Because of the enumeration, w/c must be considered as restrictive, no
other case of fraud may be admitted.

Art. 46. Any of the following circumstances shall constitute fraud

referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of

the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of
its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank,

fortune or chastity shall constitute such fraud as will give grounds
for action for the annulment of marriage.

Conviction of Crime: Requisites: (1) The crime involves moral turpitude

and (2) There has been a conviction.

To find what crimes involve moral turpitude, you go by decisions of the

SC. Crimes against property are generally considered crimes of moral
turpitude.

Concealment of Pregnancy.-- Where a man has had sexual intercourse w/

his wife before the M, and she is pregnant at the time of M, although he
may not be the author of the pregnancy, the M will not be annulled. This
is based on the theory that there is no fraud, because the man knows his
 wife to be unchaste, as he was himself a party to her premarital
immorality.

Concealment of Diseases.-- Compared w/ Art. 45 (6):

(1) Under 45 (6), a STD is an independent cause for annulment.

Under 46, concealment of a STD constitutes fraud under par. 3.
(2) Under 45 (6), the STD existing at the time of the M must be
found to be serious and appear to be incurable. Under Art. 46 (3),
the STD need not be serious or incurable. To be aground for A, it
must have been "concealed" by the sick party. It is the fraud that
is the ground for A.
This difference has a very important consequence. If the disease
falls under Art 45 (6), the M is not subject to ratification by
continued cohabitation. If the disease falls under Art. 46 (3), the
ground for A is fraud, and the M is ratified under par. 3 of Art. 45,
if the spouse, after knowing of the disease of the other, continues
to cohabit w/ him or her as H & W.

Effect of Cure.-- The recovery or rehabilitation will not bar the

action. The defect of the M is not the disease, addiction or
alcoholism itself but the fraud w/c vitiated the consent of the
other party.

Homosexuality.-- Sexual orientation is not enough. One has to be a

practicing homosexual.

BUCCAT V. BUCCAT [72 P 19] - Where the wife was already 7 months
pregnant, the petition to annul the marriage on the ground of fraud was denied.
Where there has been no misrepresentation or fraud, that is, when the husband at
the time of the marriage knew that the wife was pregnant, the marriage cannot be
annulled. Here, the child was born less than 3 months after the celebration of the
marriage. We refuse to annul the marriage for the reason that the woman was at
an advance stage of pregnancy at the time of the marriage and such condition
must have been patent to the husband.

ANAYA V. PALAROAN [36 S 97] - F: Aurora Anaya prayed for the annulment of
her marriage w/ Fernando Palaraon on the ground of fraud in obtaining her
consent-- having learned that several mos. prior to their marriage, Fernando had
pre-marital relationship w/ a close relative of his. According to her the "non-
divulgement to her of such pre-marital secret" constituted fraud in obtaining her
consent w/in the contemplation of no. 4 of Art. 85, NCC.
HELD: The non-disclosure to a wife by her husband of his pre-marital
relationship w/ another woman is not a ground for annulment of marriage. For
fraud as a vice of consent in marriage, w/c may be a cause for its annulment,
comes under Art. 85, No. 4 of the NCC xxx. This fraud, as vice of consent, is
limited exclusively by law to those kinds or species of fraud enumerated in Art.
86 xxx.

The intention of Congress to confine the circumstances that can

constitute fraud as ground for annulment of marriage to the 3 cases therein may
be deduced from the fact that, of all the causes of nullity enumerated in Art. 85,
fraud is the only one given special treatment in a subsequent article w/in the
 chapter on void and voidable marriages. It its intention were otherwise, Congress
would have stopped at Art. 85, for anyway, fraud in general is already mentioned
therein as a cause for annulment. xxx.

JIMENEZ V. CANIZARES [109 P 273 (1960)] - Where the husband filed a

complaint for annulment of marriage on the ground of physical incapacity of his
wife for copulation, her genitals being too small for penetration, the sole
testimony of the husband as to the incapacity of his wife is not sufficient basis
for annulment. The presumption is in favor of potency. Hence, the court ordered
the wife to submit to a physical examination. A physical examination in this case
is not self- incriminating, since she is not being charged of any crime.

PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)] - A marriage may be annulled

even after one of the spouses has been convicted of adultery in violation of that
marriage.

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

xxx
(3) For causes mentioned in number 3 of Article 45, by the injured party,
within five years after discovery of the fraud;
xxx
This kind of marriage can be ratified by cohabitation for a reasonable
period w/c may set in even before the 5-yr. prescriptive period has
expired.

c. Force, Intimidation, Undue Influence.-- Articles 45 par. 4, 47 par. 4

Art. 45. A marriage may be annulled for any of the following causes, existing at
the time of the marriage:
xxx
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
xxx

Force, Intimidation and Undue Influence.-- The definitions of "violence,"

"intimidation," and "undue influence" are found in Arts. 1335 to 1337 of the
NCC

Art. 1335. There is violence when in order to wrest consent, serious or

irresistible force is employed.

There is intimidation when one of the contracting parties is compelled by a

reasonable and well-grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of his spouse, descendants or
ascendants, to give his consent. To determine the degree of intimidation, the age,
sex and condition of the person shall be borne in mind. A threat to enforce one's
claim through competent authority, if the claim is just or legal, does not vitiate
consent.
Art. 1336. Violence or intimidation shall annul the obligation, although it may
have been employed by a third person who did not take part in the contract.
 Art. 1337. There is undue influence when a person takes improper advantage of
his power over the will of another, depriving the latter of a reasonable freedom
of choice. The following circumstances shall be considered: the confidential,
family, spiritual and other relations between the parties, or the fact that the
person alleged to have been unduly influenced was suffering from mental
weakness, or was ignorant or in financial distress.

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

(4) For causes mentioned in number 4 of Article 45, by the injured party,
within five years from the time the force, intimidation or undue influence
disappeared or ceased; xxx

d. Mistake as to Identity.-- Articles 35 par. 5, 39

Art. 35. The following marriages shall be void from the beginning:
xxx
(5) Those contracted through mistake of one contracting party as to the
identity of the other; xxx
xxx

Mistake as to Identity.-- This refers to mistake as to the person himself,

involving a substitution of another person for the party who is desired in
marriage, w/o the knowledge of the other contracting party.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. Xxx

6. Presence of Prosecutor, Art. 48

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage,

the Court shall order the prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between the parties and to
take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.

The prosecuting attorney must actively participate.

COLLUSION. Collusion occurs where, for purposes of getting an

annulment or nullity decree, the parties come up with an agreement
making it appear that the marriage is defective due to the existence of
any of the grounds for the annulment of marriage or the declaration of
its nullity provided by law and agreeing to represent such false or
non-existent cause of action before the proper court with the
objective of facilitating the issuance of a decree of annulment or nullity
of marriage.
 It is the commission of a matrimonial offense, or the creation of
the appearance of having committed it, with the consent or privity
of the other party, or under an arrangement between the spouses.

STIPULATION OF FACTS OR CONFESSION OF JUDGMENT. An

annulment or nullity decree cannot be issued by the court on the
sole basis of a stipulation of facts, or a confession of judgment
(Cardenas vs. Cardena and Rinen, 98 Phil. 73).

A stipulation of facts is practically an admission by both parties

made in court agreeing to the existence of the act constituting
the ground for annulment or for the declaration of nullity of the
marriage.

Confession of judgment is the admission made in court by the

respondent or defendant admitting fault as invoked by the plaintiff to
sever the marriage ties. It is believe that stipulation of facts or
confessions of judgment, if sufficiently supported or corroborated by
other independent substantial evidence to support the main ground
relied upon, may warrant an annulment of a marriage or the
declaration of nullity of the same.

i.e A stipulation of facts entered into by the parties that the first
wife was married to the co-defendant and where the marriage
certificate of the first and second marriages were duly attached to the
stipulation of facts, the Supreme Court held that these were sufficient
to declare as null and void the second marriage.

7. Pendency of action, Art. 49

Art. 49. During the pendency of the action and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide
for the support of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the moral and material
welfare of said children and their choice of the parent with whom they wish to
remain as provided to in Title IX. It shall also provide for appropriate visitation
rights of the other parent.

TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a

case for annulment on the ground of concealment of pregnancy, and the
wife failed to file a responsive pleading, the court referred the case to the
fiscal for investigation. However, the husband refused to show his
evidence nor be interrogated by the fiscal, hence, the court correctly
dismissed the complaint for annulment. The investigation of the fiscal is
a prerequisite to the annulment of marriage where defendant has
defaulted.

JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an
action for annulment, and the husband also assailed the validity of the
marriage claiming he was coerced to marry her by her parents and
brothers, and filed a motion for summary judgment supported by
affidavits of the plaintiff's father and brothers to this effect, and the
plaintiff also submitted the case for judgment on the pleadings, the court
correctly denied the motion for summary judgment in view of provisions
of the Civil Code expressly prohibiting the rendition of a decree of
annulment of marriage upon a stipulation of facts or a confession of
judgment. The affidavits of the wife's father and brothers practically
amounts to these methods not countenanced by the Civil Code.

VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)] - (1) The principle of

estoppel cannot apply to defeat a suit for annulment of marriage on the
ground that plaintiff was not of age when he contracted marriage, since
the ages of the contracting parties which require parental consent,
cannot be modified or altered by their joint act or omission or by that of
either of them. (2) Staying with the wife in her residence only on
Saturdays and Sundays merely indicates transient sexual intercourse
which is not considered as cohabitation. This circumstance and the
conduct of the man in abandoning his wife before reaching the age of
majority or according to the wife's version, 9 months after attaining legal
age, negates the intention on the part of the man to confirm or ratify a
defective marriage by cohabiting and living with the woman as her
husband.

8. Effects of nullity, Arts. 50-54

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43
and by Article 44 shall also apply in the proper cases to marriages which are
declared void ab initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the
conjugal partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such matters.
The children or their guardian or the trustee of their property may ask for
the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no
way prejudice the ultimate successional rights of the children accruing upon the
death of either of both of the parents; but the value of the properties already
received under the decree of annulment or absolute nullity shall be considered as
advances on their legitime.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil
 registry and registries of property; otherwise, the same shall not affect third
persons.

In so far as void marriages are concerned, pars. (2), (3), (4) and (5) of
Article 43 exceptionally apply only to void marriages that occur as a
result of the non-observance of Article 40. Specifically, they apply only
to the subsequent void marriage contracted by a spouse of a prior void
marriage before the latter is judicially declared void (Valdes vs. RTC, 260
SCRA 221) pursuant to Article 50. In all other cases of a void marriage
other than Article 40, the property regime shall be governed by the rule
on co-ownership provided in Articles 147 and 148. Hence, in these
cases where Article 147 or 148 will apply, the property regime shall be
liquidated pursuant to the ordinary rules on co-ownership (Valdes vs.
RTC)

NOTE: However, in Nicdao Carino vs. Carino, February 2, 2001, the SC

ruled that a subsequent marriage celebrated in violation of Article 40 is
void because it is bigamous and therefore the property regime in the said
subsequent void marriage is co-ownership under Article 148 FC. If this
is the case, then the presumptive legitime need not be delivered as it
now follows the general rule. It is believed that the Valdez ruling
should be followed.

Significantly, the SC En Banc Resolution in A.M. No. 02-11-10-SC

which took effect of March 15, 2003 provides in Section 21 thereof that,
after the entry of judgment as a consequence of the finality of a nullity
or annulment decree, the presumptive legitime of the common children
shall be delivered “|pursuant to Articles 50 and 51 of the FC.” The new
rules seem to have acknowledged that, for purposes of a void marriage,
the presumptive legitime shall be delivered in accordance with Article 50
which, in turn, expressly provides that, the proper case of a void
marriage referred to is only the one under Article 40.

PRESUMPTIVE LEGITIME: In case the marriage is annulled, the

presumptive legitime of the common children, if there are any, must be
delivered

Tolentino: Effects of the Setting Aside of all Defective Marriages (whether

they are void ab initio, or voidable, or a subsequent marriage terminated
upon reappearance of a spouse presumed to be dead):

(1) There will be a liquidation, partition, and distribution of the

properties of the spouses.
Liquidation involves the inventory of the properties and payment of the
obligations of the spouses and of the marriage.

Partition is the process in w/c the remaining properties will be divided

into the various portions to be allocated to all the parties.
Distribution is the delivery to the spouses and the children, in the proper
cases, of the shares or properties allocated to them respectively in the
partition.
(2) In determining the share of each spouse in the properties of the M,
the properties, or their value, that had been donated in consideration of
M by the innocent spouse to the spouse in BF, shall be revoked by
operation of law and returned to the innocent spouse to become part of
his distributable prop.

(3) The children conceived or born bef. the judgment becomes final are
considered legitimate. The judgment shall provide for their custody and
support. Their presumptive legitime from each parent (as if the parent
died and they inherit from him or her on the date of final judgment) shall
be delivered to them in cash, prop. or securities.

(4) The innocent spouse may revoke the designation of the spouse in BF
as beneficiary in the former's life insurance policy.

(5) The spouse in BF shall be disqualified to inherit from the innocent

spouse even under a will or testament.

(6) The conjugal dwelling and the lot on w/c it is built will be given to the
spouse w/ whom the common children choose to remain, unless the
parties agree otherwise.

(7) If both spouses acted in BF, all donations by reason of M from one to
the other, and all testamentary provisions made by one in favor of the
other, are revoked by operation of law.

(8) The judgment, the partition and distribution of the prop. of the
spouses, and the delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry.

(9) After all the foregoing, the former spouses are free to marry again;
otherwise, the subsequent M shall be void.

Liability for Damages.-- [I]t is submitted that in an appropriate case,

damages may be recovered by an injured party from another responsible
for the nullity of a void or voidable marriage. The basis of the liability
will be the commission of an unlawful act or BF. Arts. 20 and 21 of the
NCC can serve as the legal basis for an action for damages.

Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.

Art. 54. Children conceived or born before the judgment of annulment or

absolute nullity of the marriage under Article 36 has become final and executory
shall be considered legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
 EXCLUDE: SC Rules on Procedure (Nullity and Provisional Orders), R.A. 6955, An
Act to Declare Unlawful the Practice of Matching Filipino Women for Marriage to
Foreign Nationals, RA 9208, Anti-Trafficking in Persons Act
III. Legal Separation

1 Grounds: (Art. 55)

a. Repeated physical violence or grossly abusive conduct directed against the

petitioner, a common child, or a child of the petitioner
b. Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
c. Attempt of respondent to corrupt or induce the petitioner, a common child,
or a child of the petitioner to engage in prostitution, or connivance in such
corruption or inducement;
d. Final judgment sentencing the respondent to imprisonment of more than 6
years, even if pardoned;
e. Drug addiction or habitual alcoholism of the respondent
f. Lesbianism or homosexuality of the respondent;
g. Contracting by the respondent of a subsequent bigamous marriage, whether
in the Philippines or abroad;
h. Sexual infidelity or perversion;
i. Attempt by the respondent against the life of the petitioner; or
j. Abandonment of petitioner by respondent without justifiable cause for more
than 1 year.

2. Grounds to deny petition for legal separation (Art. 56)

a. Condonation of the offense or act complained of;

b. Consented to commission of the offense or act complained of;
c. Connivance between the parties in the commission of the offense;
d. Both give grounds for legal separation;
e. Collusion to obtain the decree
f. Prescription

Paragraph (1).-- Tolentino: Condonation as Defense.-- Condonation is the

forgiveness of a marital offense constituting a ground for LS, and bars
the right to LS.
It may be express or implied. It is express when signified by words or
writing, and it is implied when it may be inferred from the acts of the
injured party.

Balane: Condonation is pardon w/c comes after the offense.

MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law specifically provides

that legal separation may be claimed only by the innocent spouse
provided the latter has not condoned or consented to the adultery or
concubinage committed by the other spouse; and plaintiff having
condoned and/or consented IN WRITING to the concubinage committed
by the defendant husband, she is now undeserving of the court's
sympathy.
Baveria: The stipulation though void is equivalent to express consent.
Paragraph (2).-- Consent.-- Tolentino: Consent is the agreement or
conformity in advance of the commission of the act w/c would be a
ground for LS.

Paragraph (3).-- Connivance.-- Tolentino: Connivance is distinguished

from consent in that consent is unilateral, or an act of only one spouse.
Connivance implies agreement, express or implied, by both spouses to
the ground for LS.

Paragraph (4).-- Recrimination.-- Tolentino: Recrimination is a

countercharge in a suit for LS that the complainant is also guilty of an
offense constituting a ground for LS. This defense is based on the
principle that a person must come to court w/ clean hands.

Paragraph (5).-- Effect of Collusion.-- Tolentino: Collusion is the

agreement bet. husband and wife for one of them to commit, or to appear
to commit or presented in court as having committed, a matrimonial
offense, or to suppress evidence of a valid defense, for the purpose of
enabling the other to obtain LS.

3 Prescriptive Period – Within 5 years from the time of the occurrence of the cause
(Art. 57)

Tolentino: The law does not encourage LS, and provides for prescription
of the action even when the offended party has no had knowledge of the
cause. xxx If plaintiff does not come to know of the ground for LS, and 5
yrs. expire from the date of its occurrence, he cannot sue for LS.

Baviera cases:

BROWN V. YAMBAO [54 O.G. 1827 (1957)] - In an action for legal

separation on the ground of adultery filed by the husband, even though
the defendant wife did not interpose the defense of prescription,
nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation or annulment of marriage, involve
public interest, and it is the policy of our law that no such decree be
issued if any legal obstacles thereto appear upon the record. Also, the
husband was guilty of commission of the same offense by living with
another woman.

Baviera: This is an exception the Rules of Court provision that defenses

not raised in the pleadings will not be considered, since provisions on
marriage are substantive in nature.

4. Effects
a. Upon filing of the petition, the spouses shall be entitled to live separately
from each other (Art. 60)

LAPUZ V. EUFEMIO [43 S 177 (1972)] - infra.

Balane: Incidental matters may be heard even during the six-months
cooling-off period.
Rufus Rodriguez, The FAMILY CODE of the Philippines Annotated, 2nd
ed. (hereinafter, Rodriguez): During the six month period, the court may
still act to determine the custody of the children, alimony and support
pendente lite.

ARANETA V. CONCEPCION [99 P 709 (1956)] - Evidence not affecting the

cause of separation, like the actual custody of the children, the means
conducive to their welfare and convenience during the pendency of the
case, should be allowed so that the court may determine which is best for
their custody.

SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An ancillary remedy of

preliminary mandatory injunction is not barred by the six-month
statutory suspension of trial in an action for legal separation. In this
case, the wife filed a petition for legal separation, and a motion for
preliminary mandatory injunction for the return of what she claims to be
her paraphernal and exclusive property.

Art. 103 NCC is not an absolute bar to the hearing of a motion for
preliminary injunction prior to the expiration of the 6 months period.
xxx That the law remains cognizant of the need in certain cases for
judicial power to assert itself is discernible from what is set from what is
set forth in Art. 104 NCC (now Art. 61, FC.) Here, there would appear to
be a recognition that the question of management of the spouses'
respective property need not be left unresolved even during the 6
months period. An administrator may even be appointed for the
management of the prop. of the conjugal partnership.

SABALONES V. CA [230 SCRA 79] - In case of an action for legal

separation, where the spouses did not agree as to who will administer the
conjugal partnership, the Court may appoint one of the spouses. Such
appointment may be implied.
xxx
While it is true that no formal designation of the administrator has been
made, such designation was implicit in the decision of the trial court
denying the petitioner any share in the conjugal properties (and thus also
disqualifying him as administrator thereof.) That designation was in
effect approved by the CA when it issued in favor of the resp. wife the
preliminary injunction now under challenge.

PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of the FC mandates that
an action for LS must "in no case be tried before six months shall have
elapsed since the filing of the petition," obviously in order to provide the
parties a "cooling-off" period. In this interim, the court should take steps
toward getting the parties to reconcile.

Tolentino: Effects of Filing Petition:

(1) The spouses can live separately from each other

(2) The administration of the common prop., whether in absolute
community or conjugal partnership of gains, shall be given by the Court
to either of the spouses or to a third person, as is best for the interests of
the community.

(3) In the absence of a written agreement of the spouses, the Court shall
provide for the support bet. the spouses and the custody and support of
the common children, taking into account the welfare of the children
and their choice of the parent w/ whom they wish to remain.

(4) When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be necessary, unless such
spouse voluntarily gives such consent.

Alimony "pendente lite."-- During the pendency of the suit for legal
separation upon a complaint filed and admitted, it is the duty of the
court to grant alimony to the wife and to make provisions for the support
of the children not in the possession of the father.
Should def. appear to have means to pay alimony and refuses to pay,
either an order of execution may be issued or a penalty for contempt
may be imposed, or both.

Custody of the Children.-- While the action is pending, the custody of the
children may be determined in one of two ways: (1) by agreement of the
spouses w/c shall not be disturbed unless prejudicial to the children; and
(2) by court order, w/c shall be based on the sound discretion of the
judge, taking into account the welfare of the children as the ruling
consideration.

Baviera case:

LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for
adultery against the wife, and the wife filed a petition for legal separation
in bad faith, the wife having been convicted of adultery in the meantime,
she is not entitled to support pendente lite. "The right to separate
support and maintenance, even from the conjugal partnership property,
presupposes the existence of a justifiable cause for the spouse claiming
such right to live separately. A petition in bad faith, such as that filed by
the one who is himself or herself guilty of an act which constitutes a
ground for legal separation at the instance of the other spouse, cannot be
considered as within the intendment of the law granting separate
support.

2. EFFECT OF DEATH OF A SPOUSE

BAVIERA CASES:

LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE
a decree of legal separation abates such action. "An action for legal
separation which involves nothing more than bed-and board separation of
the spouses is purely personal. The Civil Code recognizes this (1) by
allowing only the innocent spouse (and no one else) to claim legal
separation; (2) by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal
separation already granted. Being personal in character, it follows that
the death of one party to the action causes the death of the action itself
- actio personalis moritur cum persona." Even if property rights are
involved, because these rights are mere effects of the decree of legal
separation, being rights in expectation, these rights do not come into
existence as a result of the death of a party. Also under the Rules of
Court, an action for legal separation or annulment of marriage is not one
which survives the death of spouse.

MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse

AFTER a final decree of legal separation has no effect on the legal
separation. The law clearly spells out the effect of a final decree of legal
separation on the conjugal property. Therefore, upon the liquidation and
distribution conformably with the effects of such final decree, the law on
intestate succession should take over the disposition of whatever
remaining properties have been allocated to the deceased spouse.

b. When petition granted: (Art. 63)

b.1 Spouses shall live separately from one another but the marriage
bond is not severed;

b.2 The ACP or CPG is dissolved and liquidated but the offending
spouse shall have no right to any share of the net profits which shall be
forfeited in accordance with Art. 43(2);

b.3 Custody of minor children shall be awarded to the innocent

spouse subject to Art. 213;

b.4 Offending spouse shall be disqualified from inheriting from the

innocent spouse by intestate succession. Provisions in favor of the
offending spouse in the will of the innocent spouse shall be revoked by
operation of a law.

b.5 Innocent spouse may revoke the donations made by him or her in
favor of the offending spouse as well as designation of the latter as a
beneficiary in any insurance policy; (Art. 64)

Revocation of donation must be done within 5 years from the finality of

the decree of legal separation.

Balane: There are four (4) other effects

(5) Donation propter nuptias may be revoked by the innocent spouse.

(Art. 64.)
(6) Designation of the guilty spouse in the insurance policy may be
revoked. (id.)
(7) Cessation of the obligation of mutual support. (Art. 198.)
(8) Wife may continue using the surname before the decree of legal
separation. (Art. 372, NCC.)

Tolentino: Support and Assistance.-- After the decree of LS, the

obligation of mutual support bet. the spouses ceases; however, the court
may order that the guilty spouse give support to the innocent spouse.
(Art. 198.)

Successional Rights.-- The guilty spouse, by virtue of the decree of LS

becomes disqualified to succeed the innocent spouse. She would not even
be entitled to the legitime. xxx But if the will is executed after the
decree, the disposition in favor of the offender shall be valid.

Balane case:

LEDESMA V. INTESTATE ESTATE OF PEDROSA [219 SCRA 806] - The law

mandates the dissolution and liquidation of the prop. regime of the
spouses upon finality of the decree of LS. Such dissolution and
liquidation are necessary consequences of the final decree. This legal
effect of the decree of legal separation ipso facto or automatically
follows, as an inevitable incident of, the judgment decreeing the LS for
the purpose of determining the share of each spouse in the conjugal
assets. (citing Macadangdang v.CA, 108 SCRA 314.)

BALANE CASE:

DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] - Where the husband,

after finding the wife guilty of adultery sent her to Manila to study
beauty culture, and there she committed another adultery with a
different man, and the husband filed a petition for legal separation, the
wife's admission to the investigating fiscal that she committed adultery,
in the existence of evidence of adultery other than such confession, is
not the confession of judgment disallowed by the Code. What is
prohibited is a confession of judgment - a confession done in court or
through a pleading.

(1) "Where there is evidence of the adultery independently of the

defendant's statement agreeing to the legal separation, the decree of
separation should be granted, since it would not be based on the
confession but upon the evidence presented by the plaintiff. What the
law prohibits is a judgment based EXCLUSIVELY on defendant's
confession."

(2) The failure of the husband to actively search for his wife who left the
conjugal home after his discovery of her illicit affairs, and to take her
home does not constitute the condonation or consent to the adultery. It
was not his duty to search for her.

(3) The petition should be granted based not on the first adultery, which
has already prescribed, but on the second adultery, which has not yet
prescribed. Adapted.

c. Reconciliation of the Spouses; effects (Art. 65)

c.1 Legal separation proceedings shall be terminated in whatever

stage;
 c.2 If there is a final decree, it shall be set aside

However, the separation of property and forfeiture of share of the guilty

spouse already effected shall subsist.

The spouses may agree to revive their former property regime by

executing an agreement under oath and submitted to the court with a
motion for its approval. (Art. 67)

Tolentino: Concept of Reconciliation.-- Reconciliation is a mutual

agreement to live together again as husband and wife. It must be
voluntary mutual agreement.
xxx

It is submitted that the fact of resuming common life is the essence of

reconciliation and terminates the legal separation even if the joint
manifestation has not been filed in court.

Balane: Contrary view.-- Technically, what will set aside the decree of LS
is the filing of a joint verified manifestation of reconciliation. Without
that, the court cannot act motu proprio.

Tolentino: Divorce and Its Kinds.-- Divorce is the dissolution or partial

suspension, by law, of the marital relation; the dissolution being termed
divorce from the bond of matrimony, or a vinculo matrimonii; the
suspension being known as divorce from bed and board, or a mensa et
thoro. The former is sometimes also called absolute, and the latter
relative divorce.

Legal Separation and Separation of Property.-- In the former, there is a

suspension of common marital life, both as to person and property, while
in the latter, only the property relation is affected, and the spouses may
be actually living together.

Legal Separation and Separation of Spouses.-- Legal Separation (LS) can

be effected only be decree of the court; but the spouses may be separated
in fact w/o any judgment of the court. Under the NCC, any contract for
personal separation between husband and wife shall be void and of no
effect. [Art. 221 (1), NCC.] With the repeal of Art. 221, and the omission
from the FC of a similar provision, the rule prior to the NCC is restored,
and such agreements are again valid.

Foreign Divorces.-- A foreign divorce bet. Filipino citizens, sought and

decreed after the effectivity of the NCC, is not entitled to recognition as
valid in the Phils. This is still the rule under the FC.

Baviera case:

TENCHAVEZ V. ESCANO [15 S 355 (1965)] - Where the wife, a Filipina,

deserted her Filipino husband, obtained a divorce in the U.S., married an
American citizen, and later herself became an American citizen, the
Filipino husband is entitled to legal separation conformably to Philippine
law and to damages. (1) A foreign divorce between Filipino citizens,
sought and decreed after the effectivity of the New Civil Code, is not
entitled to recognition as valid in the Philippines, and neither is the
marriage contracted with another party by the divorced consort,
subsequently to the foreign decree of divorce, entitled to validity in this
country. (2) Invalid divorce entitles innocent spouse to recover damages
(P25,000 as moral damages; basis - 2176). (3) An action for alienation of
affection against the parents of one consort does not lie in the absence of
proof of malice or unworthy motives on their part.

Balane: This is an exclusive enumeration. Observe that some grounds

would tend to overlap w/ the grounds for annulment. In such a case, the
aggrieved party has the option, either to bring an action for annulment
or for LS.

Paragraph (1).-- Tolentino: The violence must be of a serious degree, but

does not have to amount to an attempt against the life of the
petitioner., w/c is covered by par. (9). The violence must be repeated, to
the extent that common life w/ def. becomes extremely difficult for the
plaintiff.

It is submitted that the repeated physical violence or the grossly abusive

language should be committed only by one spouse and not by both to
each other.

Paragraph (2).-- Tolentino: The physical violence or moral pressure to

compel the plaintiff to change religious or political affiliation need not be
repeated. A single incident would be enough.

Balane: The pressure must be undue. It becomes undue when the other
spouse is deprived of the free exercise of his or her will.

Paragraph (3).-- Tolentino: If both spouses agree that the wife or a

daughter engage in prostitution, neither one should be allowed to obtain
LS, on the principle that a person should come to court w/ clean hands.

Paragraph (4).-- Tolentino: The crime for w/c the def. was convicted is
immaterial.

Paragraph (5).-- Balane: This ground does not have to exist at the time of
the marriage. Distinguish this from Art. 46 (4).

Paragraph (6).-- Balane: Questions.-- (1) With knowledge of one party that
the other was a lesbian or a homosexual bar the action for LS? (2) Does
homosexuality contemplate sexual orientation or does it contemplate
only homosexual practice.

Baviera - homosexuality refers to practice, not by nature; if by nature,

then Art. 36 will apply.
Tolentino: On pars. 5 & 6.-- These grounds can be reason for actions for
LS only when they come to exist after the celebration of the marriage. If
the defect had existed at the time of the marriage, but the marriage had
been ratified by continued cohabitation or the action to annul has
prescribed, it is submitted that the action for LS may not be
subsequently brought.

Paragraph (7).-- Tolentino: Would this include a subsequent marriage by a

person after a declaration of presumptive death of the other spouse? It is
submitted that every subsequent marriage, where there is a subsisting
prior marriage, should give the other spouse the right to ask for LS.

Paragraph (8).-- Tolentino: Sexual Infidelity.-- The act of a wife in having

sexual intercourse w/ any other man not her husband will constitute
adultery. On the other hand, concubinage is committed by the husband
in three ways: (1) by maintaining a mistress in the conjugal dwelling: (2)
by having sexual intercourse w/ the other woman under scandalous
circumstances; and (3) by cohabiting w/ her in any other place. xxx To
equalize the situation of husband and wife in this respect, the FC makes
"sexual infidelity" sufficient ground for either to justify the grant of LS.

Sexual Perversion.-- This includes all unusual or abnormal sexual

practices w/c may be offensive to the feelings or sense of decency of
either the husband or the wife. But if the act of sexual perversion is by
free mutual agreement, neither party can ask for LS, bec. they are
equally guilty of the perverse act.

Balane: Sexual Perversion is a flexible concept. It is basically, a cultural

thing.

BALANE CASE:

GANDIONCO V. PENARANDA [155 SCRA 725] - A civil action for LS, based
on concubinage, may proceed ahead of, or simultaneously w/, a criminal
action for concubinage, bec. said civil action is not one "to enforce the
civil liability arising from the offense" even if both the civil and criminal
actions arise from or are related to the same offense. Xxx

A decree of LS, on the ground of concubinage may be issued upon proof

of preponderance of evidence in the action for LS. No criminal
proceeding or conviction is necessary.

Paragraph (9).-- Tolentino: An attempt against the life of the plaintiff

spouse, as a ground for LS, implies that there is intent to kill. xxx [But]
the act against the life of the plaintiff spouse must be wrongful in order
to constitute a ground for LS.

Baviera: Even if repeated physical violence, this can fall under No. 1.

Paragraph (10).-- Tolentino: Under Art. 101, "the spouse who has left the
conjugal dwelling for a period of three months or has failed within the
same period to give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to the conjugal
dwelling.

A. Grounds, Art. 55, Republic Act. 9262, Anti-Violence Against Women and Children

Sec. 19. Legal Separation Cases. In cases of legal separation, where

violence as specified in this Act is alleged, Article 58 of the Family Code
shall not apply. The court shall proceed on the main case and other
incidents of the case as soon as possible. The hearing in any application
for a protection order filed by the petitioner must be conducted within
the mandatory period specified in this Act. (R.A. Mo. 9262, Anti-Violence
Against Women and Their Children Act of 2004)

Related Provision:

Art. 58.An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition. (Family Code)

B. Defenses, Arts. 56-57

Art. 57. An action for legal separation shall be filed within five years from the
time of the occurrence of the cause.

C. Cooling-off Period, Art. 58

An action for legal separation shall in no case be tried before six months shall
have elapsed since the filing of the petition.

D. Reconciliation efforts, Art. 59

No legal separation may be decreed unless the Court has taken steps toward the
reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable.

E. Confession of Judgment, Art. 60

No decree of legal separation shall be based upon a stipulation of facts or a

confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.

F. Effects of Filing Petition, Art. 61

After the filing of the petition for legal separation, the spouses shall be entitled to
live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community
 or conjugal partnership property. The administrator appointed by the court shall
have the same powers and duties as those of a guardian under the Rules of Court.

G. Effects of pendency, Art. 62

During the pendency of the action for legal separation, the provisions of Article
49 shall likewise apply to the support of the spouses and the custody and support
of the common children.

H. Effects of legal separation, Arts. 63-64

Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be revoked by operation of
law.

Art. 64. After the finality of the decree of legal separation, the innocent spouse
may revoke the donations made by him or by her in favor of the offending
spouse, as well as the designation of the latter as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable. The revocation of
the donations shall be recorded in the registries of property in the places where
the properties are located. Alienations, liens and encumbrances registered in
good faith before the recording of the complaint for revocation in the registries
of property shall be respected. The revocation of or change in the designation of
the insurance beneficiary shall take effect upon written notification thereof to the
insured.
The action to revoke the donation under this Article must be brought within five
years from the time the decree of legal separation become final.

I. Reconciliation, Arts. 65-67

Art. 65. If the spouses should reconcile, a corresponding joint manifestation

under oath duly signed by them shall be filed with the court in the same
proceeding for legal separation.
Art. 66. The reconciliation referred to in the preceding Articles shall have the
following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated
at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of
property and any forfeiture of the share of the guilty spouse already effected
shall subsist, unless the spouses agree to revive their former property regime.
 The court's order containing the foregoing shall be recorded in the proper civil
registries.

Art. 67. The agreement to revive the former property regime referred to in the
preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts
owing to each.
The agreement of revival and the motion for its approval shall be filed with the
court in the same proceeding for legal separation, with copies of both furnished
to the creditors named therein. After due hearing, the court shall, in its order, take
measure to protect the interest of creditors and such order shall be recorded in
the proper registries of properties.
The recording of the order in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient separate
properties to satisfy the creditor's claim.

Balane: Effects of Reconciliation:

(1) Custody over the children.-- Joint custody is restored.

(2) Compulsory and intestate succession is restored.

(3) Testamentary succession.-- There is no revival. Reconciliation will not

necessarily revive the institution of the guilty spouse in the will of the
innocent spouse.

(4) Donation propter nuptias will remain revoked.

EXCLUDE: SC Rules on legal separation

IV. Rights and Obligations Between Husband and Wife

A. Essential Obligations, Art. 68

Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.

No Compulsion. – Except for support, a court cannot validly issue a

decision compelling the spouses to live together, observe mutual love,
respect and fidelity. Only the moral obligation of the spouses
constitutes the motivating factor for making them observe the said
duties and obligations which are highly personal (Ramirez-Cuaderno. vs.
Cuaderno, 12 SCRA 505, Potenciano vs. CA, July 19, 2001). “It is not
within the province of the courts of this country to attempt to compel
one of the spouses to cohabit with and render conjugal rights to the
other.” (Arroyo vs. Vasquez, 42 Phil 54)
“A wife’s domestic assistance and conjugal companionship are purely
personal and voluntary acts which neither the spouses may be compelled
to render. (Arroyo vs. Arroyo, 42 Phil. 54)

There can be no action for damages merely because of a breach of marital

obligation (Ty vs. CA, Nov. 27, 2000) There are other remedies that may
be availed of instead. For instance, if a spouse in bad faith refuses to
comply with the above obligations and if the property regime is
separation of property, he or she may be held liable under Articles 19,
20, or 21 of the Civil Code. Any person who likewise deprives a spouse of
the consortium of the other spouse can be held liable for damages.

Can a husband commit rape against the wife? RA No. 8353 amended the
RPC by reclassifying rape as a crime against person and making it clear
that a husband can be criminally liable for raping his own wife.

V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Tolentino: Dual Aspect of Family Relations.-- There are 2 aspects in
family relations, one internal and another external. In the internal
aspect, w/c is essentially natural and moral, the family is commonly
known to be sacred and inaccessible even to the law. It is only in the
external aspects, where third persons and the public interest are
concerned, that the law fixes rules regulating family relations.

A. IN GENERAL

Art. 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.

Balane: These are called legal obligations but they are more of a
statement of policy. An action for specific performance is not proper to
enforce these obligations. The only possible consequences are found in
Art.100 for ACP and 127 for CPG.
With regard to the mutual obligation of fidelity, there are consequences
both civil and criminal (adultery or concubinage.).
With respect to support, there are legal provisions in the FC w/c carry
out the duty.

Tolentino: Right of Cohabitation.-- Marriage entitles the husband and

wife to each other's society, that is, they are mutually entitled to
cohabitation or consortium. This means that they shall have a common
life, under the same roof, to better fulfill those obligations inherent in
the matrimonial status.

Scope of Right.-- The right of cohabitation includes domestic and sexual

community of the spouses, the extent of both of w/c will differ according
to the circumstances. xxx [T]he spouses will be considered as living
together, although driven by the stress of circumstances or pecuniary
difficulties to separate, if there is no intention on the part of either to
sever their marital relations permanently.
xxx But for the purpose of the law, only the tangible and material aspect
of cohabitation can be taken into account. The law is powerless to
impose that intimacy of life w/c is the basis of conjugal peace and
happiness.

Sexual Relations.-- Although a husband is entitled to sexual relations w/

his wife, and it is not rape to force the wife to have sexual relations
against her will, this right is not absolute. The right involves only normal
intercourse.

Legal Sanction for Cohabitation.-- Cohabitation by the parties must be

spontaneous and cannot be imposed by the law or the courts. The only
possible sanction is patrimonial in nature. If the husband refuses to live
w/ the wife, he can be compelled to pay her a pension, and indemnity for
damages; and if the wife refuses to live w/ the husband, he can refuse to
support her.

Use of Force.-- The husband cannot by the use of force, even of public
authority, compel the wife to return home. Such remedy would be a
violation of personal dignity and security. xxx Modern law abhors
imprisonment for debt, and coercive measures to compel the wife to live
w/ the husband would be worse than imprisonment for debt.

Remedies for Interference.--Any person who interferes w/ the right of the

spouses to cohabitation may be held liable for damages under Art. 26,
FC.

Mutual Fidelity.-- This fidelity is the loyalty w/c each should observe
toward the other, the wife having nothing to do w/ another man, nor the
husband w/ another woman.

Mutual Help.-- Mutual help involves care during sickness, and bearing the
inconvenience caused by such sickness, of the other spouse. Xxx

The obligation of mutual help, however, is not limited to material

assistance and care during sickness. It extends to everything that
involves moral assistance, and mutual affection and regard.

There are positive legal provisions w/c reveal the scope of this duty and
implement the general rule laid down in the present article. Among them
are:

(1) the legitimacy of defense of a spouse (Art. 11 [2], RPC; Justifying

circumstances – the following do not incur criminal liability – 2. Anyone
who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters of his
relatives by affinity in the same degrees, and those by consanguinity
within the 4th civil degree, provided that the first and second requisites
prescribed in the next preceding circumstances are present, and the
further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.);
(2) the increase in penalty in a crime by one spouse against the person of
the other (Art. 246, parricide – any person who shall kill his father
mother, or child, x x x or his spouse x x x.);

(3) the incapacity of one spouse to testify against the other (R123, Sec.
26, ROC);

(4) the right of one spouse to object to adoption of or by the other (Arts.
185 and 188); and

(5) the prohibition of donations between them (Art. 87.)

Legal Sanction.-- The only aspect of the obligation of mutual help for w/c
there is a legal sanction is the duty to support. This can be enforced by
court action. But the law cannot penetrate to the intimate relations in
the home in order to enforce the mutual obligations of care, of moral
assistance, and of mutual affection and regard.

Position of Spouses in the Family.-- The perfect parity of rights and

duties of H & W has to be reconciled w/ the need for unity of direction in
the family. Since the power of direction cannot be vested at the same
time in 2 persons, the existence of a head of the family becomes
imperative; and both nature and tradition have given this prerogative to
the husband xxx This power of the H as head of the family, however, is
not composed of rights and prerogatives, but of duties and
responsibilities, bec. the H does not use it for his personal benefit but for
the greater and higher interests of the family.

Chastisement of Wife.-- Chastisement is unlawful, and it has been held

that the H should not be permitted to inflict personal chastisement upon
his wife, even for the grossest outrage. The only possible exception to
this rule under our law is that given in Art. 247 of the RPC, w/c provides
that:

Art. 247. Any legally married person who, having surprised his spouse in
the act of committing sexual intercourse with another person, shall kill
any of them or both of them in the act or immediately thereafter, or
shall inflict upon them any serious physical injury, shall suffer the
penalty of destierro. If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.

Love Between Spouses.-- Mutual love cannot be compelled or imposed by

court action.

BALANE CASES:

ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and
legal, to return to the common home and cohabit w/ plaintiff. But the
great weight of authorities, however, is strongly convincing that it is not
w/in the province of the courts in the Phils. to compel anyone of the
spouses to cohabit w/ and render conjugal rights to the other.
VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.)
To maintain, as private resp. does, that under our laws, petitioner has to
be considered as still married to private resp. and still subject to a wife's
obligations under Art. 109 et seq. of the NCC cannot be just. Petitioner
should not be obliged to live together w/, observe respect and fidelity,
and render support to private resp. The latter should not continue to be
one of the heirs w/ possible rights to conjugal property. She should not
be discriminated against in her own country if the ends of justice are to
be served.

B. Family domicile, Art. 69

Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should
live abroad or there are other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is not compatible with the
solidarity of the family.

For the exercise of civil rights and the fulfillment of civil

obligations, the domicile of natural persons is the place of their habitual
residence. (Art. 50, CC). Thus, the spouses can only have one domicile
but many residences. The domicile is the place where the parties intend
to have their permanent residence with the intention of always returning
even if they have left it for some time. A minor follows the domiciles of
his or her parents.

C. Support, Art. 70

Art. 70. The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid from the
community property and, in the absence thereof, from the income or fruits of
their separate properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate properties.

Balane: Art. 70 is an implementation of the third duty of the spouses,

that of support. Correlate this w/ Art. 194.
+Where to get the funds? There are three sources in the order of priority:

1. From the common property

2. From the income or fruits of the separate property

Note: Numbers 1 and 2 are different sources only if the property

relationship is ACP. In CPG, numbers 1 and 2 will be the same.

3. From the separate property themselves.

D. Management of household, Art. 71

 Art. 71. The management of the household shall be the right and the duty of both
spouses. The expenses for such management shall be paid in accordance with the
provisions of Article 70.

Tolentino: What Properties Answerable.-- The order of liability for family

support of the different properties of the marriage is: first, the
community prop., then the income of the spouses or fruits of their
separate properties, and finally, the separate properties of the spouses.
The liability of the spouses for the support of the family being joint, this
may mean that they contribute equally, regardless of the value of the
respective properties of the spouses. However, this would not be
equitable. The better rule seems to be that the contribution should be
proportionate to the properties of the spouses.

Management of Household.-- In view of the silence of the law on how the

disagreement bet. the spouses in the management of the household shall
be settled, the custom should be observed, and the wife's position should
be given priority.

E. Effect of neglect of duty, Art. 72

Art. 72.When one of the spouses neglects his or her duties to the conjugal union
or commits acts which tend to bring danger, dishonor or injury to the other or to
the family, the aggrieved party may apply to the court for relief.

Tolentino: What Relief May Be Granted.-- Under the NCC, when one party
applies for relief bec. of the acts or negligence of the other spouse, "the court
may counsel the offender to comply with his or her duties, and take such
measures as may be proper." Notwithstanding this omission in the FC, we
believe that the court has full freedom to determine the kind of relief that may be
given. The relief, however, must be lawful.

F. Exercise of profession, Art. 73

Art. 73. Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may object only
on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:

(1) The objection is proper, and

(2) Benefit has occurred to the family prior to the objection or thereafter.
If the benefit accrued prior to the objection, the resulting obligation shall
be enforced against the separate property of the spouse who has not
obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in
good faith.

The exercise by a spouse of a legitimate profession, occupation, business

or activity is always considered to redound to the benefit of the family.
Art. 73, 2nd paragraph, item number 2 is an exception to the general rule
that, for as long as the obligations inured to the benefit of the family the
absolute or conjugal property shall be liable. For the said exception to
apply, however, the innocent spouse must have no knowledge of the
other spouse’s engagement in an immoral activity such that he could not
have interposed any objection.

Making the separate property of the erring spouse liable even if the
obligations she or he incurred redounded to the benefit of the family, is a
way of penalizing the said spouse for engaging in a seriously invalid and
immoral profession or occupation. This serves to deter any spouse from
attempting to undertake such immoral activity.

Tolentino: Disposition of Products of Activity.-- May the husband or wife

engaged in a profession or business freely dispose of the products of such
activity? A distinction should be observed.

If the disposition is in the course of the professional or commercial

activity, the spouse should be free to dispose of the products of such
activity. xxx But if the funds will be used to buy real estate, then the
spouse should act jointly, if the property regime of the marriage is
absolute community or conjugal partnership of gains, bec. such funds are
common prop. of the marriage.

B. OBLIGATION TO LIVE TOGETHER

ARROYO V. ARROYO [42 S 54 (1921)] - The courts can make a judicial

declaration of abandonment without sufficient justification but it cannot
compel cohabitation, consortium being a purely personal right. However,
the courts can impose economic sanctions for such unjustified departure
from the conjugal dwelling.

PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as used in Article

116 of the Civil Code (Art. 72 of the Family Code) does NOT refer to
patrimonial (economic) injury or damage, but to personal (i.e. physical or
moral) injury to one of the spouses since Art. 116 lies in the chapter
concerning PERSONAL RELATIIONS between husband and wife.

EXCLUDE: R.A. 7192, An Act Promoting the Integration of Women’s as Full and Equal
Partners of Men in Development and Nation Building, RA 8187, An Act Granting
Paternity Leave, RA 9710, Magna Carta for Women

V. Property Relations of the Spouses

Marriage, as a social contract, seeks to establish as much as possible the

complete union of a husband and a wife. There should be between them
a full and complete community of existence (Saclolo vs. CAR, 106 Phil.
1038) Thus, because of their “oneness”:

a. Article 1490 CC – the husband and wife cannot sell property

to each other, except when a separation of property was agreed upon in
the marriage settlement; or when there has been a judicial separation of
property;
 b, Article 753 CC – no right of accretion in cases of donation
made to several persons is not applicable in a donation, jointly made to
husband and wife. Between husband and wife, there shall be a right of
accretion, unless the donor has otherwise provided.

MARRIAGE SETTLEMENT/ STATUTE OF FRAUDS – Article 1403(2c) of

the CC states, an agreement in consideration of marriage must be in
writing; otherwise, it shall be unenforceable. However, under the FC, the
requirement that an ante-nuptial agreement must be in writing is
mandatory not only for purposes of enforceability but, more importantly,
for its validity. An oral marriage settlement, therefore is void and cannot
be ratified by any claim of partial execution or absence of objection.

MARRIAGE SETTLEMENT PROVISIONS – (extent)

1. The contracting parties can stipulate or agree on any

arrangement in their marriage settlement that is not contrary to law and
public policy and is within the limit provided by the Family Code (Art. 1
FC);

2. The spouses may agree, for example, that in their ACP the
division thereof in the event of partition will not be equal (Article 102[4])

3. In the marriage settlement, the parties may agree that the

separation of property may refer to present or future property or both
and it may be total or partial, in which case the property not agreed upon
as separate shall pertain to the ACP (Article 144);

4. The parties cannot, however, stipulate that the CPG or the

ACP will start at a time other than the precise moment of the celebration
of marriage, because such agreement is void (Articles 88 and 107);

5. The parties cannot stipulate that they can make a substantial

donation to each other during their marriage because such a donation is
void (Article 87);

6. In case a marriage has been terminated by death of one

spouse and there has been no liquidation of the properties of the
previous marriage, the surviving spouse, if he or she decides to remarry,
cannot execute a marriage settlement providing for a regime other than
the complete separation of property regime. In such a marriage, the
property regime governing the subsequent marriage must be the
separation of property regime. (Article 103 and 130)

Kinds:
a. Absolute Community Property
b. Conjugal Partnership of Gains
c. Complete Separation of Property
d. Any other regime

A. Marriage Settlements, Arts. 76-81

 Marriage Settlement ; Form and Modification (Art. 76 and 77)

a. Must be in writing
b. Signed by the parties
c. Executed before the marriage
d. Any subsequent modification must be made before the celebration of the marriage

Exceptions: (Articles 66, 67, 128, 135 and 136 FC):

1. Legal Separation – a revival of the former property regime

between reconciling spouses after a judicial decree of legal separation has
been rendered between the husband and the wife can be made only via
court order recorded in the proper registries (Article 66 and 67 FC)

2. Article 128 – in cases of abandonment or failure to comply

with his or her marital obligations, the court, on petition by the
aggrieved spouse, may issue a decree of judicial separation of property;

3. Article 135 – provides further grounds for judicial separation

of property

4. The spouses may likewise file a voluntary and verified

petition in court to modify their property regime into a separate
community of property regime.

A separation of property cannot be effected by the mere execution

of the contract or agreement of the parties but by the decree of the
court approving the same (Toda, Jr. vs. CA, 183 SCRA 713)

ARTICLE 81 . Everything stipulated in the settlements or contracts

referred to in the preceding articles in consideration of a future
marriage, including donations between the prospective spouses made
therein, shall be rendered void if the marriage does not take place.
However, stipulations that do not depend upon the celebration of the
marriage shall be valid.

Efficacy of marriage settlement –

The consideration of a marriage settlement is the marriage itself.

If the marriage does not take place, the marriage settlement is generally
rendered void.

Provisions in a marriage settlement, however, are separable in that

if there are provisions which are invalid but do not affect the rest of the
provisions stipulated in the marriage settlement, only the said invalid
provisions will be rendered ineffectual while the rest will continue to
remain enforce.

Stipulations that do not depend upon the celebration of the

marriage shall be valid. i.e support of a common child of the
contracting parties – this will be valid regardless of whether or not the
marriage has been celebrated because a parent is obliged to support his
child, whether legitimate or illegitimate; or acknowledgement of a child.

B. DONATIONS BY REASON OF MARRIAGE – donation propter nuptias

- those made before the celebration of the marriage, in consideration of the same, and
in favor or one or both of the future spouses (Art. 82)

a DPN is without onerous consideration, the marriage merely being the

occasion or motive for the donation, not its “causa”. Being liberalities,
they remain subject to reduction for inofficiousness upon the donor’s
death, if they should infringe the legitime of a forced heir. (Mateo vs.
Lagua, 29 SCRA 864)

NOT A DPN:
1. made in favor of the spouses after the celebration of the marriage;
2. executed in favor of the future spouses but not in consideration of
marriage;
3. granted to persons other than the spouses even though they may be
founded on the marriage

DPN can even be contained in a marriage settlement.

DPN must comply with the rules on ordinary donations (Article 83),
thus:

1. The donee must accept the donation personally, or through

an authorized person with a special power for the purpose, or with a
general or sufficient power otherwise, the donation shall be void (Article
745 CC);

2. The acceptance must be made during the lifetime of the

donor and the donee (Article 746)

3. Donation of movables (Article 748) Donation of immovables

(Article 749)

Limitation – If the future spouses agree upon a regime other than the ACP, they cannot
donate to each other in their marriage settlements more than 1/5 of their present property.
Any excess shall be considered void. (Art. 84)

- It would seem that the limitation applies in case the donation is made in the their
“marriage settlement” but not if it is contained in a separate document such that
the limitation of “not more than one-fifth” is not applicable if the donation is
made in a separate document.

Article 86. A donation by reason of marriage may be revoked by the

donor in the following cases:

1. If the marriage is not celebrated or judicially declared void

ab initio except donations made in the marriage settlements, which shall
be governed by Article 81;
 2. When the marriage takes place without the consent of the
parents or guardian, as required by law;
3. When the marriage is annulled, and the donee acted in bad
faith;
4. Upon legal separation, the donee being the guilty spouse;
5. If it is with a resolutory condition and the condition is
complied with;
6. When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in general.

Marriage is not celebrated; prescriptive period to revoke or recover the

donation given – Article 1149 should be applied, since the Civil Code or
the Family Code does not provide the prescriptive period. Thus, all
actions whose periods are not fixed in this Code or in other laws must be
brought within 5 years from the time the right of action accrues.

- If the marriage is not celebrated, the right of action accrues from the
moment the marriage is not solemnized on the fixed date. If the
donation is void as it is contained in a marriage settlement, the period
within which to declare the donation void does not prescribe.

-If it is clear from such marriage settlement that the donation does not
depend on the celebration of the marriage (therefore it is not a DPN),
then such donation shall remain effective provided it complies with all
the statutory requirements for a valid donation.

IF MARRIAGE JUDICIALLY DECLARED VOID: there must first be a judicial

declaration that the marriage is void.

1. If subsequent marriage void pursuant to Article 40 IRT to Articles

52 and 53, the donation shall be revoked by operation of law if the
donee-spouse contracted the subsequent void marriage in bad faith. (Art.
50 IRT to Article 43 Par. 3)

If the donee does not want to return the donated property, the
donor should file an action to recover the thing donated and the right of
action to file the case starts from the finality of the judicial declaration
of nullity (time the right of action accrues)

If movable property – action to recover shall prescribe after 8 years

from the time possession thereof is lost (Article 1140 CC)

If the property involves real property, the action to recover shall

prescribe after 30 years (Article 1141 CC). Possession is deemed lost
from the finality of the judicial declaration of nullity.

2. In case there is bad faith on the part of both of the contracting

parties in a subsequent marriage where one of them previously obtained
a judicial declaration of presumptive death under Article 41 to be able to
remarry, Article 44 provides that such subsequent marriage is void and
all donations by reason of such void marriage shall be revoked by
operation of law.
3. In all other cases where a marriage has been judicially declared
void on grounds other than Article 40 IRT to Articles 52 and 53 and
under Article 44, the provision that will apply is Article 86(1).

In this case, the GF or BF of the donee is irrelevant, the donor,

after finality of a judicial declaration of nullity of marriage, shall have
the option to revoke or not to revoke the donation whether or not the
donee is in bad faith (Article 86 par. 1) i.e marriage celebrated without a
license or where there is mistake in identity.

4. If A is validly married to B and subsequently marries X while the

first valid marriage is subsisting, the subsequent marriage is bigamous
and, therefore, any DPN given by X to A may or may not be revoked by X
after the finality of the judicial declaration of nullity of the bigamous
marriage.

However, any DPN given by A (the married person) to X may be

considered void if A and X were already guilty of adultery or concubinage
at the time of the donation (Article 739 [2] CC)

It is also void if it were made at the time when A and X were

already living together as husband and wife without a valid marriage
(Article 87 FC). If, in this case, the marriage of A and B is in itself void
and no declaration of nullity has been obtained prior to the marriage of A
and X, the subsequent void marriage of A and X falls under Article 40
and, therefore, the donation by X shall be revoked by operation of law
upon the finality of the judicial declaration of nullity of X’s marriage
with A. However, the donation of A to X is void if it were made at the
time when A and X were living together as husband and wife without a
valid marriage (Article 87 FC)

5. If both contracting parties are in good faith, the donor, after

finality of the judicial declaration of nullity, is likewise given by law the
option to revoke the donation or not (Article 86[1]).

Thus, if a subsequent marriage was contracted by a man and a

woman without complying with the mandatory recording and distribution
requirement under Article 52 believing in good faith that the marriage is
valid as they have respectively procured their nullity decrees from their
separate former spouses, the subsequent marriage will still be void and
can be judicially declared as such. However, upon the finality of the
judicial declaration of nullity, any DPN given by one party to the other
may or may not be revoked by the donor as both of them were in good
faith in contracting the marriage.

The donor has five years from the time the judicial declaration of
nullity has become final to file an action to recover the property as it is
only from that time that the right of action has accrued.

NO CONSENT OF PARENTS OR GUARDIANS –

 Unlike Article 86(3), it must be observed that Article 86(2) does not
require that the marriage should have been annulled first before the
donor may revoke the donation.

The donor has five years from the time he had knowledge that the
needed consent was not obtained by the parties, it is from that time the
cause of action has accrued.

The knowledge in this case can come on or after the marriage. If

he or she knew of the non-consent of the parents before the marriage,
the donor may not yet revoke because the parents can still give their
consent any time prior to the marriage ceremony. If the marriage does
not take place, Article 86(1) or Article 81 will apply in the proper case.

ANNULLED MARRIAGE AND DONEE ACTED IN BAD FAITH-

Irreconcilable with Article 50 IRT to 43(3) which provides the

donation is revoked by operation of law. Article 86(3) provides that the
donation is merely revocable at the instance of the donor in case the
marriage is annulled and the donee is proven to be in bad faith in
contracting the marriage.

Both provisions do not specify whether or not the donor is the

other spouse who acted in good faith.

MERE OPINION- The particular spouse who acted in bad faith in

procuring the marriage should not be allowed to profit or gain from his
acts. Thus, it is more in keeping with the spirit of the law to consider
any DPN as revoked by operation of law in case where the marriage is
annulled and the donee acted in bad faith. Had the innocent party known
of the guilty party’s bad faith prior to or even at the time of the marriage
ceremony he or she would not have entered into such annullable
marriage or would not, in the first place, have even made such a
donation.

It must be observed that there are instances when a marriage is

annullable but the spouse is not in bad faith even if Article 47 refers to
an “injured party”. i.e. if a donee-spouse, prior to the marriage, informed
the third-party donor and the other spouse or such other spouse alone in
case he or she is likewise the donor, that he or she - the donee-spouse-
is suffering from a serious and incurable STD or is impotent, such donee-
spouse can never be considered in BF. Hence, even if the marriage is
later on annulled on this ground, the DPN remains effective and can
never be revoked either under Article 86(3) or Article 50 IRT to Article
43(3) of the FC.

Legal Separation – donor may or may not revoke the donation. Revoke
within 5 years from finality of the decree of legal separation. However, if
the ground for legal separation is sexual infidelity in the form of adultery
on the part of the wife or concubinage on the part of the husband, Article
739(1) CC provides that a donation made between persons who are guilty
of adultery or concubinage at the time of the donation shall be void.
Resolutory Condition. –May or may not revoke the donation within 5
years from the happening of the resolutory condition. If the donation is
validly made by one spouse in favor of the other spouse and the
resolutory condition happens, the donor-spouse can recover what is
donated at anytime without any prescriptive period because Article 1109
of the CC provides that “prescription does not run between husband and
wife, even though there be a separation of property agreed upon in the
marriage settlement.”

Acts of Ingratitude- Article 765 CC. May or may not revoke; if decide to
revoke must do the same within 1 year from the time the donor had
knowledge of the fact of ingratitude and it was possible for him or her to
bring the suit (Article 769 CC).

Article 765. The donation may also be revoked at the instance of

the donor, by reason of ingratitude in the following cases:

1. If the donee should commit some offense against the person,

the honor or property of the donor, or of his wife or children under his
parental authority;

2. If the donee imputes to the donor any criminal offense, or

any act involving moral turpitude, even though he should prove it, unless
the crime or the act has been committed against the donee himself, his
wife or children under his authority;

3. If he unduly refuses him support when the donee is legally or

morally bound to give support to the donor.

C. Void donations by the spouses, Art. 87

Article 739 of the CC provides, among others, that donations made by

persons who are guilty of adultery or concubinage at the time of the
donation is void. (Art. 739. The following donations shall be void: 1.
Those made between persons who are guilty of adultery or concubinage
at the time of the donation; x x x)

Article 87. Every donation or grant of gratuitous advantage, direct or

indirect, between the spouses during the marriage shall be void, except
moderate gifts which the spouses may give each other on the occasion of
any family rejoicing. The prohibition shall also apply to persons living
together as husband and wife without a valid marriage.

Article 87 provides that donations by and between persons living

together as husband and wife without a valid marriage is void. REASON-
explained in Matabuena vs. Cervantes, 38 SCRA 284, to the effect that if
it applies only to those who are legally married, then those who are in a
live-in relationship would be better situated.
To apply, it must be shown that the donation was made at a time when
they were still living together as husband and wife without the benefit of
marriage.

Moderate gifts will depend on a case to case basis especially considering

the financial capacity of the donor.

Under Article 134 of the Civil Code, indirect donations were merely made
voidable. The Family Code makes such donations void. Article 87
includes the following donations of a spouse:

1. to a stepchild who has no compulsory and/or legal heirs, such

as his or children, other than the other spouse at the time of the
donation;

2. to a common child who has no compulsory heir and/or legal

heirs other than the other spouse at the time of the donation;

3. to the parents of the other spouse;

4. to the other spouse’s adopted child who has no compulsory

and/or legal heirs or, in cases when, at the time of the donation, the only
surviving relative of the adopted is the other spouse (parent of the
adopted);

5. to a common adopted child who has no other compulsory

and/or legal heirs.

The above donations in favor of the said donees are indirect

donations to the spouse of the donor-spouse because, once they die, the
spouse of the donor will inherit from the donee. If, subsequent to the
donation, the donee gives birth to a compulsory and/or legal heir, the
invalidity of the donation will not be cured or validated because the
donation is void from its inception.

However, donations by both spouses in favor of their common

legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-
improvement, are valid. Donations by both spouses for any other
purpose to the common legitimate children who have no other
compulsory and/or legal heirs would appear to fall within the prohibition.

Effect of RESERVA TRONCAL – Article 891 provides that the ascendant

who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the third
degree and who belong to the line from which said property came.
Reason- to keep the property within the same bloodline

When marriage is governed by Local Customs :

 1. When the parties stipulate in their marriage settlement that local customs shall
apply;
2. When in their marriage settlement the parties stipulate that
the ACP shall not govern their property relations but fail to stipulate
what property regime shall be applied, the only recourse would be to
apply the local customs.

If the marriage settlement provides that neither the ACP or local

customs shall prevail in the marriage without particularizing any other
valid property regime which shall apply, such provision is void because
it contravenes a mandatory provision under Article 74.

D. Absolute Community of property

1. General Provisions, Arts. 75-85, 88-90
2. What constitutes Community Property, Arts. 91-93
3. Charges Upon and Obligations of the Community Property, Arts. 94-95
4. Ownership, Administration, Enjoyment and Disposition of the Community Property,
Arts. 96-98
5. Dissolution of Community Regime, Arts. 99-101
6. Liquidation of the Absolute Community Assets and Liabilities, Arts. 102-104

Absolute Community of Property

When ACP governs property regime of the spouses:

1.
when the spouses have entered into marriage without having chosen any property
regime;
2. when the property regime chosen is void
3. when they choose the ACP to govern their property relations during the marriage

ACP is a special type of co-ownership. Hence, the law provides that the
provisions on co-ownership shall apply in all matters not provided by the
Code (Art. 90).

Example:

Each co-owner may use the thing owned in common provided he or she
does so in accordance with the purpose for which it is intended and in
such a way as not to injure the interest of the co-ownership or prevent
the other co-owners from using it according to their rights (Art. 486 CC)
Any one of the co-owners may bring an action for ejectment (Art. 487 CC)

Distinguished from Co-ownership: in ACP there shall be no waiver of

rights, interests, shares and effects of the ACP during the marriage can
be made except in case of judicial separation of property. (Art. 89)

Commencement of ACP
At the precise moment that the marriage is celebrated. Any stipulation, express or
implied, for the commencement of the ACP at any other time shall be void. (Art. 88)

Note: the same rule applies to the conjugal partnership of gains (Art. 107),
complete separation of property or any other property regime chosen by the
spouses.
 Waiver of rights in ACP – prohibited except in case of judicial separation of property
(Art. 89)

When waiver allowed:

Either spouse may dispose by will of his or her interest in the community
property. (Art. 97)

The same goes for the other property regimes.

What constitutes Community Property

Consists of all the property owned by the spouses before the marriage ceremony and
those which they may acquire thereafter, unless otherwise provided by the Family
Code or in the marriage settlements. (Art. 91)

Presumption of property acquired during the marriage, is that it belongs to the

community property, unless it is proved that it is one of those excluded therefrom
(Art. 93).
Winnings in a game of chance, betting or any other kind of gambling but not losses
which shall be borne by the loser. (Art. 95)

Excluded from ACP (Art. 92)

a. Property acquired during the marriage by gratuitous title by either spouse, and
the fruits as well as the income thereof, if any, unless expressly provided by the donor,
testator or grantor that they shall form part of the ACP

The phrase “unless expressly provided by the donor x x x includes

the property and/or the fruits.

b. Property for personal and exclusive use of either spouse. However, jewelry shall
form part of the community property;

Whether the property is brought to the marriage or acquired during

the marriage.

c. Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as the income thereof;

The law uses the words “descendants”, who must be legitimate,

and not limiting it to “children”. Thus if the previous marriage is
declared null and void the children or descendants thereof are
illegitimate and the property belonging to one spouse who later on
marries shall pertain to the ACP of the subsequent marriage. Note
however children born under Article 36 and 53, though the marriage is
void, the children are considered legitimate.

If the previous marriage is terminated by death and there was no

liquidation of the property regime of the previous marriage and
thereafter the surviving spouse remarries, the subsequent marriage is
mandatorily governed by complete separation of property (Art. 103).
Hence, the property owned by the surviving spouse prior to his or her
subsequent marriage shall be separately owned by him or her during the
subsequent marriage.

d. Art. 91 – marriage settlements may include exclusions as stipulated

by the parties.

Donation - Neither spouse may donate any community property without the consent of
the either. Exception _ moderate donations for charity or on occasion of family rejoicing or
family distress. (Art. 98)

Nature of Acquired Property using separate properties. -

Under Article 109(4) of the FC, one of the exclusive properties of

the spouses in relation to the CPG is that which is purchased with the
exclusive money of the wife or of the husband. There is no
corresponding rule in the exclusions under Article 92 (excluded
properties of ACP). Had the code commission intended a similar
provision for the ACP, it could have easily done so. This highlights the
intention of the FC to make the husband and wife truly a single
community. Also because Article 93 provides that “property acquired
during the marriage is presumed to belong to the community unless it is
proved that it is one of those excluded therefrom.” Moreover, Article 91
clearly provides that “unless otherwise provided in this Chapter or in the
marriage settlement, the community property shall consist of all the
properties owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.” The law on ACP does not even provide
that the property purchased with the exclusive money of the wife or
husband shall be excluded from the community property, unlike the
provisions relative to the CPG. In the event any property is exchanged
or merely bartered for another property, the result would be the same for
the same reasons, unless the property received will qualify as a property
used for the personal and exclusive use of the recipient spouse. Unlike
Article 109(3) referring to CPG.

Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children of either
spouse; however, the support of illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the community, or by both spouses, or by one spouse
with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to
the extent that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the
community property;
(5) All taxes and expenses for mere preservation made during marriage upon the
separate property of either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional or
vocational course, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of
the family;
 (8) The value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of
this Article, the support of illegitimate children of either spouse, and liabilities incurred by
either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment of which shall be considered as advances
to be deducted from the share of the debtor-spouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the suit is found to be groundless.
If the community property is insufficient to cover the foregoing liabilities, except those falling
under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their
separate properties.

Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes,
or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the
loser and shall not be charged to the community but any winnings therefrom shall form part of
the community property.

Section 4. Ownership, Administrative,

Enjoyment and Disposition of the Community Property

Art. 96. The administration and enjoyment of the community property shall belong to both
spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse
to the court by the wife for proper remedy, which must be availed of within five years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In the absence of such authority or consent,
the disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.

Art. 97. Either spouse may dispose by will of his or her interest in the community
property.

Art. 98. Neither spouse may donate any community property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate donations from
the community property for charity or on occasions of family rejoicing or family distress.

Dissolution of ACP:

a. Death of either spouse;

b. When there is decree of legal separation;
c. When the marriage is annulled or declared void; or
d. In case of judicial separation of property during the marriage (Art. 99)
Termination of the ACP does not necessarily mean the termination of the
marriage. But the termination of a marriage simultaneously results in
the dissolution of the ACP.

Legal Separation – but the offending spouse shall have no right to any
share of the net profits earned by the ACP or CPG which shall be forfeited
in accordance with Article 43(2) –Art. 63(2).

Annulment decree- (Art. 50)- liquidation, partition and distribution of

the properties of the spouses, the custody and support of the common
children, and the delivery of their presumptive legitimes. Forfeiture- but
if either of the spouses acted in bad faith, his or her share of the net
profits of the community property shall be forfeited in favor of the
common children, or if there be none, the children of the guilty spouse
by a previous marriage or in default of children, the innocent spouses
(Art. 43[2])

Nullity decree – As a general rule, there is no ACP in a void marriage.

The property arrangement is either 147 or 148 – in case where a man and
a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under
a void marriage. It shall be liquidated in accordance with the rules on
co-ownership. Forfeiture- when only one of the parties to the said void
marriage is in good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common children or their
descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to
the innocent party. (Art. 147)

EXCEPTION:

1. if marriage is declared void under Article 40, liquidate

property relations in accordance with ACP or CPG. Legal basis- Article 50
IRT Article 43 (2) and Valdez vs. RTC, 260 SCRA. However. Nicdao
Carino vs. Carino (Feb. 2, 2001), the SC ruled that a subsequent
marriages celebrated in violation of Article 40 is void because it is
bigamous and therefore the property regime in the said subsequent void
marriage is co-ownership under Article 148.

2. Termination of the subsequent marriage referred to in Article

41 by reason of the registration of the affidavit of reappearance.

Judicial Separation of Property –Article 136 voluntary; Article 135 for

sufficient cause.

Section 3. Charges and Obligations of the Absolute Community

Art. 100. The separation in fact between husband and wife shall not affect the regime of
absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
 (2) When the consent of one spouse to any transaction of the other is required by law,
judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse present shall,
upon proper petition in a summary proceeding, be given judicial authority to administer
or encumber any specific separate property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter's share.

Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or
property relations.

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling
without intention of returning. The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal
dwelling.

Liquidation of the Absolute Community

Art. 102. Upon dissolution of the absolute community regime, the following procedure shall
apply:

(1) An inventory shall be prepared, listing separately all the properties of the absolute
community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets.
In case of insufficiency of said assets, the spouses shall be solidarily liable for the
unpaid balance with their separate properties in accordance with the provisions of the
second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net
assets, which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements, or unless there has
been a voluntary waiver of such share provided in this Code. For purpose of computing
the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No.
(2), the said profits shall be the increase in value between the market value of the
community property at the time of the celebration of the marriage and the market value
at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition,
in accordance with Article 51.
 (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the
age of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there in no such majority, the court shall decide, taking into
consideration the best interests of said children.

Art. 103. Upon the termination of the marriage by death, the community property shall be
liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
community property either judicially or extra-judicially within six months from the death of the
deceased spouse. If upon the lapse of the six months period, no liquidation is made, any
disposition or encumbrance involving the community property of the terminated marriage shall
be void.

Should the surviving spouse contract a subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.

Art. 104. Whenever the liquidation of the community properties of two or more marriages
contracted by the same person before the effectivity of this Code is carried out simultaneously,
the respective capital, fruits and income of each community shall be determined upon such
proof as may be considered according to the rules of evidence. In case of doubt as to which
community the existing properties belong, the same shall be divided between the different
communities in proportion to the capital and duration of each.

E. Conjugal Partnership of Gains

1. General Provision, Arts. 105-108

2. Exclusive Property of Each Spouse, Arts. 109-115
3. Conjugal Partnership Property, Arts. 116-120
4. Charges upon and obligations of the CPG, Arts. 121-123
5. Administration of the CPG, Arts. 124-125
6. Dissolution of CPG Regime, Arts. 126-128
7. Liquidation of the Conjugal Partnership Assets and Liabilities, Arts. 129-133

Conjugal Partnership of Gains

DEFINITION; Concept: The husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those acquired by either or
both spouses through their efforts or by chance, and upon dissolution of the marriage or of
the partnership, the net gains or benefits obtained by either or both spouses shall be divided
equally between them, unless otherwise agreed in the marriage settlement. (Art. 105)

SPECIAL TYPE OF PARTNERSHIP- CPG shall be governed by the rules on

the contract of partnership in all that are not in conflict with the FC.

Example:
Just like in a normal partnership, any stipulation which excludes the
partners from any share of the profits and losses of the partnership is
void (Art. 1977).
A partner is a co-owner with his other partner of specific partnership
property (Art. 1811)

Every partner must account to the P for any benefit, and hold as trustee
for it any profits derived by him without the consent of the other partner
from any transaction connected with the formation, conduct, or
liquidation of the P or from any use by him or her of its property ( Art.
1807).

NOTE: The Partnership between the spouses regarding their

properties does not produce the merger of the properties of each spouse.
Hence, they can exercise all the rights of dominion or of ownership over
these exclusive properties. The said properties cannot be encumbered,
alienated nor disposed of by the other spouse without the consent of the
owner-spouse. The nature of the property as separate property shall
remain unless the contrary is proved by positive and convincing
evidence.

G.R. No. 164201, December 10, 2012, Efren Pana, petitioner, vs. heirs of Jose Juanite, Sr.
and Jose Juanite, Jr., respondents.
To automatically change the marriage settlements of couples who got married under the civil
code into absolute community of property in 1988 when the Family Code took effect would
be to impair their acquired or vested rights to such separate properties.

The Facts:
Efren (Pana) and his wife, Melecia, along with several others, were charged with murder
before the RTC of Surigao City. In a decision rendered on July 9, 1997, the RTC
acquitted Efren, but convict Melecia and another person guilty as charged. It
ordered them to pay each of the heirs of the victims, jointly and severally,
P50,000.00 as civil indemnity, P50,000.00 each as moral damages, and
P150,000.00 actual damages. The judgment was affirmed by the Supreme Court on
May 24, 2001 with the modification that deleted the award of actual damages but
added P15,000.00 each as temperate damages, and P50,000.00 as exemplary
damages. Thus, the heirs of the deceased filed a motion for execution which the
RTC granted, resulting in the levy of real properties registered in the name of the
spouses Efrena and Melecia, and a notice of levy and notice of execution sale were
issued. The spouses Efren and Melecia then filed a motion to quash warrant of writ
of execution, averring that the levies properties were conjugal assets, not
paraphernal properties of Melecia. The RTC denied the motion, and the motion for
reconsideration thereof. Upon petition for certiorari with the CA, the latter also
dismissed it. Thus, Efren and Pama elevated the case for review to the Supreme
Court, arguing that the marriage between him and Melecia was covered by the
regime of conjugal partnership of gains, not absolute community of property, since
they were married before the enactment of the Family Code and did not execute any
prenuptial agreement. On the other hand, the heirs of the deceased argue
otherwise. Although admitting that the marriage was contracted prior to the
enactment of the Family Code, still the same is governed by the absolute community
of gains, and finds application in Art. 256 of the Family Code, which provides: “This
code shall have retroactive effect in so far as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws.” Since none of
the spouses are dead, there is no vested right acquired by each over the other’s
properties, and the obligation imposed on accused-spouse may be charged against
the community. The RTC sided with the heirs. Since no vested rights was impaired,
 the transitory provisions of the Family Code automatically converted the property
relations between Efren and Melecia from conjugal partnership of gains to absolute
community of gains, especially since they had no pre-nuptial agreement.
The Issue/s:
Whether the RTC and the CA erred in holding the conjugal partnership of gains of the spouses
Efren and Melecia liable for the execution of the civil liability imposed in Melecia’s
murder case.
The Ruling:
To determine whether the obligation of the wife arising from her criminal liability is chargeable
against the properties of the marriage, the Court has first to identify the spouses’
property relations.
Efren claims that his marriage with Melecia falls under the regime of conjugal partnership of
gains, given that they were married prior to the enactment of the Family Code and
that they did not execute any prenuptial agreement. Although the heirs of the
deceased victims do not dispute that it was the Civil Code, not the Family Code,
which governed the marriage, they insist that it was the system of absolute
community of property that applied to Efren and Melecia. The reasoning goes:

Admittedly, the spouses were married before the effectivity of the Family Code. But that fact
does not prevent the application of [A]rt. 94, last paragraph, of the Family Code
because their property regime is precisely governed by the law on absolute
community. This finds support in Art. 256 of the Family Code which states:
“This code shall have retroactive effect in so far as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.”
None of the spouses is dead. Therefore, no vested rights have been acquired by each over the
properties of the community. Hence, the liabilities imposed on the accused-spouse
may properly be charged against the community as heretofore discussed.
The RTC applied the same reasoning as above. Efren and Melecia’s property relation was
admittedly conjugal under the Civil Code but, since the transitory provision of the
Family Code gave its provisions retroactive effect if no vested or acquired rights are
impaired, that property relation between the couple was changed when the Family
Code took effect in 1988. The latter code now prescribes in Article 75 absolute
community of property for all marriages unless the parties entered into a prenuptial
agreement. As it happens, Efren and Melecia had no prenuptial agreement. The CA
agreed with this position.

Both the RTC and the CA are in error on this point. While it is true that the personal
stakes of each spouse in their conjugal assets are inchoate or unclear prior to
the liquidation of the conjugal partnership of gains and, therefore, none of
them can be said to have acquired vested rights in specific assets, it is
evident that Article 256 of the Family Code does not intend to reach back and
automatically convert into absolute community of property relation all
conjugal partnerships of gains that existed before 1988 excepting only those
with prenuptial agreements.
The Family Code itself provides in Article 76 that marriage settlements cannot be modified
except prior to marriage.
Art. 76. In order that any modification in the marriage settlements may be valid, it must be
made before the celebration of the marriage, subject to the provisions of Articles 66,
67, 128, 135 and 136.
Clearly, therefore, the conjugal partnership of gains that governed the marriage between Efren
and Melecia who were married prior to 1988 cannot be modified except before the
celebration of that marriage.
Post-marriage modification of such settlements can take place only where: (a) the absolute
community or conjugal partnership was dissolved and liquidated upon a decree of
legal separation; (b) the spouses who were legally separated reconciled and agreed
to revive their former property regime; (c) judicial separation of property had been
had on the ground that a spouse abandons the other without just cause or fails to
comply with his obligations to the family; (d) there was judicial separation of
property under Article 135; (e) the spouses jointly filed a petition for the
voluntary dissolution of their absolute community or conjugal partnership of
gains. None of these circumstances exists in the case of Efren and Melecia.

What is more, under the conjugal partnership of gains established by Article 142 of the Civil
Code, the husband and the wife place only the fruits of their separate property and
incomes from their work or industry in the common fund. Thus:
Art. 142. By means of the conjugal partnership of gains the husband and wife place in a
common fund the fruits of their separate property and the income from their work or
industry, and divide equally, upon the dissolution of the marriage or of the
partnership, the net gains or benefits obtained indiscriminately by either spouse
during the marriage.
This means that they continue under such property regime to enjoy rights of ownership over
their separate properties. Consequently, to automatically change the marriage
settlements of couples who got married under the Civil Code into absolute
community of property in 1988 when the Family Code took effect would be to impair
their acquired or vested rights to such separate properties.
The RTC cannot take advantage of the spouses’ loose admission that absolute community of
property governed their property relation since the record shows that they had been
insistent that their property regime is one of conjugal partnership of gains. No
evidence of a prenuptial agreement between them has been presented.

What is clear is that Efren and Melecia were married when the Civil Code was still the
operative law on marriages. The presumption, absent any evidence to the contrary,
is that they were married under the regime of the conjugal partnership of gains.
Article 119 of the Civil Code thus provides:
Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative
community of property, or upon complete separation of property, or upon any other
regime. In the absence of marriage settlements, or when the same are void, the
system of relative community or conjugal partnership of gains as established in
this Code, shall govern the property relations between husband and wife.
Of course, the Family Code contains terms governing conjugal partnership of gains that
supersede the terms of the conjugal partnership of gains under the Civil Code.
Article 105 of the Family Code states:
“x x x x
The provisions of this Chapter [on the Conjugal Partnership of Gains] shall also apply
to conjugal partnerships of gains already established between spouses before
the effectivity of this Code, without prejudice to vested rights already acquired
in accordance with the Civil Code or other laws, as provided in Article 256.”
Consequently, the Court must refer to the Family Code provisions in deciding whether or
not the conjugal properties of Efren and Melecia may be held to answer for the
civil liabilities imposed on Melecia in the murder case. Its Article 122 provides:
Art. 122. The payment of personal debts contracted by the husband or the wife before or
during the marriage shall not be charged to the conjugal properties partnership
except insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the
partnership.
However, the payment of personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as the
support of illegitimate children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the preceding
Article have been covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse shall be charged for what has
been paid for the purpose above-mentioned.
Since Efren does not dispute the RTC’s finding that Melecia has no exclusive property
of her own, the above applies. The civil indemnity that the decision in the
murder case imposed on her may be enforced against their conjugal assets
after the responsibilities enumerated in Article 121 of the Family Code have
been covered. Those responsibilities are as follows:

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the legitimate children of either
spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-
spouse for the benefit of the conjugal partnership of gains, or by both spouses or by
one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the
extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal
partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate
property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or
other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the
family;
(8) The value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to be groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.
Contrary to Efren’s contention, Article 121 above allows payment of the criminal
indemnities imposed on his wife, Melecia, out of the partnership assets even
before these are liquidated. Indeed, it states that such indemnities “may be
enforced against the partnership assets after the responsibilities enumerated
in the preceding article have been covered.” No prior liquidation of those
assets is required. This is not altogether unfair since Article 122 states that “at
the time of liquidation of the partnership, such [offending] spouse shall be
charged for what has been paid for the purposes above-mentioned.”

WHEREFORE, the Court AFFIRMS with MODIFICATION the Resolutions of the Court of
Appeals in CA-G.R. SP 77198 dated January 29, 2004 and May 14, 2004. The
 Regional Trial Court of Surigao City, Branch 30, shall first ascertain that, in enforcing
the writ of execution on the conjugal properties of spouses Efren and Melecia Pana
for the satisfaction of the indemnities imposed by final judgment on the latter
accused in Criminal Cases 4232 and 4233, the responsibilities enumerated in Article
121 of the Family Code have been covered.
What forms Part of CPG

1. All property acquired during the marriage, whether the acquisition appears to have
been made, contracted or registered in the name of one or both spouses, is presumed to be
conjugal unless the contrary is proved. (Art. 116)

2. Art. 117

a. Those acquired by onerous title during the marriage at the expense of the
common fund;

b. Those obtained from the labor, industry, work or profession of either or both
of the spouses;

c. The fruits, natural, industrial, or civil due or received during the marriage
from the common property, as well as the net fruits from the exclusive property of each
spouse;

d. The share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found;

e. Those acquired through occupation such as fishing or hunting;

f. Livestock existing upon the dissolution of the partnership in excess of the
number of each kind brought to the marriage by either spouse; and

g. Those which are acquired by chance, such as winnings from gambling or

betting. Losses shall be borne exclusively by the loser-spouse.

3. Whenever an amount or credit payable within a period of time belongs to one of the
spouses, the sums which may be collected during the marriage in partial payments or
installments on the principal shall be exclusive property of the spouse. However, interest
falling due during the marriage on the principal shall belong to the conjugal
partnership. (Art. 119)

4. (Art. 120) Ownership of improvements made on the separate property of the

spouses at the expense of the partnership or efforts of either or both spouses depending on
cost of improvement made by the CP and the resulting increase in value. If it is more than
the value of the property at the time of improvement, the entire property of one spouse shall
belong to the CPG. (Art. 120)

EXCLUDED FROM THE CPG

1. That which is brought to the marriage as his or her own; (no merger)
2. That which each acquires during the marriage by gratuitous title;
3. That which is acquired by right of redemption, by barter or by exchange with
property belonging to only one of the spouses; and
4. That which is purchased with exclusive money of the wife or of the husband (Art.
109)
PROPERTY ACQUIRED BY GRATUITOUS TITLE – anything received by
each spouse from any source by way of an act of liberality of the giver,
such as donation or a gift, shall belong exclusively to the spouse-
recipient and will not belong to the CPG. These include moderate gifts
given by one spouse to another during family occasions. Also an
honorarium may be included as property acquired by gratuitous title as it
has been defined as something given not as a matter of obligation but in
appreciation for services rendered, a voluntary donation in consideration
of services which admit no compensation in money. Also, in one case it
was held that, if the property were acquired by lucrative (or gratuitous)
title such as by way of succession, the said property is separate property
regardless of whether it was acquired before or after the marriage.

In CPG, the income and the fruits of the property acquired by gratuitous
title shall be considered conjugal. The law does not include fruits and
income of property received by gratuitous title as separate property.
This is different from the ACP where property acquired during the
marriage by gratuitous title by either spouse, and the fruits as well as the
income thereof, if any, shall be considered as exclusive property unless it
is expressly provided by the donor, testator or grantor that they shall
form part of the community property (Art. 92[a]).

REDEMPTION, BARTER AND EXCHANGE – In case of redemption, the

property shall belong to the spouse who has the right to redeem
regardless of whether or not he or she uses personal funds. However,
when conjugal funds are used to effect the redemption, the spouse
making the redemption through conjugal fund shall be liable to the CPG
for the reimbursement of the amount used to redeem his or her exclusive
property. The conjugal partnership shall have a lien for the amount paid
by it.

Similarly, property acquired by exchange made by one spouse using

his or her exclusive property shall remain the separate property of such
spouse. Barter is limited to goods. However, if the separate property of
a spouse is used as part of the purchase price of a new property, the new
property shall be considered conjugal.

PROPERTY PURCHASED WITH THE EXCLUSIVE MONEY OF EITHER

SPOUSE – shall belong to such spouse. However, when property is
purchased using the exclusive money of one spouse but title is taken in
the spouses’ joint names, the circumstances shall determine whether it
shall result in a gift from the spouse whose money was used to effect the
purchase, or a trust in favor of such spouse.

Article 110. Spouses retain the ownership, possession, administration

and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the

administration of his or her exclusive property to the other by means of
a public instrument, which shall be recorded in the registry of property
of the place where the property is located.
Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or
her exclusive property, without the consent of the other spouse, and appear alone in court
to litigate with regard to the same.

Art. 112. The alienation of any exclusive property of a spouse administered by the other
automatically terminates the administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse.

Art. 113. Property donated or left by will to the spouses, jointly and with designation of
determinate shares, shall pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and share alike, without prejudice to the
right of accretion when proper.

Art. 114. If the donations are onerous, the amount of the charges shall be borne by the
exclusive property of the donee spouse, whenever they have been advanced by the
conjugal partnership of gains.

Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar
benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be
proper in each case.

Section 3. Conjugal Partnership Property

Art. 116. All property acquired during the marriage, whether the acquisition appears to
have been made, contracted or registered in the name of one or both spouses, is presumed
to be conjugal unless the contrary is proved.

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the common
fund, whether the acquisition be for the partnership, or for only one of the spouses;

(2) Those obtained from the labor, industry, work or profession of either or both of the
spouses;

(3) The fruits, natural, industrial, or civil, due or received during the marriage from the
common property, as well as the net fruits from the exclusive property of each spouse;

(4) The share of either spouse in the hidden treasure which the law awards to the finder or
owner of the property where the treasure is found;

(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess of the number of
each kind brought to the marriage by either spouse; and

(7) Those which are acquired by chance, such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse.
Art. 118. Property bought on installments paid partly from exclusive funds of either or
both spouses and partly from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by the owner or owners upon
liquidation of the partnership.

Art. 119. Whenever an amount or credit payable within a period of time belongs to one of
the spouses, the sums which may be collected during the marriage in partial payments or
by installments on the principal shall be the exclusive property of the spouse. However,
interests falling due during the marriage on the principal shall belong to the conjugal
partnership.

Art. 120. The ownership of improvements, whether for utility or adornment, made on the
separate property of the spouses at the expense of the partnership or through the acts or
efforts of either or both spouses shall pertain to the conjugal partnership, or to the
original owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and any resulting
increase in value are more than the value of the property at the time of the improvement,
the entire property of one of the spouses shall belong to the conjugal partnership, subject
to reimbursement of the value of the property of the owner-spouse at the time of the
improvement; otherwise, said property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
partnership.

Section 4. Charges Upon and Obligations of the Conjugal Partnership

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the legitimate children of either
spouse; however, the support of illegitimate children shall be governed by the provisions of this
Code on Support;

(2) All debts and obligations contracted during the marriage by the designated administrator-
spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them
with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the
extent that the family may have benefited;

(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal
partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the
separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional, vocational, or

other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the
family;

(8) The value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and

(9) Expenses of litigation between the spouses unless the suit is found to groundless.

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

Art. 122. The payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal properties partnership except insofar as they
redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the
partnership.

However, the payment of personal debts contracted by either spouse before the marriage, that of
fines and indemnities imposed upon them, as well as the support of illegitimate children of
either spouse, may be enforced against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if the spouse who is bound should have
no exclusive property or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for the purpose above-
mentioned.

Art. 123. Whatever may be lost during the marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to the conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership property.

Section 5. Administration of the Conjugal Partnership Property

Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both
spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse
to the court by the wife for proper remedy, which must be availed of within five years from the
date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In the absence of such authority or consent,
the disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.

Art. 125. Neither spouse may donate any conjugal partnership property without the consent of
the other. However, either spouse may, without the consent of the other, make moderate
donations from the conjugal partnership property for charity or on occasions of family rejoicing
or family distress.

Section 6. Dissolution of Conjugal Partnership Regime

Art. 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to 138.

Art. 127. The separation in fact between husband and wife shall not affect the regime of
conjugal partnership, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall
not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse present shall, upon
petition in a summary proceeding, be given judicial authority to administer or encumber any
specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the
latter's share.

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her
obligation to the family, the aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or
property relations.

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling
without intention of returning. The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal
dwelling.

Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall
apply:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal
partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and
obligations of either spouse shall be credited to the conjugal partnership as an asset
thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
acquisition of property or for the value of his or her exclusive property, the ownership of
which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal
assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the provisions of paragraph (2) of
Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to
each of them.

(6) Unless the owner had been indemnified from whatever source, the loss or deterioration
of movables used for the benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute the profits, which
shall be divided equally between husband and wife, unless a different proportion or division
was agreed upon in the marriage settlements or unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered upon the partition in
accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated
shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided otherwise. In case there is no
such majority, the court shall decide, taking into consideration the best interests of said children.

Art. 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of the
deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
conjugal partnership property either judicially or extra-judicially within six months from
the death of the deceased spouse. If upon the lapse of the six-month period no liquidation
is made, any disposition or encumbrance involving the conjugal partnership property of
the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.

Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more
marriages contracted by the same person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each partnership shall be determined
upon such proof as may be considered according to the rules of evidence. In case of doubt as to
which partnership the existing properties belong, the same shall be divided between the
different partnerships in proportion to the capital and duration of each.

Art. 132. The Rules of Court on the administration of estates of deceased persons shall be
observed in the appraisal and sale of property of the conjugal partnership, and other matters
which are not expressly determined in this Chapter.

Art. 133. From the common mass of property support shall be given to
the surviving spouse and to the children during the liquidation of the
inventoried property and until what belongs to them is delivered; but
from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them.

F. Separation of Property of the Spouses and Administration of Common Property

by One Spouse During the Marriage, Arts. 134-142

Art. 134. In the absence of an express declaration in the marriage

settlements, the separation of property between spouses during the
marriage shall not take place except by judicial order. Such judicial
separation of property may either be voluntary or for sufficient cause.

Complete Separation of Property

Grounds for Judicial Separation of Property (Art. 135)

a. That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;

b. That the spouse of the petitioner has been judicially declared an absentee;

c. That loss of parental authority of the spouse of the petitioner has been decreed by the
court;

d. That the spouse of the petitioner has abandoned the latter or failed to comply with his or
her obligations to the family as provided for in Art. 101;

e. That the spouse granted the power of administration in the marriage settlements has
abused that power; and

F. That at the time of the petition, the spouses have been separated in fact for at least one year
and reconciliation is highly improbable.

5. Voluntary Separation
The spouses may jointly file a verified petition with the court for the voluntary dissolution of
the absolute community or the conjugal partnership of gains, and for the separation of
their common properties. (Art. 136)

Once the separation of property has been decreed, the ACP or the CPG
shall be liquidated in conformity with the Family Code. (Art. 137)

After dissolution of the ACP or the CPG, the provisions on complete

separation of property shall apply. (Art. 138)

The petition for separation of property and the final judgment granting
the same shall be recorded in the proper local civil registries and
registries of property. (Art. 139)

The separation of property shall not prejudice the rights previously

acquired by creditors. (Art. 140)

Voluntary dissolution may be availed of only once (Art. 141 p. 7)

6. Spouses may revive their former property regime under Art. 141.

a. when civil interdiction terminates;

b. When the absentee spouse reappears;
c. When the court, being satisfied that the spouse granted the power of
administration in the marriage settlements will not again abuse that power,
authorizes the resumption of said administration;
d. When the spouse who has left the conjugal home without a decree of legal
separation resumes common life with the other;
e. When the parental authority is judicially restored to the spouse previously
deprived thereof;
f. When the spouses who have separated in fact for at least one year, reconcile and
resume common life; or
g. When after voluntary dissolution of their property regime (ACP or CPG) and the
same has been judicially granted, they agree to revive their former property
regime.

8. Administration of exclusive property of either spouse.

Article 142. The administration of all classes of exclusive property

of either spouse may be transferred by the court to the other spouse:

1. When one spouse becomes the GUARDIAN of the other;

2. When one spouse is sentenced to a penalty which carried with
it CIVIL INTERDICTION; or
3. When one spouse becomes a FUGITIVE from justice or is
HIDING as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence,

conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator.
G. Regime of Separation of Property, Arts. 143-146

Article 143. Should the future spouses agree in the marriage settlements
that their property relations during marriage shall be governed by the
regime of separation of property, the provisions of this Chapter shall be
suppletory.

Article 144. Separation of property may refer to present or future

property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the ACP.

Article 145. Each spouse shall own, dispose of, possess, administer and
enjoy his or her own separate estate, without the need of the consent of
the other. To each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural, industrial or civil,
due or received during the marriage from his or her separate property.

Article 146. Both spouses shall bear the family expenses in proportion
to their income, or, in case of insufficiency or default thereof, to the
current market value of their separate properties.

The liability of the spouses to creditors for family expenses shall,

however, be solidary.

G.R. No. 153828 October 24, 2003, LINCOLN L. YAO, petitioner, vs. HONORABLE
NORMA C. PERELLO, in her capacity as Presiding Judge of the Regional Trial
Court, Branch 276, Muntinlupa City, THE EX-OFICIO SHERIFF, REGIONAL
TRIAL COURT, MUNTINLUPA CITY and BERNADINE D. VILLARIN,
respondents.

“One Man’s Goods Shall Not Be Sold For Another Man’s Debts…”

“May the property of a spouse in a marriage governed by the regime of complete separation
of property be made to answer for the debts incurred by the other spouse?”1

Lincoln filed a case against Pablito before the HLURB, which case became final and executory,
hence, he enlisted the assistance of the sheriff of the Muntinlupa City Regional Trial
Court for execution of the judgment.
One of those levied by the sheriff was a parcel of land in Laguna registered in the name of the
spouses Pablito and Bernadine. The property was set for public auction on March
22, 2002.
The spouse, Bernadine, filed an action for prohibition against the sheriff, to prevent him from
proceeding with the sale of the levied property. According to her, the property is co-
owned by her and her spouse; their marriage is governed by the regime of complete
separation of property, and she is not a party to the HLURB case, thus her property
could not be made to answer for the separate liability of her husband.

The judge stopped the sale, and eventually granted the petition for prohibition. Lincoln filed a
motion for intervention in the case but his motion was denied.

He raised the matter to the Supreme Court, which denied his petition, thus:
“It is a basic precept that the power of the court in the execution of judgments extends only to
properties unquestionably belonging to the judgment debtor. The levy by the sheriff
on property by virtue of a writ of attachment may be considered as made under the
authority of the court only vis-a-vis property belonging to the defendant. For indeed,
“one man’s goods shall not be sold for another man’s debts.” In the case at bar, the
property levied on by the sheriff was clearly not exclusively owned by Pablito
Villarin. It was co-owned by herein private respondent who was a stranger in the
HLURB case. The property relation of spouses Villarin was governed by the regime
of complete separation of property as decreed in the order4 dated November 10,
1998 of the Regional Trial Court, Branch 27, Parañaque City.

Articles 145 and 146 of the Family Code governing the regime of complete separation of
property provide:

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own
separate estate, without need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry and all fruits, natural,
industrial or civil, due or received during his marriage from his or her separate
property. (214a)

Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case
of insufficiency or default thereof, to the current market value of their separate
properties.
The liability of the spouses to creditors for family expenses shall, however, be solidary. (215a)
It is clear from the foregoing that the only time the separate properties of the spouses can be
made to answer for liabilities to creditors is when those liabilities are incurred for
family expenses. This has not been shown in the case at bar.”

H. Property Regime of Unions Without Marriage, Arts. 147- 148

Property Regime or Unions without Marriage

Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife, without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by
the rules on co-ownership. X x x

When only one of the parties to a void marriage is in good faith, the share of the party in
bad faith in the co-ownership shall be forfeited in favor of their common children, in
default of or waiver of all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of descendants, such
share shall belong to the innocent party.

To qualify under Article 147, the man and the woman: (all three must concur)

1. must be capacitated to marry each other;

2. live exclusively with each other as husband and wife; and
3. be without the benefit of marriage or under a void marriage.

Article 5 of the FC defines one who has legal capacity – “any male or
female of the age of 18 years or upwards not under any of the
impediments mentioned in Articles 37 and 38.”
RELATIONSHIPS THAT FALL UNDER ARTICLE 147:

1. void marriages under Articles 36, psychological incapacity

2. Article 44, void marriages because both spouses to the subsequent
marriage are in bad faith when they secured the declaration of
presumptive death of the absent spouse of the first existing marriage
(???; THE SUBSEQUENT MARRIAGE IS VOID; THE SPOUSES TO THE
SUBSEQUENT MARRIAGE ARE NOT CAPACITATED SO THERE IS
ABSENCE OF ONE REQUISITE FOR 147 TO APPLY; SHOULD THIS NOT
FALL UNDER ART. 148?)
3. Article 53, failure to comply with the recording requirements when
a marriage is judicially declared void; and
4. void marriages where there is absence of authority of the
solemnizing officer; a valid marriage license, a marriage ceremony
(absence of a formal requisite) (Art. 4)

informal civil partnerships where the parties are below 18 years of age
or those whose circumstances are under Article 37 and 38 fall under
Article 148.

Outside article 147 are marriages under Articles 37, 38, 35(1) below 18;
and 35 (4), bigamous and polygamous marriages

Structure of the property relations under Article 147:

1. Salaries and wages shall be owned by them in equal shares; and

2. Property acquired by either of the parties exclusively by his or her

own fund belongs to such party provided that there is proof that he or
she acquired it by exclusive funds;

3. Property acquired by both of them through their work or industry

shall be governed by the rules on co-ownership. Consequently, either
spouse may alienate in favor of the other his or her share in the
property;

4. Property acquired while they live together shall be presumed to

have been obtained by their joint efforts, work or industry and shall be
owned by them in equal shares. A party who did not participate in the
acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former’s efforts
consisted in the care and maintenance of the family and of the
household.

5. The fruits of the couple’s separate property are not included in the
co-ownership (Cales vs. RTC, 260 SCRA 221)

6. Property acquired by any of the parties after separation shall be

exclusively owned by the party who acquired it;
7. Neither party can encumber or dispose by acts inter vivos of his or
her share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination of
their cohabitation. However, either spouse may alienate in favor of the
other his or her share in the property co-owned. But no one can donate
or waive any interest in the co-ownership that would constitute an
indirect or direct grant of gratuitous advantage to the other which is void
pursuant to article 87;

8. When only one of the parties to a void marriage is in good faith,

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

In a void marriage, the conjugal home shall equally be co-owned by the

couple and shall be divided equally during liquidation in accordance with
the rules on co-ownership. Articles 102(6) and 129(9) are not applicable
in a marriage declared void.

Art. 148. In cases of cohabitation not falling under Art. 147, only properties acquired by
both of the parties through their actual joint contribution of money, property, or industry
shall be owned by them in common in proportion to their respective contributions. In the
absence of proof, their contribution shall be deemed equal.

In one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the ACP or CPG existing in such valid marriage. If the party
who acted in bad faith is not validly married to another, his or her share shall be
forfeited in the manner provided in Art. 147.

Relationships included under Art. 148:

a. a man and a woman living together as husband and wife, without the benefit of
marriage, but are NOT CAPACITATED to marry; or although capacitated to marry
one another there is no exclusivity of cohabitation;
b. an adulterous relationship
c. a bigamous or polygamous marriage;
d. incestuous void marriages under Art. 37; and
e. void marriages by reason of public policy under Art. 38

The structure of the property regime, which is limited to co-ownership, is as follows:

1. The salaries and wages are separately owned by the parties and if one of the
spouses is validly married, his or her salary is the property of the ACP or CPG of such
legitimate marriage;

2. Property solely acquired by funds of any of the parties belong to

such party;
3. Only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be owned
by them in common in proportion to their respective contributions;

4. The respective shares of the parties over properties owned in

common are presumed to be equal. However, proofs may be shown to
show that their contribution and respective shares are not equal.

5. The rule and presumption mentioned above shall apply to joint

deposits of money and evidences of credit; and

6. If one of the parties is validly married to another, his or her share

in the co-ownership shall accrue to the ACP or CPG existing in such valid
marriage. If the party who acted in bad faith is not validly married to
another, his or her share shall be forfeited in the manner provided in the
last paragraph of Article 147. The foregoing rules on forfeiture shall
likewise apply even if both parties are in bad faith.

VI. The Family

A. The Family as an Institution, Arts. 149-151

The Family

Article 149. The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practices or agreement destructive of the family shall be recognized or
given effect.

What constitutes family relations: (Article 150) Family relations include those:

a. Between husband and wife;

b. Between parents and children
c. Among other ascendants and descendants
d. Among brothers and sisters, whether of the full or half-blood

Disputes between family relations; rule

Art. 151. No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts towards
a compromise have been made, but that the same have failed. If it is shown that
no such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be subject of compromise,
which are:

Not included – suits between husband and his sister-in-law Gayon v.

Gayon, (36 SCRA 104) and collateral relatives who are not brothers and
sisters.

Suit filed by a woman against her sister and the latter’s husband
will not need to comply with Art. 151 involving earnest efforts to
compromise considering the inclusion of the husband who is not within
the “family relations” provided by law. (Hontiveros vs. RTC, June 29,
1999)

DISMISSAL is also based on Rule 16 1(j) That a condition precedent for

filing the claim has not been complied with ( Grounds for Dismissal); lack
of cause of action (premature)

SUITS WHICH DOES NOT ALLOW COMPROMISE:

1. civil status of a person;

2. validity of a marriage or of legal separation
3. any ground for legal separation
4. future support
5. The jurisdiction of courts; and
6. Future legitime (Art. 2035 Civil Code)

Article 151 applies only to “suits” and does not apply to special
proceedings like a petition for the settlement of the estate, guardianship
and custody of children, and habeas corpus. The term “suit” clearly
implies only CIVIL ACTIONS (Manalo v. CA, January 16, 2000)

EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY

Art. 332 of the Revised Penal Code provides that no criminal, but only civil
liability shall result from the commission of the crime of theft, swindling or
malicious mischief committed or caused mutually by the following persons:

1. spouses, ascendants and descendants, or relatives by affinity in the same

line;

2. the widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession of another;

3. Brothers and sisters and brothers-in-law and sisters-in-

law, if living together.

The exemption, however, shall not be applicable to strangers

participating in the commission of the crime.

INTESTATE ESTATE OF MANOLITA GONZALES Vda DE CARUNGCONG V.

Pp and William Sato, Feb. 11, 2010, SC explained the scope of Article
332 with respect to the relationship of the parents-in-law to the child-in-
law should the spouse of the latter die.

Art. 332 of the Revised Penal Code: Death Does Not Terminate
Relationship By Affinity…

FACTS: Mediatrix, as the duly appointed administrator of the estate of her deceased mother,
Manolita, filed a case for estafa through falsification of documents against her
brother-in-law, William Sato, a Japanese national. In essence, the affidavit narrated
that William, who is the husband of her sister Zenaida, who died ahead of their
mother Manolita, made Manolita sign special powers of attorney in behalf of
 William’s daughter, Wendy. Manolita, believing it was merely for paying taxes,
signed the documents unknowingly because she was blind, in the presence of Wendy
and her other grandchildren. These special powers of attorney were then made the
basis for the sale of four parcels of land in Tagaytay, wherein William received the
proceeds thereof amounting to P22,034,000.00. After the preliminary investigation,
the prosecutor filed an Information charging William with estafa through falsification
of public documents.
At the Regional Trial Court, William filed a motion to quash the information. According to
him, his relationship with the person allegedly defrauded, his mother-in-law, was
an exempting circumstance, citing Article 332 of the Revised Penal Code which
states:
ART. 332. Persons exempt from criminal liability. – No criminal, but only civil liability shall
result from the commission of the crime of theft, swindling, or malicious mischief
committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line;
2. The widowed spouse with respect to the property which belonged to the deceased
spouse before the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime. (emphasis supplied)
The trial prosecutor opposed the motion, citing that the death of Zenaida, William’s wife,
extinguished the relationship by affinity between Manolita and William.
The RTC granted William’s motion and quashed the information, adopting the theory
propounded by William that he is exempted from criminal liability due to his
relationship by affinity with Manolita.
On petition for certiorari, the Court of Appeals upheld the RTC decision and dismissed the
petition filed by the estate.
The estate represented by Mediatrix is now before the Supreme Court questioning the rulings
of both the RTC and the Court of Appeals.
The Supreme Court:
“In case a marriage is terminated by the death of one of the spouses, there are conflicting views.
There are some who believe that relationship by affinity is not terminated whether
there are children or not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in other jurisdictions
is that, if the spouses have no living issues or children and one of the spouses dies,
the relationship by affinity is dissolved. It follows the rule that relationship by affinity
ceases with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark.
657, 659, 56 Am Dec. 288). On the other hand, the relationship by affinity is
continued despite the death of one of the spouses where there are living issues or
children of the marriage “in whose veins the blood of the parties are commingled,
since the relationship of affinity was continued through the medium of the issue of
the marriage” (Paddock vs. Wells, 2 Barb. Ch. 331, 333).
The first view (the TERMINATED AFFINITY VIEW) holds that relationship by affinity
terminates with the dissolution of the marriage either by death or divorce which
gave rise to the relationship of affinity between the parties. Under this view, the
relationship by affinity is simply coextensive and coexistent with the marriage
that produced it. Its duration is indispensably and necessarily determined by the
 marriage that created it. Thus, it exists only for so long as the marriage subsists,
such that the death of a spouse ipso facto ends the relationship by affinity of the
surviving spouse to the deceased spouse’s blood relatives.
The first view admits of an exception. The relationship by affinity continues even after the
death of one spouse when there is a surviving issue. The rationale is that the
relationship is preserved because of the living issue of the marriage in whose
veins the blood of both parties is commingled.
The second view (the CONTINUING AFFINITY VIEW) maintains that relationship by
affinity between the surviving spouse and the kindred of the deceased spouse
continues even after the death of the deceased spouse, regardless of whether the
marriage produced children or not. Under this view, the relationship by affinity
endures even after the dissolution of the marriage that produced it as a result of
the death of one of the parties to the said marriage. This view considers that,
where statutes have indicated an intent to benefit step-relatives or in-laws, the
“tie of affinity” between these people and their relatives-by-marriage is not to be
regarded as terminated upon the death of one of the married parties.
After due consideration and evaluation of the relative merits of the two views, we hold that the
second view is more consistent with the language and spirit of Article 332(1) of
the Revised Penal Code.
First, the terminated affinity view is generally applied in cases of jury disqualification and
incest. On the other hand, the continuing affinity view has been applied in the
interpretation of laws that intend to benefit step-relatives or in-laws. Since the
purpose of the absolutory cause in Article 332(1) is meant to be beneficial to
relatives by affinity within the degree covered under the said provision, the
continuing affinity view is more appropriate.
Second, the language of Article 332(1) which speaks of “relatives by affinity in the same
line” is couched in general language. The legislative intent to make no
distinction between the spouse of one’s living child and the surviving spouse of
one’s deceased child (in case of a son-in-law or daughter-in-law with respect to
his or her parents-in-law) can be drawn from Article 332(1) of the Revised Penal
Code without doing violence to its language.
Third, the Constitution declares that the protection and strengthening of the family as a
basic autonomous social institution are policies of the State and that it is the
duty of the State to strengthen the solidarity of the family. Congress has also
affirmed as a State and national policy that courts shall preserve the solidarity of the
family. In this connection, the spirit of Article 332 is to preserve family harmony
and obviate scandal. The view that relationship by affinity is not affected by the
death of one of the parties to the marriage that created it is more in accord with
family solidarity and harmony.
Fourth, the fundamental principle in applying and in interpreting criminal laws is to
resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule
for the accused. This is in consonance with the constitutional guarantee that the
accused shall be presumed innocent unless and until his guilt is established beyond
reasonable doubt.
Intimately related to the in dubio pro reo principle is the rule of lenity. The rule applies when
the court is faced with two possible interpretations of a penal statute, one that is
prejudicial to the accused and another that is favorable to him. The rule calls for
the adoption of an interpretation which is more lenient to the accused.
Lenity becomes all the more appropriate when this case is viewed through the lens of the
basic purpose of Article 332 of the Revised Penal Code to preserve family
harmony by providing an absolutory cause. Since the goal of Article 332(1) is to
benefit the accused, the Court should adopt an application or interpretation that
is more favorable to the accused. In this case, that interpretation is the
continuing affinity view.
Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the
relationship by affinity created between the surviving spouse and the blood
relatives of the deceased spouse survives the death of either party to the
marriage which created the affinity. (The same principle applies to the justifying
circumstance of defense of one’s relatives under Article 11 of the Revised Penal
Code, the mitigating circumstance of immediate vindication of grave offense
committed against one’s relatives under Article 13 of the same Code and the
absolutory cause of relationship in favor of accessories under Article 20 also of the
same Code.)”
“Article 332 provides for an absolutory cause in the crime of theft, estafa
(or swindling) and malicious mischief. It limits the responsibility of the
offender to civil liability and frees him from criminal liability by virtue of
his relationship to the offended party.

In connection with the relatives mentioned in the first paragraph,

it has been held that included in the exemptions are parents-in-law,
stepparents and adopted children. By virtues thereof, no criminal
liability is incurred by the stepfather who commits malicious mischief
against his stepson; by the stepmother who commits theft against her
stepson; by the stepfather who steals something from his stepson; by the
grandson who steals from his grandfather; by the accused who swindles
his sister-in-law living with him; and by the son who steals a ring from
his mother.

Affinity is the relation that one spouse has to the blood relatives of
the other spouse. It is a relationship by marriage or a familial relation
resulting from marriage. X x x

If marriage gives rise to one’s relationship by affinity to the blood

relatives of one’s spouse, does the extinguishment of marriage by the
death of the spouse dissolve the relationship by affinity?

VII. Family Home (Article 152-165)

EXCLUDE: Arts. 157, 161 and 162

7. What constitutes the family home?

Art. 152. it is the dwelling house where the husband and wife or the head of the
family and their family reside, and the land on which it is situated.

8. When is it constituted?

It is deemed constituted on the house and lot from the time it is occupied as a
family residence. (Art. 152)
 The occupancy must be actual and not constructive. Hence, one
cannot claim that he or she has occupied the premises at the time his or
her overseer, maid, houseboy or driver has lived in the said place because
occupancy by the one claiming the house as a family home must be
actual and not constructive. (Manacop vs. CA, 277 SCRA 57)

9. Benefit of a family home

From the time of its constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment. (Art. 153)
Exceptions:

a. For non-payment of taxes

b. For debts incurred prior to the constitution of the family home;
(court judgment is not necessary);

debt is used in its generic sense. Includes money judgment from tort

SC ruled that it is the time when the debt was actually incurred
that is the reckoning point and not the date of judgment sustaining the
liability.

c. For debts secured by mortgages on the premises before or after such

constitution; and
d. For debts due to laborers, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building. (Art. 155)

10. Who can constitute a family home?

Art. 152. The family home, constituted jointly by the husband and the wife, or
by an unmarried head of a family.

11. Who are the beneficiaries of the family home?

a. The husband and wife, or an unmarried person who is the head of a family; and

b. Their parents, ascendants, descendants, brothers and sisters, whether the

relationship be legitimate or illegitimate, who are living in the family home and
who depend upon the head of the family for legal support.

12. Duration of the Family Home

The family home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of ten years or for as long as there
is a minor beneficiary; and the heirs cannot partition the same unless the court
finds compelling reasons therefore. X x x regardless of whoever owns the
property or constituted the family home. (Art. 159)

13. Right of the Creditor not included on Art. 155 – if he can prove that he is a judgment
creditor and he has reasonable grounds to believe that the family home is actually worth
 more than the maximum amount fixed under Art. 157, he may apply to the court that
rendered judgment directing the sale of the property under execution.

Art. 152-153

A family home is deemed constituted on a house and land from the

time it is actually occupied as a family residence. The requirement of
house and land as constitutive of a family home stresses the element of
permanence.

The occupancy must be actual and not constructive. One cannot

claim he or she has occupied the premises at the time his or her
overseer, maid, houseboy or driver has lived in the said place because
occupancy by the one claiming the house as a family home must be
actual and not constructive. In Manacop vs. Court of Appeals, 277 SCRA
57, the Supreme Court, in rejecting the contention of the petitioner that
he should be deemed to have occupied his house because he was merely
staying temporarily in the United States, the person actually residing
therein was his overseer, and his wife stayed in the house whenever she
visited the Philippines, ruled that there was no actual occupancy because
“that which is actual is something real or actually existing, as opposed to
something merely possible.”

There is no need to constitute the family home judicially or extra-

judicially as required in the Civil Code. All residential houses used as a
family home, with or without having been judicially or extra-judicially
constituted as such prior to the effectivity of the Family Code, are
deemed constituted by operation of law as a family home on August 3,
1988. Upon automatic constitution on August 3, 1988, the family home
shall thereafter be prospectively entitled to all benefits provided under
the Family Code. Article 153 cannot be given retroactive effect to shield
the homes of debtors from execution of judgment arising from debts
which became due and demandable prior to August 3, 1988. Thus, a
debtor who, prior to August 3, 1988, never constituted his or her house
judicially or extra-judicially as a family home under the Civil Code and
whose debt matured prior to August 3, 1988, cannot claim that, on
August 3, 1988, his or her house cannot anymore be answerable to
satisfy a judgment because it became a family home and therefore
exempted from execution. To be able to avail of the benefits of a family
home in relation to debts which matured prior to August 3, 1988, it must
be shown that the home was constituted either judicially or extra-
judicially pursuant to the Civil Code.

A family home cannot be constituted by the wife or husband alone.

Constitution must be done jointly by both husband and wife. Unmarried
head of the family, however, can constitute by himself or herself alone.
The occupancy of any of the beneficiaries can likewise constitute a home
as a family home. Hence, even if a married person is legally separated or
de facto separated, a family home can still be constituted if any of his or
her beneficiaries actually occupies the land and the house of such
married person with his or her consent and pursuant to the other
requirements of the Family Code.
 A family home is not affected by the type of property regime of the
spouses or by the fact that the marriage has been nullified.

EXEMPT FROM EXECUTION:

Effective from the time of the constitution of the family home as long as
any of its beneficiaries actually resides therein.

The exemption is not absolute

Art. 154

BENEFICIARIES: Knowing the beneficiaries is important because their

actual occupancy of a home may constitute the same as a family home
provided actual occupancy of the house and lot is with the consent
either of the husband and or the wife who own the house and lot or the
unmarried person who is the head of the family and who likewise owns
the house and lot, even if the said owners do not actually reside therein.

TO BE A BENEFICIARY (other than the husband and the wife or the

unmarried person who is the head of the family) of the family home 3
requisites must concur:

(1) they must be among the relationships enumerated in article 154

of the FC;

“The husband and wife, or an unmarried persons who is the

head of the family and;

Their parents, ascendants, descendants, brothers and sisters, whether

the relationship be legitimate or illegitimate, who are living in the
family home and who depend upon the head of the family for legal
support.”

(2) they live in the family home; and;

(3) they are dependent for legal support upon the head of the
family.

Patricio v. Dario III, November 20, 2006, a grandson was not

considered a beneficiary of a family home owned by his grandparent
because, while the said grandchild was living in the said family home, he
was not dependent for support on the grandparent, who was the head of
the family where the said grandparent lived, but was dependent on his
father.

PATRICIO versus MARCELINO G. DARIO III and

THE HONORABLE COURT OF November 20, 2006
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Resolution of the Court of
Appeals dated December 9, 2005[1] in CA-G.R. CV No. 80680, which
dismissed the complaint for partition filed by petitioner for being
contrary to law and evidence.

On July 5, 1987, Marcelino V. Dario died intestate. He was survived

by his wife, petitioner Perla G. Patricio and their two sons, Marcelino
Marc Dario and private respondent Marcelino G. Dario III. Among
the properties he left was a parcel of land with a residential house and
a pre-school building built thereon situated at 91 Oxford corner
Ermin Garcia Streets in Cubao, Quezon City, as evidenced by
Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the
Quezon City Registry of Deeds, covering an area of seven hundred
fifty five (755) square meters, more or less.[2]

On August 10, 1987, petitioner, Marcelino Marc and private

respondent, extrajudicially settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT
No. R-213963 was issued in the names of petitioner, private
respondent and Marcelino Marc.

Thereafter, petitioner and Marcelino Marc formally advised private

respondent of their intention to partition the subject property and
terminate the co-ownership. Private respondent refused to partition
the property hence petitioner and Marcelino Marc instituted an action
for partition before the Regional Trial Court of Quezon City which
was docketed as Civil Case No. Q-01-44038 and raffled to Branch
78.

On October 3, 2002,[3] the trial court ordered the partition of

the subject property in the following manner: Perla G. Patricio, 4/6;
Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property by public auction
wherein all parties concerned may put up their bids. In case of
failure, the subject property should be distributed accordingly in the
aforestated manner.[4]

Private respondent filed a motion for reconsideration which

was denied by the trial court on August 11, 2003,[5] hence he appealed
before the Court of Appeals, which denied the same on October 19,
2005. However, upon a motion for reconsideration filed by private
respondent on December 9, 2005, the appellate court partially
reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for
partition filed by petitioner and Marcelino Marc for lack of merit. It
held that the family home should continue despite the death of one or
both spouses as long as there is a minor beneficiary thereof. The heirs
could not partition the property unless the court found compelling
reasons to rule otherwise. The appellate court also held that the minor
son of private respondent, who is a grandson of spouses Marcelino V.
Dario and Perla G. Patricio, was a minor beneficiary of the family
home.[6]

Hence, the instant petition on the following issues:

I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005
WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL
COURT DATED 03 OCTOBER 2002 GRANTING THE PARTITION
AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY.

II.
COROLLARILY, THE HONORABLE COURT OF APPEALS
PATENTLY ERRED IN APPLYING ARTICLE 159 IN RELATION TO
ARTICLE 154 OF THE FAMILY CODE ON FAMILY HOME
INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND
498 OF THE NEW CIVIL CODE ON CO-OWNERSHIP.[7]

The sole issue is whether partition of the family home is

proper where one of the co-owners refuse to accede to such partition
on the ground that a minor beneficiary still resides in the said home.

Private respondent claims that the subject property which is

the family home duly constituted by spouses Marcelino and Perla
Dario cannot be partitioned while a minor beneficiary is still living
therein namely, his 12-year-old son, who is the grandson of the
decedent. He argues that as long as the minor is living in the family
home, the same continues as such until the beneficiary becomes of
age. Private respondent insists that even after the expiration of ten
years from the date of death of Marcelino on July 5, 1987, i.e., even
after July 1997, the subject property continues to be considered as the
family home considering that his minor son, Marcelino Lorenzo R.
Dario IV, who is a beneficiary of the said family home, still resides in
the premises.

On the other hand, petitioner alleges that the subject property

remained as a family home of the surviving heirs of the late
Marcelino V. Dario only up to July 5, 1997, which was the 10 th year
from the date of death of the decedent. Petitioner argues that the
brothers Marcelino Marc and private respondent Marcelino III were
already of age at the time of the death of their father, [8] hence there is
no more minor beneficiary to speak of.

The family home is a sacred symbol of family love and is the

repository of cherished memories that last during one’s lifetime.[9] It
is the dwelling house where husband and wife, or by an unmarried
head of a family, reside, including the land on which it is situated.
[10]
It is constituted jointly by the husband and the wife or by an
unmarried head of a family.[11] The family home is deemed
constituted from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its beneficiaries
actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law.[12]

The law explicitly provides that occupancy of the family home either
by the owner thereof or by any of its beneficiaries must be
actual. That which is actual is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive. Actual occupancy, however, need not be
by the owner of the house specifically. Rather, the property may be
occupied by the beneficiaries enumerated in Article 154 of the
Family Code, which may include the in-laws where the family home
is constituted jointly by the husband and wife. But the law definitely
excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.[13]

Article 154 of the Family Code enumerates who are the beneficiaries
of a family home: (1) The husband and wife, or an unmarried person
who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.

To be a beneficiary of the family home, three requisites must concur:

(1) they must be among the relationships enumerated in Art. 154 of
the Family Code; (2) they live in the family home; and (3) they are
dependent for legal support upon the head of the family.

Moreover, Article 159 of the Family Code provides that the family
home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of 10 years or for as long
as there is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the property or constituted
the family home.

Article 159 of the Family Code applies in situations where death

occurs to persons who constituted the family home. Dr. Arturo M.
Tolentino comments on the effect of death of one or both spouses or
the unmarried head of a family on the continuing existence of the
family home:

Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home, the property
will remain as family home for ten years or for as long as there is a
minor beneficiary living in it. If there is no more beneficiary left at the
time of death, we believe the family home will be dissolved or cease,
because there is no more reason for its existence. If there are
beneficiaries who survive living in the family home, it will continue
for ten years, unless at the expiration of the ten years, there is still a
minor beneficiary, in which case the family home continues until that
beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the heirs.
May the heirs who are beneficiaries of the family home keep it intact by
not partitioning the property after the period provided by this
article? We believe that although the heirs will continue in ownership
by not partitioning the property, it will cease to be a family home.
[14]
(Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this
manner:
The family home shall continue to exist despite the death of one or both
spouses or of the unmarried head of the family. Thereafter, the length of
its continued existence is dependent upon whether there is still a
minor-beneficiary residing therein. For as long as there is one
beneficiary even if the head of the family or both spouses are already
dead, the family home will continue to exist (Arts. 153, 159). If there
is no minor-beneficiary, it will subsist until 10 years and within this
period, the heirs cannot partition the same except when there are
compelling reasons which will justify the partition. This rule applies
regardless of whoever owns the property or who constituted the family
home.[15] (Emphasis supplied)

The rule in Article 159 of the Family Code may thus be expressed in
this wise: If there are beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless at the expiration of
10 years, there is still a minor beneficiary, in which case the family
home continues until that beneficiary becomes of age.

It may be deduced from the view of Dr. Tolentino that as a general

rule, the family home may be preserved for a minimum of 10 years
following the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home. After 10
years and a minor beneficiary still lives therein, the family home
shall be preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect the
interests of the minor beneficiary until he reaches legal age and
would now be capable of supporting himself. However, three
requisites must concur before a minor beneficiary is entitled to the
benefits of Art. 159:(1) the relationship enumerated in Art. 154 of the
Family Code; (2) they live in the family home, and (3) they are
dependent for legal support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R.
Dario IV, the minor son of private respondent, can be considered as a
beneficiary under Article 154 of the Family Code.

As to the first requisite, the beneficiaries of the family home

are: (1) The husband and wife, or an unmarried person who is the
head of a family; and (2) Their parents, ascendants, descendants,
brothers and sisters, whether the relationship be legitimate or
illegitimate. The term descendants contemplates all descendants of
the person or persons who constituted the family home without
distinction; hence, it must necessarily include the grandchildren and
great grandchildren of the spouses who constitute a family
home. Ubi lex non distinguit nec nos distinguire debemos. Where the
law does not distinguish, we should not distinguish. Thus, private
respondents minor son, who is also the grandchild of deceased
Marcelino V. Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must be actually

living in the family home to avail of the benefits derived from Art.
159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of
private respondent and grandson of the decedent Marcelino V. Dario,
has been living in the family home since 1994, or within 10 years
from the death of the decedent, hence, he satisfies the second
requisite.

However, as to the third requisite, Marcelino Lorenzo R. Dario IV

cannot demand support from his paternal grandmother if he has
parents who are capable of supporting him. The liability for legal
support falls primarily on Marcelino Lorenzo R. Dario IVs parents,
especially his father, herein private respondent who is the head of his
immediate family. The law first imposes the obligation of legal
support upon the shoulders of the parents, especially the father, and
only in their default is the obligation imposed on the grandparents.

Marcelino Lorenzo R. Dario IV is dependent on legal support not

from his grandmother, but from his father. Thus, despite residing in
the family home and his being a descendant of Marcelino V. Dario,
Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary
contemplated under Article 154 because he did not fulfill the third
requisite of being dependent on his grandmother for legal support. It
is his father whom he is dependent on legal support, and who must
now establish his own family home separate and distinct from that of
his parents, being of legal age.

Legal support, also known as family support, is that which is

provided by law, comprising everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation,
in keeping with the financial capacity of the family.[16] Legal support
has the following characteristics: (1) It is personal, based on family
ties which bind the obligor and the obligee; (2) It is intransmissible;
(3) It cannot be renounced; (4) It cannot be compromised; (5) It is
free from attachment or execution; (6) It is reciprocal; (7) It is
variable in amount.[17]

Professor Pineda is of the view that grandchildren cannot demand

support directly from their grandparents if they have parents
(ascendants of nearest degree) who are capable of supporting
them. This is so because we have to follow the order of support under
Art. 199.[18] We agree with this view.

The reasons behind Art. 199 as explained by Pineda and

Tolentino: the closer the relationship of the relatives, the stronger the
tie that binds them. Thus, the obligation to support under Art. 199
which outlines the order of liability for support is imposed first upon
the shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on.

There is no showing that private respondent is without means

to support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to voluntarily
provide for her grandsons legal support. On the contrary, herein
petitioner filed for the partition of the property which shows an
intention to dissolve the family home, since there is no more reason
for its existence after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the
subject property.

The law does not encourage co-ownerships among individuals as

oftentimes it results in inequitable situations such as in the instant
case. Co-owners should be afforded every available opportunity to
divide their co-owned property to prevent these situations from
arising.
As we ruled in Santos v. Santos,[19] no co-owner ought to be
compelled to stay in a co-ownership indefinitely, and may insist on
partition on the common property at any time. An action to demand
partition is imprescriptible or cannot be barred by laches. Each co-
owner may demand at any time the partition of the common property.
[20]

Since the parties were unable to agree on a partition, the

court a quo should have ordered a partition by commissioners
pursuant to Section 3, Rule 69 of the Rules of Court. Not more than
 three competent and disinterested persons should be appointed as
commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of
the property as the court shall direct.

When it is made to appear to the commissioners that the real estate,

or a portion thereof, cannot be divided without great prejudice to the
interest of the parties, the court may order it assigned to one of the
parties willing to take the same, provided he pays to the other parties
such sum or sums of money as the commissioners deem equitable,
unless one of the parties interested ask that the property be sold
instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly.[21]

The partition of the subject property should be made in accordance

with the rule embodied in Art. 996 of the Civil Code. [22] Under the
law of intestate succession, if the widow and legitimate children
survive, the widow has the same share as that of each of the
children. However, since only one-half of the conjugal property
which is owned by the decedent is to be allocated to the legal and
compulsory heirs (the other half to be given exclusively to the
surviving spouse as her conjugal share of the property), the widow
will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the law
on intestate succession are: (1) Perla Generosa Dario, 4/6; (2)
Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,[23] we held that an action for
partition is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the
properties involved. If the court after trial should find the existence
of co-ownership among the parties, the court may and should order
the partition of the properties in the same action

Article 154 “may include the in-laws where the family home is
constituted jointly by the husband and the wife. Excludes maids and
overseers.”

ART. 156. Must be part of the properties of the absolute community or

the conjugal partnership or of the exclusive properties of either spouse
with the latter’s consent.

An unmarried head of a family on his or her own property.

An apartment unit or a house being merely rented cannot be constituted
a family home.

A house erected by a person on the property of another is not a family

home. Nevertheless, property that is the subject of a conditional sale on
installment where ownership is reserved by the vendor only to guarantee
payment of the purchase price may be constituted as a family home.

ART. 157. VALUE OF THE FAMILY HOME: Actual occupancy is the

operative act of constitution. The family home at the time of the
constitution must be in the amount of three hundred thousand pesos in
urban areas and two hundred thousand pesos in rural areas, or such
amount as may hereafter be fixed by law. By present standards, the
amount indicated are low. Be that as it may, the import of the law seems
to be that, if at the time of the constitution, the home was more than
the value fixed by the law, such home is not a family home; therefore, it
is not exempted from execution, forced sale or attachment.

The second paragraph of Article 157 provides that “ in any event, if

the value of the currency changes after the adoption of this code, the
value most favorable for the constitution of a family home shall be the
basis of the evaluation.” Thus, in case a house worth P300,000 in an
urban area was not legally constituted as a family home prior to the
effectivity of the Family Code, it becomes automatically a family home
upon the effectivity of the Family Code on August 3, 1988 if the actual
value is still in the amount of P300,000 on August 3, 1988. If the house
were worth P400,000 prior to the effectivity of the Family Code and if at
the time of or after the effectivity of the Family Code, the actual value
has already increased to P500,000, it will not be considered a family
home because the value of P400,000 at the time of its constitution, not
the P500,000 which is the value after the effectivity of the Family Code,
shall be the basis of the evaluation considering that the former amount is
most favorable for the constitution of a family home. If, however, a
Quezon City – house occupied in 1987 was worth P500,000 in the said
year, and the value increased to P600,000 at the time of the effectivity
of the Family Code in 1988, the said house can never be a family home.
But if the value of the same house is worth P300,000 on August 3, 1988,
it can be considered a family home considering that P300,000 is the
value most favorable for the constitution of a family home.

INCREASE IN VALUE OF THE FAMILY HOME – the values provided in

Article 157 refer only to the value at the time of the constitution made
after the effectivity of the FC. Hence, if after the constitution, the value
of the house increased due to improvements or renovations, to an
amount more than that fixed by the law at the time of the constitution,
such family home WILL REMAIN A FAMILY HOME – but it may now be
attached by a judgment creditor under art. 160 if the increased in value
after voluntary improvement is more than that fixed by alw for the
constitution of a family home.

ART. 158. DISPOSITION OF FAMILY HOME

It cannot be sold, alienated, donated assigned or encumbered without the
written consent of the following : 1) person constituting the same; 2) the
latter’s spouse; and 3) a majority of the beneficiaries of legal age.

For the family home to be leased, the written consent of all the people
mentioned must be obtained considering that a lease is an encumbrance.

ART. 160. JUDGMENT CREDITOR.

There is a need under Article 160 for a court decision before a judgment
creditor can avail of the privilege under Article 160 of the Family Code

ART. 161-162.

Art. 161. For purposes of availing of the benefits of a family home as

provided for in this chapter, a person may constitute, or be the
beneficiary of, only one family home.

Art. 162. The provisions in this Chapter shall also govern existing
family residences insofar as said provisions are applicable.

APPLICATION OF ARTICLE 162

Modequillo vs. Breva, 185 SCRA 766

The contention of the petitioner that it should be considered a

family home from the time it was occupied by petitioner and his family
in 1969 is not well-taken. Under Article 162 of the Family Code, it is
provided that the “provision of this Chapter shall also govern existing
family residences insofar as said provisions are applicable”. It does not
mean that Article 152 and153 of said Code have a retroactive effect such
that all existing family residences are deemed to have been constituted
as family homes at the time of the occupation prior to the effectivity of
the Family Code and are exempt from execution for the payment of
obligations incurred before the effectivity of the Family Code are
considered family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter Title V have a retroactive effect.

JOSE MODEQUILLO, petitioner, vs.

HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER
ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF
FERNANDO PLATA respondents.

GANCAYCO, J.:

The issue in this petition is whether or not a final judgment of the Court of
Appeals in an action for damages may be satisfied by way of execution of
a family home constituted under the Family Code.
The facts are undisputed.

On January 29, 1988, a judgment was rendered by the Court of Appeals in

CA-G.R. CV No. 09218 entitled"Francisco Salinas, et al. vs. Jose
Modequillo, et al.," the dispositive part of which read as follows:

WHEREFORE, the decision under appeal should be, as it is

hereby, reversed and set aside. Judgment is hereby rendered
finding the defendants-appellees Jose Modequillo and Benito
Malubay jointly and severally liable to plaintiffs-appellants as
hereinbelow set forth. Accordingly, defendants-appellees are
ordered to pay jointly and severally to:

1. Plaintiffs-appellants, the Salinas spouses:

a. the amount of P30,000.00 by way of compensation for the

death of their son Audie Salinas;

b. P10,000.00 for the loss of earnings by reason of the death

of said Audie Salinas;

c. the sum of P5,000.00 as burial expenses of Audie Salinas;

and

d. the sum of P5,000.00 by way of moral damages.

2. Plaintiffs-appellants Culan-Culan:

a. the sum of P5,000.00 for hospitalization expenses of Renato

Culan- Culan; and

b. P5,000.00 for moral damages.

3. Both plaintiff-appellants Salinas and Culan-Culan,

P7,000.00 for attorney's fees and litigation expenses.
1
All counterclaims and other claims are hereby dismissed.

The said judgment having become final and executory, a writ of execution
was issued by the Regional Trial Court of Davao City to satisfy the said
judgment on the goods and chattels of the defendants Jose Modequillo
and Benito Malubay at Malalag, Davao del Sur.

On July 7, 1988, the sheriff levied on a parcel of residential land located at

Poblacion Malalag, Davao del Sur containing an area of 600 square
meters with a market value of P34,550.00 and assessed value of
P7,570.00 per Tax Declaration No. 87008-01359, registered in the name of
Jose Modequillo in the office of the Provincial Assessor of Davao del Sur;
and a parcel of agricultural land located at Dalagbong Bulacan, Malalag,
Davao del Sur containing an area of 3 hectares with a market value of
P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-
08-01848 registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur. 2

A motion to quash and/or to set aside levy of execution was filed by

defendant Jose Modequillo alleging therein that the residential land
located at Poblacion Malalag is where the family home is built since 1969
prior to the commencement of this case and as such is exempt from
execution, forced sale or attachment under Articles 152 and 153 of the
Family Code except for liabilities mentioned in Article 155 thereof, and that
the judgment debt sought to be enforced against the family home of
defendant is not one of those enumerated under Article 155 of the Family
Code. As to the agricultural land although it is declared in the name of
defendant it is alleged to be still part of the public land and the transfer in
his favor by the original possessor and applicant who was a member of a
cultural minority was not approved by the proper government agency. An
opposition thereto was filed by the plaintiffs.

In an order dated August 26, 1988, the trial court denied the motion. A
motion for reconsideration thereof was filed by defendant and this was
denied for lack of merit on September 2, 1988.

Hence, the herein petition for review on certiorari wherein it is alleged that
the trial court erred and acted in excess of its jurisdiction in denying
petitioner's motion to quash and/or to set aside levy on the properties and
in denying petitioner' motion for reconsideration of the order dated August
26, 1988. Petitioner contends that only a question of law is involved in this
petition. He asserts that the residential house and lot was first occupied as
his family residence in 1969 and was duly constituted as a family home
under the Family Code which took effect on August 4, 1988. Thus,
petitioner argues that the said residential house and lot is exempt from
payment of the obligation enumerated in Article 155 of the Family Code;
and that the decision in this case pertaining to damages arising from a
vehicular accident took place on March 16, 1976 and which became final
in 1988 is not one of those instances enumerated under Article 155 of the
Family Code when the family home may be levied upon and sold on
execution. It is further alleged that the trial court erred in holding that the
said house and lot became a family home only on August 4, 1988 when
the Family Code became effective, and that the Family Code cannot be
interpreted in such a way that all family residences are deemed to have
been constituted as family homes at the time of their occupancy prior to
the effectivity of the said Code and that they are exempt from execution for
the payment of obligations incurred before the effectivity of said Code; and
that it also erred when it declared that Article 162 of the Family Code does
not state that the provisions of Chapter 2, Title V have a retroactive effect.

Articles 152 and 153 of the Family Code provide as follows:

Art. 152. The family home, constituted jointly by the husband

and the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the land
on which it is situated.

Art. 153. The family home is deemed constituted on a house

and lot from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.

Under the Family Code, a family home is deemed constituted on a house

and lot from the time it is occupied as a family residence. There is no need
to constitute the same judicially or extrajudicially as required in the Civil
Code. If the family actually resides in the premises, it is, therefore, a family
home as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit to
the spouses or head of the family who owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution,

forced sale or attachment except:

(1) For non-payment of taxes;

(2) For debts incurred prior to the constitution of the family

home;

(3) For debts secured by mortgages on the premises before or

after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders,

material men and others who have rendered service or
furnished material for the construction of the building.

The exemption provided as aforestated is effective from the time of the

constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon
the effectivity of the Family Code on August 3, 1988 not August 4, one
year after its publication in the Manila Chronicle on August 4, 1987 (1988
being a leap year).

The contention of petitioner that it should be considered a family home

from the time it was occupied by petitioner and his family in 1969 is not
well- taken. Under Article 162 of the Family Code, it is provided that "the
provisions of this Chapter shall also govern existing family residences
insofar as said provisions are applicable." It does not mean that Articles
152 and 153 of said Code have a retroactive effect such that all existing
family residences are deemed to have been constituted as family homes
at the time of their occupation prior to the effectivity of the Family Code
and are exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code. Article 162 simply means that all
existing family residences at the time of the effectivity of the Family Code,
are considered family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.

Is the family home of petitioner exempt from execution of the money

judgment aforecited No. The debt or liability which was the basis of the
judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both preceded the effectivity
of the Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code.

As to the agricultural land subject of the execution, the trial court correctly
ruled that the levy to be made by the sheriff shall be on whatever rights the
petitioner may have on the land.

WHEREFORE, the petition is DISMISSED for lack of merit. No

pronouncement as to costs.

SO ORDERED.

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L

MERCANTILE, INC., respondents. [G.R. No. 97898. August 11, 1997)
PANGANIBAN, J.:
 May a writ of execution of a final and executory judgment
issued before the effectivity of the Family Code be executed on a house and
lot constituted as a family home under the provision of said Code?
Statement of the Case
This is the principal question posed by petitioner in assailing the Decision
of Respondent Court of Appeals in CA-G.R. SP No. 18906 promulgated on
February 21, 1990 and its Resolution promulgated on March 21, 1991,
affirming the orders issued by the trial court commanding the issuance of
various writs of execution to enforce the latters decision in Civil Case No.
53271.

The Facts

Petitioner Florante F. Manacop and his wife Eulaceli purchased on March

10, 1972 a 446-square-meter residential lot with a bungalow, in consideration
of P75,000.00. The property, located in Commonwealth Village,
Commonwealth Avenue, Quezon City, is covered by Transfer Certificate of
Title No. 174180.
On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a
complaint against petitioner and F.F. Manacop Construction Co., Inc. before
the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness
of P3,359,218.45. Instead of filing an answer, petitioner and his company
entered into a compromise agreement with private respondent, the salient
portion of which provides:

c. That defendants will undertake to pay the amount of P2,000,000.00 as and when
their means permit, but expeditiously as possible as their collectibles will be
collected. (sic)

On April 20, 1986, the trial court rendered judgment approving the
aforementioned compromise agreement. It enjoined the parties to comply
with the agreement in good faith. On July 15, 1986, private respondent filed a
motion for execution which the lower court granted on September 23,
1986. However, execution of the judgment was delayed. Eventually, the
sheriff levied on several vehicles and other personal properties of
petitioner. In partial satisfaction of the judgment debt, these chattels were
sold at public auction for which certificates of sale were correspondingly
issued by the sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash
the alias writs of execution and to stop the sheriff from continuing to enforce
them on the ground that the judgment was not yet executory. They alleged
that the compromise agreement had not yet matured as there was no
showing that they had the means to pay the indebtedness or that their
receivables had in fact been collected. They buttressed their motion with
supplements and other pleadings.
 On August 11, 1989, private respondent opposed the motion on the
following grounds: (a) it was too late to question the September 23, 1986
Order considering that more than two years had elapsed; (b) the second alias
writ of execution had been partially implemented; and (c) petitioner and his
company were in bad faith in refusing to pay their indebtedness
notwithstanding that from February 1984 to January 5, 1989, they had
collected the total amount of P41,664,895.56. On September 21, 1989,
private respondent filed an opposition to petitioner and his companys
addendum to the motion to quash the writ of execution. It alleged that the
property covered by TCT No. 174180 could not be considered a family home
on the grounds that petitioner was already living abroad and that the property,
having been acquired in 1972, should have been judicially constituted as a
family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the
writ of execution and the prayers in the subsequent pleadings filed by
petitioner and his company. Finding that petitioner and his company had not
paid their indebtedness even though they collected receivables amounting
to P57,224,319.75, the lower court held that the case had become final and
executory. It also ruled that petitioners residence was not exempt from
execution as it was not duly constituted as a family home, pursuant to the
Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a
petition for certiorari assailing the lower courts Orders of September 23, 1986
and September 26, 1989. On February 21, 1990, Respondent Court of
Appeals rendered its now questioned Decision dismissing the petition
for certiorari. The appellate court quoted with approval the findings of the
lower court that: (a) the judgment based on the compromise agreement had
become final and executory, stressing that petitioner and his company had
collected the total amount of P57,224,319.75 but still failed to pay their
indebtedness and (b) there was no showing that petitioners residence had
been duly constituted as a family home to exempt it from execution. On the
second finding, the Court of Appeals added that:

x x x. We agree with the respondent judge that there is no showing in evidence that
petitioner Maacops residence under TCT 174180 has been duly constituted as a
family home in accordance with law. For one thing, it is the clear implication of
Article 153 that the family home continues to be so deemed constituted so long as
any of its beneficiaries enumerated in Article 154 actually resides therein.
Conversely, it ceases to continue as such family home if none of its beneficiaries
actually occupies it. There is no showing in evidence that any of its beneficiaries is
actually residing therein. On the other hand, the unrefuted assertion of private
respondent is that petitioner Florante Maacop had already left the country and is now,
together with all the members of his family, living in West Covina, Los Angeles,
California, U.S.A.
 Petitioner and his company filed a motion for reconsideration of this
Decision on the ground that the property covered by TCT No. 174180 was
exempt from execution. On March 21, 1991, the Court of Appeals rendered
the challenged Resolution denying the motion. It anchored its ruling on
Modequillo v. Breva, which held that all existing family residences at the time
[4]

of the effectivity of the Family Code are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the
Family Code.
Applying the foregoing pronouncements to this case, the Court of Appeals
explained:

The record of the present case shows that petitioners incurred the debt
of P3,468,000.00 from private respondent corporation on February 18, 1982 (Annex
`A, Petition). The judgment based upon the compromise agreement was rendered by
the court on April 18, 1986 (Annex `C, Ibid). Paraphrasing the aforecited Modequillo
case, both the debt and the judgment preceded the effectivity of the Family Code on
August 3, 1988. Verily, the case at bar does not fall under the exemptions from
execution provided under Article 155 of the Family Code.

Undeterred, petitioner filed the instant petition for review

on certiorari arguing that the Court of Appeals misapplied Modequillo. He
contends that there was no need for him to constitute his house and lot as a
family home for it to be treated as such since he was and still is a resident of
the same property from the time it was levied upon and up to this moment.

The Issue

As stated in the opening sentence of this Decision, the issue in this case
boils down to whether a final and executory decision promulgated and a writ
of execution issued before the effectivity of the Family Code can be executed
on a family home constituted under the provisions of the said Code.

The Courts Ruling

We answer the question in the affirmative. The Court of Appeals

committed no reversible error. On the contrary, its Decision and Resolution
are supported by law and applicable jurisprudence.

No Novel Issue

At the outset, the Court notes that the issue submitted for resolution in the
instant case is not entirely new. In Manacop v. Court of Appeals, petitioner
[5]

himself as a party therein raised a similar question of whether this very same
property was exempt from preliminary attachment for the same excuse that it
was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a
sum of money. As an incident in the proceedings before it, the trial court
issued a writ of attachment on the said house and lot. In upholding the trial
court (and the Court of Appeals) in that case, we ruled that petitioner incurred
the indebtedness in 1987 or prior to the effectivity of the Family Code on
August 3, 1988. Hence, petitioners family home was not exempt from
attachment by sheer force of exclusion embodied in paragraph 2, Article 155
of the Family Code cited in Modequillo, where the Court categorically ruled:

Under the Family Code, a family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. There is no need to constitute the
same judicially or extrajudicially as required in the Civil Code. If the family actually
resides in the premises, it is, therefore, a family home as contemplated by law. Thus,
the creditors should take the necessary precautions to protect their interest before
extending credit to the spouses or head of the family who owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced sale or attachment
except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution;
and

(4) For debts due to laborers, mechanics, architects, builders, materialmen

and others who have rendered service or furnished material for the
construction of the building.

The exemption provided as aforestated is effective from the time of the constitution
of the family home as such, and lasts so long as any of its beneficiaries actually
resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a
family home whether judicially or extrajudicially under the Civil Code. It became a
family home by operation of law only under Article 153 of the Family Code. It is
deemed constituted as a family home upon the effectivity of the Family Code on
August 3, 1988 not August 4, one year after its publication in the Manila Chronicle
on August 4, 1987 (1988 being a leap year).

The contention of petitioner that it should be considered a family home from the time
it was occupied by petitioner and his family in 1960 is not well-taken. Under Article
162 of the Family Code, it is provided that `the provisions of this Chapter shall also
govern existing family residences insofar as said provisions are applicable. It does
not mean that Articles 152 and 153 of said Code have a retroactive effect such that all
existing family residences are deemed to have been constituted as family homes at
the time of their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred before the effectivity
of the Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family
Code. Article 162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect.

Is the family home of petitioner exempt from execution of the money judgment
aforecited? No. The debt or liability which was the basis of the judgment arose or
was incurred at the time of the vehicular accident on March 16, 1976 and the money
judgment arising therefrom was rendered by the appellate court on January 29, 1988.
Both preceded the effectivity of the Family Code on August 3, 1988. This case does
not fall under the exemptions from execution provided in the Family Code.
(Underscoring supplied.)
[6]6

Article 153 of the Family Code Has No Retroactive Effect

Petitioner contends that the trial court erred in holding that his residence
was not exempt from execution in view of his failure to show that the property
involved has been duly constituted as a family home in accordance with
law. He asserts that the Family Code and Modequillo require simply the
occupancy of the property by the petitioner, without need for its judicial or
extrajudicial constitution as a family home. [7]

Petitioner is only partly correct. True, under the Family Code which took
effect on August 3, 1988, the subject property became his family home
[8]

under the simplified process embodied in Article 153 of said

Code. However, Modequillo explicitly ruled that said provision of the Family
Code does not have retroactive effect. In other words, prior to August 3,
1988, the procedure mandated by the Civil Code had to be followed for a
[9]

family home to be constituted as such. There being absolutely no proof that

the subject property was judicially or extrajudicially constituted as a family
home, it follows that the laws protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed
orders of the trial court issued prior to August 3, 1988, the petitioner cannot
be shielded by the benevolent provisions of the Family Code.

List of Beneficiary-Occupants Restricted to Those Enumerated in the

Code

In view of the foregoing discussion, there is no reason to address the

other arguments of petitioner other than to correct his misconception of the
law. Petitioner contends that he should be deemed residing in the family
home because his stay in the United States is merely temporary. He asserts
that the person staying in the house is his overseer and that whenever his
wife visited this country, she stayed in the family home. This contention lacks
merit.
The law explicitly provides that occupancy of the family home either by
the owner thereof or by any of its beneficiaries must be actual. That which is
actual is something real, or actually existing, as opposed to something
merely possible, or to something which is presumptive or constructive.
Actual occupancy, however, need not be by the owner of the house
[10]

specifically. Rather, the property may be occupied by the beneficiaries

enumerated by Article 154 of the Family Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the family;
and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home
and who depend upon the head of the family for lead support.

This enumeration may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law definitely excludes
[11]

maids and overseers. They are not the beneficiaries contemplated by the
Code. Consequently, occupancy of a family home by an overseer like
Carmencita V. Abat in this case is insufficient compliance with the law.
[12]

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This
Decision is immediately executory. Double costs against petitioner.
SO ORDERED.

Olivia-De Mesa v. Acero Jr. January 16, 2012 – the rules for purposes of exemption
was summarized by the SC:

1. First, family residences constructed before the effectivity of the Family Code or
before August 3, 1988 must be constituted as a family home either judicially or extrajudicially
in accordance with the provisions of the Civil Code in order to be exempt from execution;

2. Second, family residences constructed after the effectivity of the FC on Aug. 3, 1988 are
automatically deemed to be family homes and thus exempt from execution from the time it was
constituted and last as long as any of the beneficiaries actually resides therein;

3. Third, family residences which are not judicially or extrajudicially constituted as a

family home prior to the effectivity of the FC, but were existing thereafter, are considered as
family homes by operation of law and are prospectively entitled to the benefits accorded to a
family home under the Family Code.
WAIVER, LACHES, ESTOPPEL; It is a personal right which can be claimed only by the
judgment debtor, and not by the sheriff, and therefore generally the fact that it is a family
home and that is under the exemption must be claimed and proved before the sale at the
public auction. The family home’s exemption from execution must be set up and proved to
the Sheriff before the sale of the property at public auction.

The failure to do so would estop the party from later claiming the exemption. The exemption
can be waived or be barred by laches by the failure to set up and prove the status of the property
as a family home for a reasonable time thereafter.

Although the Rules of Court does not prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-settled that the right of exemption is a personal
privilege granted to the judgment debtor and as such, it must be claimed not by the
sheriff, but by the debtor himself at the time of the levy or within a reasonable period
thereafter;

“In the absence of express provision it has variously held that claim (for exemption)
must be made at the time of the levy if the debtor is present, that it must be made within a
reasonable time, or promptly, or before the creditor has taken any step involving further
costs, or before advertisement of sale, or at any time before sale, or within a reasonable
time before the sale, or before the sale has commenced, but as to the last there is contrary
authority.”

In the light of the facts above summarized, it is self-evident that appellants did not assert
their claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of
the law on exemption, does not mean a time after the expiration of the one-year period provided
for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property
sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat
the very purpose of execution—to put an end to litigation. We said before, and We repeat it now,
that litigation must end and terminate sometime and somewhere, and it is essential to an
effective administration of justice that, once a judgment has become final, the winning party be
not, through a mere subterfuge, deprived of the fruits of the verdict. We now rule that claims for
exemption from execution of properties under Section 12 of Rule 39 of the Rules of Court must
be presented before its sale on execution by the sheriff.26 (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals, this Court 27

stated that:

Under the cited provision, a family home is deemed constituted on a house and lot from
the time it is occupied as a family residence; there is no need to constitute the same judicially or
extrajudicially.

The settled rule is that the right to exemption or forced sale under Article 153 of
the Family Code is a personal privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor himself before the sale of the
property at public auction. It is not sufficient that the person claiming exemption merely
alleges that such property is a family home. This claim for exemption must be set up and
proved to the Sheriff. x x x.28 (emphasis supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject
property before the sale thereof at public auction, the petitioners now are barred from raising the
same. Failure to do so estop them from later claiming the said exemption.
 Indeed, the family home is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime. It is likewise without dispute that the family
home, from the time of its constitution and so long as any of its beneficiaries actually resides
therein, is generally exempt from execution, forced sale or attachment.

The family home is a real right, which is gratuitous, inalienable and free from
attachment. It cannot be seized by creditors except in certain special cases. However, this right
can be waived or be barred by laches by the failure to set up and prove the status of the property
as a family home at the time of the levy or a reasonable time thereafter.

In this case, it is undisputed that the petitioners allowed a considerable time to lapse
before claiming that the subject property is a family home and its exemption from execution
and forced sale under the Family Code. The petitioners allowed the subject property to be levied
upon and the public sale to proceed. One (1) year lapsed from the time the subject property was
sold until a Final Deed of Sale was issued to Claudio and, later, Araceli’s Torrens title was
cancelled and a new one issued under Claudio’s name, still, the petitioner remained silent. In
fact, it was only after the respondents filed a complaint for unlawful detainer, or approximately
four (4) years from the time of the auction sale, that the petitioners claimed that the subject
property is a family home, thus, exempt from execution.

For all intents and purposes, the petitioners’ negligence or omission to assert their right
within a reasonable time gives rise to the presumption that they have abandoned, waived or
declined to assert it. Since the exemption under Article 153 of the Family Code is a personal
right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed
period and it is not the sheriff’s duty to presume or raise the status of the subject property as a
family home.

The petitioners’ negligence or omission renders their present assertion doubtful; it

appears that it is a mere afterthought and artifice that cannot be countenanced without doing the
respondents injustice and depriving the fruits of the judgment award in their favor. Simple
justice and fairness and equitable considerations demand that Claudio’s title to the property be
respected. Equity dictates that the petitioners are made to suffer the consequences of their
unexplained negligence.

WHEREFORE, in consideration of the foregoing disquisitions, the petition

is DENIED. The assailed Decision dated June 6, 2008 of the Court of Appeals in CA-G.R. CV
No. 79391, which affirmed the Decision of the Regional Trial Court of Malolos, Bulacan,
Branch 22, in Civil Case No. 1058-M-99 and dismissed the complaint for declaration of nullity
of TCT No. 221755 (M) and other documents, and the October 23, 2008 Resolution denying
reconsideration, are AFFIRMED.

EXPLAINING ART. 160. JUDGMENT CREDITOR; EXECUTION OF FAMILY

HOME; EXCEPTION TO THE EXEMPTION UNDER ART. 157

Reconsideration.

Antecedent Facts

Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Paterno
Ferdinand Bell III, and Paterno Benerano IV (the Bell siblings) are the unmarried
children of respondent Spouses Paterno C. Bell and Rogelia Calingasan-Bell (Spouses
Bell). In 1995, the Bell siblings lodged a Complaint for annulment of documents,
reconveyance, quieting of title and damages against petitioners Enrico S. Eulogio and
Natividad Eulogio (the Eulogios). It was docketed as Civil Case No. 4581 at the
Regional Trial Court (RTC) of Batangas City, Branch 84. The Complaint sought the
annulment of the contract of sale executed by Spouses Bell over their 329-square-
meter residential house and lot, as well as the cancellation of the title obtained by
petitioners by virtue of the Deed.

The RTC granted respondents' prayers, but declared Spouses Bell liable to petitioners
in the amount of PI million plus 12% interest per annum. The dispositive portion of the
Decision dated 15 July 1998 reads as follows:

WHEREFORE, prescinding from all the foregoing, the Court hereby declares:

1. That the sale of the subject house and lot under Deed of Sale marked as Exhibit "F"
is only an equitable mortgage in favor of the defendants Enrico Eulogio and Natividad
Eulogio. However, the mortgage cannot bind the property in question for being violative
of Chapter 2, Title 4 of the Family Code, its encumbrance not having been consented
to in writing by a majority of the beneficiaries who are the plaintiffs herein;

2. The said equitable mortgage is deemed to be an unsecured mortgage [sic] for which
the Spouses Paterno C. Bell, Sr. and Rogelia Calingasan Bell as mortgagors are liable
to the defendants-spouses Enrico Eulogio and Natividad Eulogio in the amount of
P1,000,000 plus interest of 12% per annum. However, under the Fourth Party
Complaint Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell have the right of
reimbursement from fourth party defendants Nicolas Moraña and Julieta Moraña for
whom their loan of P1,000,000 was secured by Sps. Paterno C. Bell, Sr. and Rogelia
Calingasan Bell. Accordingly, the fourth party defendants Nicolas Moraña and Julieta
Moraña are hereby ordered to reimburse Paterno C. Bell, Sr. and Rogelia Calingasan
Bell the loan of P1,000,000 plus interest of 12% per annum to be paid by the latter to
defendants Enrico and Natividad Eulogio;

3. The house and lot in question is free from any and all encumbrances by virtue of
said equitable mortgage or the purported sale; and

4. The Deed of Sale (Exhibit "F") is null and void for being contrary to law and public
policy.

Accordingly, (1) the Register of Deeds of Batangas City is hereby ordered to cancel
Transfer Certificate of Title No. T-131472 in the name of defendants Enrico S. Eulogio
and Natividad Eulogio and to reconstitute (sic) Transfer Certificate of Title No. RT-680-
(5997) as "family home" of the plaintiffs Florence Felicia Victoria C. Bell, Paterno
William C. Bell Jr., Paterno Ferdinand C. Bell III, Paterno Benerano C. Bell IV and
fourth party plaintiffs Paterno C. Bell Sr. and Rogelia Calingasan Bell; or in the
alternative to issue a new Transfer Certificate of Title under the same tenor;

2. The City Assessor of Batangas City is hereby directed to issue a tax declaration
covering the said subject property as family home for the said plaintiffs and fourth party
plaintiffs Paterno C. Bell and Rogelia Calingasan Bell; and

3. Defendants Enrico Eulogio and Natividad Eulogio are ordered to pay the plaintiffs
attorney's fees and litigation expenses of P35,000.00, as the plaintiffs have been
compelled to litigate to protect their property rights, and costs.[3]
Both petitioners and respondents appealed to the CA, but the trial court's Decision was
affirmed en toto. Spouses Bell later brought the case to this Court to question their
liability to petitioners in the amount of P1 million plus interest. The Court, however,
dismissed their Petition for failure to show any reversible error committed by the CA.[4]
Thereafter, entry of judgment was made.[5]

On 9 June 2004 the RTC issued a Writ of Execution, as a result of which respondents'
property covered by the newly reconstituted Transfer Certificate of Title (TCT) No.
54208 [formerly RT-680 (5997)] was levied on execution. Upon motion by respondents,
the trial court, on 31 August 2004, ordered the lifting of the writ of execution on the
ground that the property was a family home.[6]

Petitioners filed a Motion for Reconsideration of the lifting of the writ of execution.
Invoking Article 160 of the Family Code, they posited that the current market value of
the property exceeded the statutory limit of P300,000 considering that it was located in
a commercial area, and that Spouses Bell had even sold it to them for P1 million.[7]
The RTC, on 13 October 2004, set the case for hearing to determine the present value
of the family home of respondents. It also appointed a Board of Appraisers to conduct
a study on the prevailing market value of their house and lot.[8]

Respondents sought reconsideration of the above directives and asked the RTC to cite
petitioners for contempt because of forum-shopping.[9] They argued that petitioners'
bid to determine the present value of the subject property was just a ploy to re-litigate
an issue that had long been settled with finality.

The RTC, however, denied the Motion for Reconsideration[10] of respondents and
directed the commissioners to canvass prospective buyers of their house and lot.[11]
On 23 November 2004, respondents filed a Petition for Certiorari and Injunction before
the CA,[12] where it was docketed as CA-G.R. SP No. 87531.

Subsequently, the RTC issued on 25 November 2004 an Order[13] dispensing with the
valuation report of the commissioners and directing the issuance of a writ of execution.
Consequently, respondents filed before the CA a Supplemental Petition with an urgent
prayer for a temporary restraining order.[14]

The CA eventually enjoined[15] the execution sale set on 22 December 2004[16] by

the RTC.

On 31 July 2008, the CA rendered its Decision granting respondents' Petition for
Certiorari, but it rejected their theory that res judicata had already set in.
The appellate court ruled that the RTC Decision, which had become final and
executory, only declared respondents' house and lot as a family home. Since the issue
of whether it may be sold in execution was incidental to the execution of the aforesaid
Decision, there was as yet no res judicata.

Still, the CA found that the trial court committed grave abuse of discretion in ordering
the execution sale of the subject family home after finding that its present value
exceeded the statutory limit. The basis for the valuation of a family home under Article
160, according to the appellate court, is its actual value at the time of its constitution
and not the market/present value; therefore, the trial court's order was contrary to law.
[17]

On 09 February 2009,[18] the CA denied petitioners' Motion for Reconsideration.

Hence, this Petition.
Issues
The issues to be resolved are: (1) whether petitioners are guilty of forum-shopping; (2)
whether a hearing to determine the value of respondents' family home for purposes of
execution under Article 160 of the Family Code is barred under the principle of res
judicata; and (3) whether respondents' family home may be sold on execution under
Article 160 of the Family Code.

The Court's Ruling

The Court denies the Petition for lack of merit.

Petitioners are not guilty of forum-shopping.

Forum shopping can be committed in three ways: (1) by filing multiple cases based on
the same cause of action and with the same prayer, the previous case not having been
resolved yet (where the ground for dismissal is litis pendentia); (2) by filing multiple
cases based on the same cause of action and with the same prayer, the previous case
having been finally resolved (where the ground for dismissal is res judicata); and (3) by
filing multiple cases based on the same cause of action but with different prayers, or by
splitting of causes of action (where the ground for dismissal is also either litis pendentia
or res judicata).[19]

The essence of forum shopping is the filing of multiple suits involving the same parties
for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment through means other than by appeal or certiorari.[20]
Forum shopping does not apply to cases that arise from an initiatory or original action
that has been elevated by way of appeal or certiorari to higher or appellate courts or
authorities. This is so because the issues in the appellate courts necessarily differ from
those in the lower court, and the appealed cases are but a continuation of the original
case and treated as only one case.[21]
Respondents contend that the Decision in Civil Case No. 4581, which declared that
property in dispute was a family home, had long attained finality. Accordingly,
respondents maintain that petitioners' bid to re-litigate the present value of the property
in the course of the execution proceedings is barred by res judicata, and that
petitioners should be cited for contempt of court because of forum-shopping.[22]
Recall that although the trial court had nullified the Deed of Sale over respondents'
family home in Civil Case No. 4581 for lack of a written consent from its beneficiaries
as required under Article 158 of the Family Code,[23] the court still recognized the
validity of the transaction as an unsecured loan. Hence, it declared Spouses Bell liable
to petitioners in the amount of PI million plus 12% interest per annum.

Petitioners' bid to satisfy the above judgment cannot be considered an act of forum
shopping. Simply, the execution of a decision is just the fruit and end of a suit and is
very aptly called the life of the law.[24] It is not separate from the main case. Similarly,
the filing of the instant Petition as a continuation of the execution proceedings does not
constitute forum shopping. Seeking a reversal of an adverse judgment or order by
appeal or certiorari does not constitute forum shopping. Such remedies are sanctioned
and provided for by the rules.[25]

Indeed, as will be presently discussed, the causes of action in the main proceedings in
Civil Case No. 4581 and the consequent execution proceedings are identical. Suffice it
to say, however, that the danger of a multiplicity of suits upon one and the same cause
of action, which the judicial policy against forum shopping seeks to prevent, does not
exist in this case.

Re-litigating the issue of the value of respondents' family home is barred by res
judicata.

Res judicata (meaning, a "matter adjudged") is a fundamental principle of law that

precludes parties from re-litigating issues actually litigated and determined by a prior
and final judgment.[26] Under the 1997 Rules of Court, there are two aspects of res
judicata, namely: bar by prior judgment[27] and conclusiveness of judgment.[28]

There is "bar by prior judgment" when, as between the first case in which the judgment
has been rendered and the second case that is sought to be barred, there is an identity
of parties, subject matter, and causes of action. In this instance, the judgment in the
first case constitutes an absolute bar to the second action. The judgment or decree on
the merits of the court of competent jurisdiction concludes the litigation between the
parties, as well as their privies, and constitutes a bar to a new action or suit involving
the same cause of action before the same or any other tribunal.[29]

On the other hand, there is "conclusiveness of judgment" where there is an identity of

parties in the first and second cases, but no identity of causes of action. Under this
rule, the first judgment is conclusive only as to those matters actually and directly
controverted and determined and not as to matters merely involved therein. Stated
differently, any right, fact, or matter in issue directly adjudicated or necessarily involved
in the determination of an action before a competent court in which judgment is
rendered on the merits is conclusively settled by the judgment therein and cannot
again be litigated between the parties and their privies whether or not the claim,
demand, purpose, or subject matter of the two actions is the same.[30]

In this case, the trial court's final decision in Civil Case No. 4581 bars petitioners' move
to have the property in dispute levied on execution.
There is no question that the main proceedings in Civil Case No. 4581 and the
subsequent execution proceedings involved the same parties[31] and subject matter.
[32] For these reasons, respondents argue that the execution sale of the property in
dispute under Article 160 of the Family Code is barred by res judicata, since the trial
court has already determined that the value of the property fell within the statutory limit.

The CA held that the trial court's Decision, which is indisputably final, only settled the
issue of whether the property in dispute was a family home. The CA ruled thus:

We rule that there is no res judicata.

At the outset, let it be emphasized that the decision of the trial court dated July 15,
1998, which has become final and executory, only declares the subject property as a
family home. As a matter of fact, private respondents never questioned that such
property is a family home, and consequently, the issue as to whether or not the
property is family home is settled and res judicata lies only with respect to this issue.
But the issue as to whether or not a family home could be the subject of an execution
sale was not resolved by the trial court. This issue[was] raised only when the writ of
execution was issued and hence, [was not] resolved with finality. Thus, the issue
before this Court is whether or not the [f]amily [h]ome of petitioners under the facts and
circumstances of the case could be the subject of a writ of execution and sold at public
auction.[33]
The Court disagrees with the CA.

"Cause of action" is the act or omission by which a party violates the right of another.
[34] It may be argued that the cause of action in the main proceedings was the sale of
the property in dispute, while in the execution proceedings it was the indebtedness of
Spouses Bell to petitioners.

The settled rule, however, is that identity of causes of action does not mean absolute
identity. Otherwise, a party could easily escape the operation of res judicata by
changing the form of the action or the relief sought.[35] The test to determine whether
the causes of action are identical is to ascertain whether the same evidence will
sustain both actions, or whether there is an identity of the facts essential to the
maintenance of the two actions. If the same facts or evidence would sustain both, the
two actions are considered the same, and a judgment in the first case would be a bar
to the subsequent action. Hence, a party cannot, by varying the form of action or
adopting a different method of presenting the case, escape the operation of the
principle that one and the same cause of action shall not be twice litigated between the
same parties or their privies.[36]

Among several tests resorted to in ascertaining whether two suits relate to a single or
common cause of action are: (1) whether the same evidence would support and
sustain both the first and the second causes of action; and (2) whether the defenses in
one case may be used to substantiate the complaint in the other. Also fundamental is
the test for determining whether the cause of action in the second case existed at the
time of the filing of the first complaint.[37]

Applying the above guidelines, the Court finds that the entirety of Civil Case No. 4581 -
including the bid of petitioners to execute the money judgment awarded to them by the
trial court - is founded on a common cause of action. Records show that the sole
evidence submitted by petitioners during the execution proceedings was the Deed of
Sale, which the trial court had nullified in the main proceedings. Concomitantly, the
very same defense raised by petitioners in the main proceedings, i.e., that they had
bought the property from Spouses Bell for P1 million - was utilized to substantiate the
claim that the current value of respondents' family home was actually PI million. In fact,
the trial court's order for respondents' family home to be levied on execution was solely
based on the price stated in the nullified Deed of Sale.

Res judicata applies, considering that the parties are litigating over the same property.
Moreover, the same contentions and evidence advanced by the petitioners to
substantiate their claim over respondents' family home have already been used to
support their arguments in the main proceedings.

Any lingering doubt on the application of res judicata to this case should be put to rest
by the trial court's discussion of the nature and alienability of the property in dispute, to
wit:

The second issue is about the allegation of the plaintiffs that the family home
which has been constituted on the house and lot in question is exempt from
alienation and that its value does not exceed P300,000. Paterno Bell, Sr. testified
that the two-storey house was built in 1947 and was made of wood and hollow
blocks. He inherited it in 1976 from his parents and has been living there with his
family. In 1976, when an extra-judicial settlement was made of the estate of his
parents, the fair market value of the house was P70,000.

City Assessor Rodezinda Pargas testified and presented Tax Declaration and others,
(Exhibit "J", Tax Declaration No. 005-047) beginning 1985 showing that the subject lot
with an area of 329 sq. m. had a fair market value of P76,000.00 and the residential
house located thereon of P50,000.00, for a total value of P126,000.00. She testified
that during the prior years the assessed values were lower. This shows that the limit of
the value of P300,000.00 under Article 157, Title 5 of the Family Code has not been
exceeded. The testimonies of the plaintiffs who are children of Sps. Paterno Bell, Sr.
and Rogelia Calingasan Bell show that they had lived in that house together with their
said parents. The Court therefore concludes that the said house is a family home under
Chapter 2, Title 5 of the Family Code. Its alienation by the said Spouses without the
written consent of the majority of the children/plaintiffs is null and void for being
contrary to law and public policy as enunciated in Art. 158 of the Family Code.[38]
[Underscoring supplied]

The foregoing points plainly show that the issue of whether the property in dispute
exceeded the statutory limit of P300,000 has already been determined with finality by
the trial court. Its finding necessarily meant that the property is exempt from execution.
Assuming for the sake of argument that causes of action in the main proceedings and
in the execution proceedings are different, the parties are still barred from litigating the
issue of whether respondents' family home may be sold on execution sale under the
principle of conclusiveness of judgment.

Respondents' family home cannot be sold on execution under Article 160 of the Family
Code.

Unquestionably, the family home is exempt from execution as expressly provided for in
Article 153 of the Family Code.[39]
It has been said that the family home is a real right that is gratuitous, inalienable and
free from attachment.[40] The great controlling purpose and policy of the Constitution is
the protection or the preservation of the homestead - the dwelling place. A houseless,
homeless population is a burden upon the energy, industry, and morals of the
community to which it belongs. No greater calamity, not tainted with crime, can befall a
family than to be expelled from the roof under which it has been gathered and
sheltered.[41] The family home cannot be seized by creditors except in special cases.
[42]

The nature and character of the property that debtors may claim to be exempt,
however, are determined by the exemption statute. The exemption is limited to the
particular kind of property or the specific articles prescribed by the statute; the
exemption cannot exceed the statutory limit.[43]

Articles 155 and 160 of the Family Code specify the exceptions mentioned in Article
153, to wit:

ARTICLE 155. The family home shall be exempt from execution, forced sale or
attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution;
and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others
who have rendered service or furnished material for the construction of the building.

ARTICLE 160. When a creditor whose claims is not among those mentioned in Article
155 obtains a judgment in his favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum amount fixed in Article 157, he
may apply to the court which rendered the judgment for an order directing the sale of
the property under execution. The court shall so order if it finds that the actual value of
the family home exceeds the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum allowed in Article 157
and results from subsequent voluntary improvements introduced by the person or
persons constituting the family home, by the owner or owners of the property, or by any
of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in Article 157,
and then to the liabilities under the judgment and the costs. The excess, if any, shall be
delivered to the judgment debtor.

Related to the foregoing is Article 157 of the Family Code, which provides:
ARTICLE 157. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by
law.

In any event, if the value of the currency changes after the adoption of this Code, the
value most favorable for the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. [Underscoring supplied]

The minutes of the deliberation by the drafters of Family Code on Article 160 are
enlightening, to wit:

Justice Puno inquired if the above Article [160] is still necessary. In reply, Judge Diy
opined that the above Article is intended to cover a situation where the family home is
already worth P500,000 or P1M. Justice Reyes stated that it is possible that a family
home, originally valued at P300,000. later appreciated to almost P1M because of
improvements made, like roads and plazas. Justice Caguioa, however, made a
distinction between voluntary and involuntary improvements in the sense that if the
value of the family home exceeded the maximum amount because of voluntary
improvements by the one establishing the family home, the Article will apply; but if it is
through an involuntary improvement, like the conversion into a residential area or the
establishment of roads and other facilities, the one establishing the family home should
not be punished by making his home liable to creditors. He suggested that the matter
be clarified in the provision.
xxxx
Prof. Bautista objected to the phrase "is worth" since if they will specify that the family
home is worth more than the maximum amount at the time it was constituted, they will
avoid the suit because the creditor will be given proper warning. Justice Puno opined
that this is a question of fact. Justice Caguioa added that, under the second sentence,
there will be a preliminary determination as to whether the family home exceeds the
maximum amount allowed by law.
xxxx

Justice Caguia accordingly modified the last sentence as follows:

If the excess in actual value over that allowed in Article 157 is due to subsequent
voluntary improvements by the person or persons constituting the family home or by
the owner or owners of the property, the same rules and procedure shall apply.
Prof. Bautista objected to the above provision, because it will in effect penalize the
owner for improving the family home. On the other hand, Justice Puno opined that the
provision covers only the excess in actual value over that allowed by law. Judge Diy
added that the owner may improve the family home up to P300,000. Justice Caguioa
stated that without the above provision, one can borrow money, put it all on
improvement of the family home even beyond the maximum value of a family home
and, thereby, exempt it from levy on the part of the creditor. He added that anyway, if
one voluntarily improves his family home out of his money, nobody can complain
because there are no creditors.

Justice Puno posed the question: What is "due to the subsequent improvement?" Is it
the "excess" or is it the "increase", or is it the "increase", which constitutes the
"excess"? In reply. Justice Reyes opined that it is the "increase" which constituted the
"excess". Justice Puno, Justice Reyes and Justice Caguioa modified the last sentence
as follows:

If the increase in actual value exceeds that maximum allowed in Article 157 and results
from subsequent voluntary improvements introduced by the person or persons
constituting the family home or by the owner or owners of the property, the same rule
and procedure shall apply.
Prof. Bautista commented that the phrase "increase in actual value" does not include
the original value. Justice Puno suggested that they just say "increased actual value",
which the Committee approved.[44] [Underscoring supplied]

To summarize, the exemption of the family home from execution, forced sale or
attachment is limited to P300,000 in urban areas and P200,000 in rural areas,
unless those maximum values are adjusted by law. If it is shown, though, that
those amounts do not match the present value of the peso because of currency
fluctuations, the amount of exemption shall be based on the value that is most
favorable to the constitution of a family home. Any amount in excess of those
limits can be applied to the payment of any of the obligations specified in
Articles 155 and 160.

Any subsequent improvement or enlargement of the family home by the persons

constituting it, its owners, or any of its beneficiaries will still be exempt from
execution, forced sale or attachment provided the following conditions obtain:
(a) the actual value of the property at the time of its constitution has been
determined to fall below the statutory limit; and (b) the improvement or
enlargement does not result in an increase in its value exceeding the statutory
limit.[45] Otherwise, the family home can be the subject of a forced sale, and any
amount above the statutory limit is applicable to the obligations under Articles
155 and 160.

Certainly, the humane considerations for which the law surrounds the family home with
immunities from levy do not include the intent to enable debtors to thwart the just
claims of their creditors.[46]

Petitioners maintain that this case falls under the exceptions to the exemption of the
family home from execution or forced sale. They claim that the actual value of
respondents' family home exceeds the P300,000 limit in urban areas. This fact is
supposedly shown by the Deed of Sale whereby private respondents agreed to sell the
property for PI million way back in 1995. Therefore, the RTC only properly ordered the
execution sale of the property under Article 160 to satisfy the money judgment
awarded to them in Civil Case No. 4581.[47]

As earlier discussed, it has been judicially determined with finality that the property in
dispute is a family home, and that its value at the time of its constitution was within the
statutory limit. Moreover, respondents have timely claimed the exemption of the
property from execution.[48] On the other hand, there is no question that the money
judgment awarded to petitioners falls under the ambit of Article 160.

Notwithstanding petitioners' right to enforce the trial court's money judgment, however,
they cannot obtain its satisfaction at the expense of respondents' rights over their
family home. It is axiomatic that those asserting the protection of an exception from an
exemption must bring themselves clearly within the terms of the exception and satisfy
any statutory requirement for its enforcement.[49]

To warrant the execution sale of respondents' family home under Article 160,
petitioners needed to establish these facts: (1) there was an increase in its actual
value; (2) the increase resulted from voluntary improvements on the property
introduced by the persons constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the maximum allowed
under Article 157.
During the execution proceedings, none of those facts was alleged - much less proven
- by petitioners. The sole evidence presented was the Deed of Sale, but the trial court
had already determined with finality that the contract was null, and that the actual
transaction was an equitable mortgage. Evidently, when petitioners and Spouses Bell
executed the Deed of Sale in 1990, the price stated therein was not the actual value of
the property in dispute.

The Court thus agrees with the CA's conclusion that the trial court committed grave
abuse of discretion in ordering the sale on execution of the property in dispute under
Article 160. The trial court had already determined with finality that the property was a
family home, and there was no proof that its value had increased beyond the statutory
limit due to voluntary improvements by respondents. Yet, it ordered the execution sale
of the property. There is grave abuse of discretion when one acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of one's judgment, as in this
case in which the assailed order is bereft of any factual or legal justification.[50]

WHEREFORE, the Petition for Review on Certiorari is hereby DENIED for lack of
merit. Accordingly, the Decision of the Court of Appeals in CA-G.R. SP No. 87531,
enjoining the trial court from proceeding with the sale of the family home of
respondents, is AFFIRMED.
SO ORDERED.
Reconsideration.

Antecedent Facts

Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Paterno
Ferdinand Bell III, and Paterno Benerano IV (the Bell siblings) are the unmarried
children of respondent Spouses Paterno C. Bell and Rogelia Calingasan-Bell (Spouses
Bell). In 1995, the Bell siblings lodged a Complaint for annulment of documents,
reconveyance, quieting of title and damages against petitioners Enrico S. Eulogio and
Natividad Eulogio (the Eulogios). It was docketed as Civil Case No. 4581 at the
Regional Trial Court (RTC) of Batangas City, Branch 84. The Complaint sought the
annulment of the contract of sale executed by Spouses Bell over their 329-square-
meter residential house and lot, as well as the cancellation of the title obtained by
petitioners by virtue of the Deed.

The RTC granted respondents' prayers, but declared Spouses Bell liable to petitioners
in the amount of PI million plus 12% interest per annum. The dispositive portion of the
Decision dated 15 July 1998 reads as follows:
WHEREFORE, prescinding from all the foregoing, the Court hereby declares:
1. That the sale of the subject house and lot under Deed of Sale marked as Exhibit "F"
is only an equitable mortgage in favor of the defendants Enrico Eulogio and Natividad
Eulogio. However, the mortgage cannot bind the property in question for being violative
of Chapter 2, Title 4 of the Family Code, its encumbrance not having been consented
to in writing by a majority of the beneficiaries who are the plaintiffs herein;
2. The said equitable mortgage is deemed to be an unsecured mortgage [sic] for which
the Spouses Paterno C. Bell, Sr. and Rogelia Calingasan Bell as mortgagors are liable
to the defendants-spouses Enrico Eulogio and Natividad Eulogio in the amount of
P1,000,000 plus interest of 12% per annum. However, under the Fourth Party
Complaint Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell have the right of
reimbursement from fourth party defendants Nicolas Moraña and Julieta Moraña for
whom their loan of P1,000,000 was secured by Sps. Paterno C. Bell, Sr. and Rogelia
Calingasan Bell. Accordingly, the fourth party defendants Nicolas Moraña and Julieta
Moraña are hereby ordered to reimburse Paterno C. Bell, Sr. and Rogelia Calingasan
Bell the loan of P1,000,000 plus interest of 12% per annum to be paid by the latter to
defendants Enrico and Natividad Eulogio;
3. The house and lot in question is free from any and all encumbrances by virtue of
said equitable mortgage or the purported sale; and
4. The Deed of Sale (Exhibit "F") is null and void for being contrary to law and public
policy.
Accordingly, (1) the Register of Deeds of Batangas City is hereby ordered to cancel
Transfer Certificate of Title No. T-131472 in the name of defendants Enrico S. Eulogio
and Natividad Eulogio and to reconstitute (sic) Transfer Certificate of Title No. RT-680-
(5997) as "family home" of the plaintiffs Florence Felicia Victoria C. Bell, Paterno
William C. Bell Jr., Paterno Ferdinand C. Bell III, Paterno Benerano C. Bell IV and
fourth party plaintiffs Paterno C. Bell Sr. and Rogelia Calingasan Bell; or in the
alternative to issue a new Transfer Certificate of Title under the same tenor;
2. The City Assessor of Batangas City is hereby directed to issue a tax declaration
covering the said subject property as family home for the said plaintiffs and fourth party
plaintiffs Paterno C. Bell and Rogelia Calingasan Bell; and
3. Defendants Enrico Eulogio and Natividad Eulogio are ordered to pay the plaintiffs
attorney's fees and litigation expenses of P35,000.00, as the plaintiffs have been
compelled to litigate to protect their property rights, and costs.[3]
Both petitioners and respondents appealed to the CA, but the trial court's Decision was
affirmed en toto. Spouses Bell later brought the case to this Court to question their
liability to petitioners in the amount of P1 million plus interest. The Court, however,
dismissed their Petition for failure to show any reversible error committed by the CA.[4]
Thereafter, entry of judgment was made.[5]

On 9 June 2004 the RTC issued a Writ of Execution, as a result of which respondents'
property covered by the newly reconstituted Transfer Certificate of Title (TCT) No.
54208 [formerly RT-680 (5997)] was levied on execution. Upon motion by respondents,
the trial court, on 31 August 2004, ordered the lifting of the writ of execution on the
ground that the property was a family home.[6]
Petitioners filed a Motion for Reconsideration of the lifting of the writ of execution.
Invoking Article 160 of the Family Code, they posited that the current market value of
the property exceeded the statutory limit of P300,000 considering that it was located in
a commercial area, and that Spouses Bell had even sold it to them for P1 million.[7]
The RTC, on 13 October 2004, set the case for hearing to determine the present value
of the family home of respondents. It also appointed a Board of Appraisers to conduct
a study on the prevailing market value of their house and lot.[8]
Respondents sought reconsideration of the above directives and asked the RTC to cite
petitioners for contempt because of forum-shopping.[9] They argued that petitioners'
bid to determine the present value of the subject property was just a ploy to re-litigate
an issue that had long been settled with finality.
The RTC, however, denied the Motion for Reconsideration[10] of respondents and
directed the commissioners to canvass prospective buyers of their house and lot.[11]
On 23 November 2004, respondents filed a Petition for Certiorari and Injunction before
the CA,[12] where it was docketed as CA-G.R. SP No. 87531.
Subsequently, the RTC issued on 25 November 2004 an Order[13] dispensing with the
valuation report of the commissioners and directing the issuance of a writ of execution.
Consequently, respondents filed before the CA a Supplemental Petition with an urgent
prayer for a temporary restraining order.[14]
The CA eventually enjoined[15] the execution sale set on 22 December 2004[16] by
the RTC.
On 31 July 2008, the CA rendered its Decision granting respondents' Petition for
Certiorari, but it rejected their theory that res judicata had already set in.
The appellate court ruled that the RTC Decision, which had become final and
executory, only declared respondents' house and lot as a family home. Since the issue
of whether it may be sold in execution was incidental to the execution of the aforesaid
Decision, there was as yet no res judicata.

Still, the CA found that the trial court committed grave abuse of discretion in ordering
the execution sale of the subject family home after finding that its present value
exceeded the statutory limit. The basis for the valuation of a family home under Article
160, according to the appellate court, is its actual value at the time of its constitution
and not the market/present value; therefore, the trial court's order was contrary to law.
[17]
On 09 February 2009,[18] the CA denied petitioners' Motion for Reconsideration.
Hence, this Petition.
Issues
The issues to be resolved are: (1) whether petitioners are guilty of forum-shopping; (2)
whether a hearing to determine the value of respondents' family home for purposes of
execution under Article 160 of the Family Code is barred under the principle of res
judicata; and (3) whether respondents' family home may be sold on execution under
Article 160 of the Family Code.
The Court's Ruling
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum-shopping.
Forum shopping can be committed in three ways: (1) by filing multiple cases based on
the same cause of action and with the same prayer, the previous case not having been
resolved yet (where the ground for dismissal is litis pendentia); (2) by filing multiple
cases based on the same cause of action and with the same prayer, the previous case
having been finally resolved (where the ground for dismissal is res judicata); and (3) by
filing multiple cases based on the same cause of action but with different prayers, or by
splitting of causes of action (where the ground for dismissal is also either litis pendentia
or res judicata).[19]
The essence of forum shopping is the filing of multiple suits involving the same parties
for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment through means other than by appeal or certiorari.[20]
Forum shopping does not apply to cases that arise from an initiatory or original action
that has been elevated by way of appeal or certiorari to higher or appellate courts or
authorities. This is so because the issues in the appellate courts necessarily differ from
those in the lower court, and the appealed cases are but a continuation of the original
case and treated as only one case.[21]
Respondents contend that the Decision in Civil Case No. 4581, which declared that
property in dispute was a family home, had long attained finality. Accordingly,
respondents maintain that petitioners' bid to re-litigate the present value of the property
in the course of the execution proceedings is barred by res judicata, and that
petitioners should be cited for contempt of court because of forum-shopping.[22]
Recall that although the trial court had nullified the Deed of Sale over respondents'
family home in Civil Case No. 4581 for lack of a written consent from its beneficiaries
as required under Article 158 of the Family Code,[23] the court still recognized the
validity of the transaction as an unsecured loan. Hence, it declared Spouses Bell liable
to petitioners in the amount of PI million plus 12% interest per annum.
Petitioners' bid to satisfy the above judgment cannot be considered an act of forum
shopping. Simply, the execution of a decision is just the fruit and end of a suit and is
very aptly called the life of the law.[24] It is not separate from the main case. Similarly,
the filing of the instant Petition as a continuation of the execution proceedings does not
constitute forum shopping. Seeking a reversal of an adverse judgment or order by
appeal or certiorari does not constitute forum shopping. Such remedies are sanctioned
and provided for by the rules.[25]
Indeed, as will be presently discussed, the causes of action in the main proceedings in
Civil Case No. 4581 and the consequent execution proceedings are identical. Suffice it
to say, however, that the danger of a multiplicity of suits upon one and the same cause
of action, which the judicial policy against forum shopping seeks to prevent, does not
exist in this case.
Re-litigating the issue of the value of respondents' family home is barred by res
judicata.
Res judicata (meaning, a "matter adjudged") is a fundamental principle of law that
precludes parties from re-litigating issues actually litigated and determined by a prior
and final judgment.[26] Under the 1997 Rules of Court, there are two aspects of res
judicata, namely: bar by prior judgment[27] and conclusiveness of judgment.[28]
There is "bar by prior judgment" when, as between the first case in which the judgment
has been rendered and the second case that is sought to be barred, there is an identity
of parties, subject matter, and causes of action. In this instance, the judgment in the
first case constitutes an absolute bar to the second action. The judgment or decree on
the merits of the court of competent jurisdiction concludes the litigation between the
parties, as well as their privies, and constitutes a bar to a new action or suit involving
the same cause of action before the same or any other tribunal.[29]
On the other hand, there is "conclusiveness of judgment" where there is an identity of
parties in the first and second cases, but no identity of causes of action. Under this
rule, the first judgment is conclusive only as to those matters actually and directly
controverted and determined and not as to matters merely involved therein. Stated
differently, any right, fact, or matter in issue directly adjudicated or necessarily involved
in the determination of an action before a competent court in which judgment is
rendered on the merits is conclusively settled by the judgment therein and cannot
again be litigated between the parties and their privies whether or not the claim,
demand, purpose, or subject matter of the two actions is the same.[30]
In this case, the trial court's final decision in Civil Case No. 4581 bars petitioners' move
to have the property in dispute levied on execution.
There is no question that the main proceedings in Civil Case No. 4581 and the
subsequent execution proceedings involved the same parties[31] and subject matter.
[32] For these reasons, respondents argue that the execution sale of the property in
dispute under Article 160 of the Family Code is barred by res judicata, since the trial
court has already determined that the value of the property fell within the statutory limit.
The CA held that the trial court's Decision, which is indisputably final, only settled the
issue of whether the property in dispute was a family home. The CA ruled thus:
We rule that there is no res judicata.
At the outset, let it be emphasized that the decision of the trial court dated July 15,
1998, which has become final and executory, only declares the subject property as a
family home. As a matter of fact, private respondents never questioned that such
property is a family home, and consequently, the issue as to whether or not the
property is family home is settled and res judicata lies only with respect to this issue.
But the issue as to whether or not a family home could be the subject of an execution
sale was not resolved by the trial court. This issue[was] raised only when the writ of
execution was issued and hence, [was not] resolved with finality. Thus, the issue
before this Court is whether or not the [f]amily [h]ome of petitioners under the facts and
circumstances of the case could be the subject of a writ of execution and sold at public
auction.[33]
The Court disagrees with the CA.
"Cause of action" is the act or omission by which a party violates the right of another.
[34] It may be argued that the cause of action in the main proceedings was the sale of
the property in dispute, while in the execution proceedings it was the indebtedness of
Spouses Bell to petitioners.
The settled rule, however, is that identity of causes of action does not mean absolute
identity. Otherwise, a party could easily escape the operation of res judicata by
changing the form of the action or the relief sought.[35] The test to determine whether
the causes of action are identical is to ascertain whether the same evidence will
sustain both actions, or whether there is an identity of the facts essential to the
maintenance of the two actions. If the same facts or evidence would sustain both, the
two actions are considered the same, and a judgment in the first case would be a bar
to the subsequent action. Hence, a party cannot, by varying the form of action or
adopting a different method of presenting the case, escape the operation of the
principle that one and the same cause of action shall not be twice litigated between the
same parties or their privies.[36]
Among several tests resorted to in ascertaining whether two suits relate to a single or
common cause of action are: (1) whether the same evidence would support and
sustain both the first and the second causes of action; and (2) whether the defenses in
one case may be used to substantiate the complaint in the other. Also fundamental is
the test for determining whether the cause of action in the second case existed at the
time of the filing of the first complaint.[37]
Applying the above guidelines, the Court finds that the entirety of Civil Case No. 4581 -
including the bid of petitioners to execute the money judgment awarded to them by the
trial court - is founded on a common cause of action. Records show that the sole
evidence submitted by petitioners during the execution proceedings was the Deed of
Sale, which the trial court had nullified in the main proceedings. Concomitantly, the
very same defense raised by petitioners in the main proceedings, i.e., that they had
bought the property from Spouses Bell for P1 million - was utilized to substantiate the
claim that the current value of respondents' family home was actually PI million. In fact,
the trial court's order for respondents' family home to be levied on execution was solely
based on the price stated in the nullified Deed of Sale.
Res judicata applies, considering that the parties are litigating over the same property.
Moreover, the same contentions and evidence advanced by the petitioners to
substantiate their claim over respondents' family home have already been used to
support their arguments in the main proceedings.
Any lingering doubt on the application of res judicata to this case should be put to rest
by the trial court's discussion of the nature and alienability of the property in dispute, to
wit:
The second issue is about the allegation of the plaintiffs that the family home which has
been constituted on the house and lot in question is exempt from alienation and that its
value does not exceed P300,000. Paterno Bell, Sr. testified that the two-storey house
was built in 1947 and was made of wood and hollow blocks. He inherited it in 1976
from his parents and has been living there with his family. In 1976, when an extra-
judicial settlement was made of the estate of his parents, the fair market value of the
house was P70,000.

City Assessor Rodezinda Pargas testified and presented Tax Declaration and others,
(Exhibit "J", Tax Declaration No. 005-047) beginning 1985 showing that the subject lot
with an area of 329 sq. m. had a fair market value of P76,000.00 and the residential
house located thereon of P50,000.00, for a total value of P126,000.00. She testified
that during the prior years the assessed values were lower. This shows that the limit of
the value of P300,000.00 under Article 157, Title 5 of the Family Code has not been
exceeded. The testimonies of the plaintiffs who are children of Sps. Paterno Bell, Sr.
and Rogelia Calingasan Bell show that they had lived in that house together with their
said parents. The Court therefore concludes that the said house is a family home under
Chapter 2, Title 5 of the Family Code. Its alienation by the said Spouses without the
written consent of the majority of the children/plaintiffs is null and void for being
contrary to law and public policy as enunciated in Art. 158 of the Family Code.[38]
[Underscoring supplied]
The foregoing points plainly show that the issue of whether the property in dispute
exceeded the statutory limit of P300,000 has already been determined with finality by
the trial court. Its finding necessarily meant that the property is exempt from execution.
Assuming for the sake of argument that causes of action in the main proceedings and
in the execution proceedings are different, the parties are still barred from litigating the
issue of whether respondents' family home may be sold on execution sale under the
principle of conclusiveness of judgment.
Respondents' family home cannot be sold on execution under Article 160 of the Family
Code.
Unquestionably, the family home is exempt from execution as expressly provided for in
Article 153 of the Family Code.[39]
It has been said that the family home is a real right that is gratuitous, inalienable and
free from attachment.[40] The great controlling purpose and policy of the Constitution is
the protection or the preservation of the homestead - the dwelling place. A houseless,
homeless population is a burden upon the energy, industry, and morals of the
community to which it belongs. No greater calamity, not tainted with crime, can befall a
family than to be expelled from the roof under which it has been gathered and
sheltered.[41] The family home cannot be seized by creditors except in special cases.
[42]
The nature and character of the property that debtors may claim to be exempt,
however, are determined by the exemption statute. The exemption is limited to the
particular kind of property or the specific articles prescribed by the statute; the
exemption cannot exceed the statutory limit.[43]

Articles 155 and 160 of the Family Code specify the exceptions mentioned in Article
153, to wit:
ARTICLE 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution;
and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others
who have rendered service or furnished material for the construction of the building.
ARTICLE 160. When a creditor whose claims is not among those mentioned in Article
155 obtains a judgment in his favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum amount fixed in Article 157, he
may apply to the court which rendered the judgment for an order directing the sale of
the property under execution. The court shall so order if it finds that the actual value of
the family home exceeds the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum allowed in Article 157
and results from subsequent voluntary improvements introduced by the person or
persons constituting the family home, by the owner or owners of the property, or by any
of the beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in Article 157,
and then to the liabilities under the judgment and the costs. The excess, if any, shall be
delivered to the judgment debtor.
Related to the foregoing is Article 157 of the Family Code, which provides:
ARTICLE 157. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by
law.

In any event, if the value of the currency changes after the adoption of this Code, the
value most favorable for the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. [Underscoring supplied]
The minutes of the deliberation by the drafters of Family Code on Article 160 are
enlightening, to wit:
Justice Puno inquired if the above Article [160] is still necessary. In reply, Judge Diy
opined that the above Article is intended to cover a situation where the family home is
already worth P500,000 or P1M. Justice Reyes stated that it is possible that a family
home, originally valued at P300,000. later appreciated to almost P1M because of
improvements made, like roads and plazas. Justice Caguioa, however, made a
distinction between voluntary and involuntary improvements in the sense that if the
value of the family home exceeded the maximum amount because of voluntary
improvements by the one establishing the family home, the Article will apply; but if it is
through an involuntary improvement, like the conversion into a residential area or the
establishment of roads and other facilities, the one establishing the family home should
not be punished by making his home liable to creditors. He suggested that the matter
be clarified in the provision.
xxxx
Prof. Bautista objected to the phrase "is worth" since if they will specify that the family
home is worth more than the maximum amount at the time it was constituted, they will
avoid the suit because the creditor will be given proper warning. Justice Puno opined
that this is a question of fact. Justice Caguioa added that, under the second sentence,
there will be a preliminary determination as to whether the family home exceeds the
maximum amount allowed by law.
xxxx
Justice Caguia accordingly modified the last sentence as follows:
If the excess in actual value over that allowed in Article 157 is due to subsequent
voluntary improvements by the person or persons constituting the family home or by
the owner or owners of the property, the same rules and procedure shall apply.
Prof. Bautista objected to the above provision, because it will in effect penalize the
owner for improving the family home. On the other hand, Justice Puno opined that the
provision covers only the excess in actual value over that allowed by law. Judge Diy
added that the owner may improve the family home up to P300,000. Justice Caguioa
stated that without the above provision, one can borrow money, put it all on
improvement of the family home even beyond the maximum value of a family home
and, thereby, exempt it from levy on the part of the creditor. He added that anyway, if
one voluntarily improves his family home out of his money, nobody can complain
because there are no creditors.
Justice Puno posed the question: What is "due to the subsequent improvement?" Is it
the "excess" or is it the "increase", or is it the "increase", which constitutes the
"excess"? In reply. Justice Reyes opined that it is the "increase" which constituted the
"excess". Justice Puno, Justice Reyes and Justice Caguioa modified the last sentence
as follows:
If the increase in actual value exceeds that maximum allowed in Article 157 and results
from subsequent voluntary improvements introduced by the person or persons
constituting the family home or by the owner or owners of the property, the same rule
and procedure shall apply.
Prof. Bautista commented that the phrase "increase in actual value" does not include
the original value. Justice Puno suggested that they just say "increased actual value",
which the Committee approved.[44] [Underscoring supplied]

To summarize, the exemption of the family home from execution, forced sale or
attachment is limited to P300,000 in urban areas and P200,000 in rural areas,
unless those maximum values are adjusted by law. If it is shown, though, that
those amounts do not match the present value of the peso because of currency
fluctuations, the amount of exemption shall be based on the value that is most
favorable to the constitution of a family home. Any amount in excess of those
limits can be applied to the payment of any of the obligations specified in
Articles 155 and 160.

Any subsequent improvement or enlargement of the family home by the persons

constituting it, its owners, or any of its beneficiaries will still be exempt from
execution, forced sale or attachment provided the following conditions obtain:
(a) the actual value of the property at the time of its constitution has been
determined to fall below the statutory limit; and (b) the improvement or
enlargement does not result in an increase in its value exceeding the statutory
limit.[45] Otherwise, the family home can be the subject of a forced sale, and any
amount above the statutory limit is applicable to the obligations under Articles
155 and 160.

Certainly, the humane considerations for which the law surrounds the family
home with immunities from levy do not include the intent to enable debtors to
thwart the just claims of their creditors.[46]

Petitioners maintain that this case falls under the exceptions to the exemption of
the family home from execution or forced sale. They claim that the actual value
of respondents' family home exceeds the P300,000 limit in urban areas. This fact
is supposedly shown by the Deed of Sale whereby private respondents agreed
to sell the property for PI million way back in 1995. Therefore, the RTC only
properly ordered the execution sale of the property under Article 160 to satisfy
the money judgment awarded to them in Civil Case No. 4581.[47]

As earlier discussed, it has been judicially determined with finality that the
property in dispute is a family home, and that its value at the time of its
constitution was within the statutory limit. Moreover, respondents have timely
claimed the exemption of the property from execution.[48] On the other hand,
there is no question that the money judgment awarded to petitioners falls under
the ambit of Article 160.

Notwithstanding petitioners' right to enforce the trial court's money judgment,

however, they cannot obtain its satisfaction at the expense of respondents'
rights over their family home. It is axiomatic that those asserting the protection
of an exception from an exemption must bring themselves clearly within the
terms of the exception and satisfy any statutory requirement for its enforcement.
[49]

To warrant the execution sale of respondents' family home under Article 160,
petitioners needed to establish these facts: (1) there was an increase in its actual
value; (2) the increase resulted from voluntary improvements on the property
introduced by the persons constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the maximum allowed
under Article 157.

During the execution proceedings, none of those facts was alleged - much less
proven - by petitioners. The sole evidence presented was the Deed of Sale, but
the trial court had already determined with finality that the contract was null, and
that the actual transaction was an equitable mortgage. Evidently, when
petitioners and Spouses Bell executed the Deed of Sale in 1990, the price stated
therein was not the actual value of the property in dispute.
The Court thus agrees with the CA's conclusion that the trial court committed
grave abuse of discretion in ordering the sale on execution of the property in
dispute under Article 160. The trial court had already determined with finality that
the property was a family home, and there was no proof that its value had
increased beyond the statutory limit due to voluntary improvements by
respondents. Yet, it ordered the execution sale of the property. There is grave
abuse of discretion when one acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of one's judgment, as in this case in which the
assailed order is bereft of any factual or legal justification.[50]
WHEREFORE, the Petition for Review on Certiorari is hereby DENIED for lack of
merit. Accordingly, the Decision of the Court of Appeals in CA-G.R. SP No. 87531,
enjoining the trial court from proceeding with the sale of the family home of
respondents, is AFFIRMED.
SO ORDERED.

VIII. Paternity and Filiation

1. Legitimate children

Children conceived or born during the marriage of the parents are legitimate.
(Art. 164)

2. Illegitimate Children

Children conceived and born outside a valid marriage are illegitimate; unless
otherwise provided by the Family code. (Art. 165)

3. Legitimated Children

Only children conceived and born outside wedlock of parents who, at the time of
the conception of the former, were not disqualified by any impediment to marry
each other may be legitimated. (Art. 177)

Legitimation shall take place by a subsequent valid marriage between parents.

The annulment of a voidable marriage shall not affect the legitimation. (Art. 178)

The effects of legitimation shall retroact to the time of the child’s birth. 9Art.
180)

4. Adopted children

Purely personal between the adopted child and the adopted parent.

A. Legitimate Children, Arts. 163-171

B. Proof of Filiation, Arts. 172-174

C. Illegitimate Children, Art. 175 and Art. 176 as amended by RA 9255

D. Legitimated Children, Arts. 177-182

ART. 163-165
PATERNITY AND FILIATION:
Art. 163. The filiation of children may be by nature or by adoption.
Natural filiation may be legitimate or illegitimate.

Paternity and filiation refer to the relationship or tie which exists

between parents and their children.

Art. 164. Children conceived or born during the marriage of the

parents are legitimate.

Children conceived as a result of artificial insemination of the wife

with the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth
certificate of the child.

Only two classes of children, namely, legitimate and illegitimate.

The filiation of children may be by nature or by adoption. Natural

children are considered legitimate if they are conceived or born during
the valid marriage of the parents.

Illegitimate children are those conceived and born outside a valid

marriage or inside a void marriage.

- Exceptions, is the psychological incapacity of either of the

spouses to perform his or her martial obligations, has become final and
executor shall be considered legitimate.

-Subsequent void marriage due to the contracting parties’ failure to

comply with the mandatory provisions of Article 52 and 53 of the Family
Code.

STATUS OF AN ARTIFICIALLY INSEMINATED CHILD.

Status of a child, product of artificial insemination, as a legitimate child

of the husband and wife provided that both of them authorized or ratified
such insemination in a written instrument executed and signed by them
before the birth of the child and that the instrument is recorded in the
civil registry together with the birth certificate of the child.

If the written authorization or ratification contained in the public

instrument was obtained through mistake, fraud, violence, intimidation
or undue influence, the husband may impugn the legitimacy of the child
on these grounds.

Now, we are not concerned with the legality or illegality of artificial

insemination. We are not concerned with the morality or immorality of
artificial insemination. But we are concerned of the status of that child
born of that fact. You cannot close your eyes to the fact that artificial
insemination is here and there are children born of them, born of that
method. Now, what will be the status of that child? Shall that child
remain in uncertain status? Shall it be made to stay in limbo, not
knowing what is his status? So, we provide for the status, regardless of
the method by which he was conceived or born.

For example, in the chapter on Paternity and Filiation, we provide for

the status of illegitimate children, adulterous children, bigamous
children – all under the term “illegitimate”. Now, there is no accusation
that we are thereby legalizing or approving of having children outside of
marriage. No Sir. We are merely concerned with the status of the
children. Otherwise, they will be left in limbo without status.

However, it must be observed that, even if the requirements laid down in

the second paragraph of Article 164, namely : (1) both spouses authorize
or ratify such insemination in a written instrument executed and signed
by them before the birth of the child; and (2) the instrument is recorded
in the civil registry together with the birth certificate of the child, are
not followed and the husband does not impugn the legitimacy of the
child on grounds provided by law within the prescriptive period, the child
shall still be considered legitimate because that child has been conceived
or born during the valid marriage of the parents pursuant to the first
paragraph of Article 164.

NO CRIMINAL LIABILITY FOR ADULTERY OF WIFE ARTIFICIALLY INSEMINATED

WITHOUT CONSENT OF HUSBAND.

A wife who, without the consent of the husband, had herself artificially
inseminated by the semen of another which led to the siring of a child
not of the husband, cannot be held criminally liable for adultery.

ART. 166-167

Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.

Art. 166. Legitimacy of a child may be impugned only on the following

grounds:

1. That it was physically impossible for the husband to have

sexual intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:

a. The physical incapacity of the husband to have sexual

intercourse with his wife;

b. the fact that the husband and wife were living

separately in such a way that sexual intercourse was not possible; or

c. serious illness of the husband, which absolutely

prevented sexual intercourse.
 2. That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband, except in the
instance provided in the 2nd paragraph of Article 164; or

3. That in case of children conceived through artificial

insemination, the written authorization or ratification of either parent
was obtained through mistake, fraud, violence, intimidation, or undue
influence.

Art. 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress.

APPLICABILITY OF ARTICLES 166 AND 167.

Article 166 presupposes valid marriage between the husband and the
wife. Only the husband and, in proper cases provided in Article 171, the
heirs can invoke the grounds under Article 166. No other person can
make use of the same.

The legitimacy of the child can likewise be questioned on the ground

that the marriage between the husband and the wife is void except if the
ground for nullity is Article 36 or Article 53 of the Family Code.

In the event that any of the grounds enumerated in Article 166 is prove,
the child will neither be legitimate nor illegitimate in so far as the
husband is concerned. Simply, the husband and the child will not be
related to each other in any manner considering that the husband did
not participate in any way as to the child’s procreation. In so far as the
mother is concerned, the child will be considered illegitimate.

Impossible for the wife to file an action to impugn the legitimacy of her
child because even if the wife knows that the child is by a man other
than her husband, the declaration of the wife that the child is
illegitimate or the sentencing of the wife as an adulteress has no bearing
and can never affect the legitimate status of the child born or conceived
inside a valid marriage.

Both articles 166 and 167 only necessarily apply also to a situation
where the child has been delivered by a woman who is the child’s natural
mother. They do not apply to a situation where the alleged mother did
not, in fact, deliver the child herself, or, in short, where the child did not
come from her own womb.

IMPOTENCY is the physical inability to have sexual intercourse. It is not

synonymous with sterility. Sterility refers to the inability to procreate,
whereas, impotence refers to the physical inability to perform the act of
sexual intercourse.

The separation between the spouses must be such as to make sexual

access impossible. This may take place when they reside in different
countries or provinces, and they have never been together during the
period of conception.

The illness of the husband must be of such a nature as to exclude the

possibility of his having sexual intercourse with his wife.

It must be stressed that xxx the rule that a child is presumed legitimate
although the mother may have declared against its legitimacy or may
have been sentenced as an adulteress has been adopted for two solid
reasons. First, in a fit of anger, or to arouse jealousy in the husband,
the wife may have made this declaration. Second, the article is
established as a guaranty in favor of the children whose condition should
not be under the mercy of the passions of their parents. The husband
whose honor if offended, that is, being aware of his wife’s adultery, may
obtain from the guilty spouse by means of coercion, a confession against
the legitimacy of the child which may really be only a confession of her
guilt. Or the wife, out of vengeance and spite, may declare the child as
not her husband’s although the statement be false. But there is another
reason which is more powerful, demanding the exclusion of proof of
confession or adultery, and it is that, at the moment of the conception,
it cannot be determined when a woman cohabits during the same period
with two men, by whom the child was begotten, it being possible that it
be the husband himself.

xxx xxx It must be emphasized that adultery on the part of the wife, in
itself, cannot destroy the presumption of the legitimacy of her child,
because it is still possible that the child is that of the husband.
(Tolentino, citing 1 Vera 170; 4 Borja 23-24)

In the case of a child born or conceived in wedlock, evidence of the

infidelity or adultery of the wife and mother is not admissible to show
illegitimacy, if there is no proof of the husband’s impotency or non-
access to his wife.

In Article 166, provides for the exclusive grounds to impugn legitimacy

which can be invoked by the husband and, in proper cases, the heirs.

The average longest period of gestation is 300 days. However, it is not

improbable that the gestation period may exceed 300 days. Likewise,
there can be shorter gestation period.

The law, in effect, states that when a child is born inside a marriage,
sexual intercourse or access is presumed to have occurred between the
husband and wife within the first 120 days of 300 days immediately
preceding the birth of the child and that any day within the 120 day
period is deemed as the possible conception date of a child. The time
span between the 120th day and the 300th day is 180 days or 6 months.
Experience shows that a child may be born without any defect
whatsoever even if the gestation period is only 6 months.

PHYSICAL INCAPACITY.
Evidence must be so convincing and persuasive to justify the
bastardization of the child. Hence, in a case where it was shown that,
while the penis of the man was cut almost leveling it to his stomach and
necessitating the insertion of metal sounds for him to urinate and
therefore apparently supporting a claim of physical incapability to have
sexual intercourse that could sire the subject child, the court still ruled
against the bastardization of the subject child because it regarded such
evidence as insufficient to impugn the legitimacy of the subject child
considering that it was also shown that, despite the cutting of the penis
just behind the head, it was still three inches long enough to be able to
copulate and also in the light of evidence that he had, in many instances,
engaged in sexual intercourse with other women.

LIVING SEPARATELY:

the husband and the wife must have lived separately in such a way that
sexual intercourse is not possible. Mere remoteness of the wife from the
husband is not sufficient proof to disavow paternity.
However, a child born about 11 years after the mother left her husband
in England and came to America with her paramour was proof that the
child of the mother was not the legitimate son of the husband. Also,
where a child was born in Italy almost six years after the husband left
and emigrated to the United States, and he never returned to that
country and his wife never left Italy, the court held that no presumption
of legitimacy could be indulged in view of such evidence.

SERIOUS ILLNESS.

The illness of the husband must be serious and must be such as to

absolutely prevent him from engaging in sexual intercourse.

BIOLOGICAL AND SCIENTIFIC REASONS

Paternity can be successfully impugned if, for biological and scientific

reasons, the offspring could not have been that of the husband.

STERILITY

For sterility to constitute proof of non-paternity on the ground of

biological or scientific reasons, the husband must be shown to be
completely sterile at the time when the child was conceived.

Blood group tests are generally recognized as being accurate only in

excluding paternity. Although they cannot indicate with precision that a
particular person is the father of the child whose paternity is in issue,
they can establish that an alleged father could not have been the sire.

- A scientific test that is dependable in determining filiation is the

DNA. The Supreme Court in fact encourages the use of DNA testing.

VITIATED CONSENT IN ARTIFICIAL INSEMINATION.

The legitimacy of the child may be impugned.

The mistake, fraud, violence, intimidation, or undue influence can be

exerted by not only the spouses against each other but also by third
persons on both of the spouses or any one of them. However, the only
person who can impugn the legitimacy of the child on this ground, or any
ground provided by law for that matter, is the husband as provided in
Article 170, or the heirs in special cases in Article 171. The husband or
the heirs, can allege that the wife was subjected to these causes
(mistake, fraud, violence, intimidation, or undue influence.) or the
husband was himself subjected to the same or both such husband and his
wife were so subjected. While the mother may have indeed been
subjected to these causes, she cannot file a case to impugn the
legitimacy of the child because she is not given legal standing to do so.
Article 167 provides that the child shall be considered legitimate
although the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.

NON-OBSERVANCE OF PROCEDURE RELATIVE TO ARTIFICIAL

INSEMINATION

If he decides to impugn the child later on the ground that the procedure
under the second paragraph of Article 164 has not been complied with,
the case will necessarily fail because the law does not grant him such
ground to make the impugnation, as the grounds in Article 166 are
exclusive. The impossibility of impugning the legitimacy of the child on
the ground that the procedure laid down in the second paragraph of
Article 164 has not been observed implements in full force the
declaration in the first paragraph thereof that “children conceived or
born during the marriage of the parents are legitimate.

In the event that the wife was able to obtain a sperm sample of the
husband which the latter contributed in a sperm bank and the said wife
had herself artificially inseminated with such sperm without the
knowledge or consent of the husband, the husband can impugn the
legitimacy of the child brought forth as a result of the artificial
insemination under any of the grounds mentioned in Article 166,
subparagraph 1 (a) (b) (c) and subparagraph 2, contending that it was
physically impossible for him to have sexual intercourse with the wife at
the time when the child was conceived.

But, in case the husband acceded to the artificial insemination of his

wife using the sperm of another man and he fails to comply with the
procedure laid down in the second paragraph of Article 164 and he let
the prescriptive period for impugning the legitimacy of the child lapsed,
the child will be considered the legitimate child of the said husband and
the wife by virtue also of the first paragraph of Article 164 which
declares that “children conceived or born during the marriage of the
parents are legitimate”.

However, if the donor were a man other than the husband and the latter,
because he (husband) objected to the artificial insemination, did not want
to comply with the procedure laid down under Article 164, he (husband)
can impugn the child’s status by invoking any of the grounds under
Article 166 (1 [a,b,c]), and (2). The same course of action can be taken if
the husband initially acceded to the artificial insemination but failed or
refused to comply with the requirements under Article 164 and later on
decided to impugn the child’s legitimacy. He should however impugn
within the prescriptive period provided in Article 170.

Article 166 (2) provides that biological or other scientific reasons cannot
be invoked to impugn legitimacy in cases of artificial insemination where
the second paragraph of Article 164 has been observed.

ART. 168.

Art. 168. If the marriage is terminated and the mother contracted

another marriage within 300 days after such termination of the former
marriage, these rules shall govern in the absence of proof to the
contrary:

1. A child born BEFORE 180 days after the solemnization of the

subsequent marriage is considered to have been conceived during the
former marriage, provided it be born within 300 days after the
termination of the former marriage;

2. A child born AFTER 180 days following the celebration of the

subsequent marriage is considered to have been conceived during such
marriage, even though it be born within the 300 days after the
termination of the former marriage.

ACCESS PRESUMED PRIOR TO TERMINATION OF MARRIAGE.

Access between the spouses is presumed during the marriage. This

presumption holds even immediately before the official termination of
marriage.

PRESUMPTION OF FILIATION IN CASE OF TWO MARRIAGES.

The rules provided for under Article 168 will not apply in case there are
convincing proofs of filiation that the father of the child is the previous
husband or the subsequent husband, as the case may be. The rules will
only apply “ in the absence of proof to the contrary.” Also, the rules do
not give any presumption as to legitimacy or illegitimacy but merely
state when the child is considered to have been conceived. The status of
the child will depend upon the status of the marriage in which he or she
is considered to have been conceived.

Whether the child is legitimate or illegitimate depends upon the status of

the first marriage.

ART. 169. The legitimacy or illegitimacy of a child born after 300 days
following the termination of the marriage shall be proved by whoever
alleges such legitimacy or illegitimacy.
NO PRESUMPTION FOR A CHILD BORN AFTER 300 DAYS AFTER
TERMINATION OF MARRIAGE.

The law considers 300 days as the longest gestation period of a child in
the mother’s womb. Thus, no presumption can attach, thereby
necessitating the introduction of evidence by whoever alleges legitimacy
or illegitimacy.

ART. 170-171

Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording
in the civil register, if the husband or, in a proper case, any of his heirs,
should reside in the city or municipality where the birth took place or
was recorded.

If the husband or, in his default all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was recorded,
the period shall be two years if they should reside in the Philippines; and
three years abroad. If the birth of the child has been concealed from or
was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.

Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following
cases:

1. If the husband should die before the expiration of the period

fixed for bringing his action;

2. If he should die after the filing of the complaint, without having

desisted therefrom; or

3. If the child was born after the death of the husband.

PARTIES

Impugning the legitimacy of a child cannot be set up by way of a defense

or as a collateral issue. Legitimacy cannot be collaterally attacked or
impugned. It can be impugned only in a direct suit precisely filed for the
purpose of assailing the legitimacy of the child. Only the husband can
file a direct action to impugn legitimacy of the child.

His heirs can substitute him only if he dies before the expiration of the
period fixed for bringing the action or after the filing of the same,
without him having desisted therefrom, or if the child was born after his
death.
 GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and
MA. THERESA ALMONTE, respondents. [G.R. No. 123450. August 31,
2005]
CORONA, J.:

The child, by reason of his mental and physical immaturity, needs special
safeguard and care, including appropriate legal protection before as well as after
birth. In case of assault on his rights by those who take advantage of his
innocence and vulnerability, the law will rise in his defense with the single-
minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent
Ma. Theresa Almonte, and a child named Jose Gerardo. Gerardo and Ma.
Theresa were married on December 29, 1989. After their marriage, they lived
with Ma. Theresas parents in Fairview, Quezon City. Almost a year later, on
December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.

Gerardo and Ma. Theresas relationship turned out to be short-lived,

however. On December 19, 1991, Gerardo filed a petition to have his marriage to
Ma. Theresa annulled on the ground of bigamy. He alleged that nine years before
he married Ma. Theresa on December 10, 1980, she had married one Mario
Gopiao, which marriage was never annulled. Gerardo also found out that Mario
was still alive and was residing in Loyola Heights, Quezon City.

Ma. Theresa did not deny marrying Mario when she was twenty years old.
She, however, averred that the marriage was a sham and that she never lived with
Mario at all.

The trial court ruled that Ma. Theresas marriage to Mario was valid and
subsisting when she married Gerardo and annulled her marriage to the latter for
being bigamous. It declared Jose Gerardo to be an illegitimate child as a result.
The custody of the child was awarded to Ma. Theresa while Gerardo was granted
visitation rights.

Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage
annulled. She held him responsible for the bastardization of Gerardo. She moved
for the reconsideration of the above decision INSOFAR ONLY as that portion of
the decision which grant(ed) to the petitioner so-called visitation rights between
the hours of 8 in the morning to 12:00 p.m. of any Sunday.[10] She argued that
there was nothing in the law granting visitation rights in favor of the putative
father of an illegitimate child.[11] She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her maiden name,
following the rule that an illegitimate child shall use the mothers surname.

Gerardo opposed the motion. He insisted on his visitation rights and the
retention of Concepcion as Jose Gerardos surname.

Applying the best interest of the child principle, the trial court denied Ma.
Theresas motion and made the following observations:

It is a pity that the parties herein seem to be using their son to get at or to hurt the
other, something they should never do if they want to assure the normal
development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs a
father, especially as he is a boy, who must have a father figure to recognize
something that the mother alone cannot give. Moreover, the Court believes that
the emotional and psychological well-being of the boy would be better served if
he were allowed to maintain relationships with his father.

There being no law which compels the Court to act one way or the other on this
matter, the Court invokes the provision of Art. 8, PD 603 as amended, otherwise
known as the Child and Youth Welfare Code, to wit:

In all questions regarding the care, custody, education and property of the child,
his welfare shall be the paramount consideration.

WHEREFORE, the respondents Motion for Reconsideration has to be, as it is

hereby DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals, assigning as error the
ruling of the trial court granting visitation rights to Gerardo. She likewise
opposed the continued use of Gerardos surname (Concepcion) despite the fact
that Jose Gerardo had already been declared illegitimate and should therefore use
her surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.[13]

On the issue raised by Ma. Theresa that there was nothing in the law that
granted a putative father visitation rights over his illegitimate child, the appellate
court affirmed the best interest of the child policy invoked by the court a quo. It
ruled that [a]t bottom, it (was) the child’s welfare and not the convenience of the
parents which (was) the primary consideration in granting visitation rights a few
hours once a week.[14]

The appellate court likewise held that an illegitimate child cannot use the
mothers surname motu proprio. The child, represented by the mother, should file
a separate proceeding for a change of name under Rule 103 of the Rules of Court
to effect the correction in the civil registry.[15]

Undaunted, Ma. Theresa moved for the reconsideration of the adverse

decision of the appellate court. She also filed a motion to set the case for oral
arguments so that she could better ventilate the issues involved in the
controversy.

After hearing the oral arguments of the respective counsels of the parties,
the appellate court resolved the motion for reconsideration. It reversed its earlier
ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but
by Mario during her first marriage:

It is, therefore, undeniable established by the evidence in this case that the
appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never
entered into a lawful marriage with the appellee [Gerardo] since the so-called
marriage with the latter was void ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma. Theresa] was legitimately married
to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990.

Therefore, the child Jose Gerardo under the law is the legitimate child of the
legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he
cannot be deemed to be the illegitimate child of the void and non-existent
marriage between [Ma. Theresa] and [Gerardo], but is said by the law to be the
child of the legitimate and existing marriage between [Ma. Theresa] and Mario
Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying
that [Gerardo] can claim neither custody nor visitorial rights over the child Jose
Gerardo.

Further, [Gerardo] cannot impose his name upon the child. Not only is it without
legal basis (even supposing the child to be his illegitimate child [Art. 146, The
Family Code]); it would tend to destroy the existing marriage between [Ma.
Theresa] and Gopiao, would prevent any possible repproachment between the
married couple, and would mean a judicial seal upon an illegitimate relationship.
[16]

The appellate court brushed aside the common admission of Gerardo and
Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose
Gerardos birth certificate showing that he was born a little less than a year after
Gerardo and Ma. Theresa were married:

We are not unaware of the movants argument that various evidence exist that
appellee and the appellant have judicially admitted that the minor is their natural
child. But, in the same vein, We cannot overlook the fact that Article 167 of the
Family Code mandates:

The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.
(underscoring ours)

Thus, implicit from the above provision is the fact that a minor cannot be
deprived of his/her legitimate status on the bare declaration of the mother and/or
even much less, the supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate children for ones
legitimacy or illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information contained
therein are merely supplied by the mother and/or the supposed father. It should
be what the law says and not what a parent says it is.[17] (Emphasis supplied)

Shocked and stunned, Gerardo moved for a reconsideration of the above

decision but the same was denied.[18] Hence, this appeal.

The status and filiation of a child cannot be compromised. [19] Article 164 of
the Family Code is clear. A child who is conceived or born during the marriage
of his parents is legitimate.[20]

As a guaranty in favor of the child [21] and to protect his status of legitimacy,
Article 167 of the Family Code provides:

Article 167. The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of

legitimacy.[22] We explained the rationale of this rule in the recent case
of Cabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the supposed
virtue of the mother. It is grounded on the policy to protect the innocent offspring
from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has
no standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas
husband Mario or, in a proper case,[25] his heirs, who can contest the legitimacy
of the child Jose Gerardo born to his wife. [26] Impugning the legitimacy of a child
is a strictly personal right of the husband or, in exceptional cases, his heirs.
[27]
Since the marriage of Gerardo and Ma. Theresa was void from the very
beginning, he never became her husband and thus never acquired any right to
impugn the legitimacy of her child.

The presumption of legitimacy proceeds from the sexual union in marriage,

particularly during the period of conception.[28] To overthrow this presumption on
the basis of Article 166 (1)(b) of the Family Code, it must be shown beyond
reasonable doubt that there was no access that could have enabled the husband to
father the child.[29] Sexual intercourse is to be presumed where personal access is
not disproved, unless such presumption is rebutted by evidence to the contrary.[30]

The presumption is quasi-conclusive and may be refuted only by the

evidence of physical impossibility of coitus between husband and wife within
the first 120 days of the 300 days which immediately preceded the birth of the
child.[31]

To rebut the presumption, the separation between the spouses must be such
as to make marital intimacy impossible.[32] This may take place, for instance,
when they reside in different countries or provinces and they were never together
during the period of conception.[33] Or, the husband was in prison during the
period of conception, unless it appears that sexual union took place through the
violation of prison regulations.[34]

Here, during the period that Gerardo and Ma. Theresa were living together
in Fairview, Quezon City, Mario was living in Loyola Heights which is also in
Quezon City. Fairview and Loyola Heights are only a scant four kilometers
apart.

Not only did both Ma. Theresa and Mario reside in the same city but also
that no evidence at all was presented to disprove personal access between them.
Considering these circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it physically
impossible for them to engage in the marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the

assumption should be presented by him who asserts the contrary. There is no
such evidence here. Thus, the presumption of legitimacy in favor of Jose
Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

Gerardo relies on Ma. Theresas statement in her answer [35] to the petition for
annulment of marriage[36] that she never lived with Mario. He claims this was an
admission that there was never any sexual relation between her and Mario, an
admission that was binding on her.

Gerardos argument is without merit.

First, the import of Ma. Theresas statement is that Jose Gerardo is not her
legitimate son with Mario but her illegitimate son with Gerardo. This declaration
― an avowal by the mother that her child is illegitimate ― is the very
declaration that is proscribed by Article 167 of the Family Code.

The language of the law is unmistakable. An assertion by the mother against

the legitimacy of her child cannot affect the legitimacy of a child born or
conceived within a valid marriage.

Second, even assuming the truth of her statement, it does not mean that there
was never an instance where Ma. Theresa could have been together with Mario
or that there occurred absolutely no intercourse between them. All she said was
that she never lived with Mario. She never claimed that nothing ever happened
between them.

Telling is the fact that both of them were living in Quezon City during the
time material to Jose Gerardos conception and birth. Far from foreclosing the
possibility of marital intimacy, their proximity to each other only serves to
reinforce such possibility. Thus, the impossibility of physical access was never
established beyond reasonable doubt.

Third, to give credence to Ma. Theresas statement is to allow her to arrogate

unto herself a right exclusively lodged in the husband, or in a proper case, his
heirs.[37] A mother has no right to disavow a child because maternity is never
uncertain.[38] Hence, Ma. Theresa is not permitted by law to question Jose
Gerardos legitimacy.

Finally, for reasons of public decency and morality, a married woman

cannot say that she had no intercourse with her husband and that her offspring is
illegitimate.[39] The proscription is in consonance with the presumption in favor
of family solidarity. It also promotes the intention of the law to lean toward the
legitimacy of children.[40]

Gerardos insistence that the filiation of Jose Gerardo was never an issue
both in the trial court and in the appellate court does not hold water. The fact that
both Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was born
to them was immaterial. That was, in effect, an agreement that the child was
illegitimate. If the Court were to validate that stipulation, then it would be
tantamount to allowing the mother to make a declaration against the legitimacy
of her child and consenting to the denial of filiation of the child by persons other
than her husband. These are the very acts from which the law seeks to shield the
child.

Public policy demands that there be no compromise on the status and

filiation of a child.[41] Otherwise, the child will be at the mercy of those who may
be so minded to exploit his defenselessness.
 The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It
has no evidentiary value in this case because it was not offered in evidence
before the trial court. The rule is that the court shall not consider any evidence
which has not been formally offered.[42]

Moreover, the law itself establishes the status of a child from the moment of
his birth.[43] Although a record of birth or birth certificate may be used as primary
evidence of the filiation of a child, [44] as the status of a child is determined by the
law itself, proof of filiation is necessary only when the legitimacy of the child is
being questioned, or when the status of a child born after 300 days following the
termination of marriage is sought to be established.[45]

Here, the status of Jose Gerardo as a legitimate child was not under attack as
it could not be contested collaterally and, even then, only by the husband or, in
extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in
this case was improper and uncalled for.

In addition, a record of birth is merely prima facie evidence of the facts

contained therein.[46] As prima facie evidence, the statements in the record of
birth may be rebutted by more preponderant evidence. It is not conclusive
evidence with respect to the truthfulness of the statements made therein by the
interested parties.[47] Between the certificate of birth which is prima
facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive
presumption of law (rebuttable only by proof beyond reasonable doubt) of his
legitimacy, the latter shall prevail. Not only does it bear more weight, it is also
more conducive to the best interests of the child and in consonance with the
purpose of the law.

It perplexes us why both Gerardo and Ma. Theresa would doggedly press for
Jose Gerardos illegitimacy while claiming that they both had the child’s interests
at heart. The law, reason and common sense dictate that a legitimate status is
more favorable to the child. In the eyes of the law, the legitimate child enjoys a
preferred and superior status. He is entitled to bear the surnames of both his
father and mother, full support and full inheritance. [48] On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority
only of his mother. He can claim support only from a more limited group and his
legitime is only half of that of his legitimate counterpart. [49] Moreover (without
unwittingly exacerbating the discrimination against him), in the eyes of society, a
bastard is usually regarded as bearing a stigma or mark of dishonor. Needless to
state, the legitimacy presumptively vested by law upon Jose Gerardo favors his
interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble
between the very persons who were passionately declaring their concern for him.
The paradox was that he was made to suffer supposedly for his own sake. This
madness should end.

This case has been pending for a very long time already. What is specially
tragic is that an innocent child is involved. Jose Gerardo was barely a year old
when these proceedings began. He is now almost fifteen and all this time he has
been a victim of incessant bickering. The law now comes to his aid to write finis
to the controversy which has unfairly hounded him since his infancy.
 Having only his best interests in mind, we uphold the presumption of his
legitimacy.

As a legitimate child, Jose Gerardo shall have the right to bear the surnames
of his father Mario and mother Ma. Theresa, in conformity with the provisions of
the Civil Code on surnames.[50] A persons surname or family name identifies the
family to which he belongs and is passed on from parent to child. [51] Hence,
Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes of the
law, not related to him in any way.

The matter of changing Jose Gerardos name and effecting the corrections of
the entries in the civil register regarding his paternity and filiation should be
threshed out in a separate proceeding.

In case of annulment or declaration of absolute nullity of marriage, Article

49 of the Family Code grants visitation rights to a parent who is deprived of
custody of his children. Such visitation rights flow from the natural right of both
parent and child to each others company. There being no such parent-child
relationship between them, Gerardo has no legally demandable right to visit Jose
Gerardo.

Our laws seek to promote the welfare of the child. Article 8 of PD 603,
otherwise known as the Child and Youth Welfare Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding the care, custody,
education and property of the child, his welfare shall be the paramount
consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of

which the Philippines is a signatory is similarly emphatic:
Article 3

1. In all actions concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.

The State as parens patriae affords special protection to children from

abuse, exploitation and other conditions prejudicial to their development. It is
mandated to provide protection to those of tender years.[52] Through its laws, the
State safeguards them from everyone, even their own parents, to the end that
their eventual development as responsible citizens and members of society shall
not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at
their very identity and lineage.

WHEREFORE, the petition is hereby DENIED. The September 14, 1995

and January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No.
40651 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.
 CAMELO CABATANIA, petitioner, vs. COURT OF APPEALS and
CAMELO REGODOS, respondents. [G.R. No. 124814. October 21, 2004]

CORONA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of

Court assailing the March 15, 1996 decision[1] of the Court of Appeals in CA-
G.R. 36708 which in turn affirmed the decision of the Regional Trial Court of
Cadiz City, Branch 60 in Spec. Proc. No. 88-C which compelled petitioner
Camelo Cabatania to acknowledge private respondent Camelo Regodos as his
illegitimate son and to give support to the latter in the amount of P 500 per
month.

This controversy stemmed from a petition for recognition and support filed
by Florencia Regodos in behalf of her minor son, private respondent Camelo
Regodos.

During the trial, Florencia testified that she was the mother of private
respondent who was born on September 9, 1982 and that she was the one
supporting the child. She recounted that after her husband left her in the early
part of 1981, she went to Escalante, Negros Occidental to look for work and was
eventually hired as petitioner’s household help. It was while working there as a
maid that, on January 2, 1982, petitioner brought her to Bacolod City where they
checked in at the Visayan Motel and had sexual intercourse. Petitioner promised
to support her if she got pregnant.

Florencia claimed she discovered she was carrying petitioners child 27 days
after their sexual encounter. The sexual intercourse was repeated in March 1982
in San Carlos City. Later, on suspicion that Florencia was pregnant, petitioners
wife sent her home. But petitioner instead brought her to Singcang, Bacolod City
where he rented a house for her. On September 9, 1982, assisted by a hilot in her
aunts house in Tiglawigan, Cadiz City, she gave birth to her child, private
respondent Camelo Regodos.

Petitioner Camelo Cabatanias version was different. He testified that he was

a sugar planter and a businessman. Sometime in December, 1981, he hired
Florencia as a servant at home. During the course of her employment, she would
often go home to her husband in the afternoon and return to work the following
morning. This displeased petitioners wife, hence she was told to look for another
job.

In the meantime, Florencia asked permission from petitioner to go home and

spend New Years Eve in Cadiz City. Petitioner met her on board the Ceres bus
bound for San Carlos City and invited her to dinner. While they were eating, she
confided that she was hard up and petitioner offered to lend her save money.
Later, they spent the night in San Carlos City and had sexual intercourse. While
doing it, he felt something jerking and when he asked her about it, she told him
she was pregnant with the child of her husband. They went home the following
day.

In March 1982, Florencia, then already working in another household, went

to petitioners house hoping to be re-employed as a servant there. Since
 petitioners wife was in need of one, she was re-hired. However petitioners wife
noticed that her stomach was bulging and inquired about the father of the unborn
child. She told petitioners wife that the baby was by her husband. Because of her
condition, she was again told to go home and they did not see each other
anymore.

Petitioner was therefore surprised when summons was served on him by

Florencias counsel. She was demanding support for private respondent Camelo
Regodos. Petitioner refused, denying the alleged paternity. He insisted she was
already pregnant when they had sex. He denied going to Bacolod City with her
and checking in at the Visayan Motel. He vehemently denied having sex with her
on January 2, 1982 and renting a house for her in Singcang, Bacolod City.

After trial, the court a quo gave more probative weight to the testimony of
Florencia despite its discovery that she misrepresented herself as a widow when,
in reality, her husband was alive. Deciding in favor of private respondent, the
trial court declared:

The child was presented before the Court, and if the Court is to decide this case,
based on the personal appearance of the child then there can never be a doubt
that the plaintiff-minor is the child of the defendant with plaintiff-minors mother,
Florencia Regodos.
xxx xxx xxx
In view of the evidence presented by the plaintiff, the Court finds the evidence of
the plaintiff in support of the claim to be meritorious; defendant admitted having
a sexual intercourse with the plaintiffs mother, Florencia Regodos, but denied
paternity to the child. The child was presented before the Court, and if the Court
is to decide this case, based on the personal appearance of the child, then there
can never be a doubt that the plaintiff-minor is the child of the defendant with
plaintiff-minors mother, Florencia Regodos.[2]

On appeal, the Court of Appeals affirmed the RTC:

The misrepresentation made by Florencia in the petition that she was a widow
should not prejudice the right of petitioner-appellee. As held by the Supreme
Court, even where a witness has been found to have deliberately falsified the
truth in some particulars, it is not required that the whole of her testimony be
rejected (People vs. Bohol, 170 SCRA 585). It is perfectly reasonable to believe
the testimony of a witness with respect to some facts and disbelieve it with
respect to other facts (People vs. Delas, 199 SCRA 574, 575). There is therefore
no reason to disbelieve Florencia that her first intercourse with appellant
occurred on January 2, 1982 and nine (9) months later or on September 9, 1982,
she gave birth to appellee (TSN, Hearing of June 10, 1991 and Exhibit A).

In the absence of arbitrariness in the evaluation of the evidence adduced before

the trial court and there being no evidence that the latter had overlooked or
misappreciated, we find no cogent reason to disturb the trial courts findings.
WHEREFORE, the appealed decision is AFFIRMED.[3]

Hence this petition which assigns the following errors:

A. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF ARTICLE 283

OF THE CIVIL CODE ON THE COMPULSORY RECOGNITION AND
 AWARD OF SUPPORT IN FAVOR OF RESPONDENT-APPELLEE CAMELO
REGODOS;

B. THE COURT OF APPEALS ERRED IN ITS DECISION BASED ON THE

EVIDENCE ADDUCED BY RESPONDENT CAMELO REGODOS BEFORE
THE TRIAL COURT.[4]

Clearly, this petition calls for a review of the factual findings of the two
lower courts. As a general rule, factual issues are not within the province of this
Court. Factual findings of the trial court, when adopted and confirmed by the
Court of Appeals, become final and conclusive and may not be reviewed on
appeal except (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculation, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension of facts; (5) when
the findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, goes beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the findings of fact are
conclusions without citation of specific evidence on which they are based; (9)
when the Court of Appeals manifestly overlooks certain relevant facts not
disputed by the parties and which, if properly considered, justifies a different
conclusion, and (10) when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted by the evidence on
record. The Court is convinced that this case falls within one of the exceptions.[5]

The trial courts finding of a paternal relationship between petitioner and

private respondent was based on the testimony of the childs mother and the
personal appearance of the child.

Time and again, this Court has ruled that a high standard of proof is required
to establish paternity and filiation. [6] An order for recognition and support may
create an unwholesome situation or may be an irritant to the family or the lives
of the parties so that it must be issued only if paternity or filiation is established
by clear and convincing evidence.[7]

The applicable provisions of the law are Articles 172 and 175 of the Civil
Code:

Art. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:

(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.

xxx xxx xxx

Private respondent presented a copy of his birth and baptismal certificates,

the preparation of which was without the knowledge or consent of petitioner. A
certificate of live birth purportedly identifying the putative father is not
competent evidence of paternity when there is no showing that the putative
father had a hand in the preparation of said certificate. The local civil registrar
has no authority to record the paternity of an illegitimate child on the
information of a third person.[8]

In the same vein, we have ruled that, while a baptismal certificate may be
considered a public document, it can only serve as evidence of the administration
of the sacrament on the date specified but not the veracity of the entries with
respect to the childs paternity. [9] Thus, certificates issued by the local civil
registrar and baptismal certificates are per se inadmissible in evidence as proof
of filiation and they cannot be admitted indirectly as circumstantial evidence to
prove the same.[10]

Aside from Florencias self-serving testimony that petitioner rented a house

for her in Singcang, Bacolod City, private respondent failed to present sufficient
proof of voluntary recognition.

We now proceed to the credibility of Florencias testimony. Both the trial

court and the appellate court brushed aside the misrepresentation of Florencia in
the petition for recognition that she was a widow. Both courts dismissed the lie
as minor which did not affect the rest of her testimony. We disagree. The fact that
Florencias husband is living and there is a valid subsisting marriage between
them gives rise to the presumption that a child born within that marriage is
legitimate even though the mother may have declared against its legitimacy or
may have been sentenced as an adulteress.[11] The presumption of legitimacy
does not only flow out of a declaration in the statute but is based on the broad
principles of natural justice and the supposed virtue of the mother. The
presumption is grounded on the policy to protect innocent offspring from the
odium of illegitimacy.[12]

In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis,

the extremely subjective test of physical resemblance or similarity of features
will not suffice as evidence to prove paternity and filiation before the courts of
law.

WHEREFORE, the petition is hereby GRANTED. The assailed decision of

the Court of Appeals in CA-G.R. 36708 dated March 15, 1996, affirming the
decision of the Regional Trial Court of Cadiz City, Branch 60, in Spec. Proc. No.
88-C is REVERSED and SET ASIDE. Private respondents petition for
recognition and support is dismissed.

SO ORDERED.
Generally, therefore, where the husband, the sovereign arbiter of his
honor, fails to challenge the presumption of legitimacy of a child born to
his wife in a direct suit for that purpose, no one can subsequently assert
the husband’s strictly personal right except the heirs in certain very
restricted situation as mentioned.
For example, if a wife gives birth to a child of her paramour, the said
child is born inside the valid marriage of the wife and the husband. Such
child is therefore considered legitimate as to the said husband and wife.
Only the husband can impugn the legitimacy of the child if the said
husband wants to. In the event the paramour files an action for the
custody of the child contending that he is the natural father, the action
should be dismissed because only the husband, as a general rule, can
claim that the child is illegitimate in a direct action for that purpose and
only on the grounds provided by law. To allow the custody case to
prosper would mean allowing the paramour to impugn the legitimacy of
the child vis-a vis the husband which is not sanctioned by the law.

Impugning the legitimacy of a child cannot be made in an action for

partition as this is a collateral attack.

The heirs on the other hand, are mere substitutes of the husband, and,
therefore, cannot file any action to impugn the legitimacy of the child if
the husband himself failed to file such action despite knowledge of the
illegitimacy within the prescribed period provided by law, or when the
husband renounces his right to impugn the subject child’s legitimacy, or
if it is shown that he has desisted from pursuing a suit already filed.
However, the heirs can still file such a suit after the death of the
husband but also within the prescriptive period set in Article 170. All
kinds of heirs, whether testamentary or legal, compulsory or voluntary,
are contemplated by law.

The law does not give the mother the standing to file an action to
impugn the filiation or legitimacy of her children because of maternity is
never uncertain.

REASON FOR THE LIMITATION OF PARTIES WITH LEGAL STANDING.

based upon a desire to protect innocent children against attacks upon

paternity.

No right of action on the part of the said outsider, even if he claims to be

the natural father of the child, so that he could not attack the family
unit and the legitimacy and well being of the child far outweighs the
private interest of the said outsider claiming to be the natural father of
the child.

Also to prevent a child so born from repudiating his own legitimacy.

The prescriptive periods are short compared to the other prescriptive

period relative to any other action such as annulment of marriage and
legal separation. Precisely to avoid leaving in dispute for a long period of
time the status of the child. Bastardization of a child is a very serious
matter which public policy does not encourage.

What is important is the knowledge of birth or its recording in the civil

register. The prescriptive period will start to run from that time and not
from the subsequent knowledge that the child is not his child.

It started from the knowledge of the child’s birth and not from the
knowledge that the child was not his. Also, the concealment provided
for by the law does not refer to the concealment that the child was not
the husband’s but the concealment that a child was in fact born or
registered in the civil registry as having been delivered by the wife.

PROOF OF FILIATION

ART. 172. The filiation of legitimate children is established by any of the

following:

1. The record of birth appearing in the civil register or a final

judgment; or

2. An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation

shall be proved by:

1. The open and continuous possession of the status of a

legitimate child; or

2. any other means allowed by the Rules of Court.

FILIATION ESTABLISHED.

Lineage cannot depend wholly upon the presence or absence of paternal

similarity or physical appearance.

However, the resemblance between the parent and the child can be
competent and material evidence to establish parentage if such
resemblance is accompanied by other strong evidence, whether direct or
circumstantial, to prove the filiation of the child.

For as long as the children were conceived or born inside a valid

marriage, they are declared a legitimate. If the children were conceived
and born outside a valid marriage or inside a void marriage, they are
illegitimate unless otherwise provided by proof of legitimacy likewise be
used to prove illegitimacy but merely provides for the necessary
documentary evidence to prove any claim of legitimate or illegitimate
filiation.
The probative value of the said documents, attains great weight and
significance over all other evidence where children were born three
hundred days following the termination of the marriage and no
subsequent marriage has been entered into. This is so because in such
cases, there is no declaration no presumption of legitimacy or
illegitimacy. The legitimacy or illegitimacy shall be proved by whoever
alleges such legitimacy or illegitimacy.

RECORD OF BIRTH.

A record of birth appearing in the civil register is an official government

source. It is a public document and is prima facie evidence of the facts
therein contained. As prima facie evidence, it may be rebutted.
Alleged father did not sign in the birth certificate, placing of his name by
the mother, or doctor or registrar is incompetent evidence of paternity of
said child.

The birth certificate signed by the parents is adequate proof of paternity

without need of further court action.

FINAL JUDGEMNT

Judicial decision bearing on the status of the children are binding and
conclusive. Final judgment arising from action to claim legitimacy is a
clear proof of filiation.

A statement in a court of record referring to one as his or her legitimate

child will fall under “any other means allowed by the Rules of Court”.

Reportorial statement by the court does not establish filiation; if it is

only when the court says that if “finds…” obiter dictum, part of the
judgment.

ADMISSION IN PULIC OR PRIVATE HANDWRITTEN DOCUMENT.

Complete act of recognition without need of court action.

Mere instrument, not in the handwriting of the supposed parent or not a

public instrument not qualify under the law.

Private instrument must be handwritten and signed by the parents.

OPEN AND CONTINUOUS POSSESSION OF LEGITIMATE STATUS.

absence of the foregoing evidence, open and continuous possession of

the status of a legitimate child.

continuous possession means not be of an intermittent character, father

has treated the child as his own, directly and not through others,
spontaneously and without concealment though without publicity.
Permanent intention of the supposed father to consider the child as his
own, paternal affection and care.
The paternal affection and care must not be attributed to pure charity,
“such act must be of such a nature that they reveal not only the
conviction of paternity, but also the apparent desire to have and treat
the child as such in all relations in society and in life, not accidentally
but continuously clear and convincing over act and conduct.

Like sending appellant to school, paying for her tuition fees, school
uniforms, books, board and lodging at the Colegio de Sagrado de Jesus,
defraying appellant’s hospitalization expenses, providing her with a
monthly allowance, paying for the funeral expenses of appellant’s
mother, acknowledging appellant’s paternal greetings and calling
appellant his “hija” or child, instructing his office personnel to give
appellant’s monthly allowance, recommending appellant for employment
at the Miller, Cruz & co., allowing appellant to use his house in Bacolod
and paying for her long distance telephone calls, having appellant spend
her vacation in his apartment in manila and also at his Forbes residence,
allowing appellant to use his surname in her scholastic and other
records.

Alleged father only met the respondent four times to give him money.
For “continuous possession” to exist, the father’s conduct toward his son
must also be spontaneous and uninterrupted. The fact that the father
met the children four times to give them money is not enough.

EVIDENCE UNDER THE RULES OF COURT AND SPECIAL LAWS.

in the absence evidentiary documents in first paragraph of Article 172 (1)

and (2), legitimate filiation (or illegitimate filiation) shall be proved by
any other means allowed by the Rules of Court and special laws.
Pictures, typewritten letters and affidavits do not constitute proof of
filiation. The fact alone that a person used the surname of his father,
without his consent does not constitute proof of filiation or paternity.

Baptismal Certificate - Simply proof of the only act to which the priest
may certify by reason of his personal knowledge an act done by himself
or in his presence, the administration of the sacrament upon the child is
no proof of the declarations in the record with respect to the parentage
of the child baptized.

However, in Mendoza vs. Court of Appeals, 201 SCRA 675, baptismal

certificate, judicial admission, a family bible in which his name has been
entered, admission by silence, testimony of witnesses and other kinds of
proof admissible.

A baptismal certificate to be proof of filiation must be shown that the

father therein participated in the preparation of the same. A birth
certificate not signed by the father is not competent proof of paternity.

A certificate of live birth purportedly identifying the putative father is

not competent evidence in issue of paternity, when there is no showing
that the father had a hand in the preparation of said certificate. The
alleged father did not intervene in the birth certificate, supplying the
information himself, the inscription of his name by the mother or doctor
of registrar is null and void; mere certificate by the registrar without the
signature of the father is not proof of voluntary acknowledgment on the
latter’s part.

Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a
state of insanity. In these cases, the heirs shall have a period of five years within which
to institute the action.

The action already commenced by the child shall survive

notwithstanding the death of either or both of the parties.

ACTION TO CLAIM LEGITIMACY

A personal character which pertains exclusively to him. Only the child

may exercise any time during his lifetime. Exception, if he or she dies
during his or her minority, or while insane, after action had already been
instituted.

ART. 174. Legitimate children shall have the right:

1. To bear the surnames of the father and the mother, in

conformity with the provisions of the Civil Code on Surnames;

2. To receive support from their parents, their ascendants, and in

proper cases, their brothers and sisters, in conformity with the
provisions of this Code on Support; and

3. To be entitled to the legitimate and other successional rights

granted to them by the Civil Code.

RIGHTS OF THE LEGITIMATE CHILD.

A legitimate child has his or her whole lifetime to file an action to claim
his or her legitimacy regardless of what proofs he or she has as provided
for in Article 172, illegitimate child has his or her lifetime to file an
action to claim illegitimacy only if he or she uses the proofs under the
first paragraph of Article 172. If such illegitimate child uses the second
paragraph (continuous possession, Rules of Court) such child could only
bring the action within the lifetime of the parent.

Legitimate child to file an action to claim his or her legitimacy may be

transmitted to his or her heirs, the right of the illegitimate child to claim
his or her status is not transmissible to his or her heirs.

Illegitimate child is entitled to receive support up to his or her

grandparents and his or her grandchildren as legitime. The legitimate
child shall bear the surname of the father, while the illegitimate child
generally bear the surname of the mother.
An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother.

ILLEGITIMATE CHILDREN

ART. 175. Illegitimate children may establish their illegitimate filiation

in the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in

Article 173, except when the action is based on the 2 nd paragraph of
Article 172, in which case the action may be brought during the lifetime
of the alleged parent.

Art. 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child.

CLAIM OF ILLEGITIMATE CHILDREN.

A child born outside a valid marriage or inside a void marriage, except

those provided for in Article 54 of the Family Code, seeks to claim his or
her illegitimate status. Thus, if a philandering husband has a concubine,
a child of such concubine by the said philandering husband is surely
illegitimate. The said illegitimate child may file an action to claim his
illegitimate status vis-a-vis the said philandering husband. However, if
the concubine herself has her own spouse, the said child cannot file an
action to claim his illegitimate status against the philandering husband
although the latter is in fact his natural father. This is so because the
said child was born inside the marriage of the concubine and her own
spouse. The law declares that a child conceived or born inside a valid
marriage is legitimate. It is up to the concubine’s spouse to file a case to
impugn the legitimacy of the child. If the said concubine’s spouse does
not file such a case, then the child shall continue to be the legitimate
child of the concubine and her spouse and not the illegitimate child of
the concubine and the philandering husband. To allow the child to file
the action to claim his illegitimate status vis-à-vis the philandering
husband would, in effect, allow him to impugn his legitimate status with
respect to the concubine and her spouse. This cannot be done. Only the
concubine’s spouse and his heirs, in special cases, are given legal
standing to file an action to impugn the legitimacy of the child. If the
concubine’s legal spouse is successful in impugning the legitimate status
of the child and obtains a court decision that the child is not his, only
then can the said child claim his illegitimate status vis-à-vis the
philandering husband. Also, the said child can do so only in accordance
with law using the appropriate proofs of filiation and within the
prescriptive period.

The proof of illegitimate filiation must be clear and convincing.

Openly exhibited and well known to the family, if preserved in a family

tradition.
Not equal or the same with a legitimate child.

PARENTAL AUTHORITY

Parental authority of the illegitimate child is solely given to the mother.

The mother is the natural guardian of an illegitimate child, and as such
she has a legal right to its custody, care, and person.

However, if the alleged father admits that the child is his and that is
really conclusively his child and he acknowledges that the child is his
and the said father lives with the child and the mother of the said child
under a void marriage, “the father and the mother shall jointly exercise
parental authority over the person of their common children.”

Once parental authority is vested, it cannot be waived except in cases of

adoption, guardianship and surrender to a children’s home or an orphan
institution.

REPUBLIC ACT No. 9255 – An Act Allowing Illegitimate Children to Use

the Surname of their Father, amending for the purpose Article 176 of the
Family Code

As amended Article 176 – Illegitimate children shall use the

surname and shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their filitaion
has been expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public
documents or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime of
each illegitimate child shall consist of one-half of the legitime of a
legitimate child.

Article 992, 970 and 973 – illegitimate children have no right to inherit
ab intestato from the legitimate children and relatives of his/her father
or mother.

Accepted Proof of Filiation

Record of Birth Appearing in the Civil Register or a Final judgment
Importance of birth certificate: A birth certificate is a formidable piece of evidence
prescribed by both the Civil Code and Article 172 of the FC for purposes of recognition
and filiation. Being a public document, a birth certificate offers prima facie evidence of
filiation and a high degree of proof is needed to overthrow the presumption of truth
contained in such public document.

When considered as competent evidence: it is the rule that if the father did not sign in
the birth certificate, the placing of his name by the mother, doctor, register or other
person is incompetent evidence of paternity and the Local Civil Registrar is devoid of
authority to record the paternity of an illegitimate child upon the information of such
third person. The foregoing rule does not, however, apply when there is a showing that
the putative father had a hand in the preparation of the birth certificate, as when he
was the one who went to the Local Civil Registry and gave all the data about his child’s
birth, or who caused the registration, or who supplied the information himself, including
his paternity. But when the birth certificate is signed by the father, the same is
competent evidence of paternity and there is no further need, in fact, to file any action
for acknowledgment because said mode is by itself a consummated act.

Reminder: Baptismal certificate is evidence only to prove the

administration of the sacrament on the dates therein specified, but not
of the veracity of the declaration therein stated with respect to the
parentage of the child baptized. Since baptismal certificates are per se
inadmissible in evidence as proof of filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.

Admission in Public and Private Handwritten Instrument:

Requisites: To be considered competent evidence of paternity or
filiation, the following requisites must concur-
a. There must be a statement of admission of paternity or
filiation;
b. It must be signed by the parent concerned; and
c. The admission must be made personally by the parent himself
or herself, not by any brother, sister or relative, otherwise,
such recognition is ineffectual.

Considered consummated act: The admission of legitimate (or

illegitimate) filiation in a public document or a private handwritten
instrument and signed by the parent concerned is, in itself, a
consummated act of acknowledgment of the child, and no further court
action is required.

Public document:
 The public document contemplated in Article 172 of the FC refers
to the written admission of filiation embodied in a public document
purposely executed as an admission of filiation and not for some
other purpose.
 In Aguilar v. Siasat, the Court considered Alfredo Aguilar’s SSS
Form E-1, by itself, as sufficient proof of filiation under Article 172
of the FC, as said document constitutes an “admission of
legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned”.
 A notarial agreement to support a child whose filiation is admitted
by the putative father is an acceptable evidence to prove paternity.
The notarial agreement must, however, be accompanied by the
putative father’s admission of filiation to be an acceptable evidence
of filiation. Hence, a mere undertaking to provide financial support
without admission of filiation is not an acceptable evidence to
prove filiation.
 Filiation may likewise be established by holographic as well as
notarial wills, except that they no longer need to be probated or to
be strictly in conformity with the formalities thereof for purposes
of establishing filiation.
Private handwritten instrument:
 Generally, in order for a private handwritten instrument to be
considered competent evidence of filiation, it is necessary that: 1)
that there must be statement of admission of filiation; 2) the
handwritten instrument must be signed by the parent concerned.
 Are the foregoing twin requirements to be strictly applied? What if
there is admission of filiation in the handwritten instrument but
the same was not signed by the alleged parent, can it not be
considered as competent evidence of filiation? In the case of Dela
Cruz v. Gracia, the Court adopted the following rules respecting the
requirement of affixing the signature of the acknowledging parent
in any private handwritten instrument wherein an admission of
filiation of a legitimate or illegitimate child is made:
a. Where the private handwritten instrument is the lone piece of
evidence submitted to prove filiation, there should be strict
compliance with the requirement that the same must be
signed by the acknowledging parent; and
b. Where the private handwritten instrument is accompanied by
other relevant and competent evidence, it suffices that the
claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely
corroborative of such other evidence.
 If the child is presumed to be a legitimate child by applying the
provisions of Article 164 of the FC, any admission of paternity by
the wife’s paramour to prove illegitimate filiation may not be given
effect. It is only when the legitimacy of a child has been
successfully impugned that the paternity of the husband can be
rejected.

Open and Continuous possession of status as legitimate or illegitimate

child.
Concept: it means the enjoyment by the child of the position and
privileges usually attached to the status of a legitimate or an illegitimate
child, as the case may be.

Requisites: to prove open and continuous possession of the status of an

illegitimate child, there must be evidence of the manifestation of the
permanent intention of the supposed father to consider the child as his,
by continuous and clear manifestations of parental affection and care,
which cannot be attributed to pure charity. Such acts must be of such a
nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in
society and in life, not accidentally, but continuously. By “continuous” is
meant uninterrupted and consistent, but does not require any particular
length of time.

Illustrative Cases:
 In Perla v. Baring, the child offered the following testimony to
prove his illegitimate filiation with the putative father: (1) that
during their first encounter in 1994, the child called the alleged
father as “Papa” and kissed his hand while the alleged father
hugged him and promised to support him; and (2) that his alleged
 Aunt treated him as a relative and was good to him during his one-
week stay in her place. The Court ruled that such acts cannot be
considered as indications of Randy’s open and continuous
possession of the status of an illegitimate child under the second
paragraph of Article 172 (1). The Court held that except for that
singular occasion in which they met, there are no other acts of the
alleged father treating the child as his son. Neither may paternity
be deduced from how the alleged father’s sister treated the child
because in the mind of the Court, such actuations could have been
done due to charity or some other reason.
 In Ong v. Court of Appeals, the Court held that the four times
during which the alleged father met the child and gave the latter
money cannot be considered proof of continuous possession of the
status of a child. According to the Court, the father’s conduct
toward his son must be spontaneous and uninterrupted for this
ground to exist. In said case, there were no other acts shown of the
alleged father treating the child as his except on the four occasions
during which they met.

Any Other Means Allowed by the Rules of Court and Special Laws:
 DNA test: Competent evidence to prove filiation and paternity.
In Herrera v. Albs, the Court held that an order directing the
alleged father to undergo DNA paternity testing does not violate
his right against self-incrimination because such right applies
only to testimonial evidence. The Court likewise ruled that our
Rules on Evidence do not pose any legal obstacle to the
admissibility of DNA analysis as evidence. In Estate of Rogelio
Ong v. Diaz, it was held that the death of the claimed father
does not ipso facto negate the application of DNA testing for as
long as there exists appropriate biological samples of his DNA. In
Lucas v. Lucas, however, the Court held that to warrant the
issuance of the DNA testing order, there must be a show cause
hearing wherein the applicant must first present sufficient
evidence to establish a prima facie case or a reasonable
possibility of paternity or good cause for the holding of the test.
The Court also stressed that the issuance of a DNA testing order
remains discretionary upon the court. The court may, for
example, consider whether there is absolute necessity for the
DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be
corroborative, the court may, in its discretion, disallow a DNA
testing.

Blood test: Not conclusive for the purpose of establishing paternity.

Hence, not competent evidence.

Physical resemblance: the extremely subjective test of physical

resemblance or similarity is not competent evidence to prove paternity
and filiation.

Other proof: the FC also allows to establish his claimed filiation by “any
other means allowed by the Rules of Court and special law”, like his
baptismal certificate, a judicial admission, a family Bible in which his
name has been entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses, and other kinds of
proof admissible under Rule 130 of the Rules of Court. The totality of
evidence, however, should be sufficient to establish filiation because a
high standard of proof is required to establish paternity and filiation. An
order for recognition must be issued only if paternity or filiation is
established by clear and convincing evidence. In Makati Shangrila Hotel
and Resort, Inc. v. Harper, the Court clarified that the case of Heirs of
Ignacio Conti v. Court of Appeals did not treat a baptismal certificate,
standing alone, as sufficient to prove filiation; on the contrary, Conti
expressly held that a baptismal certificate had evidentiary value to prove
filiation if considered alongside other evidence of filiation. As such, a
baptismal certificate alone is not sufficient to resolve a disputed
filiation.

Who can file action to claim filiation and prescriptive periods

Legitimate Filiation Illegitimate Filiation
Who can File: Gen Rule: the child Gen. Rule: The child
claiming legitimate claiming illegitimate
filiation. filiation.

Exceptions: his heirs Exceptions: his heirs

can file in any of the can file in any of the
following cases – following cases-
1) When the child dies 1) When the child dies
during minority; or during minority; or
2) When the child dies 2) When the child dies
during state of during state of
insanity. insanity.

*** Action already

commenced by the
child shall survive
notwithstanding the
death of either or both
of the parties.

Prescriptive Perios: Gen. rule: the action a) if the action to

may be filed during claim illegitimate
the lifetime of the filiation is based on
child. admission of
paternity or filiation
Exception: In in the birth
exceptional cases certificate or written
where the action is instrument:
transmissible to the Gen. Rule: the action
heirs, the action must may be filed during
be filed within five the lifetime of the
years from the death child and even after
of the child. the death of the
1. putative father.
 Exception: in
exceptional cases
1)

JOANIE SURPOSA UY, G.R. No. 183965

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
- versus - VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
JOSE NGO CHUA,
Respondent. September 18, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Rules of Court

assailing the Resolution dated 25 June 2008 of the Regional Trial Court
(RTC) of Cebu City, Branch 24, which granted the demurrer to evidence of
respondent Jose Ngo Chua, resulting in the dismissal of Special
Proceeding No. 12562-CEB.

Petitioner Joanie Surposa Uy filed on 27 October 2003 before the

RTC a Petition[1] for the issuance of a decree of illegitimate filiation against
respondent. The Complaint was docketed as Special Proceeding No.
12562-CEB, assigned to RTC-Branch 24.

Petitioner alleged in her Complaint that respondent, who was then

married, had an illicit relationship with Irene Surposa (Irene). Respondent
and Irene had two children, namely, petitioner and her brother,
Allan. Respondent attended to Irene when the latter was giving birth to
petitioner on 27 April 1959, and instructed that petitioners birth certificate
be filled out with the following names: ALFREDO F. SURPOSA as father
and IRENE DUCAY as mother. Actually, Alfredo F. Surposa was the name
of Irenes father, and Ducay was the maiden surname of Irenes
mother. Respondent financially supported petitioner and Allan.Respondent
had consistently and regularly given petitioner allowances before she got
married. He also provided her with employment. When petitioner was still
in high school, respondent required her to work at the Cebu Liberty
Lumber, a firm owned by his family. She was later on able to work at the
Gaisano- Borromeo Branch through respondents efforts. Petitioner and
Allan were introduced to each other and became known in the Chinese
community as respondents illegitimate children. During petitioners
wedding, respondent sent his brother Catalino Chua (Catalino) as his
representative, and it was the latter who acted as father of the
bride. Respondents relatives even attended the baptism of petitioners
daughter.[2]

In his Answer[3] to the Complaint, filed on 9 December 2003,

respondent denied that he had an illicit relationship with Irene, and that
petitioner was his daughter.[4] Hearings then ensued during which
petitioner testified that respondent was the only father she knew; that he
took care of all her needs until she finished her college education; and that
he came to visit her on special family occasions. She also presented
documentary evidence to prove her claim of illegitimate
filiation. Subsequently, on 27 March 2008, respondent filed a Demurrer to
Evidence[5] on the ground that the Decision dated 21 February 2000of
RTC-Branch 9 in Special Proceeding No. 8830-CEB had already been
barred by res judicata in Special Proceeding No. 12562-CEB before RTC-
Branch 24.

It turned out that prior to instituting Special Proceeding No. 12562-

CEB on 27 October 2003, petitioner had already filed a similar Petition for
the issuance of a decree of illegitimate affiliation against respondent. It
was docketed as Special Proceeding No. 8830-CEB, assigned to RTC-
Branch 9. Petitioner and respondent eventually entered into a
Compromise Agreement in Special Proceeding No. 8830-CEB, which was
approved by RTC-Branch 9 in a Decision[6] dated 21 February 2000. The
full contents of said Decision reads:
 Under consideration is a Compromise Agreement filed by
the parties on February 18, 2000, praying that judgment be
rendered in accordance therewith, the terms and conditions of
which follows:

1. Petitioner JOANIE SURPOSA UY declares,

admits and acknowledges that there is no blood
relationship or filiation between petitioner and her
brother Allan on one hand and [herein respondent]
JOSE NGO CHUA on the other. This declaration,
admission or acknowledgement is concurred with
petitioners brother Allan, who although not a party to
the case, hereby affixes his signature to this pleading
and also abides by the declaration herein.

2. As a gesture of goodwill and by way of

settling petitioner and her brothers (Allan) civil,
monetary and similar claims but without admitting
any liability, [respondent] JOSE NGO CHUA hereby
binds himself to pay the petitioner the sum of TWO
MILLION PESOS (P2,000,000.00) and another TWO
MILLION PESOS (P2,000,000.00) to her brother,
ALLAN SURPOSA. Petitioner and her brother hereby
acknowledge to have received in full the said
compromise amount.

3. Petitioner and her brother (Allan) hereby

declare that they have absolutely no more claims,
causes of action or demands against [respondent]
JOSE NGO CHUA, his heirs, successors and
assigns and/or against the estate of Catalino Chua,
his heirs, successors and assigns and/or against all
corporations, companies or business enterprises
including Cebu Liberty Lumber and Joe Lino Realty
Investment and Development Corporation where
defendant JOSE NGO CHUA or CATALINO NGO
CHUA may have interest or participation.

4. [Respondent] JOSE NGO CHUA hereby

waives all counterclaim or counter-demand with
respect to the subject matter of the present petition.

5. Pursuant to the foregoing, petitioner hereby

asks for a judgment for the permanent dismissal with
prejudice of the captioned petition. [Respondent] also
asks for a judgment permanently dismissing with
prejudice his counterclaim.
 Finding the said compromise agreement to be in order, the
Court hereby approves the same. Judgment is rendered in
accordance with the provisions of the compromise
agreement. The parties are enjoined to comply with their
respective undertakings embodied in the agreement.[7]

With no appeal having been filed therefrom, the 21 February

2000 Decision of RTC-Branch 9 in Special Proceeding 8830-CEB was
declared final and executory.

Petitioner filed on 15 April 2008 her Opposition[8] to respondents

Demurrer to Evidence in Special Proceeding No. 12562-CEB. Thereafter,
RTC-Branch 24 issued its now assailed Resolution dated 25 June 2008 in
Special Proceeding No. 12562-CEB, granting respondents Demurrer.

RTC-Branch 24 summarized the arguments of respondent and

petitioner in the Demurrer and Opposition, respectively, as follows:
This is to resolve the issues put across in the Demurrer to
the Evidence submitted to this Court; the Opposition thereto; the
Comment on the Opposition and the Rejoinder to the Comment.

xxxx

1. The instant case is barred by the principle of res judicata

because there was a judgment entered based on the
Compromise Agreement approved by this multiple-sala
Court, branch 09, on the same issues and between the
same parties.

2. That such decision of Branch 09, having attained finality, is

beyond review, reversal or alteration by another Regional
Trial Court and not even the Supreme Court, no matter
how erroneous.

3. Judicial Admissions or admission in petitioners pleadings to

the effect that there is no blood relationship between
petitioner and respondent, which is a declaration against
interest, are conclusive on her and she should not be
permitted to falsify.

4. That the Certificate of Live Birth showing that petitioners father

is Alfredo Surposa is a public document which is the
 evidence of the facts therein stated, unless corrected by
judicial order.

5. After receiving the benefits and concessions pursuant to their

compromise agreement, she is estopped from refuting on
the effects thereof to the prejudice of the [herein
respondent].

The summary of the Opposition is in this wise:

1. That the illegitimate filiation of petitioner to respondent is

established by the open, and continuous possession of the
status of an illegitimate child.

2. The Demurrer to the evidence cannot set up the affirmative

grounds for a Motion to Dismiss.

3. The question on the civil status, future support and future

legitime can not be subject to compromise.

4. The decision in the first case does not bar the filing of another
action asking for the same relief against the same
defendant.[9]

Taking into consideration the aforementioned positions of the parties,

RTC-Branch 24 held that:

Looking at the issues from the viewpoint of a judge, this Court

believes that its hands are tied. Unless the Court of Appeals
strikes down the Compromise Judgment rendered by Branch 09
of the Regional Trial Courtof Cebu City, this Court will not attempt
to vacate, much more annul, that Judgment issued by a co-equal
court, which had long become final and executory, and in fact
executed.

This court upholds the Policy of Judicial Stability since to do

otherwise would result in patent abuse of judicial discretion
amounting to lack of jurisdiction. The defense of lack of
jurisdiction cannot be waived. At any rate, such is brought forth in
the Affirmative Defenses of the Answer.

This Court, saddled with many cases, suffers the brunt of

allowing herein case involving same parties to re-litigate on the
same issues already closed.[10]
 In the end, RTC-Branch 24 decreed:

WHEREFORE, in view of the foregoing, the Demurrer to the

Evidence is hereby given due course, as the herein case is
hereby ordered DISMISSED.[11]

RTC-Branch 24 denied petitioners Motion for Reconsideration [12] in a

Resolution[13] dated 29 July 2008.

Petitioner then filed the instant Petition raising the following issues
for resolution of this Court:

Whether or not the principle of res judicata is applicable to

judgments predicated upon a compromise agreement on cases
enumerated in Article 2035 of the Civil Code of the Philippines;

II

Whether or not the compromise agreement entered into by the

parties herein before the Regional Trial Court, Branch 09 of Cebu
City effectively bars the filing of the present case.[14]

At the outset, the Court notes that from the RTC Resolution granting
respondents Demurrer to Evidence, petitioner went directly to this Court
for relief. This is only proper, given that petitioner is raising pure questions
of law in her instant Petition.

Section 1, Rule 45 of the Rules of Court provides:

SECTION 1. Filing of petition with Supreme Court. A party

desiring to appeal by certiorari from a judgment or final order or
resolution of the Court of Appeals, the Sandiganbayan, the
Regional Trial Court or other courts whenever authorized by law,
may file with the Supreme Court a verified petition for review
on certiorari. The petition shall raise only questions of law which
must be distinctly set forth.
 Clearly, a party may directly appeal to this Court from a decision or
final order or resolution of the trial court on pure questions of law. A
question of law lies, on one hand, when the doubt or difference arises as
to what the law is on a certain set of facts; a question of fact exists, on the
other hand, when the doubt or difference arises as to the truth or
falsehood of the alleged facts. Here, the facts are not disputed; the
controversy merely relates to the correct application of the law or
jurisprudence to the undisputed facts.[15]

The central issue in this case is whether the Compromise Agreement

entered into between petitioner and respondent, duly approved by RTC-
Branch 9 in its Decision dated 21 February 2000 in Special Proceeding
No. 8830-CEB, constitutes res judicata in Special Proceeding No. 12562-
CEB still pending before RTC-Branch 24.

The doctrine of res judicata is a rule that pervades every well-

regulated system of jurisprudence and is founded upon two grounds
embodied in various maxims of the common law, namely: (1) public policy
and necessity, which makes it in the interest of the State that there should
be an end to litigation, interest reipublicae ut sit finis litium, and (2) the
hardship of the individual that he should be vexed twice for the same
cause, nemo debet bis vexari pro eadem causa.[16]

For res judicata, to serve as an absolute bar to a subsequent action,

the following requisites must concur: (1) there must be a final judgment or
order; (2) the court rendering it must have jurisdiction over the subject
matter and the parties; (3) it must be a judgment or order on the merits;
and (4) there must be, between the two cases, identity of parties, subject
matter, and causes of action.[17]

It is undeniable that Special Proceeding No. 8830-CEB, previously

before RTC-Branch 9, and Special Proceeding No. 12562-CEB, presently
before RTC-Branch 24, were both actions for the issuance of a decree of
illegitimate filiation filed by petitioner against respondent. Hence, there is
apparent identity of parties, subject matter, and causes of action between
the two cases. However, the question arises as to whether the other
elements of res judicata exist in this case.

The court rules in the negative.

 A compromise is a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put an end to one already
commenced.[18] In Estate of the late Jesus S. Yujuico v. Republic,[19] the
Court pronounced that a judicial compromise has the effect of res
judicata. A judgment based on a compromise agreement is a judgment on
the merits.

It must be emphasized, though, that like any other contract, a

compromise agreement must comply with the requisites in Article 1318 of
the Civil Code, to wit: (a) consent of the contracting parties; (b) object
certain that is the subject matter of the contract; and (c) cause of the
obligation that is established.And, like any other contract, the terms and
conditions of a compromise agreement must not be contrary to law,
morals, good customs, public policy and public order. Any compromise
agreement that is contrary to law or public policy is null and void, and
vests no rights in and holds no obligation for any party. It produces no
legal effect at all.[20]

In connection with the foregoing, the Court calls attention to Article

2035 of the Civil Code, which states:

ART. 2035. No compromise upon the following questions shall be

valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime. (Emphases ours.)

The Compromise Agreement between petitioner and respondent,

executed on 18 February 2000 and approved by RTC-Branch 9 in its
Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB,
obviously intended to settle the question of petitioners status and
filiation, i.e., whether she is an illegitimate child of respondent. In
exchange for petitioner and her brother Allan acknowledging that they
are not the children of respondent, respondent would pay petitioner and
Allan P2,000,000.00 each.Although unmentioned, it was a necessary
consequence of said Compromise Agreement that petitioner also waived
away her rights to future support and future legitime as an illegitimate child
of respondent.Evidently, the Compromise Agreement dated 18 February
2000 between petitioner and respondent is covered by the prohibition
under Article 2035 of the Civil Code.

Advincula v. Advincula[21] has a factual background closely similar to

the one at bar. Manuela Advincula (Manuela) filed, before the Court of
First Instance (CFI) of Iloilo, Civil Case No. 3553 for acknowledgment and
support, against Manuel Advincula (Manuel). On motion of both parties,
said case was dismissed. Not very long after, Manuela again instituted,
before the same court, Civil Case No. 5659 for acknowledgment and
support, against Manuel. This Court declared that although Civil Case No.
3553 ended in a compromise, it did not bar the subsequent filing by
Manuela of Civil Case No. 5659, asking for the same relief from
Manuel. Civil Case No. 3553 was an action for acknowledgement,
affecting a persons civil status, which cannot be the subject of
compromise.

It is settled, then, in law and jurisprudence, that the status and

filiation of a child cannot be compromised. Public policy demands that
there be no compromise on the status and filiation of a child. [22] Paternity
and filiation or the lack of the same, is a relationship that must be judicially
established, and it is for the Court to declare its existence or absence. It
cannot be left to the will or agreement of the parties. [23]

Being contrary to law and public policy, the Compromise Agreement

dated 18 February 2000between petitioner and respondent is void ab
initio and vests no rights and creates no obligations. It produces no legal
effect at all. The void agreement cannot be rendered operative even by the
parties' alleged performance (partial or full) of their respective prestations.
[24]

Neither can it be said that RTC-Branch 9, by approving the

Compromise Agreement, in its Decision dated 21 February 2000 in
Special Proceeding No. 8830-CEB, already made said contract valid and
legal.Obviously, it would already be beyond the jurisdiction of RTC-Branch
9 to legalize what is illegal. RTC-Branch 9 had no authority to approve and
give effect to a Compromise Agreement that was contrary to law and
public policy, even if said contract was executed and submitted for
approval by both parties. RTC-Branch 9 would not be competent, under
any circumstances, to grant the approval of the said Compromise
Agreement. No court can allow itself to be used as a tool to circumvent the
explicit prohibition under Article 2035 of the Civil Code. The following
quote in Francisco v. Zandueta[25] is relevant herein:

It is a universal rule of law that parties cannot, by consent,

give a court, as such, jurisdiction in a matter which is excluded by
the laws of the land. In such a case the question is not whether a
competent court has obtained jurisdiction of a party triable before
it, but whether the court itself is competent under any
circumstances to adjudicate a claim against the defendant. And
where there is want of jurisdiction of the subject-matter, a
judgment is void as to all persons, and consent of parties can
never impart to it the vitality which a valid judgment derives from
the sovereign state, the court being constituted, by express
provision of law, as its agent to pronounce its decrees in
controversies between its people. (7 R. C. L., 1039.)

A judgment void for want of jurisdiction is no judgment at all. It

cannot be the source of any right or the creator of any obligation. All acts
performed pursuant to it and all claims emanating from it have no legal
effect. Hence, it can never become final, and any writ of execution based
on it is void. It may be said to be a lawless thing that can be treated as an
outlaw and slain on sight, or ignored wherever and whenever it exhibits its
head.[26]

In sum, Special Proceeding No. 12562-CEB before RTC-Branch 24

is not barred by res judicata,since RTC-Branch 9 had no jurisdiction to
approve, in its Decision dated 21 February 2000 in Special Proceeding
No. 8830-CEB, petitioner and respondents Compromise Agreement, which
was contrary to law and public policy; and, consequently, the Decision
dated 21 February 2000 in Special Proceeding No. 8830-CEB, being null
and void for having been rendered by RTC-Branch 9 without jurisdiction,
could not have attained finality or been considered a judgment on the
merits.

Nevertheless, the Court must clarify that even though the

Compromise Agreement between petitioner and respondent is void for
being contrary to law and public policy, the admission petitioner made
therein may still be appreciated against her in Special Proceeding No.
12562-CEB. RTC-Branch 24 is only reminded that while petitioners
admission may have evidentiary value, it does not, by itself, conclusively
establish the lack of filiation.[27]

Proceeding from its foregoing findings, the Court is remanding this

case to the RTC-Branch 24 for the continuation of hearing on Special
Proceedings No. 12562-CEB, more particularly, for respondents
presentation of evidence.

Although respondents pleading was captioned a Demurrer to

Evidence, it was more appropriately a Motion to Dismiss on the ground
of res judicata.

Demurrer to Evidence is governed by Rule 33 of the Rules of Court,

Section 1 of which is reproduced in full below:
SECTION 1. Demurrer to evidence. After the plaintiff has
completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. If his motion is denied, he
shall have the right to present evidence. If the motion is granted
but on appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present evidence.

Demurrer to evidence authorizes a judgment on the merits of the

case without the defendant having to submit evidence on his part, as he
would ordinarily have to do, if plaintiff's evidence shows that he is not
entitled to the relief sought. Demurrer, therefore, is an aid or instrument for
the expeditious termination of an action, similar to a motion to dismiss,
which the court or tribunal may either grant or deny. [28]

The Court has recently established some guidelines on when a

demurrer to evidence should be granted, thus:

A demurrer to evidence may be issued when, upon the

facts and the law, the plaintiff has shown no right to relief. Where
the plaintiff's evidence together with such inferences and
conclusions as may reasonably be drawn therefrom does not
warrant recovery against the defendant, a demurrer to evidence
should be sustained. A demurrer to evidence is likewise
sustainable when, admitting every proven fact favorable to the
 plaintiff and indulging in his favor all conclusions fairly and
reasonably inferable therefrom, the plaintiff has failed to make
out one or more of the material elements of his case, or when
there is no evidence to support an allegation necessary to his
claim. It should be sustained where the plaintiff's evidence is
prima facie insufficient for a recovery.[29]

The essential question to be resolved in a demurrer to evidence is

whether petitioner has been able to show that she is entitled to her claim,
and it is incumbent upon RTC-Branch 24 to make such a determination. A
perusal of the Resolution dated 25 June 2008 of RTC-Branch 24 in
Special Proceeding No. 12562-CEB shows that it is barren of any
discussion on this matter. It did not take into consideration any of the
evidence presented by petitioner. RTC-Branch 24 dismissed Special
Proceedings No. 12562-CEB on the sole basis of res judicata, given the
Decision dated 21 February 2000 of RTC-Branch 9 in Special Proceeding
No. 8830-CEB, approving the Compromise Agreement between petitioner
and respondent. Hence, the Resolution dated 25 June 2008 of RTC-
Branch 24 should be deemed as having dismissed Special Proceeding
No. 12562-CEB on the ground of res judicata rather than an adjudication
on the merits of respondents demurrer to evidence. Necessarily, the last
line of Section 1, Rule 33 of the Rules of Court should not apply herein
and respondent should still be allowed to present evidence before RTC-
Branch 24 in Special Proceedings No. 12562-CEB.
It must be kept in mind that substantial justice must prevail. When
there is a strong showing that grave miscarriage of justice would result
from the strict application of the Rules, this Court will not hesitate to relax
the same in the interest of substantial justice. The Rules of Court were
conceived and promulgated to set forth guidelines in the dispensation of
justice but not to bind and chain the hand that dispenses it, for otherwise,
courts will be mere slaves to or robots of technical rules, shorn of judicial
discretion. That is precisely why courts in rendering real justice have
always been, as they in fact ought to be, conscientiously guided by the
norm that when on the balance, technicalities take backseat against
substantive rights, and not the other way around. [30]

WHEREFORE, premises considered, the Resolution dated 25 June

2008 of the Regional TrialCourt of Cebu City, Branch 24, in Special
Proceeding No. 12562-CEB is REVERSED and SET ASIDE.This case is
ordered REMANDED to the said trial court for further proceedings in
accordance with the ruling of the Court herein. No costs.
SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

In Rivero v. CA, the SC nullified a compromise agreement entered into by

one of the children of the deceased acknowledging a claimant to the
estate as an illegitimate child of the deceased person. Such recognition,
according to the court, was ineffectual because it was not made by the
putative father.

The CA nullified the decision of the RTC on the ground, inter

alia, that the filiation of Benedick could not be the subject of a
compromise, and that Mary Jane had no authority to execute the
compromise agreement for and in behalf of her brothers.
The petitioners, for their part, maintain that Mary Janes
recognition of Benedick as the illegitimate son of her father was
not a compromise, but an affirmation of the allegations in the
complaint that the Dy Chiao siblings had, in effect, recognized him
as the illegitimate son of their deceased father. The petitioners
posit that the admissions in the compromise agreement are
likewise binding on the Dy Chiao siblings.
The contention of the petitioners is bereft of merit. The Court
finds and so holds that the decision of the RTC based on the
compromise agreement executed by Mary Jane is null and void.
Article 2035(1) of the New Civil Code provides that no
compromise upon the civil status of persons shall be valid. As
such, paternity and filiation, or the lack of the same, is a
relationship that must be judicially established, and it is for the
court to determine its existence or absence. It cannot be left to the
will or agreement of the parties.
[43]

A compromise is a contract whereby parties, making reciprocal

concerns, avoid litigation or put an end to one already
commenced. Like any other contract, it must comply with the
[44]

requisite provisions in Article 1318 of the New Civil Code, to wit:

(a) consent of the contracting parties; (b) object certain which is
the subject matter of the contract; and (c) cause of the obligation
which is established. Like any other contract, the terms and
conditions of a compromise agreement must not be contrary to
law, morals, good customs, public policy and public order. Any [45]

compromise agreement which is contrary to law or public policy is

null and void, and vests no rights and holds no obligation to any
party. It produces no legal effect at all. Considering all these,
[46]

there can be no other conclusion than that the decision of the

 RTC on the basis of a compromise agreement where Benedick
was recognized as the illegitimate child of Benito, Sr. is null and
void.
LIGITIMATED CHILDREN
Art. 177-180

Art. 177. Only children conceived and born outside of wedlock of parents
who, at the time of the conception of the former, were not disqualified by
any impediment to marry each other may be legitimated.

Art. 178. Legitimation shall take place by a subsequent valid marriage

between parents. The annulment of a voidable marriage shall not affect
the legitimation.

Art. 179. Legitimated children shall enjoy the same rights as legitimate
children.

Art. 180. The effects of legitimation shall retroact to the time of the
child’s birth.

Art. 181. Legitimation of children who died before the celebration of the
marriage shall benefit their descendants.

Art. 182. Legitimation may be impugned only by those who are

prejudiced in their rights, within 5 years from the time their cause of
action accrues.

STATUTORY CREATION.

Legitimation is purely statutory creation

(1) The parents do not suffer any legal impediment to marry each other
at the time of the conception of the child by the mother.

(2) has been conceived and born outside of a valid marriage.

(3) parents subsequently enter into a valid marriage. Annulment of a

voidable marriage shall not affect the legitimation It is this last step
which by operation of law will finally legitmate the child.

Either of the parents, at the time of the conception of the child must not
have been disqualified by any impediment to marry each other for as
long as there is a legal impediment to marry on the part of the parents at
the time of the conception of the child, the said child cannot be
legitimated.

EFFECTS OF LEGITIMATION

retroacts to the child’s birth.

PRESCRIPTIVE PERIOD
within five years from the date their cause of action accrues.

“rights” generally refers to successional rights, legal heirs of the parents,

the cause of action to impugn the legitimation accrues only upon the
death of the parents of the legimitated child because it is only at the
time when the successional rights to the legitime will vest.

Adulterous children cannot be legitimated. Children of bigamous

marriages cannot be likewise legitimated.

Article 181. The legitimation of children who died before the celebration
of the marriage shall benefit their descendants.

Article 182. Legitimation may be impugned only by those who are

prejudiced in their rights within 5 years from the time their cause of
action accrues.

The term “rights” generally refers to successional rights, the

persons who can be prejudiced in their rights by the process of
conferring to someone all rights of a legitimate child are the legal heirs
of the parents. However, the cause of action to impugn the legitimation
accrues only upon the death of the parents of the legitimated child
because it is only at that time when the successional rights to the
legitime vests. Even an adopted child can be a prejudiced heir not only
of his or her adopter but also of his or her parents in case a child of said
parents is legitimated.

REPUBLIC ACT 9858 – removed the legal impediment of below 18 years

of age of parent or parents at the time of conception such that the child
can be legitimated if there are no other legal impediments at the time of
its conception for the parents to marry each other.

VIII. Adoption

EXCLUDE: Family Code, Arts. 183-188, 191-193

A. RA 8552 – DOMESTIC ADOPTION LAW

STATUTORY CREATION. –The right to create the relationship of parent

and child between persons who are generally not related by nature exists
only by virtue of a statute providing for adoption.

Adoption is purely a statutory creation. All statutory requirements

for adoption must be met, and where a court issues an adoption decree
despite the fact that all the said requirements are not met, such decree
is a nullity. The law must strictly be complied with in the sense that the
mandatory requirements must all be present. However, if the mandatory
requirements are present but there are only irregularities, substantial
compliance of the mandatory requirements is enough. Liberal attitude in
favor of adoption.
It is a settled rule therein that adoption statutes, as well as matters of
procedure leading up to adoption, should be liberally construed to carry
out the beneficent purposes of the adoption institution and to protect
the adopted child in the rights and privileges coming to it as a result of
the adoption.

In determining whether or not to set aside the decree of adoption, the

interest and welfare of the child are of primary and paramount
consideration.

PHILOSOPHY BEHIND ADOPTION. Adoption used to be for the benefit of

the adopter. It was intended to afford persons who have no child of their
own, the consolation of having one, by creating by legal fiction, the
relation of paternity and filiation where none exists by blood
relationship. It was merely looked upon as solely an act of generosity on
the part of the adopter.

The present tendency, however, is geared more toward the promotion of

the welfare of the child and the enhancement of his or her opportunities
for a useful and happy life.

Adoption statutes, being humane and salutary, hold the interest and
welfare of the child to be of paramount consideration and are designed to
provide homes, parental care and education for unfortunate, needy or
orphaned children and give them the protection of society and family in
the person of the adopter as well as to allow childless couples or persons
to experience the joys of parenthood and legally give them a child in the
person of the adopted for the manifestation of their natural parental
instincts. Every reasonable intendment should be sustained to promote
and fulfill these noble and compassionate objectives of the law.

Under the Domestic adoption law (Sec. 5 thereof) there must be the search for the
biological parents. The natural and biological parents are always given preference in the
custody of their own children. Thus, before an adoption can proceed, the law requires that the
child’s parents, if unknown, must be located and that all reasonable means exhausted to look for
them. If such efforts fail, the child shall be registered as a foundling and subsequently be the
subject of legal proceedings where he/she will be declared abandoned.

1. Who can adopt- Sec. 7. The following may adopt:

a. Any Filipino citizen of legal age, in possession of full civil

capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least 16 years older
than the adopted and who is in a position to support and care for his/her
children in keeping with the means of the family. The requirement of 16
year-difference between the age of the adopter and the adoptee may be
waived when the adopter is the biological parent of the adoptee, or is the
spouse of the adoptee’s parent;

FILIPINO CITIZEN:
1. be of legal age;
2. be in a position to support and care for his/her children in keeping
with the means of the family;
3. be of good moral character;
4. be in possession of full civil capacity or legal rights;
5. be at least 16 years older than the adoptee; except when:

a. adopted is the biological parent of the adoptee;

b. adopter is the spouse of the adoptee’s parent

6. has not been convicted of any crime involving moral turpitude; and
7. be emotionally and psychologically capable of caring for children.

b. Any alien possessing the same qualifications as above stated for

Filipino nationals: Provided, That his/her country has diplomatic
relations with the Republic of the Philippines, that he/she has been
living in the Philippines for at least 3 continuous years prior to the filing
of the application for adoption and maintains such residence until the
adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that
he/she has the legal capacity to adopt in his/her country, and that
his/her government allows the adoptee to enter his/her country as
his/her adopted son/daughter: Provided, further, That the requirements
on residency and certification of the alien’s qualification to adopt in
his/her country may be waived for the following:

i. a former Filipino citizen who seeks to adopt a relative within

the 4 th
degree of consanguinity or affinity; or

ii. one who seeks to adopt the legitimate son/daughter of

his/her Filipino spouse; or

iii. one who is married to a Filipino citizen and seeks to adopt

jointly with his/her spouse a relative within the 4 th degree of
consanguinity or affinity of the Filipino spouse; or

ALIEN:

1. have all the qualifications of a Filipino as stated above;

2. be a citizen of a country that has diplomatic relations with
the Philippines;
3. have been living in the Philippines for at least 3 continuous
years prior to the application for adoption and maintains such
residence until the adoption decree is entered, except when:

a. the adopter is a former Filipino citizen who seeks to adopt

a relative within the 4th degree of consanguinity or affinity;

b. one who seeks to adopt the legitimate or illegitimate

child of his/her Filipino spouse;
 c. one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative within the 4 th degree of
consanguinity or affinity of the Filipino spouse.

4. be certified to have legal capacity to adopt by his/her

diplomatic or consular office; and

5. be certified by said office that his government allows the

adoptee to enter his/her country as his/her adopted child.

Continuity of residence – the requirement that the alien must have been
living in the Philippines for at least 3 continuous years is NOT affected
by temporary absences for professional, business, health, or emergency
reasons not exceeding 60 days in one year which according to the rules
do not break the continuity requirement. (Sec. 3[v], IRR of RA No. 8552

c. The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.

guardian has already been cleared by court of his financial

accountabilities as such guardian; adoption is made only after the
termination of the guardianship

FOSTER PARENT – R.A. No. 10165 known as the Foster Care Act of 2012
now allows the placement of a child with a foster parent (Sec. 17). A
foster parent may adopt his foster child subject to the following
conditions: (Sec. 17)

1. The foster parent must have all the qualifications as provided

for by RA No. 8552 (Domestic Adoption Act of 1998 or RA No. 8043
(Inter-Country Adoption Act of 1995), as the case may be;

2. The trial custody, as required in adoption, may be waived,

provided, that a harmonious relationship exists between the child and
his foster parent and family members; and

3. the procedure for adoption, for purposes of this Act, shall be

governed by Domestic Adoption Act of 1988 or Inter-Country Adoption
Act of 1995, as the case may be.

HUSBAND AND WIFE SHALL JOINTLY ADOPT, EXCEPT IN THE

FOLLOWING CASES:

i. if one spouse seeks to adopt the legitimate son/daughter of

the other; or

ii. if one spouse seeks to adopt his/her own illegitimate

son/daughter: Provided, That the other spouse has signified his/her
consent thereto; or

iii. if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the
legitimate son/daughter of the other, joint parental authority shall be
exercised by the spouses.

In Republic v. CA, January 24, 1992 – SC considered as substantial

compliance the fact that an affidavit of consent of the husband was
attached to the Petition. The SC declared that the declarations in the
affidavit and his confirmatory testimony in open court are sufficient to
make him a co-petitioner.

QUALIFICATIONS –

For as long as the statutory qualifications, exclusions and

requirements for adoption are met, relatives by blood or affinity are not
excluded from adopting one another. An individual who has already
adopted a child or who has legitimate or illegitimate children may still
adopt. An elder sister may adopt a younger brother and a stepfather may
adopt his stepchild.

It must be emphasized that as a policy of the state, all measures to

maintain the natural parent’s authority and custody of their children
must be encouraged and implemented. Only when such efforts prove to
be insufficient and no appropriate placement or adoption within the
child’s extended family is available shall adoption by an unrelated person
be considered.

CAPACITY FOR ADOPTIVE PARENTHOOD. The law provides the

minimum qualifications for an adopter.

In evaluating prospective parents, there are other factors to be

considered such as but not limited to, the following: 1 Total personality
of the applicants; 2 Emotional maturity; 3.Quality of marital
relationship; 4. Feelings about children; 5. Feelings about childlessness
and readiness to adopt; and 6. Motivation.

While adoption aims to approximate natural filiation as much as

possible, it is still the best interest of the child or the one to be adopted
which is the principal consideration. Public policy, therefore, favors
adoption by a family of the same race, religion, and intellectual ability as
the child. However, a difference in race or religion may have relevance
in adoption proceedings, but such difference alone cannot be decisive in
determining what is best for the welfare of the child and does not permit
the court to ignore other relevant considerations.

CONVICTION NECESSARY. The requirement that an adopter should not

have been convicted of any crime involving moral turpitude there must
be conviction. Pardon would not erase the disqualification since the
provision refers to the fact of conviction and not to the penalty imposed.
The term “moral turpitude” is in connection with one’s ability to rear a
child so it will not be affected by a pardon.
AGE DIFFERENCE. Requires an age difference of at least 16 years
between the adopter and the adopted. This is to approximate as much as
possible natural filiation.

ADVANCED AGE OF PROSPECTIVE PARENTS. – the age of the

prospective parents is an important but not the sole or controlling
consideration in determining what is best for the child. Other factors as
the health of the petitioners and the kind of home they could provide are
often more important.

ALIENS. Aliens, whether resident or non-resident, can generally adopt

for as long as they have all the qualifications possessed by a Filipino
national to adopt.
The requirement on residency and certification of the alien’s
qualification to adopt in his or her country may be waived in case the
alien intending to adopt is either of the following:

1. a former Filipino citizen who seeks to adopt a relative within

the 4th degree of consanguinity or affinity; or

2. one who seeks to adopt the legitimate son/daughter of

his/her Filipino spouse; or

3. one who is married to a Filipino citizen and seeks to adopt

jointly with his/her spouse a relative within the 4 th degree of
consanguinity or affinity of the Filipino spouse.

The waiver is not automatic but clearly discretionary on the court

or the proper administrative body. The determining point in resolving
this issue is the paramount interest of the child. But since they are
exceptions, they must be strictly construed.

Example: A US citizen, who was a former Filipino and is presently

married to an American arrive in the Philippines and a year after they
jointly file an adoption of the younger Filipino brother of the wife. They
cannot be granted a waiver of the residency and certification
requirements because they do not fall under the exceptions. In the first
place, the husband is not a former Filipino citizen but a natural-born
citizen of the US. 2nd, the child to be adopted is not the legitimate child
of his spouse. 3, when the spouses jointly filed the petition to adopt the
wife’s Filipino brother (who is a relative of the wife within the 4 th degree
of consanguinity), the said wife was no longer a Filipino citizen
(Republic of the Phil. vs. Hon. Rodolfo Toledano, June 8, 1994).
However, if the said spouses really want to adopt they can avail of the
Inter-Country Adoption Law if applicable to their case.

If a Filipino adopts an alien, the adopted alien does not acquire

Philippine citizenship because such acquisition of citizenship acquires
the character of naturalization which is regulated not by the Civil Code
or the Family Code, but by special laws.
 GUARDIAN. The requirement of final accounting prior to the
termination of the guardianship relation is intended for the protection of
the rights of wards and the regulation of the conduct of guardians to
make sure that the properties of the former have not been improperly
managed by the latter.

JOINT ADOPTION OF HUSBAND AND WIFE. Mandated by law for the

maintenance of harmony within the family.

2. Who can be adopted. Sec. 8 – The following may be adopted:

a. Any person below 18 years of age who has been

administratively or judicially declared available for adoption;
b. The legitimate son/daughter of one spouse by the other
spouse;
c. An illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy;
d. A person of legal age if, prior to the adoption, said person has
been consistently considered and treated by the adopter(s) as his/her
own child since minority;

e. A child whose adoption has been previously rescinded; or

f. A child whose biological or adoptive parent(s) has died:

Provided, That no proceedings shall be initiated within 6 months from
the time of death of said parent(s)

De facto adoption is made an exception to the minority rule on the

assumption that the formal adoption was omitted while the person was
still a minor and the reason for the omission could have been inaction or
postponement. If the child could have been adopted during minority,
said child can be adopted after reaching legal age. De facto adoption
must, however, be converted to legal adoption with court approval for all
the privileges, rights and duties of the adopter and the adoptee to legally
attach.

ADULTS CAN BE ADOPTED IF: General rule is that only minors can be
adopted. The exceptional cases when adults or persons of legal age can be
adopted are:

1. Qualified adult, who, prior to the adoption, has been

consistently considered by the adopter as his/her own child since
minority;

2. The adoptee is the illegitimate son/daughter of the adopter;

or

3. legitimate stepson/stepdaughter of the adopter.

DECLARATION OF AVAILABILITY FOR ADOPTION (R.A. NO. 9523).

Included in the list of persons who may be adopted under the Domestic
Adoption Act of 1988 is “any person below 18 years of age who has been
administratively or judicially declared available for adoption/”

Sec. 8 of RA No. 9523 now provides, “the certification that a child is

legally available for adoption shall be issued by the DSWD in lieu of
judicial order, thus making the entire process administrative in nature.”

1. The certification, shall be, for all intents and purposes, the
primary evidence that the child is legally available in a domestic
adoption proceeding, as provided in RA 8552 and in an inter-country
adoption proceeding as provided in RA No. 8043.

2. A “Child Legally Available for Adoption” refers to a child in

whose favor a certification was issued by the DSWD that he/she is legally
available for adoption after the fact of abandonment or neglect has been
proven through the submission of pertinent documents. Or one who was
voluntarily committed his/her parent(s) or legal guardian. (Sec. 2 [5], RA
No. 9523)
a. Child refers to a person below 18 years of age or a person over 18
years of age but is unable to fully take care of himself/herself or protect
himself/herself from abuse, neglect, cruelty, exploitation, or
discrimination because of physical or mental disability or condition. (sec.
2[2],RA No. 9523)

b. ABANDONED CHILD refers to a child who has no proper parental

care or guardianship, or whose parent(s) have deserted him/her for a
period of at least 3 continuous months, which includes a foundling. (sec.
2[3], RA 9523)

c. NEGLECTED CHILD refers to a child whose basic needs have been

deliberately unattended or inadequately attended within a period of 3
continuous months. Neglect may occur in 2 ways:

1. There is physical neglect when the child is malnourished, ill-

clad, and without proper shelter. A child is unattended when left by
himself/herself without proper provisions and/or without proper
supervision. (Sec. 2[4] RA 9523)

2. There is emotional neglect when the child is maltreated,

raped, seduced, exploited, overworked, or made to work under conditions
not conducive to good health; or is made to beg in the streets or public
places; or when children are in moral danger, or exposed to gambling,
prostitution, and other vices. (Sec. 2[4], RA 9523)

d. VOLUNTARILY COMMITED CHILD is one whose parent’s or legal

guardian knowingly and willingly relinquished parental authority to the
DSWD or any duly accredited child-placement or child-caring agency or
institution. (Sec. 9, RA No. 8552)

Sec. 9. Whose Consent is Necessary to the Adoption – after being

properly counseled and informed of his/her right to give or withhold
his/her approval of the adoption, the written consent of the following to
the adoption is hereby required:

a. The adoptee, if ten years of age or over;

b. the biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has legal
custody of the child;
c. The legitimate and adopted sons/daughters, ten years of age,
or over, of the adopter(s) and adoptee, if any;
d. The illegitimate sons/daughters, ten years of age or over, of
the adopter if living with said adopter and the latter’s spouse, if any; and
e. The spouse, if any, of the person adopting or to be adopted.

WRITTEN CONSENT. Mandatory written consent required by law is the

State’s way of assuring itself that all the members of the family have
been consulted and are amenable to the introduction of a new member in
the home. Of paramount importance among the considerations of the
State is the maintenance of harmony within the family and the
avoidance of any conflict which may arise as a result of the adoption.
But the court testimony of the person whose consent is needed is not
necessary.

If the child is illegitimate, the consent can be given by the mother alone
because she exercises parental authority over the illegitimate child. But
if the child was already recognized by the illegitimate father, his consent
is necessary.

CAN THE NATURAL PARENTS BE ALLOWED TO WITHDRAW THEIR

CONSENT TO THE ADOPTION OF THEIR NATURAL CHILD PRIOR TO AN
ADOPTION DECREE? No binding commitment by the biological parents
to an adoption plan shall be permitted before the birth of the child. A
period of 6 months from the time the biological parents made their
decision shall be allowed for the biological parent(s) to reconsider any
decision to relinquish his/her child for adoption before the decision
becomes irrevocable (Sec. 4[a], Article II). It appears that under the law,
there is statutory estoppel created after 6 months on the part of the
biological parents. However, it is believed that they can still revoke their
consent what is important is the best interest of the child sought to be
adopted.

NATURE OF ADOPTION PROCEEDINGS. No person can adopt or may be

adopted except through judicial decree by a competent court. A private
adoption agreement between parties is void and does not produce any
legal effect. Adoption is a juridical act, a proceeding in rem, which
creates between two persons a relationship similar to that which results
from legitimate paternity and filiation. The procedure laid down is that
provided under Rule 99 of the Rules of Court.

Sec. 13. Decree of Adoption. If, after the publication of the order of
hearing has been complied with, and no opposition has been interposed
to the petition, and after consideration of the case studies, the
qualifications of the adopter(s), trial custody report and the evidence
submitted, the court is convinced that the petitioners are qualified to
adopt and that the adoption would redound to the best interest of the
adoptee, a decree of adoption shall be entered which shall be effective as
of the date the original petition was filed. This provision shall also apply
in case the petitioner(s) dies before the issuance of the decree of
adoption to protect the interest of the adoptee. The decree shall state
the name by which the child is to be known.

NO COLLATERAL ATTACK. Once an adoption decree is issued, it cannot

be attacked collaterally. This means that the validity of an adoption
decree can only be assailed in a direct proceeding initiated precisely to
invalidate the adoption decree.

EFFECTIVITY OF ADOPTION DECREE. The adoption decree shall be

effective as of the date the original petition was filed.

In Tamargo vs. CA, 209 SCRA 518, where a child, subject of an

adoption proceeding, shot and killed another while he was still in the
actual custody of the natural parents, the SC rejected the view that,
upon entry of an adoption decree relative to that child, the adopting
parents should be held liable for the death caused by the adopted on the
ground that the adoption decree should retroact as of the date of the
filing of the petition, thereby making the adopting parents in accordance
with law liable principally. The SC in holding that the retroactivity of
the decree stated by the law should not apply in this case as it would go
against the principle of vicarious liability of parents (which principle is
premised upon their children living with them and under their parental
authority).

CERTIFICATE OF BIRTH. Upon the finality of the adoption decree,

the surname of the adopted shall be changed to the surname of the
adopter. The original birth certificate of the adoptee shall be canceled
and replaced by a new one without any indication or annotation that the
same is an amended issue. The reason for this is to preserve the
confidentiality of the adoption process and to protect the rights and
interests of the natural parents, the adopters, and the adoptee.

3. Rights of an adopted child – include FC, Arts. 189 and 190 on successional rights
Sec. 16. Parental Authority – Except in cases where the biological
parent is the spouse of the adopter all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopters(s).

SURNAME AND MIDDLENAME – an illegitimate child, upon adoption by

her natural father, may use the surname of her natural mother as her
middle name (In the Matter of the adoption of Stephanie Nathy Astorga
Garcia; March 31, 2005)

Sec. 17. Legitimacy. – The adoptee shall be considered the

legitimate son/daughter of the adopter(s) for all intents and purposes and
as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any
kind. To this end, the adoptee is entitled to love, guidance, and support
in keeping with the means of the family.

Sec. 18. Succession. – In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However, if the adoptee
and his/her biological parent(s) had left a will, the law on testamentary
succession shall govern.

SEVERANCE OF LEGAL TIES. The right to parental authority is purely

personal. It cannot be renounced or waived except in those cases
provided by law, one of which is adoption. Upon the death of the
adoptive parents, there are no rights or duties reestablished in the
natural parents.

The relation established by the adopted is limited to the adopting

parents and does not extend to their other relatives, except as expressly
provided by law. The relationship is only one of parent and child. Thus,
the adopted child cannot be considered as a relative of the ascendants
and collateral relatives of the adopting parents, nor of the legitimate
children which they may have after the adoption except that the law
imposes certain impediments to marriage by reason of the adoption.
Neither are the children of the adopted considered as descendants of the
adopter.

SUCCESSION. An adopted child is a legal or intestate heir of the

adopter. The adopter is also a legal or intestate heir of the adopted. But
they cannot exercise the right of representation. Considering that all
legal ties are severed between the adoptee and his or her biological
parents, the latter shall not inherit anything by way of legitime.

4. Rescission of adoption - only the adoptee is given legal standing to rescind an

adoption decree.
Sec. 19. Grounds for Rescission of Adoption. – Upon petition of the
adoptee, with the assistance of the Department if a minor or if over 18
years of age but is incapacitated, as guardian/counsel, the adoption may
be rescinded on any of the following grounds committed by the
adopter(s):

(a) repeated physical and verbal maltreatment by the adopter(s)

despite having undergone counseling;

(b) attempt on the life of the adoptee;

© sexual assault or violence; or

(d) abandonment and failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter(s). However, the adopter(s) may disinherit the
adoptee for causes provided in article 919 of the Civil Code.

Sec. 20. Effects of Rescission. – If the petition is granted, the parental

authority of the adoptee’s biological parent(s), if known, of the legal
custody of the Department shall be restored if the adoptee is still a
minor or incapacitated. The reciprocal rights and obligations of the
adopter(s) and the adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original birth
certificate.

Succession rights shall revert to its status prior to adoption, but

only as of the date of judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without

prejudice to the penalties imposable under the Penal Code if the criminal
acts are properly proven.

Adoption, Being In The Best Interest Of The Child, Shall Not Be Subject To Rescission By
The Adopter…

May a person who adopted a child rescind the decree of adoption?

Diosdado and Isabelita’s marriage was not blessed with a child, hence, they took care of
Isabelita’s nephew, Jose Melvin, to bring up as their own child. Finally, they decided
to adopt Jose Melvin. On May 5, 1972, the Civil Registrar of Naga changed the
surname of Jose Melvin from “Sibulo” to “Lahom” in keeping with the court order
granting the adoption.
Many years later, Isabelita, now a widow, filed an action to rescind the adoption of Jose Melvin,
on the following grounds:
1. Jose refused to change his surname, and her husband while still living, out of frustration, has
already decided to rescind the adoption but was only prevailed upon by her;
2. In all his professional dealings and records, Jose Melvin still uses the name “Sibulo” instead
of “Lahom”;
3. Jose Melvin only visits her once a year, when she is alone in the city and only lives with her
household helps;
4. He is indifferent, callous, and jealous of the other nephews and nieces of the petitioner.
Jose Melvin filed a motion to dismiss on the ground that under the new laws on adoption,

Republic Act 8552, the adopter cannot rescind anymore the decree of adoption.
The trial court dismissed the petition for lack of cause of action, citing the provisions of Section
19 of Republic Act 8552 which reads:

“SEC. 19. Grounds for Rescission of Adoption. — Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be rescinded on any of the
following grounds committed by the adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on
 the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure
to comply with parental obligations.
“Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.” (emphasis supplied)

The Supreme Court, in denying the appeal filed by Isabelita, ruled that;
“It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to
revoke the decree of adoption granted in 1975. By then, the new law, had already
abrogated and repealed the right of an adopter under the Civil Code and the Family
Code to rescind a decree of adoption. Consistently with its earlier pronouncements,
the Court should now hold that the action for rescission of the adoption decree,
having been initiated by petitioner after R.A. No. 8552 had come into force, no
longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject
to the five-year bar rule under Rule 100 of the Rules of Court and that the adopter
would lose the right to revoke the adoption decree after the lapse of that period. The
exercise of the right within a prescriptive period is a condition that could not fulfill
the requirements of a vested right entitled to protection. It must also be
acknowledged that a person has no vested right in statutory privileges. While
adoption has often been referred to in the context of a “right,” the privilege to adopt
is itself not naturally innate or fundamental but rather a right merely created by
statute. It is a privilege that is governed by the state’s determination on what it may
deem to be for the best interest and welfare of the child. Matters relating to adoption,
including the withdrawal of the right of an adopter to nullify the adoption decree, are
subject to regulation by the State. Concomitantly, a right of action given by statute
may be taken away at anytime before it has been exercised.

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to
rescind the adoption decree even in cases where the adoption might clearly turn out
to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the
law. Dura lex sed lex would be the hackneyed truism that those caught in the law
have to live with. It is still noteworthy, however, that an adopter, while barred from
severing the legal ties of adoption, can always for valid reasons cause the forfeiture
of certain benefits otherwise accruing to an undeserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an adopted child his legitime
and, by a will and testament, may freely exclude him from having a share in the
disposable portion of his estate.”
G.R. No. 143989 July 14, 2003, ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN

SIBULO (previously referred to as “DR. MELVIN S. LAHOM”), respondent.

EXCLUDE: AM No. 02-6-02-S.C. (Aug. 22, 2002), RA 9523 – requiring certification of

the department of DSWD to declare a “child legally available for adoption”

Republic vs. Vergara, G.R. NO. 95551, Mar. 20, 1997 270 SCRA 206

The law here does not provide for an alien who is married to a former Filipino citizen
seeking to adopt jointly with his or her spouse a relative by consanguinity, as an
exception to the general rule that aliens may not adopt. Rosalina Dye cannot, on her
own, adopt her brother and sister for the law mandates joint adoption by husband
and wife, subject to exceptions.
Republic vs. Miller, G.R. NO.125932, Apr. 21, 1999 306 5CRA 183

An alien qualified to adopt under the Child and Youth Welfare Code, which was in force
at the time of the filing of the petition, acquired a vested right which could not be
affected by the subsequent enactment of a new law disqualifying him.

Republic vs. Toledano, G.R. NO.94147, Jun. 08, 1994 233 SCRA 9

The Family Code reiterated the rule by requiring that husband and wife "must" jointly
adopt, except in the cases mentioned before. Under the said new law, joint adoption
by husband and wife is mandatory

Cang vs. CA, G.R. NO.105308, Sept. 25, 1998 296 SCRA 128

Physical estrangement alone, without financial and moral desertion, is not tantamount
to abandonment. While admittedly, petitioner was physically absent as he was then in
the United States, he was not remiss in his natural and legal obligations of love, care
and support for his children.

In re: Adoption of Michelle & Michael Lim G.R. NO.168992-93, May 21, 2009 588
SCRA 98

The filing of a case for dissolution of the marriage between petitioner and Olario is
of no moment. It is not equivalent to a decree of dissolution of marriage. Until and
unless there is a judicial decree for the dissolution of the marriage between
petitioner and Olario, the marriage still subsists. That being the case, joint
adoption by the husband and the wife is required. 57
Republic vs. CA & Bobiles, G.R. NO.92326, Jan. 24, 1992 205 SCRA 356

Under the Child and Youth Welfare Code, private respondent had the right to file
a petition for adoption by herself, without joining her husband therein. When Mrs.
Bobiles filed her petition, she was exercising her explicit and unconditional right under
said law.

Lahom vs. Sibulo, G.R. NO. 143989, July 14, 2003

R.A. NO. 8552 has unqualifiedly withdrawn from an adopter a

consequential right to rescind the adoption decree even in cases where
the adoption might clearly turn out to be undesirable.

R.A. 8552 (Domestic Adoption Law)

A.M. No. 02-6-02-S.C. (Aug. 22, 2002)

REPUBLIC V. CA 205 SCRA 356

Facts:
- Feb 2, 1988 - Zenaida Bobiles (private respondent) filed petition to adopt Jason
Condat, court grants it given that all requirements for adoption are satisfied
- Petitioner appeals to CA who affirms the trial court decision, hence this petition

Issue:
1. W/n CA erred in ruling that the FC cannot be applied retroactively to the petition for
adoption

2. W/n CA erred in affirming the decision w/c granted the petition in favor of the
spouses Dioscoro and Zenaida Bobiles

Held / Ratio:
1. No.
- Zenaida filed for adoption when PD 603 (Child and Youth Welfare Code) was the
law – here a petition for adoption may be filed by either or both of the spouses
- Under the FC however (Art 185), joint adoption by both spouses is mandatory
Petitioner contends that the FC should be applied retroactively and adoption should be
dismissed
- Art. 256 of the FC provides for retro effect provided it doesn‘t impair vested rights
- Under PD 603, Zenaida had the right to adopt by herself, and when she filed for
adoption, the right to file such petition alone was vested on her
- FC Art. 185 is remedial in nature, despite the fact that these laws are retro actively
applied, it will not be so applied as to defeat procedural steps completed before the
enactment
- As long as the petition for adoption was sufficient in form and in accordance with the
law in governance at the time it was filed, the court acquires jurisdiction and retains it
until it fully disposes of the case

2. No.
- Though Dioscoro was not named as a petitioner, he did provide written consent that
he himself actually joined his wife in adopting the child – w/c is sufficient to make him a
petitioner
- The future of the child must not be compromised by insistence of rigid adherence to
procedural rules.
- Adoption statutes are liberally construed to carry out the beneficent purposes of the
adoption institutions and to protect the child. Welfare of the child is of paramount
consideration.
- The rights concomitant to and conferred by the decree of adoption will be for the best
interest of the child.

The CA found the following in the petition and correctly approved the adoption: Natural
parents gave consent / DSWD recommended approval / Trial court approved / Written
consent of adopting parents

Santos v. Aransanzo 16 SCRA 344

Facts:

- Simplicio Santos and Juliana Reyes filed petition for adoption of Paulina Santos and
Aurora Santos on June 4, 1949
- With their parents whereabouts unknown, their current guardian, Crisanto de Mesa
gave his written consent, Paulina being 14 yo likewise gave consent. Hence, Court
grants petition
- Oct 21, 1957 – Juliana dies, Simplicio files for settlement of intestate estate including
Paulina and Aurora as surviving heirs
- Gregoria Aranzanso, alleges that she is the first cousin of Juliana files an opposition
to the petition – stating that Simplicio‘s marriage to Juliana was bigamous and thus
void and that the adoption of Paulina and Aurora were void for there is no written
consent from natural parents
- Demetria Ventura, alleging also that she is the first cousin of Juliana and adding that
she is the mother of Paulina Santos, like wise files an opposition
- CFI says that validity of adoption cannot be attacked collaterally, CA however
REVERSES and declares that the adoption is void for lack of written consent.
Petitioners file for preliminary injunction against the CA orders and the Court grants it
hence this petition by the respondents

Issue: W/n the respondents can assail in settlement proceedings the adoption decree
of Paulina and Aurora Santos

Held / Ratio: No.

- If natural parents have abandoned the children guardian consent suffices.
- Furthermore, the adoption court made sufficient findings that the natural parents of
the minors could not be located, hence its order cannot be attacked collaterally.
- Hence the CA erred in reviewing, under collateral attack, the determination of the
adoption court that the parents of Paulina and Aurora Santos had abandoned them.
- Even if Simplicio were married to another person (not decided in this case), the estate
of Juliana being the subject matter, the adopted children status of Paulina and Aurora
is not affected, hence they succeed Juliana.

- Respondents cannot intervene in the settlement proceedings and attack the adoption
As the adoption is held valid, and in intestate succession, adopted children exclude
first cousins, the CA decision is reversed

Daoang v. Municipal Judge 159 SCRA 369

Facts:
- Respondent spouses Antero and Amanda Agonoy filed petition for adoption of the
minor Quirino Bonilla and Wilson Marcos
- Petitioners – minors Roderick and Rommel Daoang assisted by their father, file an
opposition claiming that the Agonoys have a legitimate daughter named Estrella
Agonoy (mother of Roderick and Rommel), who died March 1, 1971 – thus Agonoys
are disqualified to adopt under NCC Art 335
- Trial court still grants the petition for adoption

Issue: W/n respondent spouses are disqualified to adopt under NCC Art. 335 par. 1

Held / Ratio: No
- Art 335 – those w/ legitimate, legitimated, acknowledged natural children, or children
by legal fiction cannot adopt
- The law is clear – children mentioned therein do not include grandchildren
- The legislators of the NCC obviously intended that only those persons who have
certain classes of children are disqualified to adopt
- Adoption used to benefit the adopter. This has since changed as now; the present
notion on adoption promotes the welfare of the child and the enhancement of his
opportunities for a happy life.

Under the law now in force, having legitimate, legitimated, etc children is no longer a
ground for disqualification to adopt

Duncan v. CFI 69 SCRA 298

Facts:
robin (british) and maria lucy (american) are h&w. They have no kids but previously
adopted a child and wish to do so again with a child whom they have named as colin
berry Duncan. They are now challenging CA decision which denied them the adoption
of minor Colin Berry Christensen Duncan.
 CA banked its decision on NCC 340 which provided for the written consent of
following people, more specifically the mother of the child who was known to Atty.
Velasquez, latter was arguing that such was already sanctioned by privileged
communication b/w lawyer and client. Nonetheless CA there is no such relationship in
this issue
 May 1967. Couple received the 3 day old child from Atty. Velasquez whom they had
baptized as colin berry Duncan. Said child was given to attorney by mother who made
her swear never to reveal her identity and look for a suitable couple who will adopt him.
In the petition for adoption filed sept 1967, it was atty. velasquez who stood as de facto
guardian/ loco parentis who thus gave consent. CA pressed on divulging the identity of
the mother as she should have been the one who gave consent (as per CA).

Issue:
 WON consent from mother (because child was IC and unrecognized by father) was
still needed
 HELD: NO.
o Consent should come from <as per Ncc Art. 340 (2)>The parents, guardian or person
in charge of the person to be adopted. Section 3,
Rule 99 of the Rules of Court, describing as each of the known living parents "who has
not abandoned such child."
o natural and unwedded mother has not bothered to inquire into the condition of the
child, much less to contribute to the livelihood, maintenance and care of the same. In
short, this parent is the antithesis of that described in the law as "known living parent
who is not insane or hopelessly intemperate or has not abandoned such child." SC is
convinced that in fact said mother had completely and absolutely abandoned her child.
Therefore there is no more legal need to require the written consent of such parent of
the child to the adoption

 WON Atty. Corazon de Leon Velasquez, the undisputed custodian of the abandoned
waif, may be considered as the guardian under Art. 340 or the person standing in loco
parentis of said infant contemplated in Art. 349 of the Civil Code.

 HELD: YES
o Atty. Velasquez was under no legal compulsion to accept the child and to extend to it
the protection and care it badly needed. Since there had been no showing that the
identity of the natural mother was made known to the trial court or to the herein
petitioners, nor had said mother seen fit to present herself before the court despite the
public notice given to the proceedings as required by law, there clearly appears only
one person who could be considered as the guardian exercising patria potestas over
such abandoned child. Since there was no guardian ad litem appointed by the court
and the child not being in the custody of an orphan asylum, children's home or any
benevolent society, there could not have been anyone other than Atty. Corazon de
Leon Velasquez who could, with reason, be called the guardian of said infant

 WON the spouses Robin Francis Radley Duncan and Maria Lucy Christensen, are
qualified to adopt the child
 HELD: There is no showing that they suffer from any of the disqualifications under
the law. Above all, they have the means to provide the child with the proper support,
care, education and love that a growing child needs, even if they have previously
adopted another child as theirs. They have actually already cared for the child for nine
years since the proceedings for adoption was instigated and they must have been the
only parents that the child has ever recognized. It would be supreme injustice if they
will be denied of the adoption rights over the child.

Minor child is hereby recognized as adopted by herein spouses.

OBITER: . The law is not, and should not be made an instrument to impede the
achievement of a salutary humane policy. As often as is legally and lawfully possible,
their texts and intendments should be construed so as to give all the chances for
human life to exist — with a modicum promise of a useful and constructive existence.
(How the Court bends over its back in considering the best welfare of the child) 

Landingin vs. RP G.R. No. 164948, June 27, 2006

Facts:
 Diwata Landingin (us cit of Filipino descent) filed for adoption on 2/4/2002 of the
minors Elaine, elma, and Eugene who are all nat. children of her brother manuel and
Amelia ramos.
 Manuel died on May 19, 1990, the children were left to their paternal grandmother,
Maria Taruc Ramos while their mother went to Italy, remarried and had two children
(never communicated again). Diwata now supports said minors, together with help
from other relatives. Maria passed away on November 23, 2000 and Diwata now
therefore seeks to adopt said minors. Said minors have already given their written
consent to adoption. She is qualified to adopt as shown by the fact that she is a 57-
year-old widow, has children of her own who are already married, gainfully employed
and have their respective families; she lives alone in her own home in Guam, USA,
where she acquired citizenship, and works as a restaurant server. Diwata‘s own
children have also given their written consent already. Her brother Mariano Ramos who
earns substantial income, signified his willingness and commitment to support the
minors while in petitioner‘s custody.
 Court ordered DSWD to conduct case study and submit report in time for the
hearing. OSG also entered its appearance. Since her petition was unopposed, she
presented ex-parte.
 Diwata testified in her behalf, presented Eliane Ramos, the eldest among the
adoptees, to testify on the written consent that she and siblings exec. Also presented
was the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis
and Ricfel Branitley.
 Pagbilao, the DSWD field officer assigned to the case, reported that minors are
eligible for adoption because the mother has voluntarily consented to their adoption by
the paternal aunt, Diwata Landingin this is in view of her inability to provide the
parental care, guidance and support they need (Affid of Consent by mother). Moreover,
said minors have expressed the desire to be adopted through a joint Affidavit of
consent. And lastly, the minors are present under the care of a temporary guardian who
has also family to look after. Pagbilao interviewed the mother of the minors who went
back to PI from Italy during the summer for a 3-week vacation.
 But Diwata was not able to present Pagbilao as witness offer in evidence the
voluntary consent of Amelia Ramos to the adoption. Neither was she able to present
any documentary evidence to prove that Amelia assents to the adoption.
 TC declared the minors freed from all legal obedience and maintenance from their
natural parents and also declared to be children of Diwata. Moreover, TC ordered that
from Dizon-Ramos, the surnames of the minors would now be Ramos-Landingin.
 OSG appealed CA saying that there was no consent from the biological mother. With
this, CA reversed TC, saying that Diwata was not able to prove that the biological
mother consented to the adoption nor was the affidavit of consent by Diwata‘s children
be admissible since such was exec in Guam and not acknowledged before philippine
Consular Office. Nor is she stable enough to support the children.

Issue: 1)WON the petitioner is entitled to adopt the minors without the written consent
of their biological mother, Amelia Ramos

2)WON the affidavit of consent purportedly executed by the petitioner-adopter‘s

children sufficiently complies with the law

3)WON petitioner is financially capable of supporting the adoptees.

Held: 1)NO. The discretion to approve adoption proceedings is not to be anchored

solely on best interests of the child but likewise, with due regard to the natural rights of
the parents over the child. Section 9 of Republic Act No.
8552 (Domestic Adoption Act of 1998)
requires the consent from biological
parents. The general requirement of
consent and notice to the natural
parents is intended to protect the
natural parental relationship from
unwarranted interference by
interlopers, and to insure the
opportunity to safeguard the best
interests of the child in the manner of
the proposed adoption. Written
consent of the biological parents is
indispensable for the validity of a
decree of adoption. Indeed, the natural
right of a parent to his child requires
that his consent must be obtained
before his parental rights and duties
may be terminated and re-established
in adoptive parents. Amelia (mother)
was said to be in PI, therefore it would
not have been impossible to solicit
Written Consent from her.
 That consent is no longer needed
because of mother‘s abandonment is
untenable. If mother had really
abandoned, she should, thus have
adduced the written consent of their
legal guardian. Merely permitting the
child to remain for a time undisturbed
in the care of others is not such an
abandonment
 More proof has to be adduced that
Amelia has emotionally abandoned the
children, and that the latter will not
miss her guidance and counsel if they
are given to an adopting parent. Again,
it is the best interest of the child that takes
precedence in adoption
2) NO. Section 2 of Act No. 2103 (pardon
me if I would no longer expound on this
point, this part deals more with technicalities
of instruments I think e.g. including the
intrinsic/extrinsic validity of such instruments
) What is important here is that no further
proof was introduced by petitioner to
authenticate the written consent of her
legitimate children therefore said evidence is
inadmissible
3) Primary consideration in adoption is the
best interest of the child, it follows that the
financial capacity of prospective parents
should also be carefully evaluated and
considered. Certainly, the adopter should be
in a position to support the would-be
adopted child or children, in keeping with the
means of the family. She only has a part-
time job, and she is rather of age therefore
financial stability is questionable. Even if she
says that she has children to rely on, adopter
must be the main breadwinner.
Minor children not permitted to be
adopted due to legal infirmities (but Court
said that Diwata is not prevented from
filing new petition for adoption of herein
minors  )
Pardo de Tavera v. Cacdac
167 SCRA 626
Facts:
 On 19 june 1986 the Gordons sought to adopt the minor, Anthony Gandhi O.
Custodio, a natural son of Adoracion Custodio. On the date of hearing, nobody
appeared to oppose the Petition, OSG failed to send any rep for the State.
 Evidences established that:
o Gordons (british spouse) are allowed by their home country to adopt foreign babies
specifically from the Republic of the Philippines.
o Husband is employed at the Dubai Hilton International Hotel as Building
Superintendent therefore financially secured
o Anthony's mother, Adoracion Custodio, had given her consent to the adoption
realizing that her child would face a brighter future
o Case Study Report submitted by the Social Worker of the Trial Court gave a
favorable recommendation
o natural mother thought of the best for her 1yr 2mos child.
 TC declared Anthony the truly and lawfully adopted child of the Gordons
 Gordons wrote MSSD for a travel clearance for Anthony on 8/11/86 but MSSD
opposed even if subpoenaed saying that
o the Report of the Court Social Worker and that of the Pastor of the International
Christian Church of Dubai cannot take the place of a report of the MSSD or a duly
licensed child placement agency
o required six-month trial custody had not been met nor the reasons therefor given as
required by Article 35 of the Child and Youth Welfare Code (P.D. No. 603)
o Gordons had given P10,000.00 to the natural mother, which is reflective of the
undesirable attitude of the Gordons to shop for children as if they were shopping for
commodities
o under Muslim law (Dubai), Anthony cannot inherit from the adopting parents
o Gordons had filed another petition for adoption of a baby girl before the Regional
Trial Court, Quezon City, Branch 94, on 24 June 1986 but because she died a month
later they tried to pass off another child to whom they gave the same name and
represented that she was the very same girl they were adopting
o there being no Memorandum of Agreement between Dubai and the Philippines there
is no guarantee that the adopted child will not be sold, exchanged, neglected or
abused.

WON travel clearance can be withheld by MSSD following the objections MSSD is
raising

HELD: NO. as TC has held.

 TC ordered the MSSD to issue the travel clearance under pain of contempt and the
Ministry of Foreign Affairs to issue the corresponding passport saying that
o Court Social Worker Report could take the place of a report from a duly licensed
placement agency or of the MSSD
o Court had impliedly dispensed with the six-month trial custody considering that the
Gordons were foreigners whose livelihood was earned abroad
o Decision had become final and executory
 TC relied on 1) the Resolution of this Court in Administrative Matter No. 85-2-7136-
RTC denying the request of the MSSD for a Supreme Court Circular to all Regional
Trial Court and 2) ruling in Bobanovic vs. Hon. Montes ―"In refusing to grant the travel
clearance certificate, respondent MSSD discounts and negates the effects of a valid
and final judgment of the Court regarding which no appeal had even been taken from
(Bobanovic vs. Hon. Montes G.R. L-71370, July 7, 1986)."
 10K given by Gordon spouses was only a financial assistance to the natural mother
of the child
 Spouses also would want to adopt a baby girl but upon learning that she‘s
mongoloid, they turned her over to International Alliance for Children, where she
unfortunately died.
 Muslim laws shall not apply to them, they being Britons.
TC order already final and executory!!!

Republic v. Toledano 233 SCRA 9

Facts:
 February 21, 1990 private respondents spouses Clouse sought to adopt the minor,
Solomon Joseph Alcala, the younger brother of private respondent Evelyn A. Clouse
 Alvin A. Clouse is a natural born citizen of the United States of America. He married
Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August 19, 1988, Evelyn
became a naturalized citizen of the United States of America in Guam
physically, mentally, morally, and financially capable of adopting Solomon, a twelve
(12) year old minor.
 1981-1984, Nov 1989 to present, Simon was and has been under the care and
custody of private respondents. Solomon gave his consent to the adoption. His mother,
Nery Alcala, a widow, likewise consented to the adoption due to poverty and inability to
support and educate her son.
 social worker Mrs. Nila Corazon Pronda recommended the granting of the petition
for adoption
 TC granted the adoption petition of Clouse spouse
 OSG objected saying that the Clouse spouse are not qualified to adopt under
Philippine law

Issue: WON Clouse spouse are not qualified to adopt under Philippine law
Held: YES. FC 184 and 185 bars the Clouse spouse from doing so. Respondent Alvin
A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional
cases in the aforequoted provision. He is a natural born US Citizen and Simon is
neither his relative by consanguinity nor legitimate child of his spouse. Evelyn on the
other hand has already become naturalized. She would have qualified under FC 184(3)
because she‘s a former Filipino who sought to adopt her brother. Unfortunately, the
petition for adoption cannot be granted in her favor alone without violating Article 185
which mandates a joint adoption by the husband and wife.

R.A. 8043, ―The Law on Inter-Country Adoption‖

A.M. No. 02-6-02-S.C. (Aug. 22, 2002)

Some important notes on R.A. 8043 ―The Law on Inter-Country Adoption‖

 Inter-country adoption refers to the socio-legal process of adopting a Filipino child,

i.e. 15 years old and below by a foreigner or a Filipino citizen permanently residing
abroad where the petition is field, the supervised trial custody is undertaken, and the
decree of adoption is issued outside the Philippines.

 Mandates the creation of The Inter-Country Adoption Board that acts as the policy-
making body for purposes of carrying out the provisions of this Act, in consultation and
coordination with the Department, the different child-care and placement agencies,
adoptive agencies, as well as non-governmental organizations engaged in child-care
and placement activities
 Board shall ensure that all possibilities for adoption of the child under the Family
Code have been exhausted before resorting to Inter-Country Adoption and ensure as
well that such is for the best interest of the child

 Sec. 8. Who May be Adopted.- Only a legally free child may be the subject of inter-
country adoption.

 SEC. 9. Who May Adopt.- Any alien or a Filipino citizen permanently residing
abroad may file an application for inter-country adoption of a Filipino child if he/she;
o is at least twenty-seven (27) years of age and at least sixteen (16) years older than
the child to be adopted, at the time of application unless the adaptor is the parent by
nature of the child to be adopted or the spouse of such parent

o if married, his/her spouse must jointly file for the adoption;

o has the capacity to act and assume all rights and responsibilities of parental authority
under his national laws, and has undergone the appropriate counseling from an
accredited counselor in his/her country

o has not been convicted of a crime involving moral turpitude

o is eligible to adopt under his/her nation law
o is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted
o agrees to uphold the basic rights of the child as embodied under Philippine laws, the
U.N. Convention on the Rights of the Child, and to abide by the rules and regulations
issued to implement the provisions of this Act;
o from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption
is allowed under his/her national laws
possesses all the qualifications and none of the disqualifications provided herein and in
other applicable Philippine laws

FC 189
FC 186
Tamrago v. CA
209 SCRA 518
Facts:  But prior to incident, (12/10/81), Sabas
 Minor (10 yrs old) Adelberto Bundoc and Felisa Rapisura filed pet. to adopt
shot Jennifer Tamrago with an air rifle adelberto w/c CFI granted in 11/18/82 or
(causing death) on 10/20/82 after said incident.
 Civil complaint for damages was  The nat. parents of Adelberto, following
instigated by Macario Tamargo such adoption were saying that they were no
(Jennifer‘s adoptive parent) and Cesar longer indispensable parties to the damages
and Aurelia Tamargo (nat. parents) (parental liability because such was already
against Adelberto‘s nat parents (Victor transferred by virtue of the adoption)
and Clara Bundoc) w/ whom Adelberto  Petitioners however were saying that
was living with @ time of incident. since adelberto was with them @ time of
Another axn was actually filed for incident, it should be them and not the
Reckless Imprudence resulting to Rapisura spouse who should be party to
homicide (but adeleberto was said action.
acquitted/ exempted following minority
w/o discernment)
 TC ruled for Victor and Clara
Bundoc (nat. parents) and said that
they were not indispensable to the
case at hand
Issue: WON the effects of adoption,
insofar as parental authority is
concerned, may be given retroactive
effect so as to make the adopting
parents the indispensable parties in a
damage case filed against their
adopted child, for acts committed by
the latter when actual custody was yet
lodged with the biological parents.
the actual custody of the parents sought to
be held liable for the ensuing damage:
 no presumption of parental dereliction on
the part of the adopting parents, the
Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their
control at the time the tort was committed.
Nat. parents of Adelberto were held liable
(indispensable party) and case remanded to
TC to proceed with such.
Cervantes v. Fajardo 169 SCRA 575

Held: NO. liability stays with the

natural parents, most especially that
adelberto was still with them at said
incident.
 NCC 2180 speaks of parental
obligation for the damages of minor
children in their company. The civil
liability imposed upon parents for the
torts of their minor children living with
them, may be seen to be based upon
the parental authority vested by the
Civil Code upon such parents. The civil
law assumes that when an
unemancipated child living with its
parents commits a tortious act, the
parents were negligent in the
performance of their legal and natural
duty closely to supervise the child who
is in their custody and control. Parental
liability is, in other words, anchored
upon parental authority coupled with
presumed parental dereliction in the
discharge of the duties accompanying
such authority.
 In the instant case, the shooting of
Jennifer by Adelberto with an air rifle
occurred when parental authority was
still lodged in respondent Bundoc
spouses, the natural parents of the
minor Adelberto. It would thus follow
that the natural parents who had then
actual custody of the minor Adelberto,
are the indispensable parties to the
suit for damages.
 Article 221 of the Family Code of the
Philippines 9 has similarly insisted
upon the requisite that the child, doer
of the tortious act, shall have been in
FACTS:
 Petition for writ of habeas corpus filed with this court over the person of the minor
Angelie Anne Cervantes.
 Minor was born on Feb. 14, 1987 to respondents Conrado Fajardo and Gina Carreon,
who are common-law husband and wife.
 Respondents offered the child for adoption to Gina Carreon‘s sister and brother in
law, the petitioners.
 Petitioner spouses took care and custody of the child when she was barely 2 weeks
old.
 An affidavit of Consent to the adoption of the child by herein petitioners was also
executed by respondent Gina
 The appropriate petition for adoption was filed by petitioners over the child
 RTC rendered a decision granting the petition
 Angelie Anne Fajardo  Cervantes
 Sometime in March or April 1987, petitioners received a letter from respondents
demanding to be paid P150,000, otherwise, they would get back their child.
 Petitioners refused to accede to the demand
 Sept. 11, 1987: respondent Gina took the child from her ―yaya‖ at the petitioner‘s
residence on the pretext that she was instructed to do so by her mother. Gino brought
the child to her house
 Petitioners demanded the return of the child but Gina refused

ISSUES:
 WON the writ should be granted.

HELD:
 YES
o Respondent Conrado Fajardo is legally married to a woman other than respondent
Gina  his open cohabitation with Gina will not accord the minor that desirable
atmosphere
o Minor has been legally adopted by petitioners with full knowledge and consent of
respondents

A decree of adoption has the effect, among others, of dissolving the authority vested in
natural parents over the adopted child, except where the adopting parent is the spouse
of the natural parent of the adopted

FC 189 (3), FC 190

IN THE Matter of Adoption of Stephanie Garcia
454 SCRA 541
Facts:
Aug. 31, 2000: Petitioner Honorato Catindig filed a petition to adopt his minor
illegitimate child, Stephanie Nathy Astorga Garcia
She was born on June 26, 1994
Her mother is Gemma Astorga Garcia
He prays that upon adoption, her name will be Stephanie Nathy Garcia Catindig
RTC: Granting the adoption and petition to change her name ONLY to Stephanie Nathy
Catindig.
Petitioner files a motion for clarification and/or reconsideration regarding the surname,
Garcia as her middle name.
RTC: denies petition Hence, the case at bar.
Petitioner submits that trial court erred in depriving Stephanie of a middle name as a
consequence of adoption.
There is no law prohibiting an adopted child from having a middle name.
Customs grant every Filipino to have a middle name as his/her mother‘s surname
A middle name is a part of a name of a person
Rights of an adopted child to bear a proper name should not be violated
It would help Stephanie avoid the stigma of her illegitimacy
Her using ―Garcia‖ is not opposed by either family
OSG agrees with petitioner on three grounds:
FC 189 makes it necessary since Stephanie still maintains a filiation with her natural
mother as an intestate heir of the latter
No law prohibiting such
Customary for every Filipino..
-
- Issue:
May and illegitimate child, upon adoption by her natural father, use the surname of her
natural mother as her middle name?
-
- Held: YES. Petition is GRANTED.
-
- Ratio:
The use of a person‘s surname is for practical and legal purposes, it is NECESSARY
The name of an individual has two parts, the given name and the surname.
The use of the surname is fixed by law under Articles 364-380 of the Civil Code
The law is SILENT as to the use of a middle name. However in Art 375(1) it is
considered when there is identitiy of names and surnames between ascendants and
descendants.
The law is notably silent with regard to an adopted child‘s middle name.
OSG correctly points out Art. 189 of the FC with regard to filiation required as an
intestate heir.

The underlying intent of adoption is in favor of the adopted child.

RA 8552 It is shown that she is very close to both her parents and she lives with her
mother There should be liberal construction of adoption statues in favor of adoption

Persons & Family Relations

Atty. Stephanie Rachel Tenefrancia-Castro Page 436
NCC 10 provided that ―in case of doubt in the interpretation….it is presumed that the
lawmaking body intended right and justice to prevail.‖

FC 191 FC 192
Lahom vs. Sibulo
G.R. No. 143989, July 14, 2003

Facts:
Spouses Dr. Diosdado Lahom and Isabelita Lahom took in Isabelita‘s nephew Jose
Melvin Sibulo since he was two years old, treating him as if he were their own child.
It was only in 1971 that the spouses petitioned for adoption. In 1972, this was granted
and the Civil Registrar of Naga City changed his name to Jose Melvin Lahom.
1999: Mrs. Lahom commenced a petition to rescind the decree of adoption:
Jose Melvin refused to change his surname from Sibulo to Lahom, in utter disregard for
the feelings of the spouses
Before her husband died, he even wanted to revoke the adoption but was only stopped
by Isabelita
Diosdado further desired to give to charity whatever properties or interest may pertain to
respondent in the future.
Respondent failed to show concern for Petitioner and remained indifferent
He does not act like a son, there is an uncomfortable relationship between the two
the only motive to respondent‘s adoption is his expectancy of his alleged rights over the
properties of the spouses Lahom

1998: RA 8552 provided grounds committed by adopter for the rescission of adoption
and also stated that ―Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter. However, adopter may disinherit the adoptee for
causes provided in Art. 919 of the Civil Code.‖
Respondent objects to motion
RTC: dismissed the petition
There is a lack of cause of action
Said rights of petitioner to rescind should have been exercised within the period allowed
by the Rules.
Legal ground for the petition have been discovered and known to petitioner for more
than 5 years, prior to the filing of the instant petition of December 1, 1999, hence the
action had already prescribed.
-
- Issue:
May the subject adoption, decreed on May 5, 1972, still be revoked or rescinded by an
adopted after the effectivity of R.A. No. 8552?
In the affirmative, has the adopter‘s action prescribed?
-
- Held: The Petition was DISMISSED.
-
- Ratio:
SC begins with a brief background on the law:
Persons & Family Relations
Atty. Stephanie Rachel Tenefrancia-Castro Page 437
welfare of the adopted started becoming of paramount concern
creation of written instruments that would protect and safeguard the rights of the
adopted children
adoption was impressed with social and moral responsibility and its underlying intent
was geared to favor the adopted child
R.A. 8552 secured these rights and privileges and affirmed the legitimate status of the
adopted child. The new law also withdrew the right of an adopter to rescind the adoption
decree and gave the adopted child the sole right to sever the legal ties created by
adoption.
It was also months after the effectivity of the R.A. No. 8552 that Isabelita filed an action
to revoke the decree of adoption granted in 1975. Therefore, her petition could no
longer be pursued.
-
- Additional: (just copy-pasted, this is in relation to the prescription period  )
Interestingly, even before the passage of the statute, an action to set
aside the adoption is subject to the five–year bar rule under Rule 100 of
the Rules of Court and that the adopter would lose the right to revoke the
adoption decree after the lapse of that period. The exercise of the right
within a prescriptive period is a condition that could not fulfill the
requirements of a vested right entitled to protection. It must also be
acknowledged that a person has no vested right in statutory privileges.
While adoption has often been referred to in the context of a “right,” the
privilege to adopt is itself not naturally innate or fundamental but rather
a right merely created by statute. It is a privilege that is governed by the
state’s determination on what it may deem to be for the best interest and
welfare of the child. Matters relating to adoption, including the
withdrawal of the right of an adopter to nullify the adoption decree, are
subject to regulation by the State. Concomitantly, a right of action given
by statute may be taken away at anytime before it has been exercised.

INTER-COUNTRY ADOPTION LAW (R.A. 8043)

B. RA 8043, The Law on Inter- Country Adoption – as the last resort. First, steps shall
be taken to place the child in the Phils. before the child is placed for inter-country adoption.
Best interest of the child

Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State to provide
every neglected and abandoned child with a family that will provide such child with love and
care as well as opportunities for growth and development. Towards this end, efforts shall be
exerted to place the child with an adoptive family in the Philippines. However, recognizing that
inter-country adoption may be considered as allowing aliens not presently allowed by law to
adopt Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens,
the State shall take measures to ensure that inter-country adoptions are allowed when the same
shall prove beneficial to the child's best interests, and shall serve and protect his/her fundamental
rights.

Persons & Family Relations

Atty. Stephanie Rachel Tenefrancia-Castro Page 438
Sec. 3. Definition of Terms. — As used in this Act the term:

(a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by
a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of adoption is issued outside
the Philippines.

(b) Child means a person below fifteen (15) years of age unless sooner emancipated by
law.

(f) Legally-free child means a child who has been voluntarily or involuntarily committed
to the Department, in accordance with the Child and Youth Welfare Code.

(g) Matching refers to the judicious pairing of the adoptive child and the applicant to
promote a mutually satisfying parent-child relationship

Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all
possibilities for adoption of the child under the Family Code have been exhausted and that inter-
country adoption is in the best interest of the child. Towards this end, the Board shall set up the
guidelines to ensure that steps will be taken to place the child in the Philippines before the child
is placed for inter-country adoption: Provided, however, That the maximum number that may be
allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years.

1. Who can Adopt.

Sec. 9. Any alien or Filipino citizen permanently residing abroad may file an application
for inter-country adoption of a Filipino child if he/she:

a. is at least 27 years of age and at least 16 years older than the

child to be adopted, at the time of the application unless the adopter is
the parent by nature of the child to be adopted or the spouse of such
parent;

b. if married, his/her spouse must jointly file for the adoption;

c. has the capacity to act and assume all rights and

responsibilities of parental authority under his national laws, and has
undergone the appropriate counseling from an accredited counselor in
his/her country;

d. has not been convicted of a crime involving moral turpitude;

e. is eligible to adopt under his/her national law;

Persons & Family Relations

Atty. Stephanie Rachel Tenefrancia-Castro Page 439
 f. is in a position to provide the care and support and to give the
necessary moral values and example to all his children, including the
child to be adopted;

g. agrees to uphold the basic rights of the child as embodied

under the Philippine laws, the U.N. Convention on the Rights of the Child,
and to abide by the rules and regulations issued to implement the
provisions of this Act;

h. comes from a country with whom the Philippines has

diplomatic relations and whose government maintains a similar
authorized and accredited agency and that adoption is allowed under
his/her national laws; and

i. possesses all the qualifications and none of the

disqualifications provided herein and in other applicable Philippine laws.

2. Who can be adopted Only a legally free child may be the subject of inter-country
adoption. In order that such child may be considered for placement, the following documents
must be submitted to the Board:

a. child study
b. birth certificate/foundling certificate
c. deed of voluntary commitment/decree of abandonment/death
of parents
d. medical evaluation/history
e. psychological evaluation, as necessary; and
f. recent photo of the child.

Sec. 3 Definition of terms:

(f) legally free child means a child who has been voluntarily or
involuntarily committed to the Department in accordance with the Child
and Youth Welfare Code

g. Matching refers to the judicious pairing of the adoptive child

and the applicant to promote a mutually satisfying parent-child
relationship

Sec. 10. Where to File Application. — An application to adopt a Filipino child shall be
filed either with the Philippine Regional Trial Court having jurisdiction over the child, or with
the Board, through an intermediate agency, whether governmental or an authorized and
accredited agency, in the country of the prospective adoptive parents, which application shall be
in accordance with the requirements as set forth in the implementing rules and regulations to be
promulgated by the Board.

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 Sec. 11. Family Selection/Matching. — No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as
issued by the Board, with the copy of the minutes of the meetings, shall form part of the records
of the child to be adopted. When the Board is ready to transmit the Placement Authority to the
authorized and accredited inter-country adoption agency and all the travel documents of the child
are ready, the adoptive parents, or any one of them, shall personally fetch the child in
the Philippines.

Sec. 12. Pre-adoptive Placement Costs. — The applicant(s) shall bear the following
costs incidental to the placement of the child;

(a) The cost of bringing the child from the Philippines to the residence of the
applicant(s) abroad, including all travel expenses within the Philippines and abroad; and

(b) The cost of passport, visa, medical examination and psychological evaluation
required, and other related expenses.

Sec. 14. Supervision of Trial Custody. — The governmental agency or the authorized
and accredited agency in the country of the adoptive parents which filed the application for inter-
country adoption shall be responsible for the trial custody and the care of the child. It shall also
provide family counseling and other related services. The trial custody shall be for a period of six
(6) months from the time of placement. Only after the lapse of the period of trial custody shall a
decree of adoption be issued in the said country a copy of which shall be sent to the Board to
form part of the records of the child.

During the trial custody, the adopting parent(s) shall submit to the governmental agency
or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a
progress report of the child's adjustment. The progress report shall be taken into consideration in
deciding whether or not to issue the decree of adoption.

The Department of Foreign Affairs shall set up a system by which Filipino children sent
abroad for trial custody are monitored and checked as reported by the authorized and accredited
inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child
whose adoption has not been approved.

Article IV. Penalties

Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the conduct or
carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished
with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and/or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred
thousand pesos (P200.000), at the discretion of the court. For purposes of this Act, an adoption is
illegal if it is effected in any manner contrary to the provisions of this Act or established State
policies, its implementing rules and regulations, executive agreements, and other laws pertaining
to adoption. Illegality may be presumed from the following acts:

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 (1) consent for an adoption was acquired through, or attended by coercion, fraud,
improper material inducement;

(2) there is no authority from the Board to effect adoption;

(3) the procedures and safeguards placed under the law for adoption were not complied
with; and

(4) the child to be adopted is subjected to, or exposed to danger, abuse and exploitation.

(b) Any person who shall violate established regulations relating to the confidentiality and
integrity of records, documents and communications of adoption applications, cases and
processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to
two (2) years, and/or a fine of not less than Five thousand pesos (P5,000), but not more than Ten
thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated felony under this
Article shall be imposed upon the principals of the attempt to commit any of the acts herein
enumerated.

Acts punishable under this Article, when committed by a syndicate or where it involves two or
more children shall be considered as an offense constituting child trafficking and shall merit the
penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if carried out by a group
of three (3) or more persons conspiring and/or confederating with one another in carrying out
any of the unlawful acts defined under this Article. Penalties as are herein provided shall be in
addition to any other penalties which may be imposed for the same acts punishable under other
laws, ordinances, executive orders, and proclamations.

Sec. 17. Public Officers as Offenders. — Any government official, employee or functionary
who shall be found guilty of violating any of the provisions of this Act, or who shall conspire
with private individuals shall, in addition to the above-prescribed penalties, be penalized in
accordance with existing civil service laws, rules and regulations: Provided, That upon the filing
of a case, either administrative or criminal, said government official, employee or functionary
concerned shall automatically suffer suspension until the resolution of the case.

IX. Support

A. What it Compromises, Art. 194

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.

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The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place
of work. (290a)

As a general rule, support includes whatever is necessary to keep a person alive. “in keeping
with the financial position of the family” determines the amount of support to be given. The
clause eliminates the distinction between natural support and civil support. Natural
support being the basic necessities while civil support refers to anything beyond the basic
necessities.

The word “schooling” refers to formal education while the term “training”
refers to non-formal education.

MANDATORY NATURE – Support is a mandatory obligation. The right to

receive support cannot be renounced nor can it be transmitted to a third
person and neither could it be compensated (Art. 2035) with what the
recipient owes the obligor, the very nature of support as a mandatory and
essential obligation nevertheless demands that the same cannot be
waived, renounced, transmitted or compensated as such obligation is
necessary for the existence, survival and well-being of the individual
ought to be supported.

SC has ruled that support is the most sacred and important of all
obligations imposed by law and it is imposed with overwhelming reality.
The others may sometimes fail but this one should never fail unless for a
valid cause. (Sumulong v. Cembrano, 51 Phil 719)

In De Asis v. CA, 303 SCRA 176, where a mother in a previous

support-case manifested that it was useless to claim further support for
her son from the defendant who denied paternity and where she agreed to
the dismissal of the said case provided the defendant did not pursue his
counterclaim, the SC held that such manifestation did not bar the mother
from filing a subsequent case for support on behalf of the same child
against the same defendant because such manifestation and agreement to
dismiss the case on condition that the defendant did not pursue the
counterclaim against the mother constitute a form of renunciation as
they severed the vinculum that gives the child the right to claim support
from the putative parent. Such agreement is likewise in the nature of a
compromise which cannot be countenanced as it violates the prohibition
against any compromise of the right to future support. The SC likewise
stated that if paternity is at issue in a case, its existence or absence must
be judicially established and cannot be left to the will or agreement of the
parties.

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BETWEEN SPOUSES – as between spouses, the duty to support and the
right to be supported presuppose a valid marriage between the parties. It
is a fact of a valid marriage that gives rise to the duty of husbands and
wives to support each other. (Santos v. Sweeney, 4 Phil. 79)

In Goita v. Campos Rueda (35Phil. 252, 262), a husband cannot, by

his own wrongful acts, relieve himself from the duty to support his wife
imposed by law; and where a husband by wrongful, illegal and unbearable
conduct, drives his wife from the domicile fixed by him, he cannot take
advantage of her departure to abrogate the law applicable to the marital
relations and repudiate his duties thereunder.

However, it has been held that the adultery of the wife is a valid
defense against an action for support (Quintana v. Lerma, 24 Phil. 285)
initiated by the wife claiming support. Also, a spouse who leaves the
conjugal home or refuses to live therein, without just cause, shall not
have the right to support from the conjugal properties or the scp, (Arts.
100 and 127 FC)

In a case for support between husband and wife where the validity of
the marriage is in issue, the aggrieved party cannot be given support
pendent lite by the other spouse immediately without due hearing
because prior to the rendition of a final judgment declaring the existence
or non-existence of the marriage, nothing exist except the allegations of
marriage and a denial thereof. (Yangco v. Rhode, 1 Phil. 404).

In cases of legal separation, Art. 198 states that the Court may
order the guilty spouse to support the innocent one, even after the
separation has been declared. However, once a marriage is annulled, or
declared void ab initio, the obligation to give support ceases. (Mendoza v.
Parungao, 41 Phil. 271). In legal separation, support likewise ceases
unless the court orders the guilty spouse to support the innocent spouse.

BETWEEN ASCENDANTS AND DESCENDANTS. All members of the

family in the direct legitimate ascending and descending line are obliged
to support each other. The purpose of the provisions on support is to
ensure that members of a family do not allow any member of the same
family to become a burden to society.

BETWEEN PARENTS AND THEIR LEGITIMATE CHILDREN AND THE

LEGITIMATE AND ILLEGITIMATE CHILDREN OF THE LATTER. The
parents are obliged to support their children and their grandchildren
whether legitimately or illegitimately related to their legitimate children,
vice versa. This is premises on the principle that as long as one is related
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by blood to the person who is supposed to give support, there is no reason
why the obligation to support him should fall on society and not on his
family, However, the persons obliged to support each other are limited
from the grandparents to the grandchildren only, vice versa.

Civil Code and Family Law committees explained – the illegitimate

children are clearly burdened with the stigma of bastardy and there is no
reason why the committee should further inflict punishment or other
disabilities on them. The committee is trying to ameliorate as much as
possible the stigma. In addition, the sentiment of the present Civil Code
of 1950 was best captured in the words: “There are no illegitimate
children, there are only illegitimate parents.”

BETWEEN PARENTS AND THEIR ILLEGITIMATE CHILDREN AND THE

LEGITIMATE AND ILLEGITIMATE CHILDREN OF THE LATTER. The
parents are likewise obliged to support their illegitimate children and
their grandchildren whether or not legitimately or illegitimate related to
their illegitimate children, vice versa (Montefalcon v. Vasquez, June 17,
2008) Again, the persons obliged to support each other are limited from
the grandparents to the grandchildren only, vice versa.

BETWEEN LEGITIMATE BROTHERS AND SISTERS, WHETHER FULL

OR HALF-BLOOD. The collateral blood relatives obliged to support each
other are limited to legitimate brothers and sisters, whether of the full or
half-blood. Hence, uncles, aunts, nephews and nieces are not obliged to
support each other.

ILLEGITIMATE BROTHERS AND SISTERS except if of age and the

need for his/her support is due to his or her fault or negligence, support
does not become a demandable right and, therefore, may not be given at
all.

CREDITABLE DEDUCTIONS – Lim-Lua v. Lua, June 5, 2013 – Issue –

whether certain expenses already incurred by the respondent may be
deducted from the total support in arrears owing to petitioner and her
children. SC held, any amount respondent seeks to be credited as
monthly support should only cover those incurred for sustenance and
household expenses.

As a matter of law, the amount of support which those related by

marriage and family relationship is generally obliged to give each other
shall be in proportion to the resources or means of the giver and to the
needs of the recipient. Such support comprises everything indispensable
for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
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 Upon receipt of a verified petition for declaration of absolute nullity
of void marriage or for annulment of voidable marriage, or for legal
separation, and at any time during the proceeding, the court, motu propio
or upon verified application of any of the parties, guardian or designated
custodian, may temporarily grant support pendent lite prior to the
rendition of judgment or final order. Because of its provisional nature, a
court does not need to delve fully into the merits of the case before it can
settle an application for this relief. All that a court is tasked to do is
determine the kind and amount of evidence which may suffice to enable it
to justly resolve the application. It is enough that the facts be
established by affidavits or othet documentary evidence appearing in the
record.

JUDGMENT OF SUPPORT DOES NOT BECOME FINAL. The right to

support is of such nature that its allowance is essentially provisional; for
during the entire period that a needy party is entitled to support, his or
her alimony may be modified or altered, in accordance with his increased
or decreased needs, and with the means of the giver. It cannot be
regarded as subject o final determination.

PROVISIONAL CHARACTER OF SUPPORT JUDGMENT – It is also because

of the changing needs of the recipient and the changing ability of the
provider that any judgment for support does not become final (De Asis v.
CA, 303 SCRA 176, Advincula v. Advincula, 10 SCRA 189)

Once the needs of the plaintiff arise, she has the right to bring the
action for support, for it is only then that her cause of action accrues.
The right to ask for support is demandable from that date in which
plaintiff was in need of the same. (Marcelo v. Estacio, 70Phil. 215)

In Velayo v. Velayo, 127 Phil 110, judgment for support does not
become dormant; the 5-year period for execution (Sec. 6, Rule 39 RC)
does not apply thereto; rather, the support under the judgment becomes
due from time to time as provided and in enforceable by simple motion at
any time, except as to installments not recovered within the statute of
limitations.

DEMAND – Payment of the amount for support starts only from the
time support has been judicially or extra-judicially demanded (Sy vs. CA,
Dec. 27, 2007) – Support does include what is necessary for the education
and clothing of the person entitled thereto x x x But support must be
demanded and the right to it established before it becomes payable. For
the right to support does not arise from the mere fact of relationship,
even from the relationship of parents and children, but “from imperative
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necessity without which it cannot be demanded, and the law presumes
that such necessity does not exist unless support is demanded.”

In a case where an illegitimate child was born on Dec. 19, 1943 and
the extrajudicial demand for support was made only on June 1959, the SC
held that payment of support should begin only from June 1959 applying
Article 292 of CC (now Art. 203FC. Article 203 of the FC – a child is
entitled to support in arrears.

SUPPORT IN ARREARS. –In Mangonon v. CA, June 30, 2006, 494

SCRA 1 the SC allowed the payment of support in arrears considering that
the children, who should have been given support, must have already
finished their schooling by the time the decision was rendered. The
amount of support to be paid was computed from the time they entered
college until they finished their respective studies.

OPTION; The right to elect the manner in which this support shall be
given is a right conferred by law upon the person whose duty it is to give
such support (Mendoza vs. Ibanez, 4 Phil. 666). However, this right is not
absolute as to prevent cases being considered therein, either because this
right would be opposed to the exercise of a preferential right or because of
the existence of some justifiable cause morally opposed to the removal of
the party enjoying the maintenance, the right of selection must thereby
be restricted. Thus, it has been held that the wife, who is forced to leave
the conjugal abode by her husband, without fault on her part, may
maintain an action against the husband for separate maintenance when
she has no other remedy, notwithstanding the provision of the law giving
the person who is obliged to furnish support the option to satisfy it either
by paying a fixed pension or by receiving and maintaining in his home the
one having the right to the same (Goita v. Campos Rueda)

In Mangonaon vs. CA, SC rejected the choice of the one giving

support (grandfather) to take custody of the grandchildren, since they
were no longer in good terms with the grandchildren who he is supposed
to support.

EXEMPTION FROM ATTACHMENT; EXCEPTION – in case of contractual

support or that given by will, the excess in amount beyond that required
for legal support shall be subject to levy on attachment or execution (Art.
208 FC)

Judgments For Support Are Immediately Final And Executory

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Fearing that she will not be able to send her three-year old daughter Francheska to school,
Bernadette wrote Augustus demanding support for their child. Replying, Augustus
denied paternity of Franchesca, hence Bernadette filed an action fort support with
prayer for support pendent lite before the RTC of Baguio City. Augustus moved to
dismiss the action for lack of cause of action, since the birth certificate of Francheska
stated her father as “UNKNOWN”. However, the trial court denied the motion. After
Augustus failed to file his answer, Bernadette moved that he be declared in default. The
court, noting that Augustus’s Motion to Admit Answer was filed more than 90 days after
the expiration of the regalementry period, granted Bernadette’s motion and received her
evidence ex parte. After hearing, the trial court found Bernadette sufficiently proved
filiation and entitlement to support and ordered Augustus to recognise Franchesca and
provide monthly support to him of P20,000.00, as well as arrears from the time she
was born. Upon motion for issuance of writ of execution, the trial court issued the
same, resulting in the levy of several vehicles from Augustus’s warehouse. He then
filed an appeal on the RTC judgment to the Court of appeals. He also filed a petition
for certiorari on the issuance of the motion for execution, citing that there was an
absence of good reason for immediate enforcement. As the judgment sought to be
executed had not yet attained finality, there must be exceptional reason to warrant
its execution. He also assailed the manner of the issuance of the writ in a default
declaration considering that he has a meritorious defense. He also attacked the
manner of its issuance despite lack of notice to him. The Court of Appeals dismissed
his petition, citing that under Sec. 4 of Rule 39 of the Rules of Court, judgments for
support are immediately executory. It debunked his other assertions. He thus filed a
petition for review on certiorari with the Supreme Court.

The Supreme Court: “A careful review of the facts and circumstances of this case fails to
persuade this Court to brand the issuance of the writ of execution by the trial court and
affirmed by the Court of Appeals with the vice of grave abuse of discretion. There is no
evidence indeed to justify the setting aside of the writ on the ground that it was issued
beyond the legitimate bounds of judicial discretion.

Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial
court, judgments in actions for support are immediately executory and cannot be
stayed by an appeal. This is an exception to the general rule which provides that
the taking of an appeal stays the execution of the judgment and that advance
executions will only be allowed if there are urgent reasons therefor. The aforesaid
provision peremptorily calls for immediate execution of all judgments for support
and makes no distinction between those which are the subject of an appeal and
those which are not. To consider then petitioner’s argument that there should be good
reasons for the advance execution of a judgment would violate the clear and explicit
language of the rule mandating immediate execution.

Petitioner is reminded that to the plain words of a legal provision we should make no further
explanation. Absoluta sententia expositore non indiget. Indeed, the interpretation which
petitioner attempts to foist upon us would only lead to absurdity, its acceptance negating
the plain meaning of the provision subject of the petition.
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Petitioner would also have us annul the writ of execution on the ground that he was not
notified of its issuance. We are unable to accept such a plea for enough has been done
by petitioner to delay the execution of the writ. As the records show, in partial
fulfillment of the writ of execution petitioner surrendered a sedan which apparently was
not his as it was later ordered released to a third party who laid claim over the levied
vehicle. Also, petitioner filed before the Court of Appeals a Motion for Leave to Deposit
in Court Support Pendente Lite promising to deposit the amount due as support every
15th of the month, but to date has not deposited any amount in complete disavowal of
his undertaking. He was not even deterred from appealing before us and needlessly
taking up our time and energy by posing legal questions that can be characterized, at
best, as flimsy and trivial. We are thus not prepared to abrogate the writ of execution
issued in favor of private respondent for substantial justice would be better served if
petitioner be precluded from interposing another barrier to the immediate execution of
the support judgment.

We are not intimating that in every case the right to notice of hearing can be disregarded. That is
not so. It appears in this case that there has been too much temporizing in the execution
of the writ which must not be allowed to thwart the constitutional mandate for speedy
disposition of cases. As has been said, a technicality should be an aid to justice and not
its great hindrance and chief enemy. Truly, if the writ of execution would be voided on
this ground alone, then procedural rules which were primarily drafted to protect parties
in the realm of constitutional guarantees would acquire a new sanctity at the expense of
equity and justice.

Lastly, we note that no useful purpose would be served if we dwell on petitioner’s arguments
concerning the validity of the judgment by default and his insistence that he be
subjected, together with private respondent Bernadette C. Pondevida to DNA testing to
settle the issue of paternity. The futility of his arguments is very apparent. It is not for us
at this instance to review or revise the Decision rendered by the trial court for to do so
would pre-empt the decision which may be rendered by the Court of Appeals in the
main case for support.

In all cases involving a child, his interest and welfare are always the paramount
concerns. There may be instances where, in view of the poverty of the child, it would
be a travesty of justice to refuse him support until the decision of the trial court attains
finality while time continues to slip away. An excerpt from the early case of De Leon v.
Soriano16 is relevant, thus:

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The money and property adjudged for support and education should and must be given
presently and without delay because if it had to wait the final judgment, the
children may in the meantime have suffered because of lack of food or have missed
and lost years in school because of lack of funds. One cannot delay the payment of
such funds for support and education for the reason that if paid long afterwards,
however much the accumulated amount, its payment cannot cure the evil and
repair the damage caused. The children with such belated payment for support
and education cannot act as gluttons and eat voraciously and unwisely, afterwards,
to make up for the years of hunger and starvation. Neither may they enrol in
several classes and schools and take up numerous subjects all at once to make up
for the years they missed in school, due to non-payment of the funds when
needed.”

SECOND DIVISION, G.R. No. 145527, May 28, 2002, AUGUSTUS CAEZAR R. GAN,
petitioner, vs. HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-
Br. 61, Baguio City, ALBERT G. TOLENTINO, in his capacity as RTC Sheriff of
Baguio City, and FRANCHESKA JOY C. PONDEVIDA, assisted by BERNADETTE
C. PONDEVIDA, respondents.

CONTRACTUAL AND TESTAMENTARY SUPPORT – legal support is that

which is mandated by law to be given and that which is provided in art.
194. However, contractual support is one which is entered into by the
parties usually with reciprocal duties and obligations. It is not mandated
by law. In case of contractual support and that given by will, the excess
in amount beyond that required for legal support shall be subject to levy
on attachment or execution. Only contractual support, and not support
given in a will, is subject to adjustment whenever modifications is
necessary due to changes of circumstances manifestly beyond the
contemplation of the parties.

The basis of contractual support is an agreement. Example, of the

parents procure an education policy for their children from an insurance
company whereby, for valuable consideration or payment of premium, the
said corporation shall undertake to finance all the educational needs of
the children up to the time they finish college, this particular education
policy is contractual support and the money placed by the corporation in
a trust fund to finance the education of the children cannot be subject of
levy or attachment except the amount in excess required for legal
support. However, if the policy goes beyond education support by stating
that the children shall be given money every vacation to fund their
transportation expenses for any provincial trip in the Philippines, the said
money for the provincial trips can be attached in the proper cases, as it is
not anymore needed in the children’s education.

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 B. Who are Obliged, Arts. 195-197, 199-200, 206-208

Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support
each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the
latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of
the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Article 194, except only when
the need for support of the brother or sister, being of age, is due to a cause imputable to the
claimant's fault or negligence.

Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and
brothers and sisters, whether legitimately or illegitimately related, only the separate property of
the person obliged to give support shall be answerable provided that in case the obligor has no
separate property, the absolute community or the conjugal partnership, if financially capable,
shall advance the support, which shall be deducted from the share of the spouse obliged upon the
liquidation of the absolute community or of the conjugal partnership.

Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.

Art. 200. When the obligation to give support falls upon two or more persons, the payment of the
same shall be divided between them in proportion to the resources of each.

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 However, in case of urgent need and by special circumstances, the judge may order only
one of them to furnish the support provisionally, without prejudice to his right to claim from the
other obligors the share due from them.

When two or more recipients at the same time claim support from one and the same
person legally obliged to give it, should the latter not have sufficient means to satisfy all claims,
the order established in the preceding article shall be followed, unless the concurrent obligees
should be the spouse and a child subject to parental authority, in which case the child shall be
preferred.

C. Support during marriage litigation, Art. 198

Art. 198. During the proceedings for legal separation or for annulment of marriage, and for
declaration of nullity of marriage, the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership. After the final judgment
granting the petition, the obligation of mutual support between the spouses ceases. However, in
case of legal separation, the court may order that the guilty spouse shall give support to the
innocent one, specifying the terms of such order.

D. Amount, Arts. 201-202

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased
proportionately, according to the reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to furnish the same.

E. When Demandable, Art. 203

Art. 203. The obligation to give support shall be demandable from the time the person who has a
right to receive the same needs it for maintenance, but it shall not be paid except from the date of
judicial or extra-judicial demand.

Support pendente lite may be claimed in accordance with the Rules of Court.

Payment shall be made within the first five days of each corresponding month or when
the recipient dies, his heirs shall not be obliged to return what he has received in advance.

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 F. Options, Art. 204

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either
by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person
who has a right to receive support. The latter alternative cannot be availed of in case there is a
moral or legal obstacle thereto.

G. Attachment, Art. 205

Art. 205. The right to receive support under this Title as well as any money or property obtained
as such support shall not be levied upon on attachment or execution.

Art. 206. When, without the knowledge of the person obliged to give support, it is given by a
stranger, the latter shall have a right to claim the same from the former, unless it appears that he
gave it without intention of being reimbursed.

Art. 207. When the person obliged to support another unjustly refuses or fails to give support
when urgently needed by the latter, any third person may furnish support to the needy individual,
with right of reimbursement from the person obliged to give support. This Article shall
particularly apply when the father or mother of a child under the age of majority unjustly refuses
to support or fails to give support to the child when urgently needed.

Art. 208. In case of contractual support or that given by will, the excess in amount beyond that
required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is
necessary due to changes of circumstances manifestly beyond the contemplation of the parties.

X. Parental Authority

It is cardinal that the custody, care and the nurture of the child reside
first in the parents whose primary function and freedom includes the
preparation for obligations the state can neither supply nor hinder.

PARENTAL AUTHORITY- it is the right and duty of parents to protect

their children, to care for them in sickness and in health, and to do
whatever may be necessary for their care, maintenance, and preservation.

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 As regards parental authority, there is no power, but a task; no
complex of rights, but a sum of duties; no sovereignty but a sacred trust
for the welfare of the minor. (Cang. V. CA, 296SCRA 128)

RENUNCIATION AND TRANSFER OF PARENTAL AUTHORITY- It cannot be

renounced or transferred except in the cases authorized by law. In Santos
v. CA, 242 SCRA 407, where a father who was not shown to be unfit took
away his son from the custody of the grandparents through deceit, false
pretensions, and trickery, the SC ruled that the father has the rightful
custody of his child.

Parental authority and responsibility are inalienable and may not be

transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and
surrender to a children’s home or an orphan institution.

When a parent entrusts the custody of a minor to another, such as a

friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifested, the law still
disallows the same. Only in the case of the parent’s death, absence, or
unsuitability may substitute parental authority be exercised by the
surviving parents. X x x The father’s employment of trickery in spiriting
away his son from the maternal grandparents, though unjustifiable is not
a ground to wrest custody from him.

However, parental authority can be terminated for cause in

accordance with the legal grounds provided in articles 228 to 232 of the
FC.

“The child has the right to call upon the parent for the discharge of
this duty, and public policy for the good of society will not permit or allow
the parent to divest himself of these obligations in this regard or to
abandon them at his mere will or pleasure. X x x”

JOINT PARENTAL AUTHORITY. Article 211 on joint parental authority

applies to both legitimate and illegitimate children. Article 211 of the FC
uses the phrase “common children” which does not distinguish whether
the said “common children” are legitimate or illegitimate.

For Article 211 to apply to illegitimate children, 2 requisites must concur

or both be present: (1) the father is certain; and (2) the illegitimate
children are living with the said father and the mother, who are

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cohabiting without the benefit of marriage or under a void marriage not
falling under Articles 36 and 53.

Article 176 provides that illegitimate children shall be under the parental
authority of the mother, but only applies in two cases: (1) where the
paternity of the child is unknown or in doubt; and (2) where though
paternity is certain, the father is not living with the mother and the child.

David v. CA, 250 SCRA 82- where a married man living with his
legitimate family got hold of his illegitimate son from the latter’s mother
who obviously was not living with the said married man, the SC stated
that, pursuant to Article 176 the illegitimate son is under the parental
authority of the mother only and therefore entitled to have custody of
him.

Once parental authority is vested, it cannot be waived except in

cases of adoption, guardianship and surrender to a children’s home or an
orphan institution. However parental authority can be terminated in
accordance with the legal grounds provided in the FC. If a father lives
together with his illegitimate child and the said child’s mother, parental
authority shall be exercised by both the father and the mother (Article
211). The father’s subsequent separation from the mother and the
illegitimate child shall not divest him of parental authority. His
separation shall not be considered as a waiver on his part of his parental
authority. His parental authority, however, may be validly terminated on
specific legal grounds provided in Articles 228 to 232 of the FC such as
abandonment and absence.

CUSTODY OF THE CHILDREN. Parents are never deprived of custody and

care of children except for cause. In custody cases, the rights of the
parents are not in issue. They have been overridden by the singular
interests of the child x x x the measure by which all else is to be decided.

If the child is seven years old and above, his or her choice of a
parent with whom he or she will live is significant and the court should
take this into consideration. However, such choice is not determinative
of the issue of custody because the court may still nevertheless award
custody to the other parent or even a third person if the paramount
interest of the child so dictates. However, if the child has made a choice
and there is no showing that the selected parent is in any way unfit to
have custody of the child, the child should be awarded to such parent
(David v. CA, 250 SCRA 82)

CUSTODY HEARINGS . A habeas corpus case can be availed of to secure

the custody of a child. (Tijang v. CA, March 8, 2001, David V. CA) in case
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the parents are separated from each other. However, it can be used also
by the parents as against third persons. Thus, the writ of habeas corpus
is also a proper remedy to enable the parents to regain the custody of a
minor daughter even though the latter be in the custody of third person
of her free will because the parents are compelling her to marry a man
against her will (David v. CA, 250 SCRA 82)

PARENTAL PREFERENCE RULE – the natural parents, who are of good

character and who can reasonably provide for the child, are ordinarily
entitled to the custody as against all persons. Accordingly, such parents
are entitled to the custody of their children as against foster or
prospective adoptive parents. Such entitlement applies also as against
other relatives of the child, including grandparents, or as against an
agency or institution.

MATERNAL PREFERENCE. It is universally recognized that the mother is

the natural custodian of her young. The proper application of the
maternal preference rule neither denies nor abridges the equality of rights
of the father, because the rights of the parents are not the principal
issues in a custody case but rather the best interest of the children.

The law favors the mother if she is a fit and proper person to have
custody of her children so that they may not only receive her attention,
care, supervision and kindly advice, but also may have the advantage and
benefit of a mother’s love and devotion for which there is no substitute.

In applying this preference to the mother, the child must be under 7

years of age at the time either parent is given the custody or at the time
the decision is rendered (Espiritu v. CA, 242 SCRA 362). This is also
known as the TENDER-AGE PRESUMPTION. Whether the child is under or
over 7 years of age, the paramount criterion must always be the child’s
interest.

Article 213 in the use of the word “shall” underscores its mandatory
character. It prohibits in no uncertain terms the separation of a mother
and her child below 7 years, unless such separation is grounded upon
compelling reasons as determined by a court (Lacson v. San Jose-Lacson,
24 SCRA 837). Thus, any agreement by the parties unduly depriving the
mother of the custody of her children under 7 years of age in the absence
of any compelling reason to warrant the same is null and void.

EXCEPTION TO MATERNAL PREFERENCE. Maternal preference is not an

absolute rule. It is intended to serve only the function as a “tie-breaker”
in those rare instances when parental qualities are so equally balanced
between litigants that resort to the preference is necessary. When there
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are compelling reasons which must be clearly shown by positive and clear
evidence of the unfitness of the mother and its determination is left to
the sound judgment of the court. (Medina v. Makabali, 27 SCRA 502,
Cervantes v. Fajardo, 169 SCRA 575)

In David v. CA (250SCRA82), where it was shown that the father was

well-off compared to the mother but the latter can nevertheless decently
support her children, the SC still awarded the children to the mother,
“Daisy and her children may not be enjoying a life of affluence that
private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to support
her children according to her means.”

Also in Pablo-Gualberto v. Gualberto, June 28, 2005, 461 SCRA 450,

the SC said that the mere fact that the mother is a lesbian is not enough
justification to remove the child from her custody.

The child’s best interest is the cardinal principle in determining the

right between parents as to custody, and any presumption of maternal
preference is to be resorted to only in the rare situation in which all other
considerations are equal, with the parental qualities of litigants so equally
balanced that a resort to the presumption is necessary.

CUSTODY GRANTED TO OTHERS. Custody may even be awarded to

persons who are strangers to the family if such award would best serve the
paramount interest of the child.

NO FINALITY OF CUSTODY JUDGMENT. It must be pointed out however that decisions

of the courts, even the Supreme Court on the custody of minor children are always open to
adjustments as the circumstances relevant to the matter may demand in the light of the inflexible
criterion, namely, the paramount interest of the children. Thus, in Luna v. Intermediate Appellate
Court, 137 SCRA 7, where the custody of the child was awarded to the grandparents by the
lower court but which award was later reversed by the Court of Appeals which made judgment in
favor of the natural parents and which Court of Appeals decision was affirmed by the Supreme
Court and consequently became final and executory, a writ of execution to deliver the child to
the natural parents by the lower court to which the case was remanded for execution was set
aside by the Supreme Court when, after the decision of the Supreme Court, the child manifested
that she would kill herself if she were delivered to her natural parents instead of letting her stay
with her grandparents. The Supreme Court even ruled in its subsequent decision that the decision
of the lower court, which is previously in effect reversed when it affirmed the decision of the
Court of Appeals awarding the child to the natural parents, should be maintained.

SUBSTITUTE PARENTAL AUTHORITY OF GRANDPARENTS. In the absence or

incapacity of the parents, the grandparents are the most natural, suitable, and logical persons

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to exercise parental authority. Hence, grandparents have the legal preference in the matter
of substitute parental authority.

REASON FOR THE FILIAL PRIVILEGE. The reason for the privilege is to foster family unity
and tranquility. Absence of this article does violence to the most sacred feelings of the family. No
descendant shall be compelled, in a criminal case, to testify against his parents and grandparents.

The phrase “in a criminal case for a crime against the other” has been construed in
Ordoño v. Daguigan, 62 SCRA 270, as to include a case of rape filed by the daughter against the
father. Thus, the mother can validly testify against the father in a criminal case for rape initiated
by the daughter. In essence, the Supreme Court said that because of the special and close bond
between mother and daughter, a crime of rape against the daughter is a “crime committed by him
against the wife”.

SUSTITUTE PARENTAL AUTHORITY. Persons exercising substitute parental authority

have a very important role to undertake. They shall have all the rights of the parents enumerated
in Article 220. The person exercising substitute parental authority shall have the same authority
over the person of the child as the parents (Article 233). They shall be civilly liable for the
injuries and damages caused by the acts or omissions of the unemancipated children living in
their company and under their parental authority (See Article 221).

It must be importantly emphasized that the order established in Article 216 is not mandatory.
Always, the paramount interest of the child must be the basis of the custody and care. Hence, if it
is shown that the brothers and sisters are more qualified than the grandparents, then substitute
parental authority should be granted to such brothers and sisters. However, the order must, as
much as possible, be observed especially when all of those enumerated are equally fit to take
care of the children.

LIABILITY OF PERSONS POSSESSING SPECIAL PARENTAL AUTHORITY. Persons

and entities given by law special parental authority are the school, its administrators, and
teachers, or the individual, entity or institution engaged in child care. Special parental
authority can be exercised only over minors while under their supervision, instruction, or
custody. The authority and supervision also attach to all authorized activities whether
inside or outside the school, entity, or institution.

They are civilly liable for acts and omissions of the unemancipated minor. However,
the liabilities shall not apply if it is proven that they exercised the proper diligence required
under particular circumstances.

The teacher must be the teacher-in-charge. He or she is the one designated by the dean,
principal, or other administrative superior to exercise supervision over the pupils in specific
classes or sections to which he or she is assigned; thus, is the one immediately involved in the
students’ discipline as he or she has direct control and influence over them. Hence, a mere
physics teacher who is not the teacher-in-charge of the class shall not be liable (Amadora v.
Court of Appeals, 160 SCRA 315).

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 Under the present Articles 218 and 219, the persons with special parental authority
are in loco parentis only with respect to unemancipated persons and their liability will
attach only in such case. Under the present law, there is no distinction as to whether the school
is academic or non-academic (arts and trades), and the liability also extends to the administrators
of the school.

The liability attaches while the minor child is under their supervision, instruction and
custody and also to all authorized activities whether inside or outside the premises of the school,
entity or institution. Being in the custody of the school means the protective and supervisory
custody that the school and its head and teachers exercise over the pupils and students for as long
as they are in attendance in the school, including recess time.

In Amadora v. Court of Appeals, 160 SCRA 274, the extent of the term “custody” in
Article 2180 of the Civil Code, which is also applicable under the Family Code, was further
explained. Thus,

As long as it can be shown that the student is in the school premises in pursuance
of a legitimate student objective, in the exercise of a legitimate student right, and
even in the enjoyment of a legitimate student privilege, the responsibility of the
school authorities over the student continues. Indeed, even if the student should be
doing nothing more than relaxing in the campus in the company of his
classmates and friends and enjoying the ambience and atmosphere of the school,
he is still within the custody and subject to the discipline of the school authorities
under the provisions of Article 2180.

LIABILITY OF PARENTS OR PERSONS EXERCISING SUBSTITUTE PARENTAL

AUTHORITY. Under Article 219, parents, judicial guardians or the persons exercising
parental authority over the minor shall be subsidiarily liable. The liability is subsidiary
because, while in school or in an institution engaged in childcare, the said persons do not have
the direct custody of their children. They shall be liable only if the persons with special parental
authority cannot satisfy their liability.

DEFENSE OF PERSONS WITH SPECIAL PARENTAL AUTHORITY. As previously

stated, the liability under Article 219 will not apply if it is proved that they exercised the proper
diligence required under the particular circumstances.

QUASI-DELICT. Article 2180 of the Civil Code provides that “teachers or heads of
establishments of arts and trades shall be liable for damages caused by their pupils and students
or apprentices so long as they remain in their custody”. Liability shall attach only upon a clear
showing of negligence or laxness in the enforcement of discipline. This article applies if the
students, pupils, or apprentices are not anymore minor children. A teacher, who must be
teacher-in-charge, will be liable for damages committed by his or her students or pupils in an
academic institution of learning. Heads of establishments of arts and trades, which are non-
academic institution but technical or vocational ones, shall be liable for damages, caused by their
apprentices. These heads must likewise have direct control and influence over their apprentices.
While the school itself cannot be held liable under Article 2180, it can nevertheless be held
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liable under the principle of respondeat superior considering that it is the employer of the
liable teacher or the head. In any event, the school, the teacher of an academic institution, and
the head of establishment of arts and trades (non-academic) may exculpate themselves from
liability upon showing that they had taken the necessary precautions to prevent the injury
complained of (Amadora v. Court of Appeals, 160 SCRA 315).

REPRESENTATIVE OF THE CHILDREN. Article 220, subparagraph 8 of the Family Code

provides that the parents shall also have the duty to represent the unemancipated children in all
matters affecting their interest. Thus, it has been held in Wenceslao v. Calimon, 46 Phil. 906, that
the offer to redeem a particular property made by the father on behalf of his children is valid, as
he is their natural guardian and represents them in and out of court and that such an offer is not
an act of administration but of representation of his children. Also, in a case where it was the
mother who filed for and on behalf of her child a petition for change of name, the Supreme
Court held that such a petition was not dismissible because the mother, with respect to her
unemancipated child, had the duty to represent him in all actions which redound to his benefit
(Tse v. Republic, 20 SCRA 1261).

PRIMARY LIABILITY OF PARENTS. The parents are principally and primarily liable for acts
or omissions of their unemancipated children resulting in injuries to others (Libi v. Intermediate
Appellate Court, 214 SCRA 16). However, for liability on the part of the parents to attach, the
unemancipated child must be living in their company and under their parental authority.
In explaining the philosophy of parental liability under Article 2180 of the Civil Code which has
been modified by Article 221 of the Family Code and which rationale is applicable under the
latter law, the Supreme Court , in Tamargo v. Court of Appeals, 209 SCRA 518, stated, thus:

This principle of parental liability is a species of what is frequently

designated as vicarious liability, or the doctrine of “imputed negligence” under the
Anglo-American tort law, where a person is not only liable for torts committed by
others with whom he has a certain relationship and for whom he is responsible.
Thus, parental liability is made a natural and logical consequence of the duties
and responsibilities of parents – their parental authority – which includes the
instructing, controlling, and disciplining of the child.

The civil liability imposed upon parents for the torts of their minor children living with
them, may be seen to be based upon the parental authority vested by the Civil Code upon such
parents. The civil law assumes that when an unemancipated child living with its parents commits
a tortious act, the parents were negligent in the performance of their legal and natural duty
closely to supervise the child who is in their custody and control. Parental liability is, in other
words, anchored upon parental authority coupled with presumed parental dereliction in the
discharge of the duties accompanying such authority. The parental dereliction is, of course, only
presumed and the presumption can be overturned under Article 2180 of the Civil Code by proof
that the parents had exercised all the diligence of a good father of a family to prevent the
damage.

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DILIGENCE OF A GOOD FATHER OF A FAMILY. To be able to remove themselves from
liability under Article 221, the parents must show that they exercised the diligence of a good
father of a family.

SELECTION. Appointment of a guardian ad litemis addressed to the sound discretion of the

court and designed to assist the Court in the determination of the best interest of the child
(Rivero v. Court of Appeals, G.R. No. 141273, May 17, 2005, 458 SCRA 714).

LEGAL GUARDIAN. There is no more need for a judicial court order appointing the parents as
guardians. It is clear from Article 225 that regardless of the value of the unemancipated common
child’s property, the father and mother ipso jure become the legal guardian of the child’s property
(Pineda v. Court of Appeals, 45 SCAD 30, 226 SCRA 754). Parents are presumed to act only for
the best interest of the children and are capacitated to reasonably undertake activities for the
children’s benefit.

PROHIBITION. There are two cases where a parent cannot be the administrator of the property
of his or her children. These prohibitions are provided in the law of succession contained in the
Civil Code. The first one is in Article 923 of the Civil Code which provides that

Children and descendants of the person disinherited shall take his or her place and
shall preserve the rights of compulsory heirs with respect to the legitime, but the
disinherited parent shall not have the usufruct or administration of the property
which constitutes the legitime.

The second one is in Article 1065 of the Civil Code which similarly provides the following:

If the person excluded from the inheritance by reason of incapacity should be a

child or descendant of the decedent and should have children or descendants, the
latter shall acquire his right to the legitime.

The person excluded shall not enjoy the usufruct and administration of the
property thus inherited by his children.

BOND. If the value of the property or income of the child exceeds P50,000, the parents are
required to furnish a bond in such amount as the court may determine, but not less than ten per
centum (10%) of the value of the property or annual income, to guarantee the performance of the
obligations prescribed for general guardians (See Pineda v. Court of Appeals, 45 SCAD 30, 226
SCRA 754). The reason for the P50,000 benchmark drafted by the committee which studied the
Family Code is as follows:

The committee considers P50,000 as the amount when the property is valuable
enough to require a bond on the basis of the current valuation, considering the
possible abuse by the parents and the expensiveness of the bond (Minutes of the
186th Joint Meeting of the Civil Code and Family Law committees held on July 4,
1987, page 10).

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EFFECT OF ARTICLE 229. The grounds referred to in Article 229 likewise terminate parental
authority. However, such termination is not permanent, as parental authority can be revived by
court order unlike in Article 228 and Article 232.

RIGHT OF PARENTS TO INFLICT CORPORAL PUNISHMENT. It must be noted that only

persons exercising special parental authority cannot inflict corporal punishment. Parents and
persons exercising substitute parental authority can inflict corporal punishment. (See Minutes of
the 135th meeting of the Joint Civil Code and Family Law committees held on March 22, 1986,
pages 15-16). This is also pursuant to Article 220(8) which provides that the parents have the
right and the duty “to impose discipline on them as may be required under the circumstances.”

A. General Provisions, Arts. 209-215

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the caring for and
rearing them for civic consciousness and efficiency and the development of their moral, mental
and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the
cases authorized by law.

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of
their common children. In case of disagreement, the father's decision shall prevail, unless there is
a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged
to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising
parental authority. The remarriage of the surviving parent shall not affect the parental authority
over the children, unless the court appoints another person to be the guardian of the person or
property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent chosen is unfit.

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority
shall be exercised by the surviving grandparent. In case several survive, the one designated by

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the court, taking into account the same consideration mentioned in the preceding article, shall
exercise the authority.

Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and
grandparents, except when such testimony is indispensable in a crime against the descendant or
by one parent against the other.

B. Substitute and Special Parental Authority, Arts. 216-219

Art. 216. In default of parents or a judicially appointed guardian, the following person shall
exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified;
and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or
disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes
necessary, the same order of preference shall be observed.

Art. 217. In case of foundlings, abandoned neglected or abused children and other children
similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads
of children's homes, orphanages and similar institutions duly accredited by the proper
government agency.

Art. 218. The school, its administrators and teachers, or the individual, entity or institution
engaged in child care shall have special parental authority and responsibility over the minor child
while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the
premises of the school, entity or institution.

Art. 219. Those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily liable.

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The respective liabilities of those referred to in the preceding paragraph shall not apply if it is
proved that they exercised the proper diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles shall be
governed by the provisions of the Civil Code on quasi-delicts.

C. Effect of Parental Authority upon the Persons of the Children, Arts. 220-224

Art. 220. The parents and those exercising parental authority shall have with the respect to their
unemancipated children on wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept
and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and
understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs,
and inspire in them compliance with the duties of citizenship;

(4) To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and prevent
them from acquiring habits detrimental to their health, studies and morals;

(5) To represent them in all matters affecting their interests;

(6) To demand from them respect and obedience;

(7) To impose discipline on them as may be required under the circumstances; and

(8) To perform such other duties as are imposed by law upon parents and guardians.

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
their company and under their parental authority subject to the appropriate defenses provided by
law.

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Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when
the best interests of the child so requires.

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution
exercising parental authority, may petition the proper court of the place where the child resides,
for an order providing for disciplinary measures over the child. The child shall be entitled to the
assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall
be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of
the merits of the petition, or when the circumstances so warrant, the court may also order the
deprivation or suspension of parental authority or adopt such other measures as it may deem just
and proper.

Art. 224. The measures referred to in the preceding article may include the commitment of the
child for not more than thirty days in entities or institutions engaged in child care or in children's
homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the care of the child
whenever committed but shall provide for his support. Upon proper petition or at its own
instance, the court may terminate the commitment of the child whenever just and proper.

EXCLUDE: Rule on Guardianship of Minors, Rule on Custody of Minors, RA 8972 – Solo

Parents Act, RA 8980 – Policy for Childhood Care

D. Effects of Parental Authority upon the Property of the Children, Arts. 225-227

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of
the unemancipated common child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a bond in such amount as the court may determine,
but not less than ten per centum(10%) of the value of the property or annual income, to guarantee
the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where
the child resides, or, if the child resides in a foreign country, in the proper court of the place
where the property or any part thereof is situated.

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The petition shall be docketed as a summary special proceeding in which all incidents and issues
regarding the performance of the obligations referred to in the second paragraph of this Article
shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is under
substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry
or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted
exclusively to the latter's support and education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be limited
primarily to the child's support and secondarily to the collective daily needs of the family.

Art. 227. If the parents entrust the management or administration of any of their properties to an
unemancipated child, the net proceeds of such property shall belong to the owner. The child shall
be given a reasonable monthly allowance in an amount not less than that which the owner would
have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the
child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's
legitime.

EXCLUDE: RA 9231 – Child Labor Law (to be covered by Labor Law)

E. Suspension or Termination of Parental Authority, Arts. 228-233 RA 7610 – Child

Abuse Law

Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or

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 (5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority.

Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising
the same of a crime which carries with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental
authority if the parent or the person exercising the same:

(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from
culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall
deprive the guilty party of parental authority or adopt such other measures as may be proper
under the circumstances.

The suspension or deprivation may be revoked and the parental authority revived in a
case filed for the purpose or in the same proceeding if the court finds that the cause therefor has
ceased and will not be repeated.

Art. 232. If the person exercising parental authority has subjected the child or allowed him to be
subjected to sexual abuse, such person shall be permanently deprived by the court of such
authority.

Art. 233. The person exercising substitute parental authority shall have the same authority over
the person of the child as the parents.

In no case shall the school administrator, teacher of individual engaged in child care
exercising special parental authority inflict corporal punishment upon the child.

SUPPORT. It is everything indispensable for sustenance, dwelling, clothing, medical

attendance, education and transportation in keeping with the financial capacity of the family.

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 a) Education includes schooling or training for some profession, trade or vocation, even
beyond the majority age.

b) Support is demandable at any time but shall not be paid except from the date of
judicial or extrajudicial demand.

c) Support can be given either by:

(1) giving of fixed allowance, or

(2) unless there is moral or legal obstacle, by receiving and maintaining the
recipient in the family dwelling.

KINDS.
(1) Legal support is that which is required or given by law;

(2) Judicial Support which is required by the court to be given whether pendente
lite or in a final judgment;

(3) Conventional Support given by agreement or by will.

CHARACTERISTICS.

(1) Personal – this is due to or from persons specified by law only; the right as
well as the obligation to support cannot be transferred.

(2) Not subject to waiver or compensation – thus it cannot be the subject of

compromise agreement;

(3) Exempt from attachment or execution;

a. (i) Exception: If the support is conventional and the amount is in
excess of what is required for legal support, then the excess shall be
subject to levy or attachment.

(4) Mutual and Reciprocal on the part of those who are by law bound to support
each other; and

(5) Variable – support shall be in proportion to the resources or means of the giver
and to the necessities of the recipient and may be accordingly be reduced or
increased.

PERSONS OBLIGED TO SUPPORT EACH OTHER.

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 (1) Spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and
(5) Legitimate brothers and sisters whether full or half-blood.

a) Notes:
(1) Parents-in-law are NOT obliged to support their daughters-in-law.
(2) An unborn child is entitled to support under Art. 40 of the New Civil
Code.

ORDER OF LIABILITY. If there is concurrence of several persons who are obliged to

give support, support should be given in the following order:

(1) Spouse;
(2) Descendants in the nearest degree;
(3) Ascendants in the nearest degree;
(4) Brothers and sisters.

(a) Concurrence of Two or More Persons of the Same Level. When the obligation to
give support falls upon two or more persons (Example: two or more descendants of
the same degree), the payment shall be divided between them in proportion to the
resources of each, but in case of urgent need and special circumstances, the court
may order one of them to furnish the support provisionally subject to the right to
claim from the other obligors the share due them.

(b) Two or More Recipients. When two or more recipients at the same time claim for
support and the obligor does not have sufficient means to satisfy all claims:

(1) The order of liability provided by law shall be followed;

(2) If the concurrent obliges should be the spouse and child subject to parental
authority, the child shall be preferred.

(c) Unacknowledged Illegitimate Child. To be entitled to legal support, the petitioner-

mother must, in proper action, first establish the filiation of the child, if the same is
not admitted or acknowledged. The child’s remedy is to file through her mother a
judicial action against the father for compulsory recognition. If the filiation is beyond
question, support follows as matter of obligation. In short, illegitimate children are
entitled to support and successional rights but their filiation must be duly proved.

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 (1) The mother’s remedy is to file for the benefit of her child an action against
the father for compulsory recognition in order to establish filiation and
then demand support. Alternatively, she may directly file an action for
support, where the issue of compulsory recognition may be integrated and
resolved.

PARENTAL AUTHORITY. This is the right and duty of the parents over
unemancipated children.

a) Non-transferrable. Parental authority is not transferrable, waived or

renounced except when the law authorizes the same.

b) Unemancipated minors are those who are minors or below 18 years. The only
ground for emancipation is attaining the age of majority.

WHO WILL EXERCISE. The father and the mother shall JOINTLY exercise parental
authority over the persons of their common children. In case of disagreement, the father’s
decision shall prevail unless there is a judicial order to the contrary.

a) In case one of the parents die, the parent present – even if he or she remarries,
- shall continue exercising parental authority over the child.

b) If the child is illegitimate, parental authority is with the mother.

Parental Preference Rule – the natural parents, who are of good character and who can
reasonably provide for the child are ordinarily entitled to custody as against all persons.

a) Custody. The matter of custody is not permanent and can always be re-examined and
adjusted. The welfare and interest of the minor child is the primary consideration.
Judgment involving the custody of a minor child cannot be accorded the force and
effect of res judicata.

Rule in case of legal separation of parents. Parental authority is to be awarded by the court
taking in mind the welfare and interest of the child.

a) Children of Tender Age. No child under seven years of age shall be separated from
the mother.

(1) EXCEPTION: Even if the child is of tender age, the child can be separated from the
mother when the court finds compelling reason to order otherwise. Examples: (i) The
mother was already in a common law relationship; (ii) If the mother left the child
with the father for a long period of time and prejudice might result to the child if he or
she will be separated from the father. NOTE: The fact that the mother is a lesbian is

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 not by itself a compelling reason to order the separation of the seven-year-old child
from the mother.

b) Child over Seven. If a minor child is already over seven years of age, the child’s choice as to
which of his parents he prefers to be under custody shall be respected unless the parent
chosen proves to be unfit.

SUBSTITUTE PARENTAL AUTHORITY. In the absence of the parents, the following shall
exercise substitute parental authority IN THE ORDER INDICATED:

(1) Surviving grandparent;

(2) Oldest brother or sister over 21 years of age, unless unfit or disqualified;
(3) Actual custodian, over 21 years of age, unless unfit or disqualified.

a) Foster Child. The foster parent shall have the rights, duties and liabilities of persons
exercising substitute parental authority, provided for under the Family Code, over
children under their foster care.

(1) However, foster parents shall only have the rights of a person with special
parental authority to discipline the foster child as defined under Sec. 233 of the
Family Code, insofar as it prohibits the infliction of corporal punishment upon the
child.

SPECIAL PARENTAL AUTHORITY. While the child is in their supervision, instruction or

custody, the following exercise special authority:

(1) School,
(2) Administrators and teachers, and
(3) Individual, entity or institution engaged in child care.

FOUNDLINGS. As to foundlings, abandoned, neglected or abused children and other children

similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads
of children’s homes, orphanages, and similar institutions duly accredited by the proper
government agency.

TORT LIABILITY. Persons exercising parental authority (including substitute) are principally
and solidarily liable for the damages caused by acts or omissions of the unemancipated minor.
However, the unemancipated child must live in their company.

a) With respect to those exercising special parental authority, their liability is primary
while the liability of the parents (or judicial guardian or those exercising special
parental authority) is subsidiary.

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 b) Even if the child is emancipated or is already 18, the parents or guardians are still
liable under Art. 2180 of the New Civil Code if the child is below 21.

EFFECT OF PARENTAL AUTHORITY ON THE CHILD’S PROPERTIES. The father and

the mother shall jointly exercise legal guardianship over the property of the unemancipated
common child without the necessity of a court appointment. In case of disagreement, the father’s
decision shall prevail, unless there is a judicial order to the contrary.

c) Note that the parent’s authority is only for acts of administration and does not include
acts of ownership. A father or mother, as natural guardian of the minor under parental
authority, does not have the power to dispose or encumber the property of the latter.
Such power is granted by law only to a judicial guardian of the ward’s property and
even then only with court’s prior approval secured in accordance with the proceedings
set forth by the Rules of Court.

Bond. Where the market value of the property or the annual income of the child exeeds P50,000,
the parent concerned shall be required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value of the property or annual income,
to guarantee the performance of the obligations prescribed for general guardians.

a) Bond in Insurance. “In the absence of a judicial guardian, the father, or in the latter’s
absence or incapacity, the mother, of any minor, who is an insured or a beneficiary under
a contract of life, health, or accident insurance, may exercise, in behalf of said minor, any
right under the policy, without necessity of court authority or the giving of a bond, where
the interest of the minor in the particular act involved does not exceed Five hundred
thousand pesos (P500,000).”

(1) The right may be exercised without a bond included, but shall not be limited to,
obtaining policy loan, surrendering the policy, receiving the proceeds of the Policy,
and giving the minor’s consent to any transaction on the policy.

(2) “In the absence or in case of the incapacity of the father or mother, the grandparent,
the eldest brother or sister at least eighteen (18) years of age, or any relative who has
actual custody of the minor insured or beneficiary, shall act as a guardian without
need of a court order or judicial appointment as such guardian, as long as such person
is not otherwise disqualified or incapacitated. Payment made by the insurer pursuant
to this section shall relieve such insurer of any liability under the contract.”

Property Acquired by Child Through Industry or Work or by Onerous or Gratuitous Title.

– these shall belong to the child in ownership and shall be devoted exclusively to the latter’s
support and education. The right of the parents over the fruits and income of the child’s property
shall be limited primarily to the child’s support and secondarily to the collective daily needs of
the family.

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SUSPENSIONS OF PARENTAL AUTHORITY.

When Suspended. Parental authority is suspended upon conviction of the parent or the person
exercising the same of a crime which carries with it the penalty of civil interdiction.

a) When reinstated. The authority is automatically reinstated upon service of the penalty or
upon pardon or amnesty of the offender.

Suspended upon Court Order. Parental authority may also be suspended upon order of the
court in an action filed for the purpose if the parent or the person exercising the same:

(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.

TERMINATION OF PARENTAL AUTHORITY.

Permanent Termination:

(1) Upon the death of the parents;

(2) Upon the death of the child;
(3) Upon emancipation of the child.

Terminated Unless Revived by Final Judgment:

(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority.

XI. Emancipation

EMANCIPATION. Emancipation is attained upon reaching eighteen years of age.

Marriage is not anymore a ground for emancipation because a person who decides to get
married is necessarily at least eighteen years of age.

Thus, Article 399 of the Civil Code imposing a limitation on a person

emancipated by marriage with respect to borrowing of money and encumbering his
property is completely deleted by the present law. Also, he may now sue or be sued
without the assistance of the father, mother, or guardian.

Arts. 234 and 236, as amended by RA 6809

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Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided,
majority commences at the age of twenty-one years.
Emancipation also takes place:

(1) By the marriage of the minor; or

(2) By the recording in the Civil Register of an agreement in a public instrument executed
by the parent exercising parental authority and the minor at least eighteen years of age. Such
emancipation shall be irrevocable.

Art. 235. The provisions governing emancipation by recorded agreement shall also apply to an
orphan minor and the person exercising parental authority but the agreement must be approved
by the court before it is recorded.

Art. 236. Emancipation for any cause shall terminate parental authority over the person and
property of the child who shall then be qualified and responsible for all acts of civil life. (412a)
Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded
agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority
over the minor but shall not affect acts and transactions that took place prior to the recording of
the final judgment in the Civil Register.

XII. Summary Judicial Proceedings in the Family Law

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title
shall apply as regards separation in fact between husband and wife, abandonment by one of the
other, and incidents involving parental authority.

Chapter 2. Separation in Fact

Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one
of them seeks judicial authorization for a transaction where the consent of the other spouse is
required by law but such consent is withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any, embodying the transaction, and, if
none, shall describe in detail the said transaction and state the reason why the required consent

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thereto cannot be secured. In any case, the final deed duly executed by the parties shall be
submitted to and approved by the court.

Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated
only in a separate action.

Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be
exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial
court or its equivalent sitting in the place where either of the spouses resides.

Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to
the transaction is required, of said petition, ordering said spouse to show cause why the petition
should not be granted, on or before the date set in said notice for the initial conference. The
notice shall be accompanied by a copy of the petition and shall be served at the last known
address of the spouse concerned.

Art. 243. A preliminary conference shall be conducted by the judge personally without the parties
being assisted by counsel. After the initial conference, if the court deems it useful, the parties
may be assisted by counsel at the succeeding conferences and hearings.

Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall
inquire into the reasons for his failure to appear, and shall require such appearance, if possible.

Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the
court may proceed ex parte and render judgment as the facts and circumstances may warrant. In
any case, the judge shall endeavor to protect the interests of the non-appearing spouse.

Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a
summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the
sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be
heard and the subject-matter of their testimonies, directing the parties to present said witnesses.

Art. 247. The judgment of the court shall be immediately final and executory.

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Art. 248. The petition for judicial authority to administer or encumber specific separate property
of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family
shall also be governed by these rules.

Chapter 3. Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental
authority shall be verified.

Art. 250. Such petitions shall be verified and filed in the proper court of the place where the
child resides.

Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or
incapacity, the individuals, entities or institutions exercising parental authority over the child.

Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this
Chapter insofar as they are applicable.

Chapter 4. Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 127, insofar as they are applicable.

XIII. Final Provisions – Retroactive effect, Art. 256

Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws.

EXCLUDE: Arts. 254-255, 257

XIV. Funeral, NCC Arts. 305-310

ARRANGEMENTS. This order is now governed by Article 199 of the Family Code which
repealed Article 294 of the Civil Code and which provides that such duty shall devolve first on
the spouse; in his or her absence or incapacity, the descendants in the nearest degree; in the
absence or incapacity of the latter, the ascendants in the nearest degree; and finally, in the
absence of all said persons, the brothers and sisters. Article 305 also provides that in case of

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descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of
ascendants, the paternal shall have a better right.

KINDS OF FUNERAL. The wishes of the deceased shall be mainly followed because this is part
of the respect that should be accorded to the dead.

However, in all cases, the law mandates that every funeral shall be in keeping with the
social position of the deceased. The kind of funeral is the last manifestation of the kind of life
which the deceased has attained and the law sees to it that those who will be in charge of the
funeral arrangements will accord the right type of respect due to the deceased.

RESPECT FOR THE DEAD. Philippine culture and tradition give reverence to the dead.

Art. 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order established for
support, under Article 294 (Art. 199 of the Family code). In case of
descendants of the same degree, or of brothers and sisters, the oldest
shall be preferred. In case of ascendants, the paternal shall have a better
right.

Art. 306. Every funeral shall be in keeping with the social position
of the deceased.

Art. 307. The funeral shall be in accordance with the expressed

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

Art. 308. No human remains shall be retained, interred, disposed of

or exhumed without the consent of the persons mentioned in articles 294
and 305.

Art. 309. Any person who shows disrespect to the dead, or wrongfully
interferes with a funeral shall be liable to the family of the deceased for
damages, material and moral.

Art. 310. The construction of a tombstone or mausoleum shall be

deemed a part of the funeral expenses, and shall be chargeable to the
conjugal partnership, if the deceased is one of the spouses.

EXCLUDE: Care and Education of Children, Arts. 356-363

XV. Use of surnames Arts. 364-369, 369-380 (other articles repealed by Family Code)
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 Middle names have a practical and legal significance in that they serve to identify
the maternal lineage or filiation of a person as well as further distinguish him or her from
others who may have the same given name and surname as he or she has. A middle name
cannot just be dropped without compelling or justifiable reasons. It cannot be dropped
merely because it is an inconvenience to the person using it. (In Re: Petition for Change
of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang,
G.R. No. 159966, March 30,2005, 454 SCRA 155).

[G.R. No. 159966. March 30, 2005]

IN RE: PETITION FOR CHANGE OF NAME AND/OR

CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY
OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN
WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN
LIN WANG, duly represented by his mother ANNA LISA
WANG, petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly
represented by the Registrar OSCAR B. MOLO, respondent.

DECISION
TINGA, J.:

I will not blot out his name out of the book of life.

Revelation 3:5

On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,

represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of entry in
the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop his
middle name and have his registered name changed from Julian Lin
Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB
and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:

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Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents
Anna Lisa Wang and Sing-Foe Wang who were then not yet married to each other.
When his parents subsequently got married on September 22, 1998, ...they executed a
deed of legitimation of their son so that the childs name was changed from Julian Lin
Carulasan to Julian Lin Carulasan Wang.

The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time
because they will let him study there together with his sister named Wang Mei
Jasmine who was born in Singapore. Since in Singapore middle names or the maiden
surname of the mother are not carried in a persons name, they anticipate that Julian
Lin Carulasan Wang will be discriminated against because of his current registered
name which carries a middle name. Julian and his sister might also be asking whether
they are brother and sister since they have different surnames. Carulasan sounds funny
in Singapores Mandarin language since they do not have the letter R but if there is,
they pronounce it as L. It is for these reasons that the name of Julian Lin Carulasan
Wang is requested to be changed to Julian Lin Wang. [1]

On 30 April 2003, the RTC rendered a decision denying the petition. [2] The
trial court found that the reason given for the change of name sought in the
petition that is, that petitioner Julian may be discriminated against when
studies in Singapore because of his middle name did not fall within the
grounds recognized by law. The trial court ruled that the change sought is
merely for the convenience of the child. Since the State has an interest in the
name of a person, names cannot be changed to suit the convenience of the
bearers. Under Article 174 of the Family Code, legitimate children have the
right to bear the surnames of the father and the mother, and there is no
reason why this right should now be taken from petitioner Julian, considering
that he is still a minor. The trial court added that when petitioner Julian
reaches the age of majority, he could then decide whether he will change his
name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.[4] The trial court maintained that the
Singaporean practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child who intends to study
there. The dropping of the middle name would be tantamount to giving due
recognition to or application of the laws of Singapore instead of Philippine law
which is controlling. That the change of name would not prejudice public
interest or would not be for a fraudulent purpose would not suffice to grant the
petition if the reason for the change of name is itself not reasonable.[5]

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 Petitioner then filed this Petition for Review on Certiorari (Under Rule 45)
arguing that the trial court has decided a question of substance not
[6]

theretofore determined by the Court, that is: whether or not dropping the
middle name of a minor child is contrary to Article 174 [7] of the Family Code.
Petitioner contends that [W]ith globalization and mixed marriages, there is a
need for the Supreme Court to rule on the matter of dropping of family name
for a child to adjust to his new environment, for consistency and harmony
among siblings, taking into consideration the best interest of the child. [8] It is
argued that convenience of the child is a valid reason for changing the name
as long as it will not prejudice the State and others. Petitioner points out that
the middle name Carulasan will cause him undue embarrassment and the
difficulty in writing or pronouncing it will be an obstacle to his social
acceptance and integration in the Singaporean community. Petitioner also
alleges that it is error for the trial court to have denied the petition for change
of name until he had reached the age of majority for him to decide the name
to use, contrary to previous cases [9] decided by this Court that allowed a minor
to petition for change of name.[10]
The Court required the Office of the Solicitor General (OSG) to comment
on the petition. The OSG filed its Comment[11] positing that the trial court
correctly denied the petition for change of name. The OSG argues that under
Article 174 of the Family Code, legitimate children have the right to bear the
surnames of their father and mother, and such right cannot be denied by the
mere expedient of dropping the same. According to the OSG, there is also no
showing that the dropping of the middle name Carulasan is in the best interest
of petitioner, since mere convenience is not sufficient to support a petition for
change of name and/or cancellation of entry.[12] The OSG also adds that the
petitioner has not shown any compelling reason to justify the change of name
or the dropping of the middle name, for that matter. Petitioners allegation that
the continued use of the middle name may result in confusion and difficulty is
allegedly more imaginary than real. The OSG reiterates its argument raised
before the trial court that the dropping of the child’s middle name could only
trigger much deeper inquiries regarding the true parentage of petitioner.
Hence, while petitioner Julian has a sister named Jasmine Wei Wang, there is
no confusion since both use the surname of their father, Wang. Even
assuming that it is customary in Singapore to drop the middle name, it has
also not been shown that the use of such middle name is actually proscribed
by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.

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 The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right,
so that before a person can be authorized to change his name given him
either in his certificate of birth or civil registry, he must show proper or
reasonable cause, or any compelling reason which may justify such
change. Otherwise, the request should be denied. [14]
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought. [15] To
justify a request for change of name, petitioner must show not only
some proper or compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among the grounds
for change of name which have been held valid are: (a) when the name is
ridiculous, dishonorable or extremely difficult to write or pronounce; (b)
when the change results as a legal consequence, as in legitimation; (c)
when the change will avoid confusion; (d) when one has continuously
used and been known since childhood by a Filipino name, and was
unaware of alien parentage; (e) a sincere desire to adopt a Filipino name
to erase signs of former alienage, all in good faith and without
prejudicing anybody; and (f) when the surname causes embarrassment
and there is no showing that the desired change of name was for a
fraudulent purpose or that the change of name would prejudice public
interest.[16]
In granting or denying petitions for change of name, the question of proper
and reasonable cause is left to the sound discretion of the court. The evidence
presented need only be satisfactory to the court and not all the best evidence
available. What is involved is not a mere matter of allowance or disallowance
of the request, but a judicious evaluation of the sufficiency and propriety
of the justifications advanced in support thereof, mindful of the
consequent results in the event of its grant and with the sole prerogative
for making such determination being lodged in the courts. [17]
The petition before us is unlike other petitions for change of name, as it
does not simply seek to change the name of the minor petitioner and adopt
another, but instead seeks to drop the middle name altogether. Decided cases
in this jurisdiction involving petitions for change of name usually deal with
requests for change of surname. There are only a handful of cases involving
requests for change of the given name[18] and none on requests for changing
or dropping of the middle name. Does the law allow one to drop the middle
name from his registered name? We have to answer in the negative.

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Atty. Stephanie Rachel Tenefrancia-Castro Page 481
 A discussion on the legal significance of a person’s name is relevant at this
point. We quote, thus:

For all practical and legal purposes, a man's name is the designation by which he
is known and called in the community in which he lives and is best known. It is
defined as the word or combination of words by which a person is distinguished
from other individuals and, also, as the label or appellation which he bears for
the convenience of the world at large addressing him, or in speaking of or dealing
with him. Names are used merely as one method of indicating the identity of
persons; they are descriptive of persons for identification, since, the identity is
the essential thing and it has frequently been held that, when identity is certain, a
variance in, or misspelling of, the name is immaterial.

The names of individuals usually have two parts: the given name or proper
name, and the surname or family name. The given or proper name is that which
is given to the individual at birth or baptism, to distinguish him from other
individuals. The name or family name is that which identifies the family to which
he belongs and is continued from parent to child. The given name may be freely
selected by the parents for the child; but the surname to which the child is
entitled is fixed by law.

A name is said to have the following characteristics: (1) It is absolute, intended to

protect the individual from being confused with others. (2) It is obligatory in
certain respects, for nobody can be without a name. (3) It is fixed, unchangeable,
or immutable, at least at the start, and may be changed only for good cause and
by judicial proceedings. (4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.[19]

This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal
significance. Middle names serve to identify the maternal lineage or
filiation of a person as well as further distinguish him from others who
may have the same given name and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. [20] The Family
Code gives legitimate children the right to bear the surnames of the
father and the mother,[21] while illegitimate children shall use the surname
of their mother, unless their father recognizes their filiation, in which
case they may bear the fathers surname.[22]

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Atty. Stephanie Rachel Tenefrancia-Castro Page 482
 Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother’s
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is only
when the illegitimate child is legitimated by the subsequent marriage of
his parents or acknowledged by the father in a public document or
private handwritten instrument that he bears both his mother’s surname
as his middle name and his father’s surname as his surname, reflecting
his status as a legitimated child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the certificate. The
registered name of a legitimate, legitimated and recognized illegitimate child
thus contains a given or proper name, a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his middle
name as this would help him to adjust more easily to and integrate himself into
Singaporean society. In support, he cites Oshita v. Republic[23] and Calderon v.
Republic,[24] which, however, are not apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita,
sought to change her name from Antonina B. Oshita to Antonina
Bartolome. The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon reaching
the age of majority; her other siblings who had also elected Philippine
citizenship have been using their mothers surname; she was
embarrassed to bear a Japanese surname there still being ill feeling
against the Japanese due to the last World War; and there was no
showing that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del
Prado, an illegitimate minor child acting through her mother who filed
the petition in her behalf, to change her name to Gertudes Josefina
Calderon, taking the surname of her stepfather, Romeo C. Calderon, her
mother’s husband. The Court held that a petition for change of name of
an infant should be granted where to do is clearly for the best interest of
the child. The Court took into consideration the opportunity provided for
the minor petitioner to eliminate the stigma of illegitimacy which she
would carry if she continued to use the surname of her illegitimate
father. The Court pronounced that justice dictates that every person be
allowed to avail of any opportunity to improve his social standing as
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Atty. Stephanie Rachel Tenefrancia-Castro Page 483
long as doing so he does not cause prejudice or injury to the interests of
the State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174 of
the Family Code gives the legitimate child the right to use the surnames of the
father and the mother, it is not mandatory such that the child could use only
one family name, even the family name of the mother. In Alfon, the petitioner
therein, the legitimate daughter of Filomeno Duterte and Estrella Alfon, sought
to change her name from Maria Estrella Veronica Primitiva Duterte (her name
as registered in the Local Civil Registry) to Estrella S. Alfon (the name she
had been using since childhood, in her school records and in her voters
registration). The trial court denied her petition but this Court overturned the
denial, ruling that while Article 364 of the Civil Code states that she, as a
legitimate child, should principally use the surname of her father, there is no
legal obstacle for her to choose to use the surname of her mother to which
she is entitled. In addition, the Court found that there was ample justification to
grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of his name
against the standards set in the cases he cites to support his contention would
show that his justification is amorphous, to say the least, and could not
warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases are
not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the petitioners were
already of age when they filed their petitions for change of name. Being of
age, they are considered to have exercised their discretion and judgment, fully
knowing the effects of their decision to change their surnames. It can also be
unmistakably observed that the reason for the grant of the petitions for change
of name in these two cases was the presence of reasonable or compelling
grounds therefore. The Court, in Oshita, recognized the tangible animosity
most Filipinos had during that time against the Japanese as a result of World
War II, in addition to the fact of therein petitioners election of Philippine
citizenship. In Alfon, the Court granted the petition since the petitioner had
been known since childhood by a name different from her registered name
and she had not used her registered name in her school records and voters
registration records; thus, denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of name filed
by a mother in behalf of her illegitimate minor child. Petitioner cites this case
to buttress his argument that he does not have to reach the age of majority to
petition for change of name. However, it is manifest in Calderon that the
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Atty. Stephanie Rachel Tenefrancia-Castro Page 484
Court, in granting the petition for change of name, gave paramount
consideration to the best interests of the minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the dropping
his middle name is convenience. However, how such change of name would
make his integration into Singaporean society easier and convenient is not
clearly established. That the continued use of his middle name would cause
confusion and difficulty does not constitute proper and reasonable cause to
drop it from his registered complete name.
In addition, petitioner is only a minor. Considering the nebulous foundation
on which his petition for change of name is based, it is best that the matter of
change of his name be left to his judgment and discretion when he reaches
the age of majority.[26] As he is of tender age, he may not yet understand and
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.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.

In Alfon v. Republic, G.R. No. L, -51201May 29, 1980, 97 SCRA 858, the
Supreme Court ruled that the word “principally” used in Article 364 is not equivalent to
“exclusively” so that there is no legal obstacle if a legitimate or legitimated child should
choose to use the surname of the mother to which it is equally entitled. In the said Alfon
case, the Supreme Court also found as justified the use of the mother’s surname
considering that the child has been using it already in various records and hence changing
the child’s surname in her birth certificate from that of her father to her mother was
justified to avoid confusion.

G.R. No. L-51201 May 29, 1980

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA ESTRELLA

VERONICA PRIMITIVA DUTERTE, ESTRELLA S. ALFON, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.

ABAD SANTOS, J.: ñé+.£ªwph!1

This is a petition filed pursuant to Republic Act No. 5440 to review an Order of the Court of First
Instance of Rizal, Branch XXIII, dated December 29, 1978, which partially denied petitioner's prayer
for a change of name. Only a question of law is involved and there is no controversy over the facts
which are well-stated in the questioned Order as follows:têñ.£îhqwâ£

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Atty. Stephanie Rachel Tenefrancia-Castro Page 485
 This is verified petition filed on April 28, 1978 by petitioner Maria Estrella Veronica
Primitiva Duterte through her counsel, Atty. Rosauro Alvarez, praying that her name
be changed from Maria Estrella Veronica Primitiva Duterte to Estrella S. Alfon.

The notice setting the petition for hearing on December 14, 1978 at 8:30 o'clock in
the morning was published in the Times Journal in its issues of July 28, August 5 and
11, 1978 and a copy thereof together with a copy of the petition was furnished the
Office of the Solicitor General (Exhibits C, C-1, C-2 and C-3).

At the hearing of the petition on December 14, 1978, Atty. Rosauro Alvarez appeared
for the petitioner and Fiscal Donato Sor. Suyat, Jr. represented the office of the
Solicitor General, Upon motion of counsel for the petitioner, without objection on the
part of Fiscal Suyat, the Deputy Clerk of Court was appointed commissioner to
receive the evidence and to submit the same for resolution of the Court.

From the testimonial and document evidence presented, it appears that petitioner
Maria Estrella Veronica Primitiva Duterte was born on May 15, 1952 at the U.S.T.
Hospital (Exhibit A). She was registered at the local Civil Registrar's Office as Maria
Estrella Veronica Primitiva Duterte On June 15, 1952, she was baptized as Maria
Estrella Veronica Primitiva Duterte at the St. Anthony de Padua Church Singalong,
Manila (Exhibit B). Her parents are Filomeno Duterte and Estrella Veronica Primitiva
Duterte has been taken cared of by Mr. and Mrs. Hector Alfon. Petitioner and her
uncle, Hector Alfon, have been residing at 728 J.R. Yulo Street corner Ideal Street,
Mandaluyong, Metro Manila for twenty-three (23) years. When petitioner started
schooling, she used the name Estrella S. Alfon. She attended her first grade up to
fourth year high school at Stella Maris College using the name Estrella S. Alfon
(Exhibits E, E-1, E-2 and E-3). After graduating from high school she enrolled at the
Arellano University and finished Bachelor of Science in Nursing (Exhibit E-4). Her
scholastic records from elementary to college show that she was registered by the
name of Estrella S. Alfon. Petitioner has exercised her right of suffrage under the
same name (Exhibit D). She has not committed any felony or misdemeanor (Exhibits
G, G-1, G-2, G-3 and G-4).

Petitioner has advanced the following reasons for filing the petition:

1. She has been using the name Estrella Alfon since her childhood;

2. She has been enrolled in the grade school and in college using the same name;

3. She has continuously used the name Estrella S. Alfon since her infancy and all her
friends and acquaintances know her by this name;

4. She has exercised her right of suffrage under the same name.

Section 5, Rule 103 of the Rules of Court provides:

Upon satisfactory proof in open court on the date fixed in the order that such order
has been published as directed and that the allegations of the petition are true, the
court shall if proper and reasonable cause appears for changing the name of the
petitioner adjudge that such name be changed in accordance with the prayer of the
petition.
Persons & Family Relations
Atty. Stephanie Rachel Tenefrancia-Castro Page 486
 The evidence submitted shows that the change of name from Maria Estrella Veronica
Primitiva Duterte to Estrella Alfon is not proper and reasonable with respect to the
surname. The fact that petitioner has been using a different surname and has
become known with such surname does not constitute proper and reasonable cause
to legally authorize and change her surname to Alfon. The birth certificate clearly
shows that the father of petitioner is Filomeno Duterte. Petitioner likewise admitted
this fact in her testimony. To allow petitioner to change her surname from Duterte to
Alfon is equivalent to allowing her to use her mother's surname. Article 364 of the
Civil Code provides:

Legitimate and legitimated children shall principally use the surname of the father.

If another purpose of the petitioner is to carry the surname of Alfon because her
uncle who reared her since childhood has the surname "Alfon" then the remedy is
not a petition for change of name.

WHEREFORE, the petition insofar as the first name is granted but denied with
respect to the surname. Petitioner is authorized to change her name from Maria
Estrella Veronica Primitiva Duterte to Estrella Alfon Duterte.

Let copy of this order be furnished the Local Civil Registrar of Pasig, Metro Manila
pursuant to Section 3, Rule 103 of the Rules of Court.

The lower court should have fully granted the petition.

The only reason why the lower court denied the petitioner's prayer to change her surname is
that as legitimate child of Filomeno Duterte and Estrella Alfon she should principally use the
surname of her father invoking Art. 364 of the Civil Code. But the word "principally" as used
in the codal provision is not equivalent to "exclusively" so that there is no legal obstacle if a
legitimate or legitimated child should choose to use the surname of its mother to which it is
equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-21194. April 29, 1966,
16 SCRA 677, 679, said: têñ.£îhqwâ£

The following may be considered, among others, as proper or reasonable causes

that may warrant the grant of a petitioner for change of name; (1) when the name is
ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2)
when the request for change is a consequence of a change of' status, such as when
a natural child is acknowledged or legitimated; and (3) when the change is necessary
to avoid confusion Tolentino, Civil Code of the Philippines, 1953 ed., Vol. 1, p. 660).

In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S.
Alfon although her birth records and baptismal certificate show otherwise; she was enrolled in the
schools from the grades up to college under the name Estrella S. Alfon; all her friends call her by this
name; she finished her course in Nursing in college and was graduated and given a diploma under
this name; and she exercised the right of suffrage likewise under this name. There is therefore ample
justification to grant fully her petition which is not whimsical but on the contrary is based on a solid
and reasonable ground, i.e. to avoid confusion.

WHEREFORE, the Order appealed from is hereby modified in that, the petitioner is allowed to
change not only her first name but also her surname so as to be known as ESTRELLA S. ALFON.
No costs

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Atty. Stephanie Rachel Tenefrancia-Castro Page 487
G.R. No. L-18127 April 5, 1967

IN THE MATTER OF THE CHANGES OF NAME OF GERTRUDES JOSEFINA DEL PRADO,

THRU HER NATURAL GUARDIAN CORAZON ADOLFO CALDERON, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Office of the Solicitor General for oppositor and appellant.

Angeles, Maskariño & Angeles for petitioner and appellee.

ZALDIVAR, J.:

This is an appeal by the Solicitor General from the order of the Court of First Instance of Davao
granting the petition of petitioner-appellee, Gertrudes Josefina del Prado, for a change of name.

On July 23, 1959, Gertrudes Josefina del Prado, a minor, through her mother and natural guardian,
Corazon Adolfo Calderdon, filed a petition in the Court of First Instance of Davao, praying that her
name "Gertrudes Josefina del Prado" be changed to "Getrudes Josefina Calderon." It is alleged in
the petition that the petitioner is an illegitimate child, born on March 17, 1956, out of a bigamous
marriage contracted by Manuel del Prado with Corazon Adolfo; that the surname "Del Prado" which
the petitioner carries is a stigma of illegitimacy, by reason of which she has become the subject of
unfair comments; that the surname which the petitioner carries would constitute a handicap in her
life in later years, and would give cause for constant irritation in her social relations with other
people; that petitioner is living with her mother who is now married to Engineer Romeo C. Calderon;
and that it is the desire of the petitioner to have her surname changed from "Del Prado" to "Calderon
"which is the surname of her foster father, the husband of her mother.

The publication of the order for the hearing of the petition was duly made.

On July 11, 1960, the Provincial Fiscal of Davao, representing the Solicitor General, filed an
opposition to the petition upon the ground that the change of surname of the petition is unwarranted,
considering that said petitioner was born out of a bigamous marriage and as such she has the status
of an acknowledged natural child by legal fiction and under the law she should bear the surname of
her father Manuel del Prado; and that the change of the surname of the petitioner would be
prejudicial to the rights and interest which she has by virtue of the judgment in Civil Case No. 2272
of the Court of First Instance of Davao, annulling the marriage of her mother, Corazon Adolfo, to
Manuel del Prado, and would also be prejudicial to her rights as conferred upon her by law. Counsel
for the petitioner filed in reply to the opposition, the provincial fiscal filed a supplemental opposition,
and counsel for the petitioner filed a reply to the supplemental opposition. 1äwphï1.ñët

After hearing the court a quo issued an order, under date of July 28, 1960, granting the petition and
ordering the change of the name of the petitioner from "Gertrudes Josefina, del Prado," to
"Gertrudes Josefina Calderon." The dispositive portion of the order of the court further states: "This
order, however, shall not operate to deprive the petitioner of her status, rights and obligations as
recognized by law."

From the above-mentioned order the provincial fiscal, representing the Solicitor General, appealed
to this Court.

In this appeal the Solicitor General contends (1) that the lower court erred in finding as proper and
reasonable ground for the change of the surname of the petitioner the reason that petitioner's
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Atty. Stephanie Rachel Tenefrancia-Castro Page 488
present surname carries the stigma of illegitimacy, and (2) that the lower court erred in declaring
"that although the law is specific that petitioner shall principally use the surname of the father yet it
does not follow that petitioner is prohibited from using other surnames when justified." 1

The issue to be resolved in the present case is whether the lower court's order granting the petition
is, based upon "proper and reasonable cause" as required by Section 5 of Rule 103 of the new
Rules of Court.

The lower court found that petitioner Gertrudes Josefina del Prado was born on March 17, 1956, an
illegitimate child of Manuel del Prado and Corazon Adolfo as a result of their bigamous marriage
which was annulled on July 18, 1957, after a judgment of conviction of said Manuel del Prado on the
complaint for bigamy on December 5, 1956; that subsequently, on December 26, 1957, Corazon
Adolfo, mother of the petitioner, got married to Romeo C. Calderon; that the petitioner is living with
her mother and her foster father; and that Romeo C. Calderon declared in open court his consent to
the petitioner's adopting his surname, especially so because he is the one supporting her. The lower
court says, "In the opinion of the Court the reasons adduced by the petitioner are valid and will
redound to the best interests of said minor who after all is not at fault to have come to this world as
an illegitimate child."

We agree with the court a quo. A petition to change the name of an infant, as in this case,
should be granted only where to do so is clearly for the best interest of the child. When the
mother of the petitioner filed the instant petition she had in mind what she believed was for
the best interest of her child considering that her husband Romeo C. Calderon is the one
supporting the child and that he is agreeable to the child's using his surname. The mother
had considered the generous attitude of her husband as an opportunity for her to promote
the personality, and enhance the dignity, of her daughter, by eliminating what constitutes a
stigma of illegitimacy which her child would continue to bear if her surname is that of her
illegitimate father.

The Solicitor General, in his brief, avers that the evident purpose of petitioner in seeking a
change of her surname is to conceal her status as an illegitimate child and that any attempt
to conceal illegitimacy cannot be motivated by good faith and an honest purpose. The
Solicitor General further alleges that to authorize the change of the name of the petitioner
would be to sanction a misrepresentation because the petitioner wants to appear as if she is
the daughter of Romeo C. Calderon. We cannot agree with the view of the Solicitor General.
The Solicitor General seems to support the idea that since the petitioner has the misfortune
of being born illegitimate she must bear that stigma of illegitimacy as long as she lives. That
idea should not be countenanced. Justice dictates that every person be allowed to avail of
any opportunity to improve his social standing as long as in so doing he does not cause
prejudice or injury to the interests of the State or of other people.

The Solicitor General also contends that the status of the petitioner is that of a natural child
by legal fiction and under Article 367 of the Civil Code she shall principally enjoy the surname
of the father. We agree with the lower court when it said that "While it is true that the Code
provides that a natural child by legal fiction as the petitioner herein shall principally enjoy the
surname of the father, yet, this does not mean that such child is prohibited by law, from
taking another surname with the latters consent and for justifiable reasons." If under the law
a legitimate child may secure a change of his name through judicial proceedings, upon a
showing of a "proper and reasonable cause", We do not see any reason why a natural child
cannot do the same. The purpose of the law in allowing a change of name, as contemplated
by the provisions of Rule 103 of the Rules of Court, is to give a person an opportunity to

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Atty. Stephanie Rachel Tenefrancia-Castro Page 489
improve his personality and to promote his interests. We are satisfied that the facts and
circumstances as borne out by the record amply justify the change of the surname of the
petitioner, as ordered by the lower court . We have held that the matter whether to grant or
deny a petition for a change of name is left to the sound discretion of the court,2 and in the
present case We believe that the court a quo has exercised its discretion in a judicious way
when it granted the petition.

The Solicitor General expresses an apprehension that because the petitioner here is of
tender age, who cannot as yet understand and appreciate the value of the change of her
name, may be prejudiced in her rights under the law. This apprehension is dispelled by the
pronouncement of this Court, speaking through Mr. Justice Makalintal, as follow:

... But a change of name as authorized under Rule 103 does not by itself define, or
affect a change in, one's existing family relations, or in the rights and duties flowing
therefrom; nor does it create new family rights and duties where none before was
existing. It does not alter one's legal capacity, civil status, or citizenship. What is
altered is only the name, which is that word or combination of words by which a
person is distinguished from others and which he bears as a label or appellation for
the convenience of the world at large in addressing him, or in speaking of or dealing
with him (38 Am. Jur. 596). (In Re Petition for Change of Name of Joselito Yu, Juan S.
Barrera vs. Republic of the Philippines, L-20874, May 25, 1966)

In view of the foregoing, the order appealed from is affirmed, without pronouncement as to the costs.
It is so ordered.

ILLEGITIMATE CHILDREN. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the surname of their
father if their filiation has been expressly recognized by the father through the record of
birth appearing in the civil register, or when an admission in a public document or
private handwritten instrument is made by the father. Provided, the father has the right
to institute an action before the regular courts to prove non-filiation during his lifetime.
The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. (As amended by Republic Act No. 9255)

MARRIED WOMAN. Article 370 is directory and permissive in character because when
a woman gets married, she does not change her name but only her civil status.
Moreover, this is consistent with the rule that surname indicates descent (Remo v.
Honorable Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010; Yasin v.
Honorable Judge Shari’a District Court, 311 Phil. 696, 707). A married woman can
maintain her name and surname or follow any of the names in Article 370. Thus, a
validly married woman has actually four alternatives in the use of a name. Thus,
Corazon Cojuanco married to Benigno Aquino, Jr. may use either Corazon Cojuanco, or
Corazon Cojuanco-Aquino, or Corazon Aquino, or Mrs. Benigno Aquino, Jr.

In Remo v. Honorable Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010, the
Supreme Court Ruled that, for purposes of surnames used in the passport, a married

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Atty. Stephanie Rachel Tenefrancia-Castro Page 490
woman who opted to use the surname of her husband in her passport must continue to
use it in case of renewal. She cannot revert to using her maiden surname because,
pursuant to R.A. No. 8239, the law regulating the issuance of passport, a married
woman who used the surname of her husband in initially obtaining a passport can
change her surname to her maiden surname in subsequent renewals only if the
marriage were annulled or nullified or the woman obtained a valid divorce abroad. The
Supreme Court likewise stated that, R.A. No. 8239 is more specific law that the Civil
Code on surnames and therefore the former should prevail.

IDENTITY OF NAMES. So that confusion can be prevented, the law provides that
additional names or surnames shall be used by younger people.

IDENTITY OF NAMES BETWEEN ASCENDANTS AND DESCENDANTS. According to

the law, only the son can use the word “junior” in case of identity of names between
ascendants and descendants. Hence, the son of Juan de la Cruz who has the same
name shall use Juan de la Cruz, Junior. Any other direct descendant other than a son
could either add a middle name or the mother’s surname, or add the Roman numerals
II, III and so on. Hence, if Juan de la Cruz, Junior, who is married to Julieta Santos, has
a son with the same name, such son shall use Juan Ricardo de la Cruz, or Juan
Santos-de la Cruz, or Juan de la Cruz III. If Juan de la Cruz names his son after his
father, Roberto de la Cruz, such son shall be named Roberto de la Cruz II.

REPUBLIC ACT NUMBER 9048 AS AMENDED BY REPUBLIC ACT NUMBER 10172.

Article 366 and also Article 412 of the Civil Code have been amended by R.A. No. 9048,
otherwise known as “An Act Authorizing the City or Municipal Civil Registrar or the
Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change
of First Name or Nickname in the Civil Register without Need of Judicial Order. Further
amendment was made by R.A. No. 10172.

CHANGE OF NAME AND SURNAME. A change of name is a privilege and not a matter
of right, so that before a person can be authorized to change his or her name given
either in his or her certificate or civil registry, he or she must show proper or reasonable
cause or any compelling reason which may justify such change (Yu Cchi Han v.
Republic, 15 SCRA 454; Ng Yao Siong v. Republic, 16 SCRA 483). A change of name or
nickname can be effected through the office of the local civil registrar reviewable by the
office of the Civil Registrar General and finally the courts.

A change of surname is however, a matter of judicial discretion which must be

exercised in the light of the reasons adduced and the consequences that will likely
follow (Yu Cchi Han v. Republic, 15 SCRA 454)

REASONS FOR CHANGE OF NAME. The purpose of the law in allowing a change of
name or surname is to give a person an opportunity to improve his or her personality
and to promote his or her best interest (Calderon v. Republic, 19 SCRA 721). But to
justify a change of surname, there must exist a proper and reasonable cause or
compelling reason. The reasons for change of name or nickname are all provided in
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Section 4 of R.A. No. 9048. The following have been held to constitute proper and
reasonable causes or compelling reasons for change of surname: (1) a ridiculous name,
a name tainted with dishonor, or a name extremely difficult to write or pronounce; (2) a
change of civil status; and (3) a need to avoid confusion (Republic v. Tañada, 42 SCRA
419). Also, it has been held that, in the absence of prejudice to the State or any
individual, a sincere desire to adopt a Filipino name to erase signs of a former alien
nationality which unduly hamper social and business life, is a proper and reasonable
cause for a change of surname (Uy v. Republic, 15 SCRA 457).

In Silverio v. Republic, G.R. No. 174689, October 19, 2007, 537 SCRA 373, the
Supreme Court ruled that, a male person who had a surgical sexual reassignment
where she became biologically a woman cannot use that ground as reason to change
his name from “Rommel” to “Mely” as a person’s sex is immutable from birth. However,
in Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, 565 SCRA 72, a
change of name from “Jennifer” to “Jeff” was allowed even without surgical sexual
reassignment in a case where the person was found out to have Congenital Adrenal
Hyperplasia (CAH) which was a rare biological situation where the person had the sex
organs of a male and a female and where the person finally considered his sex as a
male considering that he had no menstruation and no breast as a woman and was
wanting in woman-hormones. The Supreme Court said:

Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born with.

In a case where a divorced woman subsequently remarried and desired to have her
child’s surname changed to the surname of her second husband who had always
treated the child with love and affection, the Supreme Court rejected the plea for change
of name.

However, in a subsequent case, the Supreme Court allowed the change of

surname of an illegitimate child as it would appear that it was for the best interest of the
child.

EFFECT OF CHANGE OF NAME. a change of name does not alter family relations,
rights or duties, legal capacity, civil status or citizenship (Calderon v. Republic, 19 SCRA
721).

USURPATION OF NAME. In Tolentino v. Court of Appeals, 162 SCRA 66, where the
current wife filed an action to prevent the former wife of her husband to use the
surname of the said husband, the Supreme Court Ruled that there was no usurpation
and pertinently stated:

There is no usurpation of the petitioner’s name and surname in this

case so that the mere use of the surname Tolentino by the private
respondent cannot be said to have injured the petitioner’s rights. “The
usurpation of name implies some injury to the interests of the owner of the
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 name. it consists in the possibility of confusion of identity x xx between the
owner and the usurper. It exists when a person designates himself by
another name x xx. The following are the elements of usurpation of a
name: 1) there is an actual use of another’s name by the defendant; 2) the
use is unauthorized; and 3) the use of another’s name is to designate
personality or identify a person (Tolentino, supra, page 685). None of
these elements exists in the case at bar and neither is there a claim by the
petitioner that the private respondent impersonated her. In fact, it is of
public knowledge that Constancia Tolentino is the legal wife of Arturo
Tolentino so that all invitations for Senator and Mrs. Arturo Tolentino are
sent to Constancia. Consuelo never represented herself after the divorce
as Mrs. Arturo Tolentino but simply Mrs. Consuelo David-Tolentino. The
private respondent has legitimate children who have every right to use the
surname Tolentino. She could not possibly be compelled to use the prefix
“Miss” or use the name Mrs. David, different from the surnames of her
children. The records do not show that she has legally remarried.

COURT APPOINTMENT. It is necessary that the appointment of a representative of an

absentee be made by way of a court order (Ablang v. Fernandez, 25 Phil. 33), and it
must be noted that a spouse must likewise file an application for appointment with the
courts with respect to the properties of his or her very own absent spouse. If there is no
legal separation, the spouse present shall be preferred.

The phrase “or if the spouse present is a minor” in the second paragraph of
Article 383 has already been repealed by R.A. No. 6809 which lowered the age of
emancipation to 18 years of age. Thus, a person who marries must necessarily be at
least 18 years of age for the marriage to be valid.

EFFECTIVITY OF JUDICIAL DECLARATION. The law provides that the judicial

declaration of absence shall not take effect until six months after its publication in a
newspaper of general circulation. However, the absence of the absentee shall be
counted not from the effectivity of the judicial decree but from the date on which the last
news of the absentee was received (Jones v. Hortiguela, 64 Phil. 179).

PRESUMPTION OF DEATH. Article 390 creates the presumption of death. Except for
purposes of remarriage under Article 41 of the Family Code, there is no need for filing a
case to declare that one is presumptively dead.

PUBLIC DOCUMENTS. The books making up the civil register and all documents
relating thereto shall be considered public document (Article 409 of the Civil Code,
Section 13 of Act No. 3753), They shall be open to the public during office hours and
shall be kept in a suitable safe which shall be furnished to the local civil registrar at the
expense of the general fund of the municipality concerned. The local civil registrar may
issue certified copies of any document filed upon payment of the proper fees required
under the law (Section 13 of the Civil Registry Law, Act No. 3753).

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 Unlike the filing of the documents in the Registry of Deeds where the law
expressly provides that such filing is constructive notice to all of the documents filed
therein (Section 52 of P.D. No. 1529), the Civil Register Law does not provide for
constructive notice to all persons of any document filed in the Office of the Local Civil
Registrar or Office of the Civil Registrar General (See Section 13 of Civil Register Law
Act No. 3753).

Thus, birth records, including a birth certificate, are strictly confidential and the
contents therein cannot be revealed except when obtained by those interested therein,
namely: 1) the person himself, or any person authorized by him or her; 2) his or her
spouse, his or her parent or parents, his or her direct descendants or the guardian or
institution legally in charge of him or her if he or she is a minor; 3) the court or proper
public official whenever absolutely necessary in administrative, judicial or other official
proceedings to determine the identity of the child’s parents or other circumstances
surrounding his birth; and 4) in case of the person’s death, the nearest of kin (Article 7
of P.D. No. 603 as amended, otherwise known as The Child and Youth Welfare Code).

PRIMA FACIE EVIDENCE. By prima facie evidence is meant such proofs which, if
remaining unrebutted or uncontradicted, is sufficient to maintain the fact such evidence
seeks to substantiate.

While it is true that the civil register is an official record, it must also be
remembered that entries made therein are only prima facie evidence of the facts so
stated (Malicden v. Republic, 12 SCRA 313). Thus, the correction or cancellation
thereof, in proper cases and by judicial order, is allowed (Article 412, Civil Code;
Malicden v. Republic, 12 SCRA 313).

ADMINISTRATIVE OR JUDICIAL PROCEEDING. Except for clerical or typographical

errors or change in the name or nickname of a person, a change in the entries in the
civil register must always pass through a judicial proceeding. Typographical and/or
clerical errors can be corrected administratively through the office of the local civil
registrar by filing the necessary verified petition by any person having direct and
personal interest in the correction Section 3 of R. A. No. 9043). However, the resolution
of the Office of the Local Civil Registrar can be reviewed by the Office of the Civil
Registrar General and finally by the courts (Section 7 of R.A. No. 9048). The proceeding
may either be summary or adversarial. A clerical error has been defined as one made
“in copying or writing” (Yu v. Republic, 21 SCRA 1018).

Examples of these errors are clearly misspelled name and occupation of parents
(Alisos v. Lastimoso, 14 SCRA 210). Thus, the change of “Sincio” to “Sencio”, which
merely involves the substitution of the first vowel “I” in the first name into the vowel “e”
merely amounts to the righting of a clerical error (Yu v. Republic, 21 SCRA 1018).

Act No. 3753, otherwise known as the Civil Registry Law provides for the registration of
documents evidencing the acquisition or termination of a particular civil status such as

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legitimation, adoption, change of name, marriage, termination of such marriage and
others.

Art. 364. Legitimate and legitimated children shall principally use

the surname of the father.

IRT to Arts. 164, 174, 177, 178 of the FC.

Art. 370. A married woman may use:

1. her maiden first name and surname and add her husband’s
surname; or
2. her maiden first name and her husband’s surname; or
3. Her husband’s full name, but prefixing a word indicating that
she is his wife, such as “Mrs.”

Art. 371. In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is the
innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband’s
surname, unless:
1. The court decrees otherwise; or
2. She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation.

Art. 373. A widow may use the deceased husband’s surname as though
he were still living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person
shall be obliged to sue such additional name or surname as will avoid
confusion.

Art. 375. In case of identity of names and surnames between ascendants

and descendants, the word “Junior” can be used only by a son. Grandsons
and other direct male descenrdants hsall either:
1. Add a middle name or the mother’s surname; or
2. Add the Roman numerals II, III, and so on.

Art. 376. No person can change his name or surname without judicial
authority.

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 Note: changing one’s name is not a matter of right but a privilege..
There must be sufficient ground to change name.

Art. 377. Usurpation of a name and surname may be the subject of an

action for damages and other relief.

Art. 378. The unauthorized or unlawful use of another person’s surname

gives a right of action to the latter.

Art. 379. The employment of pen names or stage names is permitted,

provided it is done in good faith and there is no injury to third persons.
Pen names and stage names cannot be usurped.

Pseudonym – a conventional fictitious name freely chosen by a person to

disguise his personality.

Anti-alias Law (CA No. 142)

XVI. Absence – NCC Art. 43; Art. 41 Family Code

A. Provisional Measures in Case of Absence, Arts. 381-383

PROVISIONAL MEASURE IN CASE OF ABSENCE:

Art. 381. When a person disappears from his domicile, his

whereabouts being unknown, and without leaving an agent to administer
his property, the judge, at the instance of an interested party, a relative,
or a friend, may appoint a person to represent him in all that may be
necessary.

This same rule shall be observed when under similar circumstances

the power conferred by the absentee has expired.

No necessity to appoint a representative if absentee left no

property.

Negotorum Gestio if not court appointed.

Art. 382. The appointment referred to in the preceding article

having been made, the judge shall take the necessary measures to
safeguard the rights and interests of the absentee and shall specify the
powers, obligations and renumeration of his representative, regulating
them, according to the circumstances, by the rules concerning guardians.

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Art. 383. In the appointment of a representative , the spouse present
shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor,

any competent person may be appointed by the court.

B. Declaration of Absence, Arts. 384-389

Art. 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years, in case the
absentee has left a person in charge of the administration of his property,
his absence may be declared.

Art. 385. The following may ask for the declaration of absence:

1. The spouse present;

2. The heirs instituted in a will, who may present an authentic
copy of the same.
(Will not yet be probated because death has not yet been
established)

3. The relatives who may succeed by the law of intestacy;

4. those who may have over the property of the absentee some
right subordinated to the condition of his death.

Art. 386. The judicial declaration of absence shall not take effect
until six moths after its publication in a newspaper of general circulation.

(Unlike ordinary judgments which become final after the lapse of the
period to appeal. After 6 months the court must still declare effectivity of
declaration of absence.)

C. Administration of the Property of the Absentee, Arts. 387-389

Art. 387. An administrator of the absentee’s property shall be

appointed in accordance with Article 383.

Art. 388. The wife who is appointed as an administratrix of the

husband’s property cannot alienate or encumber the husband’s property,
or that of the conjugal partnership, without judicial authority.

Art. 389. The administration shall cease in any of the following

cases:

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 1. When the absentee appears personally or by means of an
agent;
2. When the death of the absentee is proved and his testate or
intestate heirs appear;
3. When a third person appears, showing by a proper document
that he has acquired the absentee’s property by purchase or other title.

In these cases, the administrator shall cease in the performance of

his office, and the property shall be at the disposal of those who have a
right thereto.

D. Presumption of Death, Arts. 390-392

Art. 390. After the absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of 75 years, an absence of 5 years shall be sufficient in order that
his succession may be opened.

Ordinary circumstances; no need for judicial declaration of presumptive

death unlike Art. 41 of the Family Code.

Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

1. A person on board a vessel lost during a sea voyage, or an

aeroplane which is missing, who has not been heard of for four years since
the loss of the vessel or aeroplane.

2. A person in the armed forces who has taken part in war, and
has been missing for 4 years;

3. a person who has been in danger of death under other

circumstances and his existence has not been known for 4 years.

Art. 392. If the absentee appears, or without appearing his existence is

proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or the
property acquired therwith; but he cannot claim either fruits or rents.

EXCLUDE: Arts. 393-396, contingent assets

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XVII. Civil Registrar

A. Arts. 407-413

Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.

Art. 408. The following shall be entered in the civil register:

1. Births; 2. Marriages, deaths; 4 legal separations; 5.

Annulments of marriages; 6. Judgments declaring marriages void from the
beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgment of natural
children; 10. Naturalization; 11. Loss; or; 12. Recovery of citizenship; 13.
Civil interdiction; 14. Judicial determination of filiation; 15. Voluntary
emancipation of minor; and 16. Changes of name.

Art. 409. In cases of legal separation, adoption, naturalization and other

judicial orders mention in the preceding article, it shall be the duty of the
clerk of court which issued the decree to ascertain whether the same has
been registered, and if this has not been done, to send a copy of said
decree to the civil registry of the city or municipality where the court is
functioning.

Art. 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be prima
facie evidence of the facts therein contained.

Art. 411. Every civil registar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person suffering
damage thereby. However, the civil registrar may exempt himself from
such liability if he process that he has taken every reasonable precaution
to prevent the unlawful alteration.

Art. 412. No entry in a civil register shall be changed or corrected,

without judicial order.

Art. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.

B. RA 9048-clerical errors

C. Rule 108, Rules of Court

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 EXCLUDE: Act. No. 375, IRR of RA 9048 takes effect, NCC Art. 2

OTHER CONCEPTS UNDER THE NCC AND RELATED LAWS

1. FUNERALS. The persons who have the duty and right to make arrangement in funerals
shall be determined in accordance with the order established for support. It must be in
keeping with the social position of the deceased.
(1) The funeral shall be in accordance with the expressed wishes of the deceased.
(2) In the absence of the expressed wishes, his religious beliefs or affiliation shall be
observed.
(3) In case of doubt, the persons given the right and duty to make arrangement shall
decide.

DAMAGES. Any person who allows disrespect for the dead or wrongfully interferes with the
funeral shall be liable to the family of the deceased for damages.

2. NAME AND SURNAME. “For all practical and legal purposes, a man’s name is the
designation by which he is known and called in the community in which he lives and is best
known. It is defined as the word or combination of words by which a person is distinguished
from other individuals and, also, as the label or appellation which he bears for the
convenience of the world at large addressing him, or in speaking of or dealing with him. It is
both of personal as well as public interest that every person must have a name.”

a. Parts of the Name of an Individual: “(1) the given or proper name and (2) the surname or
family name. the given or proper name is that which is given to the individual at birth or
at baptism, to distinguish him from other individuals. The surname or family name is that
which identifies the family to which he belongs and is continued from parent to child.
The given name may be freely selected by the parents for the child, but the surname to
which the child is entitled is fixed by law.”

(1) There is no law regulating the use of a middle name. Article 176 [11] of the Family
Code, as amended by Republic Act No. 9255, is silent as to what middle name a child
may use. The middle name or the mother’s surname is only considered in Article
375(1), quoted above, in case there is identity of names and surnames between
ascendants and descendants, in which case, the middle name or the mother’s surname
shall be added.

b. Once the name and surname is fixed, the same cannot be changed without judicial
authority. Generally, no person can use different names and surnames other than those
specified in the Certificate of Live Birth.

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 c. Usurpation, unauthorized, and unlawful use of a name and surname may make one liable
for damages.

d. Employment of stage name or pen name is permitted under the law and the same cannot
be usurped.

ADMINISTRATIVE CORRECTION: In case of clerical errors which can be corrected

administratively by the Civil Registrar with approval of the NSO under RA No. 9048 as amended
by RA No. 10172.

SURNAME. The rules on use of surnames are as follows:

WHO WILL USE THE SURNAME WHOSE SURNAME CAN BE

USED

Legitimate Child Father

Legitimated Child Father
Illegitimate Child 1. Mother, or
2. Father – in the ff. cases:

The filiation has been

expressly recognized
by the father through the
record of birth appearing in
the civil register, or

When an admission in a
public document or
private handwritten instrument
is made by the father (R.A. No.
9255)

Children conceived before annulment of

Voidable marriages father

Married women: Option on the part of the woman to:

1. use her maiden surname only; or

2. Use her maiden surname and add her husband’s surname; or
3. Use her husband’s surname only; or
4. use her husband’s full name but prefixing it with “MRS.”

GROUNDS FOR CHANGE OF FIRST NAME OR NICKNAME (R.A. NO. 9048)

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1. the petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce.

2. the new first name or nickname has been habitually and

continuously used by the petitioner and has been publicly known by that
first name or nickname in the community

3. the change will avoid confusion.

ABSENCE:

CIVIL REGISTER: all acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register. (Art. 391)

ALTERATION. No entry in the civil register shall be changed or

corrected, without judicial order.

EXCEPTIONS. Under Sec. 1 of RA No. 10172 amending Secs. 1, 2, 5

and 8 of RA No. 9048) the following can be corrected or changed by the
concerned city or municipal civil registrar or consul general –

Clerical or typographical errors including such errors in the

first name or nickname, change of the day and month in the date of birth
or change in the sex of a person where it is patently clear that there was a
clerical or typographical error or mistake in the entry.

What are clerical errors – These refer to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register on the entry of day and month in the date of
birth or the sex of the person, which is visible to the eyes or obvious to
the understanding, and can be corrected or changed only by reference to
other existing record or records: provided, however, that no correction
must involve the change of nationality, age (refers to the correction on
the eyar of birth), or legitimacy status of the petition/document owners.
(Rule 2.1., office of the Civil Registrar General Administrative Order No. 1,
Series of 2012)

WHO MAY FILE THE PETITION –

A. For correction of entry on the day and/or month in the date of

birth – any person of legal age, having direct and personal interest in the
correction of a clerical or typographical error in the day and/or month in
the date of birth of a person in the civil register for birth, may file the
petition.

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 1. A person is considered to have direct and personal
interest when he is the owner of the record, or the owner’s spouse,
children, parents, brothers, sisters, grandparents, guardian, or any other
person duly authorized by law or by the owner of the document sought to
be corrected.

2. When a person is a minor or physically or mentally

incapacitated, the petition may be filed on his/her behalf by his/her
spouse, or any of his/her children, parents, brothers, sisters,
grandparents, guardians or persons duly authorized by law.

B. For correction of clerical or typographical error in sex : the

petitioner affected by such error shall personally file the petition with the
civil registery where the birth certificate is registered.

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