CIVIL LAW REVIEW I:

The Family Code of the Philippines

EXECUTIVE ORDER NO. 209

By:
Judge CHARLOTTE FRAULEIN F. GARCIA-LAMBINO
 Definition and Nature:
Marriage
(asked in ’91, ’92 and ’99 bar exams)
Article 1. Marriage

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.
Breach of Promise to Marry —
(asked in ’09 bar exam)

1. As a general rule breach of promise to marry

is not an actionable wrong (Tanjanco v CA,
Wassmer v Velez) and cannot give rise to
liability for damages in line with the principle of
freedom of consent in marriage (Art 2(2)
Family Code). (Reyes)

2. However damages may be claimed based on

the principles laid down in Art 19-21 & 2176 of
the CC
 Requisites of Marriage
(asked in ’76, ’82, ’89, ’90, ’99, ’02, ’04, ’07,
Art.
and 2.
‘09No
barmarriage
exams) shall be valid, unless these
essential requisites are present:

 (1) Legal capacity of  (2) Consent freely

the contracting parties given in the presence
who must be a male of the solemnizing
and a female; and officer.
Legal Capacity—

Male or female >= 18, not under any impediments mentioned in

Art 37 (incestuous marriage) & Art 38 (marriage against public
policy), may contract marriage. (Art 5)

Must be Male and Female—

1. Jones v Hallahan, (1973): Application for marriage license was

denied since marriage is defined by law as a contract entered into
between a man and a woman.

2. Silverio v Republic, (2007): Changing of gender in one’s birth

certificate was denied; otherwise, it would result in confusion and
would allow marriage between persons of the same sex which is
in defiance of the law, as marriage is a union between a man and
a woman.
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.
Authority of Solemnizing Officer—

1. Who may solemnize marriage: (JC-SPAMM)

a. Incumbent member of the Judiciary within his jurisdiction. (Art 7

FC)

b. Priest, Rabbi, Imam or Minister of any Church or Religious Sect.

Must be:
􏰁 - Duly authorized by his church or religious sect
􏰁 - Registered with the civil registrar general
􏰁 - Acting within the limits of the written authority granted to him by his
church or religious sect.
􏰁 - At least one of the contracting parties belongs to the solemnizing
officer’s church or religious sect. (Art 7 FC)
c. Ship Captain or Airplane Chief may solemnize a
marriage in articulo mortis between passengers or crew
members (Art 7,31 FC)

d. A Military commander of a unit may solemnize

marriages in articulo mortis between persons within the
zone of military operation. (Art 7,32 FC)

e. Consul-general, consul or vice-consul may solemnize

marriages between Filipino citizens abroad. (Art 7,10 FC)

f. Municipal and City Mayors (LGC sec 444 and 455)

NOTE: Marriage is void when solemnized by any person

not legally authorized to perform marriages unless either or
both parties believed in good faith that the solemnizing
officer had legal authority to do so. (Art 35 (2))
Effects of absence and defect in any of
the essential requisites:

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

not affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly,
criminally and administratively liable.
Absence & Irregularity of Authority of a solemnizing
officer

Absence Irregularity

No effect on validity but party

Effect VOID
responsible will be liable.

- lack of valid notification of

- Marriage is void when
both parties desiring a
solemnized by a priest not
ceremony in a remote place
Illustration duly authorized by his Church
was held to be only a mere
to solemnize marriage. (Art 7
IRREGULARITY
FC)
(Navarro vs. Domagtoy 1996)
Marriage License—

1. Marriages Exempt from marriage license requirement

(AREC)

a. Marriage in Articulo mortis (Art. 27, FC)

b. Marriage in Remote and inaccessible places (Art. 28, FC)

c. Marriages by Muslims and Ethnic cultural minorities provided

they are solemnized in accordance with their customs, rites or
practices. (Art. 33, FC)

d. Marriage by parties who have Cohabited for at least 5 years

without any legal impediment. (Art. 34, FC, Ninal v Badayog
(2000))
 Absence & Irregularity of Marriage License
Absence Irregularity

No effect on validity but

Effect VOID party responsible will be
liable.

- Issuance of the Civil Registrar

of a CERTIFICATE DUE
SEARCH AND INABILITY TO
FIND the application of a
- mere IRREGULARITIES in
marriage license means its
the marriage license, such
absence, thus rendering the
as a typographical error, do
marriage VOID. (Republic v CA)
Illustration not affect the validity of a
marriage. (Alcantara v
- Before a marriage can be
Alcantara)
solemnized, a valid marriage
license MUST FIRST BE
PRESENTED, otherwise the
marriage is VOID. (Moreno v
Bernabe)
Marriage Ceremony—

1. No prescribed form or religious rite for the

solemnization of marriage is required. (Art. 6,
FC)
􏰁
The couple's written agreement where they
declare themselves as husband and wife, signed
by them before a judge and two capable
witnesses, even though it was independently
made by them, still counts as a valid ceremony.
(Martinez v Tan, 12 Phil 731)
2. Minimum requirements prescribed by law: (AP-PMS)

a. Appearance before the solemnizing officer (Art 3 FC)

b. Personal declaration that they take each other as husband and wife.
(Art 3 FC)

c. Presence of at least two witnesses of legal age. (Art 3 FC)

d. The declaration shall be contained in the Marriage certificate. (Art 6

FC)

e. Marriage certificate shall be Signed by the contracting parties and

their witnesses and attested by the solemnizing officer. (Art. 6, FC)

Note: In a marriage in articulo mortis, when one or both parties are

unable to sign the marriage certificate, it shall be sufficient for one of
the witnesses to write the name of said party, which shall be attested by
the solemnizing officer. (Art 6, par. 2)
 Marriages Solemnized Abroad

General Rule—
Marriages solemnized abroad in accordance with the laws in
force in that country shall be valid in the Philippines. (Art 26
FC)

Exceptions—
1. Marriage between persons below 18 years old – Art. 35(1)
2. Bigamous or polygamous marriage – Art. 35(4)
3. Mistake in identity – Art. 35 (5)
4. Marriages void under Article 53 – Art. 35 (6)
5. Psychological incapacity – Art. 36
6. Incestuous marriages – Art. 37
7. Marriage void for reasons of public policy –Art. 38
2. In marriages of exceptional character, the existence of the
marriage is presumed, even in the TOTAL ABSENCE of a marriage
license.Presumptions
(Vda. Dein Favor
Jacobof Marriage
v CA, 1999)

3. if a marriage certificate is missing, and all means HAVE NOT

YET BEEN EXHAUSTED to find it, then the marriage is presumed
to exist (Sevilla v Cardenas, 2006)

4. Absence of a marriage certificate is not proof of absence of

marriage. To prove the fact of marriage, the following would
constitute competent evidence: (1) the testimony of witnesses to
matrimony; (2) the couple’s public cohabitation; and (3) birth and
baptismal certificates of children born during the union. (Trinidad
v CA, 1998)
 VOID AB INITIO MARRIAGES:
Art. 4(1): The absence of any essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (a).

Article 35 (Void from the Beginning)

1. Contracted by any party below eighteen years of age even with the
consent of parents or guardians

2. Solemnized by any person not legally authorized to perform

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

Note: One’s belief in good faith that the solemnizing officer has the
required authority is a mistake of fact, and not of law.
3. Solemnized without license, except in marriages under
exceptional circumstances

4. Bigamous or polygamous marriages not falling under

Article 41 (Art. 41: subsequent marriage by present spouse
who obtained a declaration of presumptive death for absent
spouse prior to the subsequent marriage)

5. There is a mistake as to the identity of the other

contracting party

6. Subsequent marriages that are void under Article 53

(Art 53: a subsequent marriage is null and void if prior to its
celebration, it has not recorded in the civil registry and
registries of property the items in Art. 52)
 Article 36
(Psychological Incapacity)
􏰀
Contracted by any party who, at the time of
the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, even if such
incapacity becomes manifest only after its
solemnization
􏰀
 Republic v. Molina, (1997)

1. The burden of proof to show the nullity of the marriage

belongs to the plaintiff.

1. The root cause of the psychological incapacity must be: (a)

medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by the experts, (d) clearly
explained in the decision.

Note: The new Supreme Court Rule on Declaration of absolute nullity of

Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-
SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that
expert opinion is not a condition sine qua non for proof of psychological
incapacity. The root cause may be proven by the totality of evidence in
actual trial.

The incapacity must be proven to be existing at “the time of the

celebration” of the marriage. Such incapacity must also be shown to be
medically or clinically permanent or incurable. Such illness must be
grave enough to bring about the disability of the party to assume the
essential obligations of marriage.
􏰀 Santos v. Bedia-Santos, (1995):
Laid down 3 characteristics for determining psychological incapacity:
gravity, antecedent, and incurability.
􏰀
Tsoi v. CA, (1997)
Refusal of husband to have sex was interpreted to be PI. “A man who
can but won’t is PI”

Marcos vs. Marcos (2000)

Psychological incapacity maybe established by the totality of the
evidence presented. Personal medical examination could be dispensed
with.
􏰀
Republic vs. San Jose (2007)
There is no requirement that the respondent be medically examined
first.
􏰀
Antonio v. Reyes, (2006):
“pathological liar,” Molina guidelines met.
Article 37 (Incestuous)

1. Between ascendants and descendants of any degree, legitimate or illegitimate

2. Between brothers and sisters, whether of the full or half blood, legitimate or
illegitimate

Article 38 (Against Public Policy)

1. Between collateral blood relatives, legitimate or illegitimate, up to the fourth

civil degree.
2. Between step-parents and step-children.
Note: Stepbrothers and stepsisters can marry because marriages between
them are not among those enumerated in article 38.
3. Between parents-in-law and children-in- law.
4. Between adopting parent and 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 adopted children of the same adopter.
9. Between parties where one, with the intention to marry the other, killed that
other person's spouse, or his or her own spouse.
Relationships outside of Art. 37 and 38 which are
not impediments to the marriage:

1. brother-in-law with sister-in-law,

2. stepbrother with stepsister,

3. guardian with ward,

4. adopted with illegitimate child of the adopter,

5. adopted son of the husband with adopted daughter

of the wife,

6. parties who have been convicted of adultery.

 Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive
Death)

General Rule—
Marriage contracted by any person during the subsistence of a previous marriage is
void.

Exceptions: The following subsequent marriage of the present spouse is valid:

1. Subsequent marriage due to ordinary absence where:

a. the prior spouse had been absent for 4 consecutive years;
b. the spouse present had a well-founded belief that absent spouse is dead; and
c. judicial declaration of presumptive death was secured (no prejudice to the effect
of the reappearance of the absent spouse).

2. Subsequent marriage due to extraordinary absence where:

a. the prior spouse had been missing for 2 consecutive years;
b. there is danger of death attendant to the disappearance;
c. the spouse present had a well-founded belief that the missing person is dead; and
d. judicial declaration of presumptive death was secured (no prejudice to the effect
of the reappearance of the absent spouse).
Note:
􏰀
Institution of a summary proceeding is not sufficient. There must
also be a summary judgment.
􏰀
Only the deserted spouse can file or institute an action for
summary proceeding for the declaration of presumptive death of
the absentee (Bienvenido case)
􏰀
There must have been diligent efforts on the part of the deserted
spouse to locate the absent spouse. These diligent efforts
correspond to the requirement of the law for a well-founded belief.

Exception to the exception—

When both parties to the subsequent marriage acted in bad faith
(Art. 44)
 Under the Civil Code (superseded by the
Family Code), there was no need for a judicial
declaration of nullity of a previous marriage for
a subsequent marriage to be valid (People v.
Mendoza).

However, Article 40 of the FC now requires a

final judgment to declare a previous
marriage void for a subsequent marriage to
be valid. (Terre v. Terre, Atienza v. Brillantes)
􏰁 Terre v. Terre, (1998)
A lawyer was disbarred for grossly immoral conduct by convincing the other party that
a judicial declaration of nullity was not required and subsequently contracting another
marriage while his first marriage was subsisting.
􏰁
Atienza v. Brillantes, (243 SCRA 32)
A judge’s first marriage contracted in 1965 was void for not having a marriage license,
but the requirement for a judicial declaration of nullity in Art. 40 applies for his
subsequent marriage contracted in 1991.
􏰁
Apiag v. Cantero, (1997)
Where both marriages were contracted prior to the effectivity of the FC, the requirement
of Art. 40 does not apply to the second marriage where a right is already vested and
which the FC cannot have retroactive effect. 􏰁 Judicial declaration of nullity of a
marriage is now an absolute requirement: a. For the validity of any subsequent
marriage b. For the subsequent marriage not to be considered as bigamous 􏰁 Domingo
v. CA, (1993)

The judicial declaration of nullity can be invoked for purposes other than remarriage.
Article 40 was interpreted as being a requirement for purposes of remarriage but not
limited for that purpose. Separation of property is also a valid purpose for filing for a
judicial declaration of nullity.
􏰁
Borja-Manzano v. Sanchez, (2001)
Legal separation does not severe marital bonds. Cohabitation under Art. 34 merely
exempts the spouses from obtaining a marriage license, and is not met when there
exists legal impediment to marry during the period of cohabitation.
 Period to File Action or Raise Defense
- Art. 39.

The action or defense for the declaration of

absolute nullity of a marriage shall not
prescribe. (as amended by R.A. 8533)
􏰁
The phrase "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" has been
deleted by Republic Act No. 8533 [Approved
February 23, 1998]).
􏰁 It must be noted that under the new Supreme Court Rule
on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC,
effective March 15, 2003), nullity of the marriage can still
be collaterally attacked.
􏰁
As to the parties allowed to file the action – Enrico v. Heirs of
Sps. Medinaceli (2007): Only an aggrieved or injured spouse
may file a petition for annulment of voidable marriages
or declaration of absolute nullity of void marriages. Such
petition cannot be filed by compulsory or intestate heirs of
the spouses or by the State. The Committee is of the belief
that they do not have a legal right to file the petition.
Compulsory or intestate heirs have only inchoate rights prior
to the death of their predecessor, and, hence, can only
question the validity of the marriage of the spouses upon the
death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts. (also
reiterated in Carlos vs. Sandoval, 2008)
 Effects of Termination of Bigamous Marriage
(Art. 43 and 44)—
1. Children – conceived prior to its termination considered legitimate

2. Property Regime – dissolved and liquidated (party in bad faith shall

forfeit his/her share in favor of the common children or if there are none,
children of the guilty spouse by a previous marriage, and in case there are
none, to the innocent spouse)

3. Donation propter nuptias – remains valid, (but if the donee contracted marriage
in bad faith, donations will be revoked)

4. Insurance benefits – innocent spouse may revoke designation of guilty party as

beneficiary, even if such designation is stipulated as irrevocable

5. Succession Rights – Party in bad faith disqualified to inherit from innocent

spouse, whether testate or intestate

6. Donations - If both parties of subsequent marriage acted in bad faith, any

donations and testamentary dispositions made by one party to the other by reason of
marriage will be revoked (Art. 44)
Effects of Other Void Marriages—

1. 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 ab
initio or annulled by final judgment under Articles 40 and 45 [Art. 50(1)]

2. Final judgment in such cases shall provide for the liquidation, partition, and
distribution of the:
a. properties of the spouses
b. custody and support of the common children
c. delivery of their presumptive legitimes unless such matters had been adjudicated in previous judicial
proceedings [Art. 50(2)] all creditors (of the spouses/property regime) shall be notified of the
proceedings for liquidation [Art. 50(2 and 3)]

3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse
with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)]

4. Presumptive legitimes, computed as of the date of the final judgment, shall be

delivered in cash, property or sound securities
a. unless the parties, by mutual agreement judicially approved, had already provided for such [Art. 51(1)]
b. the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)]
c. the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights, but the
value of the properties already received shall be considered as advances on their legitime [Art. 51(3)]
5. Either of the former spouses may marry again
AFTER compliance with the requirements of
Article 52, otherwise, the subsequent marriage is
void (Art. 53)

Requirement (Art. 52)— recording in the appropriate

civil registry AND registries of property:
a. judgment of annulment/absolute nullity of marriage
b. partition and distribution of the properties of the spouses
c. delivery of the children’s presumptive legitimes otherwise, these shall not
affect third persons
6. Generally, children born or conceived within
void marriages are illegitimate.
􏰁
Exception:
􏰁
Children conceived or born before the judgment under Article 36
has become final and executory

Children conceived or born of subsequent marriages under

Article 53
􏰁
Niñal v. Badayog, (2000)
Children of first marriage assailed the validity of the second
marriage contracted by their father without a marriage license
and after the latter’s death.

Void marriages can be attacked collaterally and do not prescribe

􏰁
De Castro v. Assidao-de Castro, (2008) Validity of marriage was
attacked collaterally in an action for support for determining
legitimacy of the child.
 Voidable Marriages
(asked in ’75, ’76, ’78, ’83, ’86, ’90, ’91,
’93, ’94, ’95, ’96, ’97, ’02, ’03, ’04, ’07,
and ‘09 bar exams)
Grounds for Annulment (Art. 45, FC)

- Marriage may be annulled on the following grounds existing at

time of marriage: (P I F F I S)

P 1. One of the parties is 18 or above but below 21, and there is no parental
consent.

I 2. Either party was of unsound mind (insanity).

F 3. The consent of either party was obtained through fraud (different from
mistake in identity):
a. through non-disclosure of a previous conviction of a crime involving moral turpitude;
b. through concealment by the wife of the fact at the time of the marriage that by
another man;
c. through concealment of a sexually-transmitted disease, regardless of its nature,
existing at the time of marriage;
d. through concealment of drug addiction, habitual alcoholism or
homosexuality/lesbianism. (Art.46, FC)
F 4. The consent of either party was obtained
through force, intimidation, or undue influence.

I 5. Either party is physically incapable of

consummating the marriage (impotence; this is
different from sterility).

S 6. Either party has a serious and incurable

sexually-transmissible disease, even if not
concealed.*

TOLENTINO
Action to Annul: action in rem, concerns status of
parties; res is relation bet parties or marriage tie;
jurisdiction depends on nationality or domicile
not the place of celebration
Corpuz v. Ochoterena, (2004)

In a legal separation or annulment case,

the prosecuting attorney must first rule out
collusion as a condition sine qua non for
further proceedings.

A certification by the prosecutor that he

was present during the hearing and even
cross-examined the plaintiff does not
suffice to comply with the mandatory
requirement.
 STD: Art. 45 vs. Art. 46

Art. 45 STD Art. 46 STD

Ground for annulment
Does not have to be concealed
Must be serious and incurable
The STD itself is the ground for
annulment
The STD is a type of fraud which
is a ground for annulment
Must be concealed
Need not be serious nor
incurable
It is the concealment that gives
rise to the annulment

Effect of Cure to Fraud in Art. 46: Recovery or rehabilitation from STD,

drug addiction, and habitual alcoholism will NOT BAR ACTION for annulment;
Defect is not the disease, but the FRAUD which VITIATED CONSENT
 B. Who may File, Prescription, Ratification

Ground Who can file Prescription Ratification

(Art. 45) (Art. 47) (Art. 47) (Art. 45)
1. 5 years after
Lack of 1. Underage party Free cohabitation
attaining 21.
parental after attaining age of
consent 2. Before child 21.
2. Parent or guardian
reaches 21.
1. Sane spouse with no
knowledge of the other’s 1. Any time before
insanity the death of either
2. Legal guardian of party Free cohabitation of
insane party insane party after
Insanity
insane party comes
2. During lucid to reason
interval or after
3. Insane party
regaining sanity,
and before death
Free cohabitation
Injured party (defrauded Five years after
Fraud after having full
party) discovery of fraud
knowledge of fraud
Force, Five years after Free cohabitation
intimidation, disappearance of after the force has
Injured party
undue force or ceased or
influence intimidation disappeared
 Marriages Not Subject to
Ratification/Convalidation

1. One spouse is incurably impotent

(Art. 47 – prescription: 5 years)

2. One spouse has an incurable STD

(Art. 47 – prescription: 5 years)

3. Sane spouse marries an insane spouse w/o

knowledge of insanity

4. Prior subsisting marriage

 Marriage When One Spouse Absent
Requirements for Subsequent Marriage to be Valid When
Prior Spouse is Absent (Art. 41, FC):

1. The prior spouse had been absent for 4 consecutive years, or

2 years in cases under Art. 391 CC.

2. The spouse present has a well-founded belief that the absent

spouse was already dead.

3. The spouse present must institute a summary proceeding for

the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
 Effect of Reappearance of Absent
Spouse:

General Rule—
The subsequent marriage remains valid.

Exception—
It is automatically terminated by the recording of
the affidavit of reappearance of the absent
spouse.

Exception to the Exception—

If there is a judgment annulling the previous
marriage or declaring it void ab initio. (Art. 42,
FC)
 Voidable Marriage
Nature VALID until annulled by court
CAN be convalidated by
Convalidation
prescription or free cohabitation
ACP exists unless another system
Effect on property is instituted through marriage
settlement
Children are LEGITIMATE if
Legitimacy of
conceived before decree of
children annulment
Can only be attacked DIRECTLY
How to impugn
(there must be Annulment Decree)
Effect of death of Can no longer be impugned after
parties death of parties
Void Marriage
INEXISTENT from the beginning
CANNOT be convalidated
No Community Property, only Co-
ownership
General rule: Children are
ILLEGITIMATE (Art. 165, FC)
Exception: In void marriages by
reason of psychological incapacity
(Art. 36) or non-partition of properties
in a previous marriage (Art. 53),
children are considered LEGITIMATE
May be attacked DIRECTLY or
COLLATERALLY, except for purpose of
remarriage (there must be Judicial
Declaration of Nullity)
May still be impugned after death of
parties
 Voidable v. Legal Separation

Voidable Marriage Legal Separation

ground for annulment at the causes after the celebration

time of marriage of marriage

does not terminate marital

terminates marital bond
bond

once final, cannot be set

marital relations can
aside to restore marital
resume upon reconciliation
relation
 Jurisdiction

Tamano v. Ortiz, (1998) —

PD No. 1083 (Code of Muslim Personal Laws of the

Philippines) does not provide for a situation where the
parties were married both in civil and Muslim rites.

Consequently, the shari'a courts are not vested with

original and exclusive jurisdiction when it comes to
marriages celebrated under both civil and Muslim laws.

Hence, the Regional Trial Courts have jurisdiction over

such cases.
Legal Separation, Divorce and De Facto Separation

Grounds for Legal Separation

(asked in ’75, ’76, ’79, ’80, ’82, ’89,
’94, ’96, ’97, ’02, ’03, ’06, and ’07
bar exams)
Grounds: (Art. 55, FC) [V A P I D H B I L A]
Note: The grounds for legal separation are exclusive.
V 1. Repeated physical violence or grossly abusive conduct directed
against petitioner, a common child, or a child of the petitioner.

A 2. Physical violence or moral pressure to compel petitioner to change

religious or political affiliation.

P 3. Attempt of respondent to corrupt or induce petitioner, a common

child, or child of petitioner, to engage in prostitution or connivance in
such corruption or inducement.

I 4. Final judgment sentencing respondent to imprisonment of more

than 6 years, even if pardoned (executive pardon, not pardon from
offended party).

D 5. Drug addiction or habitual alcoholism of respondent.

a. When it existed from the time of celebration, and concealed from petitioner, can be a
ground for annulment of marriage.
b. When it occurred only after the marriage, it is only a ground for legal separation, whether
concealed or not.
c. Drug addiction or habitual alcoholism may be supervening.
H 6. Lesbianism or homosexuality of respondent.
􏰁 Same as rules on drug addiction

B 7. Contracting by respondent of a subsequent

bigamous marriage, whether in the Philippines of
abroad.

I 8. Sexual infidelity or perversion. a. No conviction

is required.

L 9. Attempt on the life of petitioner by respondent.

a. There is no need for criminal conviction. Only a
preponderance of evidence is required.

A 10. Abandonment of petitioner by respondent

without justifiable cause for more than one year.
People v. Zapata and Bondoc, 88 Phil 688 (1951)—
Adultery is not a continuing crime, but is consummated and exhausted
at the moment of carnal union. As such, every sexual act is a ground

Gandioco v Peñaranda, 155 SCRA 725 (1989)—

In sexual infidelity as a ground for legal separation, there is no need for
prior conviction for concubinage, because legal separation only
requires a preponderance of evidence, as opposed to proof beyond
reasonable doubt required in concubinage.
􏰁
Lapuz Sy v. Eufemio, 43 SCRA 177 (1972)—
The death of one party in a legal separation case abates the action.
This is because the death of either spouse automatically dissolves the
marriage. An action for legal separation is also purely personal between
the spouses.
􏰁
Dela Cruz. v. Dela Cruz 22 SCRA 333—
Abandonment is not mere physical estrangement but also financial and
moral desertion. There must be an absolute cessation of marital
relations, duties, and rights with the intention of perpetual separation.
Defenses
Grounds for denying legal separation (Art. 56, FC) [4CMPRD]—

1. Condonation by aggrieved party

2. Consent by aggrieved party to the commission of the offense

3. Connivance between parties in thecommission of the offense

4. Mutual guilt or Recrimination between spouses in the commission of any

ground for legal separation

5. Collusion between parties to obtain decreeof legal separation

6. Prescription of action for legal separation(Art. 57: 5 years from cause of

action)

7. Reconciliation of parties during pendency of action (Art. 66 par.1)

8. Death of either party during pendency ofaction (Lapuz-Sy v Eufemio,

supra)
􏰁
Bugayong v. Ginez, 100 Phil. 616 (1956) — Continued cohabitation despite full
knowledge of the spouse’s infidelity constitutes implied condonation.
When to File/Try Actions A. Prescription
GENERAL RULE: Action prescribes after five years from the
occurrence of the cause (Art. 57, FC)

Reconciliation Period
Action cannot be tried before six months have elapsed from the filing
of the petition (Art. 58. FC)
Note: without prejudice to judicial determination of custody of
children, alimony, and support pendente lite

Attempts on Reconciliation
Action cannot be tried unless the court has attempted to reconcile
the spouses, and determined that despite such efforts, reconciliation
is highly improbable (Art. 59, FC)

Confession
No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment (Art. 60, par. 1. FC)
Collusion
The court shall assign the prosecuting attorney or fiscal to
make sure that there is no collusion between the parties, and
that evidence is not fabricated or suppressed (Art. 60, par. 2,
FC)

Effects of Filing Petition for Legal Separation (LAC)

1. The spouses are entitled to Live separately, but the marital

bond shall not be severed. (Art. 61, par. 1. FC).

2. Administration of Community or Conjugal Property – If

there is no written agreement between the parties, the court
shall designate one of them or a third person to administer
the ACP or CPG. (Art. 61, par. 2, FC)

3. Custody of children – The court shall give custody of

children to one of them, if there is no written agreement
between the spouses. It shall also provide for visitation rights
of the other spouse. (Art. 62, cf. Art. 49. FC)
Effects of Decree for Legal Separation (LACIDIMS)

1. The spouses can Live separately (Art. 63. FC)

2. The ACP or CPG shall be dissolved and liquidated, and the share of the guilty
spouse shall be forfeited in favor the common children, previous children, or innocent
spouse, in that order (Art. 63. cf. Art. 43, par. 2).

3. Custody of the minor children shall be awarded to the innocent spouse (Art. 63. FC,
cf. Art 213)

4. Guilty spouse shall be disqualified from Inheriting from innocent spouse by intestate
succession. The provisions in favor of the guilty party in the will of the innocent
spouse shall also be revoked by operation of law. (Art. 63, FC)

5. Donations in favor of the guilty spouse may be revoked (Art. 64. FC)

6. Innocent spouse may also revoke designation of guilty spouse as beneficiary in an

Insurance policy, even if such stipulations are irrevocable (Art. 64. FC, cf. PD 612, sec.
11).

7. Obligation for Mutual support ceases, but the court may order the guilty spouse to
support the innocent spouse. (Art. 198, FC)

8. The wife shall continue to use the Surname of the husband even after the decree
for legal separation. (Art. 372, CC)
 Reconciliation
A. How Done
Should the spouses reconcile, they should file a corresponding joint
manifestation under oath of such reconciliation. (Art. 65, FC)

B. Effects of Reconciliation

1. Proceedings for legal separation shall be terminated at whatever stage.

(Art. 66, FC)

2. If there is a final decree of legal separation, it shall be set aside. (Art.

66, FC)

3. The separation of property and forfeiture of share of guilty spouse shall

subsist, unless the spouses agree to revive their former property regime or
to institute another property regime. ( Art. 66 cf. Art. 67, FC)

4. Joint custody of children is restored.

5. The right to intestate succession by guilty spouse from innocent spouse

is restored. The right to testamentary succession depends on the will of
the innocent spouse.
 Divorce
(asked in ’87, ’90, ’96, ’97, ’99, ’02, ’06 bar exams)
General Rule — Divorce is not allowed in the Philippines and even for Filipinos abroad.
Exception — Foreign and Muslim divorces.

Foreign Divorces (asked in ’09 bar exam) —

Art. 15, Civil Code. Laws relating to

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

The Nationality Theory of Jurisdiction / Nationality Principle applies to

personal rights.
􏰀 Effect: Filipinos living abroad could not obtain a valid divorce even in
countries where divorce is legally permissible.
Art. 26(2), Civil Code. 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 Philippines law.

Valid Foreign Divorce

a. valid marriage between a Filipino citizen and a foreigner

b. divorce is validly obtained by the alien spouse

c. alien spouse becomes capacitated to remarry

Result: the Filipino spouse shall likewise have the capacity to

remarry under Philippine law

Van Dorn v. Romillo, 139 SCRA 139 (1985): Before the effectivity of
the FC, the SC applied Article 15 of the CC, from the foreigner’s
perspective, to decree the validity of a divorce with respect to the
Filipino spouse to prevent the unjust result to the Filipino spouse as
the alien spouse is already capacitated to remarry.
Quita v. Dandan, 300 SCRA 406 (1998)
The time of obtaining foreign citizenship is necessary to
determine the validity of divorce obtained by the spouse who
applied for foreign citizenship. It must be ascertained that when
that spouse obtained the divorce, he/she was no longer bound by
Philippine domestic law

Llorente v. CA, 345 SCRA 592 (2000)

A 2nd marriage obtained by a Filipino who is already a US citizen
at the time of the divorce and the remarriage makes the 2nd
marriage completely valid.

Garcia v. Recio, 366 SCRA 437 (2001)

Philippine courts do not take cognizance of foreign laws. The
foreign law granting divorce as well as the nature of the divorce
granted (w/n it was absolute) must be proven.

Republic vs. Orbecido, (2005)

The period of reckoning to determine citizenship for the purpose
of the application of Art.26 par.2 is the time of securing a divorce.
Muslim Divorces — Presidential Decree 1083 (Code of Muslim
Personal Laws)
􏰁
7 forms of Muslim divorces (Art. 45) (TF- KILTZ)
a. talaq- repudiation of the wife by the husband
b. ila- vow of continence by the husband
c. zihar- injurious assimilation of the wife by the husband
d. li’an- acts of imprecation
e. khul’- redemption by the wife
f. tafwid- exercise by the wife of the delegated right to repudiate
g. faskh- judicial decree
􏰁
Grounds for faskh (Art. 52)
a. The marriage bond shall be severed and the spouses may contract another marriage
b. The spouses shall lose their mutual rights of inheritance
c. The custody of children shall be determined in accordance with Article 78 of the code
d. The wife shall be entitled to recover fromthe husband her whole dower in case the talaq has
been affected after the consummation of the marriage, or one- half thereof if effected before its
consummation
e. The husband shall not be discharged from his obligation to give support in accordance with
Article 67
f. The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and
liquidated.
􏰁
Yasin v. Sharia District Ct, 241 SCRA 606 (1995)
A Muslim divorce dissolves the marital bond and therefore a woman may use
her maiden name and surname without any special proceeding in court.
 De Facto Separation

Rules applicable to De Facto Separation—

􏰀

Art. 100, Family Code. De Facto Separation shall not affect the regime of
absolute community, except that:
1. The spouse who abandons the conjugal home without just cause is not entitled to
support,
2. Judicial authorization may be obtained when the consent of one spouse is required by
law for any transaction of the other (subject to Art. 239), and
3. The separate property of both spouses shall be solidarily liable for the support of the
family in the absence of sufficient community property. The spouse present shall be given
judicial authority to administer or encumber any specific separate property of the absent
spouse and use the fruits thereof to satisfy the latter’s share.

Art. 127. Same rules as above, but for Conjugal Partnership of Gains

Procedural Rules for Art. 100/127, par. 2:

1. In the case of Art 100/127 par. 2, a verified petition may be filed in court, attaching the
proposed deed or description of the transaction and the reason why the other spouse’s
consent has not been secured. (Art. 239)
2. Court shall issue a notice for the initial conference and shall notify the other spouse to
show cause why petition should not be granted. (Art. 242)
3. If the petition is not resolved at the initial conference, then the court shall decide in a
summary hearing. (Art. 246)
4. Its decision shall be final and executory. (Art. 247)
 Perez v. CA, 255 SCRA 661 (1996)

Applicability of the tender years presumption of Art. 213 (No

child under 7 years of age shall be separated from the
mother) to de facto separation, save for compelling reasons
such as neglect, abandonment, unemployment and
immorality, habitual drunkenness, drug addiction,
maltreatment of child, insanity, communicable disease.
 Rights and Obligations Between
Husband and Wife
(asked in ’75, and ’84 bar exams)
Obligations of Spouses (Arts. 68-71, FC)
1. Live together (cohabitation – Art. 68)
􏰁 Exemption: One spouse living abroad or there are valid and
compelling
reasons (Art. 69, Par 2)
􏰁 Exemption to Exemption: Incompatibility with the solidarity of the
family (Art. 69,
Par. 2)

2. Observe mutual love, respect, and fidelity Render mutual help and
support (Art. 68) Fix the family domicile.
In case of disagreement, the court shall decide. (Art. 69, Par. 1)

3. Jointly support the family. (Art. 70)

􏰁 From the conjugal property/income of the fruits of their separate
properties. In case of absence/insufficiency, from their separate properties
(liable in proportion to their properties) Manage the household. (Art. 71)
Rights of Spouses (Arts. 72-73, FC)
􏰁
In case the other spouse neglects his or her duties or commit acts
which tend to bring danger, dishonor or injury to the family, the
aggrieved party may apply the court for relief. (Art. 72)

􏰁 Injury contemplated is physical, moral, emotional, or

psychological, not financial.
􏰁
Either spouse may exercise any legitimate profession, without need
for consent of the other.
􏰁
The other spouse may only object on valid, serious, and moral
grounds. In case of disagreement, the Court shall decide whether
the objection is proper, and benefit has accrued to the family before
OR after the objection.

If BEFORE, enforce resulting obligation against the community

property or against the separate property of the spouse who has not
obtained consent (Article 73 [Omission corrected on November 8,
2968])
Use of Surname
􏰁 Married Women: (Art. 370, CC) A married woman may use:
a. Her maiden first name and surname and add her husband's surname, or
b. Her maiden first name and her husband's surname or
c. Her husband's full name, but prefixing a word indicating that she is his wife,
such as “Mrs.”

Yasin v. Shari’a District Court, (1995)—

The woman only has an option and not a duty to use the surname of her
husband, as provided for in Art. 370, CC. Moreover, when her husband dies, the
woman can revert to her old name without need for judicial declaration.
􏰁
Widows
A widow may use the deceased husband’s surname as though he were still living.
(Art. 373, CC)
􏰁
Mistresses
The Supreme Court allowed the mistress to use her live-in partner’s name, since
everyone already knew that she was a mistress, so as to avoid confusion.
(Legamia v. IAC (1984))
􏰁
Divorcees
The Supreme Court allowed the mistress to use her live-in partner’s name, since
everyone already knew that she was a mistress, so as to avoid confusion.
(Tolentino v. CA (1988))
Property Relations Between Spouses
General Provisions
(asked in ’76, ’86, ’91, ’92, ’94, ’95, ’96, ’97
and ’05 bar exams)
Order to be followed (Arts. 74, 75, FC)—

1. Marriage settlements before marriage – spouses can agree to whatever

regime they want (ACP, CPG, complete separation or any other property regime
to be agreed upon prior to the celebration of the
marriage).

2. Family Code – If there are no marriage settlements, or if the regime agreed

upon is void, the Absolute Community of Property will be followed

3. Local Customs
General Rule (Art. 80, FC)—
Property relations between Filipino spouses are governed by Philippine laws,
regardless of the place of marriage and their residence (Nationality Rule- Art
15, NCC).
Hence—
The rule that ACP is the default mode of property relations absent any
marriage settlement applies to all Filipinos regardless of the place of the
marriage andtheir residence.
Exceptions—
1. Where both spouses are aliens
2. As to the extrinsic validity of contracts
3. Contrary stipulation
Requirements for Marriage Settlements (Art. 77, FC)

1. Must be in writing (public or private)

2. Signed by the parties
3. Executed before the celebration of the marriage
4. Must be registered in local civil registry – to affect third persons (If not registered, will not
prejudice third persons, ACP will apply)
5. If party needs parental consent (age 18-21), parent/guardian must be a party to the
settlement (Art. 78)
6. If party is under civil interdiction or other disability (not including insanity), court appointed
guardian must be a party (Art. 79)
􏰁
General Rule: All modifications to the marriage settlement must be made before the marriage
is celebrated. (Art. 76)
􏰁
Exceptions:
􏰁 1. Legal Separation (Art. 63 (2), FC)
2. The property regime is dissolved.
􏰁 3. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2))
􏰁
A spouse may petition the court for:
a. Receivership
b. Judicial separation of property, or
c. The authority to be the sole administrator of the conjugal partnership
􏰁 d. If the other spouse abandons the other without just cause or fails to comply with
his or her obligations to the family. (Art. 128)
􏰁 d. Judicial Dissolution (Arts. 135 and 136)
􏰁
Furthermore: Marriage settlements are considered ACCESSORY to the marriage. Stipulations
in consideration of future marriage and donations will be void if the marriage does NOT take
place. (Art. 81, FC)
 Donations by Reason of Marriage
Requisites of donations propter nuptias: (Art. 82, FC)—
a) Made before the celebration of marriage.
b) Made in consideration of the marriage.
c) In favor of one or both spouses.
d) The donor must be one of the betrothed or any third person

Donations excluded—
1. Ordinary wedding gifts given after the celebration of the marriage
2. Donations in favor of future spouses made before marriage but not in
consideration thereof
3. Donations made in favor of persons other than the spouses even if founded
on the intended marriage

Who may donate—

1. Spouses to each other
2. Parents of one or both spouses
3. 3rd persons to either or both spouses
􏰁
Moreover, in donations propter nuptias, the marriage is really a consideration but not in
the sense of giving birth to the obligation. There can be a valid donation even if the
marriage never took place. However, the absence of marriage is a ground for the
revocation of the donation. (Solis v. Barroso, (1928))
􏰁
Donations propter nuptias are without onerous
consideration, marriage being merely the occasion or motive
for the donation, not its cause. 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 v. Lagua, (1969))

Rules to Follow in Donation Propter Nuptias—

1. Family Code provisions (Arts. 82-87)

2. Ordinary Donation provisions (Art. 83, FC; Title III of

Book III of the NCC)

3. Provisions on testamentary succession and the formalities

of wills for donations on future property (Art. 84, paragraph 2)
 Distinguished from Ordinary Donations—
DONATIONS PROPTER NUPTIAS
Does not require express acceptance
May be made by minors (Art. 78)
May include future property
If present property is donated and
property is not absolute community,
limited to 1/5 (Art. 84)
Grounds for revocation - In Art. 86
ORDINARY DONATIONS
Express acceptance necessary
Cannot be made by minors
Cannot include future property
No limit to donation of present property
provided legitimes are not impaired
Grounds for revocation - in donation
laws
 RULES:
Before Marriage

General Rule:
Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be
considered void) (Art. 84, FC)
Exception:
If they are governed by ACP
During Marriage

General Rule:
Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other
during the marriage are void) (Art. 87, FC)
Exception:
Moderate gifts on the occasion of any family rejoicing.

Matabuena v Cervantes, (1971)

The donation between common-law spouses falls within the provision prohibiting
􏰀
The prohibition on donations can only be assailed by persons who bear such relation to the parties or the
property itself, that their rights are being interfered with. Here, the insurance company of the donated car
cannot assail the validity of the donation. In addition, the codal exception of “moderate gifts” depends on
the income class of the spouses and a car could be considered a “moderate gift” that does not infringe the
prohibition of donation between spouses.
Sumbad v. CA, (1999)

The donation made by a man to a woman was held valid because no proof was shown that they were still
living in a common-law relationship at the time of the donation.
 Donation of Property Subject to Encumbrances—
Are considered valid.

In case of foreclosure
 ifif property value < obligation, donee shall not be liable
 property value > obligation, donee shall be entitled to the excess (Art. 85, FC)
Grounds for Revocation of Donation Propter Nuptias (Art. 86, FC) (CAVaLRI)—
1. If the marriage is not celebrated or judicially declared void ab initio, except
donations made in settlements.
2. When the marriage takes place without the consent of the parents or guardians,
as
required by law.
3. When the marriage is annulled, and the donee acted in bad faith.
4. Upon legal separation, if the donee is the guilty spouse.
5. If there is a resolutory condition, and it is not complied with.
6. ingratitude: (Art. 765, CC) (PCS)
a. An offense against person or property of donor, or his wife or children
under parental authority.
b. An imputation to the donor of any criminal offense, or any act involving
moral turpitude, even if proven, unless the crime is committed against the
donee, his wife or children under his authority.
c. Refusing to support the donor, if he/she is legally required to do so.
*The action for filing for revocation of donation prescribes.
 Absolute Community of Property In General
(Asked in ’98 and ’07 bar exams)

When it commences—
At the precise moment of the celebration of the marriage (Art. 88,
FC). However, if the marriage is celebrated before the Family
Code took effect (1988), the default property regime is the
Conjugal Partnership of Gains (CPG).

Waiver of Rights (Art. 89, FC)—

􏰁
General Rule: NOT ALLOWED
􏰁
Exceptions
a. When there is judicial separation of property
b. When there is legal separation
c. When the marriage is dissolved (by death of one of the
spouses)
d. When the marriage is annulled
What Constitutes Community Property

What it consists—
All the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter. (Art. 91, FC). Under the ACP, spouses cannot
exclude specific properties from the regime.

What is Excluded (BGM) (Art. 92, FC)—

1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate
and intestate succession, including the fruits of such properties
EXCEPT: When it was expressly provided by the donor or testator that the
property shall form part of the ACP

2. Properties for personal use

EXCEPT: Jewelry - they form part of the ACP

3. Properties acquired before the marriage, for those with legitimate descendants
with a former marriage (to protect rights of children by a former marriage)

Presumption—
All properties acquired during the marriage form part of the ACP, unless it be
proven that they are excluded. (Art. 93, FC)
 􏰁 Charges Upon the ACP (Art. 94, FC) (4 debts, 2 taxes, 2 expenses,
support, donation)
(asked in ’76 bar exam)

1. Support
 􏰁home
Spouses = even if not living together except when a spouse leaves conjugal
without just cause or even during pendency of action for legal separation or
annulment of marriage
 􏰁 Common children
 􏰁 Legitimate children of previous marriage
 Illegitimate children - follow the provisions on Support and (9)

2. Debts and Obligations Contracted During Marriage

 􏰁 Either by both spouses or one of them, with the consent of the other.
 􏰁 In (2) and (3), creditors need not prove that the debts benefited the family.
3. Debts Contracted by one Spouse Without Consent of the other
 ACP liable only to the extent that the debt benefited the family.
4. Tax, Liens, Repairs on Community Property
 􏰁 Includes both major and minor repairs
5. Taxes and Expenses for Mere preservation of Separate properties
 Applies only to separate properties by either spouse being used by the family, not
those that do not benefit the family.
 􏰁 Expenses limited to minor repairs.
6. Expenses for professional, Vocational, or Self-Improvement Course of
Spouses

7. Ante-nuptial Debts that Benefited the Family 􏰁 If the ante-nuptial debt

did not benefit the family, applicable rule is (9).

8. Donations by Both Spouses to Common Legitimate Children

􏰁 Purpose: professional, vocational courses or activities for self-improvement

9. Ante-Nuptial Debts not under (7), Support of illegitimate Children,

Liabilities of Either Spouse Arising from Crime or Quasi-Delict
• 􏰁is insufficient.
Only ff the debtor-spouse has no exclusive property or his or her property

• 􏰁share
The payments by the ACP are deemed advances to be deducted from the
of the guilty spouse upon the liquidation of the absolute community.

10. Expenses of Litigation between Spouses except when suit is groundless

If community property is insufficient except in (9), spouses are solidarily liable

for the unpaid balance from their separate properties.

Gambling losses shall be borne by the losing spouse’s separate property,

winnings shall accrue to the community property. (Art. 95, FC)
 Administration, Disposition of ACP
Ownership and Administration of property—

Belongs to both spouses jointly. If they disagree, the husband’s decision prevails.
However, the wife has five years from the date of the decision to go to court for recourse.
Otherwise, it is presumed that she agreed with the husband’s decision. (Art. 96, FC)

Except—
When the other spouse is incapacitated, or unable to participate in the administration (e.g.
when abroad). The powers refer solely to administration; disposition or encumbrance
requires consent of the absent or incapacitated spouse.

Homeowners Savings & Loan Bank v. Dailo (2005)—

In the absence of (court) authority or written consent of the other spouse, any disposition
or encumbrance of the conjugal property shall be void.
 Disposition of Property—

Either spouse may, through a will, dispose his/her interest in the community
property. (Art. 97, FC) However, the will should refer only to his/her own share
in the community property

Donation of Property— 􏰀 General Rule

Donation of one spouse without the consent of the other is not allowed (Art. 98, FC)
􏰀
Exceptions
a. Moderate donations to charity due to family rejoicing or distress;
b. Moderate gifts by each spouse to the other due to family rejoicing. (Note: What’s
moderate depends on the socio- economic status of the family)

Dissolution of ACP
ACP terminates upon (Art. 99, FC)—
1. Death of either spouse – follow rules in Art. 103
2. Legal Separation – follow rules in Arts. 63 and 64
3. Annulment or judicial declaration of nullity – follow rules in Arts. 50 to 52
4. Judicial separation of property during marriage – follow rules in Arts. 134 to 138
Rules on De Facto Separation (ART. 100, FC)—

De facto separation does not affect the ACP; EXCEPT that:

1. Spouse who leaves the conjugal home without just cause shall not be
entitled to support. He/She, however, is still required to support the other
spouse and the family.

2. If consent is necessary for transaction but is withheld or otherwise

unobtainable, authorization may be obtained from the court.

3. Support for family will be taken from the ACP.

4. If ACP is insufficient, spouses shall be solidarily liable.

5. If it is necessary to administer or encumber separate property of spouse

who left, spouse present may ask for judicial authority to do this.

6. If ACP is not enough and one spouse has no separate property, spouse
who has property is liable for support, according to provisions on support.
Abandonment (Art. 101, FC)—

Present spouse may petition the court for:

1. receivership;
2. judicial separation of property; or
3. authority to be the sole administrator of the
absolute community, subject to precautionary
conditions that the court may impose.

Spouse is prima facie considered to have

abandoned the other spouse and the family if:
1. he/she has left for a period of three months,
2. he/she has failed to inform his/her
whereabouts for a period of three months.
 Liquidation of Assets and Liabilities
(asked in ’89 and ’99)
Process of liquidation of ACP (Art. 102, FC)—

1. Inventory of assets of ACP and of spouses, with market values.

2. Obligations are paid with community property, and separate obligations not charged to
ACP paid by respective assets of spouses.

a. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after
the separate properties of the spouses, which are solidarily liable for the deficiency.

3. Delivery of whatever remains in their exclusive property.

4. Balance, or net remainder is divided equally between the spouses, irrespective of how
much each brought into the community.

5. If personal obligations of a spouse exceed his/her separate property, creditor can go

after the share of the spouse on the net remainder of the ACP, without prejudice to the
provisions of law on forfeitures and delivery of presumptive legitimes.

6. After covering all community obligations and obligations of spouses, balance of

separate properties shall be delivered to respective spouses or their heirs, and they will
also divide into two equal shares whatever is left of the community assets, without
prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.
Rules in Case of Termination of Marriage by Death of One
of the Spouses (Art. 103, FC)—

1. The community property shall be liquidated in the same proceeding

for the settlement of the estate of the deceased spouse.

2. If no such judicial settlement proceeding is instituted, surviving

spouse shall liquidate the community property either judicially or extra-
judicially within one year from the death of the deceased spouse.

a. If no liquidation is made within the period, any disposition or

encumbrance involving community property of the terminated
marriage shall be void.

b. Non-compliance with liquidation procedures would mean that a

subsequently contracted marriage will follow a regime of complete
separation of property.
Procedure for Liquidation of Community Properties of
Two Marriages (Art. 104, FC)—

1. Determine the capital, fruits, and income of each community upon

such proof as may be considered according to the rules of evidence.

2. In case of doubt as to which community the existing properties

belong, they shall be divided between two communities in proportion to
the capital and duration of each.
􏰀

Onas v. Javillo, (1934)

Javillo contracted 2 marriages. SC ruled that each absolute
community should be considered owner of the parcels of land
acquired during its existence. Death discontinues ACP.
􏰀
Vda. De Delizo v. Delizo, (1976)
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.
 Conjugal Partnership of Gains
(Asked in ’79 bar exam)

SYSTEM OF CONJUGAL PROPERTY OF GAINS

The spouses contribute the following to a common fund:

1. Proceeds, product, fruits and income of their separate

properties

2. Everything acquired by spouses through their efforts

3. Everything acquired by spouses through chance

EXCLUSIVE PROPERTY IN CPG:
1. That brought into the marriage as his/her own
2. That acquired during the marriage gratuitously
3. That acquired by redemption, barter or exchange with exclusive
property
4. That purchased with exclusive money of spouse

WHAT CONSTITUTES CPG: FOLCHIC

1. Fruits of conjugal property due or received during the marriage and net
fruits of separate property
2. Those acquired through occupation
3. Livestock in excess of what was brought to the marriage
4. Those acquired during the marriage with conjugal funds
5. Share in hidden treasure
6. Those obtained from labor, industry, work or profession of either or
both spouse
7. Those acquired by chance
Rules in Cases of Improvement of Exclusive
Property:

1. Accession – if the cost of the improvement of the

plus value is equal to or less than the value of the
principal property at the time of the improvement, the
entire property remains the exclusive property of the
spouse

2. Reverse Accession – if the cost of the improvement

and the plus value is more than the value of the
principal property at the time of the improvement, the
property becomes conjugal (subject to reimbursement)
CHARGES UPON CPG:
(BDT-SLAPPD)

1. Debts and obligations contracted by one without the consent of the other to
the extent that the family benefited

2. Debts and obligations contracted during the marriage by administrator-

spouse, both spouses or one with the consent of the other

3. Taxes, liens, charges, expenses upon conjugal property

4. Support of the spouses, their common children and legit children of either
spouse

5. Expenses of litigation

6. Ante-nuptial debts to extent family benefited

7. Taxes and expenses for mere preservation of separate property

8. Expenses for professional, vocational or self-improvement courses of either

spouse

9. Value of what is donated or promised to common legit children for

professional, vocation or self improvement courses
PROCEDURE FOR DISSOLUTION OF CPG:

1. Inventory of all property

2. Amounts advanced by CP as payment for personal debts and

obligations of either spouse are credited

3. Reimbursement for use of exclusive funds

4. Debts and obligations of the CP are paid

5. Remains of exclusive properties are returned

6. Indemnify loss of deterioration of movables belonging to either

spouse used for the benefit of the family

7. Net remainder of conjugal property is divided equally

8. Delivery of children’s presumptive legitimes

9. Adjudication of conjugal dwelling and custodyof children

NOTES:

• Property bought on installments paid partly from exclusive

funds of the spouses and partly from conjugal funds:

a. If full ownership is vested before the marriage – it shall

belong to the buyer-spouse

b. If full ownership was partnership

The separate properties shall be soliarily and subsidiarily liable for the
obligations if the community or conjugal properties are insufficient

• The ACP shall also be liable for ante-nuptial debts, support of

illegitimate children, and liabilities incurred by either spouse by
reason of a crime or quasi-delict in case of insolvency of the exclusive
property of the debtor-spouse. Payment advanced by the ACP, subject
to deduction from the share of the debtor-spouse

• The conjugal partnership property shall likewise be liable for the

payment of the personal debts of either spouse insofar as they have
redounded to the benefit of the family.
 Ayala Investment Corporation v. CA
G.R. No. 118305, Feb. 12, 1998

Indirect benefits that might accrue to a husband in his signing as a

surety or guarantee agreement not in favor of the family but in favor
of his employer corporation are not the benefits that can be
considered as giving a direct advantage accruing to the family.
Hence, the creditors cannot go against the conjugal partnership
property of the husband in satisfying the obligation subject of the
surety agreement.

A contrary view would put in peril the conjugal partnership property

by allowing it to be given gratituitously.
 ABALOS v. MACATANGAY
439 SCRA 649 (2004)
Prior to the liquidation of the conjugal partnership, the interest of each
spouse in the conjugal assets is inchoate, a mere expectancy, which
constitutes neither a legal nor an equitable estate, and does not ripen
into title until it appears that there are assets in the community as a
result of liquidation and settlement. The interest of each spouse is
limited to the net remainder resulting from the liquidation of the affairs
of the partnerships after its dissolution. Thus, the right of the husband
or wife to one-half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership or after
dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left which can be
divided between the spouses or their respective heirs.

The Family Code requires WRITTEN consent of the other spouse or

authority of the court for the disposition or encumbrance of conjugal
partnership by the other spouse if the former spouse is incapacitated or
otherwise unable to participate in the administration of the conjugal
partnership. Otherwise, the disposition is void.
 DISTINCTION BETWEEN ACP AND CPG

ACP CPG

All the properties owned by the Each spouse retains his/her property
spouses at the time of marriage before the marriage and only the fruits
become community property and income of such properties become
part of the conjugal properties during
the marriage

Upon dissolution and liquidation of Upon dissolution of the partnership, the

the community property, what is
divided equally between the
spouses or their heirs is the net
remainder of the properties of the
ACP
separate property of the spouses are
returned and only the net profits of the
partnership are divided equally between
the spouses of their heirs
GROUNDS FOR TERMINATION OF ACP/CPG: DLAS

1. Death of either spouse

2. Decree of legal separation

3. Annulment or declaration of nullity of

marriage

4. Judicial separation of property during

marriage
 Separation of Properties During Marriage
􏰁
Judicial separation of property may either be (1) voluntary or (2) for
sufficient cause.

Art. 134. Family Code. 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.

SUFFICIENT CAUSE FOR JUDICIAL SEPARATION OF PROPERTY: CAPAAS

1. Petitioner’s spouse has been sentenced to a penalty which carries with it civil
interdiction
2. Petitioner’s spouse has been declared an absentee
3. Loss of parental authority of petitioner’s spouse has been decreed by the court
4. Abandonment by petitioner’s spouse or failure to comply with family obligations
5. Spouse granted the power of administration in marriage settlements has abused
that power
6. At the time of petition, the spouses have been separated in fact for at least one
year and reconciliation is highly improbable
GROUNDS FOR REVIVAL OF FORMER PROPERTY REGIME:

1. When civil interdiction of the prisoner-spouse terminates

2. When the absentee spouse reappears

3. When the court, being satisfied that the spouse granted the power of
administration in the marriage settlement will not again abuse that power,
authorizes resumption of administration by the spouse formerly exercising such
power

4. When the spouse, who has left the conjugal home without a decree of legal
separation, returns and resumes common life with the other

5. When parental authority is judicially restored to the spouse previously deprived

thereof

6. When the spouses who have separated in fact for at least one year, reconcile
and resume common life.

7. When after voluntary dissolution of ACP or CPG, spouses agree to revive their
former property regime
 Rules
1. Each spouse shall contribute to the family expenses, in proportion to their
income. In case of insufficiency, the market value of their separate properties.
(Art. 146 par. 1)

2. Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146,
par. 2)

Abandonment is defined as the lack of intention to return to the conjugal home, without
justifiable cause (Dela Cruz v. Dela Cruz)

Effects of separation of property between spouses

1. ACP or CPG is dissolved and liquidated (Art. 137)

2. Provisions on complete separation of property applies after dissolution of ACP/CPG (Art. 138)
a. Liability spouses to creditors shall be solidary with their separate properties
b. mutual obligation to support each continues except when there is legal separation

3. Petition and final judgment of separation ofproperty must be filed in the appropriate registries (Art. 139)

4. Rights previously acquired by creditors are not prejudiced (Article 140)

Transfer of Administration to the Other Spouse (Art. 142) (GACA)

When one spouse:

1. Becomes the guardian of the other.
2. Is judicially declared an absentee.
3. Is sentenced to a penalty which carries with it civil interdiction.
4. Becomes a fugitive from justice or is in hiding as an accused in a criminal
case.

NOTE: 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.

In Re: voluntary dissolution of CPG of spouses Bernas, 14 SCRA 237

A voluntary separation of properties is not perfected by mere consent but upon the decree
of the court approving the same. The petition for voluntary separation of property was denied
because the children of the 1st and 2nd marriages were not informed; the separation of property may
prejudice the rights and shares of the children.

Maquilan v. Maquilan, (2007)

A compromise agreement with judicial recognition is valid, pending
petition for declaration of nullity of marriage.
Property regime of unions without marriage
(asked in ’79, ’87, ’98, ’00 and ’09 bar exams)
 Family
(asked in ’91 bar exam)
Basic social institution which public policy cherishes and protects
hence, no suit between members of the family shall prosper unless
compromise between parties has failed.

Family relations include:

1. Between husband and wife
2. Between parents and children
3. Among other ascendants and descendants
4. Among brothers and sisters, full or half blood.

General Rule:
For a suit between members of the same family to prosper, the following are
required:
1. Earnest efforts towards a compromise have been made
2. Such efforts have failed
3. Such earnest efforts and the fact of failure must be alleged

Note: The case will be dismissed if it is shown that no such efforts were
made.
Exceptions to the general rule (VJLAFF)
1. Civil status of persons,
2. Validity of marriage or a legal separation,
3. Any ground for legal separation,
4. Future support,
5. Jurisdiction of courts,
6. Future legitime
􏰁

Hontiveros v. RTC, (1999)

Whenever a stranger is a party in a case involving

family members, the requisite showing of earnest
efforts to compromise is no longer mandatory, as
such inclusion of a stranger takes the case out of the
ambit of FC 151.
Yaptinchay v. Torres, (1969)
Application of Article 148; there was no proof of actual
contribution, while there was a subsisting marriage apart
from the union without marriage, therefore, the N. Forbes
house goes to the CPG of subsisting marriage
􏰁
Juaniza v. Jose, (1979)
Property acquired by a married party during cohabitation
with another not his spouse belongs to the CPG of the
marriage, and the other party cannot be held
jointly/severally liable for it
􏰁
Villanueva v. CA, (2004)
Transfer of certificate and tax declarations are not sufficient
proof of joint contribution.
􏰁
Joaquino v. Reyes (2004)
Prohibitions against donations between spouses must
likewise apply to donations between persons living together
in illicit relations;
 Family Home
(asked in ’94 and ’07 bar exam)

Dwelling place of a person and his family

Guidelines—
1. It is deemed constituted from time of actual occupation as a family residence
2. It must be owned by person constituting it
3. It must be permanent
4. Rule applies to valid and voidable and even to common-law marriages under
Arts.147 and 148
5. It continues despite death of one or more spouses or unmarried head of family for 10
years or as long as there is a minor beneficiary (Art.159)
6. Can only constitute one family home

General Rule
The family home is exempt from (EFA):
1. Execution
2. Forced sale
3. Attachment

Exceptions in the exemption of the family home from execution (Art. 156)
1. Nonpayment of taxes.
2. Debts incurred prior to the constitution of the family home.
3. Debts secured by mortgages on thepremises before or after such constitution.
4. Debts due to laborers, mechanics, architects, builders, materialmen and others who
have rendered service or furnished material for the construction of the building.
Beneficiaries of the family home (Art. 154)

1. Husband and wife, or an unmarried person who is the head of the

family
2. Parents (may include parent-in-laws), ascendants, descendants,
brothers and sisters (legitimate/illegitimate), who are living in the
family home and who depend on the head of the family for support

Requisites to be a beneficiary (RLD)—

1. The relationship is within those enumerated
2. They live in the family home
3. They are dependent for legal support on the head of the family

Requirements for the sale, alienation, donation, assignment, or

encumbrance of the family home—
1. the written consent of the person constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal age

Note: If there is a conflict, the Court will decide.

Procedure to avail of right under Article 160—

1. The creditor must file a motion in the court proceeding where he

obtained a favorable for a writ of execution against the family home.

2. There will be a hearing on the motion where the creditor must

prove that the actual value of the family home exceeds the maximum
amount fixed by the FC either at the time of its constitution or as a
result of improvements introduced thereafter its constitution.

3. If the creditor proves that the actual value exceeds the maximum
amount the court will order its sale in execution.

4. If the family home is sold for more than the value allowed, the
proceeds shall be applied as follows:
a. First, the obligation enumerated inArticle 155 must be paid
b. Then the judgment in favor of the creditor will be paid, plus all the costs
of execution
c. The excess, if any, shall be delivered
􏰁
Versola v. Mandolaria, (2006)
The proof that the house is the family home must be alleged against
creditors; Applied the rule in Art. 160, FC.
 Kinds of Filiation
(Arts. 163, 164, 165 FC)
1. Natural
a. Legitimate
b. Illegitimate
2. Legal Fiction (Adoption)

Legitimate Children—
(asked in ’79, ’82, ’84, ’85, ’99 and ’03 bar exams)

• Conceived or born during the marriage of parents

• May be thru natural means or by artificial insemination.

1. Natural/Biological
Liyao v. Liyao, (2002): A child conceived or born during a valid marriage is presumed to belong to that
marriage, regardless of the existence of extramarital relationships.

2. Artificial Insemination (Art. 164)

Requisites for children conceived through artificial insemination to be considered
legitimate:
a. Artificial insemination made on wife
b. Sperm comes any of the following: Husband; Donor Husband and Donor
c. In case of donor sperm, husband and wife must authorize/ratify insemination in a written
instrument executed & signed by husband and wife before the birth of the child. Recorded in the
civil registry together with the birth certificate of the child.
 Illegitimate Children—
(asked in ’80, ’82, ’83, ’84, ’90, ’93, ’99, ’00, ’07, ’08 and ’09
bar exams)

Exceptions:
a. Children of marriages void under Art.36 (psychological incapacity).
b. And under Art. 53 (the second marriage of a widow or widower who has
not delivered to his or her children by his or her first marriage the legitime of
said children). (SEMPIO-DIY)

Impugning Legitimacy (Art. 166)

Grounds:
1. Physical impossibility for sexual intercourse within the first 120 days of the 300 days
which immediately preceded the child's birth due to:
2. Other biological or scientific reasons, except Artificial Insemination.
3. And in case of Artificial Insemination, the consent of either parent was vitiated through
fraud, violence, mistake, intimidation, or undue influence.

De Castro v. Assidao-De Castro, (2008) Common children born

before the annulment are legitimate, and therefore entitled to support
from each of the spouses.
Macadangdang v. CA, (1980)
Only a proximate separation between the spouses is not sufficient physical separation as
grounds for impugning legitimacy.

Andal v. Macaraig, (1951)

Serious illness of the husband which absolutely prevented him from having sexual
intercourse with his wife, like if the husband was already in comatose or a vegetable,
or sick with syphilis in the tertiary stage so that copulation was not possible. But
tuberculosis, even in its most crucial stage, does not preclude copulation between the
sick husband and his wife.

Jao v. CA, (1987)

Blood-type matching is an acceptable means of impugning legitimacy, covered by
Art. 166(2), under "biological or other scientific reasons." But this is only conclusive of
the fact of non-paternity.

__________________________________________________________________
Action for Impugning Legitimacy (Arts. 170 and 171)

The action for impugning the legitimacy of a child may be brought within 1, 2,
or 3 years from the knowledge of the birth, or the knowledge of
registration of birth.
Sayson v. CA
􏰁 Legitimacy can only be attacked directly
􏰁

General Rule:
Only the husband can impugn the legitimacy of a child. If he does not
bring action within the prescribed periods, he cannot file such action
anymore thereafter, and this is also true with his heirs.􏰁

Exception: That the heirs of the husband may file the action or
continue the same if it has already been filed

a. If the husband died before the expiration of the period fixed

for bringing his action
b. If he should die after the filing of the complaint without
having desisted
c. If the child was born after the death of the husband.
 Proof of Filiation (Arts. 172 and 175 [1])
(asked in ’85, ’95, ’05 and ’06 bar exams)
Rules

Legitimate or illegitimate children may prove their filiation in

the same way and on the same evidence.

General Rule:

They may only prove their status using the following pieces of evidence:

1. Their record of birth appearing in the civil registry.

2. An admission of his filiation (legitimate or illegitimate) by his parent or

parents in a public document or a private handwritten instrument and
signed by said parent or parents. (SEMPIO-DIY)

3. Proof of open and continuous possession of status as legitimate or

illegitimate child

4. Any other means stated by the rules of court or special laws

Mendoza v. Melia, 17 SCRA 788
Baptismal certificates are given probative value only for births before 1930. Birth certificates
must be signed by the parents and sworn for it to be admitted as evidence.

Baluyut v. Baluyut, (1990)

Unsigned birth certificates are not evidence of recognized filiation.

Acebedo v. Arquero, (2003)

Baptismal certificates are only conclusive of the sacrament administered, and cannot be used
as proof of filiation.

Lim v. CA, (1975)

Marriage certificates cannot be used as proof of filiation.

Jison v. CA, (1998)

Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a
family's reputation or tradition regarding pedigree like inscriptions on tombstones,
monuments, or coffin plates. Eceta v. Eceta (2004)

Signature of the father on the birth certificate is considered as an acknowledgement of

paternity and mere presentation of a duly authenticated copy of such certificate will
successfully establish filiations.

Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas, (1985)

"Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual
paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise
inconclusive of open admission.
Gono-Javier vs. Court of Appeals, (1994)
Mere possession of status as an illegitimate child does not make a recognized
illegitimate child but is only a ground for bringing an action to compel judicial
recognition by the assumed parent.

Herrera v. Alba, (2005)

In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data:

a. How the samples were collected,

b. How they were handled,

c. The possibility of contamination of the samples,

d. The procedure followed in analyzing the samples,

e. Whether the proper standards and procedures were followed in

conducting the tests,

f. and the qualification of the analyst who conducted the tests.

Estate of Rogelio Ong v. Diaz, (2007)

DNA evidence can still be used even after the death of the parent.
 Action for Claiming Filiation
(Arts. 173 and 175 [2])

􏰁 The child can bring the action during his

or her lifetime and even after the death of the
parents. The action does not prescribe as
long as he lives.
􏰁
If the child is a minor, or is incapacitated or
insane, his guardian can bring the action in
his behalf.
 Legitimation (Arts. 177 and 182)
(asked in ’82, ’90, ’92, ’04 ’08 and ’09 bar exams)

"Legitimated”
- children are illegitimate children who because of the subsequent marriage of their
parents are, by legal fiction, considered legitimate.

Requisites for legitimation—

The child was conceived and born outside of wedlock.

General rule:
The parents, at the time of the child's conception, were not disqualified by any
impediment to marry each other.

Exception:
RA 9858 - Children born to parents who were so disqualified only because either
or both of them were below eighteen (18) years of age at the time of child’s
conception may be legitimated.

Grounds for impugning legitimation—

1. The subsequent marriage of the child's parents is void.
2. The child allegedly legitimated is not natural.
3. The child is not really the child of the alleged parents. (SEMPIO-DIY)
 Rights of Legitimate and Illegitimate Children: (SSS)

1. Surname
a. Legitimate and legitimated: Surname of father and mother
b. Illegitimate: uses surname of mother but the father’s surname
may be used if father has explicitly recognized the child as his (RA
9255, Revilla Law)

2. Succession (asked in ’09 bar exams)

a. Legitimate and legitimated: those granted in the Civil Code
b. Illegitimate: 1⁄2 the share of a legitimate child

3. Support
a. Legitimate and legitimated: in accordance to provisions in the
Family Code
b. Illegitimate: entitle to support but support will come from
separate properties of parent.
􏰁
Republic v. Vicencio, (1998)
A legitimate child's use of the father's surname is mandatory.
􏰁
De Asis v. CA, (1999)
Obligation to support a legitimate child cannot be waived or compromised.
􏰁
David v. CA, (1995)
Parental authority over an illegitimate child belongs to the mother.
􏰁
Tonog v. CA, (2002)
However, this may be temporarily denied to the mother by reason of her
incapacity.
􏰁
Mossesgeld v. CA, (1998)
The father cannot force the use of his surname without first establishing
legitimacy.
􏰁 Under RA 9255, only an acknowledgment by the father is necessary
for the use of the father's surname.
􏰁
Capote v. CA, (2007)
An illegitimate child already given the father's surname without the latter's
acknowledgment, must revert to using the mother's surname.
 ADOPTION
(Asked in ‘76, ‘77, ‘85, ‘94, ‘95, ‘96, ‘00, ‘01, ‘03, ‘04, ‘05,
‘07, ’08 bar exams)
LEGITIMATION ADOPTION
The law merely creates by
The law merely makes legal
fiction a relation which did
what exists by nature
not in fact exist

Generally applies to
Persons affected Only natural children
strangers

Procedure Extrajudicial acts of parents Always by judicial decree

Husband and wife adopt

Who applies Only by both parents jointly exceptions (RA8552)
with

Same status and rights with

that of a legitimate child
Creates a rel. only between
Effect not only in relation to the
the child and the adopter
legitimizing parents but also
to other relatives
 RA 8552: Domestic Adoption Act of 1998

A. Who May Adopt (Sec.7)

1. Filipino Citizens
a. Of legal age
b. In possession of full civil capacity and legal rights
c. Of good moral character
d. Has not been convicted of any crime involving moral turpitude
e. Emotionally and psychologically capable of caring for children
f. At least sixteen (16) years older than adoptee, except when adopter is biological
parent of the adoptee or is the spouse of the adoptee’s parent
g. In a position to support and care for his/her children in keeping with the means
of the family

2. Aliens
a. Possession of the same as the qualifications for Filipinos
b. His/her country has diplomatic relations with the Philippines
c. Has been living continuously for 3 years (provided that absences not exceeding
60 days per 1 year for professional, business, or emergency reasons are allowed) in
RP prior to the filing of application and maintains such residence until the decree is
entered
d. 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
e. His/her government allows the adoptee to enter his/her country as his/her
adoptee
f. Has submitted all the necessary clearances and such certifications as may be
required
 *Items numbers c, d and e may be waived under the
following circumstances:

a. 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 4th degree of consanguinity
or affinity of the Filipino spouse

3. Guardians - with respect to theirs ward after the termination of the

guardianship and clearance of his/her accountabilities.

Husband and wife shall adopt jointly; Except—

1. if one spouse seeks to adopt the legitimate child of the other
2. if one of the spouse seeks to adopt his/her illegitimate child provided that other
spouse has signified his/her consent
3. if spouses are legally separated from each other
** if spouses jointly adopt, parental authority shall be exercised jointly
B. Who May Be Adopted (Sec. 8)
1. Any person below 18 years old who has been administratively or judicially
declared available for adoption
2. The legitimate child of one spouse by the other spouse
3. An illegitimate child by a qualified adopter to improve the child’s status to
that of legitimacy
4. 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 child since
minority
5. A child whose previous adoption has been rescinded
6. 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)

C. Consent Necessary for Adoption (Sec. 9)—

1. The prospective adoptee if 10 years or older
2. The prospective adoptee’s biological parents, legal guardian or the
government instrumentality or institution that has custody of the child
3. The prospective adopters’ legitimate and adopted children who are ten years
or over and, if any, illegitimate children living with them
4. The spouse, if any, of the person adopting or to be adopted.

Note: A decree of adoption shall be effective as of the date the original petition
was filed. It also applies in case the petitioner dies before the issuance of the
decree of adoption to protect the interest of the adoptee.
Lazatin v. Campos, (1979)
Adoption is a juridical Act, proceeding in rem. Because it is
artificial, the statutory requirements in order to prove it must be
strictly carried out. Petition must be announced in publications
and only those proclaimed by the court are valid. Adoption is
never presumed.

Santos v. Aranzanso, (1966)

Validity of facts behind a final adoption decree cannot be
collaterally attacked without impinging on that court’s
jurisdiction.

DSWD v. Belen, (1997)

Participation of the appropriate government instrumentality in
performing the necessary studies and precautions is important
and is indispensable to assure the child’s welfare.

Landingin v. Republic, (2006)

Consents for adoption must be written and notarized.
 Act 8043:
Inter-Country Adoption Act of 1995

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.
 Chapter XII. Support
(asked in ‘84, ‘85, ‘05, ’08 bar exams)
 􏰀
Consists of everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family (Art. 194).
􏰁
① The right and duty to support, especially the right to education, subsists even beyond the
age of majority (Art. 194).

② The amount of support is in proportion to the means of the provider and the needs of the
receiver, and can be reduced or increased if such circumstances change (Arts. 201 - 202).

① 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 PAYABLE except from
the date of judicial or extra-judicial demand (Art. 203).

② When, WITHOUT THE KNOWLEDGE of the person obliged to give support, it is given by a
stranger, the stranger has the right to claim the same from the person obliged, unless it
appears that he gave it without intention of being reimbursed (Art. 206).

③ When the person obliged to give support UNJUSTLY REFUSES OR FAILS to give support when
urgently needed, any third person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. This particularly applies when the
father or mother of a minor child unjustly refuses to support or fails to give support to the
child when urgently needed (Art. 207).

④ Future support cannot be the subject matter of a compromise; such are void (Art. 2035,
CC).
 Refusal to support children or descendants without
justifiable cause is a sufficient condition for the
disinheritance of parents or ascendants, whether
legitimate or illegitimate (Art. 920, CC).

 Unjustified refusal to support one’s children or spouse is

a sufficient cause for disinheriting a spouse (Art. 921,
CC).

 Spouses are jointly responsible for the family's support.

 Support expenses shall be paid from the CP, or in
absence thereof, the income/fruits of their separate
properties, or in insufficiency/absence of such, from
the separate properties (Art. 70).
Kinds of Support
1. Legal – that which is required to be given by law
2. Judicial – that which is required to be given by court order whether
pendente lite or in a final judgment
3. Voluntary or Conventional – by agreement

Characteristics of Support
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with regard to future support
4. Exempt from attachment or execution, except if support is contractual or
given by will. In such cases, any excess legal support can be subject to levy
on attachment or execution.
5. Reciprocal on the part of those who are by law bound to support each
other
6. Variable

How Support is Given (Art. 204)

1. Payment of the amount;
2. Accepting the recipient in the home of the provider, unless there is a legal
or moral obstacle from doing so.
Who are Obliged to Support Each Other (Art. 195)

1. Spouses;
2. Legitimate ascendants and descendants;
3. Parents and their children (legitimate and illegitimate) and the
children of the latter (legitimate and illegitimate);
4. Legitimate brothers and sisters, whether of full or half-blood;
5. Illegitimate brothers and sisters, EXCEPT when the need for
support of one (of age) is due to a cause imputable to his/her
fault or negligence (Art. 196).

[NOTE: Both legitimate and illegitimate children are entitled to

support.]
Properties Answerable for Support (Art. 197-198)

1. From the separate property of the obligor. If no

separate property, the ACP/CPG (if financially capable)
shall advance the support, to be deducted from the
obligor’s share upon liquidation of such regime.

2. Pending legal separation or annulment, support

(pendente lite) for spouses and children will come from
the ACP/CPG. After final judgment granting the petition,
mutual support obligation between spouses ceases. (But
in legal separation court may order guilty spouse to give
support to innocent spouse.)
􏰁

􏰀
 Order of Support (SDAB)

Order of support if there are multiple obligors (2 or more; Art. 199)

1. Spouses

2. Descendants, nearest in degree

3. Ascendants, nearest in degree

4. Brothers and Sisters

 􏰁 When two or more are obliged to give support, the
payment shall be divided between them IN PROPORTION to
their resources;
􏰁
 Also, in case of URGENT NEED and by special circumstances,
judge may order only one obligor to furnish support without
prejudice to reimbursement from other obligors of the share
due from them (Art. 200).
ORDER OF LIABILITY IF 2 OR MORE ARE OBLIGED TO SUPPORT:
1. Spouse
2. Descendants in nearest degree
3. Ascendants in nearest degree
4. Brothers and sisters
• When the obligation to give support falls upon two or more
persons, the payment of the same shall be divided between them
in proportion to the resources of each.
• However, in case of urgent need and by special circumstances,
the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the
other obligors the share due from them.
• When two or more recipients at the same time claim support
from one and the same person legally obliged to give it, and the
obligor does not have sufficient means to satisfy all claims:

- the order established in the preceding article shall be followed:

a. Spouse
b. Descendants in nearest degree
c. Ascendants in nearest degree
d. Brothers and sisters
- if the concurrent obligees should be the spouse and a child subject
to parental authority, the child shall be preferred
Pelayo v. Lauron, (1909)
Even if the parents-in-law were the ones who called
for the physician’s services for the childbirth of their
daughter-in-law, it is the woman’s husband who is
bound to pay the fees due to the physician.

Lacson v. Lacson, (1968)

Man is still liable for support in arrears since the
mother advanced it from a stranger (the uncle of
the daughters).

[NOTE: De facto separation does not affect the ACP,

except that the spouse who leaves the conjugal home
without just cause shall not be entitled to support (Art.
100).]
 Parental Authority
(asked in ’94, ‘03 and ’05 bar exams)
Patria Potestas
It’s the mass of rights and obligations which parents have in relation to
the person and property of their children until their emancipation, and
even after this under certain circumstances (Manresa).

Parental authority includes (Art. 209 FC):

1. The caring for and rearing of children for civic consciousness and
efficiency;
2. The development of the moral, mental and physical character and
well-being of said children

Rules as to the exercise of parental authority:

1. 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 (Art. 211 FC)
2. If the child is illegitimate, parental authority is with the mother
(Art.176 FC; see also Chapter 10).
 Cases when parental responsibility may be
renounced:
􏰁 Adoption;

Parental authority is transferred:

① 􏰁 Guardianship; or
② Commitment of the child in an entity or institution
engaged in child care or in a children’s home

Characteristics of parental authority:

1. It is a natural right and duty of the parents (Art. 209 FC)

2. It cannot be renounced, transferred or waived, except in

cases authorized by law (Art 210 FC)

3. It is jointly exercised by the father and the mother (Art.

211 FC)
Who exercises authority in cases of death, absence,
remarriage, or separation of parents—
􏰁
• In case one parent is absent or already dead, the present
or surviving parent (Art. 212 FC)

• Remarriage shall not affect the parental authority over

the children (Art. 212 FC)
􏰁
• In case of a void/annulled marriage, and there is no
agreement bet. spouses, the parent designated by the
court (Art. 43 FC par 1; Art. 49 FC).
􏰁
• Innocent spouse gets custody of minor children in legal
separation (Art. 63 FC par 3).
􏰁
• 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.
213 FC par 1).
Tender Years Presumption—

 NO child under 7 years of age shall be separated

from the mother, unless the court finds compelling
reasons to order otherwise. (Art. 213 FC par 2;
Gamboa v. CA, 2007)

Examples of compelling reasons are:

􏰁
When the mother is insane; with a communicable
disease that might endanger the life or health of the
child; is maltreating the child; or has another child by
another man who lives with her. (Cervantes v. Fajardo,
1989)

[NOTE: Prostitution or infidelity to husband does not make

a mother unfit as parent.]
Other Rights and Duties in Exercise of Parental Authority
Rights of Parents upon their children—
􏰁
1) To have them in their custody (Art. 220 FC par 1)

2) To represent them in all matters affecting their interests (Art. 200 FC

par 6

3) Demand respect and obedience and impose discipline on them (Art.

200 FC par 7&8; see also People v Silvano, 1999)

4) Administer the property of a child for her/his support and education,

unless title/transfer provides otherwise (Art. 226 FC par 1)

5) Administer the fruits and income (ONLY) of the children’s property

primarily to support the child and secondarily to use for the daily
needs of the family (Art. 226 FC par 2)

6) To give or withhold consent on marriage, pre-nuptial, donation propter

nuptias, adoption, and employment

7) To disinherit them for just cause

􏰀 Duties of Parents upon their children—
① Support and upbringing in accordance to their means (Art. 220 par 1)
② Educate, instruct, and provide them with moral and spiritual guidance,
and love and understanding (Art. 220 par 3)
③ Defend them against unlawful aggression
④ Answer for damages caused by their fault or negligence, and for civil
liability for crimes committed by them (Art. 221 FC)
⑤ Give their lawful inheritance

Liability of parents for torts committed by their minor children

(Art. 221 FC; Art. 2180 CC)—
① 􏰁 Parents and other persons exercising parental authority are civilly
liable for the torts of their unemancipated children: a) Provided they
are living in their company, b) and subject to the appropriate defenses
provided by law, like observing the diligence of a good father of a
family to prevent the damage (Libi v. IAC, 1992)
② If the minor child is, therefore, not living with the parents but has been
entrusted to the care of other persons, or is an intern in school, the
liability does not apply.
􏰁
This liability of the parents and those exercising parental authority over the
child is solidary and primary and direct, not subsidiary
 Substitute and Special Parental Authority
(Asked in 2003 bar exam)

Substitute parental authority exercised by (in order):

1. The surviving grandparent (Art. 214 FC)

2. Oldest brother or sister, over 21 years old, unless unfit or unqualified

(Art. 216 FC par 2).
3. Child’s actual custodian, over 21 years old, unless unfit or unqualified
(Art. 216 FC par 3)

[NOTE: The same order applies to the appointment of judicial guardian]

Special parental authority exercised by (Art. 218 FC)—

1. School, its administrators and teachers, or
2. The individual, entity or institution engagedin child care.
 Substitute Parental Authority Special Parental Authority
It is exercised concurrently with the
parental authority of the parents and
rests on the theory that while the child is
It is exercised in case of death, absence,
in the custody of the person exercising
or in case of unsuitability of parents.
special parental authority, the parents
temporarily relinquish parental authority
over the child to the latter.

St. Mary’s Academy v. Carpitanos, (2002) The special parental authority

and responsibility applies to all authorized activities, whether inside or outside
the premises of the school, entity or institution.

Liability of those exercising special parental authority over the child (Art.
219 FC)—

1. They are principally and solidarily liable for damages caused by the acts
or missions of the minor child while under their supervision, instruction or
custody.
HOWEVER, this liability is subject to the defense that the person exercising parental
authority exercised proper diligence.

2. The parents and judicial guardians of the minor or those exercising

substitute parental authority over the minor are subsidiarily liable for said acts
and omissions of the minor.
Effects of Parental Authority Upon the
Property of the Child (Art. 225 FC)—
􏰁
The Father and Mother shall jointly exercise legal
guardianship over the property of the minor child
without court appointment
􏰁
In case of disagreement, the father’s decision shall
prevail, unless there is judicial order to the contrary
􏰁
If the market value of the property or the annual income
of the child exceeds P50,000, the parent is required to
furnish a bond of not less than 10% of the value of the
child’s property or income
 Suspension or Termination of Parental Authority

Grounds for Suspension of Parental Authority (CLEBC; Art. 230-31 FC)—

1. Conviction of parent for crime punished w/ civil interdiction
2. Treats child with excessive harassment and cruelty
3. Gives corrupting orders, counsel or example
4. Compels child to beg
5. Subjects or allows acts of lasciviousness

Parental Authority Permanently Terminates (Art. 228 FC)—

1. Upon death of parents
2. Upon death of child
3. Upon emancipation of child
4. If the parents exercising parental authority has subjected the child or
allowed him to be subjected to sexual abuse (Art. 232 FC)

Termination of parental authority which can be revived by final

judgment (Art. 229 FC)—
1. Upon adoption of the child;
2. Upon the appointment of a general guardian for the child;
3. Upon judicial declaration
 Chapter XIV. Funerals
I. General Guideline
Art. 305, Civil Code. 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.
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, Civil Code. Every funeral shall be in keeping with the social position of the
deceased.

Art. 307, Civil Code. 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, Civil Code. 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, Civil Code. 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, Civil Code. The construction of a tombstone or mausoleum shall be deemed a
part of the funeral expenses, and shall be chargeable to the conjugal partnership
property, if the deceased is one of the spouses.
Duty and Arrangements (in relation to Art. 199
FC)—

1. Spouse

2. Descendants in nearest degree

3. Ascendants in nearest degree

4. Brothers and sisters

5. Municipal authorities – if there are no persons who are

bound to support or if such persons are without means
Guidelines in making funeral arrangements—
􏰁
- The persons who preferred in the right to make funeral arrangements may waive the right
expressly or impliedly in which case the right and duty immediately descend to the person
next in the order
􏰁
- It must be in keeping with the social position of the deceased.
􏰁
- Law shall prevail over the will of the persons who have the right to control the burial of
deceased – exhumation, evidential purpose, disposition of corpse by deceased, mutilation
of corpses and autopsies.
􏰁
- Corpses which are to be buried at public expenses may also be used for scientific
purposes under certain conditions.
􏰁
- Expressed wishes of the deceased is given priority provided that it is not contrary to law
and must not violate the legal and reglementary provisions concerning funerals and
disposition of the remains (time, manner, place or ceremony)
􏰁
-In the absence of expressed wishes, his religious beliefs or affiliation shall determine the
funeral rights.
􏰁
- In case of doubt, the persons in Art. 199 shall decide.
􏰁
- Any person who disrespects the dead or interferes with the funeral shall be liable for
material and moral damages.