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CIVIL LAW

Included:

Persons and Family Relations


PRELIMINARY TITLE CHAPTER I. EFFECT AND APPLICATION OF LAWS August 30, 1950 Date of effectivity of the Civil Code. Effectivity of Laws General rule: 1. A law may provide for its own effectivity. 2. If the law is silent as to its own effectivity, it shall take effect only after 15 days following its complete publication. Publication Requirements: 1. May either be published in the Official Gazette or in a newspaper of general circulation. 2. Publication must be in full. Meaning of Clause Unless It Is Otherwise Provided It refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective upon approval, or on any other date, without its previous publication. Laws governed: All laws and not only to those of general application. All laws that relate to the people in general including those that do not apply to them directly. University of the Cordilleras College of Law

1. Presiential Decrees and Executive orders 2. Administrative rules and regulations-if its purpose is to enforce existing laws pursuant to valid delegation. 3. Monetary Board Circulars-if they are meant not merely to interpret but to fill in the details of the Central Bank Act. Excluded: 1. Municipal ordinances 2. Supreme court decisions Cases: 1. People vs. Simon RA 7659 took effect on December 31, 1993 fifteen (15) days after its complete publication on the December 16, 1993 issues of Manila Bulletin, Philippine Star, Malaya, an Philippine Times Journal. 2. Tanada v Tuvera Court ruled that Article 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette even if the law itself provides for the date of its effectivity since the clear object of the law is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Presumption of Knowledge of Laws Ignorance of the law excuses no one from compliance therewith. (Ignorantia legis non excusat)

Reason Evasion of the law would be facilitated, and the administration of justice defeated, if persons could successfully plead ignorance of the law to scape the legal

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consequences of their acts, or to excuse nonperformance of their legal duties. Laws covered All kinds of domestic laws, civil or penal, substantive or remedial. Mandatory or prohibitory except permissive laws. Other exception: 1. Foreign laws ignorance of it is only cosidered as a mistake of fact not a mistake of law. Doctrine of processual presumption if the foreign law involved is not properly pleaded and proved, the court will presume that the foreign law is the same as our local or domestic or internal law. Cases: 1. Marbella-Bobbis v BobbisRespondent Isagani Bobbis cannot successfully invoke ignorance of the existence of Article 40 of the Revised Penal Code to be saved from the prosecution of bigamy. Every person is presumed to know the law. 2. Consunji v CA ignorance of the provisions of the Civil Code demanding cost of damages higher than those provided by the Workmens Compensation Act cannot be held against the respondent because respondents decision only constitutes a mistake of fact. 1. when the retroactivity of a penal statute will make it an ex post facto law; 2. when the retroactive effect of the statute will result in impairment of obligation of contracts. a. Exception Laws enacted in the exercise of Police power could be given retroactive effect and may reasonably impair vested rights or contracts. (Ortigas & Co., Limited v CA) Mandatory or Prohibitory Laws Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. If the law commands that something be done, it is mandatory. If the law commands that something should not be done, it is prohibitory. If the law commands that what it permits to be done should be tolerated or respected, in which case, it is permissive or directory. Exceptions: Prospective Application of Laws General Rule Laws are to be construed as having only prospective operation. Lex prospicit, non respicit. Exceptions 1. When the law itself authorizes its validity although generally they would have been void. 2. When the law makes the act valid, but punishes the violator. 3. Where the law merely makes the act voidable, that is, valid unless annulled. 1. if the law itself provides for retroactivity; 2. penal laws favorable to the accused; 3. if the law is procedural; 4. when the law is curative; 5. when the law creates new substantive rights. Exceptions to the Exceptions

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4. Where the law declares the act void, but recognizes legal effects as arising from it. Waiver of Rights Elements of Rights 1. Subjectpersons a. Activeentitled to demand b. Passiveduty-bound to enforce 2. Objectthings and services 3. Efficient causefact that gives rise to legal relation. Kinds of Rights 1. Civil rights a. Personal rightsnot subject to waiver b. Family rights- not subject to waiver c. Patrimonial rights can be waived generally. i. Real rights-no passive subject ii. Personal rights-w/ passive subject 2. Political rights Requisites of a Valid Waiver 1. A person should have knowledge of its existence; 2. Has intention to relinquish it. Requisite of valid renouncement: a. he must actually have the right which he renounces; b. he must have the capacity to make the renunciation; c. the renunciation must be made in a clear and unequivocal manner. Repeal and Consistency of Laws Kinds of repeal 1. Expressed 2. Impliednot favored in our jurisdiction Requisites: a. Laws cover the same subject matter University of the Cordilleras College of Law b. The latter is repugnant to the earlier In case of inconsistency: 1. Constitution must prevail over statute (may be declared void if not consistent) 2. Statutel over admistrative and executive acts and regulations 3. Special law over General law Judicial Decisions Not considered laws but shall form a part of the legal system of the Philippines. Doctrine of Stare Decisis When the Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. It enjoins adherence to judicial precedents. Case: 1. Caltex v PalomarPostmasterGeneral must abide with the decision of the court since it is not just a judicial opinion but a command. Duty to Render Judgment No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws Case: Floresca v Philex Mining the court, despite insufficiency of laws to settle the instant case, rendered its judgment by applying and giving effect to the constitutional guarantees of social justice and various legal principles. Doubt in the interpretation application of laws or

In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

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Application It is the sworn duty of the judge to apply the law without fear or favor, to follow its mandate, not to temper with it. What the law grants, the court cannot deny. Case 1. People v Amigothe accused claims that the penalty of reclusion perpetua is too cruel and harsh a penalty and pleads for sympathy. The Court replied: Courts are not the forum to plead for sympathy. The duty of courts is to apply the law, disregarding their feeling of sympathy or pity for the accused. Dura lex sed lex. Application of Customs twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days hey respectively have. Cases 1. Garvida v SalesPetitioner having the age of 21 years old and 10 months old contend that she is still qualified for the SK election since what is provided in the law is not more than 21 years old on the day of election. The court denied her petition stating that the clause not more than 21 years old is equivalent only to an age not more than the 21 365-day cycle. The petitioner has passed this period and is completing her 22nd 365-day cycle on the day of the election. 2. National Marketing v Tecson Petitioner filed a complaint for the revival of a December 21, 1955 judgment on December 21, 1965. The court however dismissed the complaint as it is two days late of its ten-year prescription period. Application of Penal Laws Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. Conflict of Laws Nationality Principle Philippine laws relating to family rights and duties, or the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Cases: 1. Tenchavez v Escano Tenchavez and Escano, both Filipino citizens, were legally married in the Philippines. But

Custom A rule of conduct formed by repetition of acts, uniformly observed as a social rule, legally binding and obligatory. Requisites 1. Plurality of acts, or various resolutions of a juridical question raised repeatedly in life; 2. Uniformity, or identity of acts or various solutions to the juridical question; 3. General practice by the great mass of the social group; 4. Continued performance of these acts for a long period of time; 5. General conviction that the practice corresponds to a juridical ne.cessity or that it is obligatory; 6. The practice must not be contrary to law, morals or public order. Application of Periods When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of University of the Cordilleras College of Law

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when Escano left for Nevada, she filed a divorce to sever their marriage ties. The court however denied the effectivity of the divorce decree stating that the Civil Code of the Philippines, does not admit absolute divorce. Being citizen of the Philippines, they are bound to abide by the laws of their country. 2. Van Dorn v Romillo, Jr Alice Reyes, a Filipino citizen was first married to Richard Upton, an American citizen in Hongkong. Their marriage was divorced later on and Reyes remarried with Theodore Van Dorn. Upton moved to claimed the share of alleged conjugal properties against Reyes arguing that they are still married under Philippine law. The court in its decision recognized the divorce decree of their marriage. Divorce obtained by foreigners even if the partner is a Filipino citizen is recognized in our jurisdiction. 3. Pilapil v Ibay-SomeraImelda Pilapil, a Filipino citizen, was married to Erich Geiling, a German national, in Germany in 1979. The couple resided in the Philippines. In 1986, the German husband secured a divorce in a German court. After more than five months after the divorce decree, Erich, the former husband, filed two complaints for adultery before the City Fiscal of Manila. RULING: The Supreme Court ruled that since Erich was no longer the husband of Pilapil, he no longer had the legal standing to sue for adultery. Lex Rei Sitae Real and personal property is subject to the law of the country where it is situated. Exception Intrinsic validity of Contracts In the matter of testate and intestate succession, the national law of the decedent shall apply with respect to the (1) order of succession, (2) amount ofsuccessional rights, (3) intrinsic validity of the will [and (4) heirs capacity to University of the Cordilleras College of Law The intrinsic validity of a contract is governed by the proper law of the contract or lex contractus, which may either be: Forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed. succeed,as provided NCC.] Exception Doctrine to the by Art. 1039 of exception: Renvoi

Renvoi literally means referring back. It is a process of referring a case to the jurisdiction of another country when there is a conflict rule. It is applied when there is a doubt as to whether a reference to a foreign law is a reference to the internal law of said foreign law; or a reference to the whole of the foreign law, including its conflict rules. Cases 1. Bellis v BellisWhen Amos Bellis, an American citizen, left two wills after his death, his forced heir questioned the applicability of the will. They contend that Philippine laws should govern the will but the court decided in the contrary. It is Texas law that should be followed with respect to its order of succession, intrinsic validity, successional rights and capacity to succeed. 2. In the matter of testate estate of the deceased Edward ChristensenRenvoi doctrine is applied because the conflicts rule of California, the law of the deceased citizen that should govern his testate estate, referred back the jurisdiction of the case to the country where he is domiciled. Lex Loci Celebrationis

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1. the law of the place voluntarily agreed upon by the contracting parties (lex loci voluntatis) or 2. the law of the place intended by them expressly or impliedly (lex loci intentionis). Effects of contracts, judgments or laws agreed upon in a foreign country Prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Suppletory Application The provisions of the Civil Code are applicable to matters governed by the Code of Commerce and special laws in a suppletory character. Hence, where there is no deficiency in the special law or Code of Commerce, the provisions of the Civil Code cannot be applied. 1. There is a legal right or duty; 2. Exercised in bad faith; 3. Sole intent of prejudicing injuring another. Breach of Promise to Marry The existing rule is that a breach of promise to marry per se is not an actionable wrong. To be actionable, there must be some act independent of the breach of promise to marry such as: 1. Fraud or deceit; 2. If expenses are actually incurred, actual damage could be sought; 3. When woman was forcibly abducted and raped, moral and exemplary damages could be sought; Malicious Prosecution In order for the malicious prosecution suit to prosper, the plaintiff must prove: 1. the fact of the prosecution and the further fact that the defendant himself was the prosecutor, and that the action was finally terminated with an acquittal; 2. that in bringing the action the prosecutor acted without probable cause; and The legitimate exercise of a persons rights, even if it causes loss to another, does not automatically result in an actionable injury. Damage resulting from the legitimate exercise of a persons rights is a loss without injury for which the law gives no remedy. Abuse of Rights When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Elements of Abuse of Rights

or

CHAPTER II. HUMAN RELATIONS Cardinal law on human conduct Every person must, in the exercise of his rights and performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Contra Bonus Mores Every person who willfully causes loss or injury to another in a manner contrary to morals, good customs and public policy shall compensate the latter for the damage Article 19 together with the succeeding article on human relation, was intended to embody certain basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order. Damnus Absque Injuria University of the Cordilleras College of Law

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3. that the prosecutor was actuated or impelled by legal malice that is improper or sinister motive. Elements of Contra bonus mores 1. There is an act which is legal; 2. which is contrary to morals, good customs, public order, or public policy; and 3. it is done with intent to injure. Accion in Rem Verso Every person who through an act of performance by another, or by any other means, acquires or comes into possession of something at the expense of the latter without just or legal grounds shall the return the same to him. Accion in Rem Verso, defined An action for recovery of what has been paid or delivered without just cause or legal ground. Requisites: 1. That the defendant has been enriched; 2. That the plaintiff has suffered a loss; 3. That the enrichment of the defendant is without just or legal ground; 4. That the plaintiff has no other action based on contract, quasicontract, crime or quasi-delict Solucio Indebiti If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. Requisites: 1. A payment is made when there exists no binding relation between the payor, who has no duty to pay, and the person who received the payment; 2. The payment is made through mistake and not through liberality or some other cause. Mistake is an essential element in solutio indebiti. But in the accion in rem verso, it is not necessary that there should have been mistake in the payment. Protection of the disadvantaged In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Thoughtess extravagance Requisites 1. there must be an acute public want or emergency; 2. the person seeking to stop it must be a government or private charitable institutions Protection of Human Dignity Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: 1. Prying into the privacy of anothers residence; 2. Meddling with or disturbing the private life or family relations of another; 3. Intriguing to cause another to be alienated from his friends; 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Enumerations not exclusive University of the Cordilleras College of Law

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Violations mentioned in Article 26 are not exclusive but are merely examples and do not preclude other similar or analogous acts. BOOK I. PERSONS TITLE I. CVIL PERSONALITY Civil Personality - aptitude of being the subject, active or passive, of rights and obligations Juridical Capacity Fitness to be the subject of legal relations Passive Inherent Lost only through death Can exist without capacity to act Cannot be limited or restricted Capacity to act Power to do acts with legal effects Active Merely acquired Lost through death and other causes Cannot without capacity exist juridical 1. parties are heirs to one another 2. no proof as to who died first 3. with doubt as to who died first NOTE: Article 43 applies when the parties are called to succeed each other. But if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies. Both are to be applied only in the absence of facts. Juridical persons NATURAL PERSONS Birth determines personality. The law considers the conceived child as born for all purposes favorable to it if born alive. Therefore, the child has a presumed personality, which has two characteristics: 1. limited; and 2. provisional/conditional (Quimiguing vs. Icao) NOTES: The presumption as to the childs personality applies only in cases beneficial to the child. University of the Cordilleras College of Law a. State and its political subdivisions b. Corporations, institutions and entities for public purpose or interest c. Corporations, partnership and associations for private interest For (a) and (b), by the laws creating or recognizing them; private corporations are governed by BP 68 and partnership and associations are governed by the provisions of this Code concerning partnerships. NOTE: The Roman Catholic Church is a Corporation by prescription, with Acknowledged juridical personality, Inasmuch as it is an institution which Presumption of survivorship Two or more persons, called to succeed each other, shall be presumed to have died at the same time, subject to the following conditions: The concept of provisional personality CANNOT be invoked to obtain damages for and in behalf of an aborted child. (Geluz vs. CA) When is a Child Considered Born For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mothers womb. If the fetus had an intrauterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

Can be restricted, modified or limited

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antedated, by almost a thousand years, any other personality in Europe, and which existed when Grecian eloquence still flourished in Antioch and when idols where still worshipped in the temple of Mecca. (Barlin vs. Ramirez) The estate of a deceased person should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. (Limjoco vs. Intestate Estate of Pedro Fragrante) Cessation of Civil Personality 1.If natural persons: by death 2.If juridical persons: by termination of existence Elements of Domicile a. Physical presence in a fixed place b. Intention to remain permanently (animus manendi) Kinds of Domicile 1. Domicile of origin - received by a person at birth. 2. Domicile of choice - the place freely chosen by a person sui juris. 3. Constructive domicile - assigned to a child by law at the time of his birth.

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TITLE I. MARRIAGE CHAPTER 1. REQUISITES OF MARRIAGE Marriage Marriage is a special contract of permanent union between a man and a woman entered into 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, consquences and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. Marriage as a special contract It is considered as a civil contract because it is entered into by agreement of the parties. However, unlike ordinary contract, it is also a status or personal relation, founded on contract and established by law, under which certain rights and duties incident to the relationship come into being, irrespective of the wish of th parties. Marriage is also a social institution regulated and controlled by the state. Distinction from ordinary contract: 1. Marriage cannot be revoked, dissolved or otherwise terminated by the parties, but only by the sovereign power of the state. 2. The nature, consequences and incidents are marriage are governed by law and not subject to agreement. 3. Only two person of opposite sex may enter into a contract of marriage. 4. It is a social institution. Presumption of Marriage A man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. Persons living together as husband and wife are married to each other. Semper praesumitur pro matrimonio Always presume marriage. Proof of marriage The best proof of marriage would be the marriage contract itself. But failure to present it is not a proof that no marriage took place as these other evidence may be presented to prove marriage: 1. Testimony by one of the parties to the marriage; 2. Testimony by one of the witnesses of marriage; 3. Testimony of the person who officiated the solemnization of marriage. 4. The couples public and open cohabitation as husband and wife after the wedlock 5. Birth and baptismal certificate of children born during such union 6. Mention of such nuptials in subsequent documents The burden of proof to show the nullity of marriage rests upon the party seeking its nullity. Essential requisites 1. Legal capacity of the contracting parties who must be a male and a female 2. Consent freely given in the presence of a solemnizing officer Formal requisites 1. Authority of the solemnizing officer (Art. 7) University of the Cordilleras College of Law

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2. A valid marriage license except in the case provided in chapter 2 Title I of Code 3. A marriage ceremony which takes place with the apperance 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 at least two witnesses of legal age. Components of Legal Capacity 6. 1. Age requirement a. Must be 18 years old on the date of marriage. Addl requirement: i. if any of the parties is below 21 years old, the concerned party should seek parental consent ii. If any of the parties is 21 years old and below 25 years old, the party concerned should first seek parental advice 2. Sex of the parties 3. Absence of legal impediments mentioned in Art. 37 and 38 (Incestuous marriage and marriage prohibited by the reason of public policy) Manifestation of Consent The only way of manifesting consent is to appear personally before a solemnizing officer and declare the marriage in the presence of not less than two witnesses of legal age. Consent must be given freely, voluntarily and intelligently. Authority of the solemnizing officer 1. Incumbent members of the judiciary within the courts jurisdiction; 2. Priest, rabbi, imam or minister of any church or religious sect duly authorized by his church or University of the Cordilleras College of Law 3. religious sect, provided that any of the parties are member of the church or religious sect; Ship captain or airplane chief, in cases of articulo mortis while the parties are on board the vessel; Military commanders of a unit, in cases of articulo mortis when one of the parties is involved in the military operation; Consul-general, consul or viceconsul, in limited cases e.g. for citizens abroad. Mayors.

4.

5.

Valid marriage license Must be issued by the local civil registrar of the place where the marriage application is filed. It has only a lifetime of 120 days from the date of issue and is effective in any part of the Philippines. CHAPTER II. MARRIAGES EXEMPT FROM MARRIAGE LICENSE Instances recognized by the Family Code wherein a marriage license is dispensed with: 1. Articulo mortiseither or both of the parties are at the point of death 2. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar 3. Marriages among Muslims and other ethnic groups, provided that they are solemnized is in accordance with their customs, rites or practice 4. Ratification of marital cohabitation between a man and a woman who have lived together for at least five (5) years, provided that they have no legal impediment to marry. Marriage Ceremony The solemnization of a marriage is a prerequisite to its validity because in this jurisdiction informal or common-law marriages are not recognized.

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Absence of, Defect, and Irregularity Absence of any of the essential or formal requisite shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisite shall render the marriage voidable. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. Authorized solemnizing officers 1) Any incumbent member of the judiciary within the courts jurisdiction; 2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; 3) Any ship captain or airplane chief only in the cases mentioned in Article 31; 4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or 5) Any consul-general, consul or viceconsul in the case provided in Article 10. Authorized Venues Of Marriage General Rule: Must be solemnized publicly, and not elsewhere, in the: 1. Chambers of the judge or in open court 2. Church, chapel or temple 3. Office of consul-general, consul or vice-consul University of the Cordilleras College of Law Exceptions: 1. Marriage at the point of death (articulo mortis); 2. Marriage in remote places 3. Marriage at a house or place designated by the parties with the written request to the solemnizing officer Case Duncan vs. Glaxo 438 SCRA 343 (2004)- Tecson signed a contract of employment with GLAXO saying agreeing to study and abide by the existing company rules which includes disclosure to management any existing or future relationship by consanguinity and affinity with co-employees or employees of competing drug companies and should management find that such relationship poses a possible conflict of interest, to resign from the company. Tecson got married to Betsy, an employee of Astra Pharmaceuticals, a competitor of Glaxo. Glaxo then transferred Tecson to Butuan City, Tecson asked the company to reconsider but it was denied. Because they were unable to resolve the issue, Glaxo offered Tecson a separation pay but he declined offer. Held: Glaxos policy on marriage is a valid exercise of management prerogative. This is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. Stipulation is valid because it does not pose an absolute prohibition to marry. The Constitution also recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and expansion and growth. Company has right to protects its economic interests Other Requirements Either or Both Parties Requires

18 years old and above Parental but below 21 consent Marriage counseling

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21 years old and above Parental but below 25 advice Marriage counseling 1. Where either or both parties are below 18years old 2. Bigamous or polygamous marriage (except Art. 41 on presumptive death of spouse) 3. Mistake in identity Effects: Lack of Marriage is VOIDABLE parental consent Lack of parental advice or lack of marriage counseling Of NO EFFECT on the validity of marriage However, this will suspend the issuance of the marriage license for a period of 3months from the completion of publication of the application for marriage license. If the parties get married during the 3month period without a license, the marriage shall be VOID. On the other hand, if they are able to obtain a license during the 3-month period, the marriage will still be valid but may be held civilly and criminally liable. 4. Marriages void under Art. 53 contracted following the annulment or declaration of nullity of a previous marriage but before partition 5. Psychological incapacity 6. Incestuous marriages 7. Marriage void for reasons of public policy Divorce by Foreigner- Spouse If a Filipino is married to a foreigner and the latter subsequently obtains a valid divorce abroad capacitating him/her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law. (Art. 26 par. 2) Requisites: a.) There is a valid marriage that had been celebrated between Filipino citizen and a foreigner b.) A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry The traditional rule: applies when parties at the time of celebration are a Filipino and an alien. Cases 1. Republic v. Arecibo III 472 SCRA 114 (2005)- The intent of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Thus, taking into consideration the legislative intent, Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage, were Filipino citizens but, later on, one of them

Marriages Solemnized Abroad General Rule: Marriages solemnized outside the Phils. in accordance with the law of the foreign country shall be valid in the Philippines (lex loci celebrationis) Exceptions:

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becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party was a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. 2. Republic vs. Iyoy G.R. NO. 15277 September 21, 2005- For the second paragraph of Article 26 to apply, a spouse who obtained the divorce must not be a Filipino at the time of the divorce. If the obtaining-spouse is still a Filipino at the time of the divorce, then the divorce is not recognized in the Philippines. The root cause in psychological incapacity must still be determined even if there is no requirement that a personal examination of the respondent be made prior to a declaration of nullity of marriage. Office of the Solicitor General has personalityto appeal a decision in a declar ation-of-nullity of marriage case. 3. Republic vs. Obrecido G.R. NO. 154380 October 5, 2005- Orbecido and Villanueva were married and had2 children. Wife went to us and was naturalized as an American citizen. He later found that his wife obtained a divorce decree and married a foreigner. He filed a petition for authority to remarry invoking Article 26 of the FC, which the court granted. HELD: Petition for authority to marry was treated as Petition for declaratory relief. The determination of when the spouse who obtained a divorce was a foreigner is at the time of the divorce not at the time of the celebration of the marriage. The proper remedy for the Filipino spouse need not be annulment for this would be long, tedious and not feasible (considering that the marriage appears to have the badges of validity); it is not also legal separation as this will not sever the marriage tie. 1. Contracted by any party below 18 years old 2. Solemnized by unauthorized solemnizing officer (Except if either or both parties believed in good faith that the officer had authority) 3. Solemnized without marriage license (Except when license not required) 4. Bigamous marriages or polygamous

Except: Art. 41 marriage contracted by a person whose spouse has been absent for 4 years (ordinary absence) or 2 years(extraordinary absence), where such person has a well founded belief that his/her absent spouse is already dead, and after the absent spouse is judicially declared presumptively dead 5. Mistake in identity 6. Subsequent marriage void unde r Art. 53 Art. 53 provides that a person whose marriage has been annulled may remarry as long as he complies with Art. 52 which requires that after the marriage is annulled the properties of the spouses must be partitioned and distributed and the presumptive legitimes of the children be distributed. Furthermore, the judgment of annulment or absolute nullity, the partition and distribution of the spouses properties, and the delivery of the childrens presumptive legitimes must be recorded in the appropriate civil registry and registries of property. Failure to comply with these requisites will make the subsequent marriage void ab initio

CHAPTER III. VOID AND VOIDABLE MARRIAGES A. Void ab initio under Art. 35: University of the Cordilleras College of Law

NOTE: The enumeration of void marriages under Art35 is not exclusive.

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B. Void under Article 36: where one party, who at the time of the celebration of the marriage, was psychologically incapacitated to comply with the essential marital obligations. Cases 1. Carating-Siaynco v. Siaynco 441 SCRA422 (2004)- Juanita and Manuel were married civilly and in the Catholic Church. Discovering that they could not have a baby they adopted a baby boy. After 24 years of marriage, Manuel filed a declaration of nullity on ground of Psychological Incapacity. He alleged that Juanita exhibited an over domineering and selfish attitude towards him which was exacerbated by her extremely volatile and bellicose nature, that she incessantly complained about almost everything and anyone connected with him like his elderly parents, staff, she showed no respect for his prestige and high position as judge in the Municipal Trial Court. Juanita said that Manuelis still living with her at their conjugal home in Bulacan, that he invented malicious stories against her so that he could marry his paramour, that she supported Manuel in all his endeavors despite his philandering, that she was raised in a real happy family and had a happy childhood contrary to what was said by Manuel. HELD: Psychological Incapacity must be judged on a case to case basis. It should refer to no less than a mental (not physical) incapacity. It must be characterized by a. gravity b. juridical antecedence c. incurability --- this was not met. Sexual infidelity does not constitute psycho incapacity within contemplation of family code. It must be shown that Manuels unfaithfulness is a manifestation of a disordered personality which makes him completely unable to discharge the essential marital state and not merely due to his ardent wish to have a child of his own flesh and blood. The negative traits must paralyze her from complying with the essential obligations of marriage. Unsatisfactory marriage is not a null and void marriage. Mere showing of University of the Cordilleras College of Law irreconcilable differences and conflicting personalities DOES NOT constitute psychological incapacity. 2. Republic vs. Quintero-Hamano 428 SCRA 735 (2004)- Hamano, a Japanese national, abandoned his wife and daughter. RTC and CA granted the petition for psychological incapacity. The Office of the Solicitor General appealed to the SC on the ground that respondent was not able to prove the psychological incapacity of Toshio Hamano to perform his marital obligations, despite respondents failure to comply with the guidelines laid down in the Molina case. HELD: Molina doctrine does not require personal medical examination of the person who is psychologically incapacitated to marry. However, evidence of medical and clinical finding of any illness constituting psychological incapacity will greatly help. This can be done by an expert witness Mere abandonment is not constitutive of psychological incapacity. There must be proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage. In proving psychological incapacity, we find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human behavior in general. Hence, the norms used for determining psychological incapacity should apply to any person regardless of nationality.. 3. Dedel vs. CA 421 SCRA 461(2004) Mere sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown

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that these acts are manifestations of a disordered personality with make respondent completely unable to discharge the essential obligations of a marital state, not merely to her youth, immaturity or sexual promiscuity. Root cause must be traceable prior to the marriage ceremony. 4. Buenaventura v. CA GR No. 127358, March 31, 2005- It is contradictory to characterize acts as a product of psychological incapacity, hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. A finding of psychological incapacity on the part of one spouse negates any award of moral and exemplary damages against him/her. Award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that is was done deliberately and with malice by a party who had known of his or her disability and yet willfully concealed the same. PSYCHOLOGICAL INCAPACITY has no exact definition but is restricted to psychological incapacity to comply with the essential marital obligations of marriage. It involves a senseless, protracted, and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she, or they are physically capable of performing such obligations (Chi Ming Tsoi v. CA 266 SCRA 234 [1997]) ELEMENTS: 1. Mental disposition 2. Applies to a person who is martially-contracted to another 3. Marriage volition entered into with 7. Cause is serious, with juridical antecedence and must be incurable 8. Incapacity results in the failure of the marriage

Jurisprudential Guidelines: BREIGOIC (Republic v. CA & Molina 268 SCRA 198 [1997]) 1. Burden of proof to show the nullity of marriage belongs to plaintiff 2. The root cause of the psychological incapacity must be: a. Medically or clinically identified b. Alleged in the complaint c. Sufficiently proven by experts d. Clearly explained in the decision 3. The incapacity must be proven to be existing at the time of the celebration of the marriage. 4. Such incapacity must be shown to be medically or clinically permanent or incurable 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage 6. Essential marital obligations must be those embraced by Art. 68-71, as well as Art.220, 221, and 225 of the Family Code. 7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts 8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state Cases

4. Failure to perform or comply with the essential obligations in marriage 5. Failure to perform is chronic 6. Cause is psychological in nature University of the Cordilleras College of Law

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1. Antonio v. Reyes GR No. 155800, March 10, 2006 - Judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience. It is under the auspices of the deliberate ambiguity of the framers that the Court has developed the Republic v. CA & Molina rules, which have been consistently applied since 1997.Molina has proven indubitably useful in providing a unitary framework that guides courts in adjudicating petitions for declaration of nullity under Article 36.At the same time, the Molina guidelines are not set in stone, the clear legislative intent mandating a case-to-case perception of each situation. It should be noted that the lies attributed to respondent were not adopted as false pretenses in order to induce petitioner into marriage. They indicate a failure on the part of respondent to distinguish truth from fiction, or at least abide by the truth. Petitioners witnesses and the trial court were emphatic on respondents inveterate proclivity to telling lies and the pathologic nature of her mistruths, which according to them, were revelatory of respondents inability to understand and perform the essential obligations of marriage. Indeed, a person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligations attached to marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments. 2. Mallion v. Alcantara October 31, 2006 G.R. No. 141528 - Petitioner filed a case to declare void the marriage due to psychological incapacity. Petition was denied. Later, he filed a case to again declare his marriage void because of absence of marriage license. Supreme Court denied the Petition. HELD: Res Judicata applies. There is only one cause of action which is the nullity of marriage. Hence when the second case University of the Cordilleras College of Law was filed based on another ground there is a splitting of a cause of action which is prohibited. Petitioner is estopped from asserting that the first marriage had no marriage license because in the first case he impliedly admitted the same when he did not question the absence of a marriage license.

Void for Being Incestuous under Art. 37: Whether relationship illegitimate is legitimate or

1. Between ascendants and desce ndants of any degree 2. Between brothers and sisters, w hether full or half blood Void for Reason of Public Policy under Art.38: 1. Between collateral blood relatives up to the 4th civil degree. 2. Between step-parents and stepchildren 3. Between children-in-law 4. Between and adoptive child parents-in-law and adopting parent

5. Between surviving spouse of the adopter and the adopted 6. Between surviving spouse of the adopted and the adopter 7. Between adopted and child of adopter legitimate

8. Between adopted children of same adopter 9. Between parties where one, with the intention to marry the other, killed that other persons spouse or his/her own spouse NOTE: RA 6995 (Mail Order Bride Act) declares as unlawful the practice of

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matching Filipino women for marriage to foreign nationals on a mail-order basis and other similar practices including the advertisement, publication, printing or distribution of brochures, fliers, and other propaganda materials in furtherance thereof. Under the new Family Code, the following can now marry each other: 1. Brother-in-law and sister-in-law 2. Stepbrother and stepsister 3. Guardian and ward 4. Adopted and illegitimate child of the adopter 5. Parties been convicted concubinage who have of adultery or General Rule: Marriage contracted by any person during the subsistence of a previous marriage is VOID Exception: If before the celebration of the subsequent marriage: a. the previous spouse had been absent for4 consecutive years (ordinary absence) or 2 years (extraordinary absence) and b. the remaining spouse has a wellfounded belief that the absent spouse was already dead c. judicial declaration of presumptive death- In this case, the subsequent marriage is valid but it shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse. Exception to the Exception: Subsequent Marriages 1. Without judicial declaration of nullity of previous void marriage (Art. 40) For the purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes other than remarriage, other evidence is acceptable. In a case for concubinage, the accused need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of nullity of his marriage other than proof of final judgment declaring his marriage void. Hence, the pendency of the civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage.-However, a judicial declaration of nullity is not needed where no marriage ceremony at all was performed by a duly authorized solemnizing officer as where the parties merely signed a marriage contract on their own. (Lucio Morigo v. People, G.R. No. 145226. Feb. 06, 2004) 2. Rule on bigamous marriages (Art. 41) If both spouses of the subsequent marriage acted in bad faith, such marriage is void ab initio (Art. 44) Cases 1. Tenebro vs. CA 423 SCRA 272 (2004)- Tenebro contracted marriage with private respondent in 1990. In 1991, Tenebro told his wife that he had been previously married in1986. He then left the private respondent and lived with his first wife. In 1993, he then contracted another marriage. It was here when private respondent confirmed with the first wife that petitioner was indeed previously married. Private respondent then filed a case against petitioner for bigamy. Tenebro claims that he is not guilt of bigamy because: - That there was no valid second marriage because no marriage ceremony took place to solemnize their union - That the declaration of the nullity of the second marriage on the ground of Psychological Incapacity, which is an alleged indicator that his marriage to private respondent lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated .

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HELD: There is no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of marriage. The law penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage. The moment petitioner entered into marriage with private respondent, he already committed bigamy. There is criminal bigamy even if the second marriage is void because of psychological incapacity. 2. Morigo vs. People 422 SCRA 376 (2004- Petitioner contracted marriage with Lucia in1990. In 1991, Lucia filed with the Ontario Court a petition for divorce against pet which was granted and took effect on Feb. 17, 1992. On Oct 4, 1992, petitioner married Maria. Less than a year after such marriage, petitioner filed a complaint of Judicial Declaration of Nullity with Lucia on the ground that no marriage ceremony took place. On Oct 19, 1993, the City prosecutor then charged him with the crime of bigamy and he was subsequently found guilty. While the criminal case was pending in the Court of Appeals, in 1997, the Judicial Declaration of Nullity of marriage between petitioner and Lucia was rendered final and executory. HELD: GENERALLY, even if the first marriage is judicially declared void only after contracting the second marriage, the second marriage is still bigamous. This is true only if the first marriage ostensibly transpired as there was a marriage ceremony. However, if the first marriage is judicially declared void only after contracting second marriage, the second marriage is not bigamous if the first marriage was void due to the fact that no marriage ceremony was solemnized at all. The mere signing of a marriage contract bears no semblance to a valid marriage and thus needs no judicial declaration of nullity. NOTE: Where there was failure to record in the civil registry and registry of property the judgment of annulment or absolute nullity of the marriage, the partition and distribution of the property of the spouses, University of the Cordilleras College of Law and the delivery of the childrens presumptive legitimes, it shall not affect third persons.(Arts. 52-53) Even if a marriage is void, it must be declared void first before the parties to such void marriage can remarry. The parties cannot decide for themselves the invalidity of their marriage. (Except: when the purpose is other than remarriage, a collateral attack of the marriage is allowed.)

Effects of Terminations of Subsequent Marriage: LDDRI 1. Children of the subsequent marriage conceived prior to its termination shall be considered legitimate 2. The absolute community or conjugal partnership shall be dissolved and liquidated. If either spouse acted in bad faith, his/her share in the net profits shall be forfeited: a. In favor of the common children b. If none, in favor of the children of the guilty spouse by previous marriage c. In default of children, in favor of the innocent spouse 3. Donations by reason of the marriage remain valid except if the donee contracted the marriage in bad faith 4. The innocent spouse may revoke the designation of the spouse in bad faith as the beneficiary in any insurance policy, and 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession. NOTE: The above effects apply in voidable bigamous marriages. Except for (1), the above effects also apply to marriages which are annulled or declared void ab initio under Art. 40.

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Requisites for Presumptive Death Declaration of 1. That the absentee spouse has been missing for 4 consecutive years if the disappearance occurred where there is danger of death under circumstances in Art. 391 of New Civil Code. 2. The present spouse wishes to remarry 3. The present spouse has a well-founded belief that the absentee is dead 4. The present spouse files a summary proceeding for the declaration of presumptive death of the appeal for lack of merit. In the former, the supposed appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to this Court on petition for review and the RTC judgment cannot be executed until the Court makes the final pronouncement. Annulable Marriages Grounds (Art. 45) : PUFFIS 1. Lack of parental consent 2. Either party is of unsound mind 3. Fraudulent means of obtaining consent of either party Circumstances constituting fraud: (Art. 46) a. Nondisclosure of conviction by final jud gment of crime involving moral turpitude b. Concealment of pregnancy by man another

Effect of Reappearance: General Rule: The subsequent bigamous marriage under Art. 41 remains valid despite reappearance of the absentee spouse. Exception: If the reappearance was made in as worn statement recorded in the civil registry, the subsequent marriage is automatically terminated. Exception to the Exception: If there was a previous judgment annulling or declaring the first marriage a nullity, the subsequent bigamous marriage remains valid. Cases 1. RP VS. CA G.R. NO. 163604 May 6, 2005 The summary proceeding to judicially declare a person presumptively dead under Article 41 of the Civil Code is not a special proceeding. Hence appeal in relation to decisions are made only via a Notice of Appeal. 2. Republic VS. Bernudes-Lorino 449 SCRA57 (2005) Summary proceedings under the Family Code is final and executory pursuant to Article 247. Hence, a decision judicially declaring a person presumptively dead is non-appealable. If appealed to the Court of Appeals, the latter has no jurisdiction to try the case. There is a big difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately final and executory, and the denial University of the Cordilleras College of Law

c. Concealment of sexually transmissible disease, regardless of nature, existing at the time of marriage d. Concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism 4. Force, intimidation or undue influence 5. Physical incapability of either party to consummate the marriage with the other, and such incapacity continues and appears to be incurable Requisites of Annulment due to Impotence: a. Impotence exists at the time of the celebration of marriage b. Permanent c. Incurable d. Unknown to the other spouse e. The other spouse must not also be impotent Doctrine of Trennial Cohabitation

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Presumption that the husband is impotent should the wife still remain a virgin after 3 years of living together with her husband. 6. Affliction of sexually transmissible disease found to be serious and which appears incurable Elements: a. Existing at the time of marriage b. Sexually transmissible disease c. Serious d. Appears incurable ARTICLE 45 ARTICLE 46 PETITION FOR ANNULMENT OF VOIDABLE MARRIAGES: The Rules suppletorily of Court shall apply

Petition for Declaration of Absolute Nullity Who may file: solely the husband or wife What to allege: complete facts showing either one is incapacitated from complying with marital obligations at the time of the celebration of the marriage including physical manifestations, if any Actions or defenses shall NOT prescribe

The STD is a ground The STD is a type for annulment of fraud which in turn is aground for annulment The STD does not The STD must be have to be concealed concealed The STD must be The STD does not serious and have to be serious incurable and appears incurable It is the The STD itself is concealment, and the ground for not the STD, which annulment gives rise to the annulment

Who may file: 1. contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his/her consent, w/in 5 years after attaining the age of 21 unless after attaining the age of 21, such party freely cohabited with the other as husband and wife; or the parent, guardian or person having legal charge of the contracting party at any time before such party has reached the age of 21 2. the sane spouse who had no knowledge of the others sanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other husband and wife; 3. the injured party whose consent was obtained by fraud, w/in 5 years after the discovery of the fraud, provided that said party, with full knowledge of the fact constituting the fraud, has not freely cohabited with the other husband and wife;

A.M. N O. 02-11-10 SC- Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Scope Petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code

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4. the injured party whose consent was obtained by force, intimidation, or undue influence, w/in 5years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other husband and wife; 5. the injured party where the other spouse is physically incapacitated of consummating the marriage with the other and such incapacity continues and appears to be incurable, w/in 5years after the celebration of marriage; and 6. the injured party where the other party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable, w/in 5 years after the celebration of the marriage. Venue: Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of filing (or non-resident respondent: where he may be found in the Philippines) at the election of the Petitioner. corresponding report at least 3 days before the pre-trial Prohibited Compromise (a) Civil status of persons (b) Validity of marriage or legal separation (c) Any ground for legal separation (d) Future support (e) Jurisdiction of courts (f) Future legitimes Decision Copies will be served on the parties, including the SolGen and public prosecutor Final after expiration of 15 days from notice to the parties Should be registered in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located before decree shall be issued Appeal Investigation Report of the Public Prosecutor to be made w/in 1 month after the receipt of the court order shall state whether the parties are in collusion and the basis for such finding and serve copies thereof on the parties and the irrespective counsels, if any (a) there is collusion parties shall file their respective comments on the finding of collusion w/in 10 days from receipt of a copy (b) no collusion set the case for pre-trial Public prosecutor is duty bound to appear at the pre-trial Court may require a social worker to conduct a case study and submit the University of the Cordilleras College of Law Not allowed if no motion for reconsideration or new trial is made w/in15 days from notice of judgment Death Party dies before entry of judgment: court shall order the case closed and terminated w/o prejudice to the settlement of the estate in proper proceedings in the regular courts Party dies after the entry of judgment: binding upon the parties and their successors-in-interest in the settlement of the estate in the regular courts.

Case Corpus v. Ochoterena 435 SCRA 446 (2004)In a nullity-of-marriage case, the prior investigation to determine for

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collusion is a condition sine qua non for further proceedings in the event the defendant does not answer. This is true even if during the hearing the fiscal participated and cross-examined the witnesses failure of the husband to look for his adulterous wife is not condonation to wifes adultery 2. Consent 3. Connivance 4. Collusion TITLE II. LEGAL SEPARATION 5. Mutual guilt 6. Prescription action for legal separation must be filed within five years from the time of the occurrence of the cause of action 7. Death of either party during the pendency of the case (Lapuz-Sy v. Eufemio 43 SCRA 177 [1972]) 8. Reconciliation of the spouses during the pendency of the case Effects of Separation: 1. Spouses are entitled to live separately 2. Marriage bond is not severed 3. Dissolution of property regime 4. Forfeiture of the share of the guilty spouse in the net profits of the ACP/CPG 5. Custody of minor children to innocent spouse (subject to Art. 213 which provides that parental authority shall be exercised by parent designated by the court) 6. Guilty spouse is disqualified from intestate succession and provisions made by innocent spouse in his favor in a will shall be revoked by operation of law 7. Innocent spouse may revoke the donation made by him in favor of the offending spouse. However, alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. 8. Innocent spouse may revoke designatio n of guilty spouse as beneficiary in the insurance policy even if such designation be stipulated as irrevocable

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

Grounds to Deny Legal Separation: C4 D-GPDR 1. Condonation

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A.M. N O. 02-11-11-SC- Proposed Rule on Legal Separation Who may file: solely the husband or wife When to file: within 5 years from the occurrence of any of the grounds Procedure is almost the same as in the Rule on Declaration of Absolute Nullity &Annulment (above) Creditors are the petition furnished copies of c. Reconciliation after judgment granting p etition but before the issuance of the decree: spouses express in their manifestation whether or not to revive the former property regime or choose a new regime. court immediately issue decree of Reconciliation setting aside proceeding and specifying the property regime of spouses d. Reconciled after the issuance of the decree: court, upon motion, issue decree of reconciliation declaring decree as set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime. e. In (b), (c), and (d), if choose to adopt different property regime, the spouses shall comply with Sec. 24 of the Rule f. Decree of reconciliation: recorded in Civil Registries where marriage and decree of legal separation had been registered Case Ong Eng Kiam a.k.a. William Ong v. Lucita Ong G.R. No. 153206, Oct. 23, 2006 Lucita Ong filed a complaint for legal separation before the RTC, alleging that she suffered physical violence, threats, intimidation, and grossly abusive conduct. The RTC and CA decreed the legal separation. William claims that Lucita is guilty of abandonment and should, therefore, be denied legal separation following Art. 56(1). HELD: The claim of William as regards Lucitas abandonment is without merit. The abandonment referred to by the Family Code is abandonment without justifiable cause for more than one year. As it was established that Lucita left William due to his abusive conduct, such

Pre-trial set not earlier than 6 months from filing of the petition for possibility of reconciliation (COOLING OFF PERIOD)Exception: There is no cooling-off period if the grounds alleged are those under RA9262 (Violence Women &Children) Against

RA 9262: Anti-Violence Against Women and Their Children Act of 2004 Sec. 19. Legal Separation Cases In cases of legal separation, where violence as specified in this Act is alleged, Art. 58 of the Family Code shall not apply. The court shall proceed in the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act. Decree of Reconciliation: a. If the spouses had reconciled: joint manifestation under oath, duly signed by both, may be filed in the same proceeding for legal separation. b. Reconciliation while proceeding is pending: court shall immediately order termination of proceeding.

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does not constitute abandonment contemplated by the said provision. TITLE IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

TITLE III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

CHAPTER I. GENERAL PROVISIONS Rules Governing Property Relations Between Spouses (1) Marriage settlements executed before the marriage (2) Provisions of the Family Code (3) Local customs (ART 74, FC)

Obligations 1. Live together 2. Observe mutual fidelity love, respect and

Different Property Regimes 3. Render mutual help and support 4. Management of the household 5. Fix the family domicile 6. Joint responsibility for the support of the family Profession General Rule: Either spouse may exercise any legitimate profession/business without the consent of the other Exception: The other spouse may object on valid, serious and moral grounds. In case of disagreement, the court shall decide whether a. The objection is proper AND b. Benefit has accrued to the famil y before and after the objection. If benefit accrued to the family before the objection, the resulting obligation shall been forced against the separate property of the spouse who has not obtained consent If benefit accrued to the family after the objection has been made, the resulting obligation shall be enforced against the community property (1) Absolute Community Property (ACP) (2) Conjugal Partnership of Gains (CPG) (3) Absolute Separation of Property (ASOP) (4) Any other regime within the limits of the Family Code (ART 75, FC) What is a marriage settlement? It is a CONTRACT entered into by future spouses fixing the matrimonial property regime that should govern during the existence of the marriage. (Paras, 2008, p 515) It is a contract entered into by spouses about to be married for the purpose of fixing the terms and conditions of their property relations with regard to their present and future property. (Pineda, 2008 Edition) Marriage Settlement is also known as ANTE NUPTIAL AGREMENTOR MATRIMONIAL CONTRACT. Default Regime In the absence of marriage settlement, or when the regime agreed upon is void, the

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system of absolute govern (ART 75, FC) community shall Subject of Marriage Settlements Parties may enter into stipulations relating only to their PROPERTY RELATIONS during the marriage, within the limits provided by the Family Code (ART 1, FC). However, the nature, consequences and effects of marriage cannot be the subject of stipulation (Rabuya, p 398). 2. Signed by the parties 3. Executed before the celebration of the marriage 4. Confined to terms and conditions of property relations only 5. Not containing provisions contrary to Law, Morals, Good Customs, Public Policy and Public Order (ART 6, NCC), or against the dignity of either spouse (Paras, p 517) Not Applicable 1. When both are aliens, even if married in the Phils. 2. As to extrinsic validity of contracts Can the modified? marriage settlement be 3. Contrary stipulation Additional Requirements FACTUAL SITUATION ADDITIONAL REQUIREMENT

YES. Any modification, however, should be made BEFORE the celebration of the marriage subject to certain exceptions. Modifications ceremony after the marriage

1. REVIVAL of former property regime between reconciling spouses after a decree of legal separation has been issued and any forfeiture executed (ARTS 66 & 67, FC) 2. PETITION for receivership, for judicial separation of property, or for authority to be the sole administrator of absolute community property/conjugal partnership property in case of abandonment or failure to comply with marital obligations by one spouse (ARTS 101 & 128, FC) 3. Judicial SEPARATION of property for sufficient cause (ART 135, FC) 4. VOLUNTARY dissolution of absolute community property/conjugal partnership property through a verified petition for separation of property (ART 136, FC) Requisites Settlement 1. In writing of a Valid Marriage

If one or both The ff. must be made parties are: party/parties to the marriage settlement 18-21 years old Father, mother, surviving parent or guardian, or persons having charge of party/ies concerned

Sentenced with Guardian appointed civil interdiction by a competent court Disabled Guardian appointed by a competent court

Necessity of Registration Registration of marriage settlements is NECESSARY to bind third persons. It should be made in: 1. Local civil registry where marriage contract was recorded; and 2. Proper registries of property.

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If not registered, marriage settlement will NOT prejudice third persons. Absolute Community of Property (ACP) will apply. (UP Reviewer, 2010) GEN RULE: Everything stipulated in marriage settlements or contracts, in consideration of the marriage, shall be rendered VOID. XPN: Stipulations NOT DEPENDENT upon or is not made in consideration of the marriage shall subsist.

May a marriage modified?

settlement

be

YES. Any modification to be valid must: 1. Comply with the requisites of a valid marriage settlement; and 2. Must be judicially approved. (UST Golden Notes, 2011) What law governs property relations between spouses? As a general rule, Philippine law shall govern property relations between spouses regardless of celebration of the marriage or residence of said spouses. However, Philippine law will not apply when: (1) A contrary stipulation was agreed upon in the marriage settlement; (2) In the following cases, in which lex rei sitae applies: (a) Where both spouses are aliens (b) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located (c) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (ART 80, FC) Effect of Non-Celebration of Marriage (ART 81, FC) CHAPTER II. DONATIONS BY REASON OF MARRIAGE A. DONATION PROPTER NUPTIAS Donations propter nuptias are those made prior to the celebration of the marriage, in consideration of the same, and in favor of one or both future spouses. (ART 82, FC)

B. Donations Excluded 1. Ordinary wedding gifts given AFTER celebration of marriage; 2. Donations in favor of future spouses before the marriage but NOT IN CONSIDERATION thereof; or 3. Donations made IN FAVOR of persons OTHER THAN the future spouses, even If founded on the intended marriage. C. Requisites of Donation by Reason of Marriage 1. Made prior to the celebration of the marriage 2. Made in consideration of the intended marriage 3. Made in favor of one or both future spouses (ART 82, FC) 4. Not contrary to Law, Morals, Good Customs, Public Policy and Public Order (ART 6, NCC) D. Additional Requisite if between future spouses and property regime agreed upon is other than ACP 5. Donation must NOT be MORE THAN ONE-FIFTH (1/5) of their present property. (ART 84, FC)

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E. Who may donate 1. Spouses to each other; 2. Parents of either spouse; or 3. Third persons. F. Who may be donee(s)? Only the either or both of the future spouses may be donee(s). G. Rules Governing Donation by Reason of Marriage 1. Family Code provisions (ARTS 43, 44, 50, & 82-87) 2. Ordinary Donation provisions (Title III of Book III of the Civil Code) 3. For Donations of FUTURE PROPERTY, provisions on testamentary succession and formalities of wills (ART 84, para 2) H. Requisites of Donations Propter Nuptias between Spouses under Regime Other than ACP 1. Valid marriage settlement stipulating a property regime other than ACP 2. Donation is not more than 1/5 of his/her present property (ART 84, FC) 3. Acceptance by the other would-be spouse (ART 745, NCC) 4. It must comply with the other requisites establishes in Donation (Sta. Maria, 2010, p. 429) I. Donation Propter Nuptias in Another Instrument Under the same facts, if donation is made in a separate deed, it would appear that the not more than onefifth limitation will not apply. (ART 84, FC) Instead, the general rules on donation would govern. (Sta. Maria, p 430) REASON: Subtle hazards and undue influence attendant in the negotiations of a marriage settlement are generally absent in a donation unilaterally done University of the Cordilleras College of Law in a separate deed free interference. (Sta. Maria, p 431) from

J. Donation Propter Nuptias of Property with Encumbrance VALID. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (ART 85, FC)

K. When may revocation of donation by reason of marriage be done? (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (ART 86, FC) L. Revocation in ART 86 vs Revocation in ART 43, 44 & 50 In cases of VOID marriages under ART 40, ART 50 and not ART 86 should govern. In cases of VOID marriages under ART 44, ART 44 and not ART 86 should govern. In cases on VOIDABLE marriages under ART 45, ART

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50 and not ART 86 should govern. ART 50 applies the effects of ARTS 43 and 44 that any donation propter nuptias shall be revoked BY OPERATION OF LAW. REASON: ART 40 talks of an exceptional void marriage, it should be dealt with exceptionally. ART 44 expressly states revocation by operation of law so as to punish the spouses in bad faith. In all other cases of void marriage, ART 86 applies. ART 50 on voidable marriages is irreconcilable to ART 86(3). ART 50 should be applied for it is more in line with the policy of the State to protect marriage and punish those who entered into marriage in bad faith. (Atty. Castro, Lecture) M. Acts of Ingratitude (ART 765, NCC) (1) If the donee should commit some offense against the person, the honor , or the property of the donor, or of his wife, or children under his parental authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the donee himself, his wife or children under his authority; (3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. N. Void Donations by Spouses GEN RULE: Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void. XPN: Moderate gifts on occasion of family rejoicing. (ART 87, FC) The foregoing rules also apply to common law spouses. O. Rationale for the Rules To protect unsecured creditors from being defrauded To prevent the stronger spouse from imposing upon the weaker spouse transfer of the latters property to the former To prevent indirect modification of the marriage settlement CHAPTER III. SYSTEM OF ABSOLUTE COMMUNITY SECTION 1. GENERAL PROVISIONS A. Application of ACP (1) When no MS was validly made (2) When property regime chosen in the MS is void (3) When spouses expressly adopt ACP in the MS NOTE: ACP is the default regime after the effectivity of the Family Code.

B. Commencement of ACP ACP shall commence at the precise moment that the marriage is celebrated. Any stipulation, express of implied, for the commencement at any other time shall be void. (ART 88, FC) NOTE: Same rule applies to CPG (ART 107, FC) C. Waiver of Rights GEN RULE: NOT ALLOWED XPN:

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(a) In judicial separation of property (b) In legal separation (c) In cases when marriage is dissolved (d) In cases when marriage is annulled When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (ART 89, FC) (1) Property acquired during the marriage by gratuitous titled and its fruits XPN: If transformed, or grantor provides that it shall form part of the ACP (2) Property for personal and exclusive use of either spouse XPN: Jewelries (3) Property acquired before the marriage by one with legitimate descendants by former marriage, and its fruits and income (4) Those excluded, if any, in the MS C. Presumption on Properties Acquired During the Marriage GEN RULE: Properties acquired during the marriage belong to the ACP XPN: Unless proved to be one of the exclusions from the ACP NOTE: Same rule applies to CPG (ART 107, FC) NOTE: Same rule applies to CPG (ART 116, FC) SECTION 3. CHARGES AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY

D. Laws Governing Absolute Community of Property (1) Family Code provisions (2) Civil Code provisions on Coownership (ART 90, FC) SECTION 2. WHAT CONSTITUTE COMMUNITY PROPERTY A. Property Included in the ACP (1) All property owned by spouses: (a) At the time of the celebration of the marriage, or (b) Acquired thereafter (ART 91, FC); (2) Property acquired during the marriage by gratuitous title, if expressly made to form part of the ACP by the grantor (ART 92[1], FC); (3) Jewelries (ART 92[2], FC); and (4) Winnings in gambling or other games of chance (ART 95, FC). B. Property Excluded in the ACP University of the Cordilleras College of Law

A. What are charges upon and obligations of the CPG? (D2-E2-T2VASA) (1) Support of spouses, their common children, and legitimate children of either spouse; (2) Debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the CPG, or by both spouses, or by one with the others consent; (3) Debts and obligations contracted by one without the others consent to the extent that the family has been beenfited; (4) Taxes, liens, charges and expenses upon the conjugal property;

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(5) Taxes and expenses for mere preservation of separate property of either spouse; (6) Expenses for professional, vocational or self-improvement course of either spouse; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) Value of what is donated or promised to common legitimate children for professional, vocational or self-improvement course; (9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; (10) Expenses for litigation between spouses, unless suit is groundless. (ART 94, FC) Same charges and obligations can be charged to CPG, EXCEPT (9). (ART 121, FC) B. Insufficiency of Community Property GEN RULE: Spouses shall be SOLIDARILY LIABLE for the unpaid balance with their separate property. (Same rule in CPG, see ART 121, para 2, FC) XPN: The following shall be borne by the exclusive property of the spouse who incurred the same: (a) Ante-nuptial debts of either spouse other than those falling in ART 94(7); University of the Cordilleras College of Law (b) Support of illegitimate children of either spouse; (c) Liabilities incurred by either spouse by reason of a crime or quasi-delict. Any payment made by the community property shall be considered as ADVANCES to be deducted by debtorspouse upon liquidation of the community. C. To whom shall loss in gambling be charged? Any loss during the marriage in any game of chance or gambling, whether permitted by law or not, shall be borne by the LOSER. (ART 95, FC) D. To which shall pertain the winnings in gambling? Any winnings from any game of chance or gambling, shall form part of the community property. (ART 95, FC) NOTE: Same rules apply in CPG. (ART 123, FC) SECTION 4. OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF COMMUNITY PROPERTY A. To whom belongs administration and enjoyment of Community Property? GEN RULE: To the SPOUSES JOINTLY. (ART 96, FC) XPN: In case one spouse is incapacitated or otherwise unable to participate in the administration of common properties, in which case CAPACITATED OR ABLE SPOUSE to assume SOLE powers of administration. BUT such powers INCLUDE: (ADE) (a) Alienation (b) Disposition (c) Encumbrance DO NOT

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of the community without: property XPN: Moderate donations for charity or on occasion of family rejoicing or distress. (ART 98, FC) Similar rules apply to CPG (ART 125, FC) F. Sale between Spouses GEN RULE: Spouses may not sell property to each other. Any such sale shall be VOID. XPN: (1) When separation of property was agreed upon in the marriage settlement; (2) When there has been a judicial separation of property. (ART 1490, NCC). NOTE: Proscription against such sale extends to common law relationships for being contrary to morals and public policy. (Ching v CA, GR No. 165879, 10 November 2006) (1) Authority of the court, or (2) Written authority of the other spouse. Same rule applies to CPG (ART 124, FC) B. When consent or authority required The consent or authority required must be obtained BEFORE the ADE. Otherwise, such ADE would be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and of the third person concerned which may be perfected upon acceptance of the other spouse or authority of the court before said offer is withdrawn. (ART 96, FC) Same rule applies to CPG (ART 124, FC) C. In case of disagreement, The husbands decision shall prevail. But this is without prejudice to recourse to the court by the wife for proper remedy Prescriptive Period for Recourse: 5 years from date of the contract implementing such decision. (ART 96, FC) Same rule applies to CPG (ART 124, FC) D. Disposition by will Either spouse may dispose by will of his or her interest in the community property. E. Disposition by Donation GEN RULE: Either spouse cannot donate any community property without the consent of the other. University of the Cordilleras College of Law

SECTION 5. DISSOLUTION OF THE ABSOLUTE COMMUNITY REGIME Rules under this Section are similar to those applicable to CPG under SECTION 6, CHAPTER 4. A. When absolute community terminates (1) Upon death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; (4) In case of judicial separation of property during the marriage; or (5) Upon the filing of affidavit of reappearance of absent spouse (ART 42, para 2, FC) (ART 99; ART 126)

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B. Effect of Separation in Fact (1) Does not affect the regime of ACP or CPG; (2) Spouse who left the conjugal home or refused to live therein, without just cause, shall not be entitled to support; (3) When consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (4) Spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the absent spouse and use fruits or proceeds thereof to satisfy the latters share for the support of the family, in case the community property is insufficient. (ART 100; ART 127) C. Effect of Abandonment or Failure to Comply with Obligations to the Family by One Spouse The aggrieved spouse may petition the court for any of the following: (1) Receivership; (2) Judicial separation of property; or (3) Authority to be the sole administrator of the absolute community. (ART 101, para 1; ART 128, para 1) D. What Obligations to the Family Include (1) Marital obligations (2) Parental obligations (3) Property relations (Ibid., para 2; Ibid., para 2) E. When is there abandonment? There is abandonment when a spouse leaves the conjugal dwelling without the intention of returning. F. Prima Facie Presumption Without any Intention Returning of of The spouse who has left the conjugal dwelling for a period of THREE months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (Ibid., para 3; Ibid., para 3) SECTION 6. LIQUIDATION OF ABSOLUTE COMMUNITY ASSETS AND LIABILITIES

A. Procedure for Liquidation (1) INVENTORY separate list of all properties of the absolute community and the exclusive properties of each spouse. NOTE: ACP should also include receivable from each spouse for: (a) Amounts advanced for personal debts of each spouse; (b) Support pendente lite of each spouse; and (2) PAYING OUT of debts and obligations First, from community property assets. In case of insufficiency, spouses shall be solidarily liable for the unpaid balance with their separate property in accordance with ART 94(2). (3) DELIVERY of Exclusive Properties. Remaining

(4) DIVISION of Net Remainder of ACP Properties and FORFEITURE of shares, if any. GEN RULE: Division shall be EQUAL XPN: (1) When a different proportion or division was STIPULATED in the marriage settlements; or (2) When there has been a VOLUNTARY WAIVER of such share.

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(5) Delivery of PRESUMPTIVE legitimes of common children. (6) ADJUDICATION dwelling. of conjugal E. Property Regime in case of Subsequent Marriage in (C) Should the surviving spouse subsequently marries without compliance in (C), a MANDATORY regime of complete separation of property shall govern property relations of the subsequent marriage. (ART 103, FC) It would render any disposition or encumbrance involving community property of the terminated marriage VOID. (ART 103, FC)

GEN RULE: To the spouse with whom majority of the common children choose to remain. --- For this purpose, GEN RULE: Children BELOW the age of SEVEN years are deemed to have chosen the mother. XPN: When the court decides otherwise. XPN: (1) Unless otherwise agreed upon by the parties. (3) In case there is no such majority and the court decides otherwise. (4) B. Meaning of Net Profits For purposes of forfeiture in accordance with ARTS 43(2) and 63(2), NET PROFITS shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. (ART 102[4], FC) C. Applicable Procedure in case of the Marriage is Terminated by Death Community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If there is no such judicial proceeding, surviving spouse shall, judicially or extrajudicially, liquidate the community property within 6 months from death of the other spouse. (ART 103, FC) D. FAILURE to Liquidate within the Period in (C)

NOTE: Same rules in C, D and E apply to CPG (ART 128, FC) F. Simultaneous Liquidation of Community Properties of Two or More Marriages by the Same Person before Effectivity of Family Code Respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each. (ART 103, FC) NOTE: Same rule applies for CPG (ART 130, FC)

CHAPTER 4. CONJUGAL PARTNERHSIP OF GAINS SECTION 1. GENERAL PROVISIONS

A. What is the regime of CPG? (ART 109, FC)

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It is the property regime formed by husband and wife by placing in a common fund: (1) Proceeds, products, fruits and incomes of their separate properties; and (2) Those acquired by either or both spoused through their efforts or by chance; AND upon dissolution of the marriage or of the partnership, net gains or benefits obtained shall be divided equally between them, unless otherwise agreed in the marriage settlements. (ART 106, FC) B. In what instances will the provisions on CPG apply? (1) In cases the future spouses agree in the MS that the regime of conjugal partnership shall govern (suppletory application); (2) In cases of conjugal partnerships already established before effectivity of the Family Code, without prejudice to vested rights already acquired. (ART 105, FC) C. Rules governing Conjugal Partnership (1) Marriage Settlement; (2) Family Code, in a suppletory manner ; (3) Rules on Contract of Partnership, insofar as not in conflict with (2) or (1). (ART 108, FC) SECTION 2. EXCLUSIVE PROPERTY OF EACH SPOUSE to reimbursement of paid installments as useful expenditure. (Lorenzo v Nicolas, GR No. L4085, 30 July 1952; also read ART 119, FC) (2) Those acquired during the marriage by gratuitous title, subject to the following rules: (a) Property donated or left by will to spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her exclusive property; in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (ART 113, FC) (b) If donations are onerous, the amount of charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains. (ART 114, FC) (c) Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by rules on gratuitous or onerous acquisitions as may be proper in each case. (ART 115, FC) (3) Those acquired by right of redemption, barter or exchange with exclusive property of either spouse. (4) Those purchased with exclusive money of either spouse. NOTE: The controlling factor is the SOURCE of the money used or the money promised to be paid (Rivera v Bartolome, CA, 40 OG 2090) B. Rights of Each Spouse in their Exclusive Property (1) Retain the ownership, possession, administration and enjoyment of their exclusive property. (ART 110, para 1, FC)

A. What are exclusive properties of spouses? (1) Those brought into the marriage as his or her own. NOTE: Property purchased before the marriage but fully paid during the marriage remains a separate property of the spouse concerned. But conjugal partnership is entitled University of the Cordilleras College of Law

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(2) During the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located. (ART 110, para 2, FC) NOTE: Alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over the owner-spouse. (ART 112, FC) (3) Mortgage, encumber, alienate or otherwise dispose of his or her exclusive property without the consent of the other spouse, and appear alone in court to litigate with regard the same. (ART 111, FC) SECTION 3. CONJUGAL PARTNERSHIP PROPERTY (1) If full ownership was vested before the marriage it shall belong to the buyer (2) If full ownership was vested during the marriage it shall belong to the conjugal partnership (ART 118, FC) NOTE: In either case, any amount advanced shall be REIMBURSED by the owner upon liquidation of the partnership

C. Abe asserts that a parcel of land, which was purchased at auction, belonged to the conjugal partnership of his and his late wife. In the title, his name appeared to be merely descriptive of the civil status of the registered owner, his late wife. The purchase took place prior to the advent of the Family Code. Is the property conjugal or paraphernal property of his late wife? CONJUGAL. In this case the provisions of the Civil Code would apply since the purchase took place before the FC took effect. Under Art. 160 of the NCC, all property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or the wife (similar to ART . In this case, there was no proof that the property had been acquired exclusively by Yamane's late wife. The mere registration of a property in the name of one spouse does not destroy its conjugal nature in the absence of strong, clear and convincing evidence that it was acquired using the exclusive funds of said spouse. (Spouses Go v. Yamane, G.R. No. 160762, May 3, 2006)

A. What are deemed conjugal partnership property? (1) Those acquired during the marriage with conjugal funds; (2) Those obtained from labor, industry, work or profession of either or both spouse; (3) Fruits of conjugal property due or received during the marriage and net fruits of separate property; (4) Share of either spouse in hidden treasure; (5) Those acquired through occupation such as hunting or fishing; (6) Livestock in excess of each kind brought to the marriage; (7) Those acquired by chance such as winning in gamblings and bettings. (ART 117, FC) B. Rules if property is bought on instalments paid partly from exclusive funds and partly from conjugal funds University of the Cordilleras College of Law

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D. Rule when an amount or credit payable within a period of time belonging to one of the spouses is collected during the marriage It shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (ART 119, FC) SECTION 4. CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP A. What are NOT chargeable upon CPG? (1) Personal debts contracted by either spouse before or during the marriage XPN: When such have redounded to the benefit of the family (2) Fines and indemnities imposed upon either spouse (3) Support of illegitimate children of either spouse NOTE, however, that payment of the foregoing may be enforced against the CPG AFTER its responsibilities (see under Charges upon ACP) has already been covered, and ONLY if: (a) Debtor-spouse has no exclusive property, or (b) Debtor-spouses exclusive property is insufficient. In case of payment, such debtorspouse shall be charged with the amount paid at the time of liquidation of the CPG. (ART 122, FC) (1) Inventory of all properties separately listed as exclusive or conjugal; (2) Restitution of advances made in favor of either spouse; (3) Reimbursement for use of exclusive funds; (4) Payment of Debts and obligations (5) Delivery of exclusive properties; (6) Payment of losses and deterioration of movables belonging to either spouse; (7) Division of net conjugal partnership remainder; (8) Delivery of common childrens presumptive legitimes; (9) Adjudication of conjugal dwelling and custody of children. (ART 129, FC) B. Application of the Rules of Court The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership and other matters not expressly determined in Chapter 4, Section 7. (ART 132, FC) C. Support during Liquidation Support of spouses and their common shildren DURING the liquidation of CPG and until delivery of what pertains to them shall be taken from the common mass of property.

BUT, from this mass shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (ART 133, FC)

SECTION 7. LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES A. Procedure (R2-D4-IPA) University of the Cordilleras College of Law

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GROUNDS (ART 86)

PRESCRIPTION PERIOD RECKONING POINT Time the marriage was supposed to be solemnized (ART 1149, NCC)

1. Marriage is not celebrated. XPN: Those automatically rendered void 5 years by law.

2. Marriage has GROUNDS been judicially a. Subsequent declared void. marriage without securing a judicial declaration of Revoked by operation of law nullity of prior marriage (ART 40) b. Marriage where both spouses are in bad faith (ART 44) Finality of judicial c. Any other ground 5 years declaration of nullity (if action is to recover property) 3. Marriage took place without consent of 5 years parents, when required by law. 4. Marriage is annulled and donee acted in Revoked by operation of law bad faith, (ART 50, FC) 5. Upon legal separation and donee was 5 years the guilty spouse. 6. Donation was subject condition and the latter to resolutory 5 years Finality of decree of legal separation Time of happening of the resolutory condition Time of donors knowledge of the commission of any act of ingratitude

7. Donee committed any act of ingratitude.

5 years

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F. Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage, Arts. 134-142 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. Judicial separation of property may either be (1) voluntary or (2) for sufficient cause. Q: In what ways can there be judicial separation of property? A: Judicial separation of property may either be voluntary or for sufficient cause. Q: What are the sufficient causes for judicial separation of property? A: CJ LASA 1. Civil interdiction of the spouse of petitioner; 2. Judicial declaration of absence; 3. Loss of parental authority as decreed by the court; 4. Abandonment or failure to comply with family obligation; 5. Administrator spouse has abused authority; 6. Separation in fact for one year and reconciliation is highly improbable. A. Sufficient Causes and Grounds for Return to Previous Regime with it civil interdiction Spouse of petitioner is judicially declared an absentee Loss of parental authority of the spouse of petitioner has been decreed by the court Spouse of petitioner has abandoned the latter or failed to comply with his or her obligations to the family The spouse granted the power of administration in the marriage settlements has abused that power

(2)

(2) Reappearance of absentee spouse

(3)

(5) Restoration of parental authority to the spouse previously deprived of it (4) When the spouse who left the conjugal home without legal separation resumes common life with the other (3) When the court, being satisfied that the spouse granted the power of administration in will not again abuse that power, authorizes the resumption of said administration (6) Reconciliation and resumption of common life of the spouse who have separated in facts for at least 1 year

(4)

(5)

(6) At the time of the petition, the spouses have been separated in fact for at least 1 year and reconciliation is highly improbable.

Sufficient Causes for Judicial Separation of Property (Art. 135) (CALASA) (1) Spouse of petitioner has been sentenced to a penalty which carries

Grounds for Return to Previous Regime (Art. 141) (1) Termination of the civil interdiction

(7) When after voluntary dissolution of the ACP or CPG has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the

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former property regime. No voluntary separation of property may thereafter be granted. B. 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) C. 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 of property must be filed in the appropriate registries (Art. 139) 4. rights previously acquired by creditors are not prejudiced (Art. 140) Q: What are the effects of judicial separation of property between spouses? A: 1. The absolute community or conjugal partnership is dissolved; 2. The liability of the spouses to creditors shall be solidary with their separate properties; 3. Mutual obligation to support each other continues; University of the Cordilleras College of Law XPN: When there is legal separation 4. Rights previously acquired by creditors are not prejudiced. D. 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. 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. G. Regime of Separation of Property, Arts. 143-146 1. When applicable A. In the marriage settlements Separation of Property refers to present or future property or both total or partial if partial, a property not considered separate is presumed to pertain to the ACP

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Effects(145) each spouse shall i. own , dispose, posses, administer separate estate w/o consent of the other ii. own earnings profession, business & industry iii. own fruits natural, industrial or civil from separate properties Liability for Family expenses & creditors i. family expenses: both spouses in proportion to income, if insufficient, based on current market value of separate properties ii. creditors for family expenses: solidary Q: What governs the separation of property? regime of 3. Administration A. By the owner spouse (Art. 145) B. By the other spouse (Art. 142) Transfer of administration of exclusive properties between spouses 1. one spouse becomes the guardian of the other 2. one spouse is judicially declared an absentee 3. one spouse is given penalty of civil interdiction 4. one spouse become a fugitive Q: What are the rights of the spouses under the regime of separation of property? A: 1. Each spouse shall administer, dispose of, own, possess, and enjoy his or her own separate property, without need of the consent of the other. 2. Each spouse shall own all earnings from his or her profession, business and industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. 4. Family expenses (Art. 146) Both spouses in proportion to their income, if income is insufficient, it shall be based on the current market value of the separate properties. As to creditors, liability is solidary Q: What are the liabilities for family expenses of the spouses under the regime of separation of property? A: GR: Both spouses shall bear the family expenses in proportion to their income. B. Mandatory under Arts. 103 &130 C. Default property regime when there is reconciliation between spouses after judicial separation of property. University of the Cordilleras College of Law XPN: In case of insufficiency or default thereof, to the current market value of their separate properties. Spouses shall be solidarily liable to creditors for family expenses.

A: 1. Marriage settlement 2. Family Code in suppletory character. Q: What are the kinds of separation of property? A: 1. As to extent: a. Total b. Partial In this case, the property not agreed upon as separate shall pertain to the absolute community. As to kinds of property: a. Present property b. Future property c. Both present and future property

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5. Conveyances between the spouses Allowed under Art. 1490 of the New Civil Code. H. Property Regime of Unions Without Marriage, Arts. 147-148 (asked in 79, 87, 98, 00 and 09 bar exams) Art. 147 When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have Art. 148 In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in Art. 147 contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Art. 148 bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

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Art.147 1. man and woman 2. living together as husband and wife 3. with capacity to marry (Art.5 without any legal impediment) a. at least 18 years old b. not Art. 37 (incestuou s void marriage) c. not Art. 38 (void marriage by reason of public policy) d. not bigamous 4. other void marriages due to absence of formal requisite Properties acquired by both through work or industry Art.148 1. man and woman 2. living together as husband and wife 3. NOT capacitated to marry (Art.35(1) under 18 years old) 4. adulterous relationship (e.g. concubinag e) 5. bigamous/p olygamous marriage (Art.35(4)) 6. incestuous marriages under Art.37 7. Void marriages by reason of public policy under Art.38 Governed rules on ownership Owned in by common in co- proportion to respective contribution

Properties acquired while living together

Separately Owned in equal owned by shares parties

Forfe iture Remains exclusive Remains provided there exclusive is proof

Owned in equal shares since it is presumed to have been acquired through joint efforts if one party did not participate in acquisition, presumed to have contributed through care and maintenance of family and household When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited: 1. In favor of their common children 2. In case of default of or waiver by any or all of the common children or their descendants , each vacant share shall belong to the respective surviving

No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing

Applicability

Properties acquired through exclusive funds

If one party is validly married to another his/her share in the coowned properties will accrue to the ACP/CPG of his/her existing valid marriage If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147

Salaries and wages

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descendants 3. In the absence of such descendants , such share belongs to the innocentparty The same rules on forfeiture shall apply if both parties are in bad faith

Q: What is the property regime of unions without marriage? A: ART. 147 ART. 148 Applicability Presence of legal 1. No legal impediment: impediment 1. Adulterous to marry; relationships 2. Void 2. Bigamous/pol marriage on ygamous the ground marriages of 3. Incestuous psychologica void l incapacity. marriages under Art 37 4. Void marriages by reason of public policy (Art. 38)

Salaries & wages Owned in equal Separately owned by shares the parties. If any is married, his/her salary pertains to the CPG of the legitimate marriage. Property exclusively acquired Belongs to party Belongs to such upon proof of party acquisition through exclusive funds Property acquired by both through their work or industry Governed by Owned in common in rules of co proportion to their respective ownership contributions

Presumption Property No presumption of acquired while joint acquisition. living together Actual joint presumed contribution of obtained by their money, property or joint efforts, work industry shall be or industry and owned by them in owned by them common proportion. in equal shares. However, their If one party did contributions are not participate in presumed equal, in acquisition: the absence if proof presumed to to the contrary have contributed through care and maintenance of family and household (Buenaventura v. Buenaventura, G.R. No. 127358, Mar. 31, 2005) Forfeiture When only one If one of the parties is in GF, share is validly married to of party in BF in another, his/her the co share in the co ownership be ownership shall forfeited in favor accrue to the ACP or of: CPG existing in the 1. their marriage. com If the party who mon acted in BF is not childr validly married to en another or if both 2. innoc parties are in BF, ent such share be party forfeited in manner provided in last par in default of / of Art. 147 waiver by any/all common

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children, or by their descendants Note: For as long as it is proven that property was acquired during marriage, the presumption of conjugality will attach regardless in whose name the property is registered.

Proof of actual contribution Not necessary Necessary Cases 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; Valdez v QC-RTC (1996)- Marriages that have been declared void come under the rules of co-ownership under FC147/148 regardless of the reason. The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses. (Villanueva v. CA, G.R. No. 143286, Apr. 14, 2004) Under Art. 148, only the properties acquired by both parties through their actual joint contribution of money property or industry shall be owned by them in proportion to their respective contributions. (Agapay v. Palang, G.R. No. 116726, July 28, 1997) Q: What property relation governs in case marriage is declared null and void on the ground of psychological incapacity? University of the Cordilleras College of Law A: The property relation between the parties is governed by Art. 147 of the FC. Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co ownership. Q: Josefinas petition for nullity of her marriage to Eduardo was granted on the ground of existence of a prior marriage. She now asserts that since her marriage to Eduardo is void, their property relation is to be governed by the rules on co ownership under Art. 148 of the FC and not by Art. 144 of the Civil Code. In this regime, Eduardo has no share at all in the properties since no proof was adduced by him as regards his participation in their purchase. However, she did not prove that she acquired the properties using her personal funds and prior to her cohabitation with Eduardo. Is her contention correct? A: No. Art. 148 of the FC does not apply since, in said article, a co ownership may ensue in case of cohabitation where, for instance, one party has a pre existing valid marriage, provided that the parties prove their actual joint contribution of money, property or industry and only to the extent of their proportionate interest thereon. Petitioner failed to adduce

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preponderance of evidence that she contributed money, property or industry in the acquisition of the subject property and, hence, is not a co owner of the property. Since the subject property was acquired during the subsistence of the first marriage of Eduardo, under normal circumstances, the same should be presumed to be conjugal property of Eduardo and Josefina. (Francisco v. Master Iron Works Construction Corp.,G.R. No. 151967. Feb. 16, 2005) Q: Francisco and Ermindas marriage was nullified by the trial court due to psychological incapacity. He did not contest the decree of nullity but he assailed the division in the properties which was contained in the decree. He asserted that the properties were acquired through his efforts and that she had no contribution whatsoever in their acquisition and maintenance; hence, she should not be entitled to a joint share in their properties. Is Franciscos contention correct? A: No. The property relation between the parties is governed by Art. 147 of the FC. Under this article, there is a presumption that the properties which they acquired during their cohabitation were acquired through their joint efforts, work or industry. It further provides that a party who did not participate in the acquisition thereof shall be deemed to have contributed jointly in the acquisition thereof if his or her efforts consisted in the care and maintenance of the family and of the household. Note: In this case, Francisco himself testified that his wife was not a plain housewife but one who helped him in managing the family's business. Hence, Erminda is rightfully entitled to a joint share in their properties. (Gonzales v. Gonzales,G.R. No. 159521, Dec. 16, 2005) Q: Romeo and Juliet lived together as husband and wife without the benefit of marriage. During their cohabitation, they acquired a house. When they broke up, they executed an agreement where he agreed to leave the house provided Juliet will pay his entire share University of the Cordilleras College of Law in their properties. She failed to do so but she also ignored his demand for her to vacate. Romeo sued her for ejectment which the court granted. Was the court correct in granting the same? A: No. Under Art. 147 of the FC, the property is co owned by the parties. Under said provision, in the absence of proof to the contrary, any property acquired by common law spouses during their cohabitation is presumed to have been obtained thru their joint efforts and is owned by them in equal shares. Their property relationship in such a case is essentially governed by the rules on co ownership. Thus, Romeo cannot seek the ejectment of Juliet therefrom. As a co owner, she is as much entitled to enjoy its possession and ownership as him. (Abing v. CA,G.R. No. 146294, Jul. 31, 2006) Q: In 1973, Mauricio, a Filipino pensioner of the US Government, contracted a bigamous marriage with Erlinda, despite the fact that his first wife, Carol, was still living. In 1975, Mauricio and Erlinda jointly bought a parcel of rice land with the title being placed jointly in their names. Shortly thereafter, they purchased another property (a house and lot) which was placed in her name alone as the buyer. In 1981, Mauricio died and Carol promptly filed an action against Erlinda to recover both the rice land and the house and lot, claiming them to be conjugal property of the first marriage. Erlinda contends that she and the late Mauricio were co owners of the rice land, and with respect to the house and lot she claims she is the exclusive owner. Assuming she fails to prove that she had actually used her own money in either purchase, how do you decide the case? A: Carol's action to recover both the rice land and the house and lot is well founded. Both are conjugal property, in view of the failure of Erlinda, the wife in a bigamous marriage, to prove that her own money was used in the purchases made.

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The Supreme Court in a case applied Art. 148, Family Code, despite the fact that the husband's death took place prior to the effectivity of said law. However, even under Art. 144, Civil Code, the same conclusion would have been reached in view of the bigamous nature of the second marriage. (1998 Bar Question) Q: Luis and Rizza, both 26 years of age and single, live exclusively with each other as husband and wife without the benefit of marriage, Luis is gainfully employed, Rizza is not employed, stays at home, and takes charge of the household chores. After living together for a little over twenty years, Luis was able to save from his salary earnings during that period the amount of P200,000.00 presently deposited in a bank. A house and lot worth P500,000.00 was recently purchased for the same amount by the couple. Of the P500.000.00 used by the common law spouses to purchase the property, P200.000.00 had come from the sale of palay harvested from the hacienda owned by Luis and P300,000.00 from the rentals of a building belonging to Rizza. In fine, the sum of P500.000.00 had been part of the fruits received during the period of cohabitation from their separate property, a car worth P100.000.00 being used by the common law spouses, was donated just months ago to Rizza by her parents. Luis and Rizza now decide to terminate their cohabitation, and they ask you to give them your legal advice on how, under the law should the bank deposit of P200,000.00 the house and lot valued at P500.000.00 and the car worth P100.000.00 be allocated to them? A: Art. 147 of the Family Code provides in part that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both University of the Cordilleras College of Law of them through their work or industry shall be governed by the rules of co ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, worker industry, and shall be owned by them in equal shares. A party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Thus: 1. the wages and salaries of Luis in the amount of P200,000.00 shall be divided equally between Luis and Rizza. 2. the house and lot valued at P500.000.00 having been acquired by both of them through work or industry shall be divided between them in proportion to their respective contribution, in consonance with the rules on co ownership. Hence, Luis gets 2\5 while Rizza gets 3\5 of P500.000.00. 3. the car worth P100,000.00 shall be exclusively owned by Rizza, the same having been donated to her by her parents. (1997 Bar Question)

TITLE V. THE FAMILY

(1991 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. A. The Family as an Institution Aspects of Family Relations External Aspect Governed by law (Art 149)

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Only in this aspect can third persons and the public interest be concerned Internal Aspect Sacred to the family and inaccessible to law because law must respect the freedom of action of man E.g. spiritual relations, sexual relations of spouses, career or profession of spouses, profession and career of spouses, practices and customs of family Family relations include (Art 150): 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 (Art 151) No suit between members of the same family shall prosper. Exception: 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. The rules shall not apply to cases which may not be the subject of compromise. Exceptions to the general rule cannot be subject of compromise (Art 2035, CC; 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 University of the Cordilleras College of Law earnest efforts to compromise is no longer mandatory, as such inclusion of a stranger takes the case out of the ambit of FC 151. Q: What includes family relations? A: 1. Between husband and wife 2. Between parents and children 3. Among other ascendants and descendants 4. Among brothers and sisters, whether of the full or half blood. Q: What governs family relations? A: The law. Q: What are the requisites before a suit between members of the same family may prosper? A: 1. Earnest efforts toward a compromise have been made; 2. Such efforts failed; 3. The fact that earnest efforts toward a compromise have been made but the same have failed appears in the verified complaint or petition.. Q: In a complaint filed by Manolo against his brother, Rodolfo, it was alleged that the case "xxx passed through the Barangay and no settlement was forged between the plaintiffs and defendant as a result of which Certification to File Action was issued xxx". Rodolfo moved to dismiss for failure to comply with a condition precedent - that earnest efforts for an amicable settlement among the parties had been exerted but that none was reached. Decide. A: The case will prosper. There was in fact substantial compliance with Art. 151 of the Family Code since the spouses alleged in the complaint for ejectment that the case "xxx passed through the Barangay and no settlement was forged between the plaintiffs and defendant as a result of which Certification to File Action was issued by Barangay 97, Zone 8, District I,

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Tondo, Manila xxx". It bears stressing that under Sec. 412 (a) of R.A. 7160, no complaint involving any matter within the authority of the Lupon shall be instituted or filed directly in court for adjudication unless there has been a confrontation between the parties and no settlement was reached. Moreover, the phrase "members of the same family" found in Art. 151 of the Family Code must be construed in relation to Art. 150 thereof. (Martinez, et al. v. Martinez, G.R. No. 162084. Jun. 28, 2005) 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) from the time of its constitution and so long as any of its beneficiaries actually resides therein (Art 153): 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 the premises 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 (Art 158)

Note: A sister-in-law or a brother-in-law is not covered by these two provisions. Being an exception to the general rule, Art. 151 must be strictly construed. (Gayon v. Gayon, G.R. No. L-28394, Nov. 26, 1970) B. The Family Home Constituted by Jointly by the husband and the wife By an unmarried head of a family; Includes 1. Dwelling house where they and their family reside 2. The land on which it is situation (Art 152) Note: A person may constitute and be the beneficiary of only one family home (Art 161) The provisions of the Chapter on Family Home shall govern existing family residences insofar as said provisions are inapplicable (Art 162) 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

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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. In case of death of one or both spouses or the unmarried head of the family (ART. 159) - The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. - The heirs cannot partition the home unless the court finds compelling reasons therefor. Requisites for creditor to avail of the right under Article 160 (If a claim of a creditor is not among the exceptions mentioned in Art 155 and has reasonable grounds to believe that the family home is worth more than the amount fixed in Art 157) Requisites 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157 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 in Article 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

Cases 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. Patricio v. Dario III, (2006)- WON the grandson of the deceased is a beneficiary according to Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of the family. Arriola v. Arriola, (2008)- This case involves half brothers and a second wife; the family home includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is applied, the parties involved must wait. Q: What is meant by family home (FH) and how is it constituted? A: It is the dwelling house where the husband and wife and their family reside, and the land on which it is situated; it is constituted jointly by the husband and the wife or by an unmarried head of a family. Q: Can FH be constituted on a house constructed on a land belonging to another? A: No. Reason: The land where the house is erected is an integral part of the home and the home should be permanent in character. Note: A house constructed on rented land or by tolerance of the owner is not a permanent improvement on the land and the home will thus be temporary.

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Q: What are the exceptions to the rule that the FH is exempt from execution, forced sale or attachment? A: LTPM 1. Debts due to Laborers, mechanics, architects, builders, material men and others who rendered service or furnished materials for the constitution of the building; 2. Non-payment of Taxes; 3. Debts incurred Prior to constitution; 4. Debts secured by Mortgages on the family home. Note: Exemption is limited to the value allowed in the FC Q: A complaint for damages was filed against Hinahon in 1986 when she incurred liabilities as early as 1977, which action prospered in 1989. The house and lot that she owned was levied upon and sold at auction. She assails the levy and sale on the ground that it was her family home and therefore exempt from execution. Decide. A: It is not exempt. Under Art. 155 of the FC, the family home shall be exempt from execution, forced sale, or attachment except for, among other things, debts incurred prior to the constitution of the family home. In the case at bar, the house and lot was not constituted as a family home, whether judicially or extra-judicially, at the time that the debtor incurred her debts. Under prevailing jurisprudence, it is deemed constituted as such by operation of law only upon the effectivity of the Family Code on August 3, 1988, thus, the debts were incurred before the constitution of the family home. (GomezSalcedo, et al. v. Sta. Ines, et al.,G.R. No. 132537, Oct.14, 2005) Q: What are the guidelines in the constitution of the family home? A: 1-SAPOC 1. FH is deemed constituted from the time of Actual occupation as a family residence; 2. Only 1 FH may be constituted; University of the Cordilleras College of Law 3. Must be Owned by the person constituting it; 4. Must be Permanent; 5. Same rule applies to both valid and voidable marriages and even to common law spouses; (Arts. 147 and 148) 6. It continues despite death of one or both spouses or an unmarried head of the family for 10 years or as long as there is a minor beneficiary. Q: Who are the beneficiaries of a FH? A: 1. Husband and wife, or unmarried head of the family 2. Parents (may include parents-in-law), ascendants, brothers and sisters (legitimate or illegitimate) living in the FH and dependent on the head of the family for support Q: What are the requisites in the sale, alienation, donation, assignment or encumbrance of the FH? A: The following must give their written consent: 1. The person who constituted the FH; 2. The spouse of the person who constituted the FH; 3. Majority of the beneficiaries of legal age. Note: In case of conflict, court shall decide. Q: What are the requisites for the creditor to avail of the right to execute? A: 1. He must be a judgment creditor; 2. His claim must not be among those excepted under Art. 155; 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Art. 157. Q: What is the procedure in exercising the right to execute? A: 1. Creditor must file a motion in the court proceeding where he obtained a favorable judgment for a writ of execution against the FH;

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2. There will be a hearing on the motion where the creditor must prove that the actual value of the FH exceeds the maximum amount fixed by the Family Code, either at the time of its constitution or as a result of improvements introduced after its constitution; 3. If the creditor proves that the actual value exceeds the maximum amout, 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. The obligations enumerated in Art. 155 must be paid b. The judgment in favor of the creditor will be paid, plus all the costs of execution The excess, if any, shall be delivered to the judgment debtor (Art. 160, Family Code). Requisites for children conceived through artificial insemination to be considered legitimate: i. Artificial insemination made on wife ii. Sperm comes any of the following: Husband Donor husband and donor iii. 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. Classified as illegitimate children (asked in 80, 82, 83, 84, 90, 93, 99, 00, 07, 08 and 09 bar exams) General Rule: Those conceived and born outside of a valid marriage (Art. 165). Exceptions: 1. Children of marriages void under Art.36 (psychological incapacity). 2. 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) 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. Impugning Legitimacy Grounds for impugning legitimacy of a child are (Art. 166): 1. Physical impossibility for sexual intercourse within the first 120 days of the 300 days which

TITLE VI. PATERNITY AND FILIATION

Kinds of Filiation (Arts. 163, 164, 165) 1. Natural Legitimate Illegitimate 2. Legal Fiction (Adoption) A. Legitimate Children (Arts. 163-171) Classified as legitimate children (Art. 164) (asked in 79, 82, 84, 85, 99 and 03 bar exams) 1. Conceived or born during the marriage of parents 2. May be thru natural means or by artificial insemination a. 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. b. Artificial Insemination (Art. 164) University of the Cordilleras College of Law

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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. 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. Legitimacy with regard to the mother: 1. Child considered legitimate although (Art. 167): a. Mother may have declared against its legitimacy b. Mother may have been sentenced as an adulteress 2. If the marriage is terminated and the mother contracted another marriage within 300 days after the termination of the former marriage, the rules University of the Cordilleras College of Law shall govern in the absence of proof to the contrary (Art 168): a. If child born before 180 days after the solemnization of the subsequent marriage child is considered conceived during the former marriage, provided it be born within 300 days after termination of the former marriage b. If child born after 180 days following the celebration of the subsequent marriage child is considered conceived during such marriage, even if it be born within 300 days after the termination of the former marriage Note: The legitimacy or illegitimacy of a child born after 300 days following the termination of the marriage burden of proof upon whoever alleges the status (Art. 169) 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. 1. Within 1 year if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded. 2. Within 2 years if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded 3. Within 3 years if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted: 1. from the discovery or knowledge

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of the birth of the child, or 2. from the discovery or knowledge of its registration, 3. whichever is earlier. 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 (Art 171) If the husband died before the expiration of the period fixed for bringing his action a. If he should die after the filing of the complaint without having desisted b. If the child was born after the death of the husband. Sayson v. CA Legitimacy can only be attacked directly B. Proof of Filiation (Arts. 172-174) Rule 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 Action for Claiming Filiation (Arts. 173 and 175 (2)) a. The child can bring the action during his or her lifetime and even after the death of the parents. The University of the Cordilleras College of Law action does not prescribe as long as he lives. b. If the child is a minor, or is incapacitated or insane, his guardian can bring the action in his behalf. Rights of Legitimate Children (Art. 174) a. To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames b. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support c. To be entitled to the legitimate and other successional rights granted to them by the Civil Code C. Illegitimate Children (Art. 175 and Art. 176 as amended by RA 9255) General Rule: Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children (Art. 175) Action for Claiming Filiation (Art. 175): a. 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. b. During the lifetime of the alleged parent when the action is based on open and continuous possession of the status of a legitimate child and any other means allowed by the Rules of Court and special laws action 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

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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 Baas v. Heirs of Bibiano Baas, (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. De Jesus v. Syquia, (1933) By "open and continuous possession of the status of a legitimate child" is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child, like bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the child's support and education, and giving the child the reputation of being a child of his parents. Agustin v. CA, (2005) DNA evidence can be used as University of the Cordilleras College of Law proof of paternity. De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing, is in itself a consummated act of acknowledgement of the child, and no further court action is required. 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: o How the samples were collected, o How they were handled, o The possibility of contamination of the samples, o The procedure followed in analyzing the samples, o Whether the proper standards and procedures were followed in conducting the tests, o 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. Rights of Illegitimate Child (Art 176): a. Must use the surname and be under the parental authority of the mother b. However, may use the surname of their father if - Their filiation has been expressly recognized by the father through the record of

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birth appearing in the civil register. - There is an admission in a public document or private handwritten instrument made by the father. - Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime (RA 9255) c. Shall be entitled to support in conformity with the Family Code d. Legitime shall consist of one-half of the legitimes of a legitimate child. Except for such modification, all other provisions of the Civil Code governing successional rights shall remain in force D. Legitimated Children (Art. 177-182) "Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate. Requisites for legitimation 1. The child was conceived and born outside of wedlock (Art 177) 2. 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 childs conception may be legitimated. Procedure: Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (Art 178) 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. (SEMPIODIY) Characteristics University of the Cordilleras College of Law 1. Shall enjoy same rights as legitimate children (Art 179) 2. Effects of legitimation shall retroact to the time of the childs birth (Art 180) 3. Legitimation of children who died before the celebration of the marriage shall benefit their descendants (Art 181) Impugning legitimation (Art 182) 1. Only by those who are prejudiced in their rights 2. Within five years from the time their cause of action accrues

Q: Rosanna, as surviving spouse, filed a claim for death benefits with the SSS upon the death of her husband, Pablo. She indicated in her claim that the decedent is also survived by their minor child, Jeylynn, who was born in 1991. The SSS granted her claim but this was withdrawn after investigation, when a sister of the decedent informed the system that Pablo could not have sired a child during his lifetime because he was infertile. However in Jeylynns birth certificate, Pablo affixed his signature and he did not impugn Jeylynns legitimacy during his lifetime. Was the SSS correct in withdrawing the death benefits?

A: No. Under Art. 164 of the FC, children conceived or born during the marriage of the parents are legitimate. This presumption becomes conclusive in the absence of proof that there is physical impossibility of access under Art. 166. Further, upon the expiration of the periods for impugning legitimacy under Art. 170, and in the proper cases under Art. 171, of the FC, the action to impugn would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable. In this case, there is no showing that Pablo, who has the right to impugn the legitimacy of Jeylynn, challenged her status during his lifetime. Furthermore, there is adequate evidence to show that the child was in fact his child, and this is the birth certificate where he

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affixed his signature. (SSS v. Aguas, et al.,G.R. No. 165546, Feb. 27, 2006) of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. The rule is, any authentic writing is treated not just as a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. (Eceta v. Eceta,G.R. No. 157037, May 20, 2004)

Q: In an action for partition of estate, the trial court dismissed it on the ground that the respondent, on the basis of her birth certificate, was in fact the illegitimate child of the deceased and therefore the latter's sole heir, to the exclusion of petitioners. However, trial court failed to see that in said birth certificate, she was listed therein as adopted. Was the trial court correct in dismissing the action for partition?

A: No. The trial court erred in relying upon the said birth certificate in pronouncing the filiation of the respondent. However, since she was listed therein as adopted, she should therefore have presented evidence of her adoption in view of the contents of her birth certificate. In this case, there is no showing that she undertook such. It is well-settled that a record of birth is merely prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. (Rivera v. Heirs of Romualdo Villanueva, GR No. 141501, July 21, 2006) Q: In a complaint for partition and accounting with damages, Ma. Theresa alleged that she is the illegitimate daughter of Vicente, and therefore entitled to a share in the estate left behind by the latter. As proof, she presented her birth certificate which Vicente himself signed thereby acknowledging that she is his daughter. Is the proof presented by Ma. Theresa sufficient to prove her claim that she is an illegitimate child of Vicente?

Q: Gerardo filed a complaint for bigamy against Ma. Theresa, alleging that she had a previous subsisting marriage when she married him. The trial court nullified their marriage and declared that the son, who was born during their marriage and was registered as their son, as illegitimate. What is the status of the child? A: The first marriage being found to be valid and subsisting, whereas that between Gerardo and Ma. Theresa was void and non-existent, the child should be regarded as a legitimate child out of the first marriage. This is so because the child's best interest should be the primordial consideration in this case. Q: Gerardo and Ma. Theresa, however, admitted that the child was their son. Will this affect the status of the child? A: No. The admission of the parties that the child was their son was in the nature of a compromise. The rule is that the status and filiation of a child cannot be compromised. Art. 164 of the FC is clear that a child who is conceived or born during the marriage of his parents is legitimate. (Concepcion v. CA,G.R. No. 123450. Aug. 31, 2005) Q: What is the effect of Ma. Theresas claim that the child is her illegitimate child with her second husband to the status of the child?

A: Yes. Citing the earlier case of De Jesus v. Estate of Juan Dizon, (366 SCRA 499), the Supreme Court held that the Ma. Theresa was able to establish that Vicente was in fact her father. The due recognition University of the Cordilleras College of Law

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A: None. This declaration an avowal by the mother that her child is illegitimate is the very declaration that is proscribed by Art. 167 of the Family Code. This proscription is in consonance with, among others, the intention of the law to lean towards the legitimacy of children. (Concepcion v. CA,G.R. No. 123450. Aug. 31, 2005) Q: In a petition for issuance of letters of administration, Cheri Bolatis alleged that she is the sole legitimate daughter of decedent, Ramon and Van Bolatis. Phoebe, the decedent's second wife, opposed the petition and questioned the legitimate filiation of Cheri to the decedent, asserting that Cheris birth certificate was not signed by Ramon and that she had not presented the marriage contract between her alleged parents which would have supported her claim. In said birth certificate, it was indicated that her birth was recorded as the legitimate child of Ramon and Van Bolatis, and contains as well the word "married" to reflect the union between the two. However, it was not signed by Ramon and Vanemon Bolatis. It was merely signed by the attending physician, who certified to having attended to the birth of a child. Does the presumption of legitimacy apply to Cherimon? A: No. Since the birth certificate was not signed by Cher's alleged parents but was merely signed by the attending physician, such a certificate, although a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution, which is, the fact of birth of a child. A birth certificate, in order to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses. There having been no convincing proof of respondent's supposed legitimate relations with respect to the decedent, the presumption of legitimacy under the law University of the Cordilleras College of Law did not therefore arise in her favor. (Angeles v. Angeles-Maglaya, G.R. No. 153798, Sept.2, 2005) Q: On the basis of the physical presentation of the plaintiff-minor before it and the fact that the alleged father had admitted having sexual intercourse with the child's mother, the trial court, in an action to prove filiation with support, held that the plaintiffminor is the child of the defendant with the plaintiff-minor's mother. Was the trial court correct in holding such?

A: No. In this age of genetic profiling and DNA analysis, the extremely subjective test of physical resemblance or similarity of features will not suffice asevidence to prove paternity and filiation before courts of law. This only shows the very high standard of proof that a child must present in order to establish filiation.

Note: The birth certificate that was presented by the plaintiff-minor appears to have been prepared without the knowledge or consent of the putative father. It is therefore not a competent piece of evidence on paternity. The local civil registrar in this case has no authority to record the paternity of an illegitimate child on the information of a third person. Similarly, a baptismal certificate, while considered a public document, can only serve as evidence of the administration of the sacrament on the date specified therein but not the veracity of the entries with respect to the child's paternity (Macadangdang v. CA, 100 SCRA 73). Thus, certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same (Jison v. CA, 350 Phil. 138). (Cabatania v. CA, G.R. No. 124814. Oct. 21, 2004) Q: Are children born of parents, who at the time of conception and birth, were minors may be legitimated?

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A: Yes. RA 9858 amended Art. 177 of the Family Code in allowing children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, to be legitimated. Q: Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started living together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. Was the marriage of Roderick and Faye valid? A: The marriage was void because there was no marriage license. Their marriage was not exempt from the requisite of a marriage license because Roderick and Faye have not been cohabiting for at least 5 continuous years before the celebration of their marriage. Their lovers trysts and brief visitations did not amount to cohabitation. Moreover, the Supreme Court held that for the marriage to be exempt from a license, there should be no impediment for them to marry each other during the entire 5 years of cohabitation. Roderick and Faye could not have cohabited for 5 years of cohabitation. Roderick and Faye could not have been cohabited for 5 continuous years without University of the Cordilleras College of Law impediment because Faye was then legally married to Brad. (2008 Bar Question) What is the filiation status of Laica? A: Having been born during the marriage of Faye and Brad, she is presumed to be the legitimate child of Faye and Brad, she is presumed to be the legitimate child of Faye and Brad. This presumption had become conclusive because the period of time to impugn her filiation had already prescribed.

Can Laica bring an action to impugn her own status on the ground that based on DNA results, Roderick is her biological father? A: No, she cannot impugn her own filiation. The law does not allow a child to impugn his or her own filiation. In the problem, Laicas legitimate filiation was accorded to her by operation of law which may be impugned only by Brad, or his heirs in the cases provided by law within the prescriptive period. Can Laica be legitimated by the marriage of her biological parents? A: No she cannot be legitimated by the marriage of her biological parents. In the first place she is not, under the law, the child of Roderick. In the second place, her biological parents could not have validly married each other at the time she was conceived and born simply because Faye was still married to Roderick at that time. Under Article 177 of the Family Code, only children conceived or born outside of wedlock of parents who, at the time of the conception of the child were not disqualified by any impediment to marry each other, may be legitimated. (2008 Bar Question)

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TITLE VII. ADOPTION

ADOPTION is a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. (Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03, 04, 05, 07, 08 bar exams) LEGITIMATION ADOPTION The law merely creates by fiction The law merely makes legal what a relation which did not in fact exists by nature exist Persons affected Procedure Who applies Effect Only natural children Extrajudicial acts of parents Only by both parents Generally applies to strangers Always by judicial decree Husband and wife adopt jointly with exceptions (RA8552)

Same status and rights with that of a legitimate child not only in Creates a rel. only between the relation to the legitimizing child and the adopting parents parents but also to other relatives A. RA 8552 Domestic Adoption per 1 year for Law professional, business, or emergency reasons are allowed) in RP prior to 1. Who can adopt (Sec. 7) the filing of application and maintains such Filipino Citizens residence until the decree a. Of legal age is entered b. In possession of full civil d. Has been certified by capacity and legal rights his/her diplomatic or c. Of good moral character consular office or any d. Has not been convicted appropriate government of any crime involving agency that he/she has moral turpitude the legal capacity to e. Emotionally and adopt in his/her country psychologically capable e. His/her government of caring for children allows the adoptee to f. At least sixteen (16) enter his/her country as years older than adoptee, his/her adoptee except when adopter is f. Has submitted all the biological parent of the necessary clearances adoptee or is the spouse and such certifications as of the adoptees parent may be required g. In a position to support and care for his/her **Items numbers c, d children in keeping with and e may be waived the means of the family under the following circumstances: Aliens a. Adopter is a former a. Possession of the same Filipino Citizen who as the qualifications for seeks to adopt a relative Filipinos within the 4th degree of b. His/her country has consanguinity or affinity diplomatic relations with the Philippines b. One who seeks to adopt c. Has been living the legitimate or continuously for 3 years illegitimate child of his/her (provided that absences Filipino spouse not exceeding 60 days University of the Cordilleras College of Law

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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 Guardians With respect to theirs ward after the termination of the guardianship and clearance of his/her accountabilities. c. An illegitimate child by a qualified adopter to improve the childs status to that of legitimacy d. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her child since minority e. A child whose previous adoption has been rescinded f. A child whose biological or adoptive parent(s) has died, provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s) Consent Necessary for Adoption (Sec. 9) 1. The prospective adoptee if 10 years or older 2. The prospective adoptees 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. Adopter Inquiry at DSWD

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 2. Who can be adopted (Sec. 8) a. Any person below 18 years old who has been administratively or judicially declared available for adoption b. The legitimate child of one spouse by the other spouse Child to be Adopted Biological parent signs a Deed of Voluntary Commitment (Rescissible within 6 months) Voluntary Commitment: Declaration of Availability for Adoption Involuntary Commitment: (1) Announcement of Missing Child in Tri-Media (2) Declaration of Abandonment (3) Declaration of Availability for Adoption Case Study Report

Attendance of DSWD Adoption Fora and Seminars (include counseling)

Application for Adoption Case Study Report Matching Placement

University of the Cordilleras College of Law

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Supervised Trial Custody Home Study Report Recommendation and Consent Petition for Adoption Adoption Decree 3. Rights of an adopted child (Secs. 16-18) a. Parental Authority All legal ties between biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter. b. Legitimacy The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind. c. Succession Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the University of the Cordilleras College of Law right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and onethird by the adopters;

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(5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. CC, Art. 365. An adopted child shall bear the surname of the adopter. 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. 1. Who can adopt (Sec. 9) Any foreign national or a Filipino citizen permanently residing abroad who has the qualifications and none of the disqualifications under the Act may file an application if he/she: a. Is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent b. If married, his/her spouse must jointly file for the adoption c. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country d. Has not been convicted of a crime involving moral turpitude e. Is eligible to adopt under his/her national law f. Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted g. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act h. Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws 7. Who can be adopted (Sec. 8) a. Only a legally-free child may be the subject of inter-country adoption.

4. Rescission of adoption Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). Adopted may request for rescission, with the assistance of DSWD, if a minor, or over 18 but incapacitated, based on the ff grounds: 1. repeated physical and verbal maltreatment despite having undergone counseling 2. attempt on life of adoptee 3. sexual assault or violence 4. abandonment or failure to comply with parental obligations However, the adopter(s) may disinherit the adopted based on causes as enumerated in Art. 919 of the NCC. Effects of Rescission (Sec. 20) 1. The parental authority of the adoptee's biological parents, if known, OR the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated. 2. The reciprocal rights and obligations of the adopters and the adoptee to each other shall be extinguished. 3. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. 4. Successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. B. RA 8043, The Law on InterCountry Adoption INTER-COUNTRY ADOPTION refers to the socio-legal process of adopting a University of the Cordilleras College of Law

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b. A legally-free child is one who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child and Youth Welfare Code. c. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. d. In order that such child may be considered for placement, the following documents must be submitted to the Board: Child study Birth Certificate / Foundling Certificate Deed of Voluntary Commitment/ Decree of Abandonment/ Death Certificate of parents Medical Evaluation / History Psychological Evaluation, as necessary Recent photo of the child Cases Tamargo v. CA (1992)Where the petition for adoption was granted after the child had shot and killed a girl, the Supreme Court did not consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortuous act that they could not have foreseen and which they could not have prevented would be unfair and unconscionable. 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 University of the Cordilleras College of Law 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 courts 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 childs welfare. Landingin v. Republic, (2006) Consents for adoption must be written and notarized. Sayson v. CA. (1992)Adopted children have a right to represent their adopters in successional interests. (Although an adopted child shall be deemed to be a legitimate child and have the same rights as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and the adopted child. It does not extend to the blood relatives of either party.) Republic v Hernandez (1996)The change of surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. The birth certificate, as it appears in the civil register, contains the official name. It does not matter if the mother, with all intention to abandon it later, named the child for the sake of naming it. If they really want to change the name, they institute another action under Rule 103 of the Rules of Court. Q: Spouses Primo and Monica Lim, childless, were entrusted with the custody of two minor children, the parents of whom were unknown. Eager of having children of their own, the spouses made it appear that they were the childrens parents by naming them Michelle P. Lim and Michael Jude Lim.

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Subsequently, Monina married Angel Olario after Primos death of her husband. She decided to adopt the children by availing the amnesty given under R.A. 8552 to those individuals who simulated the birth of a child. She filed separate petitions for the adoption of Michelle, then 25 years old and Michael, 18. Both Michelle and Michael gave consent to the adoption. The trial court dismissed the petition and ruled that Monina should have filed the petition jointly with her new husband. Monina, in a Motion for Reconsideration argues that mere consent of her husband would suffice and that joint adoption is not needed, for the adoptees are already emancipated. Is the trial court correct in dismissing the petitions for adoption? A: Yes. Section 7 Article 3 of R.A. 8552 reads: Sec. 7 Husband and wife shall jointly adopt, xxx. The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it but natural to require the spouses to adopt jointly. The rule also ensures harmony between the spouses. The law is clear. There is no room for ambiguity. Monina, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by Monina herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. (In Re: Petition for Adoption of Michelle P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 16899293, May 21, 2009) Q: Is joint adoption still needed when the adoptees are already emancipated? A: Yes. Even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate University of the Cordilleras College of Law child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights. Q: Bernadette filed a petition for adoption of the three minor children of her late brother, Ian. She alleged that when her brother died, the children were left to the care of their paternal grandmother, Anna, who went to Italy. This grandmother died however, and so she filed the petition for adoption. The minors gave their written consent to the adoption and so did all of her own grown-up children. The trial court granted the decree of adoption even though the written consent of the biological mother of the children was not adduced by Bernadette. Was the trial court correct in granting the decree of adoption? A: No. The rule is adoption statutes must be liberally construed in order to give spirit to their humane and salutary purpose which is to uplift the lives of unfortunate, needy or orphaned children. However, the discretion to approve adoption proceedings on the part of the courts should not to be anchored solely on those principles, but with due regard likewise to the natural rights of the parents over the child. The written consent of the biological parents is indispensable for the validity of the decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and vested in the adoptive parents. In this case, since the minors' paternal grandmother had taken custody of them, her consent should have been secured instead in view of the absence of the biological mother. This is so under Sec. 9 (b) of R.A. 8552, otherwise known as the Domestic Adoption Act of 1998. Diwata failed in this respect, thus necessitating the dismissal of her petition for adoption. (Landingin v. Republic,G.R. No. 164948, June 27, 2006)

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Q: On what grounds may an adoptee seek the rescission of the adoption? A: 1. Attempt on the life of the adoptee; 2. Sexual assault or violence; 3. Abandonment and failure to comply with parental obligations; 4. Repeated physical or verbal maltreatment by the adopter. Note: Adopter cannot rescind but may disinherit the adoptee. Q: What are the grounds by which an adopter may disinherit adoptee? A: 1. Groundless accusation against the testator of a crime punishable by 6 years or more imprisonment; 2. Found guilty of attempt against the life of the testator, his/her spouse, descendant or ascendant; 3. Causes the testator to make changes or changes a testators will through violence, intimidation, fraud or undue influence; 4. Maltreatment of the testator by word or deed; 5. Conviction of a crime which carries a penalty of civil interdiction; 6. Adultery or concubinage with the testators wife; 7. Refusal without justifiable cause to support the parent or ascendant; 8. Leads a dishonorable or disgraceful life. Q: What are the effects of adoption? A: 1. GR: Severance of all legal ties between the biological parents and the adoptee and the same shall then be vested on the adopters XPN: In cases where the biological parent is the spouse of the adopter; 2. Deemed a legitimate child of the adopter; 3. Acquires reciprocal rights and obligations arising from parent-child relationship; 4. Right to use surname of adopter; 5. In legal and intestate succession, the adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parents had left a will, the law University of the Cordilleras College of Law on testamentary govern. succession shall Q: State the effects of rescission of the adoption in the Domestic Adoption Act of 1998 (RA 8552). A: 1. If adoptee is still a minor or is incapacitated: Restoration of: a. Parental authority of the adoptees biological parents, if known or b. Legal custody of the DSWD; 2. Reciprocal rights and obligations of the adopters and adoptee to each other shall be extinguished; 3. Court shall order the civil registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate; 4. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; 5. Vested rights acquired prior to judicial rescission shall be respected. Q: Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and Wilma. His fourth, while Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandys birth. All the children, including Amy, now live with Andrew in his house. Is there any legal obstacle to the legal adoption of Amy by Andrew; To the legal adoption of Sandy by Andrew and Elena? A: No, there is no legal obstacle to the legal adoption of Amy by Andrew. While

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a person of age may not be adopted, Amy falls within two exceptions: (1) she is an illegitimate child and she is being adopted by her illegitimate father to improve her status; and (2) even on the assumption that she is not an illegitimate child of Andrew, she may still be adopted, although of legal age, because she has been consistently considered and treated by the adopter as his own child since minority. In fact, she has been living with him until now. There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and Elena cannot adopt jointly because they are not married. In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Vina, Wilma and Sandy assuming that all of them have the means to support him? A: Andrew can claim support from them all, except from Sandy, who is not his child, legitimate, illegitimate or adopted. Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally claim support from each other? A: Amy, Jon, Ryan, Vina and Wilma can ask support from each other because they are half-blood brothers and sisters, and Vina and Wilma are full-blood sisters (Art. 195 [5], Family Code), but not Sandy who is not related to any of them. Can Jon and Jane legally marry? A: Jon and Jane can legally marry because they are not related to each other. Jane is not a daughter of Andrew. (2008 Bar Question) Q: Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen, and her American husband Sonny Cruz, filed a petition in the Regional Trial Court of Makati, for the adoption of the minor child of her sister, a Filipina, can the petition be granted? A: It depends. If Sonny and Sarah have been residing in the Philippines for at least 3 years prior to the effectivity of R.A. 8552, the petition may be granted. Otherwise, the petition cannot be University of the Cordilleras College of Law granted because the American husband is not qualified to adopt. While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of R.A. 8552. This is the law applicable, the petition being still pending with the lower court. Under the Act, Sarah and Sonny must adopt jointly because they do not fall in any of the exceptions where one of them may adopt alone. When husband and wife must adopt jointly, the Supreme Court has held in a line of cases that both of them must be qualified to adopt. While Sarah, an alien, is qualified to adopt, for being a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity, Sonny, an alien, is not qualified to adopt because he is neither a former Filipino citizen nor married to a Filipino. One of them not being qualified to adopt, their petition has to be denied. However, if they have been residents of the Philippines 3 years prior to the effectivity of the Act and continues to reside here until the decree of adoption is entered, they are qualified to adopt the nephew of Sarah under Sec 7(b) thereof, and the petition may be granted. (2000 Bar Question)

TITLE VIII. SUPPORT Support Support comprises everything indispensable for sustenance, dwelling, clothing, medical assistance and transportation, in keeping with the financial capacity of the family, including the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. (Art. 194, FC) Characteristics A: PRIM PEN 1. Personal 2. Reciprocal on the part of those who are by law bound to support each other 3. Intransmissible 4. Mandatory 5. Provisional character of support judgment 6. Exempt from attachment or execution

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7. Not subject compensation to waiver or f. Support comprises of everything indispensable for: SDC MET 1. Sustenance 2. Dwelling 3. Clothing 4. Medical attendance 5. Education includes schooling or training for some profession, trade. Object/ Scope Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Kinds of support: a. As to amount: Natural (bare necessities of life) Civil (in accordance with financial standing) b. As to source of obligations: Legal (from provision of law) Voluntary (from agreement or from provision of a will) c. Special kind (alimony pendente lite) Subjects of support the following are obliged to support each other to the whole extent set forth under Art. 194: a. The spouses b. Legitimate ascendants and descendants c. Parents and their legitimate children and the legitimate and illegitimate children of the latter d. Parents and their illegitimate children and the legitimate and illegitimate children of the latter e. Legitimate brothers and sisters, whether of full or half-blood University of the Cordilleras College of Law For the support of the legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. Support from others: From stranger When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have the right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. From a third person When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimants fault or negligence.

Demandability and performance of support the obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first 5 days of each corresponding month, or when the recipient dies, his heirs shall not be obliged to return what he has received in advance.

Sources of support:

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third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. Contractual support In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties. Exemption from execution The right to give support as well as any money or property obtained as such support shall not be levied upon on attachment or execution. Amount of support The amount of support, in the cases referred to in Art. 195 and 196, shall bee in proportion to the resources or means of the giver and to the necessities of the recipient. Option in giving support the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Order of support Whenever 2 or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: a. The spouse b. The descendants in the nearest degree c. The ascendants in the nearest degree d. The brothers and sisters University of the Cordilleras College of Law Divisions in giving and receiving of support When the obligation to give support falls upon 2 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 2 or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obliges should be the spouse and a child subject to parental authority, in which case the child shall be preferred. Piecemeal support Support shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

TITLE IX. PARENTAL AUTHORITY Concept Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. Nature Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. Exceptions - Waivable in the following cases: a. When there is guardianship approved by the court b. When there is adoption approved by the court c. When there is emancipation by concession

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d. When there is a surrender of the child to an orphan asylum Joint parental authority The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. Continuous exercise of parental authority In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. Parental authority in case of separation In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Filial privilege No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. Under the Rules on Evidence: No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, sec. 25). Thereupon, should a conflict arise between this provision and civil code provision, the latter prevails, since a procedural rule cannot impair substantive law. SUBSTITUTE AUTHORITY PARENTAL Order of substitute: in default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: 1. The surviving grandparent: in case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned under Art. 213, shall exercise the authority. 2. The oldest brother or sister, over 21 years of age, unless unfit or disqualified. 3. The childs actual custodian, over 21 years of age, unless unfit or disqualified. Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. Parental authority for Foundlings: In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of childrens homes, orphanages and similar institutions duly accredited by the proper government agency. SPECIAL PARENTAL AUTHORITY The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. LIABILITIES Those given the special parental authority shall be principally and solidarily liable for damages caused

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by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions on quasidelicts. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. EFFECTS AUTHORITY UPON PERSON See enumeration under Art. 220 Disciplinary measures: The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. University of the Cordilleras College of Law OF PARENTAL However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper.

The measures referred to in the preceding article may include the commitment of the child for not more than 30 days in entities or institutions engaged in child care or in childrens homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper.

UPON PROPERTY The father and mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary.

Where the marked value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than 10% of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

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Appointment of guardian over the property: The courts may appoint a guardian of the childs property, or a guardian ad litem when the best interests of the child so requires. Disposition of the property of an unemancipated child: The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latters support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the childs property shall be limited primarily to the childs support and secondarily to the collective daily needs of the family. ADMINISTRATION OF THE CHILD OF THE PARENTS PROPERTY If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonably monthly allowance in an amount not less than that which the owner would have been paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the childs legitime. Temporary: Unless subsequently revived by a final judgment, parental authority also terminates: a. Upon adoption of the child b. Upon appointment of a general guardian c. Upon judicial declaration of abandonment of the child in a case filed for the purpose d. Upon final judgment of a competent court divesting the party concerned of parental authority e. Upon judicial declaration of absence or incapacity of the person exercising parental authority.

SUSPENSION AUTHORITY

OF

PARENTAL

Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. Also, the court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same: a. Treats the child with excessive harshness or cruelty b. Gives the child corrupting orders, counsel or example c. Compels the child to beg d. Subjects the child or allows him to be subjected to acts of lasciviousness The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances.

TERMINATION AUTHORITY

OF

PARENTAL

Permanent: Parental terminates permanently: a. b. c. d.

authority

Upon the death of the parents Upon the death of the child Upon emancipation of the child If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

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The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefore has ceased and will not be repeated.

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