Persons and Family Relations

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SIENNA A. FLORES PERSONS & FAMILY RELATIONS

Important Dates to Remember:
Aug. 3, 1988 Family Code took effect
Dec. 18, 1989 RA 6809 took effect & lowered the age of majority from 21 to 18
Jan. 1, 1992 Local Govt Code took effect w/c empowered the mayor of a city or
municipality to solemnize a marriage

TITLE I
MARRIAGE

Chapter 1. Requisites of Marriage

Article 1. Marriage is a special contract of permanent union between a man and a woman
entered into in accordance with law for the establishment of conjugal and family life. It is
the foundation of the family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the limits provided by
this Code. (52a)

Nature & Importance of Marriage
One of the basic civil rights of man, fundamental to our existence & survival
One of the vital personal rights essential to the orderly pursuit of happiness by
free men
It is more than a mere contract; it is a social relation vested w/ public interest

Marriage as a Status
Marriage creates a social status or relation between the contracting parties in w/c
not only they but the State as well are interested
Marriage is one of the cases of double status, in that the status therein involves &
affects 2 persons. One is married, never in abstract or a vacuum, but always to
somebody else.
No privately imposed conditions could alter the marital status.

Marriage in International Law (UDHR, ICCPR, ICESCR)
men & women of full age, w/o any limitation due to race, nationality or religion,
have the right to marry and to found a family
the family is the natural & fundamental group unit of society & is entitled to
protection by society & the State

Constitutional Protection
Art. 2, Sec. 2 The State recognizes the sanctity of family life & shall protect &
strengthen the family as a basic social institution.
Art. 15, Sec. 1 The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity & actively promote its total
development.
Art. 15, Sec. 2 Marriage, as an inviolable social institution, is the foundation of
the family & shall be protected by the State.
The right to enter into a marriage has been regarded as w/in the ambit of the
constitutional right of association. And once married, a couple has a right to
privacy w/c is protected against all undue & unwarranted government intrusion.
Note: The constitutional provisions on marriage do not imply that the legislature
cannot enact a law allowing absolute divorce.

Zulueta v. CA A wife, to get evidence of infidelity in a case for legal separation she
filed against her husband, ransacked his office & forcibly took documents & letters of
the husband addressed to his paramour. The SC ruled that the wife cannot use the
said documents & letters as evidence because they were obtained in violation of the
husbands constitutional right to privacy. While a lawful marriage seeks to create a
permanent union between man & woman, it does not shed the spouses integrity or
their privacy as individuals.

Phil. Telegraph & Telephone Company v. NLRC A companys policy disqualified
from work any woman worker who contracts marriage. The SC invalidated such policy
as it not only runs afoul of the constitutional provision on equal protection, but also on
the fundamental policy of the State toward marriage. Marriage as a special contract
cannot be restricted by discriminatory policies of private individuals or corps.

Duncan v. Glaxo An employment contract requiring an employee to disclose to
management any existing/future relationship by consanguinity/affinity w/ co-
employees or employees of competing drug companies & requiring such employee to
resign should management find that such relationship poses a possible conflict of
interest was not held to be in violation of the equal protection clause considering that
the stipulation is reasonable under the circumstances because such relationship might
compromise the interest of the company & the requirement was shown to be aimed
against the possibility that a competitor company will gain access to its secrets &
procedures. The SC said that the provision does not impose an absolute ban against
relations between the companys employees & those of competitor company.

Star Paper Corporation v. Simbol A company policy provided that, in case 2 of
their employees decide to get married to each other, 1 of them should resign from the
company. The SC held that the act of the company in enforcing such policy is illegal as
it failed to prove a legitimate business concern in imposing the questioned policy esp.
so when the asserted policy is premised in the mere fear that the employees married
to each other will be less efficient.

Mail Order Bride (RA 6955) It shall be unlawful:

A. For any person, natural or juridical, association, club or entity to commit,
directly/indirectly, any of the ff. acts:
1. To establish or carry on a business w/c has for its purpose the matching of
Filipino women for marriage to foreign nationals either on a mail-order basis
or through personal introduction;
2. To advertise, publish, print or distribute or cause the advertisement,
publication, printing or distribution of any brochure, flier, or any propaganda
material calculated to promote the prohibited acts in the preceding
subparagraph;
3. To solicit, enlist or in any manner attract or induce any Filipino woman to
become a member in any club or association whose objective is to match
women for marriage to foreign nationals either on a mail-order basis or
through personal introduction for a fee;
4. To use the postal service to promote the prohibited acts in subparagraph 1
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B. For the manager or officer-in-charge or advertising manager of any newspaper,
magazine, television or radio station, or other media, or of an advertising agency,
printing company or other similar entities, to knowingly allow, or consent to, the
acts prohibited in the preceding paragraph.

Anti-Trafficking in Persons (RA 9208) It shall be unlawful for any person,
natural or juridical, to commit any of the ff. acts:
(b) To introduce or match for money, profit, or material, economic or other
consideration, any person or, as provided for under Republic Act No. 6955, any
Filipino woman to a foreign national, for marriage for the purpose of acquiring,
buying, offering, selling or trading him/her to engage in prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary servitude or
debt bondage;
(c) To offer or contract marriage, real or simulated, for the purpose of acquiring,
buying, offering, selling, or trading them to engage in prostitution, pornography,
sexual exploitation, forced labor or slavery, involuntary servitude or debt
bondage;

Revised Penal Code penalizes bigamy & contracting a marriage knowing that one
of the requirements of law have not been complied with or that the marriage is in
disregard of a legal impediment

Marriage Between Rapist & Rape Victim
A subsequent valid marriage of the offender & the offended party in the crime of
rape extinguishes the criminal action or the penalty imposed for rape
In case the victim is already married & it is the legal husband who is the offender,
the subsequent forgiveness by the wife as the offended party shall extinguish the
criminal action or penalty, provided that the crime shall not be extinguished or
the penalty shall not be abated if the marriage is void ab initio

Legislative Control of Marriage
The legislature, through the Family Code, defines marriage & the family, spells
out the corresponding legal effects, imposes the limitations that affect married &
family life, as well as prescribes the grounds for declaration of nullity & those for
legal separation.
In a real sense, there are 3 parties to every civil marriage: 2 willing spouses & an
approving State.
By legislation, marriage can be made a statutory basis for limiting ones capacity
to act or for affecting ones right to acquire property:
1. Art. 823, NCC The fact of marriage of the witness in a will to the devisee or
legatee shall render void the gratuitous disposition, unless there are 3 other
witnesses.
2. Art. 874, NCC An absolute condition not to contract a 1
st
or subsequent
marriage made in a last will & testament on an instituted voluntary heir,
legatee or devisee shall be considered as not written, unless such condition
has been imposed on the widow/er by the deceased spouse, or the latters
ascendants or descendants.

Law Governing Validity of Marriage
In determining the validity of marriage, it is to be tested by the law in force at the
time the marriage was contracted.
GR: The nature, consequence & incidents of marriage as a social institution are
governed by law & not subject to stipulations.
E: Property relations w/c may be fixed in a marriage settlement executed prior to the
marriage ceremony. However, such marriage settlements must not contravene the
mandatory provisions of the Family Code.

GR: The nature of the marriage already celebrated cannot be changed by a
subsequent amendment to the law. Examples:

1. Under the OCC, a marriage bet. stepbrother & stepsister was void. Such a
marriage it not anymore prohibited under the FC. However, the effectivity of
the FC does not affect the void nature of the marriage bet. the stepbrother &
stepsister solemnized during the effectivity of the OCC. It remains void.
2. Under the OCC, mistake in identity was a ground to make a marriage
annullable. Under the FC, such is a ground to declare the marriage void ab
initio. The effectivity of the FC does not affect the annullable nature of those
marriages contracted prior to the FC

E: Under the OCC, a marriage could not be declared void on the ground of
psychological incapacity. Such a ground came into existence w/ the effectivity of the
FC. Here, a spouse who, prior to the effectivity of the FC, got married to an individual
who is psychologically incapacitated under Art. 36, may file a case to declare the
marriage void despite the fact that such ground did not exist as a legal basis for nullity
of marriage at the time his/her marriage was celebrated. (At first, the prescriptive
period was 10 years from the effectivity of the FC. This was amended and it is now
imprescriptible.)

Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)
Art. 4. The absence of any of the essential or formal requisites shall render the marriage
void ab initio, except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable. (n)
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required.
It shall be necessary, however, for the contracting parties to appear personally before the
solemnizing officer and declare in the presence of not less than two witnesses of legal age
that they take each other as husband and wife. This declaration shall be contained in the
marriage certificate which shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to
sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to
write the name of said party, which fact shall be attested by the solemnizing officer. (55a)
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Legal Capacity
1. Both parties must be at least 18 years of age
2. The parties must be male & female
3. The marriage must not be incestuous under Art. 37
4. The marriage must not be void for reasons of public policy under Art. 38
5. The marriage must not be bigamous, except if it is a valid bigamous
marriage under Art. 41

Effect of Sex Change A man or woman should be considered as such at the time
of the marriage when the parties themselves assert their own gender identities.

Silverio v. Republic Petitioner had a biological sex change from male to female
through sex-reassignment surgery & where he sought the amendment of his birth
certificate to reflect the change in sex as a preliminary step to get married to his
partner. The SC rejected the petition & ruled that the sex determined by visually
looking at the genitals of the baby at the time of the birth is immutable & that there is
no law legally recognizing sex reassignment.

Republic v. Cagandahan Respondent was found to have Congenital Adrenal
Hyperplasia (CAH) w/c is a condition where the person afflicted has both male &
female characteristics & organs. Through expert evidence, it was shown that
respondent, though genetically a female, secreted male hormones & not female
hormones, had no breast, & did not have any monthly menstrual period, & the
respondent, in his mind & emotion, felt like a male person & did not want to have
surgery. The SC considered the person as an intersex individual & granted the
preference of the person to be considered as a male person, thereby allowing the
amendment of the birth certificate of the person from female to male.

Consent
Connotes that the contracting parties willingly & deliberately entered into the
marriage
Signifies that at the time of the marriage ceremony, they were capable of
intelligently understanding the nature & consequences of the act
Need not be expressed in any special manner or particular form, so long as there
is a manifestation that the contracting parties take each other as H&W

Requirements of Consent:
1. Freely given
2. Must be made in the presence of the solemnizing officer

Effect of Defect in Consent:
1. Total absence of consent void ab initio
2. Consent obtained thru fraud, force, intimidation, undue influence annullable

Authority of Solemnizing Officer
it is NOT the presence/absence of the solemnizing officer w/c constitutes the
formal requirement, but it is the presence/absence of the AUTHORITY of such
solemnizing officer
the authority of the officer/clergyman will be presumed in the absence of any
showing to the contrary

GR: The solemnizing officer is NOT duty bound to investigate w/n a marriage license
(ML) has been duly & regularly issued by the local civil registrar (LCR).
Exceptions:
1. Under Art. 29 where the contracting parties are legally excused from
obtaining a ML because 1 of them is in the point of death or there is no
means of transportation to the LCR as their places of residences are far, the
solemnizing officer must undertake the necessary steps to ascertain the ages
& relationship of the contracting parties & the absence of legal impediment to
marry
2. Under Art. 34, persons living together as H&W for at least 5 ears w/o the
benefit of marriage may contract a valid marriage even in the absence of a
ML. The solemnizing officer here is duty bound to ascertain the qualifications
of the contracting parties.

Criminal liability shall be incurred by:
1. A person who solemnizes marriage w/o authority
2. A person who, not being authorized to solemnize marriage, publicly
advertises himself, by means of signs or placards placed on his residence or
office or through the newspapers, as authorized to solemnize marriage.

Valid Marriage License
1. Issued by the LCR of the place where the marriage application was filed
2. It has a lifetime of 120 days from the date of issue
3. It is effective in any part of the Philippines

Marriage license
Date of issue - date of signing of the ML by the LCR
It is deemed automatically cancelled at the expiration of the 120-day period if the
contracting parties have not made use of it

Marriage Ceremony
Minimum requirement - the contracting parties appear PERSONALLY before the
solemnizing officer & declare that they take each other as husband & wife in the
presence of at least 2 witnesses of legal age
The FC doesnt prescribe any particular form of marriage ceremony.
The declaration of consent need NOT be VOCALLY expressed.
It is the agreement itself, & not the form in w/c it is couched, w/c constitutes the
contract.
The words used & the manner by w/c the ceremony was performed are mere
evidence of a present intention & agreement to marry of the parties.
Thus, the failure of the solemnizing officer to ask the parties whether they take
each other as H&W cannot be regarded as a fatal omission, & is not a cause for
annulment, it being sufficient that they declared in & signed the marriage contract
that they were taking each other as H&W.

Balogbog v. CA It was contended that the existence of a marriage cannot be
presumed because there was no evidence that the parties, in the presence of 2
witnesses, declared that they take each other as H&W. The SC held that an exchange
of vows can already be presumed to have been made from the testimonies of the
witnesses who stated that a wedding took place, since the very purpose for having a
wedding is to exchange vows of marital commitment.
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Madridejo v. De Leon failure to sign a marriage certificate or absence of such itself
does NOT render the marriage void nor annullable

Common-Law Marriages
a non-ceremonial or informal marriage by agreement, entered into by a man & a
woman having capacity to marry, ordinarily w/o compliance w/ such statutory
formalities as those pertaining to marriage licenses
Such agreement must be coupled by consummation, w/c includes at least
cohabitation as H&W, & reputation in such a way that the public will recognize the
marital status.
Common-law marriages are NOT recognized in the Philippines.

VOID AB INITIO VOIDABLE VALID, BUT LIABLE
ABSENCE of essential or formal
requisite
DEFECT in
essential requisite
IRREGULARITY in formal
requisite
Examples:
1. Expired ML
2. Marriage by jest
3. Proxy marriage
Art. 45 & 46 Does not affect the validity
of the marriage, but civilly,
criminally, or
administratively liable
Exceptions:
1. Where ML is not required
2. Art. 35(2) either party
believed in GF that such
solemnizer had proper authority

Marriage by way of a Jest
Null & void because there is no genuine consent on the part of both parties
Not intended to be a contract of marriage, and that both parties have never
considered & it as such; they have never lived together, or acted towards each
other as man & wife
Mere words, w/o any intention corresponding to them, will not make a marriage
or any other civil contract

Marriage by Proxy
Void because of the absence of the essential requisite that consent freely given
must be made in the presence of the solemnizing officer
Void because of the absence of the formal requisite that the contracting parties
must personally declare before the solemnizing officer that they take each other
as H&W

Breach of Promise to Marry

GR: Mere breach of promise to marry is not an actionable wrong. Hence he aggrieved
party cannot file a case to compel the person who has breached such promise to enter
into the marriage contact
E: To formally set a wedding, where invitations were printed & distributed, the
wedding gown was purchased, the matrimonial bed & accessories were bought, bridal
showers were given & gifts received, and only to walk out of it when the matrimony is
about to be solemnized is NOT a case of mere breach of promise to marry. This is
contrary to good customs w/c defendant must be made answerable for damages in
accordance w/ Art. 21 of the Civil Code. (Wassmer v. Velez)
Other Irregularities Which do NOT Affect the Validity of a Marriage
1. Absence of 2 witnesses of legal age during the marriage ceremony
2. There was only 1 witness of legal age
3. There were witnesses but not of legal age
4. Absence of a marriage certificate
5. Marriage solemnized in a place other than publicly in the chambers of the
judge or in open court, in church, chapel or temple, or in the office of the
consul-general, consul or vice-consul
6. Issuance of ML in city/municipality not the residence of either of the
contracting parties
7. Unsworn application for a ML
8. A party to whom a ML is issued is represented therein by a name other than
his true name or had his name wrongly spelled
9. A ML procured by 1 of the contracting parties by false representation as to
his/her age, w/c was above the marrying age, in order to avoid the statutory
requirement of parental consent
10. If 1 of the contracting parties:
a. misrepresented his/her residence
b. did not disclose his/her prior marriage & divorce in the application
c. falsely stated that s/he had not been previously married
d. falsely swore that s/he was not under guardianship
e. forged his/her mothers consent tot he marriage
11. Failure of the contracting parties to present original birth certificate or
baptismal certificate to the LCR who likewise failed to ask for the same
12. Failure of the contracting parties bet. the ages of 18 & 21 to exhibit consent
of parents or persons having legal charge of them to the LCR
13. Failure of the contracting parties bet. the ages of 21-25 to exhibit advice of
parents to LCR
14. Failure to undergo marriage counselling
15. Failure of the LCR to post the required notices
16. Issuance of ML despite absence of publication or prior to the completion of
the 10-day period for publication
17. Failure of the contracting parties to pay the prescribed fees for the ML
18. Failure of the person solemnizing the marriage to send copies of the marriage
certificate to the LCR
19. failure of the LCR to enter the applications for ML filed w/ him in the registry
book in the order in w/c they were received

Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by
his church or religious sect and registered with the civil registrar general, acting within the
limits of the written authority granted by his church or religious sect and provided that at
least one of the contracting parties belongs to the solemnizing officer's church or religious
sect;
(3) Any ship captain or airplane chief only in the case 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;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)

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OFFICER REQUISITES

JUDGES
1. must be incumbent & NOT retired judges
2. can solemnize only w/in their courts jurisdiction

national scope SC, CA, CTA, Sandiganbayan

PRIEST, RABBI,
IMAM,
MINISTER OF
ANY CHURCH
OR RELIGIOUS
SECT
1. must be duly authorized by his/her church/religious sect
2. must act w/in the limits of the written authority granted to
him/her by the church/religious sect
3. must be registered w/ the civil registrar general
4. at least 1 of the contracting parties whose marriage s/he is to
solemnize belongs to his/her church/religious sect

the written authority granted to a priest by his sect may impose
a limitation as to the place where he could solemnize a marriage

SHIP
CAPTAIN
OR
AIRPLANE
CHIEF
1. the marriage must be in articulo mortis (at least 1 of the parties
is at the point of death)
2. the marriage must be between passengers or crew members
3. generally, the ship must be at sea or the plane must be in flight
(may also be solemnized during stopovers at ports of call)

An asst. pilot has no authority to solemnize a marriage; if the
airplane chief dies during the trip, the asst. pilot who assumes
command of the airplane cannot solemnize the m marriage as
there is no law allowing such assumption of authority for the
purpose of solemnizing a marriage

MILITARY
COMMANDER
1. must be a military commander of a unit
2. must be a commissioned officer his rank should start from 2
nd

lieutenant, ensign & above
3. a chaplain must be assigned to such unit
4. said chaplain must be absent at the time of the marriage
5. marriage must be in articulo mortis
6. the contracting parties, whether members of the armed forces
or civilians, must be w/in the zone of military operation and
during such operation (but they need not belong to the unit of
the military commander)

unit a batallion under the present table of organization & not to
a mere company
within the zone of military operation a widespread military
activity over an area & does not refer to a simulated exercise
because it requires the absence of civilian authorities

CONSUL-
GENERAL,
CONSUL,
VICE-CONSUL
1. contracting parties must be both Filipino citizens
2. solemnities established by Philippine laws shall be observed in
their execution
3. must be abroad in their office, & NOT w/in Phil. territory
4. if the contracting parties desire to have their marriage
solemnized in a place other than the office of the consul-
general, consul, or vice-consul, they shall request the said
official in writing in w/c case the marriage may be solemnized at
a place designated by them in a sworn statement to that effect

MAYOR
When the mayor is temporarily incapacitated to perform his duties
for physical or legal reasons, the vice mayor or the highest
ranking sangguniang bayan member shall automatically exercise
the powers & perform the duties of the mayor, & thus the latter
has authority to solemnize marriages

Good Faith of Parties if the marriage was solemnized by a person not legally
authorized to solemnize a marriage & either of the contracting parties believed in GF
that such solemnizing officer (under Art. 35(2)) had such authority, then the marriage
shall be considered valid

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office the consul-general, consul or vice-
consul, as the case may be, and not elsewhere, except in cases of marriages contracted on
the point of death or in remote places in accordance with Article 29 of this Code, or where
both of the parties request the solemnizing officer in writing in which case the marriage may
be solemnized at a house or place designated by them in a sworn statement to that
effect. (57a)

SOLEMNIZING OFFICER VENUE
Judge 1. Chambers
2. Open court
Priest, rabbi, imam, minister 1. Church
2. Chapel
3. Temple
Consul-general, consul, vice-consul Office
Marriage in articulo mortis, remote
places, special request of both parties
In such place

Venue
directory in nature
its non-observance will not invalidate a marriage but can subject the person/s
who cause the violation to civil, administrative or criminal liability

Exceptions to the rule on Venue
1. marriages in articulo mortis
2. marriages in a remote place
3. marriages where BOTH of the parties request a solemnizing officer in writing,
in w/c case the marriage may be solemnize at a house or place designated by
them in a sworn statement to that effect

Art. 9. A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitually resides, except in marriages where no
license is required in accordance with Chapter 2 of this Title. (58a)

GR: Place of Issue the contracting parties should get a ML from the LCR of the
city/municipality where either of them resides

Effect of Non-Compliance mere irregularity & will NOT render the marriage void

E: when ML not required
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Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license
and the duties of the local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular official. (75a)

Consular Officials the duties of the LCR and solemnizing officer are performed by
the consular officials abroad

Art. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which
shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in case
the contracting party has neither father nor mother and is under the age of twenty-one
years.
The applicants, their parents or guardians shall not be required to exhibit their residence
certificates in any formality in connection with the securing of the marriage license. (59a)

Purpose of Documentary Requirements
proper documents must be maintained to serve as proof for the existence of the
marriage
to discourage deception and seduction
to prevent illicit intercourse under the guise of matrimony
to relieve from doubt the status of parties who live together as man & wife, by
providing competent evidence of the marriage
evidence of the status & legitimacy of the offspring of the marriage
the task of seeing to it that these documentary proofs are accomplished is
addressed to the LCR to secure publicity and to require a record to be made of
marriages contracted

Marriage Application & Ministerial Duty of LCR
when a marriage application signed & sworn to by parties & thereafter filed, the
LCR has not choice but to accept the application & process the same up to the
time of the issuance of the ML

GR: If the LCR has knowledge of some legal impediment, s/he cannot discontinue
processing the application, but must only NOTE DOWN the legal impediments in the
application & thereafter issue the ML
E: the LCR is stopped by the courts

Art. 12. The local civil registrar, upon receiving such application, shall require the
presentation of the original birth certificates or, in default thereof, the baptismal certificates
of the contracting parties or copies of such documents duly attested by the persons having
custody of the originals. These certificates or certified copies of the documents by this
Article need not be sworn to and shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the certificate shall be sufficient proof of its
authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of the original or if
it is shown by an affidavit of such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been required of the person
having custody thereof at least fifteen days prior to the date of the application, such party
may furnish in lieu thereof his current residence certificate or an instrument drawn up and
sworn to before the local civil registrar concerned or any public official authorized to
administer oaths. Such instrument shall contain the sworn declaration of two witnesses of
lawful age, setting forth the full name, residence and citizenship of such contracting party
and of his or her parents, if known, and the place and date of birth of such party. The
nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the
parents of the contracting parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties, as stated in the application,
or when the local civil registrar shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of them have the required
age. (60a)
Art. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her
previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit
setting forth this circumstance and his or her actual civil status and the name and date of
death of the deceased spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having been emancipated by a
previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition
to the requirements of the preceding articles, exhibit to the local civil registrar, the consent
to their marriage of their father, mother, surviving parent or guardian, or persons having
legal charge of them, in the order mentioned. Such consent shall be manifested in writing
by the interested party, who personally appears before the proper local civil registrar, or in
the form of an affidavit made in the presence of two witnesses and attested before any
official authorized by law to administer oaths. The personal manifestation shall be recorded
in both applications for marriage license, and the affidavit, if one is executed instead, shall
be attached to said applications. (61a)

Parental consent
if any of the contracting parties are at least 18 but below 21, the consent of the:
1. father
2. mother
3. surviving parent
4. guardian
5. persons having legal charge of them
-- must be obtained before a ML can be issued
non-compliance does NOT make the marriage void, but merely annullable
if any of the contracting parties are below 18, the marriage is void regardless of
the existence or non-existence of the consent of the parents

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Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be
obliged to ask their parents or guardian for advice upon the intended marriage. If they do
not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till
after three months following the completion of the publication of the application therefore. A
sworn statement by the contracting parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be attached to the application for
marriage license. Should the parents or guardian refuse to give any advice, this fact shall be
stated in the sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is needed, the party or
parties concerned shall, in addition to the requirements of the preceding articles, attach a
certificate issued by a priest, imam or minister authorized to solemnize marriage under
Article 7 of this Code or a marriage counselor duly accredited by the proper government
agency to the effect that the contracting parties have undergone marriage counselling.
Failure to attach said certificates of marriage counselling shall suspend the issuance of the
marriage license for a period of three months from the completion of the publication of the
application. Issuance of the marriage license within the prohibited period shall subject the
issuing officer to administrative sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the
other party must be present at the counselling referred to in the preceding paragraph. (n)

Parental advice
absence of such does not affect the marriage
non-compliance is a mere irregularity
it is not an essential or formal requisite

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names
and residences of the applicants for a marriage license and other data given in the
applications. The notice shall be posted for ten consecutive days on a bulletin board outside
the office of the local civil registrar located in a conspicuous place within the building and
accessible to the general public. This notice shall request all persons having knowledge of
any impediment to the marriage to advise the local civil registrar thereof. The marriage
license shall be issued after the completion of the period of publication. (63a)

Duty of the Local Civil Registrar
to post a notice to inform everybody of the impending marriage
the notice shall be posted for 10 consecutive days on a bulletin board outside the
office of the LCR located in a conspicuous place w/in the building & accessible to
the general public
the notice shall request all persons having knowledge of any impediment to the
marriage to advice the LCR thereof

GR: the ML shall be issued after the completion of the period of publication
Exceptions:
1. if the contracting parties between the ages of 21 & 25, do not obtain the
advice of the parents or if such advice is unfavourable, the LCR shall not
issue the ML till after 3 months following the completion of the publication of
the application thereof
2. if the contracting parties who are at least 18 but below 21 failed to attach to
the marriage application a certification that they have undergone marriage
counselling, the issuance of the ML shall be suspended for 3 months from the
completion of the publication of the application
Note: Issuance of the ML w/in the prohibited period shall subject the issuing officer to
administrative sanctions, but shall not affect the validity of the marriage.

Art. 18. In case of any impediment known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof and his findings thereon in the
application for marriage license, but shall nonetheless issue said license after the completion
of the period of publication, unless ordered otherwise by a competent court at his own
instance or that of any interest party. No filing fee shall be charged for the petition nor a
corresponding bond required for the issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license. No other sum shall be collected in
the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be
issued free of charge to indigent parties, that is those who have no visible means of income
or whose income is insufficient for their subsistence a fact established by their affidavit, or
by their oath before the local civil registrar. (65a)

GR: In case of impediment known to the LCR or brought to his attention, he shall
merely note down the particulars thereof & his findings thereon in the application for a
ML. He is still duty bound to issue said ML after payment of the necessary fees, unless
exempted due to indigence, after the completion of the period of publication.

Purpose: to eliminate any opportunity for extortion; and giving much leeway to the
LCR could be a source of graft

Exceptions:
1. Injunction order from the court directing the non-issuance of the ML can
empower the LCR to validly refuse to issue said ML. The court action may be
brought by the LCR himself or by any interested party (e.g. the contracting
parties parents, brothers, sisters, existing spouse, or those w/c may be
prejudiced by the marriage)
2. If a foreigner who seeks to solemnize his/her marriage here w/ a Filipino fails
to obtain a certificate of legal capacity

Note: If despite an injunction order from the court, the LCR still issues a ML & a
marriage is solemnized on the basis of such ML, the marriage will still be valid because
the validity of the ML is not affected by the violation of the injunction. The parties
responsible for the irregularity shall be civilly, criminally, & administratively liable.

Criminal Liability of the LCR
1. directly/indirectly attempting to influence any contracting party to marry or
refrain from marrying in any church/sect/religion or before any civil authority
2. unlawfully issues a ML or maliciously refuses to issue a ML to a person
entitled thereto, or fails to issue the same w/in 24 hours after the time when
it was proper to issue the same

Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred
twenty days from the date of issue, and shall be deemed automatically canceled at the
expiration of the said period if the contracting parties have not made use of it. The expiry
date shall be stamped in bold characters on the face of every license issued. (65a)

- 8 -

Marriage License
valid ONLY in the Philippines & NOT abroad
valid for 20 days from the date of issue
date of issue = date of singing of the LCR of the ML
from the date of issue, it should be claimed by the parties
if it is not claimed & therefore not used w/in 120 days, it shall automatically
become ineffective

Art. 21. When either or both of the contracting parties are citizens of a foreign country, it
shall be necessary for them before a marriage license can be obtained, to submit a
certificate of legal capacity to contract marriage, issued by their respective diplomatic or
consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal
capacity herein required, submit an affidavit stating the circumstances showing such
capacity to contract marriage. (66a)

Certificate or Affidavit of Legal Capacity
Foreigners may contract marriage in the Philippines, but they need to secure a ML
in the Philippines. Before such ML is issued, they have to submit a certificate of
legal capacity.
A certificate of legal capacity is necessary because the Philippines, insofar as
marriage is concerned, adheres to the national law of the contracting parties w/
respect to their legal capacity to contract marriage. (e.g. if a 16 year old US
citizen is legally capacitated to marry in the US & wants to marry here, he can do
so by obtaining a certificate of legal capacity stating that in the US, persons 16
years of age can be validly married)

GR: If the foreigner fails to obtain the certification of legal capacity, the LCR will not
issue the ML. The law clearly provides that as to the foreigner, this is a necessary
requisite before a ML can be obtained by him/her. (Note: If w/o the certificate of legal
capacity, the ML was nevertheless issued, the marriage will still be considered valid as
this is merely an irregularity in complying w/ a formal requirement of the law in
procuring a ML.)
E: if the contracting parties are BOTH foreigners who desire to have their marriage
solemnized by their countrys consul-general officially assigned here in the Phil., they
can get married before such consul-general w/o procuring a ML here if their countrys
laws allow the same. Such marriage shall be recognized here in the Phil.

Stateless persons or Refugees required to file an affidavit stating the
circumstances showing such capacity to contract marriage in lieu of the certificate of
legal capacity

Art. 22. The marriage certificate, in which the parties shall declare that they take each
other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage
provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in
appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement
regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy
thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the
contracting parties the original of the marriage certificate referred to in Article 6 and to send
the duplicate and triplicate copies of the certificate not later than fifteen days after the
marriage, to the local civil registrar of the place where the marriage was solemnized. Proper
receipts shall be issued by the local civil registrar to the solemnizing officer transmitting
copies of the marriage certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the affidavit of the contracting party
regarding the solemnization of the marriage in place other than those mentioned in Article
8. (68a)

Presumption of Marriage
That a man & a woman deporting themselves as H&W have entered into a lawful
contract of marriage is a presumption w/c is considered satisfactory if
uncontradicted, but may be contradicted & overcome by evidence.
Public policy should aid acts intended to validate marriages & should retard acts
intended to invalidate marriages.

Proof of Marriage
When the question as to w/n a marriage has been contracted arises in litigation,
said marriage may proved by evidence of any kind.
Best/primary evidence of a marriage - the MARRIAGE CONTRACT.
Good evidences of marriage baptismal certificate, judicial decisions, family bible
in w/c the names of the spouses have been entered as married
A marriage may be proved by parol evidence. Testimony by 1 of the parties or
witnesses to the marriage, or by the person who solemnized the same, is
admissible & competent to prove marriage. The testimonies themselves must be
credible & must proceed from a witness who is likewise credible.
A solemn statement in the will of the deceased as to the fact of his marriage is
also admissible proof of such marriage.
Public & open cohabitation as H&W after the alleged marriage, birth & baptismal
certificates of children borne by the alleged spouses, & a statement of such
marriage in subsequent documents are competent evidence to prove the fact of
marriage.
A certificate of marriage made many years after the marriage is inadmissible,
especially where there was no register of the marriage in official records.
Failure to present a marriage certificate is not fatal in a case where a marriage is
in dispute, as the parties can still rely on the presumption of marriage.

GR: A mere photostat copy of marriage certificate is a worthless piece of paper.
Exceptions:
1. If such photostat copy emanated from the Office of the Local Civil Registrar &
duly certified by the LCR as an authentic copy of the records in his office,
such certified Photostat copy is admissible as evidence.
2. If the photostat copies, though not certified by the office of the LCR, are
presented in court w/o objection from the opposing parties & consequently
admitted by the court, the said Photostat copies are deemed sufficient proof
of the facts contained therein & can be proof of marriage.
- 9 -

Note: Mere cohabitation is not direct proof of marriage. The conduct of the parties, in
order to constitute evidence of marital consent, must be something more than more
living together; it must be an association, consciously & openly, as H&W.

Delgado Vda. Dela Rosa v. Heirs of Mariciana Rustia Vda. De Damian (2006)
the absence of a record of the contested marriage was asserted to assail the existence
of the marriage. The SC, after reviewing the evidence, rejected such assertion. The
absence of a marriage contract is not always proof that no marriage in fact took place.
Other evidence may be presented to support such fact. The evidence need not
necessarily or directly establish the marriage but must at least be enough to
strengthen the presumption of marriage.

Proof to Attack Validity of Marriage
Anyone assailing the validity of a marriage is required to make plain, against the
constant pressure of presumption of legality, the truth of law & fact that the
marriage was not legal.
The evidence to repel that presumption must be strong, distinct & satisfactory.

Perido v. Perido The statement of the civil status of a person in a CERTIFICATE OF
TITLE issued to him is not conclusive to show that he is not actually married to
another. It is weak & insufficient to rebut the presumption that persons living together
as H&W are married to each other.

Republic v. CA An official certification of the Office of the LCR of a municipality,
where a particular ML has been issued as indicated in the marriage contract, stating
that, after EARNEST EFFORT to locate & verify the existence of the particular ML, the
said office has no record of the ML, or is issued to another couple, or is spurious &
fabricated, is a convincing evidence to destroy the validity of marriage on the ground
of absence of a valid ML.

Nicdao Carino v. Carino (2001) It was shown that the marriage contract did not
indicate the ML, & there was a certification from the pertinent LCR stating that, after
EARNEST EFFORTS to look for the ML, the said office had no record of the ML of the
parties & therefore, it cannot issue a true copy of the same. The SC said that such
certification was adequate to prove the non-issuance of a ML, and absent any
suspicion, it enjoyed probative value considering that the LCR was the officer charged
under the law to keep a record of all data relative to the issuance of a ML.

Sevilla v. Cardenas (2006) The LCR certified that there was no ML despite the
exertion of all efforts but w/ admission that, due to the work load of the said office, it
cannot give full force in locating the ML compounded by the fact that the custodian
already retired. The SC did not allow the nullity of the marriage on the ground of
absence of a ML considering that the circumstances & the certification do not
categorically & w/ absolute certainty show & state that the ML cannot be found & that
there were earnest efforts to look for the same.

Fernandez v. Puatu Any presumption of marriage from the fact that there was
cohabitation between a man & a woman many years ago may be considered offset by
the fact that, for the last 35 years of their lives, they lived separately & several
thousands of miles away from each other.

Republic v. Obrecido (2005) The legal status of a person to marry, his/her rights
& duties are governed by law or contract & thus can be a subject of a petition for
declaratory relief.

Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by
this Title, and to administer oaths to all interested parties without any charge in both cases.
The documents and affidavits filed in connection with applications for marriage licenses shall
be exempt from documentary stamp tax. (n)
Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses
filed with him in a registry book strictly in the order in which the same are received. He
shall record in said book the names of the applicants, the date on which the marriage
license was issued, and such other data as may be necessary. (n)

Marriage Register
The LCR keeps a marriage register of all persons married in its locality
In the marriage register, there shall be entered:
1. Full names, address & age of contracting parties
2. date & place of solemnization of the marriage
3. full names & address of the witnesses & their relation w/ the contracting
parties
4. full name, title & address of the person who solemnized the marriage

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and
38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As
amended by Executive Order 227)

GR: The Philippines follows the lex loci celebrationis. The validity of a marriage is to
be determined by the law of the place where it is celebrated. Thus, marriages
solemnized abroad & w/c are valid there as such are recognized as valid here.

Exceptions:
1. one or both of the parties are below 18 years of age
2. bigamous/polygamous marriages not falling under Art. 41 or covered by the
Muslim Code
3. mistake of identity
4. subsequent void marriages under Art. 53
5. psychological incapacity
6. incestuous marriages
7. void marriages by reason of pubic policy
8. common-law marriages
9. same sex marriages

Note: #1 refers to marriages abroad between a Filipino & Filipina and NOT between a
Filipino/a and an alien married in the aliens state where the alien, though between 18
years of age, is capacitated to marry. Reason: With respect to legal capacity, the
Philippines follows the NATIONALITY RULE.
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A Matter of International Comity
the legal effect w/c may be given by 1 state to the marriage laws of another state
is merely because of comity or because public policy & justice demand the
recognition of such laws
No state is bound by comity to give effect in its courts to laws w/c are repugnant
to its own laws & policy. Reason: Every sovereign state has the right to declare
what marriages it will or will not recognize, regardless of whether the participants
are domiciled w/in or w/o its borders & notwithstanding such marriages validity
under the laws of a foreign state where such marriages were contracted.

SOLEMNIZED CONTRACTED
Performance of the formal act or ceremony
by w/c a man & woman contract marriage
& assume the status of H&W
Has a narrower meaning
Precludes local recognition of common law
marriages w/c did not undergo the process
of solemnization
Performed by way of mere
agreement of the parties
Broader & may include as 1 of its
modes the process of solemnization

Enriquez v. Enriquez The Philippines, even during the Spanish rule, has never
recognized common-law marriages

Requirements for to Prove Foreign Marriage
1. Prove the foreign law as a question of fact
2. Prove the celebration of marriage pursuant thereto by convincing evidence

Note: If such law of the other state is not pleaded or proved, the laws of such state, in
the absence of proof to the contrary, will be presumed by the court to be the same as
the laws of its own state

Yao Kee v. Sy-Gonzales (1988) The burden of proof to show the fact of marriage
& the foreign marital law is upon the one who asserts the validity of the marriage
celebrated abroad.

Board of Commissioners v. Dela Rosa (1991) Considering that in case of doubt,
all presumptions favor the solidarity of the family & every intendment of the law or
facts leans toward the validity of marriage, he who asserts that the marriage is NOT
VALID under our laws bears the burden of proof to present the foreign law. This case
shifted the burden of proof from the one who asserts the validity of a marriage to the
one assailing the validity of the marriage.

Absolute Divorce - NOT recognized in the Philippines if bet. 2 Filipinos

Cang v. CA - divorce initiated by a Filipino is against public policy

Tenchavez v. Escano In a case where a Filipina wife obtained a divorce from her
Filipino husband in Nevada, USA, the divorce, though recognized in the USA or even
the rest of the world, was declared by the SC as not recognizable here in the Phil.
Thus, insofar as the Phil. is concerned, the wife, in entering into a subsequent
marriage w/ an American by virtue of the divorce, technically committed adultery.
Basis: Art. 15 & 17 of the NCC.

Republic v. Obrecido For purposes of Art. 26, the determinative point when the
foreigner who procured the divorce should be a foreigner is at the TIME OF THE
DIVORCE, and NOT at the time of the marriage ceremony.

Van Dorn v. Romillo Where a valid marriage is celebrated bet. a Filipino citizen & a
foreigner, and subsequently, the foreigner obtains a valid divorce abroad capacitating
him/her to remarry, the Filipino shall likewise have capacity to remarry.

Quita v. CA - If the Filipino spouse subsequently acquires his/her foreign spouses
citizenship before the divorce & s/he initiates the divorce proceeding, the eventual
divorce decree will be recognized in the Phil. NOT because of Art. 26, but because of
our adherence to the nationality principle w/ respect to legal capacity.

Note: In case the former Filipino spouse who has been naturalized as a foreign citizen
decides to return to the Phil & reacquire Phil. citizenship, the divorce decree will still
be recognized here.

Van Dorn v. Romillo In the event that it is the Filipino who obtains the foreign
absolute divorce, such divorce will NOT be recognized here. But insofar as the
foreigner is concerned, the divorce WILL be recognized here because of the
Philippines adherence to the nationality rule. Thus, even after an absolute divorce
obtained in another country by the Filipino spouse has been decreed, a foreigner-
spouse cannot claim that s/he still has an interest in the property acquired by the
Filipino after the divorce, on the ground that, as to Phil. laws, his/her marriage to the
Filipino is not considered terminated. As to the foreigner, s/he shall be considered
divorced, and thus will NOT have any interest in properties acquired by the Filipino
after the divorce.

Pilapil v. Ibay Somera In the event that a Filipino wife decides to have sexual
intercourse w/ another man after such wife obtains an absolute divorce abroad, the
foreigner husband cannot file a criminal case for adultery because, while the Filipino
wife is STILL considered MARRIED to him under Phil. laws, such foreigner is NOT
considered married to her & thus does NOT have legal standing to file such criminal
case.

Bayot v. CA The SC affirmed the dismissal of a case for declaration of nullity on the
ground that petitioner already obtained a divorce in another country. The petitioner
lacks cause of action for declaration of nullity of marriage, a suit w/c presupposes the
existence of a marriage. With the valid foreign divorce secured by Rebecca, there is no
more marital tie binding her to Vicente. There is no more marriage to be nullified.

Void & Voidable Foreign Marriages
Void or voidable marriages under the laws of the state where it has been
solemnized shall likewise be void or voidable in the Phil.

Chapter 2. Marriages Exempted from License Requirement

Art. 27. In case either or both of the contracting parties are at the point of death, the
marriage may be solemnized without necessity of a marriage license and shall remain valid
even if the ailing party subsequently survives. (72a)
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Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall
state in an affidavit executed before the local civil registrar or any other person legally
authorized to administer oaths that the marriage was performed in articulo mortis or that
the residence of either party, specifying the barrio or barangay, is so located that there is
no means of transportation to enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to ascertain the ages and relationship
of the contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in the last preceding article, together with the
legible copy of the marriage contract, shall be sent by the person solemnizing the marriage
to the local civil registrar of the municipality where it was performed within the period of
thirty days after the performance of the marriage. (75a)
Art. 31. A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the zone of
military operation, whether members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities
may be performed validly without the necessity of marriage license, provided they are
solemnized in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall be necessary for the marriage of a man and a woman who have
lived together as husband and wife for at least five years and without any legal impediment
to marry each other. The contracting parties shall state the foregoing facts in an affidavit
before any person authorized by law to administer oaths. The solemnizing officer shall also
state under oath that he ascertained the qualifications of the contracting parties are found
no legal impediment to the marriage. (76a)

Exemption from Marriage Licenses
1. Marriages in articulo mortis where at least 1 of the parties is at the point of
death
2. Marriages in remote places, 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 LCR
3. Marriages among Muslims (governed by the Code of Muslim Personal Laws)
4. Marriages among ethnic groups w/c are performed in accordance w/ their
customs, rites & practices (governed by the Organic Act for the Cordillera
Autonomous Region CAR)
5. Persons who have been cohabiting for at least 5 years and w/o any legal
impediment to marry each other
a. They must live as such for at least 5 years characterized by
exclusivity & continuity that is unbroken
b. They must be w/o any legal impediment to marry each other.

Note: During the 5-year period, it is NOT necessary that they must not have suffered
from any legal impediment. The parties must be w/o legal impediment only at the
time of the marriage ceremony & not during all those previous 5 years.

Legal Impediment any possible ground or basis under the Family Code to make a
marriage infirm (e.g. non-age, status of being already married, etc.)

Solemnizing Officers under Art. 7
& the Mayor
Chief Pilots / Ship Captains /
Military Commander
May solemnize marriages w/o a valid ML
if either or both of the contracting parties
are at the point of death
May only solemnize marriages in
ARTICULO MORTOS

ART. 34, FAMILY CODE ART. 76, OLD CIVIL CODE
The parties must have NO LEGAL
IMPEDIMENT.
The parties must be UNMARRIED.
For as long as the there is no legal
impediment at the time of the
MARRIAGE CEREMONY, the parties can
avail of the exception.
It was mandatory that during the
WHOLE 5 YEAR PERIOD, the
contracting parties must be unmarried.

Art. 34 of the FC REPEALED Art. 76 of the OCC!!!
Under Art. 34, a spouse who was living in w/ his/her paramour can avail of this
exception & marry his/her paramour w/o a ML after the death of his/her spouse.
Under Art. 34, the contracting parties shall state:
1. the fact of their cohabitation for at least 5 years, AND
2. the absence of any legal impediment to marry in an affidavit before any
person authorized by law to administer oaths
The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties & found no legal impediment to the
marriage. The failure of the solemnizing officer to investigate shall not invalidate
the marriage.

De Castro v. Assidao-De Castro (2008) - The nullity of a marriage on the ground
of absence of a valid ML upon evidence that there was in fact no cohabitation for 5
years contrary to the statements in the falsified affidavit executed by the parties. The
falsity of the affidavit cannot be considered to be a mere irregularity considering that
the 5-year period is a substantial requirement of the law to be exempted from
obtaining a ML.

Loria v. Felix The procedure laid down in Arts. 29-30 relative to the duties of the
solemnizing officer w/ respect to the affidavit s/he has to execute is merely directory
in character. Non-observance of the requirements will NOT render the marriage void
or voidable.

Chapter 3. Void and Voidable Marriages

Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless
such marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the
other; and
(6) Those subsequent marriages that are void under Article 53.
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Void Marriages - that w/c is not valid from its inception
1. Absence of any of the essential or formal requisites makes a marriage void;
Exceptions:
a. Marriages exempt from license requirement
b. Solemnizing officer was not legally authorized to perform marriage,
but either or both of the parties believed in good faith that the
solemnizing officer had the legal authority to do so
2. Arts. 35, 36, 37, 38, 40, 41, 44, 45, 53 in relation to 52

Note: Only marriages declared void by the legislature should be treated as such.
There can be no other void marriages outside of those specifically provided by law.

Example:
1. A court appointed guardian & his/her ward can marry each other.
2. Stepbrothers & stepsisters can validly marry each other.

VOID MARRIAGES VOIDABLE MARRIAGES
Not valid from its inception; it is considered
has having never to have taken place &
cannot be the source of rights
Valid until otherwise declared by the
court
Can never be ratified Can generally be ratified by
cohabitation by or prescription
GR: can be attacked collaterally - nullity of
the marriage can be asserted even if it is
not the main/principal issue of a case
Must be assailed in a direct proceeding
- it is a suit precisely filed to assail the
of a marriage or to assert the nullity of
the marriage for the court to issue the
proper judicial declaration
Can be questioned even after the death of
either party
Can be assailed only during the lifetime
of both parties & not after the death of
either
The action or defense for nullity is
imprescriptible
The action prescribes
Any interested party may attack a void
marriage
Only the parties (H&W) or those
designated by the law (e.g. parents &
guardians) to a voidable marriage can
assail it
GR: the property regime is one of co-
ownership under Arts. 147 & 148
E: Art. 43, par. 2, 3, 4 & 5 apply in cases of
void subsequent marriages resulting from
non-observance of Art. 40
Property regime is generally ACP or
CPG (governed by Art. 43, par. 2, 3, 4
& 5)
GR: the delivery of the presumptive
legitime is not required (governed by Arts.
147 & 148)
E: void subsequent marriage resulting from
non-observance of Art. 40 in rel. to Arts. 52
& 53 (governed by Art. 43, par. 2, 3, 4 & 5)
The presumptive legitimes of the
common children must be delivered
Children conceived in void marriages are
illegitimate, except under Art. 36 & 53
Children conceived before its
annulment are legitimate

Mallion v. Alcantara (2006) The grounds for a void marriage may co-exist in 1
case. Hence, a petition may contain many grounds for nullity of marriage (e.g.
absence of consent, no ML, psychologically incapacity, bigamy) but it only has ONE
CAUSE OF ACTION, w/c is the nullity of marriage.
In this case the petition, after being denied the nullity of his marriage via a
petition based on psychological incapacity, subsequently filed another petition for
nullity of marriage based n the absence of a ML, the SC directed the dismissal of the
subsequent case on the ground that the petitioner violated the rule on splitting-a-
cause of action, that the rule on res judicata applied & that petition waived the defect.
The SC said that a case for nullity of marriage involved only 1 cause of action w/c was
to declared the marriage void.

Mel Sta. Maria: The decision did not take into account that no amount of ratification,
waiver, acquiescence or estoppels can validate a marriage. This is so because a void
marriage is invalid from the very beginning. It cannot be validated directly or
indirectly. In this particular case, the SC gave a valid effect to an invalid marriage w/c
is inconsistent w/ the very notion of void marriages.

Good Faith (GF) or Bad Faith (BF) in Void Marriages

GR: GF & BF are immaterial in determining whether or not a marriage is null & void.
Exceptions:
1. Art. 35(2) - If either of the contracting parties is in GF in believing that a
solemnizing officer has authority to solemnize a marriage though s/he
actually has none, the marriage will be considered valid
2. Art. 41 A person whose spouse disappears for 4 or 2 years, in the proper
cases, the present spouse may validly marry again if s/he:
a. Has a well-founded belief that his/her spouse is dead
b. Procures a judicial declaration of presumptive death
c. At the time of the subsequent marriage ceremony, is in GF together
w/ the subsequent spouse
Otherwise, the subsequent marriage shall be considered void.
Note: The GF even of only 1 of the contracting parties shall make the marriage valid.
To be void, both of the contracting parties must be in BF.

Chi Ming Tsoi v. CA The action to declare a marriage void may be filed by either
party, even the psychologically incapacitated one.

Note: The equitable doctrine of unclean hands where the court should not grant relief
to the wrongdoer is NOT a rule as applied in nullity actions because it is merely judge-
made and has no statutory basis. Significantly, while the FC generally refers to an
injured party in annullable/voidable marriages, it does not make any statutory
reference to an injured party in null & void marriages. But the party who knew that
s/he was entering a void marriage before its solemnization may be held liable for
damages by the other contracting party under Arts. 19, 20 & 21.

Bad Faith as Affecting Property Disposition in determining the disposition of
properties in a void marriage, GF & BF of 1 of the parties at the time of the marriage
ceremony is material

- 13 -

Domingo v. CA for purposes of remarriage, the only acceptable proof to show that
the voidness of the 1
st
marriage is a judicial declaration issued by the court directly
stating that the 1
st
marriage is null & void

De Castro v. Assidao-De Castro (2008) Petitioner filed a complaint for support
against her husband to compel the latter to support their child. The husband defense
was that they were not married. The SC ruled that while the case was 1 of support,
the lower court can make a declaration that the marriage was void to determine the
rights of the child to be supported. The SC rejected the contention that a separate
case for judicial declaration of nullity must be filed 1
st
before the lower court, in a case
for support, can rule that the marriage was void.

VOID MARRIAGES
1. Below 18
years old
Consent of the parties is immaterial & will not make the marriage
valid
Subsequent parental consent cannot ratify the void marriage
2. Non-
authority of
solemnizer
If either or both of the contracting parties believed in GF that the
solemnizer had legal authority to do so when in fact s/he has non,
then the marriage is valid.
GF is always presumed until the contrary is shown.
Good faith an honest & reasonable belief that the marriage was
valid at its inception, & that no legal impediment exists to impair its
validity; innocence of fraud or wrongdoing in inducing or entering
into the marriage
3. No marriage
license
Exceptions: Arts. 27, 28, 29, 30, 31, 32, 33, 34
4. Bigamous or
polygamous
Exception: those allowed under Art. 41 & the Muslim Code
If the 1
st
marriage is void & a subsequent marriage is contracted w/
a prior judicial declaration of nullity of the 1
st
marriage, the
subsequent marriage is also void because it violates Art. 40
5. Mistake in
identity
void marriage because there is a complete absence of consent
includes only situations w/c there has been a mistake as to the
ACTUAL PHYSICAL IDENTITY of the other party
Example: when one of the contracting parties marries the twin of
the other party, believing that such twin is his/her lover
It does not include mistake in the name, character of the person, or
in his/her attributes, age, religion, social standing, pedigree,
pecuniary means, temperaments, acquirements, condition in life, or
previous habits
6. Subsequent
void
marriages
under
Art. 53
For persons whose marriages have been annulled or declared void to
be able to validly marry again, they must undertake the liquidation,
partition & distribution of their properties, the delivery of the
childrens presumptive legitimes. All these requirements, including
the decree of annulment/nullity should be recorded in the LCR & the
registries of properties. Non-compliance will render any subsequent
marriage void.

Putative Marriage A matrimonial union w/c has been solemnized in due form & GF
on the part of 1 or both of the parties but w/c by reason of some legal infirmity is
either void or voidable. The essential basis of such marriage is the belief that it is valid

GR: In void marriages, the property regime is CO-OWNERSHIP. Thus, if only 1 of the
parties is in good faith:
The share of the party in BF in the co-ownership shall be forfeited in favor of their
common children
In case of default/waiver by any or all of the common children or their
descendents, each vacant share shall belong to the respective surviving
descendants
In the absence of descendants, such share shall belong to the innocent party
FORFEITURE shall take place upon the TERMINATION OF THE COHABITATION
E: Subsequent void marriage due to the failure of a party to get a prior judicial
declaration of nullity of the previous void marriage pursuant to Art. 40 of the FC.
Art. 43(2) will apply. The property regime is ACP/CPG.
The share of the party in BF in the net profits of the ACP/CPG shall be forfeited in
favor of the common children
In the absence of common children, it shall be forfeited in favor of the children of
the guilty spouse by previous marriage
In default of children, it shall be forfeited in favor of the innocent spouse

GR: Void marriages may be attacked collaterally
E: (where direct attack on the nullity of the marriage must 1
st
be taken so that proper
effects provided by law can appropriately apply):
1. Art. 40 - for purposes of remarriage ; if a person has a void marriage & s/he
wants to remarry, s/he must 1
st
file a civil case precisely to obtain a judicial
declaration of the nullity of the 1
st
marriage before s/he can remarry
2. Art. 50 - revocation of donation propter nuptias; if a donor decides to revoke
donation propter nuptias given to 1 or both spouses on the ground that the
marriage is void, it is necessary that a judicial declaration of nullity of
marriage 1
st
be obtained

IGNORANCE OF THE LAW MISTAKE OF FACT
If the contracting parties go before a person
not specifically mentioned by law as having
any authority to solemnize a marriage; the
GF/BF of the parties is immaterial because
they cannot be excused from being ignorant
of the persons authorized by law to
solemnize marriage. Ignorance of the law
excuses no one from compliance therewith.
If the contracting parties go before a
person stated by law as qualified to
solemnize a marriage but in fact is not
because of the non-fulfillment of a
requirement by law, then the GF of the
parties in believing that the solemnizer
had authority is material.
GF/BF of the parties is IMMATERIAL GF/BF of the parties is MATERIAL

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)

Psychological incapacity must be characterized by:
1. Root cause
2. Juridical antecedence
3. Gravity
4. Incurability

- 14 -

Republic v. Dagdag (2001) Determination of psychological incapacity depends on
the facts of the case. Each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations but according to its own facts.

Tongol v. Tongol (2007) While a person may be truly very efficient & mentally
capable in undertaking a particular profession in life, s/he can still be considered as a
completely irresponsible person vis-a-vis his/her married life if s/he spends almost the
whole day working & not minding his/her family.

Note: The incapacity is limited to his and/or her failure or disregard to comply w/ his
and/or her essential marital obligations.

Trivia!
Q: Why is insanity a ground for voidable marriage, while psychological incapacity
is a ground for void ab initio marriages?
A: Insanity is curable & there are lucid intervals, while psychological incapacity is not.
(Justice Caguioa)

Cases Where the SC Declared the Marriage Void on the Ground of Art. 36:
1. Chi Ming Tsoi (1997) Procreation is one of the essential marital obligations
under the Family Code. If a spouse who is physically capable but simply
refuses to perform such marital obligation, & the refusal is senseless &
constant, such senseless refusal is equivalent to psychological incapacity. The
prolonged refusal of a spouse to have sexual intercourse w/ his/her spouse is
considered a sign of psychological incapacity.
2. Te v. Te (2009) Petitioner was suffering from dependent personality
disorder and the respondent was also suffering from narcissistic & anti-social
personality disorder, both consistent w/ psychological incapacity to perform
the essential marital obligations. The marriage was declared null & void.
3. Halili v. Halili (2009) The SC granted the nullity of the marriage based on
the finding that the petitioner was suffering from mixed personality disorder
from self-defeating personality disorder to dependent personality disorder.

Bier v. Bier (2008) The manifestations of psychological incapacity must be
attributed to a psychological illness & not mere physical illness.

Antonio v. Reyes (2006) Void ab initio marriages under Art. 36 do not further the
initiatives of the State concerning marriage & family, as they promote the wedlock
among persons who, for reasons independent of their will, are not capacitated to
understand/comply w/ the essential obligations of marriage.

PSYCHOLOGICAL INCAPACITY PSYCHOLOGICAL INCAPACITY
Unreasonable attachment by the spouse
to his/her family (father, mother,
siblings) or to spouses friends/barkada
such that the devotion w/c should be
given to his/her own spouse & children
are subordinated to said attachment
Actual breakdown of family life
characterized by separation of H&W
Separation/abandonment alone is not
conclusive proof of PI
Cannot be mere refusal/neglect to
comply w/ the obligations, it must be
downright incapacity to perform
Mere incompatibility & irreconcilable
differences are not enough
Mere isolated idiosyncracies of a spouse
are not
Republic v. CA & Molina (1997) Molina guidelines in invoking & proving
psychological incapacity:
1. The burden of proof to show the nullity of the marriage belongs to the
plaintiff
2. The root cause of the psychological incapacity must be:
a. Medically/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. The incapacity must be shown to be medically/clinically permanent/incurable.
Such incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex.
5. The illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage.
6. The essential marital obligations must be those embraced by Arts. 68-71 as
regards the H&W, & Arts. 220, 221 and 225 as regards to parents & their
children.
7. Interpretations given by the Natl Appellate Matrimonial Tribunal of the
Catholic Church of the Phil., while not controlling/decisive, should be given
great respect in our courts.
8. The trial court must order the prosecuting attorney/fiscal & the Solicitor
General to appear as counsel for the state. (The certification of the Solicitor
General is not anymore needed pursuant to an en banc resolution.)

Laurena v. CA (2008) The totality of the marriage life as affected by the gross
irresponsibility & utter disregard by the subject spouse toward family life as
manifested by his/her actions must be taken into consideration

Note: The ground of psychological incapacity is a PERSONAL & LIMITED one. It does
not mean that just because a person is psychologically incapacitated to perform
his/her marital obligations w/ his/her spouse, this would also be the case w/ any other
person other than his/her spouse.

People v. Hamano (2004) The fact that the person alleged to be psychologically
incapacitated is a foreigner does NOT negate the existence of such incapacity. The
medical & clinical rules to determine psychological incapacity were formulated on the
basis of studies of human behaviour in general. Hence, the norms used for
determining psychological incapacity should apply to any person regardless of
nationality.

Hernandez v. CA (1999) Expert testimonies of a psychologist/psychiatrist
evaluating the behavioural pattern of the person alleged to be psychologically
incapacitated are extremely helpful.

Marcos v. Marcos (2000) The personal medical/psychological examination of
respondent is not a requirement for a declaration of psychological incapacity & it is not
a condition sine qua non for such declaration.

- 15 -

Paras v. Paras (2007) The Court may or may not accept the testimony of the
psychologist/psychiatrist because the decision must be based on the totality of the
evidence.

Azcueta v. Azcueta (2009) - The SC, in granting the nullity of marriage due to the
dependent personality disorder of respondent as reliably assessed by the competent
psychiatrist who did not personally examine the respondent said that by the very
nature of Art. 36, courts, despite having the primary task & burden of decision-
making, must not discount but, instead, must consider as decisive evidence the
expert-opinion on the psychological & mental temperaments of the parties.

Antonio v. Reyes (2006) The SC adhered to the medical & clinical findings of the
psychiatrist/psychologist who did not personally examine the subject but were given
reliable data about the respondent & read the pertinent court records in coming up w/
a more reliable assessment that the respondent was a pathological liar, as against the
faulty clinical & medical findings of the psychiatrist of the respondent who examined
the respondent & claimed that the respondent was not suffering from psychological
incapacity. The mere fact that a psychiatrist personally examined the subject person is
not an assurance that his/her findings would be sustained.

Rumbaua v. Rumbaua (2009) The SC denied the petition for nullity of marriage on
the ground that the psychological report was very general & did not state specific
linkages between the personality disorder & the behavioural pattern of the spouse
during the marriage.

Krohn v. CA (1994) In a case for nullity of marriage, the husband sought to
introduce the confidential psychiatric evaluation report made by the psychiatrist w/
respect to his wife. This was objected by the lawyer of the wife on the ground that
such a report was w/in the privileged communication rule between doctor & patient.
The SC ruled that the testimony of the husband w/ respect to the report was not w/in
the doctor-patient privileged communication rule since the one who would testify is
not the doctor but the husband. (Note: For failing to object to the testimony on the
ground that it was hearsay, counsel waived his right to make such objection. Thus,
the evidence offered may be admitted.)

Najera v. Najera (2009) The testimony of the psychologist was also inadequate
and in fact did not conform to one of the persuasive evidence, w/c is the decision of
the church matrimonial tribunal that nullified the marriage not on psychological
incapacity but on a different church ground, the SC ruled against the nullity of the
marriage.

Buenaventura v. CA The SC disallowed the award of moral damages, exemplary
damages & attorneys fees on the ground that the very nature of psychological
incapacity w/c is non-cognizance of ones essential marital obligation at the time of
the marriage ceremony, negates bad faith, w/c is an essential element in awarding
moral damages in contracting the marriage.

Art. 37. Marriages between the following are incestuous and void from the beginning,
whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)
Reasons for Prohibition of Incestuous Marriage
1. They are grossly indecent, immoral, inimical to the purity & happiness of the
family & welfare of future generations
2. They are abhorrent to the nature of both civilized & barbarous people
3. They tend to the confusion of rights & duties incident to family relations
4. Such intermarriages very often result in deficient & degenerate offsprings w/c
would amount to a serious deterioration of the race
5. Social prohibitions against incest promote the solidarity of the nuclear family.

Art. 38. The following marriages shall be void from the beginning for reasons of public
policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth
civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse. (82)

Collateral Blood Relatives by Consanguinity
Those up to the 4
th
civil degree may disturb the policy of the state as it may likely
result though not that in the same gravity, in the dangers & confusion attendant
in incestuous marriages
Relationship by consanguinity is in itself not capable of dissolution (e.g. the mere
fact that the grandfather died does not sever the blood relationship of 1
st
cousins)

Collateral Blood Relatives by Consanguinity
In Re Simms Estate (New York Court of Appeals) A marriage between uncle &
niece by the half blood is not incestuous & void. Such marriage is not specifically
included by law as a void marriage and thus, cannot be considered as such.

Relationship by Affinity
The husband has the relation, by affinity, to his wifes blood relatives as she has
to them by consanguinity, and vice versa
Affinity a connection formed by marriage
The only marriages by affinity w/c prohibited are:
1. Between step-parents & step-children
2. Between parents-in-law & children-in-law
Step-brother & step-sister can marry each other as this relationship by affinity is
not included in the prohibition.

Effect of Termination of Marriage on the Affinity Prohibition
1. If the spouses have no living issues or no children & 1 of the spouses dies,
the relationship of affinity is dissolved.
2. If the spouses have living issues or children of the marriage in whose veins of
the blood of the parties are commingled, the relationship of affinity is
continued despite the death of 1 of the spouses since the relationship of
affinity was continued through the medium of the issue of the marriage.
- 16 -

Adoptive Relationship
The relationship created in adoption is merely limited to one of parent & child. In
making these void marriages against public policy, the law seeks to duplicate the
structure of the natural family & to ensure that the artificial family will mirror a
natural family not only in terms of legal relationships but also in the emotional
content & social significance of such a relationship.

ADOPTER CANNOT MARRY: ADOPTED CANNOT MARRY:
1. The adopted
2. The adopteds surviving spouse
1. The adopter
2. The adopters surviving spouse
3. The adopters legitimate child
4. The adopters other adopted children
ADOPTER MAY VALIDLY MARRY: ADOPTED MAY VALIDLY MARRY:
1. The adopteds legitimate, illegitimate
or adopted child
2. The adopteds natural parent
3. The adopteds other relatives,
whether by consanguinity or affinity
1. The adopters parents
2. The adopters illegitimate child
3. The adopters other relatives,
whether by consanguinity or affinity

Intentional Killing of Spouse
Highly criminal, involving grave moral turpitude, destructive of the family & whole
society
In killing his/her spouses, the guilty party must be animated by an intention to
marry another person
No prior criminal conviction by the court for the killing is required. The mere
preponderance of evidence is required to prove the killing.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not
prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase
"However, in case of marriage celebrated before the effectivity of this Code and falling
under Article 36, such action or defense shall prescribe in ten years after this Code shall
taken effect" has been deleted by Republic Act No. 8533[Approved February 23, 1998]).

Judicial Declaration of Nullity of Marriage Decree merely declares/confirms the
voidness, non-existence, or incipient invalidity of a marriage

Prescriptive Period the time w/in w/c to file an action for the declaration of nullity
of a marriage or to invoke such nullity as a defense, whether in a direct or collateral
manner, DOES NOT PRESCRIBE

Ninal v. Bayadog (2000) The petition for the declaration of nullity of marriage was
filed by the children of the deceased contracting party only after the latters death.
The SC ruled that such a petition can still proceed. The SC justified its decision by
stating that a void marriage is considered as having never to have taken place & will
be treated as nonexistent. The petition is imprescriptible & can be filed by the children
even after the death of the contracting party who was their father.

SC EN BANC RESOLUTION AM NO. 02-11-10 (15 MARCH 2003)
Repealed the Ninal Ruling!!!
Carlos v. Sandoval (2008) - ONLY THE HUSBAND & WIFE can file the case, and
if filed, the case will be closed or terminated if during its pendency, either the
husband or wife should die
Enrico v. Heirs of Medinaceli (2007) The HEIRS CAN NO LONGER file a case
for the nullity of the marriage of their parents, or of their parent w/ their step
parent. Neither can the parents file a case for nullity in relation the marriage of
their children.

Note: A void marriage can still be collaterally attacked by any interested party in any
proceeding where the determination of the validity of the marriage is necessary to
give rise to certain rights or negate certain rights. (e.g. an intestate proceeding where
certain heirs can attack the validity of the marriage of the deceased parent so that the
children of the deceased parent can be considered illegitimate for purposes of
inheritance)

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)

Judicial Declaration of Nullity (JDN)
If a marriage bet. 2 contracting parties is void ab initio, any 1 of them cannot
contract a subsequent valid marriage w/o a previous judicial declaration of nullity
of the previous void marriage.
However, even if the 1
st
marriage is judicially declared void, any subsequent
marriage may still be declared void because of failure to comply w/ Arts. 52-53.
Purpose: to do away w/ any continuing uncertainty on the status of the 2
nd

marriage

Historical Background of the Need for a Judicial Declaration of Nullity
1954, 1957 no need for a JDN of a void marriage
1970, 1971 there was a need for a JDN of a void marriage
1977, 1983 - no need for a JDN of a void marriage
Aug. 1986 - there was a need for a JDN of a void marriage
Oct. 1986 - no need for a JDN of a void marriage
1988, FC - there is now a need for a JDN of a void marriage only for purposes of
remarriage

FAILURE TO COMPLY W/ ART. 40 BIGAMOUS VOID MARRIAGE
If the 1
st
marriage is void, & a party to
that 1
st
marriage subsequently remarries
w/o obtaining a JDN of the 1
st
marriage,
the 2
nd
marriage is void.
If the 2
nd
marriage was contracted at the
time when the 1
st
marriage, w/c was
valid in all respects, was still subsisting.
The 2
nd
marriage is void NOT because it is
bigamous, but because it failed to comply
w/ Art. 40
The 2
nd
marriage is VOID because it is
bigamous.
NO BIGAMY because the 1
st
marriage is
void.
There is BIGAMY because the subsisting
1
st
marriage is valid.

- 17 -

Criminal Bigamy, Art. 349 of RPC
Bigamy is committed by any person who shall contract a 2
nd
or subsequent
marriage before the former marriage has been legally dissolved, or before the
absence spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceeding
But if the 2
nd
marriage is likewise void because of legal grounds other than
bigamy, there can be NO CRIME OF BIGAMY
A void marriage is a defense in a criminal bigamy case regardless of whether or
not a JDN has been obtained
Good faith in contracting the 2
nd
marriage is a defense in the crime of bigamy

Art. 41. A marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (83a)
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless
there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be
recorded in the civil registry of the residence of the parties to the subsequent marriage at
the instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed. (n)

GR: a marriage contracted during the lifetime of the 1
st
spouse is null & void for
being bigamous
E: a bigamous marriage may be considered valid if, prior to the subsequent
marriage & w/o prejudice to the effect of the reappearance of the other spouse, the
present spouse obtains a judicial declaration of presumptive death via a summary
proceeding in a court of competent jurisdiction

Requisites of a Valid Bigamous Marriage
1. The prior spouse has been absent for 4 consecutive years, or 2 consecutive
years where there is danger of death
2. Present spouse had a well-founded belief that the absent spouse is dead
3. Present spouse institutes a summary proceeding & obtains a judicial
declaration of presumptive death

Judicial Declaration of Presumptive Death (JDPD)
w/o prejudice to the effect of reappearance of the absent souse
it is merely a statement to the effect that the prior spouse is merely presumed
dead
the declared presumption is only prima facie, & can be overthrown by evidence
the fact of death is NOT really established
it immunizes the present spouse from being charged of bigamy, adultery or
concubinage
GR: No JDPD is required as such presumption arises from the law.
E: Under Art. 41, a JDPD is mandatorily required for the purpose of capacitating the
present spouse to remarry.

Termination of Subsequent Marriage

GR: Automatic termination of the subsequent marriage can be obtained by the
recording of an affidavit of reappearance of the absent spouse in the civil registry of
the residence of the parties to the subsequent marriage
E: there is a judgment annulling the previous marriage or declaring it void ab initio

GR: the automatic termination of the subsequent marriage is the ONLY instance
where a marriage is terminated EXTRA-JUDICIALLY
E: if the reappearance is disputed, the same shall be subject to JUDICIAL
determination

GR: The termination of the subsequent marriage is AUTOMATIC upon the recording of
the sworn statement in the proper civil registry.
E: The automatic termination will be rendered ineffectual if the alleged reappearing
spouse is actually an imposter. This is because the termination is w/o prejudice to the
outcome of any judicial proceeding questioning such reappearance.

Liquidation of the Properties of the 1
st
Marriage
if there is NO LIQUIDIATION of the properties of the 1
st
marriage and the present
spouse remarries the property regime of the subsequent marriage will be
complete separation of property
if there is LIQUIDIATION of the properties of the 1
st
marriage & the present souse
remarries the parties may agree in the settlement as to the property regime

Republic v. Nolasco A Filipino seaman wanted to get a JDPD from the court
relative to his missing English spouse. The SC ruled that the Filipino seaman failed to
conduct a search for the missing wife w/ such diligence to give rise to a well-founded
belief that she was dead. He did not even write to the parents of his 1
st
wife for
purpose of securing info re: her whereabouts. He also failed to explain why he did not
even try to get help of the police or other authorities in London & Liverpool in his
effort to find his wife.

Republic v. CA (2005) Where the person seeking a JDPD presented only the Brgy.
Captain, but did not present the persons from whom he allegedly made inquiries, &
did not even make inquiries w/ his parents-in-law who knew of his wifes
abandonment of the conjugal abode, the SC ruled that there was failure to prove a
well-founded belief that the wife was already dead.

Sworn Statement of Reappearance
the subsequent marriage is automatically terminated by the recording of the
affidavit of reappearance in the civil registry of the residence of the parties to the
subsequent marriage
any interested party may filed this sworn statement of reappearance

- 18 -

Interested Party includes:
1. parents
2. children
3. present spouse
4. subsequent spouse of the present spouse
5. parents & children of the subsequent spouse

SSS v. Jarque v. Jarque Vda. De Bailon (2006) If the absentee reappears, but no
step is taken to terminate the subsequent marriage, either by affidavit or court action,
such absentees mere reappearance, even if made known to the spouses in the
subsequent marriage, will NOT terminate such marriage. By fiction of law, s/he must
still be regarded as legally an absentee until the subsequent marriage is terminated.

Mel Sta. Maria: The better view is that if the reappearance of the absent spouse is
authentic, the JDPD is immediately FUNCTUS OFFICIO. There mere fact of
reappearance renders w/o effect the JDPD creating therefore a valid bigamous
marriage prior to the filing of the sworn statement of reappearance.

2 Valid Marriages at the Same Time
if the reappearing spouse or any interested party does NOT file any sworn
statement of reappearance, the subsequent marriage remains validly subsisting,
while the 1
st
marriage is also considered subsisting not having been judicially
nullified/annulled
But as between the 2 marriages, the law shall protect the 2
nd
marriage rather
than the 1
st
. Reason: if indeed the reappearing spouse wants to assert his/her
rights, s/he could easily file the affidavit of reappearance to terminate the
subsequent marriage.

Note: the statutory requirement of the filing of the sworn statement of reappearance
serves as the best evidence to show that the State is prepared to return the
preference to the 1
st
marriage & consider it as the only marriage if even 1 of the
parties or any interested person so desires

Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be,
shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith,
his or her share of the net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted
the marriage in bad faith, such donations made to said donee are revoked by operation of
law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad
faith as beneficiary in any insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall
be void ab initio and all donations by reason of marriage and testamentary dispositions
made by one in favor of the other are revoked by operation of law. (n)

Status of Children

GR: children conceived during the subsequent marriage contemplated in Art. 41 in
cases of presumptive death of 1 of the spouses & before termination of the same shall
be considered LEGITIMATE; this is so even if 1 of the contracting parties is in bad faith
E: if BOTH spouses were in BAD FAITH in contracting the subsequent marriage, the
marriage is void, thus the children are ILLEGITIMATE

ONE PARTY IS IN
BAD FAITH
BOTH PARTIES ARE IN
BAD FAITH
Subsequent marriage Valid Void
Status of children Legitimate Illegitimate
Donations propter
nuptias
DONOR in BF donation is valid
DONEE in BF donation is
terminated by operation of law
revoked by operation of
law
Testamentary
Dispositions
the spouse in BF is disqualified to
inherit from the innocent spouse
by testate succession
revoked by operation of
law
Intestate
Succession
the spouse in BF is disqualified to
inherit from the innocent spouse
by intestate succession
the contracting parties
cannot inherit by
intestate succession
Designation as
Beneficiary in
Insurance Policy
the innocent spouse has the
CHOICE of revoking or
maintaining as beneficiary in an
insurance policy the spouse in BF,
even if the designation is
irrevocable

Net Profits - the guilty spouse shall forfeit his
share in favor of:
1. Common children
2. In default of the latter, the
children by previous marriage
3. In default of the latter, the
innocent spouse

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of
the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards,
with full knowledge of the facts constituting the fraud, freely cohabited with the other as
husband and wife;
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(4) That the consent of either party was obtained by force, intimidation or undue influence,
unless the same having disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other,
and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious
and appears to be incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of
the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime
involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant
by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the
time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism
existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall
constitute such fraud as will give grounds for action for the annulment of marriage. (86a)
Art. 47. The action for annulment of marriage must be filed by the following persons and
within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian
did not give his or her consent, within five years after attaining the age of twenty-one, or by
the parent or guardian or person having legal charge of the minor, at any time before such
party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no
knowledge of the other's insanity; or by any relative or guardian or person having legal
charge of the insane, at any time before the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years
after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years
from the time the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five
years after the marriage. (87a)

Annulment Cases
Actions in rem, for they concern the status of the parties, and status affects or
binds the whole world
The res is the relation between the parties or their marriage tie

GROUNDS FOR ANNULMENT OF MARRIAGE
1. No Parental
Consent
Persons 18-21 years old are considered no possessing that
degree of maturity to be able to comprehend thorough the
consequences & serious responsibilities of marital relations
2. Insanity Derangement of the mind to prevent the party from
comprehending the nature of the contract & from giving to it his
free & intelligent consent
Marriages are not invalidated by mere weakness of mind or
dullness of intellect, nor by eccentricities or partial dementia
GR: Burden of proof rests upon him who alleges insanity, or
seeks to avoid an act on account of it
E: if a previous state of insanity is proved, the burden of proof is
shifted to him who asserts that the act was done while the
person was sane
3. Fraud Non-disclosure/concealment of certain circumstances w/c
materially affect the essence of marriage
The enumeration in Art. 46 is exclusive
4. Vitiated
Consent
Violence coercion of the will by antecedent threats of bodily
harm
Intimidation 1 of the contracting parties is compelled by a
reasonable & well-grounded fear of an imminent & grave evil
upon his/her person/property, or that of his/her spouse,
descendants, ascendants, to give consent;
The intimidation has to do w/ the evil/harm arising from an
unlawful act, not from the exercise of a right.
Art. 350, RPC criminal liability attaches on anyone who uses
violence, intimidation, & fraud in contracting a marriage
5. Incapability to
Consummate
(impotency)
The permanent physical inability on the part of 1 of the spouses
to perform the complete act of sexual intercourse
Must exist at the time of the celebration of the marriage
Must be continuous & incurable
The physical incapacity to consummate arises not only from
physical causes but also from whatever causes including
psychological causes
Impotence need not be universal, it may be relative/selective.
Impotence may exist only as to the present spouse & not to
others.
GR: Potency is presumed. Whoever alleges impotency has the
burden of proving the same.
E: Rule of Triennial Cohabitation presumption of impotence
may arise if the wife remains a virgin for at least 3 years from
the time the spouses start cohabiting. The husband must show
that he was not impotent during said period & the burden will be
on him to overcome the presumption of impotence.
Alcazar v. Alcazar (2009) incapacity to consummate may
also be caused by PSYCHOGENIC causes, where such mental
block or disturbance has the result of making the spouse
physically incapable of performing the marriage act
Vanden Berg v. Vandenberg an incurable nervous disorder
on the part of the wife known as VAGINISMUS w/c renders
sexual coition impossible is good proof of inability to perform the
marital act
Not sufficient to show incapacity:
1. Epilepsy
2. Mere refusal of 1 party to engage in sexual intercourse
3. If the wife, as a result of an accident w/c occurred after the
marriage ceremony, became paralyzed w/c physically
incapacitated her from consummating the marriage not
annullable because the incapacity did not exist at the time of
the marriage ceremony
4. Devanbagh v. Devanbagh where the firmness & rigidity of
the hymen of the wife cannot easily be opened by natural
means but could be broken by simple surgical procedure not
- 20 -

annullable because the incapacity was not incurable
Sterility - NOT impotency & NOT ground for annulment
6. STD Must be serious & incurable
Must exist at the time of the marriage ceremony
Ryder v. Ryder 2 months after the marriage ceremony, H
contracted syphilis from W who had the said STD at the time of
the marriage ceremony. While the syphilis temporarily regressed
for a time, it again recurred, & their child who was born 1 year
later died of a mass of syphilitic sores traceable to W, & H cannot
anymore engage in healthy & safe sexual intercourse w/ W w/o
himself again contracting syphilis, the court held that the chronic
syphilis was grave & incurable justifying the annulment.

Villanueva v. CA (2006) Annulment cannot be left to the whims of the spouses, as
the state has a serious concern & interest over the preservation of the marriage & the
family unit brought about the same. Thus, mere non-cohabitation is not a ground for
annulment of marriage.

ACTION FOR ANNULMENT OF MARRIAGE
GROUND PARTY TO FILE SUIT PRESCRIPTION RATIFICATION
1. No Parental
Consent
a. Parent/guardian
having legal charge of
no-consent party
anytime before no-
consent party

party freely
cohabited after
reaching 21 b. No-consent party w/in 5 years after
attaining 21
2. Insanity a. Sane spouse w/o
knowledge of insanity
at any time before
death of either party

insane party
freely cohabited
after coming to
reason (only the
insane spouse
can ratify)
b. Relative, guardian or
person having legal
charge of insane
at any time before
death of either party
c. Insane spouse during lucid interval
or after regaining
sanity
3. Fraud Injured party w/in 5 years from
discovery of fraud
party freely
cohabited after
knowing fully
well the fact of
fraud
4. Vitiated
Consent
Injured party w/in 5 years from
time force,
intimidation or undue
influence
disappeared/ceased
party freely
cohabited after
the vitiation of
consent ceased
5. Incapability to
Consummate
Injured party w/in 5 years from
marriage ceremony
No ratification by
free cohabitation
6. STD Injured party w/in 5 years from
marriage ceremony
No ratification by
free cohabitation

CONCEALMENT AMOUNTING TO FRAUD
1. Concealment
of previous
Conviction
The party must have been convicted by final judgment of a
crime involving moral turpitude
Moral turpitude includes everything contrary to justice,
honesty, or good morals
GR: crimes punishable under the RPC are crimes involving
moral turpitude
The burden is on the convicted party to reveal his criminal
record. His failure to do so will constitute concealment.
2. Concealment
of Pregnancy
The law limits the fraud to the wife & not the husband
The concealment must have been done in bad faith
If the woman did not expressly inform the man of her
pregnancy, but such physical condition was readily apparent to
the man, he cannot claim lack of knowledge of such preganancy
Aquino v. Delizo - The mere fact that the woman at the time
of the marriage is 4 months pregnant cannot be conclusive as to
the apparency of such pregnancy as to bar the man from
invoking this ground.
Foss v. Foss Where a man, who knew of the unchaste
character of a woman whom he had extra-marital sexual
intercourse, & who subsequently married such woman who, at
the time of the marriage was pregnant & who assured him that
it was his child when in fact it could not have been his child, the
said man cannot be allowed to have his marriage annulled on
this fraudulent act by the unchaste wife.
NOT ANNULABLE If a woman misrepresented to her fianc
that she was pregnant for the purpose of inducing her fianc to
marry her when in fact she was not pregnant, such fianc who
entered into the contract of marriage principally because of such
inducement, cannot annul the marriage considering that there
was no pregnancy to conceal.
3. Concealment
of STD
The nature/gravity is irrelevant; need not be incurable
Consummation is not required for this ground to exist
4. Concealment of
Drug Addiction

Persistent habit of becoming intoxicated
The nature & extent of drunkenness must be such that the
person may be said to have a fixed & irresistible habit of
drunkenness whereby he lost the power/will to control his
appetite for intoxicating liquor
Rationale: it renders the spouse unfit for the duties of the
marital relation & disqualifies him from properly rearing & caring
for the children born of the marriage
5. Concealment
of Habitual
Alcoholism
Continued & excessive use of drugs (e.g. opium, morphine)
Rationale: they interfere w/ the happiness of married life, &
produce other effects upon the marriage relation as deplorable
as those resulting from excessive use of intoxicating liquor
6. Concealment of
Homosexuality/
Lesbianism
The ground is not homosexuality/lesbianism per se, but the
concealment of such sexual orientation or preference

- 21 -

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court
shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State
to take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment. (88a)
Art. 49. During the pendency of the action and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided to in Title IX. It shall also provide
for appropriate visitation rights of the other parent. (n)

Procedure in Annulment & In Declaration of Nullity Cases
If defendant fails to file an answer s/he cannot be declared in default.
If the court erroneously renders a default judgment in an annulment case, this
would not prevent the decree from having legal effect. An erroneous judgment is
not a void judgment.
The court will order the full-blown hearing of the case where the parties must
prove their grounds by preponderance of evidence.
Summary proceedings are not allowed.
Even if the allegations in the petition as to the grounds for annulment are
categorically admitted by the respondent, judgment on the pleadings cannot be
decreed by the court. The material facts alleged in the complaint shall always be
proved.
The fiscal shall appear on behalf of the State & investigate whether there is no
collusion or the evidence is not fabricated.

Mendoza v. CA An annulment suit cannot be terminated by way of a compromise
agreement. No valid compromise is legally possible on the issue of the validity of
marriage.

Role of Fiscal & Solicitor General
To make sure that there is no collusion
To make sure that evidence is not fabricated
Not only to defend a valid marriage, but to expose an invalid one

Republic v. Cuison-Melgar The prosecuting attorney must actively participate.

Sin v. Sin - Where the fiscal merely filed a manifestation that there was no collusion
& where he merely entered his appearance at certain hearings of the case but was not
heard of anymore, the SC remanded the case for further proceedings even if the judge
of the lower court already denied the petition for nullity.

Maquilan v. Maquilan (2007) A partial voluntary separation of property agreed
upon by the parties via a compromise agreement duly approved by the court prior to
the judicial declaration of nullity of marriage is valid. It cannot be voided because of
non-participation of the fiscal or OSG. An agreement to separate property is not of
itself an indicator of collusion. If there is no showing tat the compromise agreement
for the separation of property touched on the merits of the nullity/annulment case, the
participation of the fiscal or the OSG in such agreement is not needed.

Tuason v. CA If the annulment/nullity case were strongly opposed & heatedly
contested in that the defendant filed his answer, & was represented by counsel who
filed several pleadings & actively participated in the case & even cross-examined the
witnesses of the plaintiff, it is clear that the litigation was characterized by a no-holds-
barred contest & not by collusion. Under these circumstances, the non-intervention of
the fiscal to assure lack of collusion between the contending parties is not fatal to the
validity of the proceedings in court, esp. when it was not shown that evidence was
suppressed/fabricated by any of the parties.

Collusion
A corrupt agreement bet. the husband & wife w/c renders dismissible any
annulment/nullity case initiated thru the same.
Where, for purposes of getting an annulment/nullity decree, the parties come up
w/ an agreement making it appear that the marriage is defective due to the
existence of any of the grounds for the annulment or declaration of nullity &
agreeing to represent such false or non-existent cause of action before the proper
court w/ the objective of facilitating the issuance of a decree of annulment/nullity.
E.g. The commission of a matrimonial offense, or the creation of the appearance
of having committed it, w/ the consent or privity of the other arty, or under an
arrangement bet. the spouses, has been held to be collusion.
The failure to file an answer by the defendant or his/her failure to appear or in
court or be represented by counsel after the filing of his/her answer (whether
deliberate or not) CANNOT of itself be taken against the plaintiff as CONCLUSIVE
evidence of collusion, esp. since the fiscal is ordered to represent the govt to
prevent such collusion.
But the failure to answer, in connection w/ other circumstances such as an
agreement bet. the parties, duly proven in court, the respondent shall withdraw
his/her opposition or shall not defend the action, can be evidence of collusion, but
it is not THE evidence of collusion.
Even if there is an agreement bet. the parties to file the annulment/nullity case,
collusion will not exist if the grounds truly exist & are not just concocted.

Corpus v. Ochotorena (2004) A judge who doesnt order an investigation for
collusion where the situation falls squarely w/in the rules for him to order such
investigation can be subject to administrative sanction.

Stipulation of Facts - It is practically an admission by both parties made in court
agreeing to the existence of the act constituting the ground for annulment/nullity

Confession of Judgment The admission made in court by the defendant admitting
fault as invoked by the plaintiff to sever the marriage ties.

GR: Cardenas v. Cardenas and Rinen An annulment/nullity decree cannot be
issued by the court on the sole basis of stipulation of facts, or a confession of
judgment.

Exception: Ocampo v. Florenciano Stipulation of facts/confession of judgment, if
sufficiently supported/corroborated by other independent substantial evidence to
support the main ground relied upon, may warrant an annulment/nullity decree.

- 22 -

Cardenas v. Cardenas v. Rinen The 1
st
wife filed an annulment case w/ respect to
the 2
nd
marriage of her husband w/ the 2
nd
wife. During the hearing, there was
stipulation of facts entered into by the 1
st
wife & the defendants, whereby the parties
agreed that the 1
st
wife was married to her husband prior to his marriage to the 2
nd

wife. The marriage certificates of the 1
st
& 2
nd
marriages were duly attached to the
stipulation of facts & the attached marriage certificates were sufficient to declare as
null & void the 2
nd
marriage.

Support of Spouses & Custody of Children
GR: Support of the spouses & custody & support of the common children shall be
governed by whatever agreement the parties have made w/ respect to the same.
E: Should the court find the agreement to be inadequate, it may disregard the
same & make the necessary provisions w/c, in its discretion, would be adequate.
Thus, support pendent lite & custody pendente lite can be ordered.
Where the court provisionally gives support pendent lite to a spouse who, at the
end of the case, has been found out to be NOT entitled to the support because
his/her marriage w/ the one giving support is void ab initio, the court shall order
the recipient to return to the person who furnished the support the amounts
already paid w/ legal interest from the dates of actual payment.

Visitation Rights
GR: while the custody of a child may be awarded to a particular parent, this does
not derive the other parent from exercising his/her visitorial rights
E: there is a compelling right to deprive him/her of his right
Even if a parent has been legally deprived of his/her visitorial rights, this can be
reinstated if it can be shown that the grounds for deprivation have become too
harsh or are not anymore present.

GR: The court shall give paramount consideration to the moral & material welfare of
the children & their choice of the parent w/ whom they wish to remain.
E: no child under 7 years old shall be separated from the mother
E to E: the court finds compelling reasons to order otherwise

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the enforcement
of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of either
of both of the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime. (n)

Judgment of Annulment/Nullity
shall state the factual & legal basis for its conclusive disposition
a court cannot grant any relief w/c is not based on the allegation of the petition
unless issues related to the main case were presented w/ objection from any
party
considering the that the judgment in an annulment/nullity case shall involve the
dissolution of the ACP/CPG or the co-ownership of properties, the liquidation,
partition, distribution of the same shall be provided for in the said judgment,
unless such matters had been adjudicated in previous judicial proceedings or the
parties agreed in their marriage settlement executed prior to the marriage that
the regime of separation of property governed their marriage

GR: should a court render a judgment w/c is not in conformity w/ the allegations in a
pleading or w/c grants a relief w/c is not based on the pleadings, the judgment is void
E: even if the judgment is void but was not assailed in a MR & not made an issue on
appeal, such void judgment shall not be set aside & will continue to be effective

Tuason v. CA the findings of the TC as to the existence or non-existence of a
psychological incapacity at the time of the marriage is final & binding on the SC,
unless it can be sufficiently shown that the TCs factual findings & evaluation of the
testimonies & the pieces of evidence presented are clearly & manifestly erroneous

GR: In cases of void marriages, the property regime shall be governed by the rule on
CO-OWNERSHIP provided for in Arts. 147-148. The property regime shall be liquidated
pursuant to the ordinary rules on co-ownership pursuant to the NCC, provided they
are not contrary to the FC.
E: In cases of void subsequent marriages as a result of non-observance of Art. 40,
Art. 43, par. 2, 3, 4 & 5 apply. Though the subsequent marriage is void, the property
shall be liquidated as if there is a ACP/CPG.

SC En Banc Resolution, AM No. 02-11-10-SC, March 15, 2003
after the entry of judgment as a consequence of a nullity/annulment decree, the
presumptive legitime of the common children shall be delivered pursuant to Arts.
50 & 51
for purposes of a void marriage, the presumptive legitimes shall be delivered in
accordance w/ Art. 50 w/c, in turn expressly provides that, the proper cases of a
void marriage referred to is only the one under Art. 40

Entry of Judgment and Decree of Nullity/Annulment
unless there is an MR or appeal made after the decision, such decision will
become final upon the expiration of 15 days from receipt of the parties of the
decision.
Upon finality, the Entry of Judgment shall be issued.
Subsequently, a Decree of Absolute Nullity of Marriage or Annulment of Marriage
shall be issued.
The decree shall be the BEST EVIDENCE of nullity/annulment of marriage.
The decree will issue only after:
1. the registrations of the Entry of Judgment in the LCR where:
- 23 -

a. the marriage was recorded, and
b. where the court granting the petition is located
2. the registration of the approved partition & distribution of properties of the
spouses in the registry of properties where the properties are located; if
there are many properties located in various places, registration must be
made in each of the registries of properties where each property is located
3. the delivery of the presumptive legitimes

Note: It is the duty of the successional petitioner to send a copy of the final decree of
the court to the proper LCRs. It shall be the duty of the clerk of court w/c issued the
decree to ascertain whether the same has been registered, & if this has not been
done, to send a copy of said decree to the LCR of the city/municipality where the court
is located.

Presumptive Legitime
Legitime that part of the testators property w/c he cannot dispose of because
the law has reserved it for compulsory heirs.
The presumptive legitime shall be computed as of the date of the final judgment
of the trial court. The value of the properties already received under the decree
shall be considered advances on their legitime.
The delivery of the presumptive legitimes will not prejudice the ultimate
successional rights of the children accruing upon the death of either/both of the
parents.
The decree of annulment/nullity shall provide that the presumptive legitimes of
the common children shall be delivered to the same in cash, property or sound
securities, unless the parties, by mutual agreement judicially approved, had
already provided for such matter. The judicial proceeding for the approval of the
mutual agreement of the parties shall be summary in nature.

Note: The common children have legal standing to seek the enforcement of
nullity/annulment judgment considering that they are materially affected insofar as
the presumptive legitime is concerned. The childrens guardian or trustee of their
property may also ask for the enforcement for & on behalf of the children.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage
shall be null and void.
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of
the marriage under Article 36 has become final and executory shall be considered
legitimate. Children conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

Rule: the recording in the LCR and registry of property of the judgment of
annulment/nullity, as well as the delivery of presumptive legitimes are necessary to:
1. Bind 3
rd
persons
2. Validly contract a subsequent marriage

Effect of Non-compliance:
1. 3
rd
persons are not bound
2. any subsequent marriage is null & void
3. non-issuance of a decree of nullity/annulment

Note: The JDN becomes final after the lapse of 15 days from the receipt of the parties
of the decree & there is no appeal filed. Thus, if after only 2 days from receipt of the
JDN on the basis of Art. 36, the parties whose marriage was the subject of
nullification, met & had sex w/c resulted in the conception of the child, the said child
shall be considered LEGITIMATE after birth.

TITLE II
LEGAL SEPARATION

Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even
if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one
year.
For purposes of this Article, the term "child" shall include a child by nature or by
adoption. (9a)

Legal Separation
Does not affect the marital status, there being no severance of the vinculum
Does not dissolve the marriage
Involves only bed-and-board separation (a mensa et thoro) of the spouses
The grounds provided are exclusive
The grounds may or may not exist at the time of the marriage ceremony
The decree is terminable at the will of the parties by merely filing a manifestation
in court

DIVORCE ANNULMENT
dissolution f the bond of matrimony, based
on the theory of a valid marriage, for some
cause arising AFTER the marriage
for some cause existing AT THE TIME of the
marriage ceremony, the marriage is
terminable

Kinds of Divorce
1. Absolute not allowed by the Family Code
2. Relative also known as legal separation
- 24 -

GROUNDS FOR LEGAL SEPARATION
repeated physical
violence or
grossly abusive
conduct
Physical violence: infliction of bodily harm, bad faith & malice the
FREQUENCY of the act & NOT the severity is the determinative factor;
it must be inflicted w/ bad faith & malice
Grossly abusive conduct it has no exact definition & is determined on
a case-to-case basis (e.g. the serious act of squeezing of neck, pulling
hair & the like w/o intention to kill; the use of offensive language
toward the other spouse, continually calling him/her vile & opprobrious
names w/ the intent & fixed purpose of causing unhappiness
This ground does NOT include repeated physical violence upon the
child of the guilty spouse (note: but it may be a cause to
suspend/terminate the his/her parental authority upon his/her own
minor child w/ another person)
compulsion by
physical violence
or moral
pressure to
change
religious/political
affiliation
1 attempt, 1 incident of physical violence or moral pressure to
compel the change in religious/political affiliation, is enough
ground for legal separation
corruption/induce
ment to engage
in prostitution
The immoral/corrupt act referred to prostitution only
Inducement refers to prostitution only
Mere attempt is enough ground for legal separation; respondent
need not be successful in the corruption/
inducement
final judgment
more than 6 yrs
imprisonment
The offense couldve been committed against anybody
The judgment must be final
drug addiction/
habitual
alcoholism
Persistent habit of becoming intoxicated
Continued & excessive use of drugs
Deal w/ mental state that is detrimental to ones social & personal
well-being as well as to the society as a whole as they prevent the
one afflicted from properly exercising their judgment
homosexuality/
lesbianism
Deal w/ sexual orientation that do not by themselves affect the
mental state of a person in relation to his/her judgment
bigamy Act of illegally contracting a 2
nd
marriage despite full knowledge of
the 1
st
marriage is still validly existing or w/o obtaining the
needed judicial declaration of presumptive death of the 1
st
spouse
who was absent for 4 or 2 consecutive years
Note: it is immaterial if the marriage was celebrated in the Phil. or
abroad
sexual infidelity
or perversion
Sexual infidelity - acts short of adultery & concubinage are
enough so long as the acts committed by 1 spouse would
constitute a clear betrayal of the trust of his/her spouse by having
intimate love affairs w/ others
A single act of sexual intercourse w/ a woman other than his wife
may is a ground for legal separation
Sexual perversion includes engaging in such behaviour not only
w/ 3
rd
persons but also w/ the spouse (e.g. oral sex, carnal
intercourse w/ a cow)
attempt on the
life of the
Must proceed from an evil design & NOT from any justifiable cause
(e.g. self defense, or if the spouse caught the other in flagrante
petitioner spouse delicto having carnal knowledge w/ another man/woman)
No previous criminal conviction is required for the legal separation
case to prosper; mere preponderance of evidence is enough)
unjustified
abandonment for
more than 1 year
The abandonment must be wilful
Willful - there is a design to forsake the other spouse
intentionally, or w/o cause break up the marital union; deliberate
intent to cease living w/ the other spouse
Total renunciation of his/her duties
Absolute cessation of marital relations, duties, rights
Williamson v. Williamson it was held to be abandonment
where a husband forces his wife to leave his home by his refusal
to leave w/ her unless she gets rid of children of a former
marriage whom he knows are entirely dependent on he
Mere severance of the relation is NOT sufficient
Physical separation alone is NOT abandonment
The fact that defendant never ceased to give support to his wife &
children negatives any intent on his part not t return to the
conjugal abode & resume his marital duties & rights
Smythe v. Smythe - A separation where both parties willingly
concur is NOT a abandonment of 1 by the other
Ong v. Ong where the wife left the conjugal abode because she
was being battered by the husband, the SC ruled that the act of
the wife was for a justifiable cause & thus cannot be a ground for
legal separation

Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act
complained of;
(3) Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed within five years from the time of the
occurrence of the cause. (102)

GROUNDS FOR DENIAL OF PETITION FOR LEGAL SEPARATION
1. condonation act of forgiving the offense AFTER its commission
forgiveness of one of the married parties to an offense w/c he
knows the other has committed against other
Almacen v. Baltazar condonation does not require sexual
intercourse
Ocampo v. Florenciano the failure of the husband to look
actively for his adulterous wife after she left the conjugal home
does NOT constitute condonation or consent of the wifes
adulterous acts
2. consent there is consent when either of the spouses agreed to or did not
object, despite full knowledge, to the act giving rise to a ground for
legal separation, BEFORE such act was in fact committed
People v. Schneckenburger an agreement bet. the parties that
- 25 -

they will not object to the others act of sexual infidelity, adultery
or concubinage is an expression of their clear consent to the
commission of the sexual infidelity
3. connivance a corrupt consenting
denotes direction, influence, personal exertion, or other action w/
knowledge & belief that such action would produce certain results
w/c results are produced
basis: one is not legally injured if he has consented to the act
complained of or was willing that it should occur
Witherspoon v. Witherspoon where a husband employed
agents to induce, persuade & coerce his wife into participating in
illicit sexual activities, this act can be considered as connivance
4. recrimation
of equal guilt
he who comes into equity must come w/ clean hands
a plaintiff-spouse cannot invoke the guilt of the other if such
plaintiff-spouse is guilty of giving grounds for legal separation
when 2 persons acted in bad faith, they should be considered as
having acted in good faith they are in pari delicto
Ong v. Ong A husband subjected his wife to physical beatings
sought the dismissal of the case for legal separation filed against
him by the wife on the ground of equal guilt contending that the
wife abandoned him. The SC held that there is NO equal guilt
involved. For abandonment to be a ground for legal separation, it
must have been w/o justifiable cause. In the case of a battered
wife, her separation from her husband was clearly w/ just cause.
5. collusion a corrupt agreement
an agreement bet. H&W for one of them to commit, or to appear to
commit, or to be represented in court as having committed, a
matrimonial offense, or to suppress evidence of a valid defense, for
the purpose of enabling the other to obtain a divorce
Williams v. Williams collusion may not be inferred from the
mere fact that the guilty party confesses to the offense & thus
enables the other party to procure evidence necessary to prove it
6. prescription An action for legal separation must be filed w/in 5 years from the
occurrence of the cause.
The time of the discovery of the ground for legal separation is NOT
material in counting the period.

Art. 58. An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition. (103)
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable. (n)
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that the evidence is
not fabricated or suppressed. (101a)
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to
live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or conjugal
partnership property. The administrator appointed by the court shall have the same powers
and duties as those of a guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49
shall likewise apply to the support of the spouses and the custody and support of the
common children. (105a)

Procedure in Legal Separation Cases
If defendant fails to file an answer s/he cannot be declared in default.
The fiscal shall appear on behalf of the State & investigate whether there is no
collusion or the evidence is not fabricated.
Whether or not the defendant files an answer to the complaint, no hearing on the
merits shall be set by the courts for 6 months (cooling-off period)
Failure to observe the 6 month cooling off period is a ground to set aside a
decision granting legal separation
Preponderance of evidence is required

Cooling-off period the purpose of this cooling-off period is to give the parties
enough time to further contemplate their positions w/ the end in view of attaining
reconciliation bet. them

Exception: The 6 month cooling off period requirement can be dispensed w/ if the
ground for legal separation involves violence against the woman or child

Q: What is prohibited during the cooling-off period?
A: The hearing on the merits w/ respect to the validity/invalidity of the ground for
legal separation. Thus, hearing on the the ff. are NOT prohibited:
1. Determination of the custody of the children
2. Alimony & support pendente lite
3. Somosa-Ramos v. Vamenta - If the administrator spouse is dissipating the
conjugal assets during the cooling-off period, a motion for injunction may be
filed & heard seeking the prevention of the erring spouse from further
undertaking such harmful acts
4. A motion to dismiss may be filed if there are grounds to do so (e.g. the
ground for legal separation has prescribed)

Ocampo v. Florenciano - Judgment cannot be based on confession of judgment or
stipulation of facts. But if there is evidence independent of such statement, the decree
may be granted. What the law prohibits is a judgment based exclusively or mainly on
defendants confession.

Arroyo v. Vasquez If the petition is denied, the court cannot compel the parties to
live w/ each other as cohabitation is purely a personal act.

Gandionco v. Penaranda If the civil case for legal separation is filed on the ground
of sexual infidelity because the husband committed concubinage & thereafter, a
criminal case is filed for concubinage against the husband, the civil action may
proceed ahead of or simultaneously w/ criminal action for concubinage because said
civil action is not one to enforce the liability arising from the offense.

Sabalones v. CA (1994) Pending the appointment of an administrator over the
whole mass of conjugal assets, the CA was justified in allowing the wife to continue w/
- 26 -

her administration. While Art. 124 grants the spouses joint administration over the
conjugal properties, Art. 61 states that after a petition for legal separation had been
filed, the TC shall, in the absence of a written agreement bet. the couple, appoint
either one of the souses or a 3
rd
person to act as administrator.

Q: Does the death of the plaintiff before final decree, in an action for legal separation,
abate the action?
A: YES. An action for legal separation w/c involves nothing more than the bed-and-
board separation of the spouses is purely PERSONAL. Being personal in character, it
follows that the death of one party to the action causes the death of the action itself.
When 1 of the spouses is dead, there is no need for divorce because the marriage is
dissolved. (Lapuz v. Eufemio)

Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds
shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated
but the offending spouse shall have no right to any share of the net profits earned by the
absolute community or the conjugal partnership, which shall be forfeited in accordance with
the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to
the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the offending spouse made in the will
of the innocent spouse shall be revoked by operation of law. (106a)
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke
the donations made by him or by her in favor of the offending spouse, as well as the
designation of the latter as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be recorded in the registries
of property in the places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the complaint for revocation
in the registries of property shall be respected. The revocation of or change in the
designation of the insurance beneficiary shall take effect upon written notification thereof to
the insured.
The action to revoke the donation under this Article must be brought within five
years from the time the decree of legal separation become final. (107a)

Effects of a Decree of Legal Separation
1. Spouses are entitled to live separately from each other
2. Marriage bond is not severed
3. The ACP/CPG shall be liquidated share of guilty spouse forfeited in favor of:
a. Common children
b. In default of the latter, children of guilty spouse
c. In default of the latter, the innocent spouse
4. Innocent spouse shall be awarded custody of the minor children, except:
a. No child under 7 years shall be separated from the mother, unless
the court finds compelling reasons to order otherwise
b. Paramount interest of the child shall be the standard. Thus, custody
of the child may even be awarded to a 3
rd
person if both spouses are
not fit to take care of the child.
5. Guilty spouse is disqualified from inhering from innocent spouse by intestate
succession.
6. Provisions made in favor of the guilty spouse made in the will of the innocent
spouse shall be revoked by operation of law (the revocation by operation of
law is not ineffectual in case of reconciliation of the parties)
7. Innocent spouse has the option to revoke a donation made in favor of the
guilty spouse. The action for revocation must be filed w/in 5 years from the
time the decree of legal separation has become final.
a. Exception: if the donation is void, the action is imprescriptible.
8. Innocent spouse has the option to revoke or the designation as beneficiary of
the guilty spouse in an insurance, even if irrevocable. Revocation is effective
upon written notification to the insured.

Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath
duly signed by them shall be filed with the court in the same proceeding for legal
separation. (n)
Art. 66. The reconciliation referred to in the preceding Articles shall have the following
consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at
whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and
any forfeiture of the share of the guilty spouse already effected shall subsist, unless the
spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil
registries. (108a)
Art. 67. The agreement to revive the former property regime referred to in the preceding
Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the
court in the same proceeding for legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court shall, in its order, take measure to
protect the interest of creditors and such order shall be recorded in the proper registries of
properties.
The recording of the ordering in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient separate
properties to satisfy the creditor's claim. (195a, 108a)

Effect of Reconciliation
1. If the case is still pending it shall be terminated
2. If the decree has been issued already it shall be set aside
3. The order containing the termination of the case or setting aside of the
decree shall be recorded in the proper civil registries
4. The separation of properties shall subsist, but the parties can enter into an
agreement reviving their previous property regime, w/ court approval
5. The innocent spouse has an option of reinstituting the provisions in a will
previously made to the guilty spouse w/c was revoked by operation of law

Recording of the Order of Revival
It is the RECORDING of the order, the LISTING of the creditors in the said
recorded order, and the NOTIFICATION of the creditors w/c will have an effect on
the creditors claims.
- 27 -

If the order of revival has NOT been RECORDED in the proper civil registry, the
creditors will NOT be PREJUDICED whether or not they are listed in the order of
they have been notified.

GR: Those creditors NOT LISTED in the order or NOT NOTIFIED shall NOT be
PREJUDICED by the recording of the order.
E: The creditors who are NOT LISTED or who have NOT been NOTIFIED shall
nevertheless be PREJUDICED by the recording of the order if the debtor-spouse has
SUFFICIENT SEPARATE PROPERTIES to satisfy the creditors claims.

TITLE III
RIGHTS & OBLIGATIONS BETWEEN HUSBAND & WIFE

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect
and fidelity, and render mutual help and support. (109a)

Chi Ming Tsoi v. CA Procreation is an essential marital obligation considering that
such obligation springs from the universal principle that procreation of children thru
sexual cooperation is the basic end of marriage.

Ramirez-Cuaderno v. Cuaderno Except for support, a court cannot validly issue
a decision compelling the spouses to live together, observe mutual love, respect &
fidelity. Only the moral obligation of the spouses constitutes the motivating factor for
making them observe the said duties & obligations w/c are highly personal.

Ty v. CA There can be no action for damages merely because of a breach of marital
obligation.

Other Remedies Abuse of Right Doctrine Arts. 19, 20, 21
E.g. if a spouse in bad faith refuses to comply w/ the marital obligations & if the
property regime is separation of property
E.g. a person who deprives a spouse of the consortium or services of the other
spouse can be held liable for damages. But this deprivation must be fully proven.
E.g. the desertion & securing of an invalid divorce decree of one consort entitled
the other to recover damages & attorneys fees (Tenchavez v. Escano)

Q: Can a husband commit rape against his wife.
A: Yes. But the subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty.
E: If the marriage is void ab initio, the crime shall not be extinguished nor shall the
penalty be abated.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse from living with the other if the latter should
live abroad or there are other valid and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of the
family. (110a)

Domicile
The place where the parties intend to have their permanent residence w/ the
intention of always returning even if they have left it for some time
Habitual residence
The spouses can only have one domicile but many residences
A minor follows the domicile of his/her parents

Art. 70. The spouses are jointly responsible for the support of the family. The expenses for
such support and other conjugal obligations shall be paid from the community property and,
in the absence thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be satisfied from the
separate properties. (111a)
Art. 71. The management of the household shall be the right and the duty of both spouses.
The expenses for such management shall be paid in accordance with the provisions of
Article 70. (115a)
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or
commits acts which tend to bring danger, dishonor or injury to the other or to the family,
the aggrieved party may apply to the court for relief. (116a)

Management of the Household
The management of the household shall be the right & duty of both spouses
regardless of their property regime
E.g. if the family house is separately owned by 1 of the spouses, the other spouse
still has the right & duty relative to the management of the household

Art. 73. Either spouse may exercise any legitimate profession, occupation, business or
activity w/o the consent of the other. The latter may object only on valid, serious, & moral
grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against the
separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in
good faith. (117a)

GR: the ff. are chargeable against ACP/CPG:
1. the exercise of legitimate profession, occupation, business or activity is
presumed to redound to the benefit of the family
a. E: an isolated transaction; proofs showing a direct benefit to the
family must be presented
2. obligations incurred by the spouse in the exercise of his/her legitimate
profession/occupation/business or family business are presumed to redound
the benefit of the family
3. debts & obligations of whatever nature & regardless of the time they were
incurred whether before or after the marriage ceremony, & redound to the
benefit of the family
E: professions w/c are seriously invalid & immoral, the separate property of the erring
spouse shall be liable, even if benefits actually accrued in favor of the family
(Condition: the other spouse must have no knowledge of the other spouses immoral
profession & could not have interposed any objection, otherwise the s/he would be
deemed to have agreed w/ the other spouses seriously immoral endeavors)
- 28 -


VAWC (RA 9262) Acts of Violence Against Women:
1. If the husband compels the wife to desist from pursuing a profession or any
other conduct w/ the wife has the right to engage in
2. If the husband prevents the wife from engaging in any legitime profession,
occupation, business or activity w/ the purpose or effect of controlling or
restricting her movement or conduct

TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND & WIFE

Chapter 1. General Provisions

Art. 74. The property relationship between husband and wife shall be governed in the
following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of
absolute community, conjugal partnership of gains, complete separation of property, or any
other regime. In the absence of a marriage settlement, or when the regime agreed upon is
void, the system of absolute community of property as established in this Code shall
govern. (119a)
Art. 76. In order that any modification in the marriage settlements may be valid, it must be
made before the celebration of the marriage, subject to the provisions of Articles 66, 67,
128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed
by the parties and executed before the celebration of the marriage. They shall not prejudice
third persons unless they are registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of properties. (122a)

Requisites of a Valid Marriage Settlement
1. Must be in writing
2. Must be signed by the parties
3. Made prior to the marriage ceremony
4. Parties may agree on any arrangement in their marriage settlement, provided
it is not contrary to law & public policy
5. Must be effective at the moment of the marriage ceremony
6. Must be registered in the LCR (NOT required for validity, but only to bind
creditors & 3
rd
parties)

Examples of Prohibited Stipulations
1. Art. 88 & 107 - Stipulation that the ACP/CPG will start at a time other than
the precise moment of the celebration of marriage
2. Art. 87 - Stipulation that they can make substantial donation to each other
during their marriage
3. Art. 103 & 130 - In case a marriage has been terminated by death of 1
spouse & theres been no liquidation of the properties of the previous
marriage, the surviving spouse, if s/he decides to remarry, cannot execute a
marriage settlement providing for a regime other than complete separation of
property regime

Mixed-Up Property Regime - The parties may design their own property regime w/c
is not in violation of any law

Note: If there is not marriage settlement agreed upon, or if it is void, ACP prevails

GR: Modification must be made prior to the marriage ceremony
E: it can be made after the marriage ceremony, provided that
1. There is judicial approval
2. Modification only refers to the ff. instances:
a. Art. 66 & 67 revival of former property regime after a legal
separation reconciliation can be made only via a court order
recorded in the proper civil registries
b. Art. 128 abandonment or failure to comply w/ marital obligations,
the court may issue a decree of judicial separation of property upon
petition by the aggrieved spouse
c. Art. 135 provides sufficient causes for judicial separation of
property
d. Art. 136 voluntary separation & dissolution of ACP/CPG

Customs
A rule of conduct formed by repetition of acts uniformly observed as a social rule,
legally binding & obligatory
Yao Kee v. Sy-Gonzales - A custom must be roved as a fact, according to the
rules of evidence
When the parties stipulate in their marriage settlement that local custom shall
apply or tat ACP shall NOT govern their property relations, but fail to stipulate
what property regime shall be applied, then local custom shall be applied.

Art. 78. A minor who according to law may contract marriage may also execute his or her
marriage settlements, but they shall be valid only if the persons designated in Article 14 to
give consent to the marriage are made parties to the agreement, subject to the provisions
of Title IX of this Code. (120a)
Art. 79. For the validity of any marriage settlement executed by a person upon whom a
sentence of civil interdiction has been pronounced or who is subject to any other disability,
it shall be indispensable for the guardian appointed by a competent court to be made a
party thereto. (123a)

Art. 78 impliedly repealed when the age of majority was lowered to 18; no minor
now may contract a valid marriage

Civil Interdiction: deprives the offender during the time of his sentence of:
1. Rights of parental authority
2. Guardianship, either as to the person or property of any ward
3. Right to manage his property
4. Right to dispose of such property by any or conveyance inter vivos

- 29 -

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the
Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose laws require different formalities for
its extrinsic validity. (124a)

GR: property relations of the spouses will be governed by their agreement in the
marriage settlement, provided that it:
1. Must NOT be contrary to law or public policy
2. Must be w/in the limits provided in the FC
E: in the absence of any agreement, property relations will be governed by Phil. laws

GOVERNED BY PHIL. LAWS GOVERNED BY OTHER LAWS
If parties are both Filipinos, their property
relations are governed by Phil. laws in the
absence of any agreement to the contrary;
applicable even if they married or reside abroad
*Basis: nationality rule
1. if both spouses are foreigners
2. extrinsic validity of contract
when property is abroad, whether
the contract is executed here or
abroad

Note: Under Art. 16 of the Civil Code, real & personal property shall be subject to the
law of the country where it is situated.

Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding
articles in consideration of a future marriage, including donations between the prospective
spouses made therein, shall be rendered void if the marriage does not take place. However,
stipulations that do not depend upon the celebration of the marriages shall be valid. (125a)

Efficacy of Marriage Settlement The consideration of the marriage settlement is
the marriage itself. If the marriage does not take place, the marriage settlement is
generally rendered void. But provisions in the marriage settlement are SEPARABLE:
1. Provisions w/c are invalid but do not affect the rest of the provisions
stipulated in the marriage settlement will be rendered ineffectual, but the
rest will continue to remain enforced.
2. Stipulations w/c do not depend upon the celebration of the marriage shall be
valid (e.g. a provision to support the common child of the contracting parties)

Chapter 2. Donations by Reason of Marriage

Art. 82. Donations by reason of marriage are those which are made before its celebration,
in consideration of the same, and in favor of one or both of the future spouses. (126)
Art. 83. These donations are governed by the rules on ordinary donations established in
Title III of Book III of the Civil Code, insofar as they are not modified by the following
articles. (127a)
Art. 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-
fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary
succession and the formalities of wills. (130a)

Donation Propter Nuptias
Donation by reason of marriage
w/o onerous consideration, the marriage being merely the occasion/motive for
the donation, not its causa
liberalities; thus its subject to reduction for inofficiousness upon donors death

Requisites of a Valid Donation
1. Must be made prior to the marriage ceremony
2. In consideration of the marriage
3. In favor of 1 or both spouses
4. Donee must accept the donation personally, or thru an authorized person w/
SPA for the purpose or w/ a general/sufficient power
5. The acceptance must be made during lifetime of donor & donee

Donations Excluded:
1. Those made in favor of the spouses after the celebration of the marriage
2. Executed in favor of the future spouses but NOT in consideration of marriage
3. Granted to persons other than the spouses even though they may be founded
on the marriage

Requisites for Valid Donations Between Future Spouses
1. There must be a valid marriage settlement
2. The marriage settlement must stipulate a property regime other than ACP
3. The donation contained in the marriage must not be more than 1/5 of his/her
present property
4. The donation must be accepted by the would-be spouse
5. It must comply w/ the requisites on donations (Title 3, Book 3, NCC)

Note: This is useless if the property regime is ACP because the spouses become co-
owners of whatever each of them owns prior to & during the marriage

DONATION PROPTER NUPTIAS
CONTAINED IN MARRIAGE SETTLEMENT
DONATION PROPTER NUPTIAS IN
A SEPARATE DEED OF DONATION
must NOT be more than 1/5 of his/her
present property
not more than 1/5 limitation rule will
NOT apply; limitations are:
1. sufficient means for the donor &
his relatives who are entitled to be
supported shall be reserved
2. no person may give/receive by way
of donation more than what he
may give/receive by will
Rationale: A marriage settlement is usually
negotiated. Exerting undue influence by 1
spouse is a possibility during the discussions.
Rationale: Prior to the marriage, the
danger of any contracting party
exerting his influence on the other or
taking undue advantage of the
feelings of the weaker party is
remote

- 30 -

Art. 85. Donations by reason of marriage of property subject to encumbrances shall be
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. (131a)

Donation w/ Encumbrance valid, but the donees rights are subject to the
encumbrance

Effects if object donated is foreclosed:
1. Deficiency donee NOT liable if the amount obtained is less than amount of
the debt of donor; he is not a solidary debtor of the liability of the donor
2. Excess donee entitled to the excess; but donee cannot seek reimbursement
from donor for the amount w/c was taken by the creditor

Art. 86. A donation by reason of marriage may be revoked by the donor in the following
cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations
made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of
the Civil Code on donations in general. (132a)

GROUND EFFECT ON DONATION PROPTER NUPTIAS PERIOD

Marriage Not
Celebrated
Donor has option to revoke/maintain the donation
GR: If the donation is contained in a marriage
settlement executed prior to the marriage the
donation is VOID
E: if the donation does not depend on the
celebration of the marriage, then donation remains
effective
5 years from
the moment
the marriage
is not
solemnized on
the fixed date

Marriage
Judicially
Declared
Void
Before revocation, there must be a judicial
declaration that the marriage is void
5 situations:
1. Subsequent void marriage for failure to comply w/
Art. 40 donation revoked by operation of law if
the donee-spouse contracted the subsequent void
marriage in BF (Arts. 40, 52, 53)
2. One obtains JDPD & both are in BF in the
subsequent marriage donation revoked by
operation of law (Arts. 41, 44)
3. All other rounds for nullity where GF & BF of the
donee are irrelevant donor has option to revoke
the donation
4. Donation inside a bigamous marriage 2
nd
spouse
has option to revoke the donation made to his/her
spouse who has a prior subsisting marriage; but if

the spouse who contracted 2 marriages made a
donation to his/her 2
nd
spouse, it is void if they
are guilty of adultery, concubinage, or they were
living together as H&W w/o a valid marriage.
5. If both parties in GF donor has option to revoke
the donation

Marriage w/o
Parental
Consent
The marriage is annullable
Donor has option to revoke the donation, even
before the marriage is annulled
If the donor knew of the non-consent of the parents
before the marriage, donor may not yet revoke
because the parents can still give their consent
anytime prior to the marriage ceremony
5 years from
time he had
knowledge
that consent
was not
obtained by
the parties
Annulled
Marriage &
Donee in BF
The spouse who acted in BF in procuring the
marriage should not be allowed to profit/gain from
the donation
Revoked by
operation of
law
Legal
Separation,
Donee as
GuiltySpouse
GR: Donor has option to revoke/maintain donation
E: if the ground is sexual infidelity in the form of
concubinage/adultery, the donation is VOID
5 years from
the finality of
the decree of
legal sep.
Donation w/
Resolutory
Condition
That Arises
Donor has option to revoke/maintain donation
GR: prescriptive period of 5 years
E: If donation is made by 1 spouse to the other no
prescriptive period, can recover anytime
5 years from
happening of
the resolutory
condition

Acts of
Ingratitude
Donor has option to revoke/maintain donation
Alienations & mortgages effected before the notation
of the complaint for revocation in the Registry of
Property shall subsist. Later ones are void.

1 year from
knowledge of
the fact of
ingratitude &
its possible to
bring the suit

Art. 765. The donation may also be revoked at the instance of the donor, by reason
of ingratitude in the following cases:
1. If the donee should commit some offense against the person, the honor or
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 the act
has been committed against the donee himself, his wife or children under his
authority;
3. If he unduly refuses him support when the donee is legally or morally bound
to give support to the donor.

Void Donations
1. Donations made by persons guilty of adultery/concubinage at the time of the
donation
2. Donations bet. persons living together as H&W w/o a valid marriage

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be void, except moderate gifts which the spouses may
- 31 -

give each other on the occasion of any family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without a valid marriage. (133a)

GR: Donations made, directly or indirectly, bet. spouses during the marriage are
VOID. This prohibition applies to common-law spouses or those living together as
H&W w/o the benefit of marriage. (Matabuena v. Cervantes)
Exceptions:
1. Moderate gifts w/c the spouses may give each other on occasion of family
rejoicing. Moderate gifts will depend on a case-to-case basis esp. considering
the financial capacity of the donor.
2. Donations by both spouses in favor of their common legitimate children for
the exclusive purpose of commencing/completing a professional or vocational
course/activity for self-improvement are valid. The amount shall be
chargeable to the ACP/CPG.

Agapay v. Palang It was alleged that a property was sold by the husband to his
wife of a subsequent bigamous marriage for the purpose of removing the property
from the effects of Art. 148. The SC ruled that the conveyance of the property was not
by way of sale but was a donation & therefore void.

Rodriguez v. Rodriguez A mother sold her exclusive property to her daughter who
later sold the same to her father for the purpose of converting such property of her
mother to conjugal property, thereby vesting 1/2-interest on the husband & evading
the prohibition against donations from 1 spouse to another during coverture. SC ruled
that the transactions were designed to circumvent the legal prohibition re: donations
bet. spouses but refused to grant relief to the wife who filed a case to nullify the
transaction on the ground that all the parties knew the illicit purpose of the scheme &
thus all were guilty & no one can recover what was given by virtue of the contract.
The SC applied the rule in pare delicto non oritur actio.

Persons Who Can Challenge the Validity of the Transfer
Only persons who bear such a relation to the parties making the transfer or to the
property itself that such transfer interfere w/ their rights or interests
The validity of the donation cannot be challenged by those who bore absolutely no
relation to the parties to the transfer at the time it occurred & had no rights or
interests inchoate, present, remote, or otherwise in the property in question at
the time the transfer occurred

[SEE ANNEXES FOR TABLE ON PROPERTY REGIMES]

Chapter 5. Separation of Property of the Spouses and Administration of Common
Property by One Spouse During the Marriage

Art. 134. In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be voluntary or for sufficient
cause. (190a)

GR: the spouses cannot alter their property regime after the marriage ceremony to a
separate property regime w/o mandatory judicial approval
E: if the H&W, prior to the marriage, executed a written marital agreement providing that
the separation of property regime will govern their property relationship

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it
civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the
court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his
or her obligations to the family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has
abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at least one
year and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the grant of the
decree of judicial separation of property. (191a)

GROUNDS FOR JUDICIAL SEPARATION OF PROPERTY
Civil Interdiction final decision of the court rendered against the erring spouse
embodying the penalty of civil interdiction is enough

Declaration of
Absence
2 years w/o any news about the absentee, or 5 years in case
the absentee left a person in charge of the administration of
property his absence may be declared
The spouse present, the testate/intestate heirs, & those who
may have over the property of the absentee some right
subordinated to the condition of his/her death, may ask for
judicial declaration of his absence.
The judicial declaration of absence shall not take effect until
6 months after its publication in a newspaper of general
circulation.
final decision of the court declaring the spouse absent is
enough

Loss of Parental
Authority
Must indicate malice, abuse, bad faith, or culpable negligence
on the part of the spouse of the petitioner
Involves parental authority over:
1. The legitimate/illegitimate common child of the spouse of
petitioner & petitioner
2. The legitimate/illegitimate child of the spouse of the
petitioner w/ another person
final decision of the court terminating parental authority is
enough

Abandonment or
Failure to Comply w/
Family Obligations
If the spouse left the conjugal dwelling w/o any intention of
returning & w/ an intent to absolutely forego his/her family
duties
The spouse who left the conjugal dwelling for 3 months or
has failed w/in the same period to give any info as to his/her
whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling
- 32 -


Abuse of Powers of
Administration
Abuse connotes wilful & utter disregard of the interests of the
partnership, evidenced by a repetition of deliberate acts
and/or omissions prejudicial to the latter
mere acts prejudicial to other spouse are not sufficient
mere acts injurious to the ACP/CPG are not sufficient; these
may be the result of mere inefficiency or negligence
mere refusal/failure of the spouse-administrator to inform the
other spouse of the progress of the family business does not
constitute abuse
Separation in Fact must have been separated in fact for more than 1 year
reconciliation must be highly improbable

Art. 136. The spouses may jointly file a verified petition with the court for the voluntary
dissolution of the absolute community or the conjugal partnership of gains, and for the
separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as
well as the personal creditors of the spouse, shall be listed in the petition and notified of the
filing thereof. The court shall take measures to protect the creditors and other persons with
pecuniary interest. (191a)

Voluntary Separation
requires court approval, otherwise it shall be void
the petition to be filed in court need not state any reason for the conversion, the
agreement of the parties being enough
but if the reason is stated & it is against public policy, the court must reject the
agreement
all the creditors of the ACP/CPG, as well as the personal creditors of the spouses
shall be listed in the petition & notified of the filing thereof

GR: the agreement for the division of the ACP/CGP must be equal
Exceptions:
1. a different proportion/division has been agreed upon in the marriage
settlement, or
2. there has been a valid waiver of such share

Toda, Jr. V. CA the agreement for voluntary separation of property takes effect
from the time of the judicial order decreeing the separation of the properties & not
from the signing of the agreement

De Ugalde v. De Yasi (2008) When the judgment by way of compromise dissolving
the CPG has become final & executory, the fact that the creditors were not notified will
not invalidate such judgment. A judgment upon a compromise agreement has all the
force & effect of any other judgment, & conclusive only upon parties thereto & their
privies, & not binding on 3
rd
persons who are not parties to it.

Art. 137. Once the separation of property has been decreed, the absolute community or
the conjugal partnership of gains shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property, the absolute
community or the conjugal partnership shall pay for the support of the spouses and their
children. (192a)

GR: the liquidation process must observe the processes laid down in Arts. 102 & 129
E: the delivery of presumptive legitime need not be complied with

Maquilan v. Maquilan (2007) a partial voluntary separation of property agreed upon by
the parties via a compromise agreement duly approved by the court prior to the judicial
declaration of nullity of marriage is valid

Art. 138. After dissolution of the absolute community or of the conjugal partnership, the
provisions on complete separation of property shall apply. (191a)

Q: When is the ACP/CPG dissolved?
A: It is the finality of the decision of the court decreeing the separation w/c dissolves
the same. It is only from that time that the complete separation of property applies.
The mere filing of the petition shall not automatically result in the dissolution of the
ACP/CPG.

Art. 139. The petition for separation of property and the final judgment granting the same
shall be recorded in the proper local civil registries and registries of property. (193a)
Art. 140. The separation of property shall not prejudice the rights previously acquired by
creditors. (194a)

Rights of Creditors
the recording in the LCR of the petition & final judgment is to aid present & future
creditors in determining w/n an asset of a spouse is conjugal or separate
the separation of property shall not prejudice the rights previously acquired by
creditors

Art. 141. The spouses may, in the same proceedings where separation of property was
decreed, file a motion in court for a decree reviving the property regime that existed
between them before the separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of administration in
the marriage settlements will not again abuse that power, authorizes the resumption of said
administration;
(4) When the spouse who has left the conjugal home without a decree of legal separation
resumes common life with the other;
(5) When parental authority is judicially restored to the spouse previously deprived thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and
resume common life; or
(7) When after voluntary dissolution of the absolute community of property or conjugal
partnership has been judicially decreed upon the joint petition of the spouses, they agree to
the revival of the former property regime. No voluntary separation of property may
thereafter be granted.
The revival of the former property regime shall be governed by Article 67. (195a)

Revival of Previous Property Regime
the termination of the causes under Art. 135 for w/c an involuntary separation of
property has been decreed by the court constitutes the grounds to be able to
revive the previous property regime
the parties can file another petition for JSP if the grounds under Art. 135 re-occur,
even if the ground invoked were the same ground previously used
- 33 -

in case the JSP was voluntary, the parties can revive the previous property
regime, but no voluntary separation of property may thereafter be granted

The agreement to revive the former property regime shall be executed under
oath & shall specify:
1. the properties to be contributed anew to the restored regime
2. those to be retained as separate properties of each spouse
3. the names of all their known creditors, their addresses & the amounts owing
to each

Art. 142. The administration of all classes of exclusive property of either spouse may be
transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
(4) When one spouse 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. (n)

Fugitive from Justice one who flees to avoid punishment; one who having
committed or being accused of a crime in 1 jurisdiction is absent for any reason from
that jurisdiction;

Chapter 6. Regime of Separation of Property

Art. 143. Should the future spouses agree in the marriage settlements that their property
relations during marriage shall be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory. (212a)
Art. 144. Separation of property may refer to present or future property or both. It may be
total or partial. In the latter case, the property not agreed upon as separate shall pertain to
the absolute community. (213a)

Note: it is not valid for the parties to agree in the marriage settlement that the ACP/CPG
shall govern their marital property relationship only up to a certain time (e.g. up to the 10
th

wedding anniversary) and thereafter, the separation of property regime shall commence

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own
separate estate, without need of the consent of the other. To each spouse shall belong all
earnings from his or her profession, business or industry and all fruits, natural, industrial or
civil, due or received during the marriage from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in
case of insufficiency or default thereof, to the current market value of their separate
properties.
The liabilities of the spouses to creditors for family expenses shall, however, be
solidary. (215a)

Chapter 7. Property Regime of Unions Without Marriage

Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or industry,
and shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in
the property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their 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 co-ownership shall be forfeited in favor of their common children. In case of
default of or waiver by any or all of the common children or their descendants, each vacant
share shall belong to the respective surviving descendants. In the absence of descendants,
such share shall belong to the innocent party. In all cases, the forfeiture shall take place
upon termination of the cohabitation. (144a)

Requisites to Qualify for Art. 147: the man & woman must:
1. be capacitated to marry each other
2. live exclusively w/ each other as H&W
3. be w/o the benefit of marriage or under a void marriage:
a. Art. 36
b. Art. 44
c. Art. 53
d. Void for absence of consent
e. Void for absence of authority of solemnizing authority
f. Void for absence of valid marriage license
g. Void for absence of marriage ceremony

A person w/ legal capacity to marry any male/female at least 18 years of age,
not under any of the impediments under Art. 37 & 38, 35(1) and (4)

Valdes v. RTC Arts. 102(6) & 129(9) w/c provide that to whomsoever parent the
majority of the children elects to go shall go the conjugal home are not applicable in a
marriage judicially declared void. In a VOID marriage, the conjugal home shall be
EQUALLY OWNED by the couple & shall be divided equally upon liquidation.

FORFEITURE OF SHARE OF SPOUSE IN BAD FAITH
ART. 147 ART. 40
the spouse in BF shall forfeit not only his/her
share in the net profits but ALL OF HIS/HER
SHARES in the co-ownership in favor of:
1. their common children
2. in case of default/waiver by any/all of the
common children or descendants, each vacant
share shall belong to the surviving descendants
3. in default of descendants, such share shall
belong to the innocent party
the spouse in BF shall forfeit only
his/her share in the NET PROFITS
of the ACP/CPG in favor of the:
1. common children
2. children of guilty spouse
3. innocent spouse

- 34 -

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 co-
ownership shall accrue to the absolute community or conjugal partnership existing in such
valid marriage. If the party who acted in bad faith is not validly married to another, his or
her shall be forfeited in the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad
faith. (144a)

Q: When will Art. 148 apply?
A: When any of the requirements under Art. 147 is absent, such as the ff:
1. a man & a woman living together as H&W, w/o benefit of a marriage, but are NOT
capacitated to marry
2. an adulterous relationship, even if it occurred prior to the effectivity of the FC
(Atienza v. De Castra, 2006)
3. a bigamous/polygamous marriage under Art. 35(4)
4. incestuous void marriages under Art. 37
5. void marriages by reason of public policy under Art. 38

STRUCTURE OF PROPERTY RELATIONSHIP
ART. 147 ART. 148
1. salaries & wages owned by them in equal
shares
1. salaries & wages are separately owned
by the parties, & if any of the spouses is
married, his/her salary is the property of
the ACP/CPG of such legitimate marriage
2. property acquired by either of the parties
exclusively by his/her own funds belongs
to such party, provided there is proof that
s/he acquired it by exclusive funds
2. properly acquired by funds of any of the
parties belongs to such party
3. property acquired by both of them thru
their work/industry shall be governed by
the rules on co-ownership; thus, either
spouse may alienate in favor of the other
his/her share
3. only the properties acquired by both
parties thru their actual joint contribution
of money, property or industry shall be
owned by them in common in proportion
to their respective contributions
4. property acquired while they live together
shall be presumed to have been obtained
by them in their joint efforts, work or
industry & shall be owned by them in
equal shares; a party who didnt
participate in the acquisition by the other
property of any property shall be deemed
to have contributed jointly in the
acquisition if the formers efforts consisted
in the care & maintenance of the family &
of the household
4. the respective shares of the parties over
properties owned by them in common
are presumed equal; but proofs may be
shown to show that their contribution &
shares is not equal; w/o proof of actual
contribution by both parties, there can
be no presumption of co-ownership &
equal sharing
5. the share in joint deposits of money &
evidences of credit shall be presumed
equal
5. property acquired by any of the parties
after separation shall be exclusively owned
by the party who acquired it
6. if 1 of the parties is validly married to
another, his/her share in the co-
ownership shall accrue to the ACP/CPG
6. the fruits of the couples separate property
are not included in the co-ownership
7. neither party can encumber/dispose by
acts inter vivos of his/her share in the
property acquired during cohabitation &
owned in common, w/o the consent of the
other, until after the termination of their
cohabitation; but either spouse may
alienate in favor of the other his/her share
in the property co-owned; but no one can
donate/waive any interest in the co-
ownership that would constitute a
direct/indirect grant of gratuitous
advantage to the other w/c is void under
Art. 87
existing in such valid marriage;
8. when only 1 of the parties to a void
marriage is in GF, the whole share of the
party in BF in the co-ownership shall be
forfeited (the forfeiture shall take place
upon termination of the cohabitation)
7. if the party who acted in BF is not validly
married to another, his/her share whole
share shall be forfeited in the same
manner as Art. 147; the same shall
apply even if both parties are in BF

Manila Surety & Fidelity Co., Inc. V. Teodoro -

Juaniza v. Jose A woman, who was living in a bigamous rship w/ a married man, was
sought to be held liable for an accident involving a vehicle driven by the bigamous husband.
The vehicle was registered under the name of the husband. The SC held that the woman
cannot be held liable as co-owner of the vehicle because the vehicle must be considered the
conjugal property of the bigamous husband & his legitimate spouse.

Belcodero v. CA The husband bought property in instalments and thereafter left hs
family to bigamously marry another woman. The husband had the property under the name
of the said woman after full payment. SC held that the property belonged to the CPG oft he
legitimate 1
st
marriage.

Agapay v. Palang in a bigamous marriage, Art. 148 applies esp. when it was never
shown that 1 of the spouses actually contributed to the co-ownership

Borromeo v. Descallar (2009) Title to real property was registered under the name of a
Filipina wife considering that her Austrian-husband, who acquired & fully financed the
purchase from a realty corporation during the cohabitation, was constitutionally prohibited
from owning property in the Phil. It was found that the Filipina wife was already married to
another person prior to her marriage to the Austrian. The SC affirmed the sale by the
Austrian of the property registered under the name of the Filipina wife to a 3
rd
person ruling
that mere registration of the title under the name of the Filipina spouse does NOT confer
upon her absolute ownership against convincing evidence that the property was financed
exclusively by the Austrian.

TITLE V
THE FAMILY

Chapter 1. The Family as an Institution
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Art. 149. The family, being the foundation of the nation, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed by law and
no custom, practice or agreement destructive of the family shall be recognized or given
effect. (216a, 218a)

Rules of Court
the husband & wife shall sue or be sued jointly, except as provided by law
basis: generally, the spouses are joint administrators of the ACP/CPG
jointly simply means that they shall be sued together; it does not refer to the
nature of the liability

Carandang v. Heirs of Quirino De Guzman (2006) The SC allowed only 1 of the
spouse to file a case for recovery of property considering that, in a CPG, the law of
partnership in the NCC applies in a suppletory character, & according to the latter, a
spouse is a co-owner of partnership property, s/he can thus undertake anything
beneficial to the partnership, including the filing by himself/herself alone of a case for
the recovery of partnership property. The other spouse is not an indispensible nor a
necessary party to such case.

Docena v. Lapesura (2001) Joint management/administration does not require
that the H&W always act together. As a general rule, the verification & certification of
non-forum shopping in a petition/complaint filed in court must be signed by all the
petitioners, the signature of the husband or wife alone is substantial compliance in
cases involving community/conjugal property.

Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood. (217a)
Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject of compromise
under the Civil Code. (222a)

GR: Before a suit can be filed by a person against another belonging to the same family
under Art. 150, earnest efforts must 1
st
be made to settle the case amicably. Otherwise, the
case shall be dismissed.
E: The rule on earnest efforts shall not apply to the ff:
1. If a stranger not of the same family is included in the suit between family
members, as the interest of such stranger may differ from the interest of members
of the same family.
2. Special proceedings (e.g. petition for settlement of estate, guardianship & custody
of children, habeas corpus); suit = civil actions
3. Cases w/c cannot be compromised:
a. Civil status of persons
b. Validity of a marriage or of a legal separation
c. Any ground for legal separation
d. Future support
e. Jurisdiction of the courts
f. Future legitime

Hontiveros v. RTC A suit filed by a woman against her sister & the latters husband
will not involve earnest efforts to compromise considering that the inclusion of the
husband who is not w/in the family relations provided by law.

Art. 332, RPC: No criminal liability (only civil liability) shall result from the
commission of theft, swindling, or malicious mischief committed by:
1. Spouses, ascendants & descendants, or relatives by affinity in the same line
2. The widowed spouse w/ respect to the property w/c belonged to the
deceased spouse before the same shall have passed into the possession of
another
3. Brothers & sisters and brothers-in-law and sisters-in-law, if living together

Prescription does not run between the ff:
1. Husband & wife even though there be separation of property
2. Parents & children during the minority/insanity of the latter
3. Guardian & ward during the continuance of the guardianship

Chapter 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling house where they and their family reside, and
the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter provided and to the extent
of the value allowed by law. (223a)

Constitution of the Family Home
A family home is deemed constituted from the time it is actually occupied as a
family residence.
The occupancy must be actual & not constructive, something w/c is merely
possible or presumptive. Thus, one cannot claim that s/he occupied the premises
at the time his/her overseer, maid, houseboy or driver has lived in the said place
because occupancy by the 1 claiming the said house as a family home must be
actual & not constructive. (Manacop v. CA)
The requirement of a house & land as constitutive of a family home stresses the
element of permanence (a boat on water cannot be constituted a family home)
Residing in a family home is a real right (Taneo v. CA)

Modequillo v. Breva Art. 153 cannot be given retroactive effect to shield the
homes of debtors from execution of judgment arising from debts w/c became due &
demandable prior to the effectivity of the Family Code.

Means of Constituting the Family Home
1. Jointly by the H&W
2. By an unmarried head of the family who can constitute alone
3. By occupancy of any of the beneficiaries

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Exempt from Execution, Forced Sale, Attachment
Modequillo v. Breva the exemption is effective from the time of the
constitution of the family home & lasts so long as any of its beneficiaries actually
resides therein
Versola v. CA (2006) it is a personal right w/c can be claimed only by the
judgment debtor, & not by the sheriff, and thus generally must be claimed before
the public auction

Josef v. Santos (2008) The petitioner immediately claimed exemption from
execution of a property w/c was claimed to be a family home after the respondent
filed a motion for execution. The lower court did not conduct any investigation w/n
indeed the property was a family home. The SC voided the writ of execution.

Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in the family home and who depend upon the
head of the family for legal support. (226a)

Requisites to be a Beneficiary
1. They must be among the relationships under Art. 154
2. They live in the family home
3. They are dependent for legal support upon the head of the family

Manacop v. CA The enumeration under Art. 154 may include the in-laws where the
family home is constituted jointly by the H&W. But the law definitely excludes maids &
overseers.

Patricio v. Dario III (2006) A grandson was not considered a beneficiary of a
family home owned by his grandparent because, while the said grandchild was living
in the said family home, he was not dependent for support on the grandparent, who
was the head of the family where the said grandchild lived, but was dependent on his
father.

Art. 155. The family home shall be exempt from execution, forced sale or attachment
except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who
have rendered service or furnished material for the construction of the building. (243a)

Gomez v. Sta. Ines (2005) Where the debt was incurred before the effectivity of
the FC & the subject property had not been constituted as a family home, the SC ruled
that, because a home w/c was not a family home prior to the effectivity of the FC, the
debt thus can be considered as having been incurred before the constitution of the
family home & thus can be subject to execution. The 1989 judgment sustaining the
liability of the debtor was not the reckoning date for the existence of the debt. It is the
time when the debt was actually incurred.

Art. 156. The family home must be part of the properties of the absolute community or the
conjugal partnership, or of the exclusive properties of either spouse with the latter's
consent. It may also be constituted by an unmarried head of a family on his or her own
property.
Nevertheless, property that is the subject of a conditional sale on instalments
where ownership is reserved by the vendor only to guarantee payment of the purchase
price may be constituted as a family home. (227a, 228a)

Family Home
Must be constituted at a place where there is a fixed & permanent connection w/
the persons constituting it
Property that is subject of a conditional sale on instalment where ownership is
reserved by the vendor only to guarantee payment of the purchase price may be
constituted as a family home

The ff. are NOT considered a family home:
1. An apartment unit or a house being merely rented cannot be constituted a
family home
2. a house erected by a person on the property of another

Art. 157. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of the three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code,
the value most favorable for the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities
and municipalities whose annual income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. (231a)

Value of the Family Home
actual occupancy is the operative act of the constitution
the family home at the time of the constitution must be at least P300K in urban
areas, and P20K in rural areas - the excess is not exempt from execution, forced
sale, or attachment
even if the value of the house increased due to improvements/renovations, to an
amount more than that fixed by the law at the time of the constitution, such
family home will remain a family home

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by
the owner or owners thereof with the written consent of the person constituting the same,
the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the
court shall decide. (235a)

GR: the family home cannot be sold, alienated, donated, assigned, lease, encumbered
E: if there is written consent of the ff:
1. The person constituting the same
2. The latters spouse
3. A majority of the beneficiaries of legal age

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Art. 159. The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the court finds compelling
reasons therefore. This rule shall apply regardless of whoever owns the property or
constituted the family home. (238a)

Arriola v. Arriola (2008) Though the ownership of a house & lot passed to the
heirs because of the death of the father, it cannot be immediately partitioned because
of Art. 159.

Art. 160. When a creditor whose claims is not among those mentioned in Article 155
obtains a judgment in his favor, and he has reasonable grounds to believe that the family
home is actually worth more than the maximum amount fixed in Article 157, he may apply
to the court which rendered the judgment for an order directing the sale of the property
under execution. The court shall so order if it finds that the actual value of the family home
exceeds the maximum amount allowed by law as of the time of its constitution. If the
increased actual value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the beneficiaries, the
same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs. The excess, if any, shall be
delivered to the judgment debtor. (247a, 248a)

Note: Unlike Art 155, here there is a need for a court decision before a judgment
creditor can avail of the privilege under Art. 160.

Art. 161. For purposes of availing of the benefits of a family home as provided for in this
Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)
Art. 162. The provisions in this Chapter shall also govern existing family residences insofar
as said provisions are applicable. (n)

TITLE VI
PATERNITY & FILIATION

Chapter 1. Legitimate Children

Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be
legitimate or illegitimate. (n)
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm
of the husband or that of a donor or both are likewise legitimate children of the husband
and his wife, provided, that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth certificate of the
child. (55a, 258a)
Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless
otherwise provided in this Code. (n)

Paternity & Filiation the relationship which exists between parents & their children

Classification of Children
1. Illegitimate
2. Legitimate

Classification of Filiation
1. By nature
2. By adoption

LEGITIMATE ILLEGITIMATE LEGITIMATED
1. conceived OR born inside a valid
marriage
2. conceived OR born inside a
voidable marriage
3. Conceived OR born inside void
marriages under Art. 36
4. Conceived OR born inside void
marriages for failure to comply w/
Art. 52 in relation to Art. 53
(#2, 3 & 4 refer to those conceived
or born AFTER the marriage
ceremony of the parents but BEFORE
finality of the judgment of nullity)
1. Conceived AND
born outside a valid
marriage
2. Conceived AND
born inside a void
marriage
3. Conceived AND
born before the
marriage ceremony

GR: Conceived at a
time when the parents
do not suffer any legal
impediment to marry
each other & the
parents subsequently
marry
E: if such subsequent
marriage is declared
void, the child is
illegitimate

Angeles v. Maglaya (2005) Legitimate or illegitimate filiation is fixed by law &
cannot be left to the will of the parties or the declaration of any physician or midwife.
The presumption of legitimacy of a child can only arise upon convincing proof that the
parents of the child were legally married & that the childs conception or birth occurred
during the subsistence of such marriage.

Concepcion v. CA (2005) The wife bigamously married another & a child was born
in the said bigamous union. The bigamous marriage was declared null & void. The SC
ruled that the child actually born in the 2
nd
voided union was in effect born of the wife
in the 1
st
subsisting marriage & thus, in the eyes of the law, the father of the child was
the 1
st
husband of the wife.
It was asserted that the birth certificate of the child stating the name of the 2
nd

husband as the father created a presumption of fact w/c shouldve been rebutted, but
this contention was rejected by the SC. In case of conflict bet. a presumption of law
that a child born inside a valid marriage is legitimate & a presumption of fact arising
from the statement of filiation in a birth certificate, the presumption of law will prevail.

Types of Artificial Insemination
1. Homologous process by w/c the wife is artificially impregnated w/ the
semen of her husband (AIH Artificial Insemination Husband)
2. Heterologous artificial insemination of the wife by the semen of a 3
rd
party
donor (AID Artificial Insemination Donor)
a. Consensual w/ consent of the husband
b. Non-consensual w/o consent of the husband

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Requisites for an Artificially Inseminated Child to be considered Legitimate
1. Both spouse authorize/ratify such insemination thru a written instrument
executed & signed by them before the birth of the child
2. The instrument & birth certificate of the child is recorded in the civil registry

Note: Even if the requisites are not complied w/ and the husband does not impugn the
legitimacy of the child on the grounds provided by law w/in the prescriptive period,
the child shall still be considered legitime.

NO Criminal Liability for Adultery
A wife who, w/o consent of her husband, had herself artificially inseminated by
the semen of another w/c led to the siring of a child not of the husband, cannot
be held criminally liable for adultery.
Artificial insemination does NOT involve sexual intercourse w/c is 1 of the
essential elements in the crime of adultery.

Art. 166. Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his
wife within the first 120 days of the 300 days which immediately preceded the birth of the
child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have
been that of the husband, except in the instance provided in the second paragraph of Article
164; or
(3) That in case of children conceived through artificial insemination, the written
authorization or ratification of either parent was obtained through mistake, fraud, violence,
intimidation, or undue influence. (255a)
Art. 167. The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.(256a)

Art. 166
Presupposes a valid marriage bet. the H&W
Condition sine qua non that the child has been delivered by a woman who is the
childs natural mother; that the child came from her own womb;
If any of the grounds is proven, the child will neither be legitimate nor illegitimate
insofar as the husband is concerned. The husband & child will not be related to each
other in any manner considering that the husband did not participate in any way to the
childs procreation. But insofar as the mother is concerned, the child is illegitimate.

GR: Only the husband can invoke the grounds.
E: The heirs can invoke the grounds in cases provided under Art. 171.

Note: the wife cannot file an action to impugn the legitimacy of her child

Chua Keng Giap v. IAC This is an inheritance case where a person claims to be the
son of a woman & of the decedent whose properties are being liquidated. But such
person-claimant was not in fact delivered by the alleged mother. She can validly
declare that said person is not in anyway related to her as her child. Who better than
the mother would know if a person is really her son?

Russell v. Russell Eng The presumption that the child of a married woman was
begotten by her own husband is not displaced by proof that the wife had immoral
relations w/ other men. Non-access by the husband at the time when the child must
have been begotten must have been proved.

Presumption In all cases where the husband assails the legitimacy of an issue sired
by his wife, all doubts are resolved in favor of legitimacy because of the existence of
that universal presumption of legitimacy.

Rebutting Presumption While the presumption is a strong one, still, if reason &
experience dictates that it should not hold, then the presumption should be
disregarded but only upon convincing evidence.

GROUNDS FOR IMPUGNING LEGITIMACY

Living
Separately
the H&W must have lived separately in such a way that sexual
intercourse was NOT POSSIBLE
e.g. a child was born in Italy 6 years after the husband left &
migrated to the US, and he never returned, and his wife never left
Italy

Serious
Illness
the illness of the husband must be SO SERIOUS as to absolutely
prevent him from engaging in sexual intercourse
e.g. the husband was infected w/ Brights disease & Dropsy of the
bowels, scrotum & thighs seriously causing the general excessive
accumulation of fluid in the scrotum & in the skin of the penis
Biological &
Scientific
Reasons
scientific test, blood test, DNA test
e.g. a white couple cannot produce a black child or mulatto; but they
must prove that neither of them had black or mulatto ancestry

Sterility
the husband must be shown to be completely sterile at the time when
the child was conceived. It takes only 1 sperm to successfully fertilize
Vitiated
Consent in
Artificial
Insemination
if the written authorization/ratification was obtained thru mistake,
fraud, violence, intimidation or undue influence
the mistake, fraud, violence, intimidation or undue influence can be e
can be exerted by the spouses against each other or by 3
rd
persons
on both of the spouses or any of them
only the husband & in some cases the heirs, can impugn legitimacy

The ff. are NOT enough to Overturn the Presumption of Legitimacy
1. cutting of the penis but it was still 3 inches long enough to be able to
copulate
2. the husband has been absolutely stiff in the hips at the time of conception
3. mere remoteness of the wife from the husband
4. the H&W lived 170 miles away from each other
5. the husband was NOT completely sterile
6. the fact that the husband had undergone vasectomy the removal of about
an inch of tubes or vas deferens w/c is the passage way of the sperm from
the testicle to the urethra & tying the remaining ends

Blood Grouping Tests - accurate only in EXCLUDING paternity, but they cannot indicate
w/ precision that a particular person is the father of the child whose paternity is in issue

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DNA Testing
valid procedure in determining paternity
DNA result that excludes the putative father from paternity is conclusive proof of non-
paternity
If probability of paternity as 99.9% - refutable presumption of paternity
If less than 99.9% - merely corroborative

If the wife obtained a sperm sample of her husband w/c the latter contributed in a
sperm bank, & the wife had herself artificially inseminated w/ such sperm w/o the
knowledge/consent of her husband, the husband can:
1. impugn legitimacy of child it was physically impossible for him to have
sexual intercourse w/ the wife at the time of the conception
2. ratify the artificial insemination

Art. 168. If the marriage is terminated and the mother contracted another marriage within
three hundred days after such termination of the former marriage, these rules shall govern
in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent
marriage is considered to have been conceived during the former marriage, provided it be
born within three hundred days after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent
marriage is considered to have been conceived during such marriage, even though it be
born within the three hundred days after the termination of the former marriage. (259a)

When is access presumed? During the marriage & prior to its termination.

When is access NOT presumed? After the termination of the marriage, the duty of the
parties to cohabit disappears.

Presumption of Filiation in Case of 2 Marriages
The rules do NOT give any presumption as to the legitimacy/illegitimacy, but merely
state WHEN the child is considered to have been CONCEIVED. The status of the child
will depend upon the status of the marriage in w/c s/he is considered to have been
conceived.
The rules will NOT apply in case there are convincing proofs of filiation that the father
of the child is the previous or subsequent husband.

180 DAY PERIOD 300 DAY PERIOD
the SHORTEST gestation period the LONGEST gestation period

Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following
the termination of the marriage shall be proved by whoever alleges such legitimacy or
illegitimacy. (261a)

No Presumption for a Child Born after 300 days After Termination of Marriage
While there have been cases where the gestation period reached from up to 316
to 330 days, this is not normal & thus other convincing proofs of filiation must be
shown.

People v. Velasquez The child, who was allegedly the result of rape by the
accused on the alleged victim, was born 10 months & 11 days from the alleged rape.
The SC ruled that such circumstance is not normal & could only prove that there were
subsequent acts of sexual intercourse after the 1
st
alleged rape w/c discredited the
victims version that there was no voluntariness in the alleged sexual intercourse.

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year
from the knowledge of the birth or its recording in the civil register, if the husband or, in a
proper case, any of his heirs, should reside in the city or municipality where the birth took
place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth
as defined in the first paragraph or where it was recorded, the period shall be two years if
they should reside in the Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs, the period shall be
counted from the discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.(263a)
Art. 171. The heirs of the husband may impugn the filiation of the child within the period
prescribed in the preceding article only in the following cases:
(1) If the husband should died before the expiration of the period fixed for bringing his
action;
(2) If he should die after the filing of the complaint without having desisted therefrom; or
(3) If the child was born after the death of the husband. (262a)

Parties
Impugning the legitimacy of the child is strictly a personal right (SSS v. Aguas, 2006)
It cannot be set up by way of defense or as a collateral issue (Rosales v. Castillo
Rosales)
Legitimacy cannot be collaterally attacked/impugned (Angeles v. Maglaya, 2005)
It can be impugned only in a direct suit precisely filed for the purpose of assailing the
legitimacy of the child.

GR: Only the husband can file a direct action to impugn the legitimacy of the child.
This is true even if the child were conceived thru artificial insemination by a donor of
sperm not the husband.
E: Heirs may file in the cases under Art. 171

Example: If a wife gives birth to the child of her paramour, the said child is born
inside the valid marriage of the wife & husband. Such child is thus considered
legitimate as to the H&W. Only the husband can impugn the legitimacy of the child if
he wants to. If the paramour files an action for the custody of the child contending
that he is the natural father, the action should be dismissed because only the husband
can claim that the child is illegitimate.

GR: Impugning the legitimacy of a child cannot be made in an action for partition as
this is a collateral attack. (De Jesus v. De Jesus, 2001)
E: However, if 1 of the issues presented in an action for annulment of an extrajudicial
partition concerned the right of a particular person to inherit & the assertion that the
alleged heir was not in fact the child of the deceased, a determination of filiation may
be made. (Sps. Fidel v. CA, 2008)

Barbiera v. Catotal (2000) A legitimate child filed a suit to cancel the birth cert. of
her housemaids child who claimed to be her sister & thus also the legitimate child of
her parents. It was proven that indeed the housemaids child was not given birth the
mother of the legitimate child & that the birth cert. of the housemaids child was
forged to make it appear that the housemaids child was the child of the parents of the
- 40 -

legitimate child. The SC rejected the contentions of the housemaids child that the
legitimate child cannot anymore impugn her legitimacy on the ground that only the
father can do so & the action had prescribed.
Art. 171 presumes that the child was the undisputed offspring of the mother.
But the present case alleges & shows that Hermogena did not give birth petitioner.
The prayer herein did not declare the petitioner as an illegitimate child of Hermogena,
but establish that the former is NOT the latters child at all. The present action does
not impugn petitioners filiation to the spouses because there is no blood relation to
impugn in the 1
st
place.

Eloi v. Made The law does not give the mother the standing to file an action to
impugn the filiation/legitimacy of her child because maternity is never uncertain.

Prescriptive Periods after the lapse of the prescriptive period, the status of the
child becomes fixed & cannot be questioned anymore
1. 1 year from knowledge of the birth or its recording in the LCR if the
impugner resides in the city/municipality where the birth took place or was
recorded
2. 2 years from knowledge of the birth or its recording in the LCR if the
impugner resides in the Phil. other than the city/municipality where the birth
took place or was recorded
3. 3 years if impugner resides abroad

Note: The period is counted from the knowledge of the childs birth, and NOT from the
knowledge that the child was not his. Also, the concealment here does NOT refer to
the concealment that the child was not the husbands, but the concealment that a
child was in fact born/registered in the LCR as having been delivered by the wife.

Chapter 2. Proof of Filiation

Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

Cabatania v. CA (2004) In this age of genetic profiling & DNA analysis, the
extremely subjective test of physical resemblance or similarity of features will not
suffice as evidence to prove paternity & filiation.

Navarro v. Bacalla a judicial testimony w/c has not been rebutted and in fact not
disputed by the alleged father, is sufficient to prove paternity

Verceles v. Posada (2007) The admitted love letters of the petitioner in his own
handwriting & using as alias & declaring that should respondent become pregnant, he
will have no regret & that they should rejoice in the responsibility qualifies as private
handwritten instrument that can establish filiation.

PROOF OF FILIATION
1. Record
of Birth
A record of birth in the civil register is a public document & is prima
facie evidence of the facts contained therein. It may be rebutted.
2. Final
Judgment
A final judgment is a judicial decision bearing on the status of the
child as legitimate & thus, binding & conclusive. It is also a public
document.
A final judgment based on a compromise agreement where the
parties stipulated & agreed on the status of a person is VOID.
Contractually agreeing & establishing the civil status of a person is
against the law & public policy.
Rivero v. CA (2005) Paternity & filiation, or the lack of the
same, is a relationship that must be judicially established, & it is
for the court to determine its existence of absence. It cannot be
left to the will or agreement of the parties.
3. Admission in
Public/Private
Handwritten
Document
An admission of legitimate filiation in a public instrument or private
handwritten instrument & signed by the parent concerned is a
complete act of recognition w/o need of court action.
4. Open &
Continuous
Possession of
Legitimate
Status
The father has treated the child as his own, directly & not thru
others, spontaneously & w/o concealment though w/o publicity.
There must be a showing of the permanent intention of the
supposed father to consider the child as his own, by continuous &
clear manifestation of paternal affection & care.
The paternal affection & care must not be attributed to pure
charity.
Ong v CA For continuous possession to exist, the fathers
conduct toward his son must also be spontaneous & uninterrupted
& the fact that the father met the children 4x to give them money
is not enough.
5. Evidence
under Rules of
Court &
Special Laws
Baptismal cert., a judicial admission, admission by silence, a family
bible in w/c his name is entered, common reputation respecting his
pedigree, testimony of other witnesses
A baptismal cert. to be proof of filiation, it must be shown that the
father participated in the preparation of the same. A birth cert.
NOT signed by the father is NOT competent proof.
Pictures, typewritten letters, & affidavits do NOT constitute proof of
filiation
The fact alone that a person used the surname of his father, after
the latters death, w/o his assent or consent, does NOT constitute
proof of filiation or paternity
6. DNA Testing If the mans DNA types do NOT MATCH that of the child, the man is
EXCLUDED as the father.
If the DNA types match, then he is NOT EXCLUDED as the father.
A complete match bet. the DNA profile of a child & a putative
father does NOT necessary establish paternity, it only means the
father is NOT EXCLUDED as the father.
DNA analysis that excludes the putative father from paternity is
CONCLUSIVE PROOF of NON-PATERNITY.
If the probability of paternity is:
- less than 99.9% - corroborative evidence
- 99.9% or higher refutable presumption of paternity

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Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a
state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.

WHO MAY CLAIM LEGITIMACY? PRESCRIPTIVE PERIOD
1. Child exclusive & personal right anytime during his lifetime
2. Heirs of the Child if:
a. Child dies during minority
b. Child is in state of insanity
c. Child dies after action has already been instituted
5 years

Art. 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with the provisions of
the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper cases, their
brothers and sisters, in conformity with the provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights granted to them by
the Civil Code. (264a)

RIGHTS OF A
LEGITIMATE/LEGITIMATED CHILD
RIGHTS OF AN
ILLEGITIMATE CHILD
1. has entire lifetime to claim
legitimacy regardless of what type
of proof s/he has
1. has entire lifetime to claim illegitimacy
only if s/he uses proofs under the 1
st
par. of
Art. 172

The child can only bring an action w/in the
lifetime of the parent if s/he uses proofs
under the 2
nd
par. of Art. 172
2. right to file claim for legitimacy is
transmissible to heirs
2. right to file claim for status is NOT
transmissible to heirs
3. entitled to receive support from any
of his/her descendants/ascendants
in the direct line
3. entitled to receive support only up to the
grandparent (ascendants) and to
grandchildren (descendants) in the direct
line
4. legitime in succession = 1 4. legitime = of legitime of legitimate child
5. right to inherit ab intestato from the
legitimate children & relatives of his
mother & father
5. no right to inherit ab intestate from the
legitimate children & relatives of his father &
mother
6. principally bears the surname of the
father
6. generally bear the surname of the mother

Chapter 3. Illegitimate Children

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and
on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in which case the action
may be brought during the lifetime of the alleged parent. (289a)

HUSBAND &
SINGLE CONCUBINE
HUSBAND &
MARRIED CONCUBINE
Their child is
illegitimate, and the
latter may file an action
to claim his illegitimate
status vis-a-vis the
philandering husband.
Their child cannot file an action to claim his illegitimate
status against the philandering husband although the latter
is in fact his natural father. This is so because the said child
was born inside the marriage of the concubine & her own
spouse & is thus legitimate. It is up to the concubines
spouse to file a case to impugn the legitimacy of the child.

Note: The proof of filiation must be CLEAR and CONVINCING.

Art. 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code. The
legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate
child. Except for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force. (287a)

Briones v. Miguel (2004) The father is not given parental authority
notwithstanding his recognition that the child is. It might turn out that the alleged
putative father might not be the real natural father and thus, to prevent a person from
exercising parental authority over a child who might not be his, the parental authority
over an illegitimate child is solely given to the mother.

Mel Sta. Maria: The Briones ruling is strict. It is submitted that if the alleged father
admits that the child is his & it is shown that the child is really conclusively his child &
the father lives together w/ the child & the mother of said child under a void marriage
or w/o the benefit of a marriage, Art. 211 FC will apply: The father & mother shall
jointly exercise parental authority over their common children. In case of
disagreement, the fathers decision shall prevail, unless there is a judicial order to the
contrary.

GR: The illegitimate children shall use the surname of the mother.
E: Illegitimate children may use the surname of their father if:
1. their filiation has been expressly recognized by the father thru the record of
birth appearing in the civil register, OR
2. when an admission in a public document or private handwritten instrument is
made by the father.

Chapter 4. Legitimated Children

Art. 177. Only children conceived and born outside of wedlock of parents who, at the time
of the conception of the former, were not disqualified by any impediment to marry each
other may be legitimated. (269a)
Art. 178. Legitimation shall take place by a subsequent valid marriage between parents.
The annulment of a voidable marriage shall not affect the legitimation.(270a)
Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a)
Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

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Requisites for Legitimation
1. The parents do not suffer any legal impediment or are disqualified to marry
a. E: If the legal impediment consists of 1 or both parties are less than
18 years at the time of conception of the child, legitimation allowed
2. The child has been conceived & born outside of a valid marriage; this is the
rule because, if the child is either conceived or born w/in a particular valid
marriage, the said child is declared by law as legitimate
3. The parents subsequently enter into a valid marriage. The annulment of a
voidable marriage shall not affect the legitimation.

Legitimation purely statutory creation; it is intended for the benefit & protection of
the innocent offspring and thus may be applied retrospectively

Henry v. Jean Where the essential elements of legitimation existed prior to the
passage of the legitimating statute, legitimation is deemed to occur as of the time the
statute becomes effective.

Muldrow v. Cladwell However, while a legitimating statute adopted after the birth
of an illegitimate child may have the effect of legitimating the child, it will not affect
property rights w/c may have already been vested.

The ff. cannot be legitimated:
1. Adulterous children (Abadilla v. Tabiliran)
2. Children of bigamous marriages (De Santos v. Angeles)

Effects of Legitimation
Retroact to the childs birth
Legitimated children shall enjoy the same rights as legitimate children
Legitimation creates for the legitimated child the total & full extent of the blood
relationship existing w/in the family to include all descendants, ascendants &
collateral relatives (unlike in adoption where the relationship is only that of parent
& child)

Art. 181. The legitimation of children who died before the celebration of the marriage shall
benefit their descendants. (274)

Example: Legitimate ascendants & descendants are obliged to support each other.
Thus, in the legitimate line, a great grandparent is obliged to support his great-
grandchild. However, in the illegitimate line, great-grandparents are not obliged to
support their great-grandchildren. If Maria has an illegitimate child named Pedro,
conceived & born at the time when she & Jose, her boyfriend who was the natural
father of Pedro, were capacitated to marry, & Pedro has a legitimate child named
Miguel, who in turn has a legitimate child named Juan, Maria is not obliged to support
Juan because Marias obligations extend only up to her grandson Miguel. If after the
death of Pedro, Maria & Jose validly married, Pedro is legitimated after his death, and
this benefits his descendants, one of w/c is Juan. Thus, Maria is now oblied to support
Juan.

Maria Jose
|
Pedro
|
Miguel
|
Juan

Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights,
within five years from the time their cause of action accrues. (275a)

Rights refers to successional rights

Who are the persons who can be prejudiced? The legal heirs of the parents. This is so
because had the child not been legitimated, s/he would have been an illegitimate child and
thus would receive only of what a legitimate child would get. In being legitimated, the
child acquires all the rights of a legitimate child, including successional rights.

[SEE ANNEXES FOR TABLE ON DOMESTIC & INTER-COUNTRY ADOPTION]

TITLE VIII
SUPPORT

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of
the family.
The education of the person entitled to be supported referred to in the preceding
paragraph shall include his schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall include expenses in going to and from
school, or to and from place of work. (290a)

Support
Includes whatever is necessary to keep a person alive
Mandatory obligation cannot be waived, renounced, transmitted, or compensated
in keeping w/ the financial position of the family determines the amount of support
to be given
schooling formal education
training non-formal education

De Asis v. CA The mother agreed to the dismissal of the support-case provided that
the defendant did not pursue his counterclaim. Such manifestation did not bar the
mother from filing a subsequent case for support on behalf of the same child against
the same defendant. The agreement was in the form of a renunciation as they severed
the vinculum that gives the child the right to claim support from the putative parent.
Such agreement is also in the nature of a compromise w/c violates the prohibition
against any compromise of the right to future support.

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to
support each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
- 43 -

(3) Parents and their legitimate children and the legitimate and illegitimate children of the
latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the
latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood (291a)
Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Article 194, except only
when the need for support of the brother or sister, being of age, is due to a cause imputable
to the claimant's fault or negligence. (291a)

PERSONS OBLIGATED TO SUPPORT EACH OTHER
1. between
spouses
presupposes a valid marriage
entitled to support from ACP/CPG support pendente lite pending
proceedings for legal separation or annulment of marriage
not entitled to support spouse guilty of adultery or abandonment
w/o justifiable cause
GR: if the spouses are legally separated, support ceases;
E: the court orders guilty spouse to support the innocent spouse
2. legitimate
ascendants &
descendants
purpose: to ensure that members of a family do not allow any
member of the same family to become a burden to society
if the relationship is put at issue, the status of the parties should
1
st
be established before support can be made
3. parents & LC,
and LC & IC of
the latter
parents are obliged to support their legitimate children AND
legitimate/illegitimate grandchildren, and vice versa
4. parents & IC,
and LC & IC of
the latter
parents are obliged to support their illegitimate children AND
legitimate/illegitimate grandchildren, and vice versa
Mangulabnan v. IAC If in a hearing for support pendente lite,
the status of the child is at issue, the alleged child can get support
in the meantime while the case is pending from the alleged parent
if his status has been proven provisionally. There must be prima
facie evidence to show the merit of the claim of the child (e.g.
affidavit of the claimant-child, testimonies of witnesses). The
finding is merely provisional & is subject to the final outcome of the
trial on the merits.
5. legitimate
brothers &
sisters, whether
full or half blood
collateral blood relatives, but only up to brothers & sisters
does NOT include uncles, aunts, nephews, nieces
6. illegitimate
brothers &
sisters
GR: they are entitled to support each other
E: if the illegitimate brother/sister is of age & the need for his/her
support is due to his/her fault or negligence, support does not
become a demandable right & thus may not be given at all

Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate;
and brothers and sisters, whether legitimately or illegitimately related, only the separate
property of the person obliged to give support shall be answerable provided that in case the
obligor has no separate property, the absolute community or the conjugal partnership, if
financially capable, shall advance the support, which shall be deducted from the share of the
spouse obliged upon the liquidation of the absolute community or of the conjugal
partnership. (n)

SOURCE OF SUPPORT
SEPARATE PROPERTY ACP/CPG
1. Legitimate ascendants
2. Legitimate/illegitimate
descendants
3. Legitimate/illegitimate
brothers & sisters
1. Spouses
2. Common children of the spouses
3. Legitimate children of either spouse
4. If the separate property is insufficient (for the left
column), the ACP/CPG shall advance the support in
the meantime

Art. 198. During the proceedings for legal separation or for annulment of marriage, and for
declaration of nullity of marriage, the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership. After the final judgment
granting the petition, the obligation of mutual support between the spouses ceases.
However, in case of legal separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order. (292a)

Support Pendente Lite support for the spouses & children shall be drawn from the
ACP/CPG

Reyes v. Ines-Luciano Adultery of the wife is a defense in an action for support.
However, the alleged adultery of the wife must be established by competent evidence.
There mere allegation that the wife committed adultery will not bar her from the right
to receive support pendente lite.

Art. 199. Whenever two or more persons are obliged to give support, the liability shall
devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
Art. 200. When the obligation to give support falls upon two or more persons, the payment
of the same shall be divided between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may
order only one of them to furnish the support provisionally, without prejudice to his right to
claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the
same person legally obliged to give it, should the latter not have sufficient means to satisfy
all claims, the order established in the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child subject to parental authority, in which
case the child shall be preferred. (295a)

Mangonan v. CA (2008) The SC ordered the grandfather, who was proven to be
well-off, to support his grandchildren on the basis of Art. 199, considering that their
parents were not capable of supporting the children.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be
in proportion to the resources or means of the giver and to the necessities of the
recipient. (296a)
Art. 202. Support in the cases referred to in the preceding article shall be reduced or
increased proportionately, according to the reduction or increase of the necessities of the
recipient and the resources or means of the person obliged to furnish the same. (297a)

- 44 -

Amount of Support is Based on:
1. Necessities of the recipient
2. Resources/means of the person obliged to give support

Provisional Character of Support Judgment - It is because of the changing needs of
the recipient & the changing ability of the provider that any judgment for support does not
become final.

Velayo v. Velayo The judgment for support does not become dormant. The 5-year
period for execution does not apply thereto. Rather, the support under the judgment
becomes due from time to time as provided & is enforceable by simple motion at any
time, except as to instalments not recovered w/in the statute of limitations.

Art. 203. The obligation to give support shall be demandable from the time the person who
has a right to receive the same needs it for maintenance, but it shall not be paid except
from the date of judicial or extra-judicial demand.
Support pendente lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first five days of each corresponding month or
when the recipient dies, his heirs shall not be obliged to return what he has received in
advance. (298a)

Sy v. CA (2007) Payment of the amount for support starts only from the time
support has been judicially or extra-judicially demanded.
Even if support were not prayed for in a custody suit but it was sought during
the hearing of the case w/o the objection of the other party, a decision on support can
be obtained even if the pleadings were not amended to conform to the evidence.

Baltazar v. Serfino An illegitimate child was born on Dec. 19, 1943 & the
extrajudicial demand for support was made only on June 1959. Payment of support
should begin only from June 1959.

Mangonan v. CA The SC allowed the payment of support in arrears considering
that the children, who should have been given support, must have already finished
their schooling by the time the decision was rendered. The amount of support to be
paid was computed from the time they entered college until they finished their
studies.

Art. 204. The person obliged to give support shall have the option to fulfil 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. (299a)

Mendoza v. Ibanez the right to elect the manner in w/c this support shall be given
is a right conferred by law upon the person whose duty it is to give such support

Art. 205. The right to receive support under this Title as well as any money or property
obtained as such support shall not be levied upon on attachment or execution. (302a)

GR: Anything obtained by way of support necessarily implies provisions made for the
survival & well=being of the receiptient.
E: 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/execution.

Art. 206. When, without the knowledge of the person obliged to give support, it is given by
a stranger, the latter shall have a right to claim the same from the former, unless it appears
that he gave it without intention of being reimbursed. (2164a)
Art. 207. When the person obliged to support another unjustly refuses or fails to give
support when urgently needed by the latter, any third person may furnish support to the
needy individual, with right of reimbursement from the person obliged to give support. This
Article shall particularly apply when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child when urgently
needed. (2166a)

REQUISITES FOR ART. 206 REQUISITES FOR ART. 207
1. The support has been furnished a
dependent of 1 bound to give support
but who fails to do so
2. The support was supplied by a stranger
3. The support was given w/o knowledge
of the person charged w/ the duty
1. There is an urgent need to be
supported on the part of the recipient
2. The person obliged to support unjustly
refuses or fails to give support
3. A 3
rd
person furnishes the support to
the needy person
The resulting relationship between the stranger & the person obliged to give support
under Art. 206 & 207 is a QUASI-CONTRACT.

Quasi-contract a juridical relation w/c arises from certain lawful, voluntary and
unilateral acts to the end that no one shall be unjustly enriched or benefited at the
expense of another.

Art. 208. In case of contractual support or that given by will, the excess in amount beyond
that required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever
modification is necessary due to changes of circumstances manifestly beyond the
contemplation of the parties. (n)

Legal support that mandated by law to be given (Art. 194)

Contractual Support
One w/c is entered into by the parties usually w/ reciprocal duties & obligations
Not mandated by law
The excess in amount beyond that required for legal support shall be subject to
levy/attachment/execution.
Basis: an agreement

TITLE IX
PARENTAL AUTHORITY

Chapter 1. General Provisions

Art. 209. Pursuant to the natural right and duty of parents over the person and property of
their unemancipated children, parental authority and responsibility shall include the caring
- 45 -

for and rearing them for civic consciousness and efficiency and the development of their
moral, mental and physical character and well-being. (n)

State ex rel. Nelson v. Whaley - The natural right bet. the parents & the offspring
has always been recognized as an inherent natural right, for the protection of w/c, just
as much as the protection of the individual to life, liberty & pursuit of happiness, the
government is formed.

Art. 210. Parental authority and responsibility may not be renounced or transferred except
in the cases authorized by law. (313a)

GR: Parental authority cannot be waived.
Exceptions:
1. Adoption
2. Guardianship
3. Surrender to a childrens home or an orphan institution

Santos v. CA Where a father who was not shown to be unfit took away his son from
custody of the grandparents thru deceit, false pretensions, and trickery, the SC ruled
that the father has the rightful custody of his child. When a parent entrusts the
custody of a minor to another, such as a friend/godfather, even in a document, what
is given is merely temporary custody & it does not constitute a renunciation of
parental authority.

Art. 211. The father and the mother shall jointly exercise parental authority over the
persons of their common children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
Children shall always observe respect and reverence towards their parents and are
obliged to obey them as long as the children are under parental authority.(311a)

Joint Parental Authority Over Common Children refers to both legitimate &
illegitimate children; the law does not distinguish

Requisites for Art. 211 to apply to ILLEGITIMATE Children:
1. The father is certain
2. The illegitimate children are living w/ the said father & mother who are
cohabiting w/o benefit of marriage or under a void marriage not falling under
Art. 36 and 53

Note: Art. 176 provides that illegitimate children shall be under the parental authority
of the mother. This is based on the premise that the paternity of the illegitimate child
is not always certain.

Art. 176 applies only in the ff. cases:
1. Where the paternity of the child is unknown or in doubt
2. Where, though paternity is certain, the father is not living w/ the mother &
the child

GR: In case of conflict between the parents, the decision of the father prevails.
E: If the mother or children want to change the decision of the father, they must go to
court. The basis for altering the decision of the father must rest on substantial,
important & serious ground for the paramount interest of the children.

Art. 212. In case of absence or death of either parent, the parent present shall continue
exercising parental authority. The remarriage of the surviving parent shall not affect the
parental authority over the children, unless the court appoints another person to be the
guardian of the person or property of the children.(n)

Remarriage of Parent
If one of the parents die, the surviving parent will continue to have parental authority
If the surviving parent remarries, the new spouse does NOT automatically possess
parental authority over the children of the surviving parent

Art. 213. In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over 7 years of age, unless the parent
chosen is unfit. (n)

Separation
In case the parents have separated, the court may designate the exercise of parental
authority on the part of 1 parent. But this designation does NOT mean that the parental
authority of the other parent is necessarily terminated or suspended. Parental authority
shall be terminated only if the court so decrees on the basis of the causes for
termination/suspension of such authority provided by law.

Cang v. CA In a legal separation case, the parties agreed that custody of the
children shall be awarded to the innocent party, who was the mother, leading the
court to issue the legal separation decree w/ such custody arrangement. The mother
later decided to have the children adopted w/o the consent of the father claiming that,
since the court designated the exercise of parental authority to her in the legal
separation decree, there was no need to obtain consent of the father. The SC held
that the consent of the father must still be obtained considering that the legal
separation decree did not necessarily terminate the parental authority of the father.
Only the exercise of parental authority was given to the mother.

CHILDREN BELOW 7 YEARS OLD CHILDREN 7 YEARS OLD AND ABOVE
GR: custody shall be awarded to the
mother
E: the court finds compelling reasons to
order otherwise, taking into consideration
the paramount interest of the child
GR: custody shall be awarded to his/her
choice of a parent
E: the paramount interest of the child
dictates otherwise

Habeas Corpus
A habeas corpus case can be availed of to secure the custody of the child in case the
parents are separated from each other. It can also be used by the parents against 3
rd

persons.
The writ of habeas corpus is the proper remedy to enable parents to regain the custody
of a minor daughter even though the latter be in the custody of a 3
rd
person of her free
will because the parents were compelling her to marry a man against her will.
The question of identity is relevant & material in habeas corpus proceedings, subject to
the usual presumptions including those as to identity of the person.
- 46 -

Dacasin v. Dacasin (2010) While the SC ruled as void a custodial agreement
providing that the child below 7 years shall be under the joint custody of both
separated parents, the SC, instead of dismissing the custody case for lack of cause of
action, remanded the case to the lower court for determination of the childs custody.
In child custody hearings, EQUITY may be invoked for the best interest of the child.

Parental Preference Rule The natural parents who are of good character & who
can reasonably provide for the child, are ordinarily entitled to the custody against all
persons. Accordingly, such parents are entitled to the custody of their children as
against foster or prospective adoptive parents, other relatives of the child, including
grandparents, or as against an agency or institution.

GR: Maternal Preference/Tender Age Presumption It is universally recognized
that the mother is the natural custodian of her young. No child under 7 years old shall
be separated from the mother. In applying this rule, the child must be under 7 years
of age at the time either parent is given the custody or at the time the decision is
rendered.

E: The court finds compelling reasons to order otherwise. (The mother was convicted
of bigamy & the children below 7 saw their mother kissing another man; Adultery of
the parent during the childs formative years.

Note: The proper application of the maternal preference rule neither denies nor
abridges the equality of rights of the father because the rights of the parents are not
the principal issues in a custody case but rather the best interest of the child.

David v. CA Where it was shown that the father was well-off compared to the
mother but the latter can nevertheless decently support her children, the SC still
awarded the children to the mother.
Pablo-Gualberto v. Gualberto The mere fact that the mother is a lesbian is NOT
enough justification to remove the child from her custody.

Custody Granted to Others Custody may even be awarded to persons who are
strangers to the family if such award would best serve the paramount interest of the
child.

No Finality of Custody of Judgment Decisions of courts, including the SC, on the
custody of minor children are always open to adjustments as the circumstances
relevant to the matter may demand in the light of the paramount interest of the child.

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental
authority shall be exercised by the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same consideration mentioned in the
preceding article, shall exercise the authority.(355a)

Grandparents have the legal preference in the matter of substitute parental
authority

Art. 215. No descendant shall be compelled, in a criminal case, to testify against his
parents and grandparents, except when such testimony is indispensable in a crime against
the descendant or by one parent against the other. (315a)
FILIAL PRIVILEGE MARITAL PRIVILEGE
Rationale: to foster family unity &
tranquillity
Rationale: The H&W are considered as but 1
person, & because of this unity, when 1 is
excluded on the ground of interest, the other
is also excluded.
GR: No descendant shall be
compelled, in a criminal case, to
testify against his parents &
grandparents.
E: When the testimony is
indispensible in a crime against the
descendant or by 1 parent against
the other.
GR: The husband or wife, during or after the
marriage, cannot be examined w/o the
consent of the other as to any communication
received in confidence by 1 from the other
during the marriage.
E: In a civil case by 1 against the other, or in
a criminal case for a crime committed by 1
against the other.

Ordono v. Daguigan The phrase in a criminal case for a crime against the other
includes a case for rape filed by the daughter against the father. The mother can
validly testify against the father in a criminal case for the rape initiated by the
daughter because of the special & close bond between the daughter & mother.

Alvarez v. Ramirez (2005) A wife testified against the husband in an arson case
where the husband set fire to the house of the wifes sister knowing that his wife was
inside the house. The marital privilege will not anymore apply since there was nothing
anymore to preserve in the marriage of the H&W.

Chapter 2. Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian, the following person shall
exercise substitute parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified;
(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the property of the child
becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a)

Note: The order established is NOT MANDATORY. Always, the paramount interest of
the child must be the basis of custody & care. If it is shown that the brothers & sisters
are more qualified than the grandparents, then substitute parental authority should be
granted to the former. However, the order must be observed when all those
enumerated are equally fit to take care of the children.

Art. 217. In case of foundlings, abandoned neglected or abused children and other children
similarly situated, parental authority shall be entrusted in summary judicial proceedings to
heads of children's homes, orphanages and similar institutions duly accredited by the proper
government agency. (314a)

Unfortunate Children
1. Foundling a newborn child abandoned by its parents who are unknown
2. Abandoned Child one who has no proper parental care or guardianship, or
whose parents or guardians have deserted him for a period of at least 6
continuous months
- 47 -

3. Neglected Child one whose basic needs have been deliberately unattended
or inadequately attended
a. Physical neglect the child is malnourished, ill clad & w/o proper
shelter, left by himself w/o provisions for his needs
b. Emotional neglect when children are maltreated, raped, seduced,
exploited, overworked, made to beg in the streets, or are exposed to
gambling, prostitution, or other vices
4. Abused Child falls w/in the emotionally neglected child
5. Dependent Child one whose parent, guardian or other custodian for good
cause desires to be relieved of his care & custody & is dependent upon the
public for support

Child Welfare Agency
No private person, natural/juridical, shall establish, temporarily/permanently, any child
welfare agency w/o 1
st
securing a license from DSWD.
The license shall not be transferable & shall be used only by the person/institution to
w/c it was issued at the place stated therein.
No license shall be granted unless the purpose/function of the agency is clearly defined
& stated in writing.

Transfer of Parental Authority Parental authority shall be entrusted in summary
proceedings to heads of childrens homes, orphanages & similar institutions duly
accredited by the proper government agency.
1. Involuntary The Sec. of DSWD or his authorized rep. or any duly licensed
child-placement agency having knowledge of a child who appears to be
dependent, abandoned, neglected, may file a verified petition to the proper
court for involuntary commitment of said child to the care of any duly
licensed child-placement agency.
2. Voluntary The parent/guardian of a dependent, abandoned, neglected child
may voluntarily commit him to DSWD or a duly-licensed child-placement
agency or individual. But no child shall be committed unless he is
surrendered in writing by his parents/guardians to the care & custody of the
DSWD or duly-licensed child-placement agency.

Art. 218. The school, its administrators and teachers, or the individual, entity or institution
engaged in child are shall have special parental authority and responsibility over the minor
child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or outside
the premises of the school, entity or institution. (349a)
Art. 219. Those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding paragraph shall not
apply if it is proved that they exercised the proper diligence required under the particular
circumstances.
All other cases not covered by this and the preceding articles shall be governed by
the provisions of the Civil Code on quasi-delicts. (n)

Persons Possessing Special Parental Authority
1. the school, its administrators & teachers
2. the individual, entity or institution engaged in child care
PARENTS OR PERSONS EXERCISING
SUBSTITUTE PARENTAL AUTHORITY
Liability subsidiary liability
Rationale - while the minor is in school
or in an institution engaged in child care,
the said persons do not have direct
custody over their children
GR: They are civilly liable for acts &
omissions of the unemancipated minor
E: if it is proved that they exercised the
proper diligence under the particular
circumstances

Teacher
Must be the TEACHER-IN-CHARGE the one designated by the dean, principal, or other
administrative superior to exercise supervision over the pupils in the specific classes or
sections to w/c s/he is assigned & thus is the one immediately involved in the students
discipline as s/he has direct control & influence over them
a mere physics teach who is not the teacher-in-charge of the class is NOT liable

Note: There is no distinction as to whether the school is academic or non-academic
(arts & trades), & the liability also extends to the administrators of the school.

custody of the school means/includes:
the protective & supervisory custody that the school & its head & teachers exercise
over the pupils & students for as long as they are in attendance in the school, including
recess time
as long as the student is in the school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right, & even in the enjoyment of a
legitimate student privilege, the responsibility of the school authorities over the student
continues

Art. 2180, NCC applies if the students, pupils or apprentices are not anymore
minor children

Chapter 3. Effect of Parental Authority Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall have with the respect
to their unemancipated children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept
and good example, and to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity,
self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and
inspire in them compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and
prevent them from acquiring habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances; and
(8) To perform such other duties as are imposed by law upon parents and guardians. (316a)

- 48 -

Duties of Parents toward their Children (Child & Youth Welfare Code)
1. to give them affection, companionship & understanding
2. to extend to them the benefits of moral guidance, self-discipline & religious
instruction
3. to supervise their activities, including recreation
4. to inculcate in them the value of industry, thrift & self-reliance
5. to stimulate their interest in civic affairs, teach them the duties of citizenship,
& develop their commitment to their country
6. to advise them properly on any matter affecting their development & well-
being
7. to always set a good example
8. to provide them w/ the adequate support as defined in the law
9. to administer their property, if any, accdg. to their best interest subject to
the provisions of the FC

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject to the appropriate
defenses provided by law. (2180(2)a and (4)a )

Requisites for the Liability of the Parents to Attach
1. the child must be unemancipated
2. the chid must be living in their company
3. the child must be under their parental authority

Tamargo v. CA A minor chid was the subject of an adoption proceeding but he was
still in the custody of the natural parents & under their parental authority when the
said minor shot another person. The adopting parents were sought to be held liable.
The SC held that PD 603 (now Sec. 13 of RA 8552), w/c provides that the adoption
decree shall be effective as of the date of the filing of the petition, cannot apply in
issues of vicarious liability of parents w/c can only attach if, at the time of the
incident, the child were under their custody & parental authority. Thus, the natural
parents should still be held liable & not the adopting parents notwithstanding the
provision of the law that the adoption decree has a retroactive effect that goes back to
the filing of the petition for adoption.

Libi v. IAC The father negligently left his gun in a safety deposit box & it was
proved that the minor son knew of the location of the gun. Strong circumstantial
evidence pointed to the son as having taken the gun to kill his former girlfriend
against whom he had a grudge for breaking the relationship w/ him & later he killed
himself. The SC held that the parents were vicariously liable for the death of the
former girlfriend & stated that no sufficient evidence were presented to show that they
exercised due diligence.

Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem
when the best interests of the child so requires. (317)

Guardianship a trust relation of the most sacred character, in w/c 1 person, called
a guardian acts for another, called the ward whom the law regards as incapable of
managing his own affairs

Rivero v. CA (2005) Appointment of a guardian ad litem is addressed to the sound
discretion of the court & designed to assist the court in the determination of the best
interest of the chid.

Factors that may be Considered:
1. financial situation
2. business acumen
3. physical condition
4. morals, character, conduct
5. present & past history
6. probability of his being able to exercise the powers & duties of a guardian for
the full period during w/c guardianship will be necessary

Vancil v. Balmes (2001) A court cannot appoint a guardian who is not personally
subject to its jurisdiction.

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution
exercising parental authority, may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures over the child. The child shall be
entitled to the assistance of counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner and the child shall be heard.
However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so warrant, the court
may also order the deprivation or suspension of parental authority or adopt such other
measures as it may deem just and proper. (318a)
Art. 224. The measures referred to in the preceding article may include the commitment of
the child for not more than thirty days in entities or institutions engaged in child care or in
children's homes duly accredited by the proper government agency.
The parent exercising parental authority shall not interfere with the care of the
child whenever committed but shall provide for his support. Upon proper petition or at its
own instance, the court may terminate the commitment of the child whenever just and
proper. (391a)

Chapter 4. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal guardianship over the
property of the unemancipated common child without the necessity of a court appointment.
In case of disagreement, the father's decision shall prevail, unless there is a judicial order to
the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amount as the
court may determine, but not less than ten per centum (10%) of the value of the property
or annual income, to guarantee the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in the proper court of the
place where the child resides, or, if the child resides in a foreign country, in the proper court
of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all
incidents and issues regarding the performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
- 49 -

The ordinary rules on guardianship shall be merely suppletory except when the
child is under substitute parental authority, or the guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply. (320a)

GR: The father & mother ipso jure become the legal guardian of the childs property.
Exceptions:
1. Children & descendants of the person disinherited shall take his/her place &
shall preserve the rights of compulsory heirs w/ respect to the legitime, but
the disinherited parent shall not have the usufruct or administration of the
property w/c constitutes the legitime.
2. If the person excluded from the inheritance by reason of incapacity should be
a child/descendant of the decedent & should have children/descendants, the
latter shall acquire his right to the legitime. The person so excluded shall not
enjoy the usufruct or administration of the property thus inherited by his
children.

Bond a condition precedent to the vesting of his authority; any act done w/o or
before the giving of the bond is a nullity

Purpose of Bond to guarantee the performance of the obligations prescribed for
general guardians

Alienations & Encumbrance - The parents authority over the estate of the ward as a
legal guardian would NOT extend to acts of encumbrance/disposition, as distinguished from
acts of management or administration

The ff. are prohibited:
1. An abdicative waiver of rights by a guardian is an act of disposition. It cannot
bind his ward, being null & void as to the ward, unless duly authorized by the
proper court.
2. A case where the mother did NOT seek court approval of the sale of
properties of her minor children, the SC declared the sale as void
3. A parent-guardian cannot waive the rights of his/her children over property
inherited from the father.
4. A parent has no power to compromise their childrens claims, for a
compromise has always been deemed equivalent to an alienation, & is an act
of strict ownership that goes beyond mere administration.

Guardianship Proceeding
1. If the guardian are the parents the rules on guardianship are merely
suppletory
2. If the guardian is a stranger ordinary rules on guardianship shall apply
3. If the parent has remarried - ordinary rules on guardianship shall apply

Art. 226. The property of the unemancipated child earned or acquired with his work or
industry or by onerous or gratuitous title shall belong to the child in ownership and shall be
devoted exclusively to the latter's support and education, unless the title or transfer
provides otherwise.
The right of the parents over the fruits and income of the child's property shall be
limited primarily to the child's support and secondarily to the collective daily needs of the
family. (321a, 323a)
Art. 227. If the parents entrust the management or administration of any of their
properties to an unemancipated child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly allowance in an amount not less than
that which the owner would have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole
or in part shall not be charged to the child's legitime. (322a)

Chapter 5. Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)

Emancipation a child is emancipated upon reaching the age of majority w/c is 18
years of age

Art. 229. Unless subsequently revived by a final judgment, parental authority also
terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority. (327a)

Effect of Art. 229 the grounds terminate parental authority, but such termination
is not permanent, as parental authority can be revived by court order, unlike Art. 228
& 232

GROUND FOR TERMIATION
adoption GR: all legal ties bet. the biological parents & the adoptee shall
be severed & the same shall be vested on the adopters upon
finality of a judicial adoption decree
E: in cases where the biological parent is the spouse of the
adopter
Rescission of adoption decree extinguishes all reciprocal rights
& obligations bet. the adopters & the adopted arising from the
relationship of parent & child. Upon rescission, the parental
authority of the adoptees biological parents, if known, or the
legal custody of the DSWD if the adoptee is still a minor or
incapacitated shall be restored.
guardianship a guardian appointed by the court shall generally have the
care & custody of the person of his/her ward & the
management of his/her estate
judicial declaration of
abandonment
abandonment neglect/refusal to perform the natural &
legal obligations of care & support w/c parents owe to their
children
divestment by final
court judgment
a decree of termination must be issued only upon clear,
convincing & positive proofs
judicial declaration of
absence/incapacity
parental authority cannot be expected from an absentee or
one who is incapacitated
- 50 -


Art. 230. Parental authority is suspended upon conviction of the parent or the person
exercising the same of a crime which carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the penalty or upon pardon or amnesty
of the offender. (330a)

Civil Interdiction - This ground is distinct because there is AUTOMATIC REVIVAL of
parental authority once the sentence is served or upon pardon or amnesty of the offender;
parental authority can be revived w/o need of a court order

Art. 231. The court in an action filed for the purpose in a related case may also suspend
parental authority if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted
from culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands,
the court shall deprive the guilty party of parental authority or adopt such other measures
as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived
in a case filed for the purpose or in the same proceeding if the court finds that the cause
therefore has ceased and will not be repeated. (33a)

GROUND FOR
SUSPENSION OF
PARENTAL AUTHORITY

EXAMPLES
excessive harshness/cruelty The father inserted a toy telephone into the mouth of
the child nearly causing his death, forced very hot
liquid into the childs mouth causing serious burns to
his throat, & the child previously received numerous
bruises & 5 fractured ribs as a result of rough
treatment by his father, & the mother acquiesced in
this treatment
The father frequently struck his children w/ things
such as his closed fists, a teacup, a frying pan, a
strap, a cane, an iron hammer, a poker, etc.
corrupting orders, counsel
or example
If the parents teach the children how to steal, rob, lie,
hurt people & other negative traits
culpable negligence If a stepfather forces his stepson to beg & the mother
acts indifferently or does not care about such act of
the stepfather, she is considered culpably negligent

Art. 232. If the person exercising parental authority has subjected the child or allowed him
to be subjected to sexual abuse, such person shall be permanently deprived by the court of
such authority. (n)

Re Van Vlack A 10-year-old girl was sexually molested by her adoptive father & the
natural mother was aware of her husbands behaviour & failed to take steps to
prevent the abuse. Though the mother indicated that she was separating from her
abusive husband & though she actually separated from him but returned less than 1
month after w/ the abused child to live again w/ the adoptive father, a court order
terminating the parental rights of the mother was justified.

Effect of Art. 232 parental authority cannot be revived if the parents or the
persons exercising parental authority are found to have subjected the child or allowed
him/her to be subjected to sexual abuse (unlike Arts. 229, 230, 231)

Example: If a father subjects his daughter to sexual abuse, he can be permanently
deprived of his parental authority over the said abused daughter. If the father reforms for
the better & there are indications that he might not do the same abusive act again, his
parental authority cannot be revived even if the reformation of the father is authentic.
Parental authority cannot be restored. Termination is forever.

Art. 233. The person exercising substitute parental authority shall have the same authority
over the person of the child as the parents. In no case shall the school administrator,
teacher of individual engaged in child care exercising special parental authority inflict
corporal punishment upon the child. (n)

Corporal Punishment The infliction of physical disciplinary measures to a student.

PARENTS & PERSONS EXERCISING
PERSONS EXERCISING SPECIAL
PARENTAL AUTHORITY
they may inflict corporal punishment, but
they must do it in a reasonable manner &
not w/ excessive harshness or cruelty
prohibited from inflicting corporal
punishment upon the child

Bagaje v. Marave Where there was no criminal intent on the part of the teacher
who angrily & repeatedly whipped a student resulting in slight physical injuries to the
said student & where the purpose of the teacher was to discipline a student, the
teacher cannot be held feloniously liable for slight physical injuries.

TITLE X
EMANCIPATION & AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise
provided, majority commences at the age of twenty-one years.
Emancipation also takes place:
(1) By the marriage of the minor; or
(2) By the recording in the Civil Register of an agreement in a public instrument executed
by the parent exercising parental authority and the minor at least eighteen years of age.
Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a)
Art. 235. The provisions governing emancipation by recorded agreement shall also apply to
an orphan minor and the person exercising parental authority but the agreement must be
approved by the court before it is recorded. (n)
Art. 236. Emancipation for any cause shall terminate parental authority over the person
and property of the child who shall then be qualified and responsible for all acts of civil
life. (412a)
- 51 -

Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the
recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the
parental authority over the minor but shall not affect acts and transactions that took place
prior to the recording of the final judgment in the Civil Register. (n)

Emancipation attained upon reaching 18 years of age

Note: Marriage is not anymore a ground for emancipation because a person who
decides to get married is necessarily 18 years of age.

Elcano v. Hill If the minor (w/c was then a person below 21 years of age), living in
the company of the father, was emancipated by marriage, the father of the said minor
can nevertheless be held liable under Art. 2180(2) for damages for crimes committed
by the minor. Rationale: While the minor was emancipated by marriage, he was
nevertheless under the authority of the father, not merely because he was living w/
the father, but because the law at that time (Art. 399 of the CC) clearly & expressly
provided that the minor, though emancipated by marriage w/c thereby terminated
parental authority, nevertheless cannot be sued or be sued w/o the assistance of the
father.

Mel Sta. Maria: In the Elcano case, Art. 2180(2) could not have applied had it not
been for the presence of Art. 399 (THIS HAS BEEN REPEALED) w/c expressly provided
conditions qualifying the termination of parental authority of the parents over a minor
emancipated by marriage. The conditions are the ff:
1. Such minor, though emancipated, cannot sue & be sued in court w/o the
assistance of his father, mother or guardian
2. Such minor, though emancipated, cannot borrow money or
alienate/encumber real property w/o the consent of his father, mother or
guardian.

Note: Under the FC, an emancipated person can sue & be sued alone. S/he can
borrow money or alienate/encumber property. The assistance or consent of the father,
mother or guardian is NOT anymore required. Thus, the very basis for the decision in
the Elcano case is not anymore existing in the New Family Code.

Applicability of the Last Paragraph of Art. 236
Holds parents & guardians responsible for the acts/omissions of their children or ward
In case of parents - the father, and in case of his death/incapacity, the mother, are
responsible for the damages caused by the children bet. 18 & 21 who live in their
company
In case of guardians they are liable for damages if the said persons are under their
authority AND who live in their company

TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1. Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this
Title shall apply as regards separation in fact between husband and wife, abandonment by
one of the other, and incidents involving parental authority. (n)

Chapter 2. Separation in Fact

Art. 239. When a husband and wife are separated in fact, or one has abandoned the other
and one of them seeks judicial authorization for a transaction where the consent of the
other spouse is required by law but such consent is withheld or cannot be obtained, a
verified petition may be filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the transaction,
and, if none, shall describe in detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, the final deed duly executed by
the parties shall be submitted to and approved by the court.(n)

Verified Petition - it should be under oath stating that petitioner:
1. Caused the preparation & filing of the petition
2. S/he has read the contents of the petition & s/he knows that the contents are true
of his/her own knowledge & belief

Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be
litigated only in a separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be
exercised by the proper court authorized to hear family cases, if one exists, or in the
regional trial court or its equivalent sitting in the place where either of the spouses
resides. (n)

Family Courts Act of 1997 (RA 8369) exclusively tasked to take cognizance of
family cases (e.g. custody of children, annulment/nullity cases, adoption & termination
of parental authority)

Note: The SC, CA, & the Family Court have concurrent jurisdiction to take cognizance
of habeas corpus cases involving minors.

Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose
consent to the transaction is required, of said petition, ordering said spouse to show cause
why the petition should not be granted, on or before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of the petition and shall be served at
the last known address of the spouse concerned. (n)

Rationale: Due process requires that the respondent shall be given the chance to
comment on the petition & to show cause why the petition should not be granted.

Art. 243. A preliminary conference shall be conducted by the judge personally without the
parties being assisted by counsel. After the initial conference, if the court deems it useful,
the parties may be assisted by counsel at the succeeding conferences and hearings. (n)

Purpose of Preliminary Conference aimed at having the parties settle amicably
their differences on the transaction involved so that the judicial proceedings can
further be shortened
- 52 -

GR: Lawyers are not allowed to be present at the preliminary conference so that the
proceedings will not become unduly adversarial w/c can lead to a protracted case.
E: If the judge finds that he issues are complicated & that any of the spouses does not
really have a complete understanding of the transaction & its consequences, lawyers
may be allowed to assist the parties in the next hearings.

Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall
inquire into the reasons for his failure to appear, and shall require such appearance, if
possible. (n)
Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured,
the court may proceed ex parte and render judgment as the facts and circumstances may
warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing
spouse. (n)
Art. 246. If the petition is not resolved at the initial conference, said petition shall be
decided in a summary hearing on the basis of affidavits, documentary evidence or oral
testimonies at the sound discretion of the court. If testimony is needed, the court shall
specify the witnesses to be heard and the subject-matter of their testimonies, directing the
parties to present said witnesses. (n)
Art. 247. The judgment of the court shall be immediately final and executory. (n)

Note: Even if the decision shall be immediately final & executory, the aggrieved party
can still file a case w/ the higher court to annul the decision on the basis that s/he was
not really given due process. However, w/o an injunction from the higher court, the
decision can be executed even if it is pending in the said higher court.

Art. 248. The petition for judicial authority to administer or encumber specific separate
property of the abandoning spouse and to use the fruits or proceeds thereof for the support
of the family shall also be governed by these rules. (n)

Note: Art. 248 refers to par.3 of Articles 100 & 127.

Chapter 3. Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental
authority shall be verified. (n)
Art. 250. Such petitions shall be verified and filed in the proper court of the place where
the child resides. (n)
Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their
absence or incapacity, the individuals, entities or institutions exercising parental authority
over the child. (n)
Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this
Chapter insofar as they are applicable. (n)

Chapter 4. Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are
applicable. (n)

SUMMARY PROCEEDINGS
Separation
in Fact
bet. H&W
ACP/CPG a spouse cannot alienate/dispose conjugal property w/o the
consent of the other

In case they are separated in fact, if 1 spouse intends to alienate
conjugal property, s/he must file a petition for approval of the sale if
s/he cannot get the consent of the other spouse
Incidents
Involving
Parental
Authority
Art. 223 deals w/ a case seeking a court order providing for
disciplinary measures over a child
Art. 225 deals w/ a case for the approval of the bond required of
parents who exercise parental authority over the property of their
children
Art. 41 judicial declaration of presumptive death
Art. 51 an action of a child for the delivery of his/her presumptive legitime
Art. 69 judicial determination of the family domicile in case of disagreement of
the spouses
Art. 73 judicial determination of the validity of a spouses objection to the
profession of the other spouse
Art. 217 judicial order entrusting foundlings, abandoned, neglected, or abused
children to childrens homes, orphanages, & similar institutions
accredited by the proper government agency
Art. 96 &
124
-annulment of the husbands decision in the administration & enjoyment
of the community/conjugal property in case the husbands decision is in
conflict w/ the wifes decision
-appointment of 1 of the spouses as the sole administrator, but this is
applicable only in the ff. situations:
1. the spouses are separated in fact
2. the other spouse is absent
3. one spouse abandoned the other
4. one spouse withholds his/her consent

Uy v. CA (2000) If the other spouse is an incompetent (e.g. in a comatose or
semi-comatose condition, a victim of stroke, cerebrovascular accident, w/o motor or
mental faculties, & w/ diagnosis of brain stem infarct) the proper remedy is a judicial
guardianship proceeding under Rule 93 of the RC & NOT a summary proceeding under
the FC

TITLE XII
FINAL PROVISIONS

Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19,
27, 28, 29, 30, 31, 39, 40, 41, and 42 ofPresidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby
repealed.
Art. 255. If any provision of this Code is held invalid, all the other provisions not affected
thereby shall remain valid.
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws.
- 53 -

GR: The provisions of the FC shall have retrospective application.
E: The retrospectivity of the FC does NOT apply if vested rights are involved.

Vested Right
an immediate fixed right of present & future payment
a right w/c is fixed, unalterable, absolute, complete & unconditional to the exercise of
w/c no obstacle exists, & w/c is perfect in itself & not dependent upon a contingency

Jovellanos v. CA A husband, during his 1
st
marriage in 1955, entered into a
contract to sell or a conditional sale in instalment over a specific property but the
property would only fully vest upon payment of the last instalment. The said husband
paid partly by conjugal funds of the 1
st
marriage & partly by his separate exclusive
funds, but the last instalment was made in 1975 during the valid 2
nd
marriage
(entered into in 1967) using conjugal funds of the 2
nd
valid marriage. The SC held that
the property is part of the conjugal partnership of the 2
nd
marriage by Art. 118 of the
FC w/c took effect on Aug. 3, 1988. The husband had not vested right at the time of
the execution of the contract to sell in 1955 because the vested right to the property
only attached in 1975 when the last instalment was paid during the 2
nd
marriage.

Atienza v. Brillantes Art.40 is applicable to remarriages involving a previously void
marriage, whether or not the 1
st
marriage was celebrated before or after Aug. 3, 1988

Republic v. CA A petition for adoption was filed prior to the effectivity of the FC by
only 1 of the spouses pursuant to the provisions of the Child & Youth Welfare Code
(PD 603), but the decree of adoption was granted after the effectivity of the FC, where
it amended PD 603 by requiring that in cases of adoption the H&W must jointly adopt.
The SC held that the adoption decree cannot be nullified by the failure of the other
spouse to joint the petition in accordance w/ the FC.

Tayag v. CA An action for recognition of an illegitimate child was filed prior to the
effectivity of the FC. The governing prescriptive period was the one provided for in Art.
285 of the CC & NOT Art. 175 of the FC. The right of action of the minor child has
been vested by the filing of the complaint in court.

Ty v. CA (2000) Petitioner was married to respondent on Apr. 4, 1979 just before
the previous marriage of her husband was judicially declared null & void by a court.
Art. 40 of the FC mandating that there must 1
st
be a judicial declaration of nullity of
the 1
st
marriage for purposes of remarriage was invoked by petitioner to nullify her
marriage w/ respondent. The SC refused to apply Art. 40 to the subsequent marriage
of petitioner because, on the day of their marriage, the judicial doctrine then
prevailing was that there was no need of a judicial declaration of nullity of a void
marriage. To apply Art. 40 will impair the vested right of petitioner & her children w/
respondent.

Art. 257. This Code shall take effect one year after the completion of its publication in a
newspaper of general circulation, as certified by the Executive Secretary, Office of the
President.

TITLE X
FUNERALS

Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be
in accordance with the order established for support, under Article 294. In case of
descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall have a better right.

The duty shall devolve on the ff. (in the order provided):
1. spouse
2. descendants in the nearest degree (oldest preferred)
3. ascendants in the nearest degree (paternal shall have a better right)
4. brothers & sisters (oldest preferred)

Art. 306. Every funeral shall be in keeping with the social position of the deceased.
Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In
the absence of such expression, his religious beliefs or affiliation shall determine the funeral
rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged
to make arrangements for the same, after consulting the other members of the family.
Art. 308. No human remains shall be retained, interred, disposed of or exhumed without
the consent of the persons mentioned in articles 294 and 305.
Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for damages, material and moral.
Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the
funeral expenses, and shall be chargeable to the conjugal partnership property, if the
deceased is one of the spouses.

Note: Philippine culture & tradition gives reverence to the dead.

TITLE XII
CARE & EDUCATION OF CHILDREN

Art. 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual
development.
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding substitute parental
authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the good of the same.
Art. 358. Every parent and every person holding substitute parental authority shall see to it
that the rights of the child are respected and his duties complied with, and shall particularly,
by precept and example, imbue the child with highmindedness, love of country, veneration
for the national heroes, fidelity to democracy as a way of life, and attachment to the ideal of
permanent world peace.
Art. 359. The government promotes the full growth of the faculties of every child. For this
purpose, the government will establish, whenever possible:
(1) Schools in every barrio, municipality and city where optional religious instruction shall
be taught as part of the curriculum at the option of the parent or guardian;
- 54 -

(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Art. 360. The Council for the Protection of Children shall look after the welfare of children in
the municipality. It shall, among other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the welfare of children, and secure
their cooperation.
Art. 361. Juvenile courts will be established, as far as practicable, in every chartered city or
large municipality.
Art. 362. Whenever a child is found delinquent by any court, the father, mother, or
guardian may in a proper case be judicially admonished.
Art. 363. In all questions on the care, custody, education and property of children the
latter's welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.

TITLE XIII
USE OF SURNAMES

Name
the designation by w/c he is known & called in the community in w/c he lives & is
best known
the word or combination of words by w/c a person is distinguished from other
individuals
the label or appellation w/c he bears for the convenience of the world at large
addressing him, or in speaking of or dealing w/ him
it is both of personal as well as public interest that every person must have a
name

may be freely selected by the parents for the child fixed by law

Characteristics of a Name
1. absolute, intended to protect the individual from being confused w/ others
2. obligatory in certain respects, for nobody can be w/o a name
3. fixed, unchangeable, immutable, at least at the start, & may be changed only
for good cause & by judicial proceedings
4. outside the commerce of man, & thus inalienable & intransmissible by act
inter vivos or mortis causa
5. imprescriptible

Two Parts of the Name of an Individual
GIVEN/PROPER NAME SURNAME/FAMILY NAME
that w/c is given to the individual at birth or at
baptism, to distinguish him from other individuals
that w/c identifies the family to
w/c he belongs & is continued
from parent to child
Middle Name
serve to identify the maternal lineage or filiation of a person as well as further
distinguish him/her from others who have the same given name & surname as
s/he has
a middle name cannot just be dropped w/o compelling/justifiable reasons
it cannot be dropped merely because it is an inconvenience to the person using it

Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.

Alfon v. Republic (1980) The word principally is NOT equivalent to exclusively
so that there is no legal obstacle if a legitimate/legitimated child should choose to use
the surname of the mother to w/c it is equally entitled

Art. 365. An adopted child shall bear the surname of the adopter.
Art. 366. A natural child acknowledged by both parents shall principally use the
surname of the father. If recognized by only one of the parents, a natural child shall
employ the surname of the recognizing parent.
Art. 367. Natural children by legal fiction shall principally employ the surname of the
father.
Art. 368. Illegitimate children referred to in Article 287 shall bear the surname of the
mother.

Note: Under the FC, there are only 2 classes of children legitimate & illegitimate.
The 5 distinctions among various types of illegitimate children under the CC have been
eliminated.

Illegitimate Children
SHALLE use the surname & shall be under the parental authority of the mother
MAY use the surname of their father if their filiation has been expressly
recognized by the father:
1. Thru the record of birth appearing in the civil register, or
2. When an admission in a public document or private handwritten instrument is
made by the father
The father has the right to institute an action before the courts to prove non-
filiation during his lifetime.

Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.

Note: A child conceived inside a marriage prior to its annulment is legitimate.

Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such
as "Mrs."

Note: Art. 370 is directory & permissive in character because when a woman gets
married, she does not change her name but only her civil status.
- 55 -


Example: A validly married woman has actually 4 alternatives in the use of a name.
Thus, Corazon Cojuangco married Benigno Aquino Jr. may use either:
1. Corazon Cojuangco
2. Corazon Cojuangco-Aquino
3. Corazon Aquino
4. Mrs. Benigno Aquino, Jr.

Remo v. Sec. of Foreign Affairs (2010) For purpose of surnames used in the
passport, a married woman who opted to use the surname of her husband in her
passport must continue to use it in case of renewal. She cannot revert to using her
maiden surname because, pursuant to RA 8239 (the law regulating the issuance of
passport) a married woman who used the surname of her husband in initially
obtaining a passport can change her surname to her maiden surname in subsequent
renewals only if the marriage were annulled or nullified or the woman obtained a valid
divorce abroad. RA 8239 is a more specific law than the CC on surnames.

Mel Sta. Maria: The decision of the SC should have been the other way around. The
woman should have been allowed to use her maiden surname. This decision should
not have been decided from the perspective of mere statutory construction but it
should have been determined from a rights-based perspective w/c is more
fundamental. Art. 370 deals w/ a fundamental right to the use of a surname by a
woman, RA 8239 merely deals w/ a procedural rule that does not go into the
significance of the importance of a surname.

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may
resume her maiden name and surname. However, she may choose to continue
employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.

Widow a person whose husband is dead

Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.

Example: If parents want to name their son after his godfather who is not related to
them, the said son must use an additional name or surname. If the name of the
godfather is Juan Dela Cruz, the godson must use an additional name such as Juan
Pedro Dela Cruz.

Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word "Junior" can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman Numerals II, III, and so on.

Example: If Juan dela Cruz, Junior, who is married to Julieta Santos, has a son w/ the
same name, such son shall use Juan Ricardo dela Curz OR Juan Santos-dela Cruz OR
Juan dela Cruz III.

Art. 376. No person can change his name or surname without judicial authority.

RA 9048 An act authorizing the city/municipal civil registrar or the consul general
to correct a CLERICAL/TYPOGRAPHICAL ERROR in the entry and/or change of 1
st
name
or nickname in the civil register without need of judicial order

Change of Name a privilege & not a matter of right, so that before a person can be
authorized to change his/her name given either in his/her certificate or civil registry,
s/he must show reasonable cause/compelling reason w/c may justify such change.

Change of Surname a matter of judicial discretion w/c must be exercised in the
light of the reasons adduced & the consequences that will likely follow.

Reasons for Allowing Change of Name to give a person an opportunity to
improve his/her personality & to promote his/her best interest

Reasonable Causes/Compelling Reasons for Change of Surname
1. A ridiculous name, a name tainted w/ dishonor, or a name extremely difficult
to write or pronounce
2. A change of civil status
3. A need to avoid confusion
4. In the absence of prejudice to the State or any individual, a sincere desire to
adopt a Filipino name to erase signs of a former alien nationality w/c unduly
hamper social & business life (Uy v. Republic)

Silverio v. Republic (2007) A male person who had a surgical sexual reassignment
where she became biologically a woman cannot use that ground as reason to change
his name from Rommel to Mely as a persons sex is immutable from birth.

Republic v. Cagandahan (2008) A change of name from Jennifer to Jeff was
allowed even w/o surgical sexual reassignment in a case where the person was found
to have Congenital Adrenal Hyperplasia (CAH) w/c was a rare biological situation
where the person had the sex organs of a male & female & where the person had
finally considered his sex as a male considering that he had no menstruation & no
breast as a woman & was wanting in woman-hormones.

Moore v. Republic A divorced woman subsequently remarried & desired to have
her childs surname changed to the surname of her 2
nd
husband who had always
treated the child w/ love & affection. The SC rejected the plea for change of name for
the reason that our laws to do not authorize a legitimate child to use the surname of a
person who is not his father. Children conceived before an annulment (in this case, a
decree of divorce) should be understood as carrying the surname of the real father.

Calderon v. Republic The SC allowed the change of surname of an illegitimate chid
as it would appear that it was for the best interest of the child.
- 56 -


Effect of Change of Name does NOT alter family relations, rights or duties, legal
capacity, civil status or citizenship

NATURE OF PROCEEDINGS
CHANGE OF NAME CHANGE OF SURNAME
governed by. Sec. 3-7 of RA 9048 governed by Rule 103 of the Rules of Court;
it is a judicial proceeding in rem

Yao v. Republic Publication of the petition for change of name is essential for the
court to acquire jurisdiction.

Art. 377. Usurpation of a name and surname may be the subject of an action for
damages and other relief.
Art. 378. The unauthorized or unlawful use of another person's surname gives a right
of action to the latter.

Usurpation of Name implies some injury to the interests of the owner of the
name; it consists in the possibility of confusion of identity between he owner & the
usurper

Elements of Usurpation of Name
1. There is an actual use of anothers name by the defendant
2. The use is unauthorized
3. The use of anothers name is to designate personality or identify a person

Tolentino v. CA The current wife filed an action to prevent the former wife of her
husband to use the surname of the said husband. The SC ruled that there was no
usurpation. Private respondent has legitimate children who have every right to use the
surname Tolentino. She could not possibly be compelled to use the prefix Miss or
use the name Mrs. David, different from the surnames of her children. The records do
not show that she has legally remarried.

Art. 379. The employment of pen names or stage names is permitted, provided it is
done in good faith and there is no injury to third persons. Pen names and stage names
cannot be usurped.
Art. 380. Except as provided in the preceding article, no person shall use different
names and surnames.

Pen Names/Stage Names
A person may use a name other than his name, but it is required that it be done
in good faith and w/o injury to 3
rd
persons.
People using pen names/stage names can have a vested right on such names
because the law also provides that it cannot be usurped.
Journalists/artists usually use pen names/stage names.

TITLE XIV
ABSENCE

Art. 381. When a person disappears from his domicile, his whereabouts being unknown,
and without leaving an agent to administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under similar circumstances the power
conferred by the absentee has expired. (181a)
Art. 382. The appointment referred to in the preceding article having been made, the judge
shall take the necessary measures to safeguard the rights and interests of the absentee and
shall specify the powers, obligations and remuneration of his representative, regulating
them, according to the circumstances, by the rules concerning guardians. (182)
Art. 383. In the appointment of a representative, the spouse present shall be preferred
when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent
person may be appointed by the court. (183a)
Art. 384. Two years having elapsed without any news about the absentee or since the
receipt of the last news, and five years in case the absentee has left a person in charge of
the administration of his property, his absence may be declared. (184)
Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to the
condition of his death. (185)

Purpose of Judicial Declaration of Absence
1. For interested persons to be able to protect their rights, interests & benefits
in connection w/ the person who disappeared
2. To protect the interest of the absentee

Art. 386. The judicial declaration of absence shall not take effect until six months after its
publication in a newspaper of general circulation. (186a)

Note: The absence of the absentee shall be counted NOT from the effectivity of the
judicial decree but from the date on w/c the last news of the absentee was received.

Art. 387. An administrator of the absentee's property shall be appointed in accordance with
Article 383. (187a)
Art. 388. The wife who is appointed as an administratrix of the husband's property cannot
alienate or encumber the husband's property, or that of the conjugal partnership, without
judicial authority. (188a)

Note: While Art. 388 refers only to the WIFE, a HUSBAND likewise is prohibited from
alienating the properties of the wife w/o her consent.

Art. 389. The administration shall cease in any of the following cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or intestate heirs appear;
(3) When a third person appears, showing by a proper document that he has acquired the
absentee's property by purchase or other title.
In these cases the administrator shall cease in the performance of his office, and the
property shall be at the disposal of those who may have a right thereto. (190)
- 57 -

Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after
an absence of ten years. If he disappeared after the age of seventy-five years, an absence
of five years shall be sufficient in order that his succession may be opened. (n)
Art. 391. The following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and his existence
has not been known for four years. (n)
Art. 392. If the absentee appears, or without appearing his existence is proved, he shall
recover his property in the condition in which it may be found, and the price of any property
that may have been alienated or the property acquired therewith; but he cannot claim
either fruits or rents. (194)

Absence a person is NOT at the place of his domicile & his actual residence is
unknown, & it is for this reason that his existence is doubtful

Note: Removal alone is not enough. Indeed, disappearance from his domicile & from
knowledge of those w/ whom he could naturally communicate is necessary.

FOR PURPOSES OF
REMARRIAGE
FOR OTHER
PURPOSES
FOR PURPOSE OF
OPENING SUCCESSION
GR: 4 consecutive years is
enough for a person to be
judicially declared
presumptively dead,
E: if the disappearance
occurred under dangerous
circumstances, 2 years is
enough
no need of a judicial
declaration but the
required period for one
to be presumed dead is
7 years
GR: An absence of 10
years is mandated by law
E: when the person
disappeared after the age
of 75 years, an absence of
5 years is enough

GR: the person shall be presumed dead at the END of the period stipulated
E: if the person has been missing under dangerous circumstances, it shall be
presumed that the person died at the time when he was last heard of, and NOT at the
end of the period

Art. 393. Whoever claims a right pertaining to a person whose existence is not recognized
must prove that he was living at the time his existence was necessary in order to acquire
said right. (195)

PROOF OF EXISENCE - Example: IF A validly made a donation of a house to X to be
given on Jan. 5, 1990 & likewise promised to give another donation of a specific car
also to X in the event that X would still be alive by Jan. 2, 1991 and if, after Dec. 25,
1990, X was nowhere to be found, the heirs of X can claim that the car already
belongs to X after Jan. 2, 1991 by proving that X was alive on Jan. 2, 1991.

Art. 394. Without prejudice to the provision of the preceding article, upon the opening of a
succession to which an absentee is called, his share shall accrue to his co-heirs, unless he
has heirs, assigns, or a representative. They shall all, as the case may be, make an
inventory of the property. (196a)

ACCRETION Example: A & B are brothers. They are the only heirs of their father. A
has judicially been declared an absentee. Thereafter, their father died w/o a last will &
testament leaving a net estate valued at P100K. if A were not an absentee, he will
inherit P50K, while B will also inherit P50K. Considering however, that A is an
absentee, his P50K shall accrue to B who will therefore inherit the whole estate.
However, if A has children who are therefore his heirs, the children shall inherit the
P50K w/c was supposed to go to A. The children will inherit by right of representation.

Art. 395. The provisions of the preceding article are understood to be without prejudice to
the action of petition for inheritance or other rights which are vested in the absentee, his
representatives or successors in interest. These rights shall not be extinguished save by
lapse of time fixed for prescription. In the record that is made in the Registry of the real
estate which accrues to the coheirs, the circumstance of its being subject to the provisions
of this article shall be stated. (197)
Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits
received in good faith so long as the absentee does not appear, or while his representatives
or successors in interest do not bring the proper actions. (198)

TITLE XVI
CIVIL REGISTER

Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register. (325a)

Duties of the Local Civil Registrar
1. File registerable certificates & documents presented to them for entry
2. Compile the same monthly & prepare & send any info required by them by
the Civil Registrar General
3. Issue certified transcripts or copies of any certificate/document registered,
upon payment of the proper fees
4. Order the binding, properly classified, of all certificates/documents registered
during the year
5. Send to the Civil Register General during the 1
st
10 days of each month, a
copy of the entries made during the preceding month, for filing
6. Index the same to facilitate search & identification in case any info is required
7. Administer oaths, free of charge, for civil register purposes

Art. 408. The following shall be entered in the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
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(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or (12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name. (326a)
Art. 409. In cases of legal separation, adoption, naturalization and other judicial orders
mentioned in the preceding article, it shall be the duty of the clerk of the court which issued
the decree to ascertain whether the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry of the city or municipality where the
court is functioning. (n)
Art. 410. The books making up the civil register and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts therein
contained. (n)

Public Documents
The books making up the civil register & all documents relating thereto shall be
considered public documents
They shall be open to the public during office hours & shall be kept in a suitable
safe w/c shall be furnished to the LCR at the expense of the general fund of the
municipality concerned
The LCR may issue certified copies of any document filed, upon payment of the
proper fees required
Unlike the filing of documents in the REGISTRY OF DEEDS where the law
expressly provides that such filing is constructive notice to all of the documents
filed therein, the CIVIL REGISTER LAW does not provide for constructive notice to
all persons of any document filed in the Office of the Local Civil Registrar or Office
of the Civil Registrar General.

GR: The LCR shall not under any circumstances permit any document entrusted to
his/her care to be removed from his office
E: by order of a court, in w/c case the proper receipt shall be taken

GR: Birth records, including birth certificates, are strictly CONFIDENTIAL & the
contents therein cannot be revealed
Exceptions: when obtained by those interested therein, namely:
1. The person himself, or any person authorized by him/her
2. His/her spouse
3. His/her parents
4. His/her direct descendants
5. The guardian/institution legally in charge of him/her if s/he is a minor
6. The court or proper public official whenever absolutely necessary in
administrative, judicial or other official proceedings to determine the identity
of the childs parents or other circumstances surrounding his birth
7. In case of the persons death, the nearest of kin

Prima facie evidence such proofs w/c, if remaining unrebutted/uncontradicted, is
sufficient to maintain the fact such evidence seeks to substantiate. It creates a
presumption of fact.

Barbiera v. Catotal (2000) A legitimate child filed a suit to cancel the birth
certificate of her housemaids child who claimed to be her sister & thus also the
legitimate child of her parents. It was proven that the birth certificate of such
housemaids child was forged to make it appear that the housemaids child was the
child of the parents of the legitimate child. The SC rejected the contention that the
birth certificate must be considered authentic considering that it enjoys the
presumption of regularity in its issuance.
There were irregularities re: the birth cert. itself. It was not signed by the
LCR. The mothers signature was different from her signatures in other documents
presented during trial. There is no evidence of the mothers pregnancy, e.g. medical
records & doctors prescriptions. The deposition of the alleged mother stated that she
did not give birth to petitioner, & that the latter was neither hers nor her husbands.

Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration
made in any civil register, to any person suffering damage thereby. However, the civil
registrar may exempt himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration. (n)
Art. 412. No entry in a civil register shall be changed or corrected, without a judicial
order. (n)

GR: A change in the name/nickname of a person, a change in the entries in the civil
register must always pass thru a judicial proceeding.
E: typographical/clerical errors can be corrected administratively thru the Office of the
LCR by filing the necessary verified petition (the resolution of the Office of the LCR can
be reviewed by the Office of the Civil Registrar General & finally by the courts)

Clerical/Typographical Error
A mistake committed in the performance of clerical work in writing, copying,
transcribing or typing an entry in the civil registrar that is harmless (e.g
misspelled name or misspelled birth of place, etc) w/c is visible to the eyes or
obvious to the understanding & can be corrected or changed by reference to other
existing record/s
NO CORRECTION must involve the change of nationality, age, status, or sex of
the petitioner

The proceeding must be JUDICIAL & ADVERSARIAL if the change involves substantial
or controversial matters, e.g. those w/c involve a persons civil status, nationality, or
citizenship, & filiation of the offsprings of parents

Art. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws. (n)

Persons and Family Relations

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SIENNA A. FLORES PERSONS & FAMILY RELATIONS

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