Civil Law Review

REVIEW
Notes, Cases and Commentaries on
Persons and Family Relations
Part I

This reviewer follows the outline of Prof. Araceli Baviera in Civil Law Review,
except on Articles 1 to 54 of the Family Code which follows the outline of Prof.
Ruben Balane. Lectures of Prof. Ruben Balane as well as commentaries from
former Senator Arturo Tolentino's book are found in this work.

____________________

PHILIPPINE CIVIL LAW

INTRODUCTION

Tolentino, CIVIL CODE OF THE PHILIPPINES, Commentaries and Jurisprudence,

Vol. 1 (hereinafter Tolentino):
Concepts of Law.-- The term law may be understood in 2 concepts: (1) in the
general or abstract sense, and (2) in the specific or material sense.
In the general sense, law is defined as the "science of moral rules, founded
on the rational nature of man, w/c govern his free activity, for the realization
of the individual and social ends, of a nature both demandable and
reciprocal." (Sanchez Roman.)
In the specific sense, it is defined as "a rule of conduct, just, obligatory,
promulgated by legitimate authority, and of common observance and

benefit." (ibid.)
Foundation of Law.-- Law rests upon the concepts of order, co-existence, and
liberty.
Characteristics of Law.-- (1) it is a rule of human conduct; (2) promulgated by
competent authority; (3) obligatory; and (4) of general observance.
General Divisions of Law.-- Law in its most comprehensive sense has been
divided into 2 general groups: divine law and human law. By divine law is
meant that in w/c God himself is the legislator who has promulgated the law;
by human law is meant that w/c is promulgated by man to regulate human
relations.
Human law is in turn divided into 2 main classes: general or public law and
individual or private law. These in turn are sub-divided as follows:
I. General or public law: (a) International law; (b) Constitutional law; (c)
Administrative law; (d) Criminal law; (e) Religious law.
II. Individual or private law: (a) Civil law; (b) Mercantile law; (c) Procedural
law.
Kinds of Specific Law.-- Law, in the specific sense, is generally classified into
mandatory, prohibitory, and permissive. In one sense, every law commands,
bec. it is obligatory; but it commands in 3 different ways: (1) it commands
that something be done, in w/c case it is mandatory; (2) it commands that
something should not be done, in w/c case it is prohibitory; and (3) it
commands that what it permits to be done should be tolerated or respected,
in w/c case it is permissive.
Codification of Laws.-- A code is a collection of laws of the same kind; a body
of legal provisions referring to a particular branch of law.
Reasons for codification: (1) the necessity of simplifying and arranging the
many juridical rules scattered in several laws and customs; (2) the necessity
of unifying various legislations in the same country; and (3) the necessity of
introducing reforms occasioned by social changes.

Prof. Ruben Balane (hereinafter Balane): According to the Code Commission,

25% of the articles in the NCC are exact reproductions of the Spanish Civil
Code (OCC); 32% were modified or amended. These comprised 57% of the
Code on Persons, ObliCon, Property and Succession. Forty-three per cent
(43%) are new. These deal w/ Special Contracts, Quieting of title, Trusts,
Prescription and some parts in Torts. The accuracy of these figures are

doutful.
There are two great models of a modern civil code, the French Civil Code
(Code Napoleon) and the German Civil Code {BGB or Buogeoliches
Gesetzbuch [Beuo w/c means "town," "that w/c has reference to a citizen;"
buch w/c means "book;" BGB means "a lawbook governing citizens."]
Changes from the Old Civil Code in the New Civil Code:
1. Creation of new rights.-- E.g., in the case of spurious children who were
given rights for the first time (successional right, right of support, etc.) New
provisions on Human Relations (Articles 33-36), Reformation of Instruments
(Art. 1359), two additional quasi-contracts (Art. 2174 and 2175), moral and
nominal damages (Arts. 2217 and 2221)
2. Adoption of new solutions like Art. 461 (change in the river course), Art.
1256 (consignation), Art. 1658 (lease.)
3. Clarification of old provisions like Art. 275 (Legitimation), Art. 992
(illegitimate children's right to inherit ab intestato), Art. 1410 (void contracts)
4. Omission of certain subjects, e.g., dowry w/c is very western. In the Phils.,
we have the opposite of dowry, the bigay-kaya. These contracts were
abolished- censos, usus and habitation (subsumed in easement and lease.)
Is the New Civil Code better than the Old?-- Yes. As a whole. An example of an
improvement in the NCC is in defective contracts. The NCC classifies them
into rescissible, voidable, unenforceable and void.
Defects in the New Civil Code.-- There is defect in the basic structure, e.g., in
modes of acquiring ownership. Six are given a separate title except Tradition
w/c is found in the provisions on Sales.
Another defect is on the vice of consent found in the title of Contracts. It
should have been in the preliminary title bec. the same is also applicable to
marriage, wills-- all juridical transactions. The same is also true w/ respect to
the provisions on degrees of relationship. Why limit it to succession. It should
be placed in the preliminary title.
Other defects are the treatment of donation as an 'act' instead of a 'contract,'
w/c is what is really is; defect in judicious borrowings.
Definition of Civil Law.-- Civil law has been defined as "the mass of precepts
w/c determine and regulate the relations of assistance, authority and
obedience among the members of a family, and those w/c exist among
members of a society for the protection of private interests." (Sanchez
Roman.)

Art. 1. This Act shall be known as the "Civil Code of the Philippines."
Tolentino: Civil Code defined.-- A civil code is a collection of laws w/c regulate
the private relations of the members of civil society, determining their
respective rights and obligations, w/ reference to persons, things, and civil
acts.
Sources of the Civil Code:
(1) The Civil Code of 1889;
(2) The codes, laws, and judicial decisions, as well as the works of jurists of
other countries, such as Spain, the various states of the American Union, etc.;
(3) Doctrines laid down by the SC of the Phils.;
(4) Filipino customs and traditions;
(5) Philippine statutes, such as the Marriage Law, the Divorce Law, the Code
of Civ. Proc. and the Rules of Court.
(6) The Code Commission itself
(7) Works of jurists and commentators of various nations (added by Jurado,
CIVIL LAW REVIEWER.)

Art. 2. Laws shall take effect after fifteen days following the completion of
their publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided. (as amended by
EO 200.)
Balane: The Civil Code took effect on August 30, 1950 according to the case
of Lara v. del Rosario, one year after its publication, reckoned from the date
of actual release
BAVIERA CASE:
UMALI V. ESTANISLAO [209 S 446 (1992)] - Reiterating Tanada v. Tuvera, The
clause "unless it is otherwise provided" refers to the date of effectivity and
not to the requirement of publication itself which cannot in any event be
omitted. This clause does not mean that the legislator may make the law
effective immediately upon approval, or on any other date without its
previous publication.

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

discretion provide that the usual fifteen (15) day period shall be shortened or
extended.
BALANE CASES:
PESIGAN V. ANGELES [129 S 174] - F: Anselmo and Marcelo Pesigan, carabao
dealers, transported in an Isuzu 10-wheeler truck in the evening of 4/2/82 26
carabaos and a calf from Sipocot, Camarines Sur w/ P. Garcia, Batangas as
destination. Inspite of the permit to transport and the health certificate and 3
other certificates of inspection, the carabaos, while passing at Basud,
Camarines Norte,
were confiscated by the town's police station commander and the provincial
veterinarian. The confiscation was based on EO 626-A w/c provided for the
confiscation and forfeiture by the government of carabaos transported from
one province to another. The Pesigans filed against the two officials an action
for replevin for the recovery of carabaos. The case was dismissed for lack of
cause of action. Hence, this appeal under R 45 of the ROC.
HELD: We hold that said EO should not be enforced against the Pesigans on
4/2/82 bec it is a penal regulation (the confiscation and forfeiture provision or
sanction makes EO 626-A a penal statute) published more than 2 mos. later
in the OG dated 6/14/82. It became effective only 15 days thereafter as
provided in Art. 2, NCC and Sec. 11 of the Revised Admin. Code.
The word "laws" in Art. 2 includes circulars and regulations w/c prescribe
penalties. Publication is necessary to apprise the public of the contents of the
regulations and make the said penalties binding on the persons affected
thereby.
PEOPLE V. VERIDIANO II [132 s 523] - F: Private resp. Benito Go Bio, Jr. was
charged w/ violation of BP 22. Before he could be arraigned, Go Bio, Jr. filed a
Motion to Quash the information on the ground that the info. did not charge
an offense, pointing out that at the time of the alleged commission of the
offense, w/c was about the 2nd week of May '79 (date of issue of the check),
BP 22 has not yet taken effect. The prosecution opposed the motion
contending, among others, that the date of the dishonor of the check,
9/26/79, is the date of the commission of the offense. Resolving the motion,
the court granted the same and held that BP 22 cannot be given a retroactive
effect to apply to the case. Hence, this petition for review on certiorari,
petitioner submitting for review respondent Judge's dismissal of the criminal
case.
HELD: When private resp. Go Bio, Jr. committed the act complained of in May
'79 (at the time he issued the check-- the law penalizes the act of making or

drawing and issuance of a bouncing check and not only the fact of its
dishonor), there was no law penalizing such act. Following the special
provision of BP 22, it became effective only on 6/29/79. The copy editor of the
OG made a certification that the penal statute in question was made public
only on 6/14/79 and not on the printed date 4/9/79. Differently stated,
6/14/79 was the date of publication of BP 22. Before the public may be bound
by its contents especially its penal provisions, the law must be published and
the people officially informed of its contents. For, it a statute had not been
published before its viol., then, in the eyes of the law, there was no such law
to be violated and, consequently the accused could not have committed the
alleged crime.
The effectivity clause of BP 22 states that "This Act shall take effect 15 days
after publication in the OG." The term "publication" in such clause should be
given the ordinary accepted meaning, i.e., to make known to the people in
general. If the legislature had intended to make the printed date of issue of
the OG as the point of reference, then it could have so stated in the special
effectivity provision of BP 22.

TANADA V. TUVERA [136 S 27] - F: Invoking the people's right to be informed

on matters of public concern, a right recognized in the Constitution, as well as
the principle that laws to be valid and enforceable must be published in the
OG or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or cause the
publication in the OG of various PDs, LOIs, general orders, proclamations,
EOs, letters of implementation and administrative orders. Respondents
contend, among others that publication in the OG is not a sine qua non
requirement for the
effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect, publication in
the OG is indispensable for their effectivity. The point stressed is anchored on
Art. 2 of NCC.
HELD: The interpretation given by respondent is in accord w/ this Court's
construction of said article. In a long line of decisions, this Court has ruled
that publication in the OG is necessary in those cases where the legislation
itself does not provide for its effectivity date-- for then the date of publication
is material for determining its date of effectivity, w/c is the 15th day following
its publication-- but not when the law itself provides for the date when it goes
into effect.
Respondent's argument, however, is logically correct only insofar as it

equates the effectivity of laws w/ the fact of publication. Considered in the

light of other statutes applicable to the issue at hand, the conclusion is easily
reached that said Art. 2 does not preclude the requirement of publication in
the OG, even if the law itself provides for the date of its effectivity.
xxx The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. The clear object of the law is to
give the general public adequate notice of the various laws w/c are to
regulate their actions and conduct as citizens. W/o such notice and
publication, there would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of w/c he had no
notice whatsoever, not even a constructive one. It is needless to say that the
publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically
informed of its contents.

(unassigned case)
TANADA V. TUVERA [146 S 446] - xxx [T]he clause "unless it is otherwise
provided" refers to the date of effectivity and not to the requirement of
publication itself, w/c cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective immediately upon
approval, or on any other date, w/o its previous publication.
Publication is indispensable in every case, but the legislature may in its
discretion provide that the usual 15-day period shall be shortened or
extended.
It is not correct to say that under the disputed clause publication may be
dispensed w/ altogether. The reason is that such omission would offend due
process insofar as it would deny the public knowledge of the laws that are
supposed to govern it.
Conclusive presumption of knowledge of the law.-- The conclusive
presumption that every person knows the law presupposes that the law has
been published if the presumption is to have any legal justification at all.
The term laws should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit

there are some that do not apply to them directly.

RULE: All statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, w/c shall begin 15 days after
publication unless a different effectivity date is fixed by the legislature.
Coverage.-- Covered by this rule are PDs and EOs promulgated by the Pres. in
the exercise of legislative powers. Administrative rules and regulations must
also be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, i.e., regulating
only the personnel of the administrative agency and not the public, need not
be published. Neither is publication required of the so-called letters of
instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their
duties.
Publication must be in full or it is no publication at all since its purpose is to
inform the public of the contents of the laws. The mere mention of the
number of the PD, the title of such decree, its whereabouts, the supposed
date of effectivity, and in a mere supplement of the OG cannot satisfy the
publication requirement. This is not even substantial compliance.
Balane: General application of the provision: The law takes effect on the 16th
day.
To recapitulate the cases:
General rule: It must be published either in the OG or in a newspaper of gen.
circ.
Exception: The law itself may provide for a different mode of publication,
either as to form (published in some other way provided it is a reasonable
mode of publication) or effectivity date (a reasonable period from publication;
cannot be immediately upon approval). This is so bec. Art. 2 is only a law.
The requirement of publication applies to all laws.
Publication in the OG is not an absolute requirement (J. Feliciano, concurring
in Tanada v. Tuvera, Motion for Reconsideration.)
Rationale.-- The rationale for requiring publication is to give notice to the
public in determining their actions so as to conform to the law. "How can I
follow something the existence of which I do not know?"
Q: Is a law granting citizenship required to be published?

A: SC: Yes. Said the high court:

"The term laws should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of Pres. Marcos
who was decreed instant naturalization. It surely cannot be said that such a
law does not affect the public although it unquestionably does not apply
directly to the people. The subject of such law is a matter of public interest
w/c any member of the body politic may question in the political forums, or, if
he is a proper party, even in the courts of justice. In fact, a law w/o any
bearing on the public would be invalid as an intrusion of privacy or a class
legislation or as an ultra vires act of the legislature." (Tanada v. Tuvera, 146 S
446, 453.)
Balane: I disagree w/ the SC. That portion of the decision of the SC in Tanada
is only an obiter.

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

Tolentino: Reasons for Presumption of Knowledge of Law.-- (1) If laws will not
be binding until they are actually known, then social life will be impossible,
bec. most laws cannot be enforced due to their being unknown to many; (2) it
is absurd to absolve those who do not know the law and increase the
obligations of those who know it; (3) it is almost impossible to prove the
contrary, when a person claims ignorance of the law; (4) in our conscience,
we carry norms of right and wrong, and a sense of duty, so that our reason
indicates many times what we have to do; and in more complicated juridical
relations, there are lawyers who should be consulted.
What Laws Covered.-- Philippine laws are covered. There is no conclusive
presumption of knowledge of foreign laws. Even our courts cannot take
judicial notice of them. Ignorance of a foreign law will not be a mistake of law
but a mistake of fact.
And with respect to local laws, the article is limited to mandatory and
prohibitory laws. It does not include those w/c are merely permissive.
(Manresa.)
No Exceptions Admitted.-- The rule is based on public interest and is designed
precisely to avoid abuse through allegation that the law has not come to the
knowledge of a party. But it has been held by our CA that the rule should not
be applied w/ equal force to minors who, due to their lack of intelligence,
must be treated differently. (Peo. v. Navarro, 51 OG 4062.)

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

(ignorantia facti) may excuse a party from the legal consequences of his
conduct; but not ignorance of law, for ignorantia juris neminem excusat.
Difficult Question of Law.-- In specific instances provided by law, mistake as to
difficult legal questions has been given the same effect as a mistake of fact,
e.g., Art. 526, par. 3 which provides: "Mistake upon a doubtful or difficult
question lf law may be the basis of good faith."
Balane: Art. 3 creates a conclusive presumption w/c in some instances may
be unreasonable or harsh. But the alternative is worse, w/c is anarchy. Bec.
the law realizes its severity, it is sometimes mitigated as in the following
provisions
Art. 526, par. 3, quoted above.
Art. 1334. Mutual error as to the legal effect of an agreement when the real
purpose of the parties is frustrated, may vitiate consent.
Art. 2155. Payment by reason of a mistake in the construction or application
of a diffiicult question of law may come within the scope of the preceding
article.
Art. 2154. If something is received when there is no right to demand it and it
was unduly delivered through mistake, the obligation to return it arises.
BALANE CASE:
KASILAG V. RODRIGUEZ [ 69 P 217] - F: Responds, Rafaela Rodriguez, et al.,
children and heirs of the deceased Emiliana Ambrosio, commenced a civil
case to recover from the petitioner the possession of the land and its
improvements granted by way of homestead to Emiliana Ambrosio (EA).
The parties entered into a contract of mortgage of the improvements on the
land acquired as homestead to secure the payment of the indebtedness for
P1,000 plus interest. In clause V, the parties stipulated that EA was to pay,
w/in 4 1/2 yrs, the debt w/ interest thereon, in w/c event the mortgage would
not have any effect; in clause VI, the parties agreed that the tax on the land
and its improvements, during the existence of the mortgage, should be paid
by the owner of the land; in clause VII, it was covenanted that w/in 30 days
from the date of the contract, the owner of the land would file a motion in the
CFI of Bataan asking that cert. of title no. 325 be cancelled and that in lieu
thereof another be issued under the provisions of RA 496; in clause VIII the
parties agreed that should EA fail to redeem the mortgage w/in the stipulated
period of 4 1/2 yrs, she would execute an absolute deed of sale of the land in
favor of the mortgagee, the petitioner, for the same amount of the loan
including unpaid interest; and in clause IX it was stipulated that in case the

motion to be presented under clause VII should be disapproved by the CFIBataan, the contract of sale of sale would automatically become void and the
mortgage would subsist in all its force.
One year after the execution of the mortgage deed, it came to pass that EA
was unable to pay the stipulated interest as well as the tax on the land and
its improvements. For this reason, she and the petitioner entered into another
verbal contract whereby she conveyed to the latter the possession of the land
on condition that the latter would not collect the interest on the loan, would
attend to the payment of the land tax, would benefit by the fruits of the land,
and would introduce improvements thereon.
HELD: The possession by the petitioner and his receipts of the fruits of the
land, considered as integral elements of the contract of antichresis, are illegal
and void agreements, bec. the such contract is a lien and as such is expressly
prohibited by Sec 116 of Act No. 2874, as amended. The CA held that
petitioner acted In BF in taking possession of the land bec. he knew that the
contract he made w/ EA was an absolute sale, and further, that the latter
could not sell the land bec. it is prohibited by Sec. 116 of Act 2874.
xxx [A] person is deemed a possessor in BF when he knows that there is a
flaw in his title or in the manner of its acquisition, by w/c it is invalidated.
The question to be answered is w/n the petitioner should be deemed a
possessor in GF bec. he was unaware of any flaw in his title or in the manner
of its acquisition by w/c it is invalidated. Ignorance of the flaw is the keynote
of the rule. From the facts as found by the CA, we can neither deduce nor
presume that the petitioner was aware of a flaw in his title or in the manner
of its acquisition, aside from the prohibition contained in Sec. 116. This being
the case, the question is w/n GF may be premised upon ignorance of the
laws.
Gross and inexcusable ignorance of the law may not be the basis of GF but
excusable ignorance may be such basis (if it is based upon ignorance of a
fact.) It is a fact that the petitioner is not conversant w/ the laws bec. he is
not a lawyer. In accepting the mortgage of the improvements he proceeded
on the well-grounded belief that he was not violating the prohibition
regarding the alienation of the land. In taking possession thereof and in
consenting to receive its fruits, he did not know, as clearly as a jurist does,
that the possession and enjoyment of the fruits are attributes of the contract
of antichresis and that the latter, as a lien, was prohibited by Sec. 116. Thus,
as to the petitioner, his ignorance of the provisions of sec. 116 is excusable
and may be the basis of GF.
The petitioners being in GF, the respondents may elect to have the
improvements introduced by the petitioner by paying the latter the value

thereof, P3,000, or to compel the petitioner to buy and have the land where
the improvements or plants are found, by paying them its market value to be
fixed by the court of origin, upon hearing the parties.
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.
Tolentino: Concept of Retroactive Law.-- A retroactive law is one intended to
affect transactions w/ occurred, or rights w/c accrued, before it became
operative, and w/c ascribes to them effects not inherent in their nature, in
view of the law in force at the time of their occurrence.
It is one w/c creates a new obligation and imposes a new duty, or attaches a
new disability, in respect to transations or considerations already past.
(Balane quoting Tolentino.)
Reason for the Article.-- A law that has not yet become effective cannot be
considered as conclusively known by the people. To make a law binding even
before it has taken effect may lead to arbitrary exercise of legislative power.
Exceptions to Rule:
(1) When the law itself so expressly provides.-- This has two exceptions: (a)
when the retroactivity of a penal statute will make it an ex post facto law, and
(2) when the retroactive effect of the statute will constitute an impairment of
the obligation of contract.
(2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar
as they favor the accused who is not a habitual criminal, even though at the
time of the enactment of such laws final sentence has already been rendered.
(Art. 22, RPC.)
(3) In case of Remedial statutes.-- Remedial statutes are those w/c refer to
the method of enforcing rights or of obtaining redress of their invasion.
(4) In case of Curative statutes.-- Curative statutes are those w/c undertake
to cure errors and irregularities, thereby validating juridical or administrative
proceedings, acts of public officers, or private deeds and contracts w/c
otherwise would not produce their intended consequences by reason of some
statutory disability or the failure to comply w/ come technical requirement.
But these statutes cannot violate constitutional provisions, nor destroy vested
rights of a 3rd person. They cannot affect a judgment that has become final.
(5) In case of laws interpreting others.-- These are laws w/c are intended to
clarify doubts or interpret an existing law.
(6) In case of laws creating new rights.-- The principle that a new law shall not
have retroactive effect only governs rights arising from acts done under the

rule of the former law; but if a right be declared for the first time by a new
law it shall take effect from the time of such declaration, even though it has
arisen from acts subject to the former laws, provided that it does not
prejudice another acquired right of the same origin.
(7) If the law is of an emergency measure and authorized by the police power
of the State. (added by Balane.)
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.
Tolentino: Mandatory and Directory Laws.-- Directory laws are those
provisions which are mere matter of form, or w/c are not material, do not
affect any substantial right, and do not relate to the essence of the thing to
be done, so that compliance is a matter of convenience rather than
substance. Mandatory laws are statutory provisions w/c relate to matters of
substance, affect substantial rights and are the very essence of the thing
required to be done.
Balane: A mandatory law is one w/c prescribes some element as a
requirement, e.g., Art. 804 w/c requires that a will must be in writing.
A prohibitory law is one w/c forbids something, e.g., Art. 818 w/c forbids joint
wills.
Balane quoting Jurado:
Exceptions to the above provision.
1. When the law itself authorizes its validity.-- "Law" here refers to the
juridical order in its totality.
2. Where the law itself authorizes its validity, but punishes the violator, e.g.,
where the marriage was solemnized by a person who does not have legal
authority, but the party or parties believing in GF, that such person has
authority to do so, then the marriage is valid but the person who solemnized
the same shall be criminally liable
3. Where the law merely makes the act voidable, e.g., a marriage celebrated
through violence or intimidation or physical incapacity or fraud is valid until it
is annuled.
4. Where the law declares the act as void, but recognizes legal effects arising
from it, e.g., children born of void marriage are classified as illegitimate
children entitled to the rights in Art. 176, FC.

Art. 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law.
Tolentino: Elements of Right.-- Every right has 3 elements: (1) the subjects,
(2) the object, and (3) the efficient cause.
(1) The subjects of rights are persons; rights exist only in favor of persons.
There are 2 kinds of subjects: (a) the active subject, who is entitled to
demand the enforcement of the right; and (b) the passive subject, who is
duty-bound to suffer its enforcement.
(2) Things and services constitute the object of rights.
(3) The efficient cause is the fact that gives rise to the legal relation.
Kinds of Rights.-- Rights may be classified into political and civil; the former
include those referring to the participation of persons in the gov't of the
State, while the latter include all others. Civil rights may be further classified
into: The rights of personality, family rights and the patrimonial rights.
The rights to personality and family rights are not subject to waiver; but
patrimonial rights can generally be waived.
Renunciation or Waiver.-- Waiver is defined as the relinquishment of a known
right with both knowledge of its existence and an intention to relinquish it.
Voluntary choice is the essence of waiver.
Balane: Exceptions to the Rule that Rights can be waived.-- (1) If the waiver is
contrary to one of the 5 considerations (law, public order, public policy,
morals or good customs), e.g., you cannot waive future support bec. it is
against the law and public policy; (2) if the waiver would be prejudicial to a
3rd party w/ a right recognize by law, e.g., in a stipulation pour atrui, the
creditor cannot waive the stipulation if favor of a third person.
Elements of a Valid Waiver:
(1) Existence of a right;
(2) Knowledge of existence thereof;
(3) An intention to relinquish the right (implied in this is the capacity to
dispose of the right.) (Balane quoting Herrera v. Borromeo, 152 S 171.)
Tolentino: The renunciation must be made in a clear and unequivocal manner.
The formality required by law for such renunciation, if any, should be
followed; if no particular formality is required, the renunciation may even be
tacit, provided the intent to renounce can be clearly established.

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

and privileges to w/c a person is legally entitled, w/n secured by contract,
conferred by statute, or guaranteed by the Consti., provided such rights and
privileges rest in the individual and are intended for his sole benefit.
Waiver of Obligations.-- Generally, obligations cannot be renounced. But a
person may exempt himself from an obligation w/c is inherent in a right, upon
the renunciation of such right. For example, see Art. 628.
Renunciation of Real Rights.-- According to Valverde, while the renunciation of
a personal right requires the consent of the debtor (as in case of remission or
condonation) the renunciation of a real right is unilateral and depends upon
the exclusive will of the owner of the right.

PEOPLE V. DONATO [198 S 130 (1991)] - The doctrine of waiver extends to

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

Art. 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the

contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
Balane: Leges posteriores priores contrarias abrogant.
Tolentino: Reason for the Article.-- Since laws are promulgated by competent
authority of the State, they can cease to have effect only through the will of
the State.
Repeal of Laws.-- There are 2 kinds of repeal of a law: (1) express or declared
repeal, contained in a special provision of a subsequent law, and (2) implied
or tacit repeal, w/c takes place when the provisions of the subsequent law are
incompatible or inconsistent w/ those of an earlier law.
Requisites of Implied Repeals: (1) the laws cover the same subject matter,
and (2) the latter is repugnant to the earlier.
Repeal of Repealing Law.-- When a law w/c expressly repeals a prior law is
itself repealed, the law first repealed shall not be revived unless expressly so
provided. But if the prior law was repealed, not expressly but by implication,
the repeal of the repealing law will revive the prior law, unless the language
of the last law provides otherwise.
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines.
Balane: This is a common law principle. This shows that our New Civil Code is
not a full-blooded Civil Law scion.
Tolentino: Decisions not Source of Law.-- Jurisprudence, in our system of gov't,
cannot be considered as an independent source of law; it cannot create law.
But the Court's interpretation of a statute constitutes part of the law as of the
date it was originally passed, since the construction merely establishes
contemporaneous legislative intent that the interpreted law carried into
effect.
Doctrine of stare decisis.-- The doctrine of stare decisis is based on the
principle that once a question of law has been examined and decided, it
should be deemed settled and closed to further argument. The doctrine,
however, is flexible; so, that when, in the light of changing conditions, a rule
has ceased to be of benefit and use to society, the courts may rightly depart
from it.

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

appointment as secret agent of Governor Leviste. In 1965, accused was
charged with illegal possession of firearms. The SC held that where at the
time of his appointment, People v. Macarandang (1959) was applicable, which
held that secret agents were exempt from the license requirement, and later
People v. Mapa (1967) was decided, the earlier case should be held
applicable.
HELD: Art. 8 of the Civil Code decrees that judicial decisions applying or
interpreting the laws or the Constitution form part of this jurisdiction's legal
system. These decisions, although in themselves not law, constitute evidence
of what the laws mean. The application or interpretation placed by the courts
upon a law is part of the law as of the date of the enactment of the said law
since the Court's application or interpretation merely establishes the
contemporaneous legislative intent that the construed law purports to carry
into effect.
A new doctrine abrogating an old rule operates prospectively and should not
adversely affect those favored by the old rule.

PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] - Where accused who were
charged with murder, filed a motion to quash on the ground of lack of
jurisdiction, which the lower court granted, and the government, following,
the doctrine of People v. Salico which held that an appeal by the government
does not place accused in double jeopardy, this interpretation, though later
abandoned, must be held applicable to accused, and they cannot invoke the
defense of double jeopardy.
People v. Salico has long become final and conclusive and has become the
law of the case. It may be erroneous, judged by the law on double jeopardy
as recently interpreted by the SC. Even so, it may not be disturbed and
modified. The SC's recent interpretation of the law may be applied to new
cases, but certainly not to an old one finally and conclusively determined.
"Law of the case has been defined as the opinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably
established as the controlling legal rule of decision between the same parties
in the same case continues to be the law of the case, WHETHER CORRECT ON
GENERAL PRINCIPLES OR NOT, so long as the facts on which such decision
was predicated continue to be the facts of the case before the court." [21
C.J.S. 330]

"It may be stated that as a rule of general application, where the evidence on
a second or succeeding appeal is substantially the same as that on the first
or preceding appeal, all matters, questions, points or issues adjudicated on
the prior appeal are the law of the case on all subsequent appeals and will
not be reconsidered or readjudicated therein."
The rule is founded on the policy of ending litigation, and to be necessary to
enable an appellate court to perform its duties satisfactorily and effectively.

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

silence, obscurity or insufficiency of the laws.
Balane: In a situation contemplated by this Art., the judge will be guided by
customs and principles of right and justice.
The defect of this article is that the Code Commission omitted the second
paragraph of Art. 6 of the OCC, from w/c the provision came w/c provided
that "if there is not law exactly applicable xxx the customs of the place shall
be applied, and in default thereof, the general principles of law. But this is not
completely abrogated bec. of Art. 10 and 11.
Tolentino: Applicability of Article.-- This article does not apply to criminal
prosecutions, bec. when there is no law punishing an act, the case must be
dismissed, however, reprehensible the act may seem to the judge.
Obscurity or Deficiency of Law.-- If the law is vague or obscure, the court
should clarify it in the light of the rules of statutory construction; it is silent or
insufficient, the court should fill the deficiency by resorting to customs or
general principles of law.
Concept of Customs.-- Custom may be defined as the juridical rule w/c results
from a constant and continued uniform practice by the members of a social
community, w/ respect to a particular state of facts, and observed w/ a
conviction that it is juridically obligatory.
Requisites of Custom.-- (1) plurality of acts, or various resolutions of a
juridical question raised repeatedly in life; (2) uniformity, or identity of the
acts or various solutions to the juridical questions; (3) general practice by the
great mass of the social group; (4) continued performance of these acts for a
long period of time; (5) general conviction that the practice corresponds to a
juridical necessity or that it is obligatory; and (6) the practice must not be
contrary to law, morals or public order.
Custom distinguished from Law.-- As to origin, custom comes from the
society, while law comes from the governmental power of the State; the

former is a spontaneous, while the latter is a conscious creation

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

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

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

Art. 11. Customs which are contrary to law, public order or public policy shall
not be countenanced.
Balane: Custom can be applied suppletorily only if custom is not contrary to
any law.

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

evidence.
BALANE CASE:
YAO KEE V. SY-GONZALES [167 S 737] - F: Sy-Kiat, a Chinese national, died in
1977 in Kaloocan City, where he was residing, leaving behind substantial real
and personal properties here in the Phils. Petition for letters of administration
filed by his natural children, was opposed on the ground that Sy Kiat was
legally married to Yao Kee, in Fookien, China on 1/13/31 and that the
oppositors are the legitimate children. The probate court rendered judgment
in favor of the oppositors; this was modified and set aside by the CA w/c held
that both sets of children were acknowledged natural children. Both parties
moved for partial reconsideration.
HELD: For failure to prove the foreign law or custom, and consequently, the
validity of the marriage in accordance w/ said law or custom, the marriage

between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. In the
case at bar, petitioners did not present any competent evidence relative to
the law and customs of China on marriage. The testimonies of Yao and Gan
Ching cannot be considered as proof of China's law or custom on marriage
not only bec. they are self-serving evidence, but more importantly, there is no
showing that they are competent to testify on the subject matter.
Custom is defined as "a rule of conduct formed by repetition of acts,
uniformly observed (practiced) as a social rule, legally binding and
obligatory." The law requires that "a custom must be proved as a fact,
according to the rules of evidence." On this score the Court had occasion to
state that "a local custom as a source of right can not be considered by a
court of justice unless such custom is properly established by competent
evidence like any other fact." The same evidence, if not one of a higher
degree, should be required of a foreign custom.

Art. 13. When the laws speaks of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each; months, of
thirty days; days of twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the
number of days which they respectively have.
In computing a period, the first day shall be excluded, and the last day
included.
Balane: Art. 13 has been superseded by Sec. 31, Book I of EO 292
(Administrative Code of 1987) w/c provides that
Sec. 31. Legal Periods.-- "Year" shall be understood to be twelve (12) calendar
months; "months" of thirty (30) days, unless it refers to a specific calendar
month in which case it shall be computed according to the number of days
the specific month contains; "day," to a day of twenty four (24) hours; and
"nights," from sunset to sunrise.
Baviera: This article applies only to legal provisions and not to contracts,
where the parties may stipulate on the manner of computing years, months
and days.
Tolentino: Meaning of "Week."-- The term "week," when computed according
to the calendar, means a period of 7 days beginning on Sunday and ending
on Saturday, but where the word is used simply as a measure of duration of
time and w/o reference to the calendar, it means a period of 7 consecutive
days w/o regard to the day of the week on w/c it begins.

Meaning of "Month."-- There are several senses in w/c the term "month" may
be understood. A "lunar" mo. is composed of 28 days. A "calendar" mo. as
designated in the calendar, w/o regard to the no. of days it may contain, etc.
The Code, however, does not use "month" in either of these senses, but
strictly in a legal sense, as a period composed of 30 days.
Computation of Time.-- When the act and the period are contractual, not
required by law, court order, or rule of court, the exception referring to
Sundays and holidays does not apply, and the act must be done on the last
day, even if the latter should be a Sunday or a holiday. This is in consonance
w/ the rule that the contract is the law between the contracting parties.
BALANE CASE:
NAMARCO V. TECSON [29 S 70 (1969)] - F: On 10/14/55, the CFI-Mla. rendered
judgment in a civil case, Price Stabilization Corp. vs. Tecson, et al. Copy of
this decision was, on 10/21/55 served upon defendants in said case. On
12/21/65, NAMARCO, as successor to all the properties, assets, rights, and
choses in action of Price, as pltff in that case and judgment creditor therein,
filed w/ the same court, a complaint against defendants for the revival of the
judgment rendered therein. Def. Tecson moved to dismiss said complaint,
upon the ground of prescription of action, among others. The motion was
granted by the court. Hence, the appeal to the CA w/c was certified to the SC,
upon the ground that the only question raised therein is one of law, namely,
ISSUE: W/n the present action for the revival of a judgment is barred by the
statute of limitations.
Pursuant to Art. 1144 (3), NCC, an action for judgement must be brought w/in
10 yrs from the time the judgment sought to be revived has become final.
This in turn, took place on 12/21/55 or 30 days from notice of the judgment-w/c was received by defs. on 10/21/55-- no appeal having been taken
therefrom. The issue is thus confined to the date on w/c the 10 yrs from
12/21/55 expired. Pltff alleges that it was 12/21/65, but appellee maintains
otherwise, bec. :when the law speaks of years xxx it shall be understood that
years are of 365 days each"-- and, in 1960 and 1964 being leap years, so that
10 yrs of 365 days each, or an aggregate of 3650 days, from 12/21/55,
expired on 12/19/65.
Pltff.-appellant further insists that there is no question that when it is not a
leap year, 12/21 to 12/21 of the following year is one year. If the extra day in
a leap year is not a day of the year, bec. it is the 366th day, then to what
year does it belong? Certainly, it must belong to the year where it falls, and
therefore, that the 366 days constitute one yr.
HELD: The very conclusion thus reached by appellant shows that its theory

contravenes the explicit provision of Art. 13 limiting the connotation of each

"year"-- as the term is used in our laws-- to 365 days.
[The action to enforce a judgment which became final on December 21, 1955
prescribes in 10 years. Since the Civil Code computes "years" in terms of 365
days each, the action has prescribed on December 19, 1955, since the two
intervening leap years added two more days to the computation. It is not the
calendar year that is considered.]
BAVIERA CASE:
QUIZON V. BALTAZAR [76 S 560 (1977)] - The RPC provides that an action for
serious oral defamation prescribes in six months. The months should be
computed by the regular 30 days, not the calendar months. Hence, where the
crime was committed on November 11, 1963, and the action was filed exactly
180 days later, said action was filed on time.

Art. 14. Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in Philippine territory, subject to the principles of
public international law and to treaty stipulations.
Balane: There are 2 principles involved here: Territoriality and Generality.
Territoriality means that our criminal laws are enforceable only w/in Phil.
territory. Exception to the territoriality principle is Art. 2 of RPC.
Generality w/c means that w/in the Phil. territory, our criminal laws will apply
to anyone, citizen or alien. Exceptions: (1) treaty stipulations w/c exempted
some persons w/in the jurisdiction of the Phil. courts. and (2) ambassadors
[consuls are subject to the jurisdiction of our criminal courts
(Schneckenburger v. Moran.)]

Tolentino: Exemption under International Law.-- Under the theory of

extraterritoriality, foreigners may be exempted from the operation of the Phil.
laws in the following cases: (1) when the offense is committed by a foreign
sovereign while in Phil. territory; (2) when the offense is committed by
diplomatic representatives; and (3) when the offense is committed in a public
or armed vessel of a foreign country.
Offenses in Merchant Vessels.-- A merchant vessel of foreign registry does not
enjoy the extraterritorial privilege of foreign public or war vessels. An offense
committed on such vessel while it is in a Phil. port, constituting a breach of
public order and a viol. of the policy established by the legislature, is triable
in Phil. ports.

Art. 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
Tolentino: Theories on Personal Law.-- Domiciliary theory, followed in the US,
according to w/c the personal laws of a person are determined by his
domicile.
Nationality theory w/c makes nationality or citizenship as the basis for
determining the personal laws of an individual.
Capacity to Contract.-- If under the law of the State of w/c a party to a
contract is a citizen, he is already of age at the time he enters into the
contract, he cannot set such contract aside on t he ground of minority, even if
under the laws of the Phils. he is still a minor. (Government vs. Frank, 13 P
238.)
Renunciation of Allegiance.-- The question of how a citizen may strip himself
of the status as such citizen is governed by his national law.

BALANE CASES:
TENCHAVEZ V. ESCANO [15 SCRA 355] - F: Pastor Tenchavez (PT), 32, married
Vicenta Escano (VE), 27 on Feb. 24, 1948, in Cebu City. As of June 1948, the
newly-weds were already estranged. On 6/24/50, VE left for the US. On
8/22/50, she filed a verified complaint for divorce against the herein pltff. in
the State of Nevada on the ground of "extreme cruelty, entirely mental in
character."
On 10/21050, a decree of divorce was issued by the Nevada Court. On
9/13/54, VE married an American Russel Leo Moran IN Nevada. She now lives
w/ him in California and by him, has begotten children. She acquired
American citizenship on 8/8/58. On 7/30/55, PT filed a complaint for legal
separation and damages against VE and her parents in the CFI-Cebu.
HELD: At the time the divorce decree was issued, VE like her husband, was
still a Filipino citizen. She was then subject to Philippine law u nder Art. 15,
NCC. Philippine law, under the NCC then now in force, does not admit
absolute divorce but only provides for legal separation.
For Phil. courts to recognize foreign divorce decrees bet. Filipino citizens
would be a patent violation of the declared policy of the State, especially in
view of the 3rd par. of Art. 17, NCC. Moreover, recognition would give rise to
scandalous discrimination in favor of wealthy citizens to the detriment of
those members of our society whose means do not permit them to sojourn

abroad and obtain absolute divorce outside the Phils.

Therefore, a foreign divorce bet. Filipino citizens, sought and decreed after
the effectivity of the NCC, is not entitled to recognition as valid in this
jurisdiction.

VAN DORN V. ROMILLO [139 SCRA 139] - F: Petitioner Alice Reyes Van Dorn is
a citizen of the Phils. while private resp. Richard Upton is a US citizen; they
were married in HK in 1972; after the marriage, they established their
residence in the Phils. and begot 2 children; the parties were divorced in
Nevada, US, in 1982; and petitioner has remarried also in Nevada, this time
to Theodore Van Dorn.
On 6/18/83, Upton filed a suit against petitioner in the RTC-Pasay, stating that
petitioner's business in Ermita, Mla. (the Galleon Shop), is conjugal prop. and
asking that petitioner be ordered to render an accounting of that business,
and that Upton be declared as having the right to manage the conjugal prop.
Is it true that owing to the nationality principle embodied in Art. 13, NCC, only
Phil. nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, w/c may be recognized in the
Phils., provided they are valid according to their national law.
In this case, the divorce in Nevada released private resps from the marriage
from the stds of American law, under w/c divorce dissolves the marriage.
Thus, pursuant to his national law, Upton is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. xxx.
To maintain, as Upton does, that under our laws, petitioner has to be
considered still married to him and still subject to a wife's obligations under
the NCC cannot be just. Petitioner should not be obliged to live together with,
observe respect and fidelity, and render support to private resp. The latter
should not continue to be one of her heirs w/ possible rights to conjugal
prop. She should not be discriminated against in her own country if the ends
of justice are to be observed.

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.
However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the

intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found.
Balane: In Art. 16 par. 1 provides that the lex situs or lex rei sitae governs real
or personal prop. This rule applies even to incorporeal property. In Tayag v.
Benguet Consolidated, 26 S, the SC said that Phil. courts have jurisdiction
over shares of stocks located in the Phils.
Tolentino: The rule of mobilia sequuntur personam in personal property has
yielded to the to the lex situs bec. of the great increase in modern times of
the amount and variety of prop. not immediately connected w/ the person of
the owner.
Law on Succession.-- The law governing succession may be considered from
the point of view of (a) the execution of wills, and (b) the distribution of
property. The formalities of execution of will are generally governed by the
law of the place of execution (Art. 17, par. 1.) But the distribution of the
estate is governed by the law of the nation of the deceased.
Applicability of Foreign Law.-- The second par. of this article can be invoked
only when the deceased was vested w/ a descendible interest in prop. w/in
the jurisdiction of the Phils.
The intrinsic validity of the provisions of the will of a foreigner who dies in the
Phils. is to be determined by the laws of his own state or country, and not by
those of the Phils. Thus, a condition in a will of a foreigner that his legatee
respect his order that his prop. be distributed according to the laws of the
Phils. instead of the laws of his own country, was held illegal and considered
as not written.

Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.

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

Tolentino: Validity and Effects of Obligations.-- The code fails to mention the
law w/c shall govern the validity and effects of obligations. (1) First, the law
designated by the parties shall be applied; (2) if there is no stipulation on the
matter, and the parties are of the same nationality, their national law shall be
applied; (3) if this is not the case, the law of the place of perfection of the
obligation shall govern its essence and nature, and the law of the place of the
performance shall govern its fulfillment; (4) but if these places are not
specified and they cannot be deduced from the nature and circumstances of
the obligation, then the law of the domicile of the passive subject shall apply.
(Manresa and Valverde.)

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

BELLIS V. BELLIS [20 S 358 (1967)] - Where the testator was a citizen of Texas
and domiciled in Texas, the intrinsic validity of his will should be governed by
his national law. Since Texas law does not require legitimes, then his will
which deprived his illegitimate children of the legitimes is valid.
While Art. 17, par. 3 provides that prohibitive laws of our country concerning
persons and their property shall not be rendered ineffective by contrary laws
in a foreign country, this cannot be considered an exception to Art. 16 which
categorically provides for the situations when the national law shall apply.
Precisely, Congress deleted the phrase "notwithstanding the provisions of this
and the next preceding article" when they incorporated Art. 11 of the Old
Civil Code as Art. 17 of the New Civil Code, while reproducing without
substantial change Art. 10 paragraph 2 of the Old Civil Code as Art. 16 of the
New Civil Code. It must have been their purpose to make Art. 16, paragraph
2, a specific provision in itself which must be applied in testate and intestate
successions.
Thus, in Miciano v. Brimo, a provision in a foreigner's will to the effect that his
properties shall be distributed in accordance with Philippine law and not with
his national law, is illegal and void, for his national law cannot be ignored in
regard to those matters that Art. 10 - now Art. 16 - states said national law

shall govern.
Baviera: Why was Texas law applied when there was no proof of Texas law?

Other Conflict of Law Rules:

Art. 829. A revocation done outside the Philippines, by a person who does not
have his domicile in this country, is valid when it is done according to the law
of the place where the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the revocation takes
place in this country, when it is in accordance with the provisions of this
Code.
Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
Art. 1753. The law of the country to which the goods are to be transported
shall govern the liability of the common carrier for their loss, destruction or
deterioration.

Art. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
xxx. (Family Code.)
- Art. 35 (1) - must not be below 18
- Art. 35 (4) - not bigamous or polygamous
- Art. 35 (5) - no mistake as to identity of the other party
- Art. 35 (6) - void marriages for failure to comply with Art. 53 on recording in
the Civil Registry of the judgment of annulment or absolute nullity of
marriage, partition and distribution of properties of the spouses, and the
delivery of the children's presumptive legitimes.
- Art. 36 - psychological incapacity
- Art. 37 - incestuous marriages
- Art. 38 - void marriages by reason of public policy.
Art. 26. xxx

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law. (As amended by EO No. 227,
prom. July 17, 1987) (Family Code.)
Balane: This is a qualified divorce law.
Q: Would the ruling in Tenchavez still be the same, even after the amendment
introduced in Art. 26 by EO 227?
A: Yes, bec. the Tenchavez spouses are Filipinos. Art. 26 par. 2 does not apply
to them.
Note in the the Van Dorn v. Romillo ruling, we are not told, at whose instance
the divorce was obtained.
Requisites of Art. 26 par. 2:
(1) one of the spouses is a foreigner
(2) a divorce decree is obtained
(3) the divorce decree is obtained at the instance of the foreign spouse
(4) under the divorce decree, the foreigner-spouse acquires the capacity to
remarry.
Q: Suppose at the time of the marriage, both spouses are Filipinos.
Afterwards, one becomes naturalized. Would Art. 26 par. 2 still be applied?
Baviera: This refers to the formal or extrinsic requirements only, namely (1)
authority of the solemnizing officer; (2) valid marriage license; (3) marriage
ceremony.
As to the essential or intrinsic requirements, namely (1) legal capacity and (2)
consent, these must be complied with in accordance with the national law of
the parties.

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

property relations of the spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property is
located; and
(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country whose laws
require different formalities for their extrinsic validity. (Family Code.)
(not in Baviera's outline)
Art. 18. In matters which are governed by the Code of Commerce and special
laws, their deficiency shall be supplied by the provisions of this Code.

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

HUMAN RELATIONS

Art. 19. Every person must, in the exercise of his rights and in the

performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Principle of abuse of rights

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

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

GLOBE MACKAY V. CA [176 S 778 (1989)] - While an employer has the right to
dismiss an employee who was involved in anomalous transactions, the right
of dismissal should not be exercised in an abusive manner, such as by
making accusations of being a crook, forcing him to take a forced leave,
threatening to file a hundred suits against him. Hence, the employer is liable
for damages.
Art. 21 was adopted to remedy the countless gaps in the statutes, which
leave so many victims of moral wrongs helpless, even though they have
actually suffered material and moral injury. This article should vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is
impossible for human foresight to provide for specifically in the statutes.

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

PNB V. CA [83 S 237 (1978)] - While the Board of Directors of PNB had the
power to approve the lease of the sugar quota allotments of its debtor, its act
in unduly refusing to grant such approval when the terms of the lease were
reasonable constitutes a violation of Art. 21 of the Civil Code.

Baviera: The Board of Directors should have been held liable, not the bank.

BALANE V. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] - Where a man by virtue
of a notarized agreement, convinced the 19-year old daughter of petitioner,
to live with him, and later on left her when she got pregnant, he can be made
to recognize his child and is liable for damages under Art. 21 of the Civil Code
for inducing the daughter to live with him in a manner contrary to morals and
good customs.
Under the New Civil Code, it is not necessary that there be a breach of
promise of marriage in order that the plaintiff in an action for
acknowledgment of natural child and support may recover damages. The
reason given by the Code Commission is that in case a girl is already of age
and was seduced, no action for Seduction under the RPC would lie, however,
the girl and her family would have suffered incalculable damages, which must
be compensated.

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

Art. 23. Even when an act or event causing damage to another's property
was not due to the fault or negligence of the defendant, the latter shall be
liable for indemnity if through the act or event he was benefitted.

Art. 24. In all contractual, property or other relations, when one of the parties
is at a disadvantage on account of his moral dependence, ignorance,
indigence, mental weakness, tender age or other handicap, the courts must
be vigilant for his protection.

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

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

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

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

producer would pay the heirs and relatives of Moises Padilla a sum of money
inorder to depict them in the movie which he included a love interest angle
depicting the mother and a sweetheart, is not a violation of freedom of
expression. While it is true that the film producer purchased the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need
for prior consent and authority from the deceased's heirs to portray publicly
episodes in said deceased's life and in that of his mother and the members of
his family. As held in Schuyler v. Curtis, "a privilege may be given the
surviving relatives of a deceased person to protect his memory, but the
privilege exists for the benefit of the living, to protect their feelings and to
prevent a violation of their own rights in the character and memory of the
deceased."
"Being a public figure ipso facto does not automatically destroy in toto a
person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to fictional or novelized
representation of a person, no matter how public a figure he or she may be.
In the case at bar, while it is true that petitioner exerted efforts to present a
true-to-life story of Moises Padilla, petitioner admits that he included a little
romance in the film because without it, it would be a drab story of torture and
brutality."
"The right of freedom of expression, indeed, occupies a preferred position in
the hierarchy of civil liberties. However, it is limited by the clear and present
danger rule and the balancing of interest test. The latter requires the court to
take conscious and detailed consideration of the interplay of interest
observable in a given situation. The interests observable in this case are the
right to privacy and freedom of expression. Taking into account the interplay
of those interest, we hold that under the particular circumstances presented,

and considering the obligations in the contract, the validity of such contract
must be upheld because the limits of freedom of expression are reached
when expression touches upon matters of essentially private concern."

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

Art. 27. Any person suffering material or moral loss because a public servant
or employee refuses or neglects, without just cause, to perform his official
duty may file an action for damages and other relief against the latter,
without prejudice to any disciplinary administrative action that may be taken.
Art. 28. Unfair competition in agricultural, commercial or industrial
enterprises or in labor through the use of force, intimidation, deceit,
machinations, or any other unjust, oppressive or high-handed method shall
give rise to a right of action by the person who thereby suffers damages.

Art. 29. When the accused in a criminal prosecution is acquitted on the

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

effect, it may be inferred from the text of the decision whether or not the
acquittal is due to that ground.

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

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

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

accident involving a truck which hit a jeep which then hit a Mercedes Benz
coming from the opposite direction, two criminal actions for reckless
imprudence was filed against the drivers of the truck and jeep, and the driver
of the truck was found guilty and the driver of the jeep acquitted, a civil
action for damages against the owner of the truck would prosper as there is
no res judicata, the parties and causes of action being different. Furthermore,
under Art. 31 of the Civil Code, When the civil action is based on an obligation
not arising from crime, the civil action may proceed independently of the
criminal proceedings regardless of result of the latter. Citing Garcia v. Florido,
"As we have stated at the outset, the same negligent act causing damages
may produce a civil liability arising from crime or create an action for quasidelict or culpa extra-contractual. The former is a violation of the criminal law,
while the latter is a distinct and independent negligenc, having always had its
own foundation and individuality. Some legal writers are of the view that in
accordance with Article 31, the civil action based upon quasi-delict may
proced independently of the criminal proceeding for criminal negligence and
regardless of the result of the latter. Hence, the proviso in Section 2 of Rule
111 (requiring reservation of civil actions) with reference to Articles 32, 33,
and 34 of the Civil Code, is contrary to the letter and spirit of the said articles,
for these articles were drafted and are intended to constitute as exceptions to
the general rule stated in what is now Section 1 of Rule 111. The proviso,
which is procedura, may also be regarded as an unauthorized amendment of
substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide

for the reservation required in the proviso."

However, a civil action for damages against the owner-driver of the jeep
would not prosper because civil liability arising from crime co-exists with
criminal liability in criminal cases. Hence, the offended party had the option
to prosecute on civil liability arising from crime or from quasi-delict. His active
participation in the criminal case implies that he opted to recover the civil
liability arising from crime. Hence, since the acquittal in the criminal case,
which was not based on reasonable doubt, a civil action for damages can no
longer be instituted.

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

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

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

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

an information for intriguing against honor was represented by a private

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

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

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

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

Art. 32. Any public officer or employee, or any private individual, who directly
or indirectly obstructs, defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person shall be liable to

the latter for damages:

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

(19) Freedom of access to the courts.

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

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

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

Rule 111, Sec. 2. Institution of separate civil action. - Except in the cases
provided for in Section 3 hereof, after the criminal action has been
commenced, the civil action which has been reserved cannot be instituted
until final judgment has been rendered in the criminal action.
(a) Whenever the offended party shall have instituted the civil action (arising
from the crime - Baltic) as provided for in the first paragraph of section 1
hereof before the filing of the criminal action is subsequently commenced,
the pending civil action shall be suspended, in whatever stage before final
judgment it may be found, until final judgment in the criminal action has
been rendered. However, if no final judgment has been rendered by the trial

court in the civil action, the same may be consolidated with the criminal
action upon application with the court trying the criminal action. If the
application is granted, the evidence presented and admitted in the civil
action shall be deemed automatically reproduced in the criminal action,
without prejudice to the admission of additional evidence that any party may
wish to present. In case of consolidation, both the criminal and the civil
actions shall be tried and decided jointly.
(b) Extinction of the penal action does not carry with it extinction of the civil,
unless the extinction proceeds from a declaration (need not be an express
declaration- Baltic) in a final judgment that the fact from which the civil might
arise did not exist. (Rules of Court.)

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

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

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

action to enforce judgment would only expire after ten years from judgment
[Art. 1144 (3)].
Thus, where the offended party reserves the right to file a separate action for
damages arising from physical injuries, the cause of action prescribes in four
years, not ten years.

MADEJA V. CARO [126 S 295 (1983)] - Where accused was charged with
Homicide thru reckless imprudence, pending the criminal action, an
independent civil action under Art. 33 may proceed independently of the
criminal case. Citing Carandang v. Santiago [97 P 94 (1955)], "The term
"physical injuries" is used in the generic sence, not the crime of physical
injuries defined in the Revised Penal Code. It includes not only physical
injuries but consummated, frustrated and attempted homicide." Defamation
and fraud are also used in their generic sense because there are no specific
provisions in the Revised Penal Code using these terms as means of offenses
defined therein.
Art. 35. When a person, claimining to be injured by a criminal offense,
charges another with the same, for which no independent civil action is
granted in this Code or any special law, but the justice of the peace finds no
reasonable ground to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal proceedings, the
complainant may bring a civil action for damages against the alleged
offender. Such civil action may be supported by a preponderance of evidence.
Upon the defendant's motion, the court may require the plaintiff to file a bond
to indemnify the defendant in case the complaint should be found to be
malicious.
If during the pendency of the civil action, an information should be presented
by the prosecuting attorney, the civil action shall be suspended until the
termination of the criminal proceedings.

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

Rule 111, Sec. 5. Elements of prejudicial question. - The two (2) essential
elements of a prejudicial question are:

(a) the civil action involves an issue similar or intimately related to the issue
raised in the criminal action;
(b) the resolution of such issue determines whether or not the criminal action
may proceed. (Rules of Court.)
Rule 111, Sec. 6. Suspension by reason of prejudicial question. - A petition for
suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the fiscal or the court
conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the same
criminal action any time before the prosecution rests. (ibid.)
Bigamy - Art. 349, RPC. Contracting of second or subsequent marriage:
a. before legal dissolution of first marriage
b. before declaration of presumptive death of absent spouse.

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

LANDICHO V. RELOVA [22 S 731 (1968)] - Where the first wife filed a criminal
action for bigamy against the husband, and later the second wife filed a civil
case for annulment of the marriage on the ground of force and intimidation,
and the husband later files a civil case for annulment of marriage against the
first wife, the civil cases are not prejudicial questions in the determination of
his criminal liability for bigamy, since his consent to the second marriage is
not in issue.
"The mere fact that there are actions to annul the marriages entered into by
accused in a bigamy case does not mean that "prejudicial questions" are

automatically raised in civil actions as to warrant the suspension of the

criminal case. In order that the case of annulment of marriage be considered
a prejudicial question to the bigamy case against the accused, it must be
shown that petitioner's consent to such marriage must be the one that was
obtained by means of duress, force and intimidation to show that his act in
the second marriage must be involuntary and cannot be the basis of his
conviction for the crime of bigamy. The situation in the present case is
markedly different. At the time the petitioner was indicted for bigamy, the
fact that two marriage ceremonies had been contracted appeared to be
indisputable. And it was the second spouse, not the petitioner who filed the
action for nullity on the ground of force, threats and intimidation. And it was
only later that petitioner as defendant in the civil action, filed a third party
complaint against the first spouse alleging that his marriage with her should
be declared null and void on the ground of force, threats and intimidation.
Assuming the first marriage was null and void on the ground alleged by
petitioner, that fact would not be material to the outcome of the criminal
case. Parties to the marriage should not be permitted to judge for themselves
its nullity, for the same must be submitted to the judgment of a competent
court and only when the nullity of the marriage is so declared can it be held
as void, and so long as there is no such declaration, the presumption is that
the marriage exists. Therefore, he who contracts a second marriage before
the judicial declaration of nullity of the first marriage assumes the risk of
being prosecuted for bigamy."

PRESUMPTION OF SIMULTANEOUS DEATH

Art. 43. If there is a doubt, as between two or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no transmission
of rights from one to the other.
Tolentino: Application of Article.-- This article applies only when the question
of survivorship involves persons "who are called to succeed each other."
Hence, it cannot apply to other cases w/c do not involve succession.
When the persons involved would succeed each other, however, then this
article applies, whether the death be actual or merely presumed from
absence or other circumstances.
Are Rules of Court Repealed?-- There is every indication that the Code
Commission intended to repeal the presumptions on survivorship under the
Rules of Court, because the presumptions laid down therein are sometimes
absurd and mere guesswork. [I Tolentino 176]

Compare with Rule 131, Sec. 5 (jj), (kk)

PRESUMPTION OF PRIORITY OF DEATH (Survivorship Agreement)
Rule 131, Sec. 5 (jj). That except for purposes of succession, when two
persons perish in the same calamity, such as wreck, battle, or conflagration,
and it is not shown who died first, and there are no particular circumstances
from which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and age of the sexes, according to
the following rules:
1. If both were under the age of fifteen years, the older is deemed to have
survived;
2. If both were above the age of sixty, the younger is deemed to have
survived;
3. If one is under fifteen and the other above sixty, the former is deemed to
have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is
deemed to have survived; if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the
latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called
to succeed each other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the absence of proof,
they shall be considered to have died at the same time. (Rules of Court.)
BALANE CASE:
JOAQUIN V. NAVARRO [93 P 257] - F: On 2/6/45, while the battle for the
liberation of Mla. was raging, the spouses Joaquin Navarro, Sr. (JN, Sr.) and
Angela Joaquin (AJ), together w/ their 3 daughters and their son Joaquin, Jr.
(JN, Jr.) and the latter's wife, sought refuge in the ground floor of the building
known as the German Club. During their stay, the bldg. was packed w/
refugees, shells were exploding around, and the Club was set on fire.
Simultaneously, the Japanese started shooting at the people inside the bldg,
especially those who were trying to escape. the 3 daughters were hit and fell
on the ground near the entrance; and JN, Sr. and his son decided to abandon
the premises to seek a safer haven. They could not convince AJ, who refused
to join them, and so JN, Sr. and his son, JN, Jr. and the latter's wife dashed out
of the burning edifice. As they came out, JN, Jr. was shot in the head by a
Japanese soldier and immediately dropped. The others lay flat on the ground
in front of the Club premises to avoid the bullets. Minutes later, the Club,

already on fire, collapsed, trapping many people, presumably including AJ. JN,
Sr., Mrs. JN, Jr. managed to reach an air raid shelter nearby and stayed there
for about 3 days, until they were forced to leave bec. the shelling tore it open.
They fled but unfortunately met Japanese patrols who fired at them, killing
the two.
The trial court found the deaths to have occurred in this order: 1st. The
Navarro girls; 2nd. JN, Jr.; 3rd. AJ; 4th. JN, Sr. The CA found that the deaths
occurred in the following order: 1st. The Navarro girls; 2nd. AJ; 3rd. JN, Jr.; 4th
JN, Sr.
HELD: Where there are facts, known or knowable, from w/c a rational
conclusion can be made, the presumption (in the Rules of Court) does not
step in, and the rules of preponderance of evidence controls.
Are there particular circumstances on record from w/c reasonable inference of
survivorship bet. AJ and her son can be drawn? Is Francisco Lopez' (the sole
witness) testimony competent and sufficient for the purpose?
It is our opinion that the testimony contains facts quite adequate to solve the
problem of survivorship bet. AJ and JN, Jr. and keep the statutory presumption
out of the case. It is believed that in the light of the conditions painted by
Lopez, a fair and reasonable inference can be arrived at, namely: that JN, Jr.
died before his mother.
While the possibility that the mother died before the son can not be ruled out,
it must be noted that this possibility is entirely speculative and must yield to
the more rational deduction from proven facts that it was the other way
around. JN, Jr., was killed, while running, in front of, and 15 meters from the
Club. Still in the prime of life, 30, he must have negotiated that distance in 5
seconds or less, and so died w/in that interval from the time he dashed out of
the bldg. AJ could have perished w/in those 5 or fewer seconds, but the
probabilities that she did seem very remote.
According to Lopez' testimony, the collapse of the club occurred about 40
minutes after JN, Jr. died, and it was the collapse that killed AJ. The CA said
that the interval bet. JN, Jr.'s death and the breaking down of the edifice was
"minutes." Even so, it was much longer than 5 seconds, long enough to
warrant the inference that AJ was still alive when her son expired.
The CA mentioned several causes, besides the bldg's collapse, by which AJ
could have been killed. All these causes are speculative. xxx Nor was AJ likely
to have been killed by falling beams bec. the bldg. was made of concrete and
its collapse, more likely than not, was sudden. As to fumes, these do not
cause instantaneous death; certainly, not w/in the brief space of 5 seconds
bet. her son's departure and his death.

It will be said that all this is indulging in inferences that are not conclusive.
Sec. 69 (ii) of R 123 does not require that the inference necessary to exclude
the presumption therein provided be certain. It is the "particular
circumstances from w/c it (survivorship) can be inferred" that are required to
be certain as tested by the rules of evidence. In speaking of inference the
rule can not mean beyond doubt, for "inference is never certainty, but it may
be plain enough to justify a finding of fact."
In conclusion, the presumption that AJ died before her son is based purely on
surmises, speculations, or conjectures w/o any sure foundation in evidence.
The opposite theory is deduced from established facts w/c, weighed by
common experience, engender the inference as a very strong probability.
Gauged by the doctrine of preponderance of evidence by w/c civil cases are
decided, this inference ought to prevail.
Balane: In Sec. 5 (jj) of R 131, there is no presumption of simultaneity but of
survivorship.
Q: Did the court in Joaquin v. Navarro rule w/c of the 2 presumptions prevail
over the other? Did it apply either presumtion?
A: No to both questions.
The presumption applies only if there is no evidence as to who died first. If
there are enough facts to go by, you do not use either presumption. Art. 43
as well as Sec. 5 (jj) of R 131 cannot be applied if there are facts to go by.
In questions other than succession (like insurance, resolutory conditions,
reserva troncal, donation inter vivos), apply Rule 131, Sec. 5 (jj)
The case did not resolve the issue as to w/n there is a conflict bet. Art. 43 and
R 131, Sec. 5 (jj) of the ROC. To reconcile the two, the following rules may be
of help:
1. Art. 43 applies only when succession is involved; ROC [referring to Sec. 5
(jj) R 131] applies only when 2 persons perish in the same calamity.
2. When succession is involved but the persons did not perish in the same
calamity, apply Art. 43; When the persons perished in the same calamity but
succession is not involved, apply ROC.
3. When neither element is present, neither provision will apply.
4. The conflict will arise only when succession is involved and 2 persons died
in the same calamity. In case of conflict, Art. 43 will apply (this is only an
opinion.)
RAM: The 1988 Revised Rules on Evidence removed whatever conflict there

was bet. the ROC and Art. 43 of the NCC. In fact, Art. 43 is now substantially
reproduced as Sec. 5 (kk) of R 131 of the ROC.

BOOK I
LAW ON PERSONS
Tolentino: Concept of Person.-- In a juridical sense, the term "person" is now
understood as any being, physical or moral, real or juridical and legal,
susceptible of rights and obligations, or of being the subject of legal relations.
(Sanchez Roman.)
Classes of Persons.-- (1) human beings or men, called natural persons; and
(2) entities formed by the association of men, known as juridical persons, or
as artificial, fictitious, abstract, or moral persons.
Status of persons.-- The status of a person is the legal condition or class to
w/c one belongs in society; it is the legal or juridical position of the individual
in society, or w/ regard to the rest of the community.

The status of a person may be political or civil.

Civil status may be grouped into 3 classes: (a) status as a member of the
society; (b) status as member of a family; and (c) status w/ respect to the
person himself.
The qualities w/c create a status are only those inherent in the person
himself.
Characteristics of status.-- The status of a person is outside the commerce of
man; hence, (1) it is inalienable, (2) it is imprescriptible, (3) it cannot be the
object of compromise, (4) the action to claim it cannot be renounced, and (5)
the rights arising from it cannot be exercised by creditors.
TITLE I
I. CIVIL PERSONALITY
Tolentino: Concept of Personality.-- Personality is the quality derived from
being a person. While a person is any being susceptible of rights and
obligations, personality is the aptitude of that becoming the subject, active or
passive, of juridical relations.
Characteristics.-- (1) It is not a being, but a quality of certain beings; (2) it is
not a physical element, but a juridical concept; (3) it is not an object of
contract, or of possession, and cannot be impaired by agreement; (4) it is a
matter of public interest.

A. Elements
Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired
and may be lost.
Tolentino: Kinds of Capacity.-- Capacity may be (1) juridical capacity, and (2)
capacity to act. The union of these 2 forms the full civil capacity. (Balane calls
the 2 the constitutive elements of personality.)
Juridical capacity is synonymous to legal capacity and to personality. They all
refer to the aptitude for the holding and enjoyment of rights. On the other
hand, capacity to act refers to the aptitude for the exercise of rights, and is
often referred to merely as "capacity."
Comparison.-- Juridical capacity (JC) is just one, indivisible, irreducible, and
essentially the same for all men; it is an inherent and ineffaceable attribute of

man, and attaches to him by the mere fact of his being a man. But capacity
to act (CA) is conditional and variable. It is acquired and may be lost. The
mere existence of man is not sufficient to confer capacity to act, bec. this
capacity requires both intelligence and will; xxx Thus, JC can exist w/o CA, but
the existence of the latter implies that of the former.
Balane: JC has no degrees, either you have it or not. CA has degrees.
-----------------------------------------------------------------------------------------------JURIDICAL CAPACITY CAPACITY TO ACT
------------------------------------------------------------------------------------------------ fitness to be the subject of legal relations - power to do acts with legal effect
- inherent in every natural person
------------------------------------------------------------------------------------------------ lost only through death - acquired and may be lost
- subject to restrictions: minority, etc.
------------------------------------------------------------------------------------------------

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

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

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

prodigality and civil interdiction are mere restrictions on capacity to act, and
do not exempt the incapacitated person from certain obligations, as when the
latter arise from his acts or from property relations, such as easements.
Tolentino: Causes of Incapacity
Minority.-- The unemancipated minor cannot enter into contracts (Art. 1327);
but he may be estopped from disavowing his contract if he has misled the
other party as to his age. The SC has held that:
xxx [T]he sale of real estate, effected by minors who have already passed the
ages of puberty and adolescence and are near the adult age, when they
pretend to have already reached their majority, while in fact they have not, is

valid, and they cannot be permitted afterwards to excuse themselves from

compliance w/ the obligation assumed by them or seek their annulment. This
doctrine is entirely in accord w/ the provisions of our law on estoppel.
(Mercado vs. Espiritu, 37 Phil. 215.
But there is authority to the effect that misrepresentation of an incapacitated
person does not bind him.
"xxx Misrepresentation made by a party as to his age does not estop him
from denying that he was of age or from asserting that he was under age, at
the time he entered into the contract, for the breach of w/c an action is
brought. Under the principle of estoppel, the liab. resulting from
misrepresentation has its juridical source in the capacity of the person
making the misrepresentation to bind himself. If the person making the
misrepresentation cannot bind himself by contract, he cannot also be bound
by any misrepresentation he may have made in connection therewith. A
person entering into a contract must see to it that the other party has
sufficient capacity to bind himself." (Young vs. Tecson, 39 OG 953.)
Insanity or Imbecility.-- Insanity includes the various forms of mental disease,
either inherited or acquired, in w/c there is a perversion of the mentality, as
when the person is suffering from illusions, hallucinations, or delusions,
unnatural exaltation or depression, or insane ideas of persecution or power.
An insane person cannot make a valid will or testament (Art. 798); and he
cannot validly give consent to contracts (Art. 1327, par. 2.)
Imbecility is a defect in the quantity of mental development. The mental ages
up to the completed eighth year are included.
Deaf-Mutism.-- A deaf-mute can make a valid will, so long as its content have
been communicated or made known to him in some practicable manner (Art.
807.) But when the deaf-mute does not know how to read and write, he
cannot give consent to contracts (1327, par. 2, and he cannot personally
accept or repudiate an inheritance (1048.)
Civil Interdiction-- This is an accessory penalty imposed upon persons who
are sentenced to a principal penalty not lower than reclusion temporal (Art.
41, RPC.) Art. 34 of the RPC provides:
Art. 34. Civil interdiction shall deprive the offender during the time of his
sentence of the rights of parental authority, or guardianship, either as to the
person or property of any ward, of marital authority, of the right to manage
his property, and of the right to dispose of such property by any act or any
conveyance inter vivos.
Prodigality.-- A spendthrift or prodigal is "a person who, by excessive drinking,

gambling, idleness or debauchery of any kind shall so spend, waste or lessen

his estate as to expose himself or his family to want or suffering.
Prodigality in itself does not limit the capacity of a person to act. It seems
erroneous to include prodigality in the Art. 38 bec. as a circumstance w/c
limits capacity, bec. there is no specific provision of law w/c implements this
general provision. It is not the circumstance of prodigality, but the fact of
being under guardianship, that restricts the capacity to act of the spendthrift.
Obligations of Incapacitated Persons.-- They may have obligations arising
from all sources, except contracts. They have obligations arising from law,
such as those imposed on family relations.
Incapacitated persons are also civilly liable for crimes committed by them,
even if they are exempted from criminal liab. (Art. 101, RPC.) They are liable
for quasi-delicts, under the express provisions of Articles 2181 and 2182.
They are liable on quasi-contracts, on the principle that nobody can unjustly
enrich himself at the expense of another.
Where necessaries are delivered to a minor or other incapacitated person, he
must pay a reasonable price therefore. (Art. 1489.)

Art. 39. The following circumstances, among others, modify or limit capacity
to act: age, insanity, imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are governed by this Code, other
codes, the Rules of Court, and in special laws. Capacity to act is not limited
on account of religious belief or political opinion.
A married woman, eighteen years of age or over, is qualified for all acts of
civil life, except in cases specified by law.
Balane: There is a lapse in the enumeration. Art. 38 enumerates 6
circumstances limiting, modifying or restricting capacity to act whereas Art.
39 enumerates 11. The two articles could have been merged into one article.
Tolentino: The enumeration made here is not exclusive of other
circumstances modifying capacity to act.
Guardianship of Incompetents.-- For definition of incompetents, see Rule 93,
Sec. 2, ROC, infra.
Even w/o guardianship, persons under civil interdiction, deaf-mutes who do
not know how to read and write, and those of unsound mind, are of limited
capacity. W/ respect, however, to hospitalized lepers, prodigals, and those

who cannot take care of themselves and manage their prop., it is the fact of
guardianship w/c will limit their capacity to act.
Family Relations.-- Ascendants and descendants, brothers and sisters, and
collateral relatives w/in the 4th civil degree (as cousins), cannot validly
marry; their marriage would be incestuous or against public policy and void.
Husband and wife, during the marriage, cannot give donations to each other.
Alienage.-- Citizenship may affect the right of persons in matters where the
State may validly discriminate between aliens and its citizens for reasons of
public policy, w/o doing violence to the equal protection of the laws. See
constitutional provisions, infra.
Absence.-- A person is absent when he disappears from his domicile, and his
whereabouts are unknown (381.) He cannot properly administer his
properties, and so another person is appointed to administer them.
Insolvency and Trusteeship.-- When a person has been adjudicated an
insolvent, he cannot dispose of his prop. existing at the time of the
commencement of the insolvency proceedings; and no payments of prop. or
credit can be made to him.
Physical condition.-- Physical incapacity to enter into the married state, or
impotence, is a ground for annulment of marriage [Art. 55(5), FC], and a
person who is blind, or deaf or dumb, cannot be a witness to the execution of
a will. (820.)

B. Restriction on Capacity to Act

1. Minority
Sec. 1. Art. 234 of EO 209, the Family Code of the Philippines, is hereby
amended to read as follows:
"Emancipation takes place by the attainment of majority. Unless otherwise
provided, majority commences at the age of eighteen years."
xxx (R.A. 6809.)
a. Civil Acts
Art. 797. Persons of either sex under eighteen years of age cannot make a
will.
Art. 1489. xxx
When necessaries are sold and delivered to a minor or other person without

capacity to act, he must pay a reasonable price therefor. Necessaries are

those referred to in article 290. (par. 2.)
- Baviera - basis of liability: quasi-contract
Art. 14. In case either or both of the contracting parties, not having been
emancipated by a pevious marriage, are between the ages of eighteen and
twenty one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such consent shall be manifested in
writing by the interested party, who personally appears before the proper
local registrar, or in the form of an affidavit made in the presence of two
witnesses and attested before any official authorized by law to administer
oaths. The personal manifestation shall be recorded in both applications for
marriage license, and the affidavit, if one is executed instead, shall be
attached to said applications. (Family Code.)
b. Delicts
Art. 101. xxx
xxx
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with civil law. (par. 3 thereof,
Revised Penal Code.)
c. Quasi-Delicts
Art. 2182. If the minor or insane person causing damage has no parents or
guardian, the minor or insane person shall be answerable with his own
property in an action against him where a guardian ad litem shall be
appointed.

2. Insanes and Imbeciles

a. Civil Acts
Art. 1323. An offer becomes ineffective upon the death, civil interdiction,
insanity, or insolvency of either party before acceptance is conveyed.
Art. 1327. The following cannot give consent to a contract:

(1) Unemancipated minors;

(2) Insane or demented persons, and deaf-mutes who do not know how to
write.
Art. 1399. When the defect of the contract consists in the incapacity of one of
the parties, the incapacitated person is not obliged to make any restitution
except insofar as he has been benefited by the thing or price received by
him.
b. Delicts & Quasi-Delicts
Art. 101. xxx
xxx
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with civil law. (par. 3 thereof,
Revised Penal Code.)
Art. 2182. If the minor or insane person causing damage has no parents or
guardian, the minor or insane person shall be answerable with his own
property in an action against him where a guardian ad litem shall be
appointed.

3. Deaf-Mutes
Art. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to
write.
Art. 820. Any person of sound mind and of the age of eighteen years or more,
and not blind, deaf or dumb, and able to read and write, may be witnesses to
the execution of a will mentioned in article 805 of this Code.
4. Prodigals
Rule 92, Sec. 2. Meaning of word "incompetent".-- Under this rule, the word
"incompetent" includes persons suffering the penalty of civil interdiction or
who are hospitalized lepers, prodigals, deaf and dumb who are unable to read
and write, those who are of unsound mind, even though they have lucid
intervals, and persons not being of unsound mind, but by reason of age,

disease, weak mind, and other similar causes, cannot, without outside aid,
take care of themselves and manage their property, becoming thereby an
easy prey for deceit and exploitation. (Rules of Court.)

5. Civil Interdiction
Art. 34. Civil interdiction. - Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos. (Revised Penal Code.)
Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property: (1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil interdiction;
xxx. (Family Code.)

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

spouse may be transferred by the court to the other spouse: (3) When one
spouse is sentenced to a penalty which carries with it civil interdiction;
xxx. (Family Code.)
6. Insolvency
Sec. 70. If any debtor, being insolvent, or in contemplation of insolvency,
within thirty days before the filing of a petition by or against him, with a view
to giving a preference to any creditor or person having claim against him or
who is under any liability for him, procures any part of his property to be
attached, sequestered, or seized on execution, or makes any payment,
pledge, mortgage, assignment, transfer, sale, or conveyance of any part of
his property, either directly or indirectly, absolutely or conditionally, to
anyone, the person receving such payment, pledge, mortgage, assignment,
transfer, sale or conveyancr or to be benefited thereby, or by such
attachment or seizure, having reasonable cause to believe that such debtor is
insolvent, and that such attachment, sequestration, seizure, payment,
pledge, mortgage, conveyance, transfer, sale, or assignment is made with a
view to prevent his property from coming to his assignee in insolvency, or to
prevent the same from being distributed ratably among his creditors, or to
defeat the object of, or in any way hinder, impede, or delay the operation of
or to evade any of the provisions of this Act, such attachment, sequestration,
seizure, payment, pledge, mortgage, transfer, sale, assignment, or

conveyance is void, and the assignee, or the receiver may recover the
property or the value thereof, as assets of such involvent debtor. If such
payment, pledge, mortgage, conveyance, sale, assignment, or transfer is not
made in the usual and ordinary course of business of the debtor, of if such
seizure is made under a judgment which the debtor has confessed or offered
to allow, that fact shall be prima facie evidence of fraud. Any payment,
pledge, mortgage, conveyance, sale, assignment, or transfer of property of
whatever character made by the insolvent within one month before the filing
of a petition in insolvency by or against him, except for a valuable pecuniary
consideration made in good faith, shall be void. All assignments, transfers,
conveyances, mortgages, or encumbrances of real estate shall be deemed,
under this section, to have been made at the time the instrument conveying
or affecting such realty was filed for record in the office of the Register of
Deeds of the province or city where the same is situated. (Insolvency Law,
R.A 1956.)

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

xxx
(6) By the insolvency of any partner or of the partnership;
xxx
Art. 1919. Agency is extinguished:
xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal or of
the agent;
xxx
Art. 2238. So long as the conjugal partnership or absolute community
subsists, its property shall not be among the assets to be taken possession of
by the assignee for the payment of the insolvent debtor's obligations, except
insofar as the latter have redounded to the benefit of the family. If it is the
husband who is insolvent, the administration of the conjugal partnership or
absolute community may, by order of the court, be transferred to the wife or
to a third person other than the assignee.

7. Alienage
Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal,

petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and supervision
of the State. Such activities may be directly undertaken by the State, or it
may enter into co-production, joint venture, production-sharing agreements
with Filipino citizens, or corporations or associations at least sixty per centum
of whose capital is owned by such citizens. Such agreements may be for a
period of not exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may be provided
by law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial use
may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations
involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development, and use of local
scientific and technical resources.
The President shall subsequently notify the Congress of every contract
entered into in accordance with this provisions within thirty days from its
execution. (Constitution.)

Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall
be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain. (ibid.)

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

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

(ibid.)

Art. XII, Sec. 11. No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such
citizens, nor shall such franchise, certificate or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be
subject to amendment, alteration, or repeal by Congress when the common
good so requires. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign investors in the
governing body of any public utility shall be limited to their proportionate
share in its capital, and all executive and managing officers of such
corporation or association must be citizens of the Philippines. (ibid.)

Art. XVI, Sec. 11. (1) The ownership and management of mass media shall be
limited to citizens of the Philippines, or to corporations, cooperatives or
associations, wholly owned and managed by such citizens.
The Congress shall regulate or prohibit monopolies in commercial mass
media when the public interest so requires. No combination in restraint of
trade or unfair competition therein shall be allowed.
(2) The advertising industry is impressed with public interest, and shall be
regulated by law for the protection of consumers and the promotion of the
general welfare.
Only Filipino citizens or corporations or associations at least seventy per
centum of the capital of which is owned by such citizens shall be allowed to
engage in the advertising industry.
The participation of foreign investors in the governing body of entities in such
industry shall be limited to their proportionate share in the capital thereof,
and all the executive and managing officers of such entities must be citizens
of the Philippines. (ibid.)

Art. XIV, Sec. 4. (2) Educational institutions, other than those established by
religious groups and mission boards, shall be owned solely by citizens of the
Philippines, or corporations or associations at least sixty per centum of the
capital of which is owned by such citizens. The Congress may, however,

require increased Filipino equity participation in all educational institutions.

The control and administration of all educational institutions shall be vested
in Filipino citizens.
No educational institution shall be established exclusively for aliens and no
group of aliens shall comprise more than one-third of the enrolment in any
school. The provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their dependents and, unless
otherwise provided by law, for other temporary foreign residents. (ibid.)

II. KINDS OF PERSONS

A. Natural Persons
1. Commencement of Personality
Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired
and may be lost.
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born
later with the conditions specified in the following article.

Tolentino: Personality from Birth.-- Birth means the removal of the foetus from
the mother's womb.
Conceived Child.-- The personality of the conceived child has 2
characteristics: (1) it is essentially limited, bec. it is only for purposes
favorable to the child, and (2) it is provisional or conditional, bec. it depends
upon the child being born alive later, such that if it is not born alive, its
personality disappears as if it had never existed.
Period of Conception.-- Legally, in a normal child, the period of conception is
the first 120 days of the 300 days preceding the birth of the child.
The following provisions of the NCC are relevant:
Art. 742. Donations made to conceived and unborn children may be accepted
by those persons who would legally represent them if they were already born.
Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee
must be living at the moment the succession opens, except in case of

representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable
of succeeding provided it be born later under the conditions prescribed in
article 41.
BALANE/ BAVIERA CASE:
GELUZ V. CA [2 S 801 (1961)] - F: Nita Villanueva came to know the defendant
(Antonio Geluz) for the first time in 1948-- thru her aunt. In 1950, she became
preganant by her present husband before they were legally married. During
to conceal her pregnancy from her parent, she had herself aborted by def.
After the marriage w/ the pltff., she again became pregnant. As she was
employed in the COMELEC and her pregnancy proved to be inconvenient, she
had herself aborted again by def. in Oct 1953. Less than 2 years later, she
again became pregnant. On 2/21/55, she again repaired to the def's clinic.
Nita was again aborted of a 2-month old foetus, in consideration of the sum
of P50.
It is the third and last abortion that constitutes pltff's basis in filing this action
and award of damages The CA and the trial court predicated the award of
damages upon the provisions of the initial par. of Art. 2206 of the NCC.
RULING: This award, we believe, to be error for the said art., in fixing an
award for the death of a person, does not cover the case of an unborn foetus
that is not endowed w/ personality.
RATIO: Parents of unborn foetus cannot sue for damages on its behalf. A
husband of a woman who voluntarily procured her abortion could not recover
damages from the physician who caused the same. (1) Since an action for
pecuniary damages on account of personal injury or death pertains primarily
to the injured, no such right of action could derivatively accrue to the parents
or heirs of an unborn child. In fact, even if a cause of action did accrue on
behalf of the unborn child, the same was extinguished by its pre-natal death,
since no transmission to anyone can take place from one that lacked juridical
personality (or juridical capacity, as distinguished from capacity to act). It is
no answer to invoke the provisional personality of a conceived child
(conceptus pro nato habetur) under Article 40 of the Civil Cod, because that
same article expressly limits such provisional personality by imposing the
condition that the child should be subsequently born alive: "provided it be
born later with the condition specified in the following article." In the present
case, there is no dispute that the child was dead when separated from its
mother's womb.
(2) This is not to say that the parents are not entitled to collect any damages
at all. But such damages must be those inflicted directly upon them, as

distinguished from the injury or violation of the rights of the deceased, his
right to life and physical integrity. Because the parents cannot expect either
help, support or services from an unborn child, they would normally be
limited to moral damages for the illegal arrest of the normal development of
the spes hominis that was the foetus, i.e., on account of distress and anguish
attendant to its loss, and the disappointment of their parental expectations
(Art. 2217, CC), as well as to exemplary damages, if the circumstances should
warrant them (Art. 2230, CC). But in this case, there is no basis for an award
of moral damages, evidently because the husband's indifference to the
previous abortions clearly indicates that he was unconcerned with the
frustration of his parental hopes and affection.

Art. 41. For civil purposes, the foetus is considered born if it is alive at the
time it is completely delivered from the mother's womb. However, if the
foetus had an intrauterine life of less than seven months, it is not deemed
born if it dies within twenty-four hours after its complete delivery from the
maternal womb.
Tolentino: Separation from Mother.-- This is produced by the cutting of the
umbilical cord, whether the removal takes place naturally or by surgical
operation.
Alive at Birth.-- The duration of extra-uterine life is immaterial; for acquisition
of juridical personality, it is enough that the child lives even for an instant.
Test of Life.-- The general opinion is that independent life required for juridical
personality can be shown only by complete respiration. The cry of the child,
although it is not a necessary sign of life, is evidence that it has acquired
complete respiration. Another indication of complete respiration is the
floating of the lungs when placed in water; this means that air has penetrated
into the lungs by breathing.
Viability Not Required.-- Viability means that the child is capable of living, and
this is determined by the extent of the development of its organs.
Premature Birth.-- In this case, if the child does not live 24 hours completely
separated from the mother's womb, it does not acquire juridical personality.
This is an absolute requirement for feotuses w/c have an intrauterine life of
less than 7 mos. (Balane quoting Manresa and JBL.)
"The aborted creature does not reach the category of a natural person and
consequently is not born in the contemplation of law." (Geluz v. CA, supra.)
This is so, even if the child is killed before the period lapses and it can be
proved that it could have survived that period if it had not been prevented by

the wilful act of another. On the other hand, juridical personality is acquired
even if the survival for 24 hours is caused only by medical or scientific means
w/o w/c the child would have died before the lapse of that period.
Balane: Ouline of Articles 40 & 41
1. For civil personality to be acquired, one must be born.-- A foetus is born
after it is completely separated from the mother's womb w/c is produced by
the cutting of the umbilical cord; after the separation, the child now survives
by itself.
There was an additional requirement in the OCC: only that foetus is
considered born w/c has a "uniform form." This has been taken out in the
NCC.
The question of determining the exact duration of intrauterine life is a
problem even medical science is not equipped to answer as of the moment.
2. Once birth occurs, personality for favorable purposes retroacts from the
moment of conception.-- The retroactivity rule is qualified-- only for purposes
favorable to the child.

2. Extinguishment
a. Contracts
Art. 42. Civil personality is extinguished by death. The effect of death upon
the rights and obligations of the deceased is determined by law, by contract
and by will.
Tolentino: Natural Death.-- This art. refers to natural or physical death, bec.
this is the only kind of death recognized by present legislation. The law does
not recognize the so-called "civil death," known to legislation in the past, by
virtue of w/c a man who was alive was considered dead for all purposes bec.
of a conviction for crime or of the taking of a religious profession.
Balane: Physical death and legal death are the same.
The following provisions of the NCC are relevant:
Art. 777. The rights to the succession are transmitted from the moment of
death of the decedent.
Art. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.
Art. 1919. Agency is extinguished:

xxx
(3) By the death, civil interdiction, insanity or insolvency of the principal or of
his agent.
xxx
Art. 1830. Dissolution (of partnership) is caused:
xxx
(5) By the death of any partner.
xxx
Art. 603. Usufructuary is extinguished:
(1) By the death of the usufructuary, unless a contrary intention clearly
appears;
xxx.
Art. 1311. Contracts take effect only between the parties, their assigns and
heirs, except in case where the rights and obligations arising from the
contract are not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value of the property he
received from the decedent.
b. Criminal Liability
Art. 89. How criminal liability is totally extinguished. - Criminal liability is
totally extinguished:
(1) By the death of the convict, as to the personal penalties; and as to
pecuniary penalties, liability therefor is extinguished only when the death of
the offender occurs before final judgment.

B. Juridical Persons
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions
(2) Other corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been
constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose

to which the law grants a juridical personality, separate and distinct from that
of each shareholder, partner or member.
Balane: A juridical person is an organic unit resulting from a group of persons
or mass or property to w/c the State grants or recognizes personality and
capacity to hold patrimonial rights independent of those of component
members. (quoting Ruggiero.)
BALANE CASE:
BARLIN V. RAMIREZ [7 P 41] - F: The def., Ramirez, having been appointed by
the pltff parish priest, took possession of the church on 7/5/01. He
administered if as such under the orders of his superiors until 11/14/02. His
successor having been then appointed, the latter made a demand on this def.
for the delivery to him of the church, convent, and cemetery, and the sacred
ornaments, books, jewels, money, and other prop. of the church. The def., by
a written document of that date, refused to make such delivery, stating that
"the town of Lagonoy, in conjunction w/ the parish priest of thereof, has seen
fit to sever connection w/ the Pope at Rome and his representatives in these
Islands, and to join the Filipino Church, the head of w/c is at Mla.
In 1/4, the pltff. brought this action against def., alleging in his amended
complaint that the Roman Catholic Church was the owner of the church bldg,
the convent, cemetery, the books, money, and other prop. belonging thereto,
and asking that it be restored to the possession thereof and that the def.
render an account of the prop. w/c he had received and w/c was retained by
him, and for other relief. The CFI-Ambos Camarines ruled in favor of the pltff.
HELD: It is suggested by the appellant that the Roman Catholic Church has no
legal personality in the Philippine Islands. This suggestion, made with
reference to an institution w/c antedates by almost a thousand years any
other personality in Europe, and w/c existed "when Grecian eloquence still
flourished in Antioch, and when idols were still worshipped in the temple of
Mecca," does not require serious consideration.
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article
are governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the
subject.
Partnerships and associations for private interest or purpose are governed by
the provisions of this Code concerning partnerships.
Tolentino: What Governs Juridical Persons.-- The State is governed by the
provisions of the Consti; provinces and municipalities are governed by the
Local Gov't Code and the Revised Admin. Code; and chartered cities, by their

respective charters.
Corporations created by special charter are governed primarily by such
charter; and those created under general law are governed by the
Corporation Code.
Partnerships and associations must be governed primarily by their contracts
of association, and only secondarily by law, bec. partnerships are created by
contract, and it is a fundamental rule that the contract has the force of law
between the contracting parties.
Art. 46. Juridical persons may acquire and possess property of all kinds, as
well as incur obligations and bring civil or criminal actions, in conformity with
the laws and regulations of their organization.
Tolentino: Capacity of Juridical Persons.-- The juridical person is not
completely at par w/ natural persons as to capacity, bec. it cannot exercise
rights w/c presuppose physical existence, such as family rights, making of
wills, etc.
Extinguishment of Capacity.-- The juridical capacity of artificial persons is
extinguished upon the termination of its existence in accordance w/ the law
governing it or w/ its articles of asso. or incorp.
The following provisions of the Constitution are relevant:
Art. XII, Sec. 3. Lands of the public domain are classified into agricultural,
forest or timber, mineral lands, and national parks. Agricultural lands of the
public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such lands of the public domain except by lease,
for a period not exceeding twenty-five years, renewable for not more than
twenty-five years, and not to exceed one thousand hectares in area. Citizens
of the Philippines may lease not more than five hundred hectares, or acquire
not more than twelve hectares thereof by purchase, homestead, or grant in
excess of twelve hectares.
Taking into account the requirements of conservation, ecology and
development and subject to the principles of agrarian reform, the Congress
shall determine, by law, the size of lands of the public domain which may be
acquired, developed, held or leased and the conditions therefor.
(Constitution.)

Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall
be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain. (ibid.)

(not in Baviera's outline)

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

Art. 48. Superseded by Art. IV, Sec. 1 of the 1987 Constitution

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

Art. 49. Naturalization and the loss and reacquisition of citizenship of the
Philippines are governed by special laws.
Art. 50. For the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons is the place of their habitual residence.
Balane: Requisites of Domicile: (1) physical presence; (2) animus manendi
(intent to remain) (Gallego v. Vera, 73 P 453.)
Three kinds of Domicile:
(1) Domicile of Origin.-- Domicile of the parents of a person at the time he
was born
(2) Domicile of Choice.-- Domicile chosen by a person to change his original
domicile. Aside from the 2 requisites mentioned above, a third requisite must
be present in domincile of choice, animus non revertendi (intention not to
return to one's old domicile as his permanent place.)

(3) Domicile by Operation of Law.-- E.g., Art. 69, FC.

Three Rules in Domicile:
(1) A man must have a domicile somewhere.
(2) A domicile once established remains until a new one is acquired.
(3) A man can have only 1 domicile at a time.
Domicile and Residence. Domicile is not the same as residence. Domicile is
residence plus habituality.
Importance of Understanding Domicile.-- In case of revocation of wills (Art.
829), place of performance of obligation (Art. 1251, par. 3), renvoi (Aznar v.
Garcia.)
Art. 51. When the law creating or recognizing them, or any other provision
does not fix the domicile of juridical persons, the same shall be understood to
be the place where their legal representation is established or where they
exercise their pricipal functions.

(Articles 1 to 54 follows Prof. Ruben Balane's Outline)

MARRIAGE
Definition
Tolentino: Definitions of Marriage.-- The term marriage has 2 distinct
meanings. In one sense, it is limited to the procedure by w/c a man and a
woman become husband and wife. In this concept, it is defined as "that act
by which a man and a woman unite for life, with the intent to discharge
towards society and one another those duties which result from the relation
of husband and wife."
In the second sense, marriage is a status involving duties and responsibilities
w/c are no longer matter for private regulations, but the concern of the State.

xxx As such, it is defined as "the civil status of one man and one woman,
legally united for life, with rights and duties which, for the establishment of
families and the multiplication of the species, are, from time to time may
thereafter be, assigned by law to matrimony." (Balane quoted Tolentino on
the meaning of marriage.)
Purposes of Marriage.-- In general: (1) reproduction, (2) education of the
offspring, and (3) mutual help. The immediate purpose is the constitution of a
complete and perfect community bet. 2 individuals of different sexes; the
remote purpose is the preservation of the human race.
Art. 1. Marriage is a special contract of permanent union between a man and
a woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage settlements may fix
the property relations during the marriage within the limits provided by this
Code.
Tolentino: Marriage a Social Institution.-- Marriage is a contract only in form,
but in essence it is an institution of public order, founded on custom and
morality. It is a contract sui generis w/c cannot be compared to any other
contract.
Characteristics: (1) It is civil in character, bec. it is established by the State
independently of its religious aspect; (2) it is an institution of public order or
policy, governed by rules established by law w/c cannot be made inoperative
by the stipulation of the parties; (3) it is an institution of natural character,
bec. one of its objects is the satisfaction of the intimate sentiments and
needs of human beings for the organic perpetuation of man.
Balane: Marriage is a contract. Art. 52, NCC provides that M is not a mere
contract. Art. 1, FC, on the other hand provides that M is a special contract.
Both emphasize that M is not just a contract.
Tolentino: Differentiated from Ordinary Contracts: (1) As to parties: Ordinary
contracts (0C) may be entered into by any no. of persons, whether of the
same or different sex, while marriage (M) can be entered into only by one
man and one woman; (2) As to contractual rights and obligations: In OC, the
agreement of the parties have the force of law bet. them while in M, the law
fixes the duties and rights of the parties; (3) As to termination: OC can be
terminated by mutual agreement of the parties, while M cannot be so
terminated; neither can it be terminated even though one of the parties
subsequently becomes incapable of performing his part; and (4) As to breach:
Breach of OC gives rise to an action for damages, while breach of the
obligations of a husband or a wife does not give rise to such an action; the

law provides penal and civil sanctions, such as prosecution for adultery or
concubinage, and proc. for legal sep.; (5) As to effect: OC do not create
status, M does. (no. 5 was added by Balane.)
Balane: Quite logically, marriage is the starting point of any family relation
bec. in our legal system, the family is the keystone of society, the basic unit
of society. And marriage is the keystone of the family. This is a value
judgement. Marriage does not have to be the keystone of the family. But we
choose it to be that way.
xxx Much arguments have been raised regarding the status of children on the
distinction of legitimate from illegitimate children. There are those who
propose the abolition of the distinction as it is not the fault of the illegitimate
child that he is such. But one of the uninentended consequence of abolishing
the distinction is to erode the institution of marriage. Are we ready to take
that path?

Tolentino: Principal Effects of Marriage: (1) personal and economic relations

bet. the sps., w/c become sources of impt. rights and duties; (2) the
legitimacy of sexual union and of the family; (3) the personal and economic
relations bet. parents and children, w/c gives rise to considerable rights and
duties; (4) the family rel'p, from w/ flow various juridical consequences, such
as impediments to marriage, right to support, and rights to inheritance; (5)
incapacity of the sps. to make donations to each other; (6) disqualification of
the sps. to testify against each other; (7) modification of crim. liab., such as
by way of exemption when one spouse defends the other from unlawful
aggression or is his accessory after the fact, or mitigation when the crime is
committed in vindication of a grave offense to the spouse, or aggravation
when the injured is the spouse of the offender, such as in parricide.
Contract to Marry.-- Where parties mutually agree to marry each other at
some future time, there is a contract to marry. xxx It can be distinguished
from an ordinary contract in that the promise of either party cannot be
enforced by court action, bec. the consent to the actual marriage must be
purely voluntary.
Breach of Promise.-- There is repudiation where before the time set for the
performance of the marriage, one party declares that he will not carry it out,
or refuses to further communicate w/ or maintain a suitor's relation w/ the
other party, or puts himself in a position where he cannot execute the
contract, as when he marries another.
Damages for Breach.-- [T]he action for breach of promise to marry has no
standing in the civil law, apart from t he right to recover money or property

advanced by the plaintiff upon the faith of such promise." (De Jesus v. Syquia,
58 P 866.)
We believe that an action based purely on breach of the contract to marry,
will not lie. xxx It is true that she may suffer from wounded feelings and
mental anguish, and these are recognized as elements of moral damages
under article 2217; but before such damages can be recovered, there must
first be a right of action, and there is no law granting a right of action on
breach of contract to marry. However, we believe that if the action for
damages is based on tort or quasi-delict, or on articles 19, 21, or 22 of the
present Code, there would be a sufficient legal basis or right of action for
damages.
Effect of Seduction.-- xxx [I]t is possible legally to base an action upon the
carnal knowledge of the pltff. by the def., or upon the seduction, as a fact
separate from the contract to marry. The promise to marry would only be the
means of accomplishing the seduction. If the offended woman has been led
to submit to carnal intercourse by the promise of marriage, she should be
entitled to damages, not only on the basis of tort or quasi-delict, but under
the provisions of art. 21.
xxx The essence of the action would not be the breach of the contract, but
the tortious or wrongful act or seduction accomplished through the deceitful
promise.
Abuse of right.-- Even when there has been no seduction, we believe that
under art. 19, damages, may under certain circumstances, be recovered
against a party who repudiates a contract to marry; but the basis of the
action cannot be the mere breach of contract itself, but some act constituting
an abuse of right.
Unjust enrichment.-- Another legal basis in connection w/ a breach of contract
to marry is art. 22 on unjust enrichment. xxx Gifts to the person to whom the
donor is engaged to be married are considered legally as conditional, and
upon breach of the engagement by the donee, may be recovered by the
donor. (see Domalagan v. Bolifer, 33 P 471.)
Oral Agreement.-- Under 1403 "an agreement made in consideration of
marriage, other a mutual promise to marry," shall be unenforceable by
action, unless the same, or some note or memorandum thereof, be in writing,
and subscribed the party sought to be charged. (Statute of Frauds.)
It seems to us that the writing is not necessary in an action for damages for
breach of a contract to marry. First, where the party who sues for damages
has already given the consideration for the promise of the def., it is unjust to
deny the action on the plea of the Statute of Frauds. Second, the Statute

should apply only when the action is to enforce the contract; but not when it
is for damages for breach.

Goitia v. Campos Rueda [35 P 252] -- F: This is an action for support by G

(wife) against R (husband). After 1 mo. of marriage, R repeatedly demanded
from G to perform "unchaste and lascivious acts on R's genitals." Bec. of G's
refusal, R maltreated G by word and deed, inflicting bodily injuries on G. To
escape R's lewd designs and avoid further harm, G left the conjugal home
and took refuge in her parent's house. G filed an action for support w/ the
trial court. this was dismissed on the ground that R could not be compelled to
give support if G lived outside of the conjugal home, unless there was legal
sep. G appealed.
HELD: Marriage is something more than a mere contract. It is a new relation,
the rights, duties, and obligations of w/c rest not upon the agreement of the
parties but upon the general law w/c defines and prescribes those rights,
duties, and obligations. Marriage is an institution, in the maintenance of w/c
in its purity the public is deeply interested. It is a relation for life and the
parties cannot terminate it at any shorter period by virtue of any contract
they may make. The reciprocal rights arising from this relation, so long as it
continues, are such as the law determines from time to time and none other.
When the legal existence of the parties is merged into one by marriage, the
new relation is regulated and controlled by the state or govt upon principles
of public policy for the benefit of society as well as the parties. And when the
object of a marriage is defeated by rendering its continuance intolerable to
one of the parties and productive of no possible good to the community, relief
in some way should be obtainable.
The law provides that the H, who is obliged to support the wife, may fulfill this
obligation either by paying her a fixed pension or by maintaining her in his
own home at his option. However, the option given by law is not absolute.
The law will not permit the H to evade or terminate his obligation to support
his wife if the wife is driven away from the conjugal home bec. of the H's own
wrongful acts. In this case, where the wife was forced to leave the conjugal
abode bec. of the lewd designs and physical assaults of the H, the W may
claim support from the H for separate maintenance even outside of the
conjugal home.

I. REQUISITES OF A VALID MARRIAGE

Balane: There are two kinds of requisites, the essential and the formal. There
are three essential requisites: (1) legal capacity of the contracting parties, (2)

consent freely given and (3) difference in sex (other commentators opine that
this third is already included in legal capacity.)
On the other hand, there are also 3 formal requisites: (1) authority of the
solemnizing officer, (2) a valid marriage license and (3) some form of
cermeony.
Distinction.-- Absence, Defect, Irregularity of Requisites:
(1) Absence of a requisite, whether essential or formal, renders the M void
Absence means a total want of a requisite. E.g., the total absence of a
marriage license (absence of a formal requisite) w/c renders the M void.
(2) A defect in the essential requisite makes the M voidable
E.g., where the consent of either party was vitiated by intimidation.
(3) An irregularity in the formal requisite does not affect the validity of the
marriage but this is w/o prejudice to the criminal, civil or administrative liab.
of erring officials.
E.g., where the marriage license was issued w/o complying w/ the 10-day
posting requirement. (Art. 17, FC.)

1. Difference in Sex (an essential requisite)-- Articles 2 par. 1, 4 par. 1, 39

Art. 2. No marriage shall be valid, unless these essential requisites are
present:
(1) Legal capacity of the contracting parties who must be a male and a
female; xxx
xxx
Balane: The phrase "who must be a male and a female" was not found in the
NCC.
Art. 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).
xxx
Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx
2. Some Form of Ceremony (a formal requisite.)-- Articles 3 par. 3, 4 par. 1, 6

Art. 3. The formal requisites of marriage are:

xxx
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.
Tolentino: Ceremony of Marriage.-- The requirement of a marriage ceremony
prevents the recognition in the Phils. of what are known as "common law
marriages." A common law marriage is a present agreement bet. a man and a
woman w/ capacity to enter into such rel'p, to take ea. other as H and W,
followed by cohabitation.
Art. 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).
xxx
Art. 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.
Balane: Requisites of some form of ceremony:
(1) Personal appearance of the contracting parties in the presence of the
solemnizing officer. This rules out proxy marriages.
(2) The declaration that they declare in some manner that they take each
other as H & W. This provision is worded broadly. There is no set formula for
the declaration, no particular words are required. It does not even have to be
oral provided that there is sufficient manifiestation of their will that they take
each other as H & W.
(3) Presence of at least 2 witnesses of legal age. Some say that the absence
of this 3rd requisite renders the marriage void. Others say it is only an
irregularity.

Tolentino: It is not necessary to the validity of the marriage that the

contracting parties should recite precisely the words of the statute. It is
enough that the words employed evidence mutual consent.
Failure to Sign or Issue Certificate.-- The certificate is merely of evidentiary
value, and failure to sign the same does not render the marriage a nullity. The
consent can be proved by other competent evidence, such as the testimony
of the solemnizing officer, of the parties themselves, of the witnesses to the
marriage, and of others present at the wedding.
Martinez v. Tan [12 P 731] -- F: Pltff. Rosalia Martinez commenced this action
for the cancellation of the cert. of marriage and for damages. Pltff. claimed
that what took place before the justice of the peace did not constitute a legal
marriage under Gen. Orders No. 68, Sec. 6, "No particular form for the
ceremony of marriage is required, but the parties must declare, in the
presence of the person solemnizing the marriage, that they take each other
as husband and wife." CFI found for def.
HELD: The parties addressed a signed petition to the justice of the peace
stating that they had agreed to marry, and asking the justice of the peace to
marry them. Before the justice of the peace, they stated under oath that they
ratified the contents of their petition and insisted on what they asked for. This
statement was signed by them, in the presence of witnesses that they
produced. A certificate was then made out by the justice of the peace, signed
by him and the witnesses, stating the parties had been married by him. Both
the parties knew the contents of the document w/c they signed. Under the
circumstances, what took place before the justice of the peace amounted to a
marriage.
(not in Balane's outline)
Art. 8. The marriage shall be solemnized publicly in the chambers of the
judge or in open court, in the church, chapel or temple, or in the office of the
consul-general, consul or vice-consul, as the case may be, and not elsewhere,
except in cases of marriages contracted at the point of death or in remote
places in accordance with Article 29 of this Code, or where both of the parties
request the solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn statement of
that effect.
Sempio-Dy: This provision is only directory, not mandatory, so that noncompliance therewith will not invalidate the marriage.
SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)] - The mere fact that

the marriage took place on a Sunday also would not necessarily vitiate the
marriage on the ground that it constitutes a violation of the requirement that
the marriage shall be solemnized publicly in the office of the judge in open
court.

3. Legal Capacity (an essential requisite.)-- Art. 2 par. 1

Art. 2. No marriage shall be valid, unless these essential requisites are
present:
(1) Legal capacity of the contracting parties who must be a male and a
female; xxx
a. Age.-- Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39
Art. 5. Any male or female of the age of eighteen years or upwards not under
any of the impediments mentioned in Articles 37 and 38, may contract
marriage.
Tolentino: Age of Consent.-- The age for each party provided in Art. 5 is
generally known as the "age of consent." for marriage. Eighteen yrs is the
"age of consent" bec. below this age, a party to a marriage cannot give a
binding valid consent.
Balane: 18 yrs. old is an absolute minimum.
Tolentino: Age of Legal Capacity.-- For a perfect consent that would result in a
valid binding marriage, the parties should be 21 yrs. of age. The age of 21 is,
thus, the "age of legal capacity" to marry.
Effect of Penal Law.-- Under Art. 344, RPC, the marriage of the offender w/ the
offended party shall extinguish the criminal action or remit the penalty
already imposed upon him.
Q: If the victim of the crimes of rape, seduction, adbuction, and acts of
lasciviousness happens to be a girl less than 18 yrs. old, can she validly
marry the offender?
A: We believe that she can. It is submitted that the circumstances
contemplated by the RPC are of an exceptional character, and shld be
considered as an exception to the provisions of the FC on the legal capacity
to marry. xxx If merely bec. she is below the age of consent she will not be
permitted to marry the offender, then we will have the absurd case where the
law gives a remedy w/ one and denies it w/ the other hand.
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;
xxx
Balane: There is here an absolute absence of an essential requisite.
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 18 years of age or over but below 21, 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 21, such party freely cohabited with the other and both lived together as
husband and wife;
xxx
Tolentino: Want of Parental Consent.-- The law does not expressly authorize
the parent whose consent is required, to ratify the marriage. xxx We believe
that xxx the ratification by the parent whose consent is wanting must be
recognized as sufficient to validate the marriage, provided such ratification is
made before the party to the M reaches 21 yrs. old. Art. 47, par. 1 recognizes
the right of such parent to ask for the A of the M bef. the child who has
married w/o parental consent reaches the age of 21. This right can be waived.
Besides, if the nullity proceeds from the absence of consent, there is no
juridical reason why such defect cannot be cured by subsequent
confirmation. xxx
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 21; or by the parent or guardian or person having legal charge of
the minor, at any time before such party reached the age of 21;
xxx
Balane: This kind of marriage can be ratified by cohabitation for a reasonable
period of time after the minor reaches the age of 21. Here ratification can set
in even before the prescription sets in.
Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx
b. Relationship.-- Articles 37, 38 par. 1 to 8, 39

Art. 37. Marriages between the following are incestuous and void from the
beginning, whether the 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.
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
xxx
Tolentino: Collateral Blood Relatives.-- Marriages bet. nephews and aunts,
uncles and nieces, and first cousins are prohibited under par. (1). This
prohibition is based on scientific opinion as well as on public opinion. They
are contrary to good morals. Although not conclusive, there is scientific and
expert opinion that, except in rare cases, children of first cousins suffer from
organic defects, and in many instances are idiots, weak-minded, deaf,
nearsighted, etc., in other words, their marriage tends to weaken the race.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx

c. Prior Marriage.-- Articles 35 par. 4, par. 6, 40, 41, 42, 43, 44, 53 & 39
Balane: There are 3 kinds of marriage that are void bec. of a prior marriage:

1. A bigamous or polygamous marriage, not falling under Art. 41.

There are 3 requisites under Art. 41:
a. Absence of the prior spouses for at least 4 consecutive yrs. or at least 2
consecutive yrs. if it falls under Art. 391, NCC.
b. The spouse present has a well-founded belief that the absent spouse was
already dead.
c. The institution by the spouse present of a summary proceeding of
presumptive death of the absent spouse. A declaration by the court of the
presumptive death is of course required.
2. In Art. 40 where the marriage was contracted after a void ab initio
marriage w/c has not been declared void by final judgment.
3. In Art. 53 in case of a subsequent marriage w/c does not comply w/ the
requirements of Art. 52.
In Art. 52, you have to do 3 things:
a. Judgment of annulment or nullity of marriage must be registered in the
appropriate registry.
b. The registration of the partition and distribution of the properties of the
spouses in the appropriate civil registry.
c. The delivery of the common children's presumptive legitime.

Art. 35. The following marriages shall be void from the beginning:
xxx
(4) Those bigamous or polygamous marriages not falling under Article 41;
xxx.
(6) Those subsequent marriages that are void under Article 53.
Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void.
Tolentino: [F]or purposes of remarriage it would be necessary to such void M
to secure a final judgement declaring it null and void from the beginning. W/o
such final judgment, the previous void marriage would constitute an

impediment to the remarriage, and a marriage license may be denied.

xxx This article applies only when a license is to be obtained for a subsequent
marriage.

DOMINGO V. CA [226 SCRA 572 (1993)] - A spouse may petition for the
declaration of nullity of her marriage for a purpose other than her remarriage.
F: Delia Domingo filed a pet. for decl. of nullity of her marriage w/ Roberto
Domingo, on the ground that, unknown to her, he was previously married at
the time of their marriage. She prays that their marriage be declared null and
void and, as a consequence, to declare that she is the exclusive owner of all
properties she acquired during the marriage and to recover them from him.
Roberto moved to dismiss the petition on the ground that the marriage being
void ab initio, the petition for decl. of nullity is unnecessary citing Peo. v.
Aragon and Peo. v. Mendoza. Roberto claims that decl of nullity is necessary
under Art. 40, FC only for the purpose of remarriage. The lower court denied
the motion. CA affirmed the denial.
HELD: The Declaration of nullity of a marriage under Art. 40 may be resorted
to even for a purpose other than remarriage.
Crucial to the proper interpretation of Art. 40 is the position of the word
"solely." xxx. As it is placed, it is meant to qualify "final judgment." Had the
provision been stated as follows: "The absolute nullity of a previous marriage
may be invoked solely for purposes of remarriage...," the word "solely" will
qualify "for purposes of remarriage" and the husband would have been
correct.
That Art. 40 as finally formulated included the significant clause denotes that
such final judgment declaring the previous marriage void need not be
obtained only for purposes of remarriage.
ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an administrative
complaint filed by Atienza for Gross Immorality and Appearance of
Impropriety against J. Brillantes, Presiding Judge of MTC, Mla. It was alleged in
the complaint that Brillantes has been cohabiting w/ Yolanda De Castro (w/
whom Atienza had 2 children) when he (Brillantes) was already married to
one Zenaida Ongkiko w/ whom he has 5 children. xxx Resp. denies having
been married to Ongkiko, although he admits having 5 children w/ her. He
alleges that while he and Ongkiko went through a marriage ceremony, the
same was not valid for lack of marriage license. The second marriage bet. the
two also lacked the required license. He claims that when he married De
Castro in LA, California, he believed, in all GF and for all legal intents and

purposes, that he was single bec. his first marriage was solemnized w/o a
license.
HELD: Under the FC, there must be a judicial decl. of the nullity of a previous
marriage bef. a party thereto can enter into a 2nd marriage. (Art. 40.) Art. 40
is applicable to remarriages entered into after the effectivity of the FC
regardless of the date of the first marriage. Said art. is given "retroactive
effect insofar as it does not prejudice or impair vested or acquired rights in
accordance w/ the NCC or other laws." (Art. 256, FC.) This is particularly true
w/ Art. 40 w/c is a rule of procedure. Resp. has not shown any vested right
that was impaired by the application of Art. 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights
may not preclude their retroactive application to pending actions. The
retroactive application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected. The reason is that as a
general rule no vested right may attach to, nor arise from, procedural laws.

Art. 41. A marriage contracted by any person during the subsistence of a

previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of Article 391 of the
Civil Code, an absence of only 2 years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse.
Article 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances and
his existence has not been known for four years.

Tolentino: The period was reduced in the FC to 2 years in the foregoing cases.
REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of presumptive
death under Art. 41, FC is available only for the purpose of remarriage.
F: Gregorio Nolasco was a seaman. During one of the calls of his ship to
England, he met Janet Monica Parker, a British subject. From that chance
meeting, Janet lived w/ Nolasco on his ship for 6 mos. When Nolasco's
contract expired in 1960, Janet went w/ him in returning home to San Jose,
Antique. In Jan. 1982, Nolasco married Janet in Catholic sites in Antique.
After the marriage, Nolasco obtained another employment contract as a
seaman, leaving his pregnant wife w/ his parents. Sometime, in 1/83, while
working overseas, Nolasco received a letter from his mother informing him
that Janet had already given birth to his son. The letter also informed him
that Janet left Antique after giving birth. xxx
In 88, or 5 yrs. after the disappearance of Janet, Nolasco filed an action for
the decl. of presumptive death of his wife Janet under Art. 41, FC, claiming
that all his efforts to look for her proved fruitless.
xxx The trial court granted the petition. CA affirmed the ruling. Hence this
petition for review.
HELD: 1. A petition to declare an absent spouse presumptively dead may not
be granted in the absence of any allegation that the spouse present will
remarry.
2. There are 4 requisites for the declaration of presumptive death under Art.
41:
1. That the absent spouse has been missing for 4 consecutive years, or 2
consecutive yrs. if the disappearance occurred where there is a danger of
death under the circumstances laid down in Art. 391.
2. That the spouse present wishes to remarry
3. That the spouse present has a well-founded belief that the absentee is
dead.
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.

The Court believes that resp. Nolasco failed to conduct a search for his
missing wife w/ such diligence as to give rise to a "well-founded belief" that
she is dead. The Court considers the investigation allegedly conducted by

Nolasco in his attempt to ascertain the whereabouts of Janet as to sketchy to

form the basis of a reasonable or well-founded belief that she was already
dead. For instance, when he arrived in Antique, instead of seeking the help of
local authorities or of the British Embassy, he secured another seaman's
contract and went to London. We do not consider that walking into a major
city w/ a simple hope of somehow bumping into one particular person there
xxx can be regarded as a reasonable diligent search. The Court also views
Nolasco's claim that Janet declined to give any info. as to her personal
background even after marrying Nolasco as too convenient an excuse to
justify his failure to locate her.
BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a
subsequent marriage while the first marriage is subsisting, the second
marriage as a general rule is void for being bigamous. He who invokes that
the second marriage is voidable for being an exception under Art. 83 of the
NCC has the burden of proving it.
F: Aurelio Camacho married Conseja Velasco in '42. In '62, w/o this marriage
being dissolved, Aurelio married Luisita Camacho in Tokyo. In '67, Aurelio met
Nenita Bienvenido. Aurelio courted and won her and they cohabited until
Aurelio's death in '88. In '82, Aurelio bought a house and lot. In the deed of
sale and in the TCT in his name, he was described as single. In '84, he sold
the said house and lot to Nenita. When Aurelio died, Luisita filed an action to
annul the sale to Nenita alleging that it was in fraud of her as the legitimate
wife of Aurelio. Nenita opposed the action claiming that she was a buyer in
GF. The trial court upheld the sale in favor of Nenita. The CA reversed. Hence,
this petition for review.
HELD: There is no presumption that the marriage bet. Aurelio and Luisita is
valid. As a general rule, under Art. 83, NCC, a subsequent marriage
contracted while the previous one is still subsisting is void. There are
exceptions to this rule but he who is invoking the exception has the burden of
proving the existence of the conditions for the said exception to arise. In the
case at bar, the burden of proof was on Luisita to show that at the time of her
marriage to Aurelio, Aurelio's first wife had been absent for at least 7 yrs and
that he had no news that she was alive. She failed to discharge this burden.
What applies, therefore, is the general rule xxx. Consequently, there is no
basis for holding that the prop. in question was prop. of his conjugal
partnership bet. Luisita and Aurelio bec. there was no partnership in the first
place.

Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of

the absent spouse, unless there is a judgment annulling the previous

marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be
recorded in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is disputed.
Balane: Marriage under Art. 41 is valid unless terminated under Art. 42.
Notice that the law uses the term "terminated" and not annulled. This is bec.
marriage under Art. 41 is a good marriage.
The effect of the affidavit of reappearance is that the subsequent marriage is
terminated unless it is judicially challenged.
Tolentino: If both parties to the subsequent marriage acted in BF (knowing
that the absent spouse is alive), the said marriage is void ab initio under Art.
44.
Q: If only one party has acted in BF, is the M valid?
A: If the spouse who contracted the 2nd M knew that in spite of the absence
of his spouse for the period provided in 41 said absent spouse was alive, his
2nd M shld be considered void as bigamous under 35(4), bec. an essential
element in 41 to make it an exception is wanting.
If such present spouse has acted in GF and the declaration of presumptive
death has been obtained, the BF of the 2nd spouse will not affect the validity
of the M, but the provisions of 43 will operate against him, such as the
revocation of donations by reason of M made to him, of his designation as
beneficiary in any insurance of the innocent spouse, and his disqualification
to inherit from the innocent spouse.
When No Action Taken.-- If the absentee reappears, but no step is taken to
terminate the subsequent M, either by affidavit or by court action, his mere
reappearance, even if made known to the spouses in the 2nd M, will not
terminate such M.
[I]t is incorrect to say that the first M is dissolved by the celebration of the
2nd. It would be more accurate to say that since the 2nd M has been
contracted bec. of a presumption that the former spouse is dead, such
presumption continues in spite of his physical reappearance, and by fiction of
law, he must be regarded as legally an absentee, until the subsequent M is
terminated as provided by law. The result of this is the suspension of the legal
effects of M as to him as long as the 2nd M subsists.

GOMEZ V. LIPANA [38 S 615 (1958)] - Where a husband and his second wife
from whom he concealed his first marriage, acquired properties during their
marriage, the second marriage being void, is subject to collateral attack in
the intestate proceedings instituted by the judicial administratrix for the
forfeiture of the husband's share under Article 1417, Spanish Civil Code (no
longer in force) . "The legal situation arising from these facts is that while
insofar as the second wife was concerned, she having acted in good faith, her
marriage produced civil effects and gave rise, just the same, to the formation
of the conjugal partnership wherein she was entitled to an equal share upon
dissolution." The only JUST AND EQUITABLE solution is to give one-half of the
properties to the second wife, and the other half to the conjugal partnership
of the first marriage.
CONSUEGRA V. GSIS [37 S 315 (1971)] - Where the husband designated his
second family as beneficiaries of his life insurance policy, upon his death,
both his first wife and second family share 50-50 in the benefits. Since the
first marriage has not been dissolved, his wife remains as his legal heir.
Although the second marriage is presumed void, having been contracted
during the subsistence of the first marriage, there is a need for a judicial
declaration of its nullity, which is no longer possible, the death of the
husband having terminated the second conjugal partnership of gains.
Baviera: The court should not have applied Gomez v. Lipana, since there is no
provision in the Civil Code giving effect to a void marriage in good faith.
PEOPLE V. MENDOZA [95 S 845 (1954)] - A subsequent marriage contracted
by any person during the lifetime of his spouse is illegal and void from its
performance, and no judicial decree is necessary to establish its invalidity. A
prosecution for bigamy based on said void marriage will not lie.
PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza
Baviera: As a defense in bigamy, there is no need for judicial declaration of
nullity of a void marriage; as far as determination of property relations is
concerned, there is a need for such judicial declaration for purposes of
remarriage.

Art. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination
shall be considered legitimate, and their custody and support in case of
dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the

case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of the guilty
spouse by a previous marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who
acted in bad faith as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and
testamentary dispositions made by one in favor of the other are revoked by
operation of law.
Tolentino: If the subsequent marriage is not terminated by the subsequent
reappearance or by judicial declaration, but by death, do these effects arise?
A: It is submitted that generally if a subsequent M is dissolved by the death of
either spouse, the effects of dissolution of valid M shall arise. The GF or BF of
either spouse can no longer be raised, bec., as in annullable or voidable M,
the M cannot be questioned except in a direct action for annulment.
But if both parties acted in BF, under 44, the M is void ab initio. In such case,
the validity of the M can be attacked collaterally at any time, and the effects
provided on 44 can be applied even if the dissolution is by death of one of the
spouses.
Art. 53. Either of the former spouses may marry again after complying with
the requirements of the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of
the children's presumptive legitimes shall be recorded in the appropriate civil
registry and registries of property; otherwise, the same shall not affect third

persons.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx
d. Crime.-- Articles 38 par. 9, 39
Art. 38. The following marriages shall be void from the beginning for reasons
of public policy:
xxx
(9) Between parties where one, with the intention to marry the other, killed
that other person's spouse, or his or her own spouse.
Balane: Art. 38 (9) used to be Art. 80 (6) of the NCC. Two changes were
made: (1) the killing must be w/ the intention to marry the other; (2)
conviction is not required, a preponderance of evidence being sufficient.
Tolentino: Killing of Spouse.-- It is submitted that a criminal conviction for the
killing is not necessary to render the marriage void under the FC. The
removal of the requirement by the FC must be taken as deliberate.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx

e. Physical capability.-- Articles 45 par. 5, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
xxx
(5) That either party was physically incapable of consummating the marriage
with the other, and such incapacity continues and appears to be incurable;
xxx
xxx
Balane: Physical Incapacity: Requisites: (1) The incapacity exists at the time
of the celebration of the M; (2) Such incapacity must be permanent (it
continues to the time when the case for annulment is being tried) and
incurable ; (3) It must be unknown to the other contracting party; (4) the

other spouse must not himself/ herself be impotent.

This kind of marriage cannot be ratified by ratification.
Tolentino: xxx The physical incapacity referred to by the law as a ground for A
of M, is impotence [impotentia copulandi/ coeundi as distinguished from
impotentia generandi (sterility)], or that physical condition of the H or the W
in w/c sexual intercourse w/ a normal person of the opposite sex is
impossible.
Impotence refers to lack of power to copulate, the absence of the functional
capacity for the sexual act. The defect must be lasting to be a ground for
annulment. The test of impotence is not the capacity to reproduce, but the
capacity to copulate. (Sarao v. Gueverra.)
The refusal of the wife to be examined does not create the presumption of
her impotency bec. Filipino girls are inherently shy and bashful. The trial court
must order the physical examination of the girl, bec. w/o proof of impotency,
she is presumed to be potent. To order her to submit to a physical
examination does not infringe on her constitutional right against selfincrimination (Sempio-Dy citing Jimenez v. Canizares, Aug. 31, 1960.)

Triennial Cohabitation.-- This doctine provides that if the wife be a virgin and
apt after 3 yrs. of cohabitation, the H will be presumed to be impotent, and
the burden will be upon him to overcome the presumption and does not
prevent impotency to be proved by another proper evidence.
Balane: Some commentators say that this is disputable presumption is
applicable in our jurisdiction.
Tolentino: Action Barred.-- The action on this ground is barred in the following
cases: (1) If the other party had knowledge of the incurable impotence bef.
the M, bec. this would imply that he renounces copulation, w/c is a personal
right; (2) If both spouses are impotent, and such impotence existed bef. the
M, continues, and appears incurable, bec. in this case an impotent pltff could
not have expected copulation w/ the other spouse.
Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured
party, within five years after the marriage.
f. Psychological Incapacity.-- Articles 36, 39

Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. (As amended by E.O. No. 227)
Sempio-Dy: Provision is Taken from Canon Law.-- Par. 3 of Can 1095 of the
New Code of Canon Law provides that:
"Matrimonial Consent
The following are incapable of contracting marriage:
xxx
xxx
3. Those who, because of causes of a psychological nature, are unable to
assume the essential obligations of marriage.
The Committee decided to adopt par. 3 of the New Code of Canon Law as a
ground for the declaration of nullity of marriage for the following reasons: (1)
As a substitute for divorce; (2) As a solution to the problem of Churchannulled marriages; (3) As an additional remedy to parties who are
imprisoned by a marriage that exists in name only as they have long
separated bec. of the inability of one of them to perform the essential
obligations of marriage.
Psychological Incapacity Distinguished from Vice of Consent.-- Psychological
incapacity is not a question of defective consent but a question of fulfillment
of a valid consent.
Psychological Incapacity Distinguished from Insanity.-- Mental incapacity or
insanity of some kind, like physical incapacity, is a vice of consent, while
psychological incapacity is not a species of vice of consent.
Q: Why Were No Examples of Psychological Incapacity Given in this Article?
A: The Committee did not give any examples of psychological incapacity for
fear that the giving of examples would limit the applicability of the provisions
under the principle of ejusdem generis. Rather, the Committee would like the
judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological
disciplines, and by decisions of Church tribunals w/c, although not binding on
the civil courts, may be given persuasive effect since the provision was taken
from Canon Law.
Q: Is the Psychologically Incapacitated Person Disqualified from Marrying
Again?

A: The Committee believes that there is no need to disqualify the

psychologically incapacitated from contracting another marriage bec. the fact
of his psychological incapacity for marriage would be revealed anyway when
he applies for a marriage licence for the 2nd marriage, and the other party is
thus placed on guard to conduct discreet investigation about the matter.
General Characteristics of term "Psychological Incapacity": It must exhibit
gravity, antecedence and incurability: (1) Gravity, if the subject cannot carry
out the normal and ordinary duties of marriage and family shouldered by any
average couple existing under ordinary circumstances of life and work; (2)
antecedence, if the roots of the trouble can be traced to the history of the
subject before the marriage although its overt manifestation appear only
after the wedding; and (3) incurability, if treatments required exceed the
ordinary means of the subject, or involve time and expense beyond the reach
of the subject.
Q: Who can File the Action to Declare the Marriage Void?
A: Either party, i.e., even the psychologically incapacitated can file the action.
Q: What is the Status of the Children under this Article?
A: The children conceived or born before the decree of nullity of marriage are
considered legitimate (Art. 54.)
SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of "psychological incapacity"
confined to the most serious cases of personality disorders demonstrative of
insensitivity or inability to give meaning and significance to the marriage.
F: On 9/20/86, Leouel Santos and Julia Rosario Bedia exchanged vows bef. a
mun. trial judge of Iloilo City. They lived w/ the wife's parents. One yr. later, a
child was born of their marriage. Quarrels marred the marriage bec. of
frequent interference by Julia's parents. On 5/18/88, Julia left for the US to
work as a nurse despite Leouel's pleas. For the first time in 7 mos. Julia called
him up by long distance promising to return home once her contract expires
in 1/89. She never did. When Leouel was in the US in 1990 to undergo a
training program under the auspices of the AFP, he tried to locate Julia, but to
no avail. Hence this action in Negros Oriental, under Art. 36, FC. Summons
was served by publication. Julia opposed the complaint, claiming it was
Leouel who had been irresponsible and incompetent. But she filed a
manifestation stating she would neither appear nor submit evidence. From an
order of the lower court dismissing the complaint for lack of merit, and the CA
affirming said order, Leouel filed this petition for certiorari.
HELD: It shld be obvious, looking at all the disquisitions, including, and most
importantly, the deliberations of the FC Revision Committee itself, that the

use of the phrase "psychological incapacity" in Art. 36 has not been meant to
comprehend all such possible cases of pscyhoses as, likewise mentioned by
some ecclesiastical authorities, extremely law intelligence, immaturity, and
like circumstances. xxx Art. 36 cannot be taken and construed independently
of, but must stand in conjunction w/, existing precepts in our marriage law.
Thus correlated, psychological incapacity should refer to no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of
the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage w/, as so expressed by Art. 68, FC
include their mutual obligations to live together, observe love, respect and
fidelity and render help and support. (Balane: This is a tentative definition of
psychological incapacity.) There is hardly any doubt that the intendment of
the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage.
This psychologic condition must exist at the time the marriage is celebrated.
xxx.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. However, in the case of marriages celebrated
before the effectivity of this Code and falling under Article 36, such action or
defense shall prescribe in 10 years after this Code shall have taken effect. (As
amended by E.O. No. 227)
Tolentino: Retroactivity of Art. 36.-- By providing for a 10-yr prescriptive
period for marriages of this nature solemnized bef. the effectivity of the FC,
the latter has actually given a retroactive effect to the present article.
We submit that this is a juridical mistake. It is like an ex post facto provision
translated into the filed of civil law. It contravenes the provisions of Art. 255
w/c allows retroactivity of the FC provisions only when it does not impair or
prejudice vested or acquired rights.

g. Disease.-- Articles 45 par. 6, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
xxx
(6) That either party was afflicted with a sexually-transmissible diseases
found to be serious and appears to be incurable.

Balane: Sexually-Transmissible Disease.-- Its requisites are: (1) The disease

must be sexually transmisible; (2) The disease is found to be serious; (3) It
must be apparently incurable; (4) The STD must exist at the time of the M; (5)
It was unknown to the other party when the M was solemnized; and (6) the
other party must himself/ herself be free from STD.
A marriage were either party was afflicted w/ STD may not be ratified by
cohabitation. Cohabitation here may be suicidal. Take note that there are two
voidable marriages that cannot be ratified by ratification: (1) voidable
marriage bec. of impotence (here, there will be contradiction in terms; how
can you cohabit if you are impotent?); (2) voidable marriage bec. of STD.
Tolentino: The reason for this cause for A is the danger to the health of the
other spouse and offsprings, giving rise to possibility of avoidance of sexual
relations, and the failure to attain one of the purpose of M, that is, the
procreation of children and raising of a family.
Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured
party, within five years after the marriage.

4. Consent (an essential requisite).-- Art. 2 par. 2

Art. 2. No marriage shall be valid, unless these essential requisites are
present:
xxx
(1) Consent freely given in the presence of the solemnizing officer.
Tolentino: Mutual Consent.-- Such consent must be real, in the sense that it is
not vitiated by mistake, duress, or fraud. It must also be conscious or
intelligent.
Effect of Mistake.-- Mistake as to the nature and legal consequences of the
ceremony or as to the identity or the person of one of the parties, renders the
marriage void for lack of consent [see Art. 35(5).] But a marriage is not
invalidated by mistake as to rank, fortune, character or health, of one of the
parties.

a. Insanity.-- Articles 45 par. 2, 47 par. 2

Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
xxx
(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
xxx
Party of Unsound Mind.-- The test of unsoundness of mind is w/n the party at
the time of the M was capable of understanding the nature and consequences
of the M. xxx
Insanity must exist at the time of the M, to avoid it.
Somnambulism has the same effect as insanity. (Sanchez Roman.)
Burden of Proof.-- The presumption of the law is generally in favor of sanity,
and he who alleges the insanity of another has the burden of proving it. But
once general insanity is proved to exist, it is presumed to continue; and if a
recovery or a lucid interval is alleged, the burden to prove such allegation is
on the person making it.
Ratification.-- This Art., in par. 2, gives the right of action to annul to the
insane spouse and provides for ratification after regaining reason. No right of
action is given to the sane spouse; this is based on the assumption that he
knew of the insanity of the other party and is placed in estoppel. But if he did
not know of such insanity at the time of the M, he is given a right of action
under Art. 47, par. 2, at any time before the death of the insane spouse.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who
had no knowledge of the other's insanity or by any relative or guardian or
person having legal charge of the insane at any time before the death of
either party, or by the insane spouse during a lucid interval or after regaining
sanity;
xxx
Tolentino: Where the sane spouse knew of the insanity of the other, he is

estopped to seek annulment where he has lived w/ the wife claimed to have
been insane for several years and children have been born to them.
b. Fraud.-- Articles 45 par. 3, 46, 47 par. 3
Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
xxx
(3) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
xxx
Toleration: Marriage through Fraud.-- The FC limits the cases w/c would
constitute fraud sufficient for annulment of M to those enumerated in Art. 46.
Bec. of the enumeration, w/c must be considered as restrictive, no other case
of fraud may be admitted.

Art. 46. Any of the following circumstances shall constitute fraud referred to
in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other
party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature,
existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage.
Tolentino:
Conviction of Crime: Requisites: (1) The crime involves moral turpitude and
(2) There has been a conviction.
Balane: To find what crimes involve moral turpitude, you go by decisions of
the SC. Crimes against property are generally considered crimes of moral

turpitude.
Tolentino: Concealment of Pregnancy.-- Where a man has had sexual
intercourse w/ his wife before the M, and she is pregnant at the time of M,
although he may not be the author of the pregnancy, the M will not be
annulled. This is based on the theory that there is no fraud, bec. the man
knows his wife to be unchaste, as he was himself a party to her premarital
immorality.
Concealment of Diseases.-- Compared w/ Art. 45 (6):
(1) Under 45 (6), a STD is an independent cause for annulment. Under 46,
concealment of a STD constitutes fraud under par. 3.
(2) Under 45 (6), the STD existing at the time of the M must be found to be
serious and appear to be incurable. Under Art. 46 (3), the STD need not be
serious or incurable. To be aground for A, it must have been "concealed" by
the sick party. It is the fraud that is the ground for A.
This difference has a very impt. consequence. If the disease falls under Art 45
(6), the M is not subject to ratification by continued cohabitation. If the
disease falls under Art. 46 (3), the ground for A is fraud, and the M is ratified
under par. 3 of Art. 45, if the spouse who is well, after knowing of the disease
of the other, continues to cohabit w/ him or her as H & W.
Effect of Cure.-- The recovery or rehabilitation will not bar the action. The
defect of the M is not the disease, addiction or alcoholism itself but the fraud
w/c vitiated the consent of the other party.
Balane: Homosexuality.-- Sexual orientation is not enough. One has to be a
practicing homosexual.
BUCCAT V. BUCCAT [72 P 19] - Where the wife was already 7 months
pregnant, the petition to annul the marriage on the ground of fraud was
denied.
Where there has been no misrepresentation or fraud, that is, when the
husband at the time of the marriage knew that the wife was pregnant, the
marriage cannot be annulled. Here, the child was born less than 3 months
after the celebration of the marriage. We refuse to annul the marriage for the
reason that the woman was at an advance stage of pregnancy at the time of
the marriage and such condition must have been patent to the husband.

ANAYA V. PALAROAN [36 S 97] - F: Aurora Anaya prayed for the annulment of
her marriage w/ Fernando Palaraon on the ground of fraud in obtaining her

consent-- having learned that several mos. prior to their marriage, Fernando
had pre-marital relationship w/ a close relative of his. According to her the
"non-divulgement to her of such pre-marital secret" constituted fraud in
obtaining her consent w/in the contemplation of no. 4 of Art. 85, NCC.
HELD: The non-disclosure to a wife by her husband of his pre-marital
relationship w/ another woman is not a ground for annulment of marriage. For
fraud as a vice of consent in marriage, w/c may be a cause for its annulment,
comes under Art. 85, No. 4 of the NCC xxx. This fraud, as vice of consent, is
limited exclusively by law to those kinds or species of fraud enumerated in
Art. 86 xxx.
The intention of Congress to confine the circumstances that can constitute
fraud as ground for annulment of marriage to the 3 cases therein may be
deduced from the fact that, of all the causes of nullity enumerated in Art. 85,
fraud is the only one given special treatment in a subsequent article w/in the
chapter on void and voidable marriages. It its intention were otherwise,
Congress would have stopped at Art. 85, for anyway, fraud in general is
already mentioned therein as a cause for annulment. xxx.
BAVIERA CASES:
JIMENEZ V. CANIZARES [109 P 273 (1960)] - Where the husband filed a
complaint for annulment of marriage on the ground of physical incapacity of
his wife for copulation, her genitals being too small for penetration, the sole
testimony of the husband as to the incapacity of his wife is not sufficient
basis for annulment. The presumption is in favor of potency. Hence, the court
ordered the wife to submit to a physical examination. A physical examination
in this case is not self- incriminating, since she is not being charged of any
crime.
PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)] - A marriage may be annulled
even after one of the spouses has been convicted of adultery in violation of
that marriage.
Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(3) For causes mentioned in number 3 of Article 45, by the injured party,
within five years after discovery of the fraud;
xxx
Balane: This kind of marriage can be ratified by cohabitation for a reasonable
period w/ may set in even before the 5-yr. prescriptive period has expired.

c. Force, Intimidation, Undue Influence.-- Articles 45 par. 4, 47 par. 4

Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
xxx
(4) That the consent of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband and wife;
xxx
Force, Intimidation and Undue Influence.-- The definitions of "violence,"
"intimidation," and "undue influence" are found in Arts. 1335 to 1337 of the
NCC
Art. 1335. There is violence when in order to wrest consent, serious or
irresistible force is employed.
There is intimidation when one of the contracting parties is compelled by a
reasonable and well-grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the
person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is
just or legal, does not vitiate consent.
Art. 1336. Violence or intimidation shall annul the obligation, although it may
have been employed by a third person who did not take part in the contract.
Art. 1337. There is undue influence when a person takes improper advantage
of his power over the will of another, depriving the latter of a reasonable
freedom of choice. The following circumstances shall be considered: the
confidential, family, spiritual and other relations between the parties, or the
fact that the person alleged to have been unduly influenced was suffering
from mental weakness, or was ignorant or in financial distress.
Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(4) For causes mentioned in number 4 of Article 45, by the injured party,
within five years from the time the force, intimidation or undue influence

disappeared or ceased;
xxx
d. Mistake as to Identity.-- Articles 35 par. 5, 39
Art. 35. The following marriages shall be void from the beginning:
xxx
(5) Those contracted through mistake of one contracting party as to the
identity of the other; xxx
xxx
Tolentino: Mistake as to Identity.-- This refers to mistake as to the person
himself, involving a substitution of another person for the party who is
desired in marriage, w/o the knowledge of the other contracting party.
Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. xxx
5. Authority of Solemnizing Officer.-- Articles 3 par. 1, 4 par. 1, 7, 10, 31, 32,
35 par. 2
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
xxx
Tolentino: Authority of the solemnizing officer.-- Q: Would a marriage void for
want of authority of the solemnizing officer entered into under the NCC, now
be considered validated under the FC, if either or both parties believed in
good faith that such officer had the legal authority to solemnize the
marriage?
A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar
as it does not prejudice or impair vested or acquired rights in accordance w/
the NCC or other laws." The present FC may be given a curative or remedial
effect and validate the marriage in question.
Art. 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).
xxx
Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly
authorized by his church or religious sect and registered with the civil
registrar general, acting within the limits of the written authority granted him
by his church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer's church or religious
sect;
(3) Any ship captain or airplane chief only in the cases mentioned in Article
31;
(4) Any military commander of a unit to which a chaplain is assigned, in the
absence of the latter, during a military operation, likewise only in the cases
mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul in the case provided in Article
10.
NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b)
(1) (xviii)], mayors have again been given the authority to solemnize
marriages.

Sempio-Dy: Members of the Judiciary.-- The jurisdiction of the members of the

SC, the CA, the Sandiganbayan, and the Court of Tax Appeals to solemnize
mariages is the entire country, w/c is their territorial jurisdiction.
The jurisdiction of the RTC judges and judges of MTCs to solemnize marriages
is their territorial jurisdiction as defined by the SC.
Tolentino: Requisites for Authority of Priest or Minister: (1) He must be
registered in the office of the Civ. Registrar General; (2) he must have a
written authority to solemnize marriages given by his church or religious sect;
(3) he must act w/in the limits of such authority; and (4) at least one of the
contracting parties must belong to the solemnizing officer's church or
religious sect.
PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)] - A marriage performed
by a minister whose authority to solemnize a marriage has expired is void ab
initio.
Ship Captains, Airplane Chiefs, Military Commanders.-- These officers can
solemnize only one kind of marriage-- a marriage in articulo mortis or at the
point of death.
Art. 31. A marriage in articulo mortis between passengers or crew members

may also be solemnized by a ship captain or by an airplane pilot not only

while the ship is at sea or the plane is in flight, but also during stopovers at
ports of call.
Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who
may not be the captain or chief. We believe the controlling designation is
"airplane chief." It is the head of the crew and who has the command of the
airplane who must be deemed to have been given by law the authority to
solemnize marriages.
Art. 32. A military commander of a unit, who is a commissioned officer, shall
likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of military operations, whether members of the
armed forces or civilians.
Consul-generals, Consuls, Vice-consuls.-- An ambassador, even if he is the
head of a diplomatic mission, has no authority to solemnize marriage. The
reason for this is that, while an amabassador takes care of the relations bet.
the Phils. and the country to w/c he is assigned, the consuls take care of
matters affecting Filipino citizens in the area of their responsibility.
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a
consul-general, consul or vice-consul of the Republic of the Philippines.
The issuance of the marriage license and the duties of the local civil registrar
and of the solemnizing officer with regard to the celebration of marriage shall
be performed by said consular official.

Art. 35. The following marriages shall be void from the beginning:
xxx
(2) Those solemnized by any person not legally authorized to perform
marriages unless church marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
authority to do so;
xxx

6. Marriage License (a formal requisite.)-- Articles 3 par. 2, 4 pars 1 & 3, 35

par. 3, 9 to 21 with exceptions in 27 to 34

Art. 3. The formal requisites of marriage are:

xxx
(2) A valid marriage licence except in the cases provided for in Chapter 2 of
this Title; xxx
xxx
Art. 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).
xxx
An irregularity in the formal requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable.
COSCA V. PALAYPAYON, JR. [237 S 249 (1994)]
F: Complainants allege that respondent judge solemnized marriages even w/o
the requisite marriage license. Thus, several couples were able to get married
by the simple expedient of paying the marriage fees to resp. Baroy, Clerk of
Court II of the Mun. Trial Court of Tinambac, Camarines Sur, despite the
absence of a marriage license. xxx. As a consequence, their marriage
contracts did not reflect any marriage license. In addition, resp. Judge did not
sign their marriage contracts and did not indicate the date of solemnization
the reason being that he allegedly had to wait for the marriage license to be
submitted by the parties w/c was usually several days after the ceremony.
Indubitably, the marriage contracts were not filed w/ the local civil registrar.
HELD: On the charge regarding illegal marriages, the FC pertinently provides
that the formal requisites of marriage, inter alia, a valid marriage license
except in the cases provided for therein. Complementarily, it declares that
the absence of any of the essential or formal requisites shall generally render
the marriage void ab initio and that, while an irregularity in the formal
requisites shall not affect the validity of the marriage, the party or parties
responsible for the irregularity shall be civilly, criminally and administratively
liable.

Art. 35. The following marriages shall be void from the beginning:
xxx

(3) Those solemnized without license, except those falling under Article 41;
xxx
REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil
Registrar that the alleged marriage license could not be found in his records
is adequate to prove that no license was issued.
F: Angelina Castro and Edwin Cardenas were married in a civil ceremony in
the city court of Pasay w/o the knowledge of Angelina's parents. The marriage
lasted only for a couple of mos. Angelina decided to migrate to the US but
wanted to put in order her marital status bef. leaving. She consulted a lawyer
regarding the possible annulment of her marriage. It was discovered that
there was no license issued to Cardenas by the Civil Registrar of Pasig. The
Civil Registrar certified that the alleged license no. does not appear from the
records. The trial court denied the petition. The CA reversed the trial court,
hence, this petition for review on certiorari.
HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R 132,
ROC. The certification of due search and inability to find, issued by the civil
registrar of Pasig, enjoys probative value, he being the officer charged under
the law to keep a record of all data relative to the issuance of a marriage
license. Unaccompanied by any circumstance of suspicion, and pursuant to
Sec. 29, R 132 of ROC, a cert. of due search and inability to find sufficiently
proved that his office did not issue the marriage license. There being no
marriage license, the marriage of Angelina and Edwin is void ab initio.

(1) Where to apply -- Arts 9-10

.
Art. 9. A marriage license shall be issued by the local civil registrar of the city
or municipality where either contracting party habitually resides, except in
marriages where no license is required in accordance with Chapter 2 of this
Title.
Sempio-Dy: The solemnizing officer is not required to investigate w/n the
license was issued in the place required by law. (Peo. v. Jansen 54 P 176.)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a
consul- general, consul or vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of the local civil registrar and
of the solemnizing officer with regard to the celebration of marriage shall be
performed by said consular official.

Sempio-Dy: By "Filipinos citizens abroad" may mean Filipinos permanently

residing abroad or who are mere transients or vacationists there.
Consuls on home assignment in the Phils. cannot solemnize marriages.
Salonga, Private International Law II, 1995 ed. (hereinafter Salonga): Consular
Marriages.-- xxx The prevailing rule is that a marriage performed before a
consular or diplomatic agent empowered by a sending State to officiate
marriages is valid in the receiving State only if the latter has agreed to his
acting in that capacity.
(2) Requirements for issuance
(a) application -- Art. 11
Art. 11. Where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with the proper local
civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having
charge, in case the contracting party has neither father nor mother and is
under the age of 21 years.
The applicants, their parents or guardians shall not be required to exhibit
their residence certificates in any formality in connection with the securing of
the marriage license.
(b) Proof of capacity -- Articles 12-14; Art. 21
Art. 12. The local civil registrar, upon receiving such application, shall require

the presentation of the original birth certificates or, in default thereof, the
baptismal certificates of the contracting parties or copies of such documents
duly attested by the persons having custody of the originals. These
certificates or certified copies of the documents required by this Article need
not be sworn to and shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the certificate shall be
sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of
the original, or if it is shown by an affidavit of such party or of any other
person that such birth or baptismal certificate has not been received though
the same has been required of the person having custody thereof at least 15
days prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn up and sworn
to before the local civil registrar concerned or any public official authorized to
administer oaths. Such instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name, residence and citizenship
of such contracting party and of his or her parents, if known, and the place
and date of birth of such party. The nearest of kin of the contracting parties
shall be preferred as witnesses, or in their default, persons of good reputation
in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the
parents of the contracting parties appear personally before the local civil
registrar concerned and swear to the correctness of the lawful age of said
parties, as stated in the application, or when the local civil registrar shall, by
merely looking at the applicants upon their personally appearing before him,
be convinced that either or both of them have the required age.
Tolentino: Documents Required.-- To prove the ages of the contracting parties,
the ff. may be required by the local civ. registrar:
(1) Original or certified copies of birth certificates.
(2) In the absence of birth certs., the original or certified copies of baptismal
certs.
(3) In the absence of the above documents, the party may present his
residence cert. or the affidavit of 2 witnesses.
When Proof of Age Dispensed With:
(1) When the parents of the contracting parties appear personally bef. the
local civ. reg. and swear to the correctness of their ages;
(2) When the local civ. reg. is convinced, by merely looking at the parties that

they have the required ages;

(3) When a party has formerly married, but is widows, or divorced, or the
previous marriage has been invalidated. (see art. 13.)
Art. 13. In case either of the contracting parties has been previously married,
the applicant shall be required to furnish, instead of the birth or baptismal
certificate required in the last preceding article, the death certificate of the
deceased spouse or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual civil status and
the name and date of death of the deceased persons.
Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen and
twenty-one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such consent shall be in writing by
the interested party, who personally appears before the proper local civil
registrar, or in the form of an affidavit made in the presence of two witnesses
and attested before any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications for marriage
license, and the affidavit, if one is executed instead, shall be attached to said
application.
Tolentino: Reason for parental consent.-- The parental consent of parties
below 21 years is required in order to supplement the natural incapacity of
such parties, whose inexperience may lead them to a union w/c is difficult or
prejudicial for them.
Effect of Previous Marriage.-- A person below 21 who has been previously
married, but whose marriage has terminated by the death of the spouse does
not need parental consent to remarry even if he or she is still below 21.
Effect of RA 6809.-- The reduction of the age of majority and emancipation
does not affect the requirement of the present article, w/ respect to persons
who have living parents.
Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not
otherwise incapacitated, he cannot be placed under guardianship and would
have nobody "having legal charge" of him. Whose consent will be required?
A: In view of the impossibility of compliance, it seems that "parental consent"
need not be secured.

Remarriage of Widowed Mother.-- A widowed mother who has remarried

retains her parental authority over her children (art. 212, FC), and thus, her
consent is still required for the marriage of a child below 21 yrs. old.
Specific Consent Required.-- The better view xxx is that the consent must
refer to marriage w/ a particular person. The law intends that the child should
benefit from the experience of the parent, and that the latter save the former
from what may be an unwise union.
Form of Consent.-- It must be in writing. It may be made in either of 2 ways:
(1) by the parent personally appearing bef. the local civ. reg. and signing the
instrument of consent, or (2) by executing an affidavit of consent in the
presence of 2 witnesses w/o having to appear bef. the local civ. reg.
Revocation of Consent.-- Once consent has been given and the proper license
issued, it should be irrevocable except for cause. To allow its revocation, w/o
any reason is to subject the effectivity of the license issued by the govt to the
whim and caprice of the parent. xxx We believe, however, that revocation for
just cause must be made known to the parties and to the local civ. reg. to
have any effect.
Effect of Want of Consent.-- Aside from the civil sanction of nullity of the
marriage, there is also a penal sanction. If the parties knowingly entered into
the marriage w/o parental consent, or the solemnizing officer has celebrated
it knowing of such absence when it was needed, they will become subject to
the penal consequences imposed by Act No. 3613 and the RPC.
EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] - Parental consent may be
made expressly or impliedly, such as by the presence of the mother during
the marriage ceremony, without any objections.

Art. 21. When either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be
obtained, to submit a certificate of legal capacity to contract marriage, issued
by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the
certificate of legal capacity herein required, submit an affidavit stating the
circumstances showing such capacity to contract marriage.
Tolentino: The legal capacity of a foreigner to marry is recognized by our laws
as governed by the law of the country of w/c he is a citizen. This is in
accordance w/ the nationality theory of personal laws w/c is followed by the
Phils.

Stateless Persons and Refugees.-- Q: What is the legal capacity of a stateless

person?
A: Having no personal law of his own, since he owes no allegiance to any
particular country, his legal capacity should be determined by the laws of the
Phils. under w/c he temporarily enjoys protection. The provisions of the FC
apply to him.
Salonga: The net effect of Art. 21 is to leave it to the Govt of the alien to
decide almost conclusively the question of w/n he or she can marry in the
Phils. It is the interpretation of that Govt through its diplomatic or consular
officials, that is controlling, except where the M is bigamous or universally
incestuous. Any abuse of that discretion is a matter w/c the alien must take
up w/ his own Govt.
Q: Suppose, however, that, w/o such a cert., the marriage is solemnized-- is
the marriage valid?
A: Yes. The M shld be considered as valid, assuming that the lack of cert. is
the only defect. It is not one of the void marriages enumerated in the NCC
(now the FC); the cert. of legal capacity is not an essential requisite of
marriage.
(c) Parental advice -- Art. 15
Art. 15. Any contracting party between the age of twenty-one and twenty-five
shall be obliged to ask their parents or guardian for advice upon the intended
marriage. If they do not obtain such advice, or if it be unfavorable, the
marriage license shall not be issued till after three months following the
completing of the publication of the application therefor. A sworn statement
by the contracting parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be attached to the
application for marriage license. Should the parents or guardian refuse to
give any advice, this fact shall be stated in the sworn statement.
Tolentino: Effect of Emancipation.-- The need for parental advice depends on
filial relationship and not on parental authority.
Q: When the child is an orphan over 21 but below 25 yrs. old, he would be
emancipated and cannot be under the authority of a guardian. Who will give
the parental advice in such a case?
A: The solution may be anomalous, but it seems that such advice is
dispensed w/, due to impossibility of compliance.

(d) Marriage Counselling -- Art. 16

Art. 16. In the cases where parental consent or parental advice is needed, the
party or parties concerned shall, in addition to the requirements of the
preceding articles, attach a certificate issued by a priest, imam, or minister
authorized to solemnize marriage under Article 7 of this Code or a marriage
counsellor duly accredited by the proper government agency to the effect
that the contracting parties have undergone marriage counselling. Failure to
attach said certificate of marriage counselling shall suspend that issuance of
the marriage license for a period of three months from the completion of the
publication of the application. Issuance of the marriage license within the
prohibited period shall subject the issuing officer to administrative sanctions
but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental
advice, the other party must be present at the counselling referred to in the
preceding paragraph.
Tolentino: Marriage Conselling.-- Both of the intended spouses are required to
undergo marriage counselling if one or both of them are bet. 18 and 25 yrs.
of age.
Reason for the Requirement.-- It is intended to prepare the youth for entering
into the married state, w/ instructions on the responsibilities of the future
couple to each other, to their children, and to society.

(e) Publication -- Art. 17

Art. 17. The local civil registrar shall prepare a notice which shall contain the
full names and residences of the applicants for marriage license and other
data given in the applications. The notice shall be posted for ten consecutive
days on a bulletin board outside the office of the local civil registrar located in
a conspicuous place within the building and accessible to the general public.
This notice shall request all persons having knowledge of any impediment to
the marriage to advise the local civil registrar thereof. The marriage license
shall be issued after the completion of the period of publication.
(f) Investigation of Impediments -- Art. 18.
Art. 18. In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof and his
findings thereon in the application for marriage license, but shall nonetheless
issue said license after the completion of the period of publication, unless

ordered otherwise by a competent court at his own instance or that of any

interested party. No filing fee shall be charged for the petition nor a
corresponding bond required for the issuance of the order.
(g) Payment of fees -- Art. 19.
Art. 19. The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of the marriage license.
No other sum shall be collected in the nature of a fee or tax of any kind for
the issuance of said license. It shall, however, be issued free of charge to
indigent parties, that is, those who have no visible means of income or whose
income is insufficient for their subsistence, a fact established by their
affidavit, or by their oath before the local civil registrar.
(h) Family Planning certificate -- PD 965
(3) Place where valid -- Art. 20
Art. 20. The license shall be valid in any part of the Philippines for a period of
one hundred twenty days from the date of issue, and shall be deemed
automatically cancelled at the expiration of said period if the contracting
parties have not made use of it. The expiry date shall be stamped in bold
characters on the face of every license issued.
Tolentino: The automatic cancellation of the license is not a mere irregularity
or defect; the license is non-existent. The marriage is void ab initio.
(4) Period of validity -- Art. 20, supra.
(not in Balane's outline)
(5) Duties of the Civil Registrar -- Articles 24-25
Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all interested
parties without any charge in both cases. The documents and affidavits filed
in connection with applications for marriage licenses shall be exempt from
documentary stamp tax.
Art. 25. The local civil registrar concerned shall enter all applications for
marriage licenses filed with him in a registry book strictly in the order in
which the same are received. He shall record in said book the names of the
applicants, the date on which the marriage license was issued, and such
other data as may be necessary.
BAVIERA CASE:
PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official Receipt of the Local Civil

Registrar due to lack of the regular form may be considered as a valid license.
(6) When no license needed -- Articles 27-34
Chapter 2
MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT
Tolentino: Marriages of Exceptional Character.-- It is one on w/c the law
considers of such a nature as to dispense w/ the formal requirement of a
marriage license. The marriages exempted from the requirement of a
marriage license are: (1) marriages in articulo mortis or on the point of death,
(2) marriages in isolated places, or where there are no available means of
transportation, (3) marriages among Muslims or among members of ehtnic
cultural communities, and (4) marriages of those who have lived together as
husband and wife for at least 5 yrs.
Art. 27. In case either or both of the contracting parties are at the point of
death, the marriage may be solemnized without the necessity of a marriage
license and shall remain valid even if the ailing party subsequently survives.
Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil
registrar, the marriage may be solemnized without the necessity of a
marriage license.
Art. 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 a legal
impediment to the marriage.
Art. 30. The original of the affidavit required in the last preceding article,
together with a 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 30 days after the performance of
the marriage.
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 place is in flight, but also during stopovers at
ports of call.

Art. 32. A military commander of a unit, who is a commissioned officer, shall

likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of military operations, whether members of the
armed forces or civilians.
Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage
license, provided that they are solemnized in accordance with their customs,
rites or practices.
Art. 34. No license shall be necessary for the marriage of a man and a woman
who have lived together as husband and wife for at least five years and
without any legal impediment to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any person authorized by
law to administer oaths. The solemnizing officer shall also state under oath
that he ascertained the qualifications of the contracting parties and found no
legal impediment to the marriage.
Tolentino: This art. intends to facilitate and encourage the marriage of
persons who have been living together in a state of concubinage for more
than 5 yrs. The publicity and other attendant inconveniences in securing the
marriage license, might be embarrassing to such persons and deter
them from legalizing their union.
Sempio-Dy: Besides, the marriage of the parties will result in the legitimation
of natural children born to them during their cohabitation.
Note: The fact of absence of legal impediment bet. the parties must be
present at the time of the marriage, not during their 5-yr. cohabitation.

II. EFFECT OF LACK OF REQUISITES

A. 1. Difference in sex.-- lack of it: void
2. Some form of ceremony.-- lack of it: void
3. Legal capacity.-- Lack of it.-- General rule: void
Exception: Age.-- Art. 45 par. 1
Impotence.-- Art. 45 (5), voidable
Disease.-- Art. 45 (6), voidable
4. Lack of consent.-- voidable

Except: Mistake as to identity.-- void [Art. 35 (5)]

5. Authority of solemnizing officer.-- lack of it: void
Except: Art. 45 (1)
6. Marriage License.-- lack of it: void
Exceptions: Articles 27-34, supra.

B. VOID AND VOIDABLE MARRIAGES

Chapter 3
VOID AND VOIDABLE MARRIAGES
Balane: A defective marriage in this country is either void or voidable. A
voidable marriage produces the effect of a valid marriage, until annuled.

Void Marriages
Tolentino: The following marriages are void in spite of their omission from the
enumeration contained in articles 35 to 38: (1) Marriages where intent to
marry is totally wanting (e.g., marriage in jest.); (2) Marriages not solemnized
in accordance w/ law (e.g., marriages by proxy); (3) Marriages bet. persons of
the same sex.
Void and Voidable Marriages Distinguished.-- Fundamental distinction-- A void
marriage is deemed never to have taken place at all, while a voidable or
annullable marriage is considered valid and subsisting until it is set aside by a
competent court. The following distinctions arise from this general difference:
(1) A void M can be attacked collaterally, while a voidable M can be attacked
only in a direct proc. for annulment; (2) A void M may be questioned even
after the death of one of the parties, while a voidable M can no longer be
attacked after one of the parties is dead; (3) A void M cannot be ratified or
confirmed, while a voidable M is generally made perfectly valid by ratification
or confirmation, through continued cohabitation; (4) the validity of a void M
may be assailed by any one if the question becomes material, while an
annullable M can generally be attacked only by a party to it; and (5) the
action or defense to declare the nullity of a void M generally does not
prescribe, while the action to set aside a voidable M prescribes.
Effect of Void Marriages:
On property Relations.-- A community prop. or conjugal partnership is formed,

and is dissolved and liquidated upon the declaration of nullity, but if either
spouse contracted the marriage in BF, his or her share is forfeited in favor of
the children or the innocent spouse, as the case may be. [see Art. 43(2)]
Status of Children.-- Such children are considered legitimate. (Art. 54.)
Effects of Voidable Marriages.-- A voidable marriage is valid and produces all
its civil effects, until it is set aside by judgment of a competent court in an
action for annulment.
xxx
Under the FC, the rule applicable to marriages void from the beginning
applies to voidable marriages. (see Art. 50, FC. )
As to children born in voidable marriages, the NCC and the FC have the same
rule; the children are legitimate.

Action to Annul Marriage.-- Annulment of M is an action in rem, for it concerns

the status of the parties, and status affects or binds the whole world. The res
is the relation bet. the parties, or their marriage tie.
Annulment and Legal Separation Distinguished: (1) Annulment (A) is caused
by some circumstance existing at the time of the M, while the cause of legal
separation (LS) arises after the celebration of the M; (2) an A of M terminates
the marital bond bet. the parties while LS does not; and (3) A of M, once final,
cannot be set aside so as to restore the marital relation, while LS may be
terminated and marital relations resumed by the reconciliation of the parties.
Ratification of Voidable Marriage.-- The law does not fix a definite period
during w/c this cohabitation shld last in order to constitute ratification. xxx It
is submitted that when the cohabitation has continued for such a length of
time, after the cause of nullity has ceased to exist, as to give rise to a
reasonable inference that the party entitled to bring the action for nullity
prefers to continue w/ the M, there is ratification w/c purges the M of its
original defect.
Ratification refers to the right of action itself; prescription refers only to the
remedy. There can be no remedy where there is no more right of action.
Marriages Not Subject to Ratification (the law does not provide for their
ratification):
(1) Where one of the spouses is incurably impotent;
(2) Where one of the spouses has an incurable sexually transmissible disease;

The defect of the M in these 2 cases is not one that merely affects consent.
Ratification cures a defect in consent; it cannot cure a physical defect.
The action to annul in these cases will exist as long as the period of
prescription has not expired.
(3) A marriage where a sane spouse marries an insane spouse w/o the
knowledge of the insanity. Although the insane spouse can ratify the M after
recovering reason, the sane spouse cannot be barred from asking for A even
if he has continued to cohabit w/ the insane spouse after learning of such
insanity.

III. EFFECT OF DEFECTIVE MARRIAGES ON STATUS OF CHILDREN.-- Articles 54,

165
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.
Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code. (referring to Art. 54.)

Balane: General rule: Children of voidable marriage are legitimate.

Children conceived and born of a void marriage are illegitimate. There are
two exceptions (Art. 54):
1. Art. 36
2. Art. 53

IV. PRIMARY PROOF OR EVIDENCE OF MARRIAGE.-- Articles 22, 23

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 marriages 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 settlements, if any, attaching
a copy thereof.
Sempio-Dy: The marriage cert. is not an essential or formal requisite of
marriage w/o w/c the marriage will be void. (Madridejo v. De Leon, 55 P 1.).
An oral marriage is, thus, valid, and failure of a party to sign the marriage
cert. (De Loria v. Felix, 104 P) or the omission of the solemnizing officer to
send a copy of the marriage cert. to the proper local civil registrar (Pugeda v.
Trias, 4 S 49) does not invalidate the marriage.
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 Art. 6 and to send the duplicate and triplicate copies of the
certificate not later than 15 days after the marriage, to the local civil registrar
of the place where the marriage was solemnized. Proper receipts shall be
issued by the local civil registrar to the solemnizing officer transmitting
copies of the marriage certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting party
regarding the solemnization of the marriage in a place other than those
mentioned in Art. 8.
Tolentino: Proof of Marriage.-- The best proof of the marriage is the marriage
certificate. But this is not the only proof. The declaration of one of the parties
to the marriage, as well as of persons who were present at its celebration, are
competent proof of the marriage. Public and open cohabitation as H & W after
the alleged marriage, birth and baptismal certificates of children borne by the
alleged spouses, and a statement of such marriage in subsequent documents
are likewise competent evidence to prove the fact of marriage.
Presumption of Marriage.-- There is a prima facie presumption that a man and
a woman living maritally under the same roof are legally married. The reason
is that such is the common order of society, and if the parties were not what
they hold themselves out as being, they would be living in the constant
violation of decency and law. (Perido v. Perido, 63 S 97, 98.)
Sempio-Dy: Remember that even if no one receives a copy of the marriage

cert., the marriage is still valid. (Jones v. Hortiguela, 64 P 179.)

LORIA V. FELIX [104 P 1 (1958)] - The signing of the marriage contract is a

formal requirement of evidentiary value, the omission of which does not
render the marriage a nullity. "The signing of the marriage contract or
certificate was required by statute simply for the purpose of evidencing the
act and to prevent fraud. No statutory provision or court ruling has been cited
making it an essential requisite - not the formal requirement of evidentiary
value, which we believe it is. The fact of marriage is one thing; the proof by
which it may be established is quite another."
V. ACTION OF ANNULMENT OR DECLARATION OF NULLITY.-- Articles 48 to 52
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.
Tolentino: Effect of Collusion.-- [I]f the parties succeed in obtaining a decree
of annulment by collusion notwithstanding observance of the provisions of
this Art., such decree must be held to be absolutely void if no cause really
existed. It would be against public policy.

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 for in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
BAVIERA CASES:
TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a case
for annulment on the ground of concealment of pregnancy, and the wife
failed to file a responsive pleading, the court referred the case to the fiscal for
investigation. However, the husband refused to show his evidence nor be
interrogated by the fiscal, hence, the court correctly dismissed the complaint
for annulment. The investigation of the fiscal is a prerequisite to the
annulment of marriage where defendant has defaulted.

JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an action
for annulment, and the husband also assailed the validity of the marriage
claiming he was coerced to marry her by her parents and brothers, and filed a
motion for summary judgment supported by affidavits of the plaintiff's father
and brothers to this effect, and the plaintiff also submitted the case for
judgment on the pleadings, the court correctly denied the motion for
summary judgment in view of provisions of the Civil Code expressly
prohibiting the rendition of a decree of annulment of marriage upon a
stipulation of facts or a confession of judgment. The affidavits of the wife's
father and brothers practically amounts to these methods not countenanced
by the Civil Code.
VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)] - (1) The principle of
estoppel cannot apply to defeat a suit for annulment of marriage on the
ground that plaintiff was not of age when he contracted marriage, since the
ages of the contracting parties which require parental consent, cannot be
modified or altered by their joint act or omission or by that of either of them.
(2) Staying with the wife in her residence only on Saturdays and Sundays
merely indicates transient sexual intercourse which is not considered as
cohabitation. This circumstance and the conduct of the man in abandoning
his wife before reaching the age of majority or according to the wife's version,
9 months after attaining legal age, negates the intention on the part of the
man to confirm or ratify a defective marriage by cohabiting and living with
the woman as her husband.

(not in Balane's outline)

Effect of Annulment
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article
43 and by Article 44 shall also apply in the proper cases to marriages which
are declared void ab initio or annulled by final judgment under Articles 40 and
45.
The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of their 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. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership, as the
case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of the guilty
spouse by a previous marriage or, in default of children, the innocent spouse.
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who
acted in bad faith as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and
testamentary dispositions made by one in favor of the other are revoked by
operation of law.
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.
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 18 years of age but below 21, 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 21,
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 and both lived together 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;
(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.
Art. 102. Upon dissolution of the absolute community regime, the following
procedures shall apply:
xxx
(6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into consideration the best
interests of said children.
Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:
xxx
(9) In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into consideration the best
interests of said children.
Art. 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 or 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.
NOTE: The word 'delivered' in par. 1 is wrong according to DLC as it is
violative of Art. 777; it is contrary to principles of succession.
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 their
persons.

Art. 53. Either of the former spouses may marry again after complying with
the requirements of the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.

Art. 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 Art. 53 shall likewise be legitimate.
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.
Art. 53. Either of the former spouses may marry again after complying with
the requirements of the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of
the children's presumptive legitimes shall be recorded in the appropriate civil
registry and registries of property; otherwise, the same shall not affect third
persons.

Tolentino: Effects of the Setting Aside of all Defective Marriages (whether they

are void ab initio, or voidable, or a subsequent marriage terminated upon

reappearance of a spouse presumed to be dead):
(1) There will be a liquidation, partition, and distribution of the properties of
the spouses.
Liquidation involves the inventory of the properties and payment of the
obligations of the spouses and of the marriage.
Partition is the process in w/c the remaining properties will be divided into the
various portions to be allocated to all the parties.
Distribution is the delivery to the spouses and the children, in the proper
cases, of the shares or properties allocated to them respectively in the
partition.
(2) In determining the share of each spouse in the properties of the M, the
properties, or their value, that had been donated in consideration of M by the
innocent spouse to the spouse in BF, shall be revoked by operation of law and
returned to the innocent spouse to become part of his distributable prop.
(3) The children conceived or born bef. the judgment becomes final are
considered legitimate. The judgment shall provide for their custody and
support. Their presumptive legitime from each parent (as if the parent died
and they inherit from him or her on the date of final judgment) shall be
delivered to them in cash, prop. or securities.
(4) The innocent spouse may revoke the designation of the spouse in BF as
beneficiary in the former's life insurance policy.
(5) The spouse in BF shall be disqualified to inherit from the innocent spouse
even under a will or testament.
(6) The conjugal dwelling and the lot on w/c it is built will be given to the
spouse w/ whom the common children choose to remain, unless the parties
agree otherwise.
(7) If both spouses acted in BF, all donations by reason of M from one to the
other, and all testamentary provisions made by one in favor of the other, are
revoked by operation of law.
(8) The judgment, the partition and distribution of the prop. of the spouses,
and the delivery of the children's presumptive legitimes shall be recorded in
the appropriate civil registry.
(9) After all the foregoing, the former spouses are free to marry again;
otherwise, the subsequent M shall be void.

Liability for Damages.-- [I]t is submitted that in an appropriate case, damages

may be recovered by an injured party from another responsible for the nullity
of a void or voidable marriage. The bais of the liability will be the commission
of an unlawful act or BF. Arts. 20 and 21 of the NCC can serve as the legal
basis for an action for damages.

VI. STATUS OF FOREIGN MARRIAGES.-- Art. 26

Art. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country, where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37, 38.
xxx.
Art. 35 (1) - below 18
(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration with the LCR of the ff:
- judgment of annulment or absolute
nullity of the marriage
- partition and distribution of
properties of the spouses
- delivery of the children's presumptive
legitimes
Art. 36 - psychological incapacity
Art. 37 - incestuous marriages
Art. 38 - marriages that are void as against public policy

Balane: If the marriage w/c is solemnized abroad is void under Phil. law, it is
considered void in the Phils.
Exceptions: Art. 35, paragraphs 2 and 3.

Jovito Salonga, Private International Law II, 1995 ed. (hereinafter Salonga):
Philippine Law on Formal Validity.-- Phil. law adheres to the imperative rule: a
marriage formally valid where celebrated is valid elsewhere (the maxim locus
regit actum is applied compulsorily; the law of the place of celebration, the
lex loci celebrationis, is solely decisive.) Par. 1 of Art. 17, NCC embodies the
maxim locus regit actum: "The forms and solemnities of contracts, wills, and
other public instruments, shall be governed by the laws of the country in w/c
they are executed."
xxx To establish a valid foreign marriage, 2 things must be proven, namely,
(1) the existence of the foreign law as a question of fact; and (2) the alleged
foreign marriage by convincing evidence. (Yao Kee v. Sy-Gonzales, supra.)
Marriage by Proxy.-- Proxy marriages, where permitted by the law of the place
where the proxy participates in the marriage ceremony, are entitled to
recognition in countries adhereing to the lex loci celebrationis rule, at least
insofar as formal validity is concerned.
Baviera: Marriage by proxy abroad affects formal requisite only. It can be
argued as valid.
Philippine Law on Substantive Validity.-- W/ reference to marriages celebrated
abroad, Phil. law primarily refers to the law of the place of celebration. xxx
The general rule expressed in the formula "valid where celebrated, valid
everywhere" admits of at least 2 exceptions: (1) in the case of Filipino
nationals who marry abroad before Phil. consular or diplomatic officials; (2) in
the saving clause of Art. 26 par. 1.
xxx Art. 26 par. 1 of the FC is a domestic, internal rule applicable only to
Filipino nationals. However, universally incestuous marriages-- such as those
bet. parents and children or bet. brothers and sisters-- will be considered void
here, whatever may be the nationality of the spouses.
xxx As a general rule, a marriage should be upheld if valid according to the
law of the place of celebration, unless the M itself or the enjoyment of the
incidents of the marital relationship would offend the strongly-held notions of
decency and morality of a State that has a close relationship to the
contracting parties.
Art. 26. xxx
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have

capacity to remarry under Philippine law. (n) (as amended by E.O. 227, dated
July 17, 1987.)
Balane: This is the only instance where we recognized foreign divorce.
Take note that the requirements in Art. 52 need not be complied w/ because
there is no such requirement in Art. 26, par. 2.
Requisites.-- There are four requisites for this Article to apply:
1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad.
3. Divorce must have been obtained by the alien spouse
4. Divorce must capacitate the alien spouse to remarry.
Query: Suppose the foreign spouse was a former Filipino citizen. Does the law
require that the foreign spouse was already a foreigner at the time the
marriage was contracted?
A: There is no Supreme Court ruling on this. But a 1993 DOJ opinion tells us
that Art. 26 does not require that the alien spouse was already a foreigner at
the time of the marriage.
Salonga: Art. 26 par. 2 applies to a situation where the alien spouse was the
one who obtained the divorce decree abroad capacitating him or her to
remarry, in w/c case the Filipino spouse shall likewise have the capacity to
remarry.
Tolentino: This rule seems to place a Filipino citizen on a plane of inequality.
The reason for this is that our law does not allow the Filipino to seek a foreign
divorce, hence, if he obtains one, it is not recognized in the Phils. He is
subject to the Phil. law on status, wherever he goes.

Historical Background of Art. 26, par. 2 (BEAVIERA CASE)

VAN DORN V. ROMILLO [139 S 139 (1985)] - According to Baviera, the second
paragraph of Art. 26 was brought about by the case of Van Dorn v. Romillo,
where the court held that an American husband granted absolute divorce in
his country is estopped from asserting his rights over property allegedly held
in the Philippines as conjugal property by him and his former wife. To
maintain, as the husband does, that under our laws, the wife has to be
considered still married to him and still subject to a wife's obligation under
the Civil Code cannot be just. Petitioner wife should not be obliged to live

together with, observe respect and fidelity, and render support to her
husband. The husband should not continue to be one of her heirs with
possible rights to conjugal property. SHE SHOULD NOT BE DISCRIMINATED
AGAINST IN HER OWN COUNTRY IF THE ENDS OF JUSTICE ARE TO BE SERVED.
TENCHAVEZ V. ESCANO [15 S 355] - supra. (Art. 15, NCC.)

(not in Balane's outline)

MUSLIM CODE- P.D. 1083
Art. 13. (1) Application. The provisions of this Title shall apply to marriage and
divorce wherein both parties are Muslims, or wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or this
Code in any part of the Philippines.
(2) In case of a marriage between a Muslim and non-Muslim, solemnized not
in accordance with Muslim law or this Code (Muslim Code), the Civil Code of
the Philippines shall apply.

Art. 29. (1) (Subsequent Marriage) By divorcee - (1) No woman shall contract
a subsequent marriage unless she has observed an idda of three monthly
courses counted from the date of divorce. However, if she is pregnant at the
time of the divorce, she may remarry only after delivery.
(not in Balane's outline)
PENAL SANCTIONS - ACT 3613, The Marriage Law, Secs. 30-42
Sec. 30-36. Superseded by New Civil Code, Now Title I, FC
Sec. 37. Influencing parties in religious respects. - Any municipal secretary or
clerk of the Municipal Court (now Local Civil Registrar), who directly or
indirectly attempts to influence any contracting party to marry or refrain from
marrying in any church, sect, or religion or before any civil authority, shall be
guilty of a misdemeanor and shall, upon conviction thereof, be punished by
imprisonment for not more than one month and a fine of not more than two
hundred pesos.
Sec. 38. Illegal issuance or refusal of license. - Any municipal secretary (now
Local Civil Registrar) or clerk of the Municipal Court of Manila (Local Civil
Registrar) who issues a marriage license unlawfully or who maliciously

refuses to issue a license to a person entitled thereto or fails to issue the

same within twenty-four hours after the time when, according to law, it was
proper to issue the same, shall be punished by imprisonment for not less than
one month nor more than two years, or by a fine of not less than two hundred
pesos nor more than two thousand pesos.
Sec. 39. Illegal solemnization of marriage. - Any priest or minister solemnizing
marriage without being authorized by the Director of the Philippine National
Library (now Director of National Library) or who, upon solemnizing marriage,
refuses to exhibit his authorization in force when called upon to do so by the
parties or parents, grandparents, guardians, or persons having charge; and
any bishop or officer, priest, or minister of any church, religion or sect the
regulations and practices whereof require banns or publications previous to
the solemnization of a marriage in accordance with section ten (superseded
by Art. 60, New Civil Code, now under Art. 12, EO No. 209, as amended), who
authorizes the immediate solemnization of a marriage that is subsequently
declared illegal; or any officer, priest or minister solemnizing marriage in
violation of the provisions of this act, shall be
punished by imprisonment for not less than one month nor more than two
years, or by a fine of not less than two hundred pesos nor more than two
thousand pesos.
Sec. 40. Marriages in improper places. - Any officer, minister, or priest
solemnizing marriage in a place other than those authorized by this Act, shall
be punished by a fine of not less than twenty five pesos nor more than three
hundred pesos, or both, in the discretion of the court.
Sec. 41. Failure to deliver marriage certificate. - Any officer, priest or minister
failing to deliver to either of the contracting parties one of the copies of the
marriage contract or to forward the other copy to the authorities within the
period fixed by law for said purpose, shall be punished by imprisonment for
not more than one month or by a fine of not more than three hundred pesos,
or both, in the discretion of the court.
Sec. 42. Affidavit on marriage "in articulo mortis." - Any officer, priest, or
minister who, having solemnized a marriage in articulo mortis or any other
marriage of exceptional character, shall fail to comply with the provisions of
Chapter II of this Act (Chapter 2, Title III, New Civil Code, now Title I, Family
Code), shall be punished by imprisonment for not less than one month nor
more than two years, or by a fine of not less than three hundred pesos nor
more than two thousand pesos, nor both, in the discretion of the court.
Sec. 43. Unlawful signboards. - Any person who, not being authorized to
solemnize marriage, shall publicly advertise himself, by means of signs or
placards placed on his residence or office or through the newspapers, as

authorized to solemnize marriage, shall be punished by imprisonment for not

less than one month nor more than two years, or by a fine of not less than
fifty pesos nor more then two thousand pesos, or both, in the discretion of the
court.
Sec. 44. General penal clause. - Any violation of any provision of this Act not
specifically penalized, or of the regulations to be promulgated by the proper
authorities, shall be punished by a fine of not more then two hundred pesos
or by imprisonment for not more than one month, or both, in the discretion of
the court.
Sec. 45. Disqualification of priests and ministers. - Any priest or minister of
the gospel or any denomination, church, sect, or religion convicted of the
violation of any of the provisions of this Act or of any crime involving moral
turpitude, shall, in addition to the penalties incurred in each case, be
disqualified to solemnize marriage for a period of not less than six months
nor more than six years at the discretion of the court. (As amended by Act
No. 4236).
V. LEGAL SEPARATION
Tolentino: Divorce and Its Kinds.-- Divorce is the dissolution or partial
suspension, by law, of the marital relation; the dissolution being termed
divorce from the bond of matrimony, or a vinculo matrimonii; the suspension
being known as divorce from bed and board, or a mensa et thoro. The former
is sometimes also called absolute, and the latter relative divorce.
Legal Separation and Separation of Property.-- In the former, there is a
suspension of common marital life, both as to person and property, while in
the latter, only the property relation is affected, and the spouses may be
actually living together.
Legal Separation and Separation of Spouses.-- Legal Separation (LS) can be
effected only be decree of the court; but the spouses may be separated in
fact w/o any judgment of the court. Under the NCC, any contract for personal
separation between husband and wife shall be void and of no effect. [Art. 221
(1), NCC.] With the repeal of Art. 221, and the omission from the FC of a
similar provision, the rule prior to the NCC is restored, and such agreements
are again valid.
Foreign Divorces.-- A foreign divorce bet. Filipino citizens, sought and decreed
after the effectivity of the NCC, is not entitled to recognition as valid in the
Phils. This is still the rule under the FC.
Baviera case:
TENCHAVEZ V. ESCANO [15 S 355 (1965)] - Where the wife, a Filipina,

deserted her Filipino husband, obtained a divorce in the U.S., married an

American citizen, and later herself became an American citizen, the Filipino
husband is entitled to legal separation conformably to Philippine law and to
damages. (1) A foreign divorce between Filipino citizens, sought and decreed
after the effectivity of the New Civil Code, is not entitled to recognition as
valid in the Philippines, and neither is the marriage contracted with another
party by the divorced consort, subsequenlty to the foreign decree of divorce,
entitled to validity in this country. (2) Invalid divorce entitles innocent spouse
to recover damages (P25,000 as moral damages; basis - 2176). (3) An action
for alienation of affection against the parents of one consort does not lie in
the absence of proof of malice or unworthy motives on their part.
Note: WHAT IS IMPORTANT IS THE CITIZENSHIP AT THE TIME OF MARRIAGE.
Baviera - loophole: supposing the wife became an american citizen first, then
divorced her Filipino husband, would it still constitute as adultery giving rise
to legal separation? [NO]

A. GROUNDS
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
adoption.

Balane: This is an exclusive enumeration.

Observe that some grounds would tend to overlap w/ the grounds for
annulment. In such a case, the aggrived party has the option, either to bring
an action for annulment or for LS.
Paragraph (1).-- Tolentino: The violence must be of a serious degree, but does
not have to amount to an attempt against the life of the the petitioner., w/c is
covered by par. (9). The violence must be repeated, to the extent that
common life w/ def. becomes extremely difficult for the plaintiff.
It is submitted that the repeated physical violence or the grossly abusive
language should be committed only by one spouse and not by both to each
other.
Paragraph (2).-- Tolentino: The physical violence or moral pressure to compel
the plaintiff to change religious or political affiliation need not be repeated. A
single incident would be enough.
Balane: The pressure must be undue. It becomes undue when the other
spouse is deprived of the free exercise of his or her will.
Paragraph (3).-- Tolentino: If both spouses agree that the wife or a daughter
engage in prostitution, neither one should be allowed to obtain LS, on the
principle that a person should come to court w/ clean hands.
Paragraph (4).-- Tolentino: The crime for w/c the def. was convicted is
immaterial.
Paragraph (5).-- Balane: This ground does not have to exist at the time of the
marriage. Distinguish this from Art. 46 (4).
Paragraph (6).-- Balane: Questions.-- (1) Will knowledge of one party that the
other was a lesbian or a homosexual bar the action for LS? (2) Does
homosexuality contemplate sexual orientation or does it contemplate only
homosexual practice.
Baviera - homosexuality refers to practice, not by nature; if by nature, then
Art. 36 will apply.

Tolentino: On pars. 5 & 6.-- These grounds can be reason for actions for LS
only when they come to exist after the celebration of the marriage. If the
defect had existed at the time of the marriage, but the marriage had been
ratified by continued cohabitation or the action to annul has prescribed, it is
submitted that the action for LS may n ot be subsequently brought.
Paragraph (7).-- Tolentino: Would this include a subsequent marriage by a
person after a declaration of presumptive death of the other spouse? It is
submitted that every subsequent marriage, where there is a subsisting prior
marriage, should give the other spouse the right to ask for LS.
Paragraph (8).-- Tolentino: Sexual Infidelity.-- The act of a wife in having
sexual intercourse w/ any other man not her husband will constitute adultery.
On the other hand, concubinage is committed by the husband in three ways:
(1) by maintaining a mistress in the conjugal dwelling: (2) by having sexual
intercourse w/ the other woman under scandalous circumstances; and (3) by
cohabiting w/ her in any other place. xxx To equalize the situation of husband
and wife in this respect, the FC makes "sexual infidelity" sufficient ground for
either to justify the grant of LS.
Sexual Perversion.-- This includes all unusual or abnormal sexual practices
w/c may be offensive to the feelings or sense of decency of either the
husband or the wife. But if the act of sexual perversion is by free mutual
agreement, neither party can ask for LS, bec. they are equally guilty of the
perverse act.
Balane: Sexual Perversion is a flexible concept. It is basically, a cultural thing.
BALANE CASE:
GANDIONCO V. PENARANDA [155 SCRA 725] - A civil action for LS, based on
concubinage, may proceed ahead of, or simultaneously w/, a criminal action
for concubinage, bec. said civil action is not one "to enforce the civil liability
arising from the offense" even if both the civil and criminal actions arise from
or are related to the same offense. xxx
A decree of LS, on the ground of concubinage may be issued upon proof of
preponderance of evidence in the action for LS. No criminal proceeding or
conviction is necessary.

Paragraph (9).-- Tolentino: An attempt against the life of the plaintiff spouse,
as a ground for LS, implies that there is intent to kill. xxx [But] the act against
the life of the plaintiff spouse must be wrongful in order to constitute a
ground for LS.

Baviera: Even if repeated physical violence, this can fall under No. 1.

Paragraph (10).-- Tolentino: Under Art. 101, "the spouse who has left the
conjugal dwelling for a period of three months or has failed within the same
period to give any information as to his or her whereabouts shall be prima
facie presumed to have no intention of returning to the conjugal dwelling.
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 the decree of legal
separation; or
(6) Where the action is barred by prescription.
Balane: There are other grounds that are not found in Art. 56.
(7) Death of either party pendente lite. (Lapuz v. Eufemio, supra.)
Tolentino: LS is a personal right and does not survive death.
(8) Reconciliation pendente lite. (Art. 66 par. 1.)

Paragraph (1).-- Tolentino: Condonation as Defense.-- Condonation is the

forgiveness of a marital offense constituting a ground for LS, and bars the
right to LS.
It may be express or implied. It is express when signified by words or writing,
and it is implied when it may be inferred from the acts of the injured party.
Balane: Condonation is pardon w/c comes after the offense.
MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law specifically provides that
legal separation may be claimed only by the innocent spouse provided the

latter has not condoned or consented to the adultery or concubinage

committed by the other spouse; and plaintiff having condoned and/or
consented IN WRITING to the concubinage committed by the defendant
husband, she is now undeserving of the court's sympathy.
Baveria: The stipulation though void is equivalent to express consent.

Paragraph (2).-- Consent.-- Tolentino: Consent is the agreement or conformity

in advance of the commission of the act w/c would be a gorund for LS.
Paragraph (3).-- Connivance.-- Tolentino: Connivance is distinguished from
consent in that consent is unilateral, or an act of only one spouse.
Connivance implies agreement, express or implied, by both spouses to the
ground for LS.
Paragraph (4).-- Recrimination.-- Tolentino: Recrimination is a countercharge
in a suit for LS that the complainant is also guilty of an offense consituting a
ground for LS. This defense is based on the principle that a person must
come to court w/ clean hands.
Paragraph (5).-- Effect of Collusion.-- Tolentino: Collusion is the agreement
bet. husband and wife for one of them to commit, or to appear to commit or
presented in court as having committed, a matrimonial offense, or to
suppress evidence of a valid defense, for the purpose of enabling the other to
obtain LS.

B. LIMITATION OF ACTION
Art. 57. In action for legal separation shall be filed within five years from the
time of the occurrence of the cause.
Tolentino: The law does not encourage LS, and provides for prescription of the
action even when the offended party has not had knowledge of the cause.
xxx If plaintiff does not come to know of the ground for LS, and 5 yrs. expire
from the date of its occurence, he cannot sue for LS.
Baviera cases:
BROWN V. YAMBAO [54 O.G. 1827 (1957)] - In an action for legal separation
on the ground of adultery filed by the husband, even though the defendant
wife did not interpose the defense of prescription, nevertheless, the courts
can take cognizance thereof, because actions seeking a decree of legal

separation or annulment of marriage, involve public interest, and it is the

policy of our law that no such decree be issued if any legal obstacles thereto
appear upon the record. Also, the husband was guilty of commission of the
same offense by living with another woman.
Baviera: This is an exception the Rules of Court provision that defenses not
raised in the pleadings will not be considered, since provisions on marriage
are substantive in nature.

C. HEARING
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.
Tolentino: This article is intended to give the spouses a chance to reconcile.
LAPUZ V. EUFEMIO [43 S 177 (1972)] - infra.
Balane: Incidental matters may be heard even during the six-months coolingoff period.
Rufus Rodriguez, The FAMILY CODE of the Philippines Annotated, 2nd ed.
(hereinafter, Rodriguez): During the six month period, the court may still act
to determine the custody of the children, alimony and support pendente lite.

ARANETA V. CONCEPCION [99 P 709 (1956)] - Evidence not affecting the

cause of separation, like the actual custody of the children, the means
conducive to their welfare and convenience during the pendency of the case,
should be allowed so that the court may determine which is best for their
custody.

SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An ancillary remedy of

preliminary mandatory injunction is not barred by the six-month statutory
suspension of trial in an action for legal separation. In this case, the wife filed
a petition for legal separation, and a motion for preliminary mandatory
injunction for the return of what she calims to be her paraphernal and
exclusive property.
Art. 103 NCC is not an absolute bar to the hearing of a motion for preliminary
injunction priot to the expiration of the 6 months period. xxx That the law
remains cognizant of the need in certain cases for judicial power to assert
itself is discernible from what is set from what is set forth in Art. 104 NCC

(now Art. 61, FC.) Here, there would appear to be a recognition that the
question of management of the spouses' respective property need not be left
unresolved even during the 6 months period. An administrator may even be
appointed for the management of the prop. of the conjugal partnership.
PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of the FC mandates that an
action for LS must "in no case be tried before six months shall have elapsed
since the filing of the petition," obviously in order to provide the parties a
"cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.

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.
Tolentino: The effort of the Court is not limited to the period before trial (at
least 6 mos.) but may be continued even after trial and before judgment is
rendered.

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.

BALANE CASE:
DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] - Where the husband, after
finding the wife guilty of adultery sent her to Manila to study beauty culture,
and there she committed another adultery with a different man, and the
husband filed a petition for legal separation, the wife's admission to the
investigating fiscal that she committed adultery, in the existence of evidence
of adultery other than such confession, is not the confession of judgment
disallowed by the Code. What is prohibited is a confession of judgment - a
confession done in court or through a pleading.
(1) "Where there is evidence of the adultery independently of the defendant's

statement agreeing to the legal separation, the decree of separation should

be granted, since it would not be based on the confession but upon the
evidence presented by the plaintiff. What the law prohibits is a judgment
based EXCLUSIVELY on defendant's confession."
(2) The failure of the husband to actively search for his wife who left the
conjugal home after his discovery of her illicit affairs, and to take her home
does not constitute the condonation or consent to the adultery. It was not his
duty to search for her.
(3) The petition should be granted based not on the first adultery, which has
already prescribed, but on the second adultery, which has not yet prescribed.
Adapted.

1. RIGHTS AND OBLIGATIONS OF PARTIES

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 agreemnt 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.
Balane case:
SABALONES V. CA [230 SCRA 79] - In case of an action for legal separation,
where the spouses did not agree as to who will administer the conjugal
partnership, the Court may appoint one of the spouses. Such appointment
may be implied.
xxx
While it is true that not formal designation of the administrator has been
made, such designation was implicit in the decision of the trial court denying
the petitioner any share in the conjugal properties (and thus also
disqualifying him as administrator thereof.) That designation was in effect
approved by the CA when it issued in favor of the resp. wife the preliminary
injunction now under challenge.

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.

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 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 for in Title IX. It shall also provide for appropriate visitation rights of
the other parent.
Tolentino: Effects of Filing Petition:
(1) The spouses can live separately from each other
(2) The administration of the common prop., whether in absolute community
or conjugal partnership of gains, shall be given by the Court to either of the
spouses or to a third person, as is best for the interests of the community.
(3) In the absence of a written agreement of the spouses, the Court shall
provide for the support bet. the spouses and the custody and support of the
common children, taking into account the welfare of the children and their
choice of the parent w/ whom they wish to remain.
(4) When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be necessary, unless such spouse
voluntarily gives such consent.
Alimony "pendente lite."-- During the pendency of the suit for legal
separation upon a complaint filed and admitted, it is the duty of the court to
grant alimony to the wife and to make provisions for the support of the
children not in the possession of the father.
Should def. appear to have means to pay alimony and refuses to pay, either
an order of execution may be issued or a penalty for contempt may be
imposed, or both.
Custody of the Children.-- While the action is pending, the custody of the
children may be determined in one of two ways: (1) by agreement of the
spouses w/c shall not be distrubed unless prejudicial to the children; and (2)
by court order, w/c shall be based on the sound discretion of the judge, taking
into account the welfare of the children as the ruling consideration.
Baviera case:
LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for
adultery against the wife, and the wife filed a petition for legal separation in
bad faith, the wife having been convicted of adultery in the meantime, she is
not entitled to support pendente lite. "The right to separate support and
maintenance, even from the conjugal partnership property, presupposes the

existence of a justifiable cause for the spouse claiming such right to live
separately. A petition in bad faith, such as that filed by the one who is himself
or herself guilty of an act which constitutes a ground for legal separation at
the instance of the other spouse, cannot be considered as within the
intendment of the law granting separate support."

2. EFFECT OF DEATH OF A SPOUSE

BAVIERA CASES:
LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE a
decree of legal separation abates such action. "An action for legal separation
which involves nothing more than bed-and board separation of the spouses is
purely personal. The Civil Code recognizes this (1) by allowing ony the
innocent spouse (and no one else) to claim legal separation; (2) by providing
that the spouses can, by their reconciliaton, stop or abate the proceedings
and even rescind a decree of legal separation already granted. Being
personal in character, it follows that the death of one party to the action
causes the death of the action itself - actio personalis moritur cum persona."
Even if property rights are involved, because these rights are mere effects of
the decree of legal separation, being rights in expectation, these rights do not
come into existence as a result of the death of a party. Also under the Rules
of court, an action for legal separation or annulment of marriage is not one
which survives the death of spouse.

MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse AFTER a

final decree of legal separation has no effect on the legal separation. The law
clearly spells out the effect of a final decree of legal separation on the
conjugal property. Therefore, upon the liquidation and distribution
conformably with the effects of such final decree, the law on intestate
succession should take over the disposition of whatever remaining properties
have been allocated to the deceased spouse.

D. DECREE OF LEGAL SEPARATION

1. EFFECTS
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);
Art. 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
xxx
(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) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
Art. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.
(4) The offending spouses 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.
Balane: There are four (4) other effects
(5) Donation propter nuptias may be revoked by the innocent spouse. (Art.
64.)
(6) Designation of the guilty spouse in the insurance policy may be revoked.
(id.)
(7) Cessation of the obligation of mutual support. (Art. 198.)
(8) Wife may continue using the surname before the decree of legal

separation. (Art. 372, NCC.)

Tolentino: Support and Assistance.-- After the decree of LS, the obligation of
mutual support bet. the spouses ceases; however, the court may order that
the guilty spouse give support to the innocent spouse. (Art. 198.)
Successional Rights.-- The guilty spouse, by virtue of the decree of LS
becomes disqualified to succeed the innocent spouse. She would not even be
entitled to the legitime. xxx But if the will is executed after the decree, the
disposition in favor of the offender shall be valid.
Balane case:
LEDESMA V. INTESTATE ESTATE OF PEDROSA [219 SCRA 806] - The law
mandates the dissolution and liquidation of the prop. regime of the spouses
upon finality of the decree of LS. Such dissolution and liquidation are
necessary consequences of the final decree. This legal effect of the decree of
legal separation ipso facto or automatically follows, as an inevitable incident
of, the judgment decreeing the LS for the purpose of determining the share of
each spouse in the conjugal assets. (citing Macadangdang v.CA, 108 SCRA
314.)

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 a beneficiary in
any insurance policy, even if such designation be stipulated as irrevocable.
The revocation of the donation 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 5
years from the time the decree of legal separation become final.

2. RECONCILIATION
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.

Tolentino: Concept of Reconciliation.-- Reconciliation is a mutual agreement to

live together again as husband and wife. It must be voluntary mutual
agreement.
xxx
It is submitted that the fact of resuming common life is the essence of
reconciliation and terminates the legal separation even if the joint
manifestation has not been filed in court.
Balane: Contrary view.-- Technically, what will set aside the decree of LS is the
filing of a joint verified manifestation of reconciliation. Without that, the court
cannot act motu proprio.

Art. 66. The reconciliation referred to in the preceding Article 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 order containing the foregoing shall be recorded in the proper civil
registries.
Balane: Effects of Reconciliation:
(1) Custody over the children.-- Joint custody is restored.
(2) Compulsory and intestate succession is restored.
(3) Testamentary succession.-- There is no revival. Reconciliation will not
necessarily revive the institution of the guilty spouse in the will of the
innocent spouse.
(4) Donation propter nuptias will remain revoked.

Art. 67. The agreement to revive the former property regime referred to in
the proceeding 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 measures to protect the interest of creditors and such order
shall be recorded in the proper registries of properties.
The recording of the order in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient
separate properties to satisfy the creditor's claim.
Tolentino: New Regime.-- The FC authorizes the spouses to agree to "revive
their former property regime." We submit that this is not restrictive and does
not limit the spouses to the regime they had before the decree of LS. The
spouses are placed in the same position as before the marriage and could
establish the property regime they want, as if making a marriage settlement.
xxx If they do not agree on any system, then by law their new regime will be
that of separation of property.

V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Tolentino: Dual Aspect of Family Relations.-- There are 2 aspects in family
relations, one internal and another external. In the internal aspect, w/c is
essentially natural and moral, the family is commonly known to be sacred
and inaccessible even to the law. It is only in the external aspects, where
third persons and the public interest are concerned, that the law fixes rules
regulating family relations.

A. IN GENERAL
Art. 68. The husband and wife are obliged to live together, observe mutual
love, respect and fidelity, and render mutual help and support.
Balane: These are called legal obligations but they are more of a statement of
policy. An action for specific performance is not proper to enforce these
obligations. The only possible consequences are found in Art.100 for ACP and
127 for CPG.

With regard to the mutual obligation of fidelity, there are consequences both
civil and criminal (adultery or concubinage.).
With respect to support, there are legal provisions in the FC w/c carry out the
duty.
Tolentino: Right of Cohabitation.-- Marriage entitles the husband and wife to
each other's society, that is, they are mutually entitled to cohabitation or
consortium. This means that they shall have a common life, under the same
roof, to better fulfill those obligations inherent in the matrimonial status.
Scope of Right.-- The right of cohabitation includes domestic and sexual
community of the spouses, the extent of both of w/c will differ according to
the circumstances. xxx [T]he spouses will be considered as living together,
although driven by the stress of circumstances or pecuniary difficulties to
separate, if there is no intention on the part of either to sever their marital
relations permanently.
xxx But for the purpose of the law, only the tangible and material aspect of
cohabitation can be taken into account. The law is powerless to impose that
intimacy of life w/c is the basis of conjugal peace and happiness.
Sexual Relations.-- Although a husband is entitled to sexual relations w/ his
wife, and it is not rape to force the wife to have sexual relations against her
will, this right is not absolute. The right involves only normal intercourse.
Legal Sanction for Cohabitation.-- Cohabitation by the parties must be
spontaneous and cannot be imposed by the law or the courts. The only
possible sanction is patrimonial in nature. If the husband refuses to live w/
the wife, he can be compelled to pay her a pension, and indemnity for
damages; and if the wife refuses to live w/ the husband, he can refuse to
support her.
Use of Force.-- The husband cannot by the use of force, even of public
authority, compel the wife to return home. Such remedy would be a violation
of personal dignity and security. xxx Modern law abhors imprisonment for
debt, and coercive measures to compel the wife to live w/ the husband would
be worse than imprisonment for debt.
Remedies for Interference.--Any person who interferes w/ the right of the
spouses to cohabitation may be held liable for damages under Art. 26, FC.
Mutual Fidelity.-- This fidelity is the loyalty w/c each should observe toward
the other, the wife having nothing to do w/ another man, nor the husband w/
another woman.
Mutual Help.-- Mutual help involves care during sickness, and bearing the

inconvenience caused by such sickness, of the other spouse. xxx

The obligation of mutual help, however, is not limited to material assistance
and care during sickness. It extends to everything that involves moral
assistance, and mutual affection and regard.
There are positive legal provisions w/c reveal the scope of this duty and
implement the general rule laid down in the present article. Among them are:
(1) the legitimacy of defense of a spouse (Art. 11, RPC); (2) the increase in
penalty in a crime by one spouse against the person of the other (Art. 246,
id.); (3) the incapacity of one spouse to testify against the other (R123, Sec.
26, ROC); (4) the right of one spouse to object to adoption of or by the other
(Arts. 185 and 188); and (5) the prohibition of donations between them (Art.
87.)
Legal Sanction.-- The only aspect of the obligation of mutual help for w/c
there is a legal sanction is the duty to support. This can be enforced by court
action. But the law cannot penetrate to the intimate relations in the home in
order to enforce the mutual obligations of care, of moral assistance, and of
mutual affection and regard.
Position of Spouses in the Family.-- The perfect parity of rights and duties of H
& W has to be reconciled w/ the need for unity of direction in the family. Since
the power of direction cannot be vested at the same time in 2 persons, the
existence of a head of the family becomes imperative; and both nature and
tradition have given this prerogative to the husband
xxx This power of the H as head of the family, however, is not composed of
rights and prerogatives, but of duties and responsibilities, bec. the H does not
use it for his personal benefit but for the greater and higher interests of the
family.
Chastisement of Wife.-- Chastisement is unlawful, and it has been held that
the H should not be permitted to inflict personal chastisement upon his wife,
even for the grossest outrage. The only possible exception to this rule under
our law is that given in Art. 247 of the RPC, w/c provides that:
Art. 247. Any legally married person who, having surprised his spouse in the
act of committing sexual intercourse with another person, shall kill any of
them or both of them in the act or immediately thereafter, or shall inflict
upon them any serious physical injury, shall suffer the penalty of destierro. If
he shall inflict upon them physical injuries of any other kind, he shall be
excempt from punishment.
Love Between Spouses.-- Mutual love cannot be compelled or imposed by
court action.

BALANE CASES:
ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and legal,
to return to the common home and cohabit w/ plaintiff. But the great weight
of authorities, however, is strongly convincing that it is not w/in the province
of the courts in the Phils. to compel anyone of the spouses to cohabit w/ and
render conjugal rights to the other.
VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.)
To maintain, as private resp. does, that under our laws, petitioner has to be
considered as still married to private resp. and still subject to a wife's
obligations under Art. 109 et seq. of the NCC cannot be just. Petitioner should
not be obliged to live together w/, observe respect and fidelity, and render
support to private resp. The latter should not continue to be one of the heirs
w/ possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.

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.
Balane: The power to fix residence is joint. Whatever residence is fixed should
bind both parties.
Tolentino: The right to fix family domicile includes the right to change it, so
long as the spouses agree to the transfer.
Separate Residence.-- It can be said that any of the grounds for LS would be
sufficient for a spouse to have a separate domicile, if he or she prefers that to
LS.

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 of or
fruits of their separate properties. In case of insufficiency or absence of said
income or fruits, such obligations shall be satisfied from their separate
properties.

Balane: Art. 70 is an implementation of the third duty of the spouses, that of

support. Correlate this w/ Art. 194.
Where to get the funds? There are three sources in the order of priority:
1. From the common property
2. From the income or fruits of the separate property
Note: Numbers 1 and 2 are different sources only if the property relationship
is ACP. In CPG, numbers 1 and 2 will be the same.
3. From the separate property themselves.
Art. 71. The management of the household shall be the right and duty of both
spouses. The expenses for such management shall be paid in accordance
with the provisions of Article 70.
Tolentino: What Properties Answerable.-- The order of liability for family
support of the different properties of the marriage is: first, the community
prop., then the income of the spouses or fruits of their separate properties,
and finally, the separate properties of the spouses. The liability of the
spouses for the support of the family being joint, this may mean that they
contribute equally, regardless of the value of the respective properties of the
spouses. However, this would not be equitable. The better rule seems to be
that the contribution should be proportionate to the properties of the
spouses.
Management of Household.-- In view of the silence of the law on how the
disagreement bet. the spouses in the management of the household shall be
settled, the custom should be observed, and the wife's position should be
given priority.
Art. 72. When one of the spouses neglects his or her duties to the conjugal
union or commits acts which tend to bring danger, dishonor or injury to the
other or to the family, the aggrieved party may apply to the court for relief.
Tolentino: What Relief May Be Granted.-- Under the NCC, when one party
applies for relief bec. of the acts or negligence of the other spouse, "the court
may counsel the offender to comply with his or her duties, and take such
measures as may be proper." Notwithstanding this omission in the FC, we
believe that the court has full freedom to determine the kind of relief that
may be given. The relief, however, must be lawful.

Art. 73. Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may object

only on valid, serious, and moral grounds.

In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued 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 community property. If the benefit accrued thereafter,
such 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. (words in italics were omitted in the text that Malacanang
released.)
Tolentino: Disposition of Products of Activity.-- May the husband or wife
engaged in a profession or business freely dispose of the products of such
activity? A distinction should be observed.
If the disposition is in the course of the professional or commercial activity,
the spouse should be free to dispose of the products of such activity. xxx But
if the funds will be used to buy real estate, then the spouse should act jointly,
if the property regime of the marriage is absolute community or conjugal
partnershiup of gains, bec. such funds are common prop. of the marriage.

B. OBLIGATION TO LIVE TOGETHER

ARROYO V. ARROYO [42 S 54 (1921)] - The courts can make a judicial
declaration of abandonment without sufficient justification but it cannot
compel cohabitation, consortium being a purely personal right. However, the
courts can impose economic sanctions or such unjustified departure from the
conjugal dwelling.
PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as used in Article 116 of
the Civil Code (Art. 72 of the Family Code) does NOT refer to patrimonial
(economic) injury or damage, but to personal (i.e. physiical or moral) injury to
one of the spouses since Art. 116 lies in the chapter concering PERSONAL
RELATIIONS between husband and wife.