Persons Primer

PERSONS AND FAMILY
RELATIONS LAW
Q&A Reviewer & MCQ Quizzer
CIVIL LAW REVIEW 2012
Atty. MELENCIO S. STA.MARIA, JR.
by
BLOCK 4B 2012
BOOK I PERSONS
TITLE I. CIVIL PERSONALITY
Chapter 1. GENERAL PROVISIONS
Chapter 2. NATURAL PERSONS
Chapter 3. JURIDICAL PERSONS
TITLE II. CITIZENSHIP AND DOMICILE
THE FAMILY CODE OF THE PHILIPPINES

TITLE I. MARRIAGE (Articles 1 to 54)
Chapter 1. REQUISITES OF MARRIAGE
Chapter 2. MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
Chapter 3. VOID AND VOIDABLE MARRIAGES
TITLE II. LEGAL SEPARATION (Articles 55 to 67)
TITLE III. RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE
(Articles 68 to 73)
TITLE IV. PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
(Articles 74 to 148)
Chapter 2. DONATIONS BY REASONOF MARRIAGE
Chapter 3. SYSTEM OF ABSOLUTE COMMUNITY
Section 1. General Provisions
Section 2. What Constitutes Community Property
Section 3. Charges Upon and Obligations
of the Absolute Community
Section 4. Ownership, Administration, Enjoyment
and Disposition of the Community Property
Section 5. Dissolution of Absolute Community Regime
Section 6. Liquidation of the Absolute Community
Chapter 4. CONJUGAL PARTNERSHIP OF GAINS
Chapter 5. SEPARATION OF PROPERTY OF THE SPOUSE AND
ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE
MARRIAGE
Chapter 6. REGIME OF SEPARATION OFPROPERTY
Chapter 7. PROPERTY REGIME OF UNIONSWITHOUT MARRIAGE
TITLE V. THE FAMILY (Articles 149 to 162)
Chapter 1. THE FAMILY AS AN INSTITUTION
Chapter 2. THE FAMILY HOME
TITLE VI. PATERNITY AND FILIATION (Articles 163 to 182)
Chapter 1.
Chapter 2.
Chapter 3.
Chapter 4.
LEGITIMATE CHILDREN
PROOF OF FILIATION
ILLEGITIMATE CHILDREN
LEGITIMATED CHILDREN
TITLE VII. ADOPTION (Articles 183 to 193)

TITLE VIII. SUPPORT
TITLE LX. PARENTAL AUTHORITY (Articles 209 to 233)
Chapter 2. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
Chapter 3. EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS
OF THE CHILDREN
Chapter 4. EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY
OF THE CHILDREN
Chapter 5. SUSPENSION OR TERMINATION OFPARENTAL
AUTHORITY
TITLE X. EMANCIPATION AND AGE
OF MAJORITY
TITLE XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Chapter 1. SCOPE OF APPLICATION
Chapter 2. SEPARATION IN FACT BETWEENHUSBAND AND WIFE
Chapter 3. INCIDENTS INVOLVING PARENTALAUTHORITY
PROCEEDINGS
XII. FINAL PROVISIONS (Articles 254 to 257)
CIVIL CODE OF THE PHILIPPINES
TITLE X. FUNERALS
TITLE XII. CARE AND EDUCATION OF CHILDREN
TITLE XIII. USE OF SURNAMES
TITLE XIV. ABSENCE
Chapter 1. PROVISIONAL MEASURES IN CASEOF ABSENCE
Chapter 2. DECLARATION OF ABSENCE
Chapter 3. ADMINISTRATION OF THE PROPERTYOF THE ABSENTEE
Chapter 4. PRESUMPTION OF DEATH
Chapter 5. EFFECT OF ABSENCE UPON THECONTINGENT
RIGHTSOF THE ABSENTEE
TITLE XVI. CIVIL REGISTRY
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
Art. 1-18
PRELIMINARY TITLE
CHAPTER 1
EFFECT AND APPLICATION OF LAWS
Article 1. This Act shall be known as the "Civil Code of
the Philippines." (n)
Article 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication.
(1a)
Q.
What are the instances when a law may be given retroactive effect?
A.
A law may be given retroactive effect in the following instances:

(a) When it expressly provides for retroactivity;
(b) When it is curative or remedial;
(c) When it is procedural;
(d) When it is penal in character and is favorable to the accused.
Q.
What are the instances when the law cannot be given retroactivity?
A.
A law cannot be given retroactive effect in the following instances:

(a) When it impairs obligation of contracts;
(b) When it affects vested rights;
(c) When it will affect pending proceedings (See Espiritu v. Cipriano,
55 SCRA 533).
Q.
What is a curative or remedial legislation?
A.
It is a type of retrospective legislation that reaches back on past events

to correct errors or irregularities, and to render valid and effective
attempted acts which would otherwise be ineffective for the purpose
the parties intended. (DBP v. CA, 96 SCRA 342)
Article 3. Ignorance of the law excuses no one from

compliance therewith. (2)
Q.
Can the publication requirement be dispensed with on the basis of the

clause unless otherwise it is provided under Article 2 of the New
Civil Code?
A.
NO. The clause unless otherwise it is provided pertains to the fifteen

day period and not to the requirement of publication. Publication is an
indispensable requirement, the absence of which will not render the
law effective. (see Tanada v. Tuvera, 146 SCRA 446)
Q.
Every person is presumed to know the law. Can this presumption be

overcome by evidence that the person has in fact no knowledge of the
existence of a law?
A.
NO. The presumption is conclusive. (See Tanada v. Tuvera, supra)

Article 4. Laws shall have no retroactive effect, unless the
contrary is provided. (3)
Q.
What is retrospective legislation?
A.
These are legislations with retroactive effect.
CIVIL LAW REVIEW
Article 5. Acts executed against the provisions of

mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
Q.
When can a violation of mandatory or prohibitory laws be valid?
A.
It is valid when the law itself authorizes their validity that acts in
violation of these laws are valid and enforceable. (Article 5, new Civil
Code)
Article 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.
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 1-18
PRELIMINARY TITLE
Q.
When can a waiver be considered as an effective waiver?
A.
A waiver is effective when it is a knowing and intelligent waiver.

This means that the person knows that a right exists, and has
knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. (See Consunji v. CA, G.R. No. 137873,
April 20, 2001)
Article 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
Art. 1-18
A.
Article 11. Customs which are contrary to law, public

order or public policy shall not be countenanced. (n)
Article 12. A custom must be proved as a fact,
according to the rules of evidence.
Q.
Can courts take judicial notice of customs?
A.
NO. A custom must be proved as a fact according to the rules of

evidence. (Article 12, New Civil Code)
Article 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty
days; days, of twenty-four hours; and nights from
sunset to sunrise.
Administrative or executive acts, orders and

regulations shall be valid only when they are not
contrary to the laws or the Constitution.
What is the general rule and exception when it comes to partial
unconstitutionality of a statute?
As a general rule, where a part of a law is declared unconstitutional,
other parts not declared as such will still be upheld. However, when
the other provisions are so mutually dependent and connected with
the unconstitutional provision as to warrant a belief that the
legislature intended them to be whole, those other provisions must fall.
(See Lidasan v. COMELEC, 21 SCRA 496)
Article 8. Judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the
legal system of the Philippines. (n)
Article 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)
CIVIL LAW REVIEW
4B 2012
Article 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. (n)
When the courts declared a law to be inconsistent

with the Constitution, the former shall be void and
the latter shall govern.
Q.
PRELIMINARY TITLE
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. (7a)
Q.
X filed his final income tax return on April 15, 1998. X, however,
discovered that he made excessive payment. Hence, he filed a claim for
refund before the Commissioner for Internal Revenue (CIR) on
December 15, 1999. It was denied. On April 14, 2000, he filed an action
for refund before the Court of Tax Appeals (CTA). However, it was
dismissed on the ground that under the law, a claim for refund must
be filed within 2 years from the date of payment. According to CTA,
two years constitute 730 days pursuant to Article 13 of the New Civil
CIVIL LAW REVIEW
4B 2012
Art. 1-18
PRELIMINARY TITLE
Code. Hence, prescription had set in on April 14, 2000 which is the
731st day since the year 2000 is a leap year. Is the CTA correct?
A.
Art. 1-18
A.
NO. Article 13 of the New Civil Code was impliedly repealed by the
1987 Administrative Code. Under the latter, year shall be
understood as 12 calendar months. It is a period running from the
beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month. Two years means
twenty-four months regardless of the number of days of the month.
Hence, two years from April 15, 1998 is April 14, 2000. (See CIR v.
Primetown Properties, G. R. 162155, August 28, 2007)
Article 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
(8a)
PRELIMINARY TITLE
No. In the eyes of Philippine law, he is still married as divorce is

not allowed. (See Tenchavez v. Escano, 15 SCRA 355)
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found. (10a)
Q.
What is the general rule with respect to the law that governs real
and personal property?
Q.
Are diplomatic agents immune from the jurisdiction of Philippine

criminal laws?
A.
The law that governs real and personal property is the law of the
country where such property is situated.
A.
Yes, by virtue of the 1961 Vienna Convention on Diplomatic Relations.
Q.
What is the exception to the abovementioned rule?
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. (9a)
A.
With respect to the order of succession and the amount of

successional rights, whether in intestate or testamentary
succession, they shall be regulated by the national law of the
deceased.
Q.
What is the nationality rule?
Q.
A.
The nationality rule states that regardless of where a citizen of

the Philippines might be, he or she will be governed by Philippine
laws with respect to his or her family rights and duties, or to his
or her status, condition and legal capacity.
What law will apply if a foreigner executed a will in the

Philippines but, who, at the time of his death, was both a national
of the United States and also domiciled in the United States?
A.
The law of the United States will apply. (See Bellis v. Bellis, 20
SCRA 258)
Q.
If a married Filipino obtains a decree of divorce from abroad, may

he validly remarry in accordance with Philippine law?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 1-18
PRELIMINARY TITLE
Art. 1-18
Article 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.
What law will govern the forms and solemnities of public instruments,
wills and contracts?
A.
The law of the country where they are executed.
Q.
What law will govern if public instruments are executed before

Philippine diplomatic officers in a foreign country?
A.
Philippine law.
Q.
Is a Filipina wife who obtained a divorce abroad and remarried an

American liable for adultery?
A.
Yes. 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. (See Tenchavez v. Escano 15 SCRA 355)
CIVIL LAW REVIEW
4B 2012
Article 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. (16a)
Q.
A.
laws.
When shall the Civil Code govern matters covered by the Code of
Commerce and special laws?
Only when there is a deficiency in the Code of Commerce and special
CHAPTER 2
Human Relations (n)
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. (11a)
Q.
PRELIMINARY TITLE
Article 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.
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify
the latter for the same.
Article 21. Any person who willfully 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.
Q.
What are the essential requisites for a person to be held liable under
Article 19?
A.
The essential requisites are: (1) there must be a legal right or duty; (2)
such right or duty is exercised in bad faith; and (3) it is exercised for
the sole intent of prejudicing another.
Q.
What matters does Article 20 cover?
A.
Article 20 speaks of a general sanction for all other provisions of law

which do not especially provide their own sanction.
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
Q.
Is willful intent necessary to constitute a violation of Article 20?
A.
No. It can be violated through negligence.
Q.
What are the essential requisites for a person to be held liable under
Article 21?
A.
The essential requisites are: (1) there is an act which is legal; (2) but
which is contrary to morals, good customs or public policy; and (3) it is
done with intent to injure.
Q.
A government employee was singled out by the deputy administrator

and strictly subjected to the rules for obtaining benefits after
retirement. Meanwhile employees similarly situated were liberally
granted their benefits for as long as they substantially complied with
the rules. Does the government employee have a right to seek
damages?
A.
Article 23. Even when an act or event causing damage to

anothers 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 benefited.
What is the doctrine of unjust enrichment?
A.
It states that no person can claim what is not validly and legally his or
hers.
CIVIL LAW REVIEW
4B 2012
PERSONS
Civil Personality
10
Q.
A person, in good faith, plants crops on land which he believed was his
own, but which turned out to be timberland belonging to the state.
Does he lose his right to all his crops?
A.
No. (See Republic v. Ballocanag, 572 SCRA 436)
Q.
Without As knowledge, a flood drives his cattle to the cultivated land

of B. As cattle were saved but Bs crop was destroyed. Is A liable to B
for damages despite having committed no fault?
A.
Yes. True, A was not at fault but he was benefitted. It is but right and
equitable that he should indemnify B. (Report of the Code
Commission, pages 41-42)
Article 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.
Yes. See Article 19. (Llorente v. Sandiganbayan, 202 SCRA 309)

Article 22. Every person who through an act or
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.
Q.
Art. 37- 47
Q.
Two parties executed a contract and implemented it for a lengthy

period of time pursuant to its unambiguous provisions, and benefited
from the same. May one of the parties validly invoke Article 24?
A.
No. The Supreme Court rejected the claim of one of the parties that
the said party was disadvantaged pursuant to Article 24, since it was
proven that the parties undertook lengthy negotiations before the
contract was finalized, and that the said party was good in business.
(See Spouses Domingo v. Astorga, G.R. No. 130982, September 16,
2005)
Article 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.
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
11
Q.
What kind of entities can invoke Article 25?
A.
25.
Only government or private charitable institutions can invoke Article

Article 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:
Art. 37- 47
(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.
Q.
A family in Sorsogon sent a telegram to another member of the family

in Manila asking for money for their ailing mother. The telegramcompany failed to send the telegram on time and did not immediately
inform the family of the reason for the delay, thereby causing filial
disturbance on the part of the family as they blamed each other for
failing to respond immediately to the emergency involving their
mother. Can the family validly seek damages against the telegram
company?
A.
Yes. The Supreme Court awarded damages on the basis of Article

26(2) of the Civil Code considering that the act or omission of the
telegraph company disturbed the peace of mind of the family. (See
RCPI v. Verchez, G.R. No. 164349, January 31, 2006)
CIVIL LAW REVIEW
4B 2012
12
Article 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 fi le
an action for damages and other relief against the latter,
without prejudice to any disciplinary administrative
action that may be taken.
Q.
The president of a state college in bad faith and despite the decision
and directives of the Office of the Bureau of Public Schools, refused to
allow a student to graduate with honors, despite the fact that the
student honestly earned and deserved such honors. Can the president
be held liable for damages?
A.
Yes. The Supreme Court granted the award of damages in favor of the
said student under Article 27. (See Ledesma v. Court of Appeals, 160
SCRA 449).
(1) Prying into the privacy of anothers residence;

(2) Meddling with or disturbing the private life or family
relations of another;
PERSONS
Civil Personality
Article 28. Unfair competition in agricultural,

commercial or industrial enterprises, or in labor through
the use of force, intimidation, deceit, machination or any
other unjust, oppressive or highhanded method shall
give rise to a right of action by the person who thereby
suffers damage.
Article 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
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
13
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.
Article 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.
Article 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.
Q.
Does proof beyond reasonable doubt require absolute certainty?
A.
No. It only means that amount of proof which forms an abiding moral
certainty that the accused committed the crime charged. Whereas in
civil cases, only preponderance of evidence is required, that is, as a
whole the evidence adduced by one side outweighs that of the adverse
party. (See Sarmiento v. Court of Appeals, G.R. No. 96740, March 25,
1999)
Q.
Does acquittal beyond reasonable doubt preclude one from instituting

a suit to enforce the civil liability for the same act or omission?
A.
No. The same cannot be used in evidence of his innocence in civil

action and is not admissible in evidence to prove that he was not guilty
of the crime with which he was charged. (See Philippine National
Bank v. Catipon, 52 O.G. 3589; Republic of the Philippines v. Asaad,
51 O.G. 703)
Q.
When does a cause of action exist?
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
A.
PERSONS
Civil Personality
14
A cause of action exists if the following elements are present: (1) a

right in favor of the plaintiff; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or
omission on the part of such defendant that is violative of the right of
the plaintiff.
Article 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 a peaceable assembly to
petition the Government for redress of
grievances;
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
15
14. The right to be a 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 the 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.
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
16
Q.
Are judges subject to liability under Article 32?
A.
No. The responsibility set forth in Article 32 is not demandable from a

judge unless his act or omission constitutes a violation of the Penal
Code or other penal statute. (See Esguerra v. Gonzales-Asdala, G.R.
No. 168906, December 4, 2004) This applies no matter how erroneous
the act is, so long as the judge acts in good faith. It is only when a
judge acts fraudulently or corruptly, or with gross ignorance, that he
may be held criminally or administratively responsible.
Article 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.
Article 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.
Article 35. When a person, claiming to be injured by a
criminal offense, charges another with the same, for
which no independent civil action is granted in this Code
or any special law, but the justice of the peace finds no
reasonable grounds to believe that a crime has been
committed, or the prosecuting attorney refuses or fails to
institute criminal proceedings, the complaint 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
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
17
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.
Article 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.
Q.
What is a prejudicial question?
A.
A prejudicial question is one that arises in a case, the resolution of

which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. (See Zapanta v.
Montesa, 4 SCRA 510; Fortich v. Celdran, 19 SCRA 502) There are
always two cases involved, a civil and a criminal case. The criminal
case is always suspended because the issues in the civil case are
determinative of the outcome in the criminal case.
BOOK I
PERSONS
TITLE I
CIVIL PERSONALITY
CHAPTER 1
General Provisions
Art. 37- 47
PERSONS
Civil Personality
18
Article 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. (n)
Q.
When does juridical capacity and capacity to act start and end?
A.
Juridical capacity is acquired upon the birth of a person. There are

even cases where a child, although not yet born and still inside the
womb of the mother, is already given a provisional personality which
entitles him to be supported or to receive donation (Articles 40, 41,
742, 854). Juridical capacity is terminated only upon death. Whereas,
capacity to act is not inherent in a person; it is attained or conferred.
Therefore, it may be lost not only by death of a person but by any valid
cause provided by law.
Article 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. (32a)
Article 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 in 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, twenty-one years of age or over, is
qualified for all acts of civil life, except in cases specified
by law. (n)
Chapter 2
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
19
Art. 37- 47
NATURAL PERSONS
Article 41. For civil purposes, the foetus is considered

born if it is alive at the time it is completely delivered
from the mothers womb. However, if the foetus had an
intra-uterine 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. (30a)
Q.
What determines civil personality?
A.
Birth determines civil personality.
Q.
When is a person deemed born?
A.
A person is deemed born if it is alive at the time it is completely

delivered from the mothers womb. However, if the foetus only has an
intra-uterine life of less than seven months, it must stay alive for
twenty-four hours after complete delivery to be deemed born.
Q.
Are there exceptions?
A.
Yes. A conceived child, even if yet to be delivered from the mothers

womb, shall be considered born for all purposes that are favorable to it.
Q.
X, mother of a child, sued Y for damages and support for their common
child. Y moved to dismiss the complaint on the ground that it did not
allege that the child was deemed born. The court granted the motion to
dismiss. Is this proper?
No. Article 40 provides that a child is given provisional personality for
all purposes favorable to it. The unborn child has a right to support
CIVIL LAW REVIEW
20
from his parents even if it is yet to be born. The conceived child may
even receive donations under Article 742 of the Civil Code.
Article 40. Birth determines personality; but the

conceived child shall be considered born for all purposes
that are favorable to it, provided it be born after with the
conditions specified in the following article. (29a)
A.
PERSONS
Civil Personality
4B 2012
The lower courts theory that support as an obligation under the Civil
Code does not contemplate children yet unborn, violates Article 40.
The phrase provided it be born later with the conditions specified in
the following article is not a condition precedent to the right of the
conceived child. (See Quisumbing v. Icao, 34 SCRA 132)
Q.
May a parent invoke the provisional personality of a conceived child

for damages for and on behalf of an aborted child?
A.
No. The conditions set forth in Article 40 and 41 were not

subsequently met. But the parents can obtain damages in their own
right against the doctor who caused the abortion. (See Geluz v. CA, 2
SCRA 801)
Q.
What is the best evidence of birth?
A.
The birth certificate is the best evidence of birth. Once registered, it

becomes a public document. These are strictly confidential and cannot
be revealed save in the cases expressly provided for by law.
Article 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.
(32a)
Q.
What terminates civil personality?
A.
Death terminates civil personality.
Q.
What is the effect of losing civil personality?
A.
The person loses juridical capacity and capacity to act, and all the
rights pertaining thereto including the right to own and redeem
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
21
Art. 37- 47
PERSONS
Civil Personality
property, among others. (See Butte v. Manuel Uy & Sons, Inc., 4 SCRA
526)
Q.
Who issues a death certificate?
A.
The attending physician of the deceased issues the death certificate, or

the proper health officer in case of default.
Q.
What are contained in the death certificate?
A.
The death certificate contains the following: (1) date and place of
death; (2) full name; (3) age; (4) occupation; (5) residence; (6) status as
regards marriage; (7) nationality; and (8) probable cause of death.
Chapter 3
JURIDICAL PERSONS
Article 44. The following are juridical persons:
Q.
Can rights and obligations of deceased persons be regulated?
A.
Yes, by contract, will, and by law.
1) The State and its political subdivisions;

2) Other corporations, institutions, and entities
for public interest or purpose, created by law;
their personality begins as soon as they have
been constituted according to law;
3) Corporations, partnerships and associations
for private interest or purpose to which the
law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member. (35a)
Article 43. If there is doubt, as between two or more

persons who are called to succeed each other, as to
which of them dies 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. (33)
Article 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. (36 and 37a)
Q.
When will Article 43 apply?
A.
Only in cases of doubt as to who between two or more persons, called

to succeed each other, died first.
Q.
How can death be proven in cases of doubt?
A.
It must be established by positive evidence. But it can also be

established by circumstantial evidence, but never by mere inference
arising from another inference or presumptions or assumptions.
CIVIL LAW REVIEW
22
4B 2012
Article 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. (38a)
Q.
What is a juridical person?
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
PERSONS
Civil Personality
23
Art. 37- 47
PERSONS
Civil Personality
24
A.
A juridical person is a being of legal existence susceptible of rights and

obligations, or of being the subject of juridical relations. (See Roldan v.
Philippine Veterans Board, 105 Phil. 1081)
Q.
What is a state?
Municipal corporations exist in a dual capacity, and their functions are

two-fold. In one, they exercise rights springing from sovereignty and
while in the performance of the duties pertaining thereto, their acts
are political and governmental. When performing such functions, they
are immune from suit unless otherwise provided in their charters.
A.
A state is a sovereign power with people composing it viewed as an

organized corporate society under a government with the legal
competence to exact obedience of its commands.
If acting in a proprietary character, the municipal corporations can be

sued. (See Municipality of San Fernando v. Firme, G.R. No. 52179,
April 1991)
Q.
As a juridical person, what can a state do?
Q.
What is a corporation?
A.
It can enter into treaties and contracts. It can also succeed or inherit in
certain instances provided by law. However, as a general rule, the
State cannot be sued without its consent.
A.
A corporation is an artificial being created by operation of law, having

the right of succession and the powers, attributes, and properties
expressly authorized by law or incident to its existence.
Q.
How can the consent of the state be given?
Q.
What is a partnership?
A.
Either expressly or impliedly. Express consent to be sued may be

embodied in a general or special law. It is implied when the
government enters into business contracts, thereby descending to the
level of the other contracting party. When a state files a complaint, it is
also opening itself to a counterclaim. (See Merritt v. Government of the
Philippine Islands, 182 SCRA 644)
A.
By contract of partnership, two or more persons bind themselves to

contribute money, property or industry to a common fund with the
intention of dividing the profits among themselves.
Q.
What are the effects of corporations and partnerships having juridical

personalities?
However, the circumstance that a state is suable does not necessarily

mean that it is liable. When a state waives its immunity, it is only
giving the plaintiff a chance to prove its claim.
A.
The corporations and partnerships have separate juridical

personalities from its stockholders and partners. The obligations of the
corporation are not the obligations of its stockholders.
Q.
What are political subdivisions?
Q.
May stockholders of a corporation intervene in a case involving

corporate liability?
A.
Political subdivisions consist of municipalities, cities, and provinces.

A.
Q.
Can political subdivisions be held liable for damages?
No. The stockholders interest in corporate property is merely inchoate.

Property belongs to the corporation possessing a distinct personality.
(See Saw v. CA, 195 SCRA 740)
A.
It depends on the capacity for which it is being sued.

Q.
Are there exceptions to the rule?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 37- 47
A.
PERSONS
Civil Personality
25
Art. 48- 51
Yes, in cases where piercing the veil of corporate fiction is proper. The
doctrine is applied when the separate juridical personality of the
corporation is disregarded to promote the ends of justice. (See Laguna
Transportation Company v. Social Security System, G.R. L-14606,
April 28, 1960)
What happens to the properties of the corporation when it ceases to

have legal personality?
A.
The properties shall be disposed of in accordance with the law creating

it. Otherwise, it will be transferred to the municipal corporation which
derived principal benefits from the corporation.
26
3) Those whose fathers are citizens of the Philippines;

4) Those whose mothers are citizens of the Philippines
and upon reaching the age of majority, elect
Philippine citizenship;
Article 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.
Q.
PERSONS
Citizenship and Domicile
5) Those who are naturalized in accordance with law.

Article 49. Naturalization and the loss and reacquisition
of citizenship of the Philippines are governed by special
laws. (n)
Article 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. (40a)
Article 51. When the law creating or recognizing them, or
any other provision does not fix the domicile of juridical
persons, the same shall be understood to be the place
where their legal representation is established or where
they exercise their principal functions. (41a)
Q.
What is domicile? How is it different from residence?
A.
Domicile denotes a fixed permanent residence to which, when absent,

one has the intention of returning. Residence is used to indicate a
place of abode, whether permanent or temporary.
Q.
May a person have more than one domicile?
1) Those who were citizens of the Philippines at the

time of the adoption of the Constitution of the
Philippines;
A.
No. But one may have several residences.
Q.
In the Philippines, how is citizenship determined?
2) Those born in the Philippines of foreign parents

who, before the adoption of said Constitution, had
been elected to public office in the Philippines;
A.
The Philippines follows Jus Sanguinis. Jus sanguinis refers to

citizenship by blood, whereas jus soli refers to citizenship on the basis
of place of birth.
TITLE II
CITIZENSHIP AND DOMICILE
Article 48. The following are citizens of the Philippines:
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 48- 51
PERSONS
27
Q.
What law governs naturalization?
A.
Commonwealth Act No. 473.
Q.
Under the current laws, what are the qualifications for a foreigner to
acquire Filipino citizenship?
A.
The foreigner must:

(a) be not less than 21 years of age on the day of the filing of petition;
(b) have resided in the Philippines for not less than 10 continuous
years;
(c) have good moral character, believes in the principles underlying the
Constitution, conducted himself in a proper and irreproachable
manner;
(d) own real estate in the Philippines worth not less than five thousand
pesos or must have some lucrative profession, trade or lawful
occupation;
(e) be able to speak and write English or Spanish or any one of the
principal Philippine languages; and
(f) have enrolled his minor children in a school recognized by the Office
of Private Education of the Philippines.
Q.
Who are disqualified from being naturalized?
A.
The following are disqualified from being naturalized:

(a) Those opposed to organized government or affiliated with any
association or group of persons who uphold and teach doctrines
opposing all organized government;
(b) Persons defending or teaching the necessity or proprietary of
violence, personal assault, or assassination for the success and
predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Persons convicted of crimes involving moral turpitude;
(e) Persons suffering from mental alienation or incurable contagious
diseases;
(f) Persons who, during the period of their residence in the Philippines
have not mingled socially with the Filipinos or who have not
CIVIL LAW REVIEW
4B 2012
Art. 48- 51
PERSONS
28
evinced a sincere desire to learn and embrace all customs,

traditions, and ideals of the Filipinos;
(g) Citizens or subjects of nations with whom the Philippines is at war
during the period of war;
(h) Citizens or subject of a foreign country whose laws do not grant
Filipinos the right to become citizens or subject thereof
Q.
What law governs loss and reacquisition of citizenship?
A.
Commonwealth Act No. 63 as amended by R.A. No. 106.
Q.
What are the grounds for loss of citizenship?
A.
The following are grounds for loss of citizenship:

(a) Naturalization in a foreign country;
(b) Express renunciation of citizenship;
(c) Subscribing to an oath of allegiance to support the constitution or
laws of a foreign country upon attaining twenty-one years of age;
(d) By rendering service to or accepting commission in the armed forces
of another country;
(e) Cancellation of the certificate of naturalization;
(f) Having been declared by competent authority a deserter of the
Philippine armed forces in time of war; and
(g) In case of a woman, upon her marriage to a foreigner if by virtue of
the laws in force in her husbands country, she acquires his
nationality.
Q.
What are the grounds for reacquisition of citizenship?
A.
The grounds for reacquisition of citizenship are:

(1) Naturalization;
(2) Repatriation; and
(3) By direct act of Congress.
THE FAMILY CODE OF THE PHILIPPINES
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
29
Art 1-34
I, CORAZON C. AQUINO, President of the Philippines, by virtue of

the powers vested in me by the Constitution, do hereby order and
promulgate the Family Code of the Philippines, as follows:
Q. When did the Family Code take effect?
A.
The Family Code took effect on August 3, 1988.
MARRIAGE
30
the husband and the wife become one single moral, spiritual and social
being, not only for the purpose of procreation, but also for the purpose
of mutual help and protection physically, morally, and materially. (See
Saclolo v. CAR, 106 Phil. 1038)
Marriage a fundamental human right
TITLE I
MARRIAGE
Q.
Describe Marriage as a right recognized by law.
A.
Chapter 1
Marriage is one of the basic civil rights of man, fundamental to the

States existence and survival. (Skinner v. State of Oklahoma, 316 US
535) It is a fundamental human right recognized and protected by
international law, by our Constitution, and by statutory law.
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. (52a)
In international law, Article 16 of the Universal Declaration of Human

Rights specifically provides that men and women of full age, without
any limitation due to race, nationality or religion, have the right to
marry and to found a family. Two other treaties to which the
Philippines is a signatory, such as the International Covenant on Civil
and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), also protect the right
to marry.
Under the 1987 Constitution of the Republic of the Philippines, the
State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic social institution (Article II, Section
15, 1987 Constituition of the Republic of the Philippines). Marriage is
an inviolable social institution, the foundation of the family and shall
be protected by the State (Article 15, Section 2, supra). Marriage is
within the ambit of the constitutional right of association (Article III,
Section 8, supra) and the right to privacy.
Marriage definition and nature

Q.
Define Marriage. What are its basic elements?
A.
Article 1 of the Family Code defines marriage and provides for its basic
elements:
(1) A special contract of permanent union between man and woman;
(2) Entered into in accordance with law; and
(3) For the purpose of establishing conjugal and family life.
State Interest in Marriage
Q.
Describe the nature of Marriage.
Q.
A.
Being a special contract of permanent union, a man and a woman

enter a joint life acting, living, and working as one upon marriage,
Since marriage is so vested with public interest, provide certain

statutes that prohibit acts contrary to the spirit of marriage.
A.
Just to list a few:
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
31
Art 1-34
As marriage is a contract, are the contracting parties free to dictate its

terms?
A.
Generally, n,o. Marriage is considered the foundation of the family,

and an inviolable social institution whose nature, consequences and
incidents are governed by law and not subject to stipulation. (Article 1,
Family Code)
32
(2) That the religious marriage ceremony which the parties agreed to
hold after their civil marriage never took place. (See Anonymous v.
Anonymous, 49 NYSd 314)
1. The Revised Penal Code punishes any person who contracts

marriage knowing that the requirements of the law were not
met, or that a legal impediment to marriage exists;
2. Republic Act No. 6955 punishes any person who carries on a
Mail-Order Bride Business;
3. Republic Act No. 9208 punishes any person who would offer or
contract marriage for the purpose of prostitution, pornography,
sexual exploitation, forced labor or slavery, involuntary
servitude or debt bondage.
Q.
MARRIAGE
This is because these reasons were not among those provided in the
marriage laws of their respective States (See Bove v. Pinciotti, supra).
More importantly however, the status created by marriage is too
much a matter of public concern to allow the parties to tinker with it
according to their own notions of what is expedient and proper. (See
Anonymous v. Anonymous, supra)
Q.
How many parties are there to a marriage?
A.
Three two willing spouses and an approving State. (Manuel v.

People, 476 SCRA 461)
Q.
Is divorce allowed in the Philippines?
A.
No. However, the constitutional reverence for marriage and the family
does not mean that the Legislature may not enact a law allowing it.
Except: Marriage settlements may fix the property relations during

the marriage within the limits provided by the Family Code. (Article 1,
Family Code)
Effect of Company Policies on Employees contracting Marriage
Q.
Describe Marriage as a status.
Q.
MNO corporations employment policy disqualifies from work any

female employee who contracts marriage. Valid?
A.
Marriage is not at most a civil contract, but is at least a civil contract,

with status and the interest of the State added to it. (Bove v. Pinciotti,
46 Pa. D. & C. [C.P. 1942]) While other contracts may be modified or
fixed upon the consent of the parties, once a man and a woman enter
into marriage, the law steps in and holds both of them to various
obligations and liabilities. (Maynard v. Hill, 125 US 190)
A.
No. Such a vile policy is discriminatory and strikes at the very

essence, ideals and purpose of marriage as an inviolable social
institution and ultimately, of the family as the foundation of the
nation. (Philippine Telegraph and Telephone Company v. NLRC, 272
SCRA 596)
Q.
QRS corporations policy provides that in case two of its employees

should marry, one of them should resign. This is because of the
corporations apprehension that the employees will become less
efficient in the performance of their work. Valid?
For example, a marriage cannot be annulled for the following reasons:

(1) That the petitioner never really intended to marry the respondent,
but only to name the child in her womb (who, however, was never
born). (See Bove v. Pinciotti, supra); or
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 1-34
A.
Q.
A.
MARRIAGE
33
No. There is no LEGITIMATE BUSINESS CONCERN shown in

imposing the questioned policy. (See Star Paper Corporation v. Simbol,
487 SCRA 228).
Suppose A, employed at XYZ corporation, marries B, an employee of
DEF corporation. XYZ and DEF are competitors in the same industry.
XYZ corporations company policy requires A to inform the corporation
of his marriage to B, and if the corporation determines that the
marriage may pose a possible conflict of interest, A should resign.
Valid?
Yes. Where XYZ corporations policy is based on the possibility that a
competitor company (DEF) will gain access to its trade and business
secrets, the policy is reasonable. It involves a LEGITIMATE
BUSINESS CONCERN and does not violate the equal protection
clause of the constitution. (See Duncan v. Glaxo, 438 SCRA 343)
Marriage and the Right to Privacy

Q.
A.
A is married to B. Now, A suspected B of having an extra-marital

affair with C. As such A, without informing B, ransacked the latters
office and took documents that proved the affair. With these
documents, she filed a case for legal separation against B. Are the
documents admissible to prove the extra-marital affair?
No. While the marriage between A and B creates a permanent union
between them, B did not set aside his dignity and privacy as an
individual. The documents A acquired violated Bs right to privacy,
and are thus, inadmissible (See Zulueta v. CA, 253 SCRA 699).
Q.
A is married to B. A was prosecuted for murder. The prosecution now

wants to present B as a witness against A. Can they do so?
A.
Generally, no. B cannot testify against A without the latters consent,

while the marriage subsists. This is because the law ensures absolute
freedom of communication between spouses by making it privileged.
(Zulueta v. CA, supra).
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
34
Property Relations
Q.
Article 1 of the Family Code provides that the contracting parties to a

marriage may fix the property relations in a marriage settlement. Up
to what extent can the parties dictate its terms?
A.
The terms of the settlement should not contravene the provisions of

the Family Code. For example, the parties cannot provide that the
agreed property regime will take effect at a time other than the
celebration of marriage.
Law Governing Validity of Marriage

Q.
What law determines the validity of a marriage?
A.
The law in force at the time the marriage is contracted.
Q.
A and B, siblings, were married in 2015. Assuming the Family Code is

still in effect at that time, their marriage is considered void for being
an incestuous marriage. However, in 2020, Congress passes a law
allowing incestuous marriages. Is A and Bs marriage now valid
because of the subsequent law?
A.
Generally, no. A marriage void in toto at the time it was celebrated

cannot be validated by a subsequent statute. The exception is if the
subsequent statute expressly validates certain marriages formerly
considered invalid. (See 52 Am. Jur. 2d 955-956)
Art. 2. No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who
must be a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
35
Art 1-34
(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration
that they take each other as husband and wife in
the presence of not less than two witnesses of legal
age. (53a, 55a)
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect
the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally
and administratively liable. (n)
Art. 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the
solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in
the presence of not less than two witnesses of legal age
that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate
which shall be signed by the contracting parties and
their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party
at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses
CIVIL LAW REVIEW
4B 2012
MARRIAGE
36
to the marriage to write the name of said party, which

fact shall be attested by the solemnizing officer. (55a)
Q.
Does the law allow for same sex marriages?
A.
No. The contracting parties must be of the opposite sex a man and a
woman.
Q.
A, born a male, successfully has a sex change operation. Physically, A

is now a woman. Can she validly marry a man?
A.
No. In determining the sex of a person who contracts marriage, the

law looks to the sex of the person at the time of his birth. A successful
sex-reassignment surgery is of no consequence. (See Silverio v.
Republic, 537 SCRA 373)
Q.
A suffers from Congenital Adrenal Hyperplasia (CAH), a condition

where A has both male and female characteristics. Although A may
genetically be a female, A actually secretes male hormones, has no
female genitalia and truly feels like a male person. In short, A is
considered an intersex individual. Can A validly marry a woman?
A.
Yes, provided that at the age of majority, he makes the choice to live
and be treated under the law as a man. (See Republic v. Cagandahan,
565 SCRA 72)
Q.
What is the effect of the total absence of consent to a marriage?
A.
The total absence of consent makes the marriage void ab initio.
Q.
What is the effect of a defect in consent?
A.
Defect in consent makes the marriage valid, until annulled, hence, a

voidable one.
Q.
The law requires a particular form of consent to be given by the

contracting parties. True?
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
37
A.
False. Consent need not be expressed in any special manner or

particular form. (See Teter v. Teter, 101 Ind. 129) All that is needed is
a manifestation that the contracting parties take each other as
husband and wife.
Q.
Does the law allow for proxy marriages?
A.
No. The contracting parties must personally appear before the

solemnizing officer and make their personal manifestation of consent
to the marriage. Of course, the law requires that the solemnizing
officer have authority to solemnize the marriage.
Q. What happens when one of the witnesses to a marriage is not of legal

age?
A.
There are two views:

(1) The absence of a formal requisite makes the marriage void; and
(2) This is a mere irregularity as what is important is the agreement
itself of the contracting parties in the presence of the solemnizing
officer which constitutes the contract, hence the marriage is valid.
The latter is the better view. (See Perido v. Perido, 63 SCRA 97)
Q.
Are common law marriages recognized in the Philippines?
A.
They have never been and are still not recognized in our jurisdiction.
Q.
Is marriage by way of jest valid?
A.
No. There is no genuine consent on the part of both contracting
parties.
Q.
Generally, absence of any of the essential or formal requirements of a

marriage renders such marriage null and void. What are the
exceptions?
A.
The exceptions are:

1) Marriages in articulo mortis.
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
38
2) Marriage between two contracting parties living in places where

there are no means of transportation to enable them to appear
personally before the local civil registrar.
3) Marriages among Muslims and other ethnic cultural minorities
performed in accordance with their practices.
4) Marriages of couples without any impediment to marry and living
together as husband and wife for at least five years.
5) Marriage solemnized by a person without authority to solemnize a
marriage provided that either one of the parties believed in good
faith that such solemnizer had the proper authority.
Q.
Must the declaration of consent be vocally expressed?
A.
No. It may be shown by other manifestations or signs of approval and

consent. It is the agreement itself, and not the form in which it is
couched, which constitutes the contract.
Q.
What are some of the irregularities which do not affect the validity of a
marriage?
A.
These irregularities are:

(1) Absence of two witnesses of legal age during the marriage
ceremony. (Meister v. Moore, 96 US 76, 24 US L. Ed. 826)
(2) Absence of a marriage certificate. (People v. Janssen, 54 Phil.
176)
(3) Marriage solemnized in a place other than publicly in the
chambers of the judge or in open court, in church, chapel, or
temple, or in the office of the consul-general, consul, or viceconsul.
(4) Issuance of marriage license in city or municipality, which is not
the residence of either of the contracting parties. (Alcantara v.
Alcantara, G.R. No. 167746, August 28, 2007, 531 SCRA 446)
(5) Unsworn application for a marriage license.
(6) Failure of the contracting parties to present original birth
certificate or baptismal certificate to the local civil registrar, who
likewise failed to ask for the same.
(7) Failure of the contracting parties between the ages of eighteen
and twenty-one to exhibit consent of parents or persons having
CIVIL LAW REVIEW
4B 2012
Art 1-34
(8)
(9)
(10)
(11)
(12)
(13)
(14)
MARRIAGE
39
legal charge of them to the local civil registrar.

Failure of the contracting parties between the ages of twenty-one
to twenty-five to exhibit advice of parents to local civil registrar.
Failure to undergo marriage counseling.
Failure of the local civil registrar to post the required notices.
Issuance of marriage license despite absence of publication or
prior to the completion of the 10-day period for publication.
(Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007, 531
SCRA 446)
Failure of the contracting parties to pay the prescribed fees for
the marriage license.
Failure of the person solemnizing the marriage to send copies of
the marriage certificate to the local civil registrar. (Madridejos v.
De Leon, 55 Phil. 1)
Failure of the local civil registrar to enter the applications for
marriage licenses filed with him in the registry book in the order
in which they were received.
Art. 7. Marriage may be solemnized by:

1) Any incumbent member of the judiciary within the
courts jurisdiction;
2) Any priest, rabbi. imam, or minister of any church
or religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted him by his church or religious
sect and provided that at least one of the
contracting parties belongs to the solemnizing
officers church or religious sect;
3) Any ship captain or airplane chief only in the cases
mentioned in Article 31;
4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the
cases mentioned in Article 32; or
5) Any consul-general, consul or vice-consul in the
case provided in Article 10. (56a)
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
40
Q.
What is the significance of January 1, 1992?
A.
It was on this date that, with the advent of the Local Government
Code, Mayors are now allowed to solemnize marriages.
Q.
What is the presumption as regards to the authority of the

solemnizing officer?
A.
In the absence of a showing to the contrary, the authority of the

solemnizing officer is presumed. (Goshen v. Stonington, 4 Conn. 209,
10 Am. Dec. 121)
Q.
Must the solemnizing officer investigate whether or not the marriage

license is duly issued?
A.
No. All the solemnizing officer needs to know is that the license has
been issued by the competent official, and it may be presumed from
the issuance of the license that said official has fulfilled the duty to
ascertain whether the contracting parties had fulfilled the
requirements of law. (People v. Janssen, 54 Phil. 176)
Q.
In cases wherein the contracting parties are legally excused from

obtaining a marriage license because one of them is at the point of
death or there is no means of transportation to go to the local civil
registrar as their places of residence are far, does the same rule hold
true?
A.
No. In such cases, the solemnizing officer must undertake the

necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of any legal impediment to marry.
Q.
May judges solemnize marriages outside of their jurisdiction?
A.
No. Incumbent judges can only solemnize within their jurisdiction. If

they go outside their jurisdiction, the marriage is void as the
solemnizing officer has no authority, which is a formal requisite. This
is without prejudice to the defense that either of the parties believed in
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
41
good faith that such solemnizing officer has authority to conduct such
marriage.
Q.
What are the requisites for a priest, rabbi, imam, or minister of any
church or religious sect to be able to validly solemnize a marriage?
A.
Such priest, rabbi, imam, or minister must:

(1) be duly authorized y his or her church or religious sect;
(2) act within the limits of the written authority granted to him or her
by the church or religious sect;
(3) be registered with the civil registrar general; and
(4) at least one of the contracting parties whose marriage he or she is
to solemnize belongs to his or her church or religious sect.
Q.
What are the requisites for a ship captain or airplane chief to be able
to validly solemnize a marriage?
A.
The marriage must:

(1) be in articulo mortis;
(2) be between passengers or crew members; and
(3) generally, the ship must be at sea or the plane must be in flight; it
may nevertheless be solemnized during stopovers at ports of call.
Q.
What are the requisites for a military commander to validly solemnize

a marriage?
A.
The requisites are:

(1) he or she must be a military commander of a unit;
(2) he or she must be a commissioned officer;
(3) there must be a chaplain assigned to such unit;
(4) the said chaplain must be absent at the time of the marriage;
(5) the marriage must be one in articulo mortis; and
(6) the contracting parties, whether members of the armed forces or
civilians, must be within the zone of military operation.
Q.
What are the requisites for a consul-general, consul, or vice consul to

validly solemnize a marriage?
CIVIL LAW REVIEW
4B 2012
Art 1-34
A.
MARRIAGE
42
The requisites are:

(a) the contracting parties must both be Filipino citizens, otherwise the
marriage is void; the exception is if the marriage is recognized as
valid in the host country, and as such valid here pursuant to Article
26 of the Family Code; and
(b) the solemnities established by Philippine laws must be observed.
Art. 8. The marriage shall be solemnized publicly in the
chambers of he judge or in open court, in the church,
chapel or temple, or in the office of the consul-general,
consul or vice-consul, as the case may be, and not
elsewhere, except in the cases of 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 to that effect.
(57a)
Q.
What are the minimum requirements of a marriage ceremony?
A.
The contracting parties must appear personally before the solemnizing

officer and declare that they take each other as husband and wife in
the presence of at least two witnesses of legal age.
Q.
Will the non-observance of Article 8 still produce a valid marriage?
A.
Yes. This article is directory in nature
Q.
What are the exceptions to the rule on venue in marriage?
A.
The exceptions are:

(1) marriages contracted in articulo mortis;
(2) marriages contracted in a remote place in accordance with Article
29; and
(3) marriages where both parties request a solemnizing officer in
writing in which case the marriage may be solemnized at a house or
place designated by them in a sworn statement to that effect.
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
43
Art 1-34
Art. 9. A marriage license shall be issued by the local civil

registrar of the city or municipality where wither
contracting party habitually resides, except in marriages
where no license is required in accordance with Chapter
2 of this Title. (58a)
Q.
Where should the marriage license be issued?
A.
By the local civil registrar of the place where the marriage application
was filed. If performed by a consul-general, consul, or vice-consul, the
marriage license shall be issued in the respective consulate.
Q.
What if the marriage license is issued in a place where the contracting

parties do not reside?
A.
This is considered as a mere irregularity which will not render a

marriage null and void or even annullable. (People v. Janssen, supra)
Q.
What is the lifetime of a marriage license?
A.
120 days from the date of the signing of the marriage license by the
local civil registrar. After 120 days, it automatically expires.
Q.
Does the fact that a party to whom the license is issued is represented
by a name other than his true name or had his name spelled
incorrectly affect the validity of such marriage?
A.
No. This will not invalidate the marriage solemnized on the authority
of such license.
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 a
marriage license and the duties of the local civil registrar
and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said
consular official. (75a)
CIVIL LAW REVIEW
4B 2012
MARRIAGE
44
Art. 11. Where a marriage license is required, each of the

contracting parties shall file separately a sworn
application for such license with the proper local civil
registrar which shall specify the following:
(1)Full name of the contracting party;
(2)Place of birth;
(3)Age and date of birth;
(4)Civil status;
(5)If previously married, how, when and where the
previous marriage was dissolved or annulled;
(6)Present residence and citizenship;
(7)Degree of relationship of the contracting parties;
(8)Full name, residence and citizenship of the father;
(9)Full name, residence and citizenship of the mother;
and
(10)
Full name, residence and citizenship of the
guardian or person having charge, in case the
contracting party has neither father nor mother
and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be
required to exhibit their residence certificates in any
formality in connection with the securing of the
marriage license. (59a)
Q.
If the local civil registrar has knowledge of some legal impediment, can
said registrar discontinue processing the application for marriage?
A.
No. He or she must only note down the legal impediments in the
application and thereafter issue the marriage license, unless otherwise
stopped by the court. Once signed and sworn to by the parties, the
registrar has no choice but to accept the application and process the
same up to the time of the issuance of the marriage license.
Art. 12. The local civil registrar, upon receiving such
application, shall require the presentation of the original
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
45
Art 1-34
birth certificates or, in default thereof, the baptismal

certificates of the contracting parties or copies of such
documents duly attested by the persons having custody
of the originals. These certificates or certified copies of
the documents by this Article need not be sworn to and
shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
CIVIL LAW REVIEW
4B 2012
46
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.
If either of the contracting parties is unable to produce

his birth or baptismal certificate or a certified copy of
either because of the destruction or loss of the original or
if it is shown by an affidavit of such party or of any other
person that such birth or baptismal certificate has not
yet been received though the same has been required of
the person having custody thereof at least fifteen days
prior to the date of the application, such party may
furnish in lieu thereof his current residence certificate or
an instrument drawn up and sworn to before the local
civil registrar concerned or any public official
authorized to administer oaths. Such instrument shall
contain the sworn declaration of two witnesses of lawful
age, setting forth the full name, residence and citizenship
of such contracting party and of his or her parents, if
known, and the place and date of birth of such party. The
nearest of kin of the contracting parties shall be
preferred as witnesses, or, in their default, persons of
good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall
not be required if the parents of the contracting parties
appear personally before the local civil registrar
concerned and swear to the correctness of the lawful age
of said parties, as stated in the application, or when the
local civil registrar shall, by merely looking at the
applicants upon their personally appearing before him,
be convinced that either or both of them have the
required age. (60a)
MARRIAGE
In case the death certificate cannot be secured, the party

shall make an affidavit setting forth this circumstance
and his or her actual civil status and the name and date
of death of the deceased spouse. (61a)
Art. 14. In case either or both of the contracting parties,
not having been emancipated by a previous marriage,
are between the ages of eighteen and twenty-one, they
shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to
their marriage of their father, mother, surviving parent
or guardian, or persons having legal charge of them, in
the order mentioned. Such consent shall be manifested in
writing by the interested party, who personally appears
before the proper local civil registrar, or in the form of
an affidavit made in the presence of two witnesses and
attested before any official authorized by law to
administer oaths. The personal manifestation shall be
recorded in both applications for marriage license, and
the affidavit, if one is executed instead, shall be attached
to said applications. (61a)
Q.
Is there still emancipation by marriage?
A.
No. Emancipation is reached if the child attains the age of 18 years.
Q.
In what instance is parental consent required in order to obtain a

marriage license?
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
47
A.
Parental consent is required when either or both of the contracting

parties are between the ages of 18 and 21 years old. (Article 14, Family
Code)
Q.
Who may give parental consent to obtain a marriage license?
A.
Parental consent may be given by the father, mother, surviving

parent, guardian, or persons having legal charge of the contracting
party, in the order mentioned. This means that preference is given to
the father, and in the latters default, it shall be the mother, and so on.
(Article 14, Family Code)
Q.
What is the effect on the marriage if there is no parental consent given

to a contracting party in applying for a marriage license?
A.
Under Article 45(1) of the Family Code, the absence of parental

consent makes the marriage annullable. Therefore the marriage is
considered valid until terminated.
Art 1-34
MARRIAGE
48
been sought, together with the written advice given, if

any, shall be attached to the application for marriage
license. Should the parents or guardian refuse to give
any advice, this fact shall be stated in the sworn
statement. (62a)
Art. 16. In the cases where parental consent or parental
advice is needed, the party or parties concerned shall, in
addition to the requirements of the preceding articles,
attach a certificate issued by a priest, imam or minister
authorized to solemnize marriage under Article 7 of this
Code or a marriage counselor duly accredited by the
proper government agency to the effect that the
contracting
parties
have
undergone
marriage
counseling. Failure to attach said certificates of marriage
counseling shall suspend the issuance of the marriage
license for a period of three months from the completion
of the publication of the application. Issuance of the
marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions
but shall not affect the validity of the marriage.
The lack of parental consent may also subject those who have
neglected to acquire it to penalties of the law. (Cushman v. Cushman,
80 Was. 615)
Q.
In what instance will the marriage be considered void despite the

presence of parental consent?
Should only one of the contracting parties need parental

consent or parental advice, the other party must be
present at the counseling referred to in the preceding
paragraph. (n)
A.
The marriage will be void despite the presence of parental consent if

any of the contracting parties is below 18 years old.
Q. When is parental advice required in order to obtain a marriage

license?
Art. 15. Any contracting party between the age of twentyone and twenty-five shall be obliged to ask their parents
or guardian for advice upon the intended marriage. If
they do not obtain such advice, or if it be unfavorable,
the marriage license shall not be issued till after three
months following the completion of the publication of the
application therefor. A sworn statement by the
contracting parties to the effect that such advice has
A.
Parental advice is required if either or both contracting parties are

between the ages of 21 and 25 years old. (Article 15, Family Code)
Q.
Who may give parental advice to obtain a marriage license?
A.
According to Article 15 of the Family Code, the parents or guardian

may give advice upon the intended marriage.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 1-34
Q.
A.
MARRIAGE
49
What is the effect on the marriage if there is no parental advice given

to a contracting party in applying for a marriage license?
Art 1-34
A.
The absence of parental advice, or should it be unfavorable, does not

affect the validity of the marriage. It only serves to delay the issuance
of the marriage license until after three months following the
completion of the publication of the application for marriage license.
The requirement of a parental advice for those 21 to 25 years of age is

in keeping with Philippine tradition. It is a means to induce further
and more mature deliberation over the decision to get married.
(Minutes of the 185th Meeting of the Civil Code and Family Law
committees, Jun. 27, 1987, page 6)
Q.
In cases where parental consent or parental advice is needed, what

other requirement must be submitted to the local civil registrar in
order to obtain a marriage license?
A.
A certificate attesting to the fact that the contracting parties have

undergone marriage counseling shall be submitted in addition to the
requirement of parental consent or parental advice.
Such certificate can be issued either by:
(1) a priest, imam or minister authorized to solemnize marriages under
Article 7 of the Family Code; or
(2) a marriage counselor duly accredited by the proper government
agency.
If only one of the contracting parties needs parental consent or
parental advice, the other contracting party must be present at the
marriage counseling. (Article 16, Family Code)
Q.
50
The failure to submit a certificate of marriage counseling does not

affect the validity of the marriage. Similar to the requirement of a
parental advice, it only serves to delay the issuance of the marriage
license for a period of three months from the completion of the
publication of the application for marriage license.
If a marriage license is issued within this three-month period despite
the absence of a certificate of marriage counseling, the issuing officer
may be subject to administrative sanctions. (Article 16, Family Code)
Q. What is the purpose or policy behind the requirement of parental

advice?
A.
MARRIAGE
Art. 17. The local civil registrar shall prepare a notice

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

publication of the notice, except when parental advice has not been
given or is unfavorable, or when the certificate of marriage counseling
has not been submitted.
The notice is issued by the local civil registrar and contains the full
names and residences of the contracting parties, as well as other data
provided in the application. The notice is effectively a request to all
persons having knowledge of any impediment to the marriage, to
advise the local civil registrar thereof.
What is the effect on the marriage if the contracting parties fail to

submit a certificate of marriage counseling?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
51
Art 1-34
The notice is posted for 10 consecutive days on a bulletin board outside

the office of the local civil registrar, in a conspicuous place within the
building, and accessible to the general public.
Q.
What is the period of validity of a marriage license?
A.
A marriage license is valid for 120 days from the date of its issue. It is
valid only within the Philippines.
What is deemed to be the date of issue of the marriage license?
A.
The marriage license is deemed issued on the date of signing of the

marriage license by the local civil registrar. Therefore the period of
validity of a marriage license shall be counted from this date of
signing.
Art. 18. In case of any impediment known to the local
civil registrar or brought to his attention, he shall note
down the particulars thereof and his findings thereon in
the application for marriage license, but shall
nonetheless issue said license after the completion of the
period of publication, unless ordered otherwise by a
competent court at his own instance or that of any
interest party. No filing fee shall be charged for the
petition nor a corresponding bond required for the
issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment
of the fees prescribed by law or regulations before the
issuance of the marriage license. No other sum shall be
collected in the nature of a fee or tax of any kind for the
issuance of said license. It shall, however, be issued free
of charge to indigent parties, that is those who have no
visible means of income or whose income is insufficient
CIVIL LAW REVIEW
4B 2012
52
for their subsistence a fact established by their affidavit,

or by their oath before the local civil registrar. (65a)
Art. 20. The license shall be valid in any part of the
Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed automatically
canceled at the expiration of the said period if the
contracting parties have not made use of it. The expiry
date shall be stamped in bold characters on the face of
every license issued. (65a)
If the marriage license is not used within the 120 days, then it is
deemed automatically cancelled. (Article 20, Family Code)
Q.
MARRIAGE
Q.
What is the scope of the investigative power of the local civil registrar?
A.
The investigative power of the local civil registrar is limited to noting

down impediments to a marriage that is known to him or brought to
his attention, and his findings thereon, in the application for marriage
license. (Article 18, Family Code)
Q. Can the local civil registrar withhold the issuance of a marriage

license?
A.
The local civil registrar is not authorized to withhold the issuance of

the marriage license. Even if an impediment to the marriage is known
by or made known to the local civil registrar, he is duty bound to issue
the marriage license upon payment of the necessary fees, with the
exception of indigent applicants.
Q.
In what instance may the local civil registrar withhold issuance of a

marriage license?
A.
The local civil registrar may withhold issuance of a marriage license

upon order by a competent court initiated by the local civil registrar or
that of any interested party. (Article 18, Family Code)
Interested party includes the contracting parties parents, brothers,
sisters, existing spouse, or those which may be prejudiced by the
marriage.
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
53
Art 1-34
The petition filed in court to prevent the issuance of the marriage

license (i.e. injunction) shall require no filing fee, nor shall a
corresponding bond be required for the issuance of the court order.
What is the effect on the marriage if a marriage license is issued

despite an injunction on it issued by a competent court?
A.
The issuance of the marriage license despite the injunction from the
court is only an irregularity in the formal requisites of a valid
marriage license. Therefore it does not affect the validity of the
marriage. However, the party or parties responsible for such
irregularity may be held civilly, criminally, or administratively liable.
Q.
What is the policy behind the ministerial duty of the local civil
registrar to issue marriage licenses, except upon order by a competent
court?
A.
It is to eliminate any opportunity for extortion. (Minutes of the 145th

Joint Meeting of the Civil Code and Family Law committees, Jun. 28,
1986, page 10)
Q.
Who are exempted from the payment of marriage license fees?
A.
Indigent parties are exempted from payment of any fees relating to the
issuance of a marriage license. Indigent parties are those who: (1) have
no visible means of income; or (2) whose income is insufficient for their
subsistence.
CIVIL LAW REVIEW
4B 2012
54
For an indigent party to be excluded from payment of marriage license

fees, he must establish the fact of his indigence via affidavit, or by oath
before the local civil registrar. (Article 19, Family Code)
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.
The local civil registrar may also withhold the issuance of a marriage
license when the contracting parties are foreigners and fail to submit a
certificate of legal capacity as required in Article 21 of the Family
Code. In such a case, the foreigners must intend to have their
marriage solemnized by persons listed in Article 7 of the Family Code
or the mayor pursuant to the Local Government Code.
Q.
MARRIAGE
Stateless persons or refugees from other countries shall,

in lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a)
Q.
When a foreigner wishes to marry in the Philippines, what must he or

she submit to the local civil registrar to obtain a marriage license?
A.
A foreigner must submit a certificate of legal capacity to contract

marriage issued by his/her diplomatic or consular officials. If the
foreigner is a stateless person or a refugee from another country, then
he/she must submit an affidavit stating the circumstances showing
his/her capacity to contract marriage. The affidavit shall be submitted
in lieu of the certificate of legal capacity issued by diplomatic or
consular officials. (Article 21, Family Code)
Q.
Can the local civil registrar withhold the issuance of a marriage license
to a foreigner who has not complied with the provisions of Article 21 of
the Family Code?
A.
Yes. This is one of the exceptions to the rule that the local civil
registrar must issue a marriage license even if he finds an impediment
to the impending marriage. The other exception is when there is an
order from a competent court prohibiting the local civil registrar from
doing the same.
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
55
Art 1-34
Nonetheless, issuance of the marriage license despite non-compliance

with Article 21 is a mere irregularity in a formal requirement of the
law. The resulting marriage will still be valid.
Q.
In what instance can a foreigner marry in the Philippines without

obtaining a marriage license with the local civil registrar?
A.
No marriage license is required if the contracting parties are

foreigners who desire to have their marriage solemnized by their
countrys consul-general officially assigned in the Philippines, and
provided that their countrys laws allow the same.
Art. 22. The marriage certificate, in which the parties
shall declare that they take each other as husband and
wife, shall also state:
(1)The full name, sex and age of each contracting
party;
(2)Their citizenship, religion and habitual residence;
(3)The date and precise time of the celebration of the
marriage;
(4)That the proper marriage license has been issued
according to law, except in marriage provided for in
Chapter 2 of this Title;
(5)That either or both of the contracting parties have
secured the parental consent in appropriate cases;
(6)That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice in appropriate cases; and
(7)That the parties have entered into marriage
settlement, if any, attaching a copy thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the
marriage to furnish either of the contracting parties the
original of the marriage certificate referred to in Article
6 and to send the duplicate and triplicate copies of the
certificate not later than fifteen days after the marriage,
to the local civil registrar of the place where the
CIVIL LAW REVIEW
4B 2012
MARRIAGE
56
marriage was solemnized. Proper receipts shall be issued

by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The
solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the copy
of the marriage certificate, the original of the marriage
license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the
marriage in place other than those mentioned in Article
8. (68a)
Q.
State the rule on presumption of marriage.
A.
That a man and a woman deporting themselves as husband and wife

have entered into a lawful contract of marriage is a presumption
which is considered satisfactory if uncontradicted, but may be
contracted and overcome by evidence. (Rule 131, Section 5[aa], New
Rules of Court of the Philippines).
Semper presumitur pro matrimonio always presume marriage
means that public policy should aid acts that are intended to validate
marriages and to retard acts that are intended to invalidate
marriages. This is necessary for the order of society. (Adong v. Cheong
Seng Gee, 43 Phil. 43).
Q.
What is the best evidence of a marriage?
A.
The best evidence of a marriage is the marriage contract or the

marriage certificate. (Lim Tanhu v. Ramolete, 66 SCRA 425)
It must be the original for a mere photocopy is a worthless piece of
paper. (Vda. de Chua v. Court of Appeals, G.R. No. 116835, Mar. 5,
1998) The exception is when the photocopy of the marriage certificate
is issued by the Office of the Local Civil Registrar and duly certified by
it as an authentic copy of the records in his office. Such photocopy is
admissible as evidence.
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
57
But when the photocopy of the marriage certificate is not certified by

the Office of the Local Civil Registrar, but is presented in court
without objection from the opposing party and consequently admitted
by the court, then it serves as proof of marriage or the facts contained
therein. (Sy v. Court of Appeals, G.R. No. 127263, Apr. 12, 2000)
Q.
What other evidence is deemed sufficient to prove marriage?
A.
Baptismal certificates, birth certificates, judicial decisions, and family

bible in which the names of the spouses have been entered as married
can serve as evidences of marriage. (Trinidad v. Court of Appeals, 289
SCRA 188; Orfila v. Arellano, 482 SCRA 280).
Q.
Does the absence of a marriage certificate prove that there was in fact
no marriage?
A.
No. In Delgado Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. de

Damian (G.R. No. 155733, Jan. 27, 2006), the Court stated that
although a marriage contract is the primary evidence of marriage, its
absence does not always prove that no marriage took place. This is
because once the presumption of marriage arises, other evidence may
be presented in support thereof. The evidence presented need not
necessarily or directly establish the marriage but must at least be
enough to strengthen the presumption of marriage.
Therefore marriage may be proved by parol evidence (Watson v.
Lawrence, 134 La. 48), but both the testimony and the witness must
be credible.
Q.
Is mere cohabitation direct proof of marriage?
A.
No. To prove marriage, proper documents or oral testimony, in case

the former has been lost, must be adduced. The conduct of the parties
must show more than mere living together. Cohabitation must be
accompanied by conduct showing that they intended to do so as
husband and wife. (Cox v. State, 117 Ala. 103)
Q.
What kind of proof is required to attack the validity of a marriage?
CIVIL LAW REVIEW
4B 2012
Art 1-34
A.
MARRIAGE
58
The evidence assailing the validity of the marriage must be strong,

distinct, and satisfactory in order to overcome the presumption of
legality of marriage. (Murchison v. Green, 128 Ga. 339, 11 LRA [NS]
702).
Thus mere statement of a civil status of a person in a certificate of title
is not sufficient to assail the validity of a marriage. (Perido v. Perido,
63 SCRA 97). So is a marriage license obtained in a place other than
the place of residence of any of the contracting parties, since it is
merely an irregularity that does not invalidate the marriage. (People v.
Janssen, 54 Phil. 176) Certification issued by the local civil registrar
that no marriage license was issued to the parties, but with an
admission that due to the work load of the office, it cannot give full
force in locating the said marriage license, does not amount to a nullity
of the marriage. (Sevilla v. Cardenas, 497 SCRA 428)
Q.
What remedy is available to persons that are not certain as to whether

or not they are legally allowed to marry?
A.
The person can file a petition for declaratory relief to seek from the
court a judgment on his/her capacity to marry. (Republic v. Orbecido
III, 472 SCRA 114).
Q.
What are the duties of the solemnizing officer with respect to the
marriage certificate?
A.
The solemnizing officer has the duty to:

(1) furnish either of the contracting parties the original of the marriage
certificate;
(2) to send to the local civil registrar where the marriage was
solemnized the duplicate and triplicate copies of the marriage
certificate not later than 15 days after the marriage; and
(3) to retain in his file the quadruplicate copy of the: (a) marriage
certificate; (b) the original marriage license; and (c) the affidavit of
the contracting party regarding the solemnization of the marriage
in a place other than what is mentioned in Article 8 of the Family
Code. (Article 23, Family Code)
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
59
Art 1-34
MARRIAGE
60
Q.
What is the effect of the failure of the solemnizing officer to discharge

his duties with respect to the marriage certificate as required in
Article 23 of the Family Code? (see previous question and answer)
where they were solemnized, and valid there as such,

shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6), 3637 and
38. (17a)
A.
Under Section 41 of the Marriage Law of 1929, the officer, priest, or

minister who fails 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, shall be punished by
imprisonment of not more than one month, or by a fine of not more
than 300 pesos, or both, in the discretion of the court.
Where a marriage between a Filipino citizen and a

foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended
by Executive Order 227)
Art. 24. It shall be the duty of the local civil registrar to

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

contains details of all persons married in its locality. It contains: (1)
the full names, ages, and addresses of the contracting parties; (2) the
date and place of the solemnization of the marriage; (3) the full names
and addresses of the: (a) witnesses; (b) the persons who consented to
the marriage (including their relationship with the contracting
parties); and (c) the person who solemnized the marriage.
Art. 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country
CIVIL LAW REVIEW
4B 2012
Q.
What is the general rule followed by the Philippines in determining

the validity of a marriage?
A.
The Philippines follows the lex loci celebrationis rule. The validity of a
marriage is determined in reference to the law of the place where it is
celebrated. Thus a marriage valid in the place where it is celebrated is
considered valid in the Philippines.
Q.
What is the exception to the general rule followed by the Philippines in

determining the validity of a marriage?
A.
While the Philippines follows the general rule of lex loci celebrationis,
and therefore recognizes as valid a marriage that is also valid under
the law of the country where it is celebrated, the exception is found in
marriages prohibited under Articles 35(1), (4), (5), and (6), 36, 37, and
38. Any marriage falling under these mentioned articles remain
invalid in the Philippines, even if celebrated in a country where the
laws recognize its validity. The reason behind this exception lies in
comity. Each sovereign has the right to declare what marriages it will
or will not recognize.
Q.
Are common law marriages obtained abroad by Filipinos valid in the

Philippines?
A.
No, Philippine laws do not recognize common law marriages obtained

abroad by Filipinos. The first paragraph of Article 26 makes use of the
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
61
term solemnized and not merely contracted. The second paragraph

uses the term celebrated. By the use of these words, it is therefore
required that there is performance of the formal act or ceremony
joining man and woman as husband and wife for a marriage to be
deemed valid.
Q.
Are same sex marriages of Filipinos abroad valid in the Philippines?
A.
No. Such marriages are prohibited by public policy. Also, the Family
Code is replete with terms and articles (e.g. husband and wife, father
and mother, man and woman) clearly indicating that the law intended
heterosexual relationships.
Q.
How do you prove a foreign marriage?
A.
To establish a valid marriage pursuant to the comity provision of

Article 26, it is necessary to prove the foreign law as a question of fact
and then to prove the celebration of marriage pursuant thereto by
convincing evidence. (Ching Huat v. Co Heong, 77 Phil. 988) The
presumption arises on proof of a marriage in another jurisdiction, that
such marriage was performed in accordance with the law of that
jurisdiction. (Patterson v. Gaines, 12 L. Ed. 553) If such law of the
other state is not pleaded nor proved and for the purpose of
determining the validity of a marriage in the said state, the laws of
such state, in the absence of proof to the contrary, will be presumed by
the court to be the same as the laws of its own state. (Wong Woo Yin v.
Vivo, 13 SCRA 552).
Q.
Who has the burden of proving the fact of a foreign marriage?
A.
He who asserts that the marriage is not valid under our law bears the
burden of proof to present the foreign law. (Board of Commissioners
(CID) v. Dela Rosa, 197 SCRA 853)
Q.
Is absolute divorce recognized here in the Philippines?
A.
Generally, absolute divorce between two citizens of the Philippines is

not recognized in the Philippines. (Garcia v. Recio, G.R. No. 138322,
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
62
October 2, 2001) Divorce initiated by a Filipino is against public policy.

(Cang v. Court of Appeals, 296 SCRA 128)
Q.
A Filipino couple is wed here in the Philippines. Years later, they

obtain a divorce decree from New York. Thereafter, the woman got
married again. Is the second marriage valid?
A.
No. As Philippine law does not recognize divorce, the wife then
committed adultery in entering into the second marriage. (Tenchavez
v. Escano, 15 SCRA 256).
Q.
An American couple is wed in New York. Years later, they obtain a

divorce decree from New York. Thereafter, the woman got married
again. Is the second marriage valid?
A.
Yes, provided the divorce is duly proven in court. Aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided,
they are valid according to their national law. The foreign marital law
and the divorce decree must be duly proven and cannot be taken
judicial notice of. (Garcia v. Recio, G.R. No. 138322, October 2, 2001).
Our civil law adheres to the nationality rule on the matter of status or
legal capacity of a person. (Recto v. Harden, 100 Phil. 427; Van Dorn
v. Romillo, 139 SCRA 139; Pilapil v. Ibay Somera, 174 SCRA 653)
Q.
In what instances does the second paragraph of Article 26 apply?
A.
The second paragraph of article 26 applies to the following:

(1) where a valid marriage is celebrated, either in the Philippines or
abroad, between a Filipino citizen and a foreigner and,
subsequently, the foreigner-spouse obtains a valid divorce abroad
capacitating him or her to remarry (2nd paragraph Article 26,
Family Code); and
(2) where originally, at the time of the marriage ceremony, both parties
were Filipinos, but at the time of the divorce, the petitioner was
already a citizen of a foreign country that allows absolute divorce
(Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472
SCRA 114).
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
63
Art 1-34
MARRIAGE
64
Q.
What is the effect of change of citizenship of a former Filipino as to the

applicability of Article 26?
Q.
What is the effect on a foreigner spouse if a divorce decree is

recognized?
A.
None. If the Filipino spouse subsequently acquires his or her foreign

spouses citizenship before the divorce and he or she initiates the
divorce proceeding, the eventual divorce decree will be recognized in
the Philippines not because of Article 26 but because of our adherence
to the nationality principle with respect to the status of a person.
(Quita v. Court of Appeals, 300 SCRA 406; Llorente v. Court of
Appeals, G.R. No. 124371, November 23, 2000; Garcia v. Recio, supra).
A.
The foreign spouse who obtained the divorce decree loses his right to
claim interest in properties of the Filipino spouse. (Van Dorn v.
Romillo, 139 SCRA 139). The foreigner husband also cannot file a
criminal case for adultery because, while the Filipino wife is still
considered married to him under Philippine laws, such foreigner is not
considered married to her and, therefore, does not have any legal
standing to file such criminal case. (Pilapil v. Ibay Somera, 174 SCRA
653)
Q.
A former Filipino citizen gets a divorce abroad. He/she decides to come

home to the Philippines and reacquire his/her Philippine citizenship.
What is the effect to the divorce decree?
Q.
How is a foreign decree recognized in the Philippines?
A.
In cases where it can be validly recognized, a foreign divorce would

first have to be proven by presentation of a foreign divorce decree duly
authenticated by the foreign court. Thus, in the case of Roehr v.
Rodriguez, the Supreme Court said that before our courts can give the
effect of res judicata to a foreign judgment of divorce, it must be shown
that the parties opposed to the judgment had been given ample
opportunity to do so on grounds allowed under Rule 39, Section 48 of
the 1997 Rules of Civil Procedure.
Q.
Upon the presentation of a duly authenticated copy, will the divorce

decree then have a conclusive effect upon Philippine courts such that it
is bound to recognize it?
A.
No. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is subject to proof to the
contrary. (Rule 39, Section 48, Rules of Civil Procedure).
Q.
What is the effect of valid recognition of a divorce decree?
A.
The marital vinculum between Rebecca and Vicente is considered

severed; they are both freed from the bond of matrimony.
A.
None, the divorce decree will still be recognized here. This is because
at the time of the filing of the petition for divorce, and at the time of
the issuance of the decree of divorce, he or she was not a citizen of the
Philippines. His or her status, therefore, at the time of the divorce will
be governed by the foreign country of which he or she is a naturalized
citizen and will continue even after he or she successfully reacquires
Philippine citizenship. (Recio v. Garcia, supra).
Q.
Marriage is between two Filipinos and one of them obtains an absolute

divorce abroad after he has been naturalized as a citizen of a foreign
country where absolute divorce is recognized. Such naturalized
divorcee got a second marriage. Is the second marriage valid?
A.
Yes, following the nationality principle. At the time of the divorce, he

was already a foreigner. (Recio v Garcia, supra).
Q.
What is the effect if a Filipino obtains a divorce decree abroad from his
foreigner spouse?
A.
As to the foreigner spouse, the divorce decree is recognized here. As to

the Filipino spouse, however, it is not recognized.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 1-34
Q.
A.
MARRIAGE
65
What is the status in the Philippines of a marriage contracted abroad

but is null and void under the laws of such foreign state?
A.
In the event that a Filipino contracts a foreign marriage which is null

and void under the laws of the state where it has been solemnized,
such marriage shall likewise be null and void in the Philippines.
Q.
How then do you assail here in the Philippines marriage contracted

abroad but is null and void under the laws of such foreign state?
A.
A civil case can be filed in the Philippines to nullify a foreign marriage

using as basis the legal grounds for nullity provided by the marriage
laws of the state where the marriage was celebrated.
Q.

which is null and void under the laws of such foreign state but valid
under the laws of the Philippines?
A.
Art 1-34
Implicit in the first paragraph of Article 26 is also the recognition that

a Filipinos foreign marriage, which is invalid under the laws where
such marriage has been solemnized but which would have been valid
had such marriage been celebrated in the Philippines, is likewise
invalid in the Philippines. Thus, if a Filipino contracts a marriage
solemnized in the residence of the solemnizing judge in a country
where the law provides that a marriage shall be void if celebrated in a
place other than the chambers of the solemnizing judge, such marriage
shall be considered void in the Philippines although such marriage
would have been valid had the celebration been performed in the
Philippines also in the residence of the judge.
Q.
What is the extent of the authority of a Philippine judge to wed

persons?
A.
That the judge is within his or her jurisdiction, the venue of the
marriage ceremony can be anywhere within his or her jurisdiction.
Q.

but is voidable or annullable under the laws of such foreign state?
CIVIL LAW REVIEW
4B 2012
MARRIAGE
66
In case of voidable or annullable marriage (valid up to the time of

termination), the same rule as in null and void marriages applies.
Article 27. In case either or both of the contracting
parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and
shall remain valid even if the ailing party subsequently
survives. (72a)
Article 28. If the residence of either party is so located
that there is no means of transportation to enable such
party to appear personally before the local civil registrar,
the marriage may be solemnized without necessity of a
marriage license. (72a)
Q.
In marriages celebrated in articulo mortis and exempted from the

marriage license requirement, what is the effect if the spouse who was
at the point of death subsequently survives?
A.
The marriage remains valid.

Article 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. (72a)
Article 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
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
67
solemnizing the marriage to the local civil registrar of

the municipality where it was per formed within the
period of thirty days after the performance of the
marriage. (73a)
Q.
What happens to a marriage celebrated by a solemnizing officer who

fails to comply with the procedural requirements under Articles 29
and 30?
A.
The marriage remains valid. The procedure laid down in Articles 29 to

30 of the Family Code relative to the duties of the solemnizing officer
with respect to the affidavit he or she has to execute is merely
directory in character. Non-observance of the requirements will not
render the marriage void or annullable (Loria v. Felix, 55 O.G. 8118).
However, under the Marriage Law of 1929, any officer, priest or
minister who, having solemnized a marriage in articulo mortis or any
other marriage of an exceptional character, shall fail to comply with
the provisions of Chapter 2, Title I of the 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, or both, in the discretion of the court.
Article 31. A marriage in articulo mortis between
passengers or crew members may also be solemnized by
a ship captain or by an airplane pilot not only while the
ship is at sea or the plane is in flight, but also during
stopovers at ports of call. (74a)
Q.
When can a chief plane pilot or a ship captain solemnize marriage?
A.
A chief pilot or a ship captain may solemnize only marriages in

articulo mortis while the plane is in flight or the ship is at sea and
even during stopovers at ports of call. They can solemnize marriages
only among their passengers and crew members.
Article 32. A military commander of a unit, who is a
commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
68
within the zone of military operation, whether members

of the armed forces or civilians. (74a)
Q.
When may a military commander solemnize marriage?
A.
As far as the military commander is concerned, he or she must be a

commissioned officer, which means that his or her rank should start
from a second lieutenant, ensign and above. (Webster Dictionary, 1991
edition) He or she must likewise be a commander of at least a
battalion. Also he or she can only solemnize a marriage if it is in
articulo mortis and in the absence of a chaplain. The marriage must be
solemnized within the zone of military operation and during such
military operation. The contracting parties may either be members of
the armed forces or civilians.
Article 33. Marriages among Muslims or among members
of the ethnic cultural communities may be performed
validly without the necessity of a marriage license,
provided they are solemnized in accordance with their
customs, rites or practices. (78a)
Q.
Are all ethnic groups exempted by Article 33 from the marriage

requirement?
A.
No, only Muslim tribes (Code of Muslim Personal Laws) and

indigenous tribal groups/cultural communities in the Cordillera
Autonomous Region (CAR, RA 6766) are exempted from the marriage
license requirement. As to other ethnic groups in the Philippines, they
are still governed by the Family Code, as they do not have a separate
law.
Article 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
CIVIL LAW REVIEW
4B 2012
Art 1-34
MARRIAGE
69
he ascertained the qualifications of the contracting

parties and found no legal impediment to the marriage.
(76a)
Q.
A.
Art 1-34
MARRIAGE
70
is a substantial requirement of the law to be exempted from obtaining

a marriage license.
What are the requisites for a marriage to be validly exempted from the
marriage license requirement under Article 34?
With respect to the exemption relative to persons cohabiting for at
least five years under Article 34 of the Family Code, it must be
observed that their living together as husband and wife must meet two
distinct conditions namely: (1) they must live as such for at least five
years characterized by exclusivity and continuity that is unbroken
(Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435);
and (2) they must be without any legal impediment to marry each
other.
Q.
Must the legal impediment be absent for the whole five years?
A.
No, for while the two requisites must concur, they do not qualify each
other. In other words, during the five-year period, it is not necessary
that they must not have suffered from any legal impediment. The
second condition as to the absence of any legal impediment must be
construed to refer only to the time of the actual marriage celebration.
Q.
A couple files an affidavit claiming that they have cohabited as

husband and wife for more than five years to qualify them for the
exemption from the marriage license requirement. In truth and in fact,
however, they have cohabited only for 4 years. This notwithstanding,
they were exempted from the marriage license requirement and later
got married. What is the status of the marriage?
A.
The marriage is null and void. In De Castro v. Assidao-De Castro, G.R.

No. 160172, February 13, 2008, 545 SCRA 162, the Supreme Court
ruled the nullity of a marriage on the ground of absence of a valid
marriage license upon evidence that there was in fact no cohabitation
for five years contrary to the statements in the falsified affidavit
executed by the parties. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
71
ART. 35-57
Yes. There are 2 exceptions: a) Article 35(2) states that if either of the
contracting parties is in good faith in believing that a solemnizing
officer has authority to solemnize a marriage though he or she actually
has none, the marriage will be considered valid. b) Article 41 refers to
a person whose spouse disappears for 4 or 3 years may validly marry
again if he or she has a well-founded belief that his or her spouse is
dead, procures a judicial declaration of presumptive death and at the
time of the subsequent marriage ceremony, is in good faith together
with the subsequent spouse. In these 2 cases, the good faith of only one
of the contracting parties shall make the marriage valid.
Q.
What is the property regime in a void marriage?
A.
As a general rule, the property regime is one of co-ownership. An

exception is the subsequent void marriage due to the failure of a party
to get a prior judicial declaration of nullity of the previous void
marriage pursuant to Article 40 of the Family Code. In this case,
Article 43 par.2 will apply and consequently, ACP or CPG property
regime will govern.
Q.
In a complaint for support against the husband to support their child,

the husband interposed an affirmative defense claiming that he is not
married with petitioner. Can the lower court make a declaration that
the marriage was void to determine the rights of the child to be
supported?
A.
Yes. (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13,
2008). A void marriage can be collaterally attacked. Thus, the nullity
of a marriage can be asserted even if it is not the main issue of a case
and that no previous declaration of nullity if required by law with
respect to any other matter where the issue of the voidness of a
marriage is pertinent or material, either directly or indirectly.
Q.
If the first marriage is void and a subsequent marriage is contracted

without prior judicial declaration of nullity of the first marriage, is the
subsequent marriage bigamous?
Q. May the grounds for a void marriage under Article 35 co-exist in one
case?
A.
Yes. A petition may contain many grounds for nullity of marriage,

such as absent of consent, no marriage license, psychological
incapacity of the parties and bigamy, but it has only one cause of
action, which is the nullity of the marriage. (Mallion v. Alcantara, G.R.
No. 141528, October 31, 2006).
Q.
As a general rule, good faith or bad faith of the parties are immaterial
in determining whether or not the marriage is null and void. Are there
any exceptions?
CIVIL LAW REVIEW
4B 2012
72
A.
Chapter 3
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the solemnizing
officer had the legal authority to do so;
(3) Those solemnized without license, except those
covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not
failing under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under
Article 53.
MARRIAGE
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
73
A.
No. In a bigamous marriage, the first marriage must have been valid.
In this case, the subsequent marriage is also void because it violates
Article 40 in relation to Articles 52 and 53 of the Family Code.
Q.
Does psychological incapacity under Article 36 pertain to insanity or

total mental inability to function in all aspects of human life?
A.
No. The ground for nullity under Article 36 is restricted to

psychological incapacity to comply with the essential marital
obligations.
Q.
When must psychological incapacity occur for it to be a ground for

nullity of marriage?
A.
It must occur at the time of the marriage ceremony but can be

manifested later on during the marriage.
Q.
Can the bearing of children and cohabitation be a sign that

psychological incapacity gas been cured?
A.
No. A marriage based on psychological incapacity is void thus,

ratification cannot apply.
Q.
Why is insanity a ground for voidable marriage while psychological or

mental incapacity is a ground for void ab initio marriages?
A.
As Justice Caguioa explained during the deliberations on the Family

Code, insanity is curable and there are lucid intervals while
psychological incapacity is not. Moreover, psychological incapacity is
not a defect in the mind but in the understanding of the consequences
of marriage.
Q.
What are the 3 characteristics of psychological incapacity?
A.
a) gravity, b) juridical antecedence and c) incurability.
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
74
Art. 36. A marriage contracted by any party who, at the

time
of
the
celebration,
was
psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)
Q.
What does the incapacity under Article 36 consist of?
A.
This incapacity consists of a) a true inability to commit oneself to the

essentials of marriage, and a real inability to render what is due by
contract; b) this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of life and
love, the rendering of mutual help, the procreation and education of
offspring; c) the inability must be tantamount to a psychological
abnormality. Mere difficulty of assuming these obligations does not
constitute incapacity. It contemplates a true psychological disorder
which incapacitates a person from giving what is due. (Santos v. Court
of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019, January
4, 1995) (citing Canons and Commentaries on Marriage by Ignatius
Gramunt, Javier Hervada and Leroy Wauck)
Q.
What characterizes psychological incapacity?
A.
Psychological incapacity must be characterized by a) gravity, b)

juridical antecedence, and c) incurability. It must be grave or serious
such that the party is incapable of carrying out the ordinary duties
required in marriage; it must be rooted in the history of the party
antedating the marriage, although the overt manifestations may
emerge only after the marriage; and it must be incurable or, even if it
were otherwise, the cure would be beyond the means of the party
involved. (Santos v. Court of Appeals and Julia Rosario Bedia-Santos,
G.R. No. 112019, January 4, 1995)
Q.
What type of psychoses does Article 36 contemplate?
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
75
A.
It refers to a mental (not physical) incapacity that causes a party to be

truly incognitive of the basic marriage covenants, which under Article
68 of the Family Code, include the mutual obligations to live together,
observe love, respect and fidelity and render help and support. It is
confined to the most serious cases of personality disorders which
clearly demonstrate an utter insensitivity or inability to give meaning
and significance to the marriage.
Q.
When must the psychological condition exist?
A.
It must exist at the time the marriage is celebrated.
Q.
Do other forms of psychoses have any effect?
A.
Yes. If they exist at the inception of the marriage, like unsound mind
or concealment of drug addiction, habitual alcoholism, and
homosexuality, they render the marriage voidable under Article 46. If
these occur during the marriage, they become grounds for legal
separation under Article 55. However, these may still be indicia of
psychological incapacity depending on the degree and severity. (Santos
v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019,
January 4, 1995)
Q.
How is psychological incapacity proven?
A.
Because it deals with a state of mind, it can only be proven by

indicators or external manifestations. These must be alleged in the
complaint.
Q.
What are indicators of psychological incapacity?
A.
The inability to comply with marital obligations under Article 68,

which provides that the husband and wife are obliged to live together,
observe mutual love, respect, and fidelity, and render help and
support. Procreation is also an essential obligation. Likewise, they
must comply with their duties relative to parental authority under
Articles 220, 221, and 225. The prolonged refusal of a spouse to have
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
76
sexual intercourse, although physically capable, is also considered a

good indicator (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266
SCRA 324). Another indicator is unreasonable attachment to his or
her family (parents, brothers, sisters) or to his or her friends or
barkada such that the importance and devotion which should be
given to his or her own spouse and children are subordinated.
Separation and abandonment may also be a good indicator, although
not conclusive proof (Republic v. Quitero Hamano, 428 SCRA 735).
Q.
What are not indicators of psychological incapacity?
A.
Mere psychological idiosyncrasies are not of themselves manifestations

psychological incapacity. It cannot be merely physical illness but must
be attributed to psychological illness (Bier v. Bier, G.R. No. 173294,
February 27, 2008, 547 SCRA 123). It cannot be mere refusal or
neglect to comply with the obligations, it must be downright incapacity
to perform (Republic v. Cabantug-Baguio, G.R. No. 171042, June 30,
2008).
Q.
Does the fact that a person is able to perform his or her marital
obligations with a person other than his or her other spouse negate the
existence of psychological incapacity?
A.
No. This ground is personal and limited so that just because a person
is psychologically incapacitated to perform his or her marital
obligations with his or her present spouse does not mean the such will
also be the case with any other person.
Q.
Should the court consider expert opinion as evidence?
A.
Yes. The court must consider as decisive evidence the expert opinion of
psychologists or psychiatrists in the psychological and mental
temperaments of the parties. Data about a persons life before and
after the ceremony were presented to these experts who were asked to
give professional opinions about the partys mental capacity at the
time of the wedding (Te v. Te, G.R. No. 161793, February 13, 2009).
Expert testimony is important to establish the precise cause of
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
77
psychological incapacity, and to show that it existed at the time of the

celebration (Hernandez v. Court of Appeals). However, the Court may
or may not accept the testimony since the decision must be based on
the totality of the evidence (Paras v. Paras, August 2, 2007, 529 SCRA
81).
Q.
Is personal examination by a physician required?
A.
No, if the totality of the evidence presented is enough to sustain a

finding of psychological incapacity. The evidence must show a link
between the manifest psychological incapacity and the psychological
disorder itself (Marcos v. Marcos).
Q.
What are some instances when the Supreme Court denied the petition
for nullity of marriage despite a finding of psychological incapacity by
a psychiatrist?
A.
Q.
A.
The Supreme Court rejected the findings of a psychologist as

unreliable when the conclusions in the reports appear to be
exaggerated extrapolations, derived from isolated incidents, rather
than from continuing patterns. The particulars were mere
snapshots, rather than a running account of the partys life (So v.
Valera, G.R. No. 150677, June 5, 2009). In another case, the Supreme
Court found that the psychological report was very general and did not
state specific linkages between the personality disorder and the
behavioral patter of the spouse during the marriage (Rumbaua v.
Rumbaua, G.R. No. 166, August 14, 2009).
ART. 35-57
Q.
What are some elements necessary for a mature marital relationship

which the court must consider?
A.
1) A permanent and faithful commitment to the marriage partner; 2)

openness to children and partner; 3) stability; 4) emotional maturity;
5) financial responsibility; 6) an ability to cope with the ordinary
stresses and strains of marriage, etc. (Te v. Te, G.R. No. 161793,
February 13, 2009).
Q.
What is the shift in the use of these psychological grounds?
A.
Originally, the emphasis was on the parties inability to exercise

proper judgment at the time of the marriage (lack of due discretion).
Recently, cases concentrate on the parties incapacity to assume or
carry out their responsibilities and obligations as promised (lack of
competence) (Te v. Te, G.R. No. 161793, February 13, 2009).
Q.
What are some causes of personality disorders?
A.
(1) Freudian. Fixation at certain stages of development leads to certain

personality types. Some disorders are derived from oral, anal and
phallic character types.
(2) Genetic factors. There may be a genetic factor involved in the
etiology of antisocial and borderline personality disorders.
(3) Neurobiological theories. Schizotypal personality has been
associated with low platelet monoamine oxidase (MAO) activity and
impaired smooth pursuit eye movement.
It is not within the doctor-patient privilege where the one who will
testify on the report is not the doctor but the husband. His testimony
will not have the force and effect of the testimony of the physician who
made the report. The proper objection should have been on the ground
(4) Brain wave activity. Abnormalities in EEG have been reported in

antisocial personality. (Te v. Te, G.R. No. 161793, February 13, 2009).
Q.
4B 2012
78
of hearsay (Krohn v. Court of Appeals, G.R. No. 108854, June 14,

1994).
Can the admissibility of the psychiatric report on the wife be objected

to on the ground of privileged communication between doctor and
patient?
CIVIL LAW REVIEW
MARRIAGE
What are the types of disorders?
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
79
A. According to the American Psychiatric Associations Diagnostic and

Statistical Manual of Mental Disorders, there are three clusters:
(1) Cluster A: Paranoid, schizoid and schizotypal personality disorders.
Persons with this disorder have odd or eccentric habits or traits.
(2) Cluster B: Antisocial, borderline, histrionic, narcissistic personality
disorders. Persons appear overly emotional, erratic and dramatic.
(3) Cluster C: Avoidant, dependent, obsessive-compulsive and passiveaggressive personality disorders. Persons appear anxious or fearful.
(Te v. Te, G.R. No. 161793, February 13, 2009).
Q. Do decisions of the Catholic tribunal on this matter have any value in
court?
A.
Yes, they have persuasive effect. Because psychological incapacity as a

ground for nullity was essentially lifted from the Canon Laws of the
catholic Church, the opinion of Canon Law experts are helpful in
understanding Article 36. The intendment of Article 36 is consistent
with Canon Law.
Q. What are the guidelines in invoking and proving psychological

incapacity?
A.
The Supreme Court enumerated the following guidelines:

(1) The burden of proof to show the nullity of the marriage belongs to
the plaintiff. Any doubt should be resolved in favor of the existence
and continuation of marriage.
(2) The root cause of the psychological incapacity must be a) medically
or clinically identified, b) alleged in the complaint, c) sufficiently
proven by experts, and d) clearly explained in the decision. The
incapacity must be psychological, not physical. The evidence must
convince the court that the party/parties was mentally or
psychically ill to such an extent that the person could not have
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
80
known the obligations he was assuming, or knowing them, could

not have given valid assumption thereof. The root cause must be
identified as a psychological illness and its incapacitating nature
fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at the time of the
celebration of the marriage. While the manifestation of the illness
need not be perceivable at that time, the illness must have attached
at such moment or prior thereto.
(4) The incapacity must be shown to be medically or clinically
permanent or incurable. The incurability may be absolute or
relative only in regard to the other spouse, not necessarily
absolutely against everyone. The incapacity must also refer to the
assumption of marriage obligations.
(5) The illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. It must be
downright incapacity, not mere refusal, neglect or difficulty.
(6) The essential marital obligations mustt be those embraced by
Articles 68 to 71 of the Family Code as regards the husband and
wife, and Articles 220, 221 and 225 in regard to parents and
children. The obligations not complied with must be stated in the
petition, proven by evidence, and included in the text of the
decision.
(7) Interpretations by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling,
should be given great respect by the courts.
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. (Republic of the
Philippines v. Court of Appeals and Molina, G.R. No. 108763,
February 13, 1997).
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
81
Q.
Should the guidelines established in Molina be applied strictly?
A.
No. Each case must be judged not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. The
courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals (Te v. Te, G.R. No.
161793, February 13, 2009).
ART. 35-57
A.
Art. 38. The following marriages shall be void from the

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

There are a number of reasons.
1) They are abhorrent to the nature, not only of civilized men, but of
barbarous and semi-civilized peoples (Gould v. Gould, 78 Conn. 242,
61 A 604, cited in 35 Am. Jur. 266);
Art. 39. The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe. (As
amended by Executive Order 227 and Republic Act No.
8533)
2) It leans towards the confusion of rights and duties incident to family

relations (supra);
3) Also, science and experience have established beyond cavil that such
intermarriages very often result in deficient and degenerate offsprings,
which would amount to a serious deterioration of the race (supra);
Q.
What are the reasons for the prohibition of void marriages?
A.
Article 38 provides for void marriages by reason of public policy.

Marriages described in Article 38 will not serve the fundamental
objective of nurturing a stable family unit that can effectively be the
foundation of society.
Q.
Is the enumeration exclusive?
4) This includes preventing deleterious recessive genes in their

offspring (Farrow and Juberg, Genetics and Laws Prolubity Marriage
in the United States, 209 U.A.M.A. 534, 537 [1959]); and
5) Another reason is the social and psychological aspects of an
incestuous marriage. Social prohibitions against incest promote the
CIVIL LAW REVIEW
4B 2012
82
solidarity of the nuclear family (American Law Institute, Model and

Commentaries 230.2, pp. 403-407 [1980] contained in Family Law by
Harry Krause, St. Paul, Min., West Publishing Co., 1983, pages 29-30).
Art. 37. Marriages between the following are incestuous

and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
Q.
MARRIAGE
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
83
ART. 35-57
Q.
MARRIAGE
84
A.
Yes, following the general rule that only those declared by law as a
void marriage should be treated as such.
Who are considered collateral relatives by consanguinity in the 4th civil

degree?
Q.
Can a guardian and his/her ward validly marry?
A.
Yes.
Q.
Can a principal and his/her agent marry?
A.
Yes.
Q.
Are marriages between collateral blood relatives by the half-blood

prohibited?
Q.
To what extent does the prohibition on collateral blood relatives by

consanguinity apply?
A.
No. (Sta. Maria 2010 ed., 247, In Re Simms Estate, 26 NY2d 163, 46
ALR 3d 1398).
Q.
Why are marriages between collateral blood relatives by the half-blood

not prohibited?
A.
All doubts must be construed in favor of marriage. Only those

expressly prohibited by law as void shall be treated as such. Also, since
what is involved in Article 38(1) has been categorized as a marriage
against public policy, it must be strictly construed in favor of the
contracting parties and against its illegality.
A.
1. First cousins
2. Uncle
3. Aunt
4. Niece
5. Nephew
A.
4th civil degree of consanguinity.
Q.
What is the reason behind such prohibition?
A.
The genetic reason and preventing deleterious recessive genes in the

offspring (Farrow and Juberg, Genetics and Laws Prolubity Marriage
in the United States, 209 U.A.M.A. 534, 537 [1959]).
Q.
Is relationship by consanguinity capable of dissolution?
A.
No (Sta. Maria 2010 ed., 244).
Q.
What is affinity?
Q.
If a common ascendant dies, is the relationship of the first cousins

severed?
A.
A.
No (Sta. Maria 2010 ed., 244).
It is a connection formed by marriage. It places the husband in the

same degree of nominal propinquity to the relatives of the wife as that
in which she herself stands towards them and gives the wife the same
reciprocal connection with the relations of the husband. (Kelly v. Neely,
12 Ark. 657, 659, 56 Am. Dec. 288).
Q.
How do you determine whether two persons are relatives?

Q.
Who are related by affinity?
A.
They have to consider their nearest and immediate common ascendant

and then count the number of relatives from one of them to the
common ascendant and from the common ascendant to the other one.
CIVIL LAW REVIEW
4B 2012
A.
1. Parents in law and children in law
2. Step parents and step children
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
85
ART. 35-57
MARRIAGE
86
A.
The second view is accepted and supported by most judicial authorities

(Sta. Maria 2010 ed., 253).
Marriages between parents in law and children in law and between

step parents and step children.
Q.
What are the prohibitions to marriages between persons who have an

adoptive relationship?
What is the effect of the termination of Marriage on the affinity

prohibition?
Relationship by affinity is likewise terminated and said persons
become strangers. Thus, allowing them to validly marry (Sta. Maria
2010 ed., 251-252, Back v. Back, 125 Northern Reports (NW) 1009).
A.
Q.
What is the effect of the death of one of the spouses to the relationship
by affinity?
Q.
What is the relationship created in adoption?
A.
Limited to one of parent and child.
A.
There are two conflicting views (Sta. Maria 2010 ed., 252).
Q.
Who can the adopted validly marry?
Q.
What are these views?

A.
A.
There are two views.
The following.
1.
Parents of the adopter
2.
Illegitimate child of the adopter
3.
Other relatives of the adopter, whether by consanguinity or
affinity
Q.
Who can the adopter validly marry?
Q.
Who are prohibited to marry under marriages by affinity?
A.
Q.
A.
1.
2.
3.
4.
1. That the relationship is not terminated whether there are children or

not in the marriage (Carman v. Newell, N.Y., 1 Demo 25, 26).
2. The relationship by affinity is dissolved, if the spouses have no living
issues or children and one of the spouses dies. The relationship by
affinity ceases with the dissolution of the marriage which produces it
(Kelly v. Neely, 12 Ark. 657, 659, 56 Am. Dec. 288).
However, if there are living issues or children of the marriage in
whose veins the blood of the parties are commingled, since the
relationship of affinity was continued through the medium of the issue
of the marriage the relationship is continued despite the death of
one of the spouses (Paddock v. Wells, 2 Barb. Ch. 331, 333).
Q.
Which is the better view?
CIVIL LAW REVIEW
4B 2012
A.
The adopted cannot marry any of the following.

The adopter
The surviving spouse of the adopter
The legitimate child of the adopter
The other adopted children of the adopter
The adopter can marry.

1. The legitimate, illegitimate or adopted child
2. The natural parent
3. Other relatives, whether by consanguinity or affinity, of the adopted.
Q.
What is the prohibition under Art. 38 (9)?
A.
Void marriages between parties, where one, with the intention to

marry the other, killed that other persons spouse or his or her own
spouse.
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
87
ART. 35-57
MARRIAGE
88
Q.
Is prior conviction required?
Q.
Can a contracting party who is a wrongdoer, file a petition for the JDN
of marriage?
A.
No. Mere preponderance of evidence is required to prove the killing

(Minutes of the 149th Meeting of the Joint Civil Code and Family Law
Committees held on August 2, 1986, page 3).
A.
Yes. Any of the parties to a void marriage may file a nullity case.
Q.
Can a void marriage be collaterally attacked by any interested party?
A.
Yes. In any proceeding where the determination of thr validity of the

marriage is necessary to give rise to certain rights or to negate certain
rights (Chi Ming Tsoi v. CA, 78 SCAD 57, 266 SCRA 324). Ex. In an
intestate proceeding where certain heirs can attack the validity of the
marriage of the deceased parent so that the children of the deceased
parent can be considered illegitimate for purposes of inheritance.
Q.
Is a mutual intention to kill the other persons spouse required?
A.
No. A unilateral intention is sufficient and need not be shared by the

other spouse so that even the unknowing party will be affected by the
void characted of the marriage (Minutes of the 149th Meeting of the
Joint Civil Code and Family Law Committees held on August 2, 1986,
page 3).
Q.
What is the effect of a judicial decree of nullity (JDN)?
A.
A JDN of a marriage does not legally dissolve a marriage because such

a marriage is invalid from the beginning and therefore, being nonexistent, cannot be dissolved. The JDN merely declares or confirms the
voidness, non-existence, or incipient invalidity of a marriage.
Q.
Can a JDN be filed by the children even after the death of the
contracting party?
A.
No. Only the husband and the wife can file the case and if filed, the
case will be closed or terminated if during its pendency either of the
husband or the wife should die. Heirs can no longer file a case for the
nullity of marriage of their parents or of their parent with their stepparent (SC en banc resolution in A.M. No. 02-11-10 and Enrico v. Heirs
of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419,
reversing Ninal v. Bayadong, 328 SCRA 122).
Q.
Is the petition imprescriptible?
A.
Yes, by express provision of Article 39.
CIVIL LAW REVIEW
4B 2012
Art. 40. The absolute nullity of a previous marriage may

be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void. (n)
Q.
What does Art. 40 require?
A.
It requires that if a marriage is void ab initio any one of them may

contract a subsequent valid marriage only upon a previous JDN of
marriage of the previous marriage. Otherwise, the subsequent
marriage in itself shall be declared void in accordance with Art. 40, 52,
and 53.
Note: JDN must be registered with the local civil registrar and the
partition, liquidation, and distribution of the properties must be
recorded
in
the
proper
registry
of
property.
Q.
What is the basis of the status of a subsequent marriage?
A.
It depends upon the time of solemnization of the said subsequent

marriage.
Q.
What is the reason behind the requirement of a JDN?
CIVIL LAW REVIEW
4B 2012
ART. 35-57
A.
Q.
MARRIAGE
89
ART. 35-57
90
the Civil Code, an absence of only two years shall be

sufficient.
For the projected marriage to be free from legal infirmity. The law
seeks to ensure that a prior marriage is no impediment to a second
sought to be contracted by one of the parties.
What is the only acceptable proof of the nullity of a first marriage for
purposes of remarriage?
For the purpose of contracting the subsequent marriage

under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse. (83a)
A.
Judicial declaration of nullity of marriage. (Domingo v. Court of
Appeals, 226
SCRA 572)
Q. What is the purpose of Article 40 in requiring a judicial declaration of
nullity
before one can remarry?
MARRIAGE
Q.
How is the crime of bigamy committed?
A.
The crime of bigamy is committed by any person who shall contract a

second or subsequent marriage (1) before the former marriage has
been legally dissolved or (2) before the absent spouse has been
declared presumptively dead. (Article 349 of the Revised Penal Code)
Q. May the validity of a marriage be collaterally attacked in a support

case?
Q.
May there be a prosecution for bigamy where the first marriage is void
ab initio?
A.
Yes. See the case of De Castro v. Assidao-De Castro, G.R. No. 160172,
where the Supreme Court ruled that in a case for support, a lower
court can declare a marriage void even without prior judicial
declaration of nullity of void marriage filed in a separate action. It
reasoned that the determination of the validity of marriage was
important in the resolution of the right of the child to be supported.
A.
None. Bigamy contemplates a first marriage which is valid or at least

annullable and not void from the beginning.
Q.
A married B in 1995. There was no marriage license. In 1998, A

married C. B was still living at the time of the celebration of the
second marriage. May A be prosecuted for bigamy?
Art. 41. A marriage contracted by any person during

subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief
that the absent spouse was already dead. In case of
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of
A.
No. Since the first marriage is void ab initio.
Q.
A married B in 1995. Their marriage was annullable but was not

annulled. In 1998, A married C. B was still living at the time of the
celebration of the second marriage. May A be prosecuted for bigamy?
Yes.
A.
To do away with any continuing uncertainty on the status of the

second marriage (Valdes v. RTC, 260 SCRA 221).
CIVIL LAW REVIEW
4B 2012
A.
Q.
A married B in 1995. There was no marriage license. In 1998, and

without taking any steps to have the marriage with B declared void, A
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
91
ART. 35-57
MARRIAGE
92
married C. B was still living at the time of the celebration of the

second marriage. What is the status of A and Cs marriage?
A.
A.
The marriage is void for failing to comply with the requirement of

securing a judicial declaration of nullity.
Q. Is a judicial declaration required before the presumption of death

applied?
Q.
Is there an exception where a second bigamous marriage may be

considered valid?
A.
A.
Yes. A bigamous marriage may be considered valid if, prior to the

subsequent marriage and without prejudice to the effect of
reappearance of the other spouse, the present spouse obtains a judicial
declaration of presumptive death via a summary proceeding in court of
competent jurisdiction.
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.
Q.
What is the weight of a judicial declaration of presumptive death?
A.
The declaration is only prima facie. Contrary evidence may be shown.
Q.
How may a second marriage contracted after the procurement of a

judicial declaration of presumptive death be terminated?
A sworn statement of the fact and circumstances of

reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent marriage
at the instance of any interested person, with due notice
to the spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
A.
An affidavit of reappearance of the absent spouse may be filed in the

civil registry where the parties to the second marriage reside. The
second marriage will then be automatically terminated.
Q.
If there is failure to liquidate the property of the first marriage and the
present spouse remarries and thereafter, the absent spouse from the
first marriage reappears, what is the property regime of the second
marriage?
A.
Complete separation of property.
Q.
Discuss the requirement of well founded belief as a requirement

before a judicial declaration of presumptive death is issued.
CIVIL LAW REVIEW
4B 2012
Due diligence must be exercised to ascertain the whereabouts of the

absent spouse. (United States v. Biasbas, 25 Phil. 71).
No. The presumption arises by virtue of law.
Art. 43. The termination of the subsequent marriage

referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage conceived prior
to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage
in bad faith, his or her share of the net profits of the
community property or conjugal partnership property
shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
93
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
ART. 35-57
94
Q.
In the event that the absent spouse reappears causing the subsequent
marriage to be automatically terminated, will the donations by reason
of the second marriage remain valid?
A.
It depends. If both the parties are in good faith, the donations by

reason of marriage shall remain valid even if the subsequent marriage
is terminated. However, if the done acted in bad faith in contracting
the marriage, the donation is terminated by operation of law.
Q.
Is the rule with respect to donations the same as in insurance policies?
A.
No the rules are different. Here, the innocent spouse has the choice of
revoking or maintaining as beneficiary in an insurance policy the other
spouse who acted in bad faith. Even if the designation as beneficiary is
irrevocable, if the innocent spouse chooses to revoke, he/she can validly
do so.
Q.
Is the spouse who was in bad faith in contracting the subsequent

marriage eligible to succeed the innocent spouse?
A.
No. The spouse in bad faith may not inherit both through testate and
intestate succession.
(5) The spouse who contracted the subsequent marriage

in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are
revoked by operation of law. (n)
MARRIAGE
Q. What is the status of the subsequent marriage where bad faith is

present?
Q.
Who may file the sworn statement of reappearance?
A.
Any interested party may file the sworn statement. (parents, children,
present spouse, subsequent spouse and even the parents and children
of the other contracting spouse in the subsequent marriage)
A.
It depends. If only one of the parties to the subsequent marriage is in

bad faith, the marriage is still valid. For as long as there is one party
who is in good faith, such marriage is valid. It is only when both
parties are in bad faith will the subsequent marriage be void.
Q.
What is the status of the children conceived during the subsequent

marriage in cases of presumptive death of one of the spouses and
before termination of the same?
Q.
What is the status of the children where both parties in the

subsequent marriage are in bad faith?
The children are illegitimate.
A.
The children are legitimate.
CIVIL LAW REVIEW
A.
Art. 45. A marriage may be annulled for any of the

following causes, existing at the time of the marriage:
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
95
(1)That the party in whose behalf it is sought to

have the marriage annulled was eighteen years
of age or over but below twenty-one, and the
marriage was solemnized without the consent of
the parents, guardian or person having
substitute parental authority over the party, in
that order, unless after attaining the age of
twenty-one, such party freely cohabited with the
other and both lived together as husband and
wife;
(2)That either party was of unsound mind, unless
such party after coming to reason, freely
cohabited with the other as husband and wife;
(3)That the consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and
wife;
(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 sexuallytransmissible disease found to be serious and
appears to be incurable. (85a)
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding
Article:
(1)Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude;
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
96
(2)Concealment by the wife of the fact that at the time of

the marriage, she was pregnant by a man other than
her husband;
(3)Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4)Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of
marriage. (86a)
Q.
Enumerate the grounds which, existing at the time of the marriage,

may be a ground for annulment?
A.
Briefly, as enumerated in Article 45.

(1) One of the contracting parties was eighteen years of age or over but
below twenty-one, and the consent of the parents, guardian or person
having substitute parental authority over the party, in that order, was
not given.
(2)One of the contracting parties was of unsound mind;
(3)That the consent of one of the contracting parties was obtained by

fraud;
(4)That the consent of one of the contracting parties was obtained by
force, intimidation or undue influence;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to
be incurable;
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
97
ART. 35-57
98
(6)That either party was afflicted with a sexually-transmissible

disease found to be serious and appears to be incurable
A.
A void marriage is invalid from the beginning, but an annullable or

voidable marriage is considered valid up to the time it is terminated.
The grounds for annulment are exclusive such that only those grounds
provided by law can sustain an action to bring an annulment suit.
Q.
Why is the lack of parental consent a ground for annulment?
A.
The law considers persons age of at least 18 years and below 21 years
as not possessing that degree of maturity to be able to comprehend
thoroughly the consequences and serious responsibilities of marital
relations.
Q.
What does the Family Code mean by unsound mind as a ground for
annulment?
A.
Unsoundness of the mind refers to a derangement of the mind to

prevent the party from comprehending the nature of the contract and
from giving to it his free and intelligent consent. Thus, it is clear that
marriages are not invalidated by mere weakness of mind or dullness of
intellect, or eccentricities or partial dementia are
Q.
Who has the burden of proving the unsoundness of mind?
A.
The burden of proof of insanity rests upon him who alleges insanity
and it devolves upon him to establish the fact of insanity by a
preponderance of evidence. However, if previous insanity is proved, the
burden of proof is usually considered to shift to him who asserts that
the act was done while the person was sane.
Q.
What constitutes fraud as stated in number 3 of Article 45?
A.
Fraud is constituted by any of the following acts as stated in Article 46:

(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
homosexuality or lesbianism existing at the time of the marriage.
or
.
Q. Are the grounds for annulment of marriage under the Family Code
exclusive?
A.
MARRIAGE
Yes. Annulment cannot be left to the whims of the spouses, as the

state has a serious concern and interest over the maintenance of the
marriage and the family unit brought about by the same. Thus, mere
co-habitation is not a ground for annulment. (Villanueva v. Court of
Appeals, G.R. No. 132955, October 27, 2006)
Q. What does the Family Code mean by fraud as a ground for

annulment?
A.
Fraud refers to the non-disclosure or concealment of certain

circumstances, which materially affect the essence of marriage.
Note that annullable marriage is the same as a voidable marriage.

Q.
What is the difference between void and voidable marriage?
CIVIL LAW REVIEW
4B 2012
Q. Can any form of fraud or concealment be considered a ground for

annulment?
A.
No. The circumstances of fraud are limited to those enumerated in
Article 46. It is exclusive
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
99
ART. 35-57
A.
MARRIAGE
100
No. There must be a concealment of such pregnancy by the wife.

However, if the woman did not expressly inform the man of her
pregnancy, but such physical condition was readily apparent to the
man, he cannot claim lack of knowledge of such pregnancy (Buccat v.
Buccat, 72 Phil. 19). Also, the mere fact that the woman at the time of
the marriage is four months pregnant cannot be conclusive as to the
apparency of such pregnancy so as to bar the man from invoking this
particular ground (Aquino v. Delizo, 109 Phil. 21).
Is the unchaste character of the wife a bar to raise the ground of
concealment of pregnancy as fraud?
Q.
Can any conviction be considered as fraud for its non-disclosure?
A.
No. The conviction contemplated under the Family Code is a

conviction by final judgment of a crime involving moral turpitude,
which includes everything that is contrary to justice, honesty, or good
morals. It also must be conviction prior to marriage
Q.
Can failure to investigate the criminal record of a spouse bar the other
spouse for raising it as a ground for annulment?
Q.
A.
No. It is not necessary that one of the parties investigate the other and
his or her failure to do so will not bar a case for annulment on this
ground if it later develops that the party concerned has been convicted
of a crime before the marriage.
A.
Q.
Can both the husband and the wife be guilty of concealment of

pregnancy as fraud?
A.
No. Only the wife can commit fraud, because maternity is always
certain while paternity may be disputed.
Q.
Does good faith of the wife matter when the ground for annulment is
concealment of pregnancy as fraud?
Yes. A man knew of the unchaste character of a woman with whom he

likewise had extra-marital sexual intercourse. He subsequently
married such woman who was pregnant and assured him that it was
his child and when in fact it could not have been his child. The man is
not allowed to have his marriage annulled on this particular
fraudulent act. The American Court gave four reasons: (1) he did not
to court with clean hands, (2) the husband, knowing of the wifes
unchastity and pregnancy, was put upon his inquiry as to her
condition and the paternity of any child she may have conceived, (3) he
was sufficiently apprised of her want of chastity to deprive him of the
right to complain, (4) he, having taken the woman as his wife for
better or for worse, he ought not to be permitted to say that she was
worse than he expected (Lyman v. Lyman, 90 Conn. 399, 97 Atl. 312,
L.R.A. 1916E, 643).
A.
Yes. The concealment must have been done in bad faith. Thus, if a
woman, after having sexual intercourse with another man previous to
marriage ceremony was diagnosed as not pregnant and thereafter
married her fianc believing that she was not pregnant, the marriage
cannot later be annulled. Thus, even if it turned out that her previous
diagnosis was completely wrong and that she was really pregnant.
There was no bad faith on her part. Thus, she could not be guilty of
fraud.
Q.
If a woman misrepresented to her fianc that she was pregnant for the
purpose of inducing her fianc to marry her when in fact she was not
pregnant, can the husband use concealment of pregnancy as fraud to
be a ground for annulment of their marriage?
A.
No. Article 46 (2) only contemplates concealment of a pregnancy and

not concealment of non-pregnancy.
Q.
Is the nature or gravity of sexually-transmissible disease concealed

material to constitute fraud as a ground for annulment of marriage?
Q.
Is the mere pregnancy of the wife at the time of marriage sufficient to

annul the marriage?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
101
ART. 35-57
MARRIAGE
102
A.
No. The fact that the STD fraudulently concealed was of a less virulent
character and one that would be more correctly described as local, will
not bar this ground. Also, consummation of the marriage is not
required for this ground to exist.
A.
There must be concealment because homosexuality or lesbianism per

se is not a ground for annulment. Hence, the element of bad faith on
the part of the one making the concealment is essential and must be
proven. (Almedor v. RTC, G.R. No. 179620, August 26, 2008).
Q.
Define habitual drunkenness.
Q.
When is consent to a marriage vitiated?
A.
Habitual drunkenness is defined as the persistent habit of becoming

intoxicated, and that the nature and extent of the drunkenness must
be such that the person by frequent indulgence may be said to have a
fixed and irresistible habit of drunkenness, whereby he has lost the
power or will to control his appetite for intoxicating liquor, as where he
indulges in the practice of becoming intoxicated whenever the
temptation is presented and the opportunity is offered. (Lewis v. Lewis,
235 Iowa 693). However, to be a habitual drunkard, a person does not
have to drink all the time, nor necessarily be incapacitated from
pursuing, during the working hours of the day, ordinary unskilled
manual labor (Page v. Page, 43 Wash. 293).
A.
Consent is vitiated when it is obtained through force, intimidation or

undue influence.
Q.
When is there intimidation to vitiate consent?
A.
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.
Q.
Why is concealment of habitual drunkenness a ground to sever the

marriage relations?
Q.
When is incapacity to consummate a ground for annulment?
A.
A.
It is a ground because it renders him unfit for the duties of the marital
relation and disqualifies him from properly rearing and caring for the
children born of the marriage (Lewis v. Lewis, 235 Iowa 693).
Incapacity to consummate denotes the permanent inability on the part

of one of the spouses to perform the complete act of sexual intercourse.
It includes all types of causes for non-consummation, even
psychological, which leads to physical inability. Thus, the provision is
not limited to impotence.
Q.
Why is concealment of drug addiction as fraud a ground to sever the

marriage relations?
Q.
The deleterious and evil effects resulting from the continued and
excessive use of drugs are well-known, and that they interfere with the
happiness of married life, and produce other effects upon the marriage
relation as deplorable. (Gowey v. Gowey, 191 Mass. 72).
Is a psychogenic cause, which is the reason for the spouses mental

block or disturbance and causing to him being physically incapable of
performing the marriage act, tantamount to incapacity to consummate
marriage?
A.
Yes. (Alcazar v. Alcazar, G.R. No. 174451, October 13, 2009)
Q.
Is excessive sensibility of the wife rendering sexual intercourse

practically impossible on account of the pain it must inflict a ground to
annul the marriage?
A.
Q.
What would constitute concealment of homosexuality or lesbianism as

fraud that would be a ground for the annulment of marriage?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
103
A.
Yes. It is contemplated under the provision of incapacity to

consummate marriage if it is medically and sufficiently proven.
Q.
Is vaginismus contemplated within the meaning of incapacity to

consummate the marriage?
A.
Yes. Vaginismus is an incurable nervous disorder on the part of the

wife, which renders sexual coition impossible.
Q.
Is any type of sickness or refusal to consummate the marriage

considered to be incapacity to consummate a marriage?
A.
No.
Q.
What is required in order that incapacity to consummate the marriage

could be successfully invoked?
A.
The incapacity must be physical. It must exist at the time of the

marriage ceremony. It must continuous and appears to be incurable.
Accidental or temporary impotency is not enough.
Q.
Who has the burden of proving the incapacity of the spouse to

consummate the marriage?
A.
Whoever alleges the incapacity has the burden of proving the same. As
a general rule, incapacity to engage in sexual intercourse cannot be
presumed but must be proven by preponderance of evidence.
Q.
Must the incapacity or impotence be universal?
A.
No. Hence, it has been said that when impotence is psychological in

origin, the condition may exist only as to the present spouse and not as
to others.
Q.
Explain the Rule of Triennial Cohabitation.
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
104
A.
There is a presumption of impotence if the situation comes within the

preview of the rule of triennial cohabitation. If the wife remains a
virgin for 3 years from the time the spouses started cohabitating, the
husband must show that he was not impotent during the said period
and the burden will be upon him to overcome the presumption of
impotence.
Q.
Is sterility equivalent to impotency?
A.
No, because a sterile person can successfully engage in sexual coition.

Sterility does not imply want of power of copulation.
Q.
If the STD of the spouse is not concealed, can it still be a ground for
annulment of marriage?
A.
Yes, however, in order that it may be successfully invoked, sexually

transmissible disease must be serious and incurable. The STD must
still exist at the time of the marriage ceremony.
Q.
Can there be a ratification of annullable marriage?
A.
Yes. Under the Family Code, ratification is made if the injured party
freely cohabits with the guilty party in the proper situations provided
by law, such as lack of parental consent, insanity, fraud and vitiated
consent.
Q.
Can all types of annullable marriage be ratified?
A.
No. If the ground relied upon is either the incurable physical

incapacity to consummate marriage by either party or the affliction of
either party with an incurable sexually-transmissible disease, both
existing at the time of the marriage ceremony, the mere free
cohabitation as husband and wife of the parties will not ratify the
annullable marriage.
Q.
May the grounds of incapacity to consummate a marriage and

incurable sexually transmitted disease be barred by prescription?
CIVIL LAW REVIEW
4B 2012
ART. 35-57
A.
MARRIAGE
105
Yes, if the aggrieved parties do not bring the suit within five years
after the marriage ceremony.
Art. 47. The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:
(1)For causes mentioned in number 1 of Article 45 by
the party whose parent or guardian did not give his
or her consent, within five years after attaining the
age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any time
before such party has reached the age of twentyone;
(2)For causes mentioned in number 2 of Article 45, by
the same spouse, who had no knowledge of the
other's insanity; or by any relative or guardian or
person having legal charge of the insane, at any
time before the death of either party, or by the
insane spouse during a lucid interval or after
regaining sanity;
the injured party, within five years after the
discovery of the fraud;
the injured party, within five years from the time
the force, intimidation or undue influence
disappeared or ceased;
(5)For causes mentioned in number 5 and 6 of Article
45, by the injured party, within five years after the
marriage. (87a)
Q.
What is the nature of an annulment case?
A.
Annulment cases are actions in rem because they concerned status of

the parties, and the status affects or binds the whole world.
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
106
Q.
Which court has jurisdiction of an annulment case?
A.
The proper court depends upon the nationality or domicile of the

parties and not the place of the celebration of the marriage, or locus
celebrationis. Hence, when a Filipino is domiciled in the Philippines,
the lower court has jurisdiction to annul his marriage to a Korean girl
contracted by him.
Q.
Summarize the rules on the prescriptive periods and who may file the
suit for each ground of annulment.
A.
GROUND
PARTY TO FILE
1. No Parental- a. Parent or Guardian

Consent
having Legal Charge of
no-consent party
b. No-Consent Party
2. Insanity
PRESCRIPTION
PERIOD
Anytime before noconsent party reaches
the age of 21
Within Five Years after
attaining 21
At any time before
death of either party
At any time before
death of either party
a. Sane Spouse without

knowledge of insanity
b. Relative, guardian or
person having legal
charge of the insane
spouse
c. Insane spouse
During lucid interval or
after regaining sanity
3. Fraud
Injured Party
discovery of Fraud
4.
Vitiated Injured Party
Within Five Years from
Consent
time force, intimidation
or undue influence
disappeared or ceased
5. Incapability to Injured Party
Consummate/
the marriage ceremony
Sexually
transmissible
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
107
disease
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)
Art. 49. During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of
their common children. The Court shall give paramount
consideration to the moral and material welfare of said
children and their choice of the parent with whom they
wish to remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of the other
parent. (n)
ART. 35-57
MARRIAGE
108
Q.
What if the court renders a default judgment in an annulment case?
A.
It has held that an erroneous judgment is not a void judgment.
Q. May an annulment case be dismissed by the court upon motion of the

fiscal?
A.
Yes. In the case of Tolentino v. Villanueva, the court issued an order

directing the fiscal to investigate whether or not there is collusion and
the petitioner, upon being subpoenaed by the Fiscal, does not appear
claiming that she does not want to reveal her evidence prematurely to
the fiscal.
Q.
Can an annulment suit be terminated by compromise agreement?
A.
No. There is no valid compromise legally possible on the issue of the

validity of marriage. (Mendoza v. CA, 19 SCRA 756).
Q.
Are annulment cases subject to summary proceedings?
A.
No. Summary proceedings are allowed. A full-blown hearing must be

undertaken where the parties are duty-bound to prove their grounds
by preponderance of evidence.
Q. What governs the procedure for annulment and declaration of nullity

cases?
Q. What is the role of the Fiscal or Solicitor General in annulment and

nullity
cases?
A.
The procedure is now governed by the Supreme Court En Banc

Resolution in A.M. No. 00-11-01 effective March 15, 2003.
A.
Q.
In annulment proceedings, can the defendant be declared in default as

in ordinary civil actions?
The fiscal or the Solicitor General is tasked to take necessary steps to

prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed. He must actively participate. (Republic
vs
Cuison-Melgar, 486 SCRA 177, 2006)
Q.
What is collusion?
A.
No. The court will order a full-blown hearing of the case where the
fiscal shall appear on behalf of the state.
A.
Collusion occurs where, for purposes of getting an annulment or

nullity
decree, the parties come up with an agreement making it
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
109
appear that the marriage is defective due to the existence of any of

the grounds for the
annulment of the marriage or the declaration
of its nullity provided by
law and agreeing to represent such
false or non existent cause of action before the proper court with the
objective of facilitating the issuance of a decree of
annulment
or
nullity of marriage. (page 317, no reference)
Q.
Is the failure of the defendant to file an answer or to appeal in court a

conclusive evidence of collusion?
A.
No. (Aquino vs Delizo, 109 Phil 21, 1960)
Q.
Is an agreement between the parties to file an annulment or nullity

proceeding a conclusive evidence of collusion?
A.
No. Even if there is an agreement, collusion will not exist if the

grounds
relied upon for the nullity or annulment truly exist and are
not concocted.
(page 318, no reference)
Q.
What will happen to a judge who does not order an investigation for
collusion?
A.
He can be subject to administrative sanction. (Corpus vs Garchitorena,

435 SCRA 446, 2004)
Q.
Can an annulment or nullity decree be issued by the court on the basis

of
stipulation of facts or confession of judgment?
A.
No, if it is solely based on stipulation of facts or confession of judgment.

However, stipulations of fact or confession of judgment
sufficiently supported or corroborated by other independent
substantial evidence to support the main ground relied upon, an
annulment or nullity decree may be
issued.
(Ocampo
vs
Florenciano, 107 Phil 31, 1960)
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
110
Art. 50. The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in
the proper cases to marriages which are declared ab
initio or annulled by final judgment under Articles 40
and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties
of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified
of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the
date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless
the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the
death of either of both of the parents; but the value of the
properties already received under the decree of
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
111
ART. 35-57
annulment or absolute nullity shall be considered as

advances on their legitime. (n)
Q.
A.
Is the trial courts finding of existence or non-existence of psychological

incapacity binding on the Supreme Court?
Yes, unless it can be sufficiently shown that the trial courts factual
findings
and evaluation of the testimonies and the pieces of
evidence presented are clearly and manifestly erroneous. (Tuason v.
Court of Appeals, 256 SCRA 158, 1996)
Q.
What is the meaning of the 1st paragraph in Art 50?
A.
In so far as void marriages are concerned, paragraphs (2), (3), (4) and
(5) of Article 43 exceptionally apply ONLY to void subsequent
marriages that occur as a result of the non observance of Article 40.
Specifically, they apply
only to the subsequent void marriage
contracted by a spouse of a prior void
marriage before the
latter is judicially declared void. In this case, the
property shall be
liquidated as if there is a conjugal partnership of gains
or
an
absolute community of property. In all other cases of a void marriage
(except non observance of article 40), co-ownership will govern.
(Valdes
v. RTC, 260 SCRA 221, 1996)
But see: Nicdao Carino vs Carino, 351 SCRA 131, 2001.
Q.
When will the decree of nullity or annulment be issued?
A.
The decision of the court will be final if no motion for reconsideration

or appeal is filed within 15 days from receipt of the parties of the
decision.
Subsequently, a Decree of Absolute Nullity of Marriage or Annulment
of Marriage shall be issued. However, the decree will only be
issued after
the registrations of the Entry of Judgment in the
proper local civil registries and of the approved partition and
CIVIL LAW REVIEW
4B 2012
MARRIAGE
112
distribution of properties of the spouses in the proper registry of deeds

and the delivery of the presumptive legitime. (page 330, no reference)
Q.
What is presumptive legitime?
A.
It is that part of the testators property which he cannot dispose of

because
the law has
reserved it for certain heirs who are,
therefore, called compulsory heirs. (Art 886 of the New Civil Code)
Q.
When is the presumptive legitime computed?
A.
It shall be computed as of the date of the final judgment of the trial

court.
(Art 51 of the Family Code)
Q.
When should legitime be delivered?
A.
(1) Void subsequent marriages resulting from non observance of
Article 40 in
relation Articles 52 and 53 of the Family Code. (Valdes vs
RTC, 260 SCRA 221, 1996)
(2) Annulment cases (Article 43 of the Family Code)
Art. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
Art. 53. Either of the former spouses may marry again
after compliance with the requirements of the
immediately
preceding
Article;
otherwise,
the
subsequent marriage shall be null and void.
Art. 54. Children conceived or born before the judgment
of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
113
ART. 35-57
considered legitimate. Children conceived or born of the

subsequent marriage under Article 53 shall likewise be
legitimate.
Q.
Is a partial voluntary separation of property agreed upon by the

parties via a compromise agreement duly approved by the court prior
to the judicial
declaration of nullity of a marriage valid?
A.
Yes. (Maquilan vs Maquilan, 524 SCRA 166, 2007)
Q.
When will the observance or non-observance of the requirements of

liquidation, partition, distribution and delivery of presumptive
legitime
be significant?
A.
It will only be crucially material in determining whether or not the

subsequent marriage is void only if the previous marriage has
been judicially nullified or annulled in accordance with law. Hence, it
will not be applicable if the first marriage was terminated by death of
one of the spouses and the surviving spouse remarries. (page 335, no
reference)
MARRIAGE
114
marriage are legitimate. Children conceived and born outside a valid

marriage or inside a void marriage are illegitimate. However, children
conceived and born inside a void marriage because one of the parties is
psychologically incapacitated to perform the essential martial
obligations or because the parties to the subsequent marriage have
not complied with the mandatory recording and distribution
requirements under Article 52 in relation to Article 53 are legitimate.
Q.
Within what time period could a respondent in a case for declaration of

absolute nullity of void marriages or annulment of voidable marriages
file an answer?
A.
It depends on how the summons were served. If the summons were

served to the respondent directly, he must file an answer within fifteen
days from said service of summons. If the summons were served by
publication, he must file his answer within thirty days from the last
issue of publication. Supreme Court En Banc Resolution A. M. 02-1110-SC, 8
Q.
How is the respondents answer to a petition for declaration of absolute

nullity of void marriages or annulment of voidable marriages to be
verified?
Q.
be
Where should the judgment of annulment or judicial decree of nullity

recorded?
A.
A.
(1) In the local civil registry of the city or municipality where the court
that issued the decision is functioning. (Art 409 of the New Civil
Code) AND
It must be verified by the respondent himself, and not by counsel or

attorney-in-fact. Supreme Court En Banc Resolution A. M. 02-11-10SC, 8
Q.
What happens when the respondent does not file an answer?
A.
The court shall not declare the respondent in default. However, in

such cases, and where the answer does not tender an issue, the court
shall order the public prosecutor to investigate whether collusion
exists between the parties. Supreme Court En Banc Resolution A. M.
02-11-10-SC, 8
Q.
What happens when the court orders the public prosecutor to

investigate whether collusion exists between the parties to a case for
(2) In the local civil registry of the city or municipality where the
marriage was solemnized. (Section 7 of the Civil Registry Law, Act
No. 3753)
Q.
Give the rule on the status of children.
A.
As a general rule, children conceived and born inside a valid marriage

are legitimate. Children conceived and born inside an annullable
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
115
declaration of absolute nullity of void marriages or annulment of

voidable marriages?
A.
Within one month from the receipt of said court order, the public
prosecutor will submit an investigation report stating whether the
parties are in collusion or not, and serve copies thereof on the parties
and their respective counsels, if any. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, 9
Q. What happens when the public prosecutor determines that collusion

exists?
A.
Q.
A.
He shall state the basis of such finding in his report. The parties shall
file their respective comments on this finding within ten days from
receipt of a copy of the report. The court shall set the report for
hearing, and dismiss the case if it finds that collusion indeed exists.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, 9
What happens when the public prosecutor determines that collusion
does not exist?
The court shall set the case for pre-trial, where the public prosecutor
will appear for the State. Supreme Court En Banc Resolution A. M. 0211-10-SC, 9
Q.
When does pre-trial commence?
A.
On motion or motu proprio, the court shall set the pre-trial after the
last pleading has been served and filed, or upon receipt of the public
prosecutors investigation report stating that collusion does not exist
between the parties. Supreme Court En Banc Resolution A. M. 02-1110-SC, 11
Q.
Must there always be pre-trial?
A.
Yes, a pre-trial in such cases is mandatory. Supreme Court En Banc

CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
116
Q.
What must the notice of pre-trial contain?
A.
(1) Date of the pre-trial conference, (2) Order directing the parties to
file their pre-trial briefs in such manner that the same be served upon
the adverse party at least three days before the date of pre-trial.
Q.
How is the notice of pre-trial to be served?
A.
The notice shall be served separately on the parties and their

respective counsels as well as the public prosecutor. It shall be sent to
the respondent even if he fails to file an answer. In case of summons
by publication and the respondent failed to file an answer, notice of
pre-trial will be sent to his last known address. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 11
Q.
Must the parties appear personally at the pre-trial?
A.
Yes, it shall be their duty to appear personally. Supreme Court En

Q.
What must the pre-trial brief contain?
A.
(1) Statement that the parties are willing to enter into agreements as
may be allowed by law, indicating the desired terms thereof, (2)
Concise statement of their respective claims with applicable laws and
authorities, (3) Admitted facts and proposed stipulations of facts as
well as disputed legal and factual issues, (4) All the evidence to be
presented, including expert opinions if any, stating the nature and
purpose thereof, (5) Number and names of witnesses and their
affidavits, (6) Such other matters as the court may require. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, 12
Q.
What is the effect of failure to file the pre-trial brief or to comply with
the contents required by law for such?
CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
117
ART. 35-57
MARRIAGE
118
A.
Such have the same effect as failure to appear at the pre-trial.

Q.
What is the effect of failure to appear at the pre-trial?
Q.
Must the presiding judge conduct the trial personally?
A.
If the petitioner fails to appear personally, the case will be dismissed

until his counsel or representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.
A.
Yes. Only the reception of evidence related to matters involving the

property relations of the spouses may be delegated to a commissioner.
If the respondent filed an answer but fails to appear personally, pretrial will proceed and the court will order the public prosecutor to
investigate whether the non-appearance is due to any collusion. The
public prosecutor will submit a report on such investigation within
fifteen days from the order. If there is no collusion, the court will order
the public prosecutor to intervene for the State during the trial on the
merits to prevent suppression or fabrication of evidence. Supreme
Q.
May a judgment on the pleading, summary judgment, or confession of

judgment be allowed?
A.
No. The grounds for declaration of absolute nullity or annulment of

the marriage must be proved. Supreme Court En Banc Resolution A.
M. 02-11-10-SC, 17
Q.
Must the trial be conducted in open court?
Q.
May the issues of the case be referred to a mediator?
A.
A.
Yes, the court may refer the case to a mediator at the pre-trial
conference, in order to reach an agreement on matters not prohibited
by law. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 14
Q.
What matters are prohibited by law from becoming the subjects of a

compromise?
Not necessarily. The court may order the exclusion from the
courtroom of all persons, including the press, who do not have a direct
interest in the case if it determines on record that requiring a party to
testify in open court would not enhance the ascertainment of truth;
would cause the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate
the right of a party to privacy; or would be offensive to decency or
public morals. Supreme Court En Banc Resolution A. M. 02-11-10-SC,
17
A.
(1) Civil status of person, (2) Validity of a marriage or a legal

separation, (3) Any ground for legal separation, (4) Future support, (5)
Jurisdiction of courts, (6) Future legitime. Supreme Court En Banc
Q.
How must the court render its decision?
A.
It shall declare in its decision that the decree of absolute nullity or

decree of annulment be issued only after compliance with Articles 50
and 51 of the Family Code as implemented under the Rules on
Liquidation, Partition, and Distribution of Properties. Supreme Court
En Banc Resolution A. M. 02-11-10-SC, 19
Q.
What happens after pre-trial?
A.
The court shall issue a pre-trial order. The parties have five days from
receipt of the pre-trial order to propose corrections or modifications.
CIVIL LAW REVIEW
4B 2012
Afterwards, the action shall proceed to trial in the proper cases.

CIVIL LAW REVIEW
4B 2012
ART. 35-57
MARRIAGE
119
ART. 35-57
MARRIAGE
120
Q.
When do liquidation, partition and distribution, custody, support of

common children and delivery of their presumptive legitimes take
place?
A.
Motu proprio or upon application under oath of any of the parties,

guardian, or designated custodian, with or without a hearing. Supreme
A.
Upon entry of the judgment granting the petition or, where there is an
appeal, upon the receipt of the entry of judgment of the appellate
court granting the petition the Family Court upon motion of either
party shall proceed with the above actions unless such matters have
been adjudicated in previous judicial proceedings. Supreme Court En
Q.
When can these order be enforced?
A.
Immediately, with or without a bond. Supreme Court En Banc

Q.
Where can the support for the spouses be taken from?
Q.
When shall the Decree of Declaration of Absolute Nullity or

Annulment of Marriage be issued?
A.
A.
After (1) registration of the entry of judgment granting the petition in

the Civil Registries where the marriage was celebrated and where the
Family Court is located, (2) registration of the partition and
distribution of the properties of the spouses in the Register of Deeds
where the real properties are located, and (3) delivery of the childrens
presumptive legitimes in cash, property, or sound securities. Supreme
In the absence of any agreement between the spouses, support may be

taken from the properties of the absolute community of property or the
conjugal partnership. Supreme Court En Banc Resolution A. M. 02-1112-SC, 2
Q.
What factors would guide the court in making an award of support to

either spouse?
A.
The court may award support in such amount and for such period as it
may deem just and reasonable based on the standard of the spouses
living during the marriage. It may also consider other relevant factors
that the court may deem just and equitable. Supreme Court En Banc
Q.
Where can the support for the common children be taken from?
A.
From the properties of the absolute community or conjugal

partnership. Either parent may be required to give an amount
necessary for the support, maintenance and education of the child. It
shall be in proportion to the resources or means of said spouse and the
necessities of the child. Supreme Court En Banc Resolution A. M. 0211-12-SC, 3
Q.
What must the court consider in determining the right party to whom
custody of the child is to be awarded?
Q.
What if a party dies during the course of the proceedings?
A.
(1) If the party dies before the entry of judgment, the court shall order
the case closed and terminated, without prejudice to the settlement of
the estate in proper proceedings in the regular courts. (2) If the party
dies after the entry of judgment, the judgment shall be binding upon
the parties and their successors in interest in the settlement of the
estate in the regular courts. Supreme Court En Banc Resolution A. M.
02-11-10-SC, 24
Q.
How may the court issue provisional orders and protection orders in
petitions for declaration of absolute nullity of void marriage or for
annulment of voidable marriage?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 35-57
A.
MARRIAGE
121
ART. 55-67
To whom may the courts award provisional custody?
A.
The courts may awards provisional custody in the following order of

preference: (1) To both parents jointly, (2) To either parent taking into
account all relevant considerations under the foregoing paragraph,
especially the choice of the child over seven years of age, unless the
parent chosen is unfit, (3) To the surviving grandparent, or if there are
several of them, the grandparent chosen by the child over seven years
of age and of sufficient discernment, unless the grandparent is unfit or
disqualified, (4) to the eldest brother or sister over twenty-one years of
age, unless he or she is unfit or disqualified, (5) To the childs actual
custodian over twenty-one yeas of age, unless unfit or disqualified, (6)
To any other person deemed by the court suitable to provide proper
care and guidance for the child. Supreme Court En Banc Resolution A.
M. 02-11-12-SC, 4
Q.
What is granted to the parent who is not awarded provisional custody?
A.
Appropriate visitation rights, provided he or she is not unfit or

disqualified. Supreme Court En Banc Resolution A. M. 02-11-12-SC, 5
Q.
What is a Hold Departure Order?
A.
It is an order issued ex-parte by the court motu proprio or upon

application under oath, addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure of the child from
the Philippines without permission of the court. Supreme Court En
CIVIL LAW REVIEW
(1)Repeated physical violence or grossly abusive

conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2)Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3)Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4)Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5)Drug addiction or habitual alcoholism of the
respondent;
(6)Lesbianism or homosexuality of the respondent;
(7)Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad;
(8)Sexual infidelity or perversion;
(9)Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include
a child by nature or by adoption. (9a)
Q. Does a decree of legal separation or relative divorce dissolve the
marriage?
A.
TITLE II
LEGAL SEPARATION
4B 2012
122
Art. 55. A petition for legal separation may be filed on

any of the following grounds:
The courts shall consider the best interests of the child and give
paramount consideration to the material and moral welfare of the
child. Supreme Court En Banc Resolution A. M. 02-11-12-SC, 4
Q.
LEGAL SEPARATION
No, it does not affect the marital status, there being no severance of
the vinculum (Laperal v. Republic, 6 SCRA 357). A legal separation
decree involves nothing more than a bed-and-board separation of the
spouses (Lapuz v. Eufemio, 43 SCRA 177).
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
123
Q. Are the grounds enumerated in Article 55 for legal separation

exclusive?
A.
Yes. No other grounds may be invoked by any party other than those
stated by law. This is in furtherance of the policy of the State to foster
unity in and preserve the marital relation as the same is essential to
the public welfare.
Q.
May repeated physical injury or grossly abusive conduct be invoked as

a ground for legal separation when inflicted upon the child of the
respondent or the guilty spouse?
A.
No. It is only a valid ground when inflicted upon the petitioner, a

common child, or a child of the petitioner. The law does not give a
cause of action to the petitioner to file a case for legal separation on the
ground that the respondent-spouse repeatedly inflicts injury upon his
or her own child with another person. However, such repeated
physical violence may be a cause to suspend or terminate the parental
authority of the respondent upon his or her own minor child with
another person pursuant to Article 231(1) of the Family Code.
Q. What is the determinative factor of physical violence under this

ground?
ART. 55-67
LEGAL SEPARATION
124
A.
Physical violence under Article 55(1) is for any purpose, so that no

matter how insignificant the purpose, if there is repeated physical
violence, there is a ground for legal separation. Under Article 55(2),
the physical violence is related to political and religious conviction, and
need not be repeated. One incident of physical violence or moral
pressure to compel a change in political or religious affiliation is
sufficient grounds for legal separation under Article 55(2).
Q.
How must the ground of corruption or inducement to engage in

prostitution be interpreted?
A.
The children under this ground may or may not be emancipated. The
immoral or corrupt act referred to is prostitution only. It cannot be
any other immoral or corrupt act. To stretch the import of the article
otherwise would not serve the policy of the law of discouraging legal
separation.
Q.
Must the respondent have successfully corrupted or induced the

petitioner, a common child, or a child of the petitioner to engage in
prostitution or connive in such corruption or inducement?
A.
No, a mere attempt is enough to be a ground for legal separation.
Q.
Under the ground of final judgment involving more than six years of
imprisonment, against whom must the offense for which the spouse is
sentenced to imprisonment be committed?
A.
The frequency of the act, and not the severity is the determinative
factor. It must be committed repeatedly and with bad faith or malice.
Q.
Could acts not done repeatedly warrant a decree of legal separation

under this ground?
A.
Anybody. It is not necessary that said offense be committed against

the other spouse, their common children, or the petitioners children.
A.
Yes. Even if the act is not repeated or does not involve physical
violence, such act may nevertheless constitute grossly abusive conduct
under this ground. Grossly abusive conduct has no exact definition
and, therefore, is determined on a case-to-case basis.
Q.
Distinguish drug addiction, habitual alcoholism, lesbianism and

homosexuality as a ground for legal separation from the same as a
ground for annulment.
A.
Q.
Differentiate physical violence under Article 55(1) from physical

violence under Article 55(2).
In annulment, such factors are instances of fraud which must exist at

the time of the celebration of marriage. In legal separation, such
grounds can exist even after the marriage ceremony.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
125
ART. 55-67
LEGAL SEPARATION
126
Q.
What is the effect of committing bigamy abroad?
A.
A.
So long as there is a second bigamous marriage, wherever celebrated,

a legal separation decree may issue. However, the guilty party cannot
be criminally prosecuted in the Philippines for such act committed
abroad as our penal statutes are penal in nature.
The party who condoned such act is estopped from raising it as a

ground for legal separation because condonation would be tantamount
to consent. (Minutes of the 156th Joint Meeting of the Civil Code and
Family Law committees held on September 27, 1986, page 12)
Q.
Are all attempts on the life of the spouse grounds for legal separation?
A.
No. The attempt on the life of the spouse must proceed from an evil
design and not from any justifiable cause like self-defense, or from the
fact that the spouse caught the other in flagrante delicto having carnal
knowledge with another man or woman.
Q.
Must the spouse who made an attempt on the life of the other be first
convicted before legal separation can take place?
A.
No. No previous criminal conviction is required for the legal

separation case to prosper. The criminal attempt may be proven by
preponderance of evidence in the case for legal separation.
Q.
What is required for unjustified abandonment to be a valid ground for

legal separation?
A.
The abandonment or desertion must be willful. The act is willful when

there is a design to forsake the other spouse intentionally, or without
cause and therefore, break up the marital union; deliberate intent to
cease living with the other spouse; abnegation of all duties of the
marriage relation, not to return. Mere severance of the relation is not
sufficient. There must be a wrongful intent to desert, continued for the
statutory period. (Tipton v. Tipton, 169 Ia. 182, 151 N.W. 90)
Q.
Characterize the abandonment contemplated by this ground for legal

separation.
A.
It must be an abandonment without justifiable cause. Thus, in a case

where the wife left the conjugal abode because she was being battered
by the husband, the Supreme Court ruled that the act of the wife was
for a justifiable cause and therefore cannot be a ground for legal
Q.
Must sexual infidelity or perversion amount to concubinage in order to

be considered a ground for legal separation?
A.
No. A husbands single sexual act of sexual intercourse with a woman

other than his wife may warrant the issuance of a decree of legal
separation. This is true even if the husband and the woman did not
commit concubinage by: (a) maintaining a mistress in the conjugal
home, (b) sexual intercourse with another woman under scandalous
circumstances, and (c) cohabiting with her in any place.
Q.
A.
Would sexual intercourse with a person other than ones spouse after a
divorce is obtained abroad still constitute a ground for legal
separation?
Yes. It has been held that a Filipina who obtains an absolute divorce
abroad and subsequently marries a foreigner and cohabits with the
same has technically committed intercourse with a person other than
her husband, considering that the divorce obtained abroad is not
recognized in the Philippines and her subsequent marriage therefore
is bigamous. (Tenchavez v. Escano, 15 SCRA 355; Manila Surety &
Fidelity Co., Inc. v. Teodoro, 20 SCRA 463)
Q.
Against whom must the ground of sexual perversion be committed?
A.
Sexual perversion includes engaging in such behavior not only with

third persons but also with the spouse. (Minutes of the 156th Joint
Meeting of the Civil Code and Family Law committees held on
September 27, 1986, page 12)
Q.
What is the effect of condonation of sexual infidelity or perversion?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
127
ART. 55-67
separation (Ong v. Ong, 505 SCRA 76). Physical separation alone is

not the full meaning of the term abandonment, if the wife or
husband, despite his or her voluntary departure from the society of his
or her spouse, neither neglects the management of the conjugal
partnership nor ceases to give support to his wife or her husband (Dela
Cruz v. Dela Cruz, 22 SCRA 333). There must be absolute cessation of
marital relations, duties, and rights, with the intention of perpetual
separation (Partosa-Jo v. Court of Appeals, 216 SCRA 692). The act of
separation, and the continued intent to remain separate, must be
wrongful in the sense that there is no excuse for the spouse that
separated (Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 3
ALR 799).
Q.
What if both spouses agree to the separation contemplated by this

ground?
A.
A separation where both parties willingly concur is not, in any sense of

the word, a willful desertion of one by the other (Smythe v. Smyth, 80
Ore. 150, 149 Pac. 516).
Q.
How much time must pass before a spouse can be said to have
abandoned the other?
A.
A spouse is deemed to have abandoned the other when he or she has

left the conjugal dwelling without intention of returning. The spouse
who 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. (Articles 101 and 128 of the Family
Code)
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;
CIVIL LAW REVIEW
4B 2012
LEGAL SEPARATION
128
(3)Where there is connivance between the parties in the

commission of the offense or act constituting the
ground for legal separation;
(4)Where both parties have given ground for legal
separation;
(5)Where there is collusion between the parties to obtain
decree of legal separation; or
(6)Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed
within five years from the time of the occurrence of the
cause. (102)
Q.
What is condonation?
A.
Condonation is the act of forgiving the offense after its commission.

However, condonation implies a condition of future good behavior by
the offending spouse. Subsequent violation of this condition nullifies
the condonation and revives the original offense (Ann. Cas. 1918A 657
note; Brown v. Brown, 103 Kan. 53, 172 Pac. 1005, LRA 1918F 1033
and note).
Q.
How is condonation manifested?
A.
It has been held that the act of giving money to an erring wife and the
fact that no action was taken against her in the courts of justice are
sufficient to establish forgiveness amounting to condonation, for
condonation is the forgiveness of one othe married parties of an offense
which he knows the other has committed against the other. Pardon or
condonation does not require sexual intercourse, and it may be express
or implied (Almacen v. Baltazar, 103 Phil. 1147).
Q.
When is there consent?
A.
There is consent when either of the spouses agreed to or did not object,
despite full knowledge, to the act giving rise to a ground for legal
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
129
ART. 55-67
separation, before such act was in fact committed. Consent may also
be deduced from the acts of the spouses.
LEGAL SEPARATION
130
(Griffith v. Griffith, 69 N.J. Eq. 689, 60 Atl. 1099; Sandoz v. Sandoz,

107 Ore. 282, 214 Pas. 590)
Q.
What is connivance?
Q.
What is the prescriptive period of legal separation?
A.
Connivance denotes direction, influence, personal exertion, or other

action with knowledge and belief that such action would produce
certain results and which results are produced (Cohen, Divorce and
Alimony in North Carolina, 59, IV, p. 98).
A.
An action for legal separation must be filed within 5 years from the
occurrence of the cause. After the lapse of this period, the legal
separation case can no longer be filed.
Q.
Is the time of discovery material in counting the prescriptive period?
Q.
What is the doctrine enunciated in the case of Witherspoon v.

Witherspoon, 108 Pa. Super. 309, 64 A. 842, 84e)?
A.
No. Time of discovery is not material.
A.
Where a husband employed agents to induce, persuade and coerce his

wife into participating in illicit sexual activities, this act of the
husband can be considered as active connivance. When a husband
lays a lure for his wife, either acting in person or through an agent, his
will necessarily concurs in her act.
Q.
Why is recrimination or equal guilt a ground for denying legal

separation?
A.
The reason for this rule lies in the equitable maxim that he who comes
into equity must come with clean hands (Ann. Cas. 1917A 178 note).
When two persons acted in bad faith, they should be considered as
having acted in good faith. They are in pari delicto. Hence, the
plaintiff-spouse cannot invoke the guilt of the other if such plaintiffspouse is guilty for giving grounds for legal separation.
Q.
Distinguish collusion from connivance.
A.
Collusion is a corrupt agreement, while connivance is a corrupt

consenting. To constitute collusion, there must be an agreement
between husband and wife looking to the procuring of a divorce (2 ALR
701 note). It means there is an agreement between husband and wife
for one of the to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence of a valid
defense, for the purpose of enabling the other to obtain a divorce
CIVIL LAW REVIEW
4B 2012
Art. 58. An action for legal separation shall in no case be

tried before six months shall have elapsed since the filing
of the petition. (103)
Art. 59. No legal separation may be decreed unless the
Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (n)
Art. 60. No decree of legal separation shall be based upon
a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (101a)
Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a
third person to administer the absolute community or
conjugal partnership property. The administrator
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
131
appointed by the court shall have the same powers and

duties as those of a guardian under the Rules of
Court. (104a)
ART. 55-67
132
A.
Yes. To make sure that there is no collusion and the evidence

presented is not fabricated. However, if the legal separation case is
vehemently opposed, it is clear that there is no collusion. In these
cases, the non-intervention of the prosecuting-attorney to assure lack
of collusion between the contending parties is not fatal to the validity
of the proceedings in court especially when it was not shown that the
evidence was suppressed or fabricated by any of the parties. (Tuason v.
Court of Appeals, 25 SCRA 158).
Q.
What is the purpose of the 6-month cooling off period?
A.
This 6-month period is designed to give the parties enough time to

further contemplate their positions with the end in view of attaining
reconciliation between them.
Q.
What is the exception to the 6-month cooling off period?
A.
When the ground for legal separation involves violence against woman
or the child (Sec. 19 of RA 9262).
(2) Whether or not the defendant files an answer to the complaint, no

hearing on the merits shall be set by the courts for 6 months.
Q.
What is the consequence for non-observance of the 6-month cooling-off

period?
(3) The court should take steps toward the reconciliation of the spouses
and should be satisfied that despite such efforts, reconciliation is
highly improbable.
A.
It is a ground to set aside a decision granting legal separation (Pacete

v. Carriaga, 49 SCAD 673).
Q.
What can be litigated during the 6-month cooling-off period?
A.
Any other incident such as the determination of the custody of the

children, alimony and support pendnte lite may be heard inside the 6month cooling-off period. S motion to dismiss during the 6-month
period may also be filed if there are grounds to do so. What is
prevented from being heard in this 6-month period is the hearing on
the merits with respect to the validity or invalidity of the ground for
legal separation.
Q.
What is required to substantiate the legal separation case?
Art. 62. During the pendency of the action for legal

separation, the provisions of Article 49 shall likewise
apply to the support of the spouses and the custody and
support of the common children. (105a)
Q.
What is the procedure in filing a complaint for legal separation?
A.
(1) Upon filing of the complaint, the defendant shall be required to

answer within 15 days from receipt of the summons and a copy of the
petition. If the defending party fails to answer, he or she cannot be
defaulted and the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and
if there is no collusion, to intervene for the state in order to see to it
that the evidence submitted is not fabricated.
(4) Proof by preponderance of evidence is required to substantiate the

ground for legal separation. The material facts alleged in the
complaint must be proved.
(5) Judgment shall be issued by the judge, either granting the legal
separation or denying the same,
Q.
LEGAL SEPARATION
If the party answers, is the fiscal still required to be present during

trial?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
133
A.
Proof by preponderant of evidence is required to substantiate the

ground for legal separation (Gandionco v. Pearanda, 155 SCRA 725).
In actions for legal separation, the material facts alleged in the
complaint shall always be proved (Sec. 1, Rule 34 of the 1997 Rules of
Civil Procedure).
Q.
Who shall manage the properties during the legal separation suit?
A.
There should be a written agreement between the spouses as to who

shall manage the properties. In the absence of a written agreement
between the spouses, the court shall designate either of the spouses or
a third person to administer the absolute community or conjugal
partnership property.
ART. 55-67
LEGAL SEPARATION
134
(3)The custody of the minor children shall be

awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
(4)The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of
law. (106a)
Q.
What are the effects of a decree of legal separation?
A.
(a) The spouses shall be entitled to live separately from each other, but
the marriage bond shall not be severed
Q.
What are the powers and duties of a court appointed administrator?
A.
He or she has the same powers and duties as that of a guardian under
the Rules of Court.
Q.
What is the effect of death of the plaintiff before the final decree in an
action for legal separation?
(b) The absolute community or the conjugal partnership shall be

dissolve 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)
A.
The death of one of the party to the action causes the death of the
action itself (actio personalis moritur cum persona).
(c) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provision of Article 213 of the Family Code; and
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);
CIVIL LAW REVIEW
4B 2012
(d) The offending spouse shall be disqualified from inheriting form the
innocent spouse by intestate succession, Moreover, provisions in favor
of the offending spouse in the will of the innocent spouse shall be
revoked by operation of law.
Q.
When will the decree of legal separation be deemed as final?
A.
When the decree is itself is issued, the finality of the separation is

complete after the lapse of the period to appeal the decision to a higher
court even if the effects, such as the liquidation of the property, have
not yet been commenced nor terminated.
Q.
Is the marriage bond severed by a decree of legal separation?
CIVIL LAW REVIEW
4B 2012
ART. 55-67
A.
LEGAL SEPARATION
135
ART. 55-67
The share of the offending spouse shall be forfeited in whose favor?
A.
His share shall be forfeited in favor of the common children or, if there
be none, the children of the guilty spouse by a previous marriage or, I
default of children, the innocent spouse.
Q.
Who will have custody of minor children?
A.
The innocent spouse shall be awarded the custody of the minor

children. However, in all matters relating to the custody of the child,
the paramount interest of the child shall be the standard. Hence, the
court may even award the custody of the child to a third person of the
court believes that both spouses are not fit to take care of the child.
136
of or change in the designation of the insurance

beneficiary shall take effect upon written notification
thereof to the insured.
No. The spouses are only entitled to live separately from each other
but the marriage bond is not severed. They are still married to each
other. Thus, a spouse can still be held criminally liable for bigamy,
concubinage or adultery of he or she commits the act.
Q.
LEGAL SEPARATION
The action to revoke the donation under this Article

must be brought within five years from the time the
decree of legal separation become final. (107a)
Q.
In case of legal separation case, what happens to donations and

insurance in the name of the offending spouse?
A.
The law gives the option to the innocent party whether or not he or she
will revoke the donation or the designation as beneficiary of the guilty
party in an insurance.
Q.
How to revoke a donation?
A.
The innocent spouse must file an action for revocation within 5 years
from the time the decree of legal separation has become final.
Q.
What is the effect of legal separation in testate or intestate succession?
Q.
What if the donation is void?
A.
The offending spouse is disqualified from inheriting from the innocent

spouse by intestate succession. Moreover, the provisions in favor of the
offending spouse made in the will of the innocent spouse shall be
revoked by operation of law.
A.
The right to bring an action to declare the nullity of the donation does
not prescribe.
Q.
When will the revocation take effect?
Art. 64. After the finality of the decree of legal separation,

the innocent spouse may revoke the donations made by
him or by her in favor of the offending spouse, as well as
the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated
as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where
the properties are located. Alienations, liens and
encumbrances registered in good faith before the
recording of the complaint for revocation in the
registries of property shall be respected. The revocation
A.
From the deliberations of the Code, the revocation of, or change in, the
designation of the insurance beneficiary shall take effect upon written
notification thereof to the insurer and not to the insured as provided
for in the law. There is a discrepancy between the final version of the
provision and the one signed by the President into law.
CIVIL LAW REVIEW
4B 2012
Art. 65. If the spouses should reconcile, a corresponding

joint manifestation under oath duly signed by them shall
be filed with the court in the same proceeding for legal
separation. (n)
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
137
Art. 66. The reconciliation referred to in the preceding

Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage;
and
(2) The final decree of legal separation shall be set
aside, but the separation of property and any
forfeiture of the share of the guilty spouse
already effected shall subsist, unless the spouses
agree to revive their former property regime.
ART. 55-67
The agreement of revival and the motion for its approval

shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court
shall, in its order, take measure to protect the interest of
creditors and such order shall be recorded in the proper
registries of properties.
The recording of the ordering in the registries of
property shall not prejudice any creditor not listed or
not notified, unless the debtor-spouse has sufficient
separate properties to satisfy the creditor's claim. (195a,
108a)
CIVIL LAW REVIEW
4B 2012
138
Q.
What are the effects of reconciliation?
A.
(1) The legal separation proceedings, if still pending, shall thereby be

terminated in 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 order containing the termination of the case or the setting aide of
the decree, as the case may be, shall be recorded in the proper civil
registries.
The court's order containing the foregoing shall be

recorded in the proper civil registries. (108a)
Art. 67. The agreement to revive the former property
regime referred to in the preceding Article shall be
executed under oath and shall specify:
(1)The properties to be contributed anew to the
restored regime;
(2)Those to be retained as separated properties of each
spouse; and
(3)The names of all their known creditors, their
addresses and the amounts owing to each.
LEGAL SEPARATION
Q.
What shall the agreement to revive the property regime specify?
A.
(1) The properties to be contributed anew to the restored regime

(2) Those to be retained as separate properties of each spouse; and
(3) The names of all their known creditors, their addresses and the
amounts owing to each.
Q.
How should the parties make known their reconciliation?
A.
The spouses should file a joint manifestation of reconciliation in court.
Q.
What is the effect of reconciliation to the separation of properties?
A.
The separation of properties shall subsist. However, the parties can

enter into an agreement, which should be approved by the court,
reviving the previous property regime. The agreement shall contain a
list of which properties shall remain separate and which properties
shall be contributed to the revived property regime.
Q.
What is the effect of reconciliation with the creditors of the spouses?
A.
The agreement reviving the previous property regime shall contain the
names and addresses of the creditors and the amounts of the credit.
CIVIL LAW REVIEW
4B 2012
ART. 55-67
LEGAL SEPARATION
139
The creditors must be furnished the motion seeking the approval of

the agreement. 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 registry of property. The recording of the order
in the registries of property shall not prejudice any creditor any
creditor not listed or not notified, unless the debtor-spouse has
sufficient separate properties to satisfy the creditors claim.
Q.
May the parties adopt a different property regime after reconciliation?
A.
Yes. The new rules promulgated by the Supreme Court specifically

allow the adoption of another regime of property relations different
from that which they had prior to the filing of the petition for legal
separation.
Q.
What is the effect of reconciliation with the disinheritance of the

offending spouse?
A.
The innocent spouse has an option to again reinstitute the provision in

a will previously made to the guilty spouse, but which was revoked by
operation of law by the issuance of the decree of legal separation.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity,
and render mutual help and support. (109a)
Q.
What is role does procreation play in marriage?
A.
Procreation is an essential marital obligation, considering that such

obligation springs from the universal principle that procreation of
children through sexual cooperation is the basic end of marriage (Chi
Ming Tsoi v. CA).
CIVIL LAW REVIEW
4B 2012
Art. 68-73
RIGHTS AND OBLIGATIONS

140
Q.
When may a court compel a husband and a wife to comply with

obligations of marriage?
A.
A court cannot compel the spouses to live together, observe mutual

love, respect and fidelity. However, as an exception, the court may
compel the spouses to comply with their obligation for support
(Ramirez-Cuaderno v. Cuaderno; Potenciano v. CA). Because marital
duties and obligations are highly personal, spouses may not be
compelled to render them.
Q.
May a court compel a wife to render domestic assistance and conjugal

companionship?
A.
No. Jurisprudence has held that a wifes domestic assistance and

conjugal companionship are purely personal and voluntary acts, which
neither the spouses may be compelled to render (Arroyo v. Arroyo).
Q.
May damages be awarded in case of a breach or a failure to comply

with marital obligations?
A.
No (Ty v. CA).
Q. What then is the remedy of the innocent spouse against the guilty
spouse?
A.
The guilty spouse may be held liable under the Articles 19, 20 or 21 of
the Civil Code or the abuse of right doctrine, if he or she acted in bad
faith in refusing to comply with the marital obligations and if the
property regime is separation of property.
Q.
What are some examples of instances when damages were awarded in

relation to marital obligations?
A.
1. The desertion and securing of an invalid divorce decree of one

consort entitled the other to damages and attorneys fees (Tenchavez v.
Escano);
CIVIL LAW REVIEW
4B 2012
Art. 68-73

141
2. A person who deprives a spouse of the consortium or services of the

other spouse can be held liable for damages, but this must first be fully
proven (Lilius v. Manila Railroad Company).
Q.
Can a husband commit rape against his wife?
A.
Yes (Article 266-A of the Revised Penal Code). But the subsequent
forgiveness by the wife as the offended party shall extinguish the
criminal action or the penalty.
Q.
What is the exception to this rule?
A.
If the marriage is void ab initio, the crime shall not be extinguished

nor shall the penalty be abated.
Art. 68-73
What is the nature of the judicial proceedings described in paragraph

1 and 2 of this Article?
A.
The judicial proceedings shall be summary in nature.

Art. 70. The spouses are jointly responsible for the
support of the family. The expenses for such support and
other conjugal obligations shall be paid from the
community property and, in the absence thereof, from
the income or fruits of their separate properties. In case
of insufficiency or absence of said income or fruits, such
obligations shall be satisfied from the separate
properties. (111a)
Art. 71. The management of the household shall be the
right and the duty of both spouses. The expenses for such
management shall be paid in accordance with the
provisions of Article 70. (115a)
The court may exempt one spouse from living with the
other if the latter should live abroad or there are other
valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is
not compatible with the solidarity of the family. (110a)
Define domicile.
A.
The domicile of natural persons is the place of their habitual residence.

It is the place where the parties intend to have their permanent
residence with the intention of always returning even if they have left
it for some time. Thus, the spouses can have only one domicile but
many residences.
Q.
What is the rule on domicile regarding minors?
A.
A minor follows the domicile of his or her parents.
CIVIL LAW REVIEW
4B 2012
142
Q.
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.
Q.

Art. 72. When one of the spouses neglects his or her

duties to the conjugal union or commits acts which tend
to bring danger, dishonor or injury to the other or to the
family, the aggrieved party may apply to the court for
relief. (116a)
Q.
Who is responsible for the management of the household?
A.
It shall be the right and duty of both the spouses regardless of their
property regime (e.g. if the family house is separately owned by one of
the spouses, the other spouse still has the right and duty relative to
the management of the household).
Q.
What is the remedy of the aggrieved spouse if the other spouse

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?
A.
The aggrieved spouse may apply to court for relief, which includes:
CIVIL LAW REVIEW
4B 2012
Art. 68-73
1.
2.
3.
4.
5.

143
Legal separation case;

Annulment of marriage case;
Petition for receivership;
Petition for judicial separation of property; or
Petition for authority to be the sole administrator of the
community property or the conjugal partnership.
Art. 68-73
144
A.
Generally, the following are chargeable:

1.
The exercise of a legitimate profession, occupation, business or
activity is presumed to redound to the benefit of the family,
except if is involves an isolated transaction (proof showing a
direct benefit to the family must be presented);
2.
Obligations incurred by the spouse in the exercise of his or her
legitimate profession, occupation, business or family business
are presumed to redound to the benefit of the family;
3.
Debts and obligations of whatever nature and regardless of the
time they were incurred, whether before or after the marriage
ceremony, and redound to the benefit of the family.
Q.
What is the exception to this rule?
A.
In case the profession is seriously invalid and immoral, the separate

property of the erring spouse shall be liable, even if benefits accrued in
favor of the family. However, for this to apply the innocent spouse
must have no knowledge of the other spouses engagement in an
immoral activity such that he could not have interposed any objection;
otherwise, the innocent spouse would be deemed to have agreed with
the other spouses immoral endeavors.
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:
(11) The objection is proper, and
(12) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued
prior to the objection, the resulting obligation
shall be enforced against the separate property
of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of

creditors who acted in good faith. (117a)
Q.
What is the regarding the exercise of the husband and the wife of a
business or profession?
A.
The general rule is that the law does not require a spouse to obtain
prior consent from the other before entering into any legitimate
profession or activity.
The exception is when one spouse objects to the occupation of the other
on valid serious and moral grounds, in which case the court may
decide on the objection in a summary proceeding.
Q.
What are chargeable against the absolute community property or the

conjugal partnership of gains?
CIVIL LAW REVIEW
4B 2012
TITLE IV
PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between husband and
wife shall be governed in the following order:
(1)By marriage settlements executed before the
marriage;
(2)By the provisions of this Code; and
(3)By the local custom. (118)
CIVIL LAW REVIEW
4B 2012
Art. 74-81

HUSBAND AND WIFE
145
Art. 74-81

HUSBAND AND WIFE
General Provisions
146
General Provisions
Art. 75. The future spouses may, in the marriage

settlements, agree upon the regime of absolute
community, conjugal partnership of gains, complete
separation of property, or any other regime. In the
absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute community of
property as established in this Code shall govern. (119a)
A.
The following are invalid:

1.
A stipulation that the absolute community property or conjugal
partnership of gains will start at a time other than the precise
moment of the celebration of marriage;
2.
A stipulation that the spouses can make substantial donations to
each other during the marriage;
3.
In case a marriage has been terminated by the death of one
spouse and there has been no liquidation of the properties of the
previous marriage, the surviving spouse, if he or she decides to
remarry, cannot executed a marriage settlement providing for a
regime other than complete separation of property regime.
Q.
May parties design their own property regime?
A.
Yes, provided it is not in violation of any law.
Q.
When must modifications to marriage settlements be made?
A.
Generally, these must be made prior to the marriage ceremony.

Exceptionally, modifications may be made after the marriage
ceremony, provided that:
1.
There is judicial approval; and
2.
It involves the following modifications:
a. Revival of the former property regime after a legal separation
reconciliation can be made only through a court order
recorded in the proper civil registries (Arts. 66 and 67);
b. Abandonment or failure to comply with marital obligations,
the court may issue a decree of judicial separation of property
upon petition by the aggrieved spouse (Art. 128);
c. Provides sufficient causes for judicial separation of property
(Art. 135); or
d. Voluntary separation and dissolution of absolute community
property or conjugal partnership of gains (Art. 136).
Q. What are examples of prohibited stipulations in a marriage

settlement?
Q.
What is a custom?
CIVIL LAW REVIEW
CIVIL LAW REVIEW
Art. 76. In order that any modification in the marriage

settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They
shall not prejudice third persons unless they are
registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of
properties. (122a)
Q.
What are the requisites for a valid marriage settlement?
A.
The requisites for a valid marriage settlement are the following:

1.
Must be in writing;
2.
Must be signed by the parties;
3.
Made prior to the marriage ceremony;
4.
Parties may agree on any arrangement in their marriage
settlement, provided it is not contrary to law and public policy;
and
5.
Must be effective at the moment of the marriage ceremony.
That the marriage settlement be registered in the local civil registrar
is not required for its validity, but only to bind third parties.
4B 2012
4B 2012
Art. 74-81

HUSBAND AND WIFE
147
Art. 74-81

HUSBAND AND WIFE
General Provisions
148
General Provisions
A.
It is a rule of conduct formed by the repetition of acts uniformly

observed as a social result, legally binding and obligatory.
Q.
What property regime will apply in case where the parties stipulate in
their marriage settlement that local customs shall apply, or that
absolute community property shall not govern their property relations
but fail to stipulate what property regime shall be applied?
A.
The local custom shall be applied.
Art. 80. In the absence of a contrary stipulation in a

marriage settlement, the property relations of the
spouses shall be governed by Philippine laws, regardless
of the place of the celebration of the marriage and their
residence.
This rule shall not apply:
(1)Where both spouses are aliens;
(2)With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and executed in the country where the property
is located; and
(3)With respect to the extrinsic validity of contracts
entered into in the Philippines but affecting
property situated in a foreign country whose
laws require different formalities for its extrinsic
validity. (124a)
Art. 78. A minor who according to law may contract

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

governed by their agreement in the marriage settlement, provided
that it must not be contrary to law or public policy and that it must be
within the limits provided in the Family Code.
Q.
What is the rule now in relation to Article 78?
Q.
What if there is no agreement between the spouses?
A.
Article 78 was impliedly repealed when the age of majority was

lowered to 18. Now, no minor may contract a valid marriage.
A.
Q.
What is civil interdiction?
In the absence of any agreement, property relations will be governed

by Philippine laws if the parties are both Filipinos, even is they
married abroad or reside abroad. This is because the basis is the
nationality rule.
A.
It deprives the offender during the time of his sentence of:

1.
Rights of parental authority;
2.
Guardianship, either as to the person or property of any ward;
3.
Right to manage his property; and
4.
Right to dispose of such property by any conveyance inter vivo.
CIVIL LAW REVIEW
4B 2012
However, this rule is not applicable, and thus other laws shall govern,
in the following cases:
a. where both spouse are foreigners; or
b. involving the extrinsic validity of a contract when the
property is executed abroad, whether the contract is
executed in the Philippines or abroad.
CIVIL LAW REVIEW
4B 2012
Art. 74-81

HUSBAND AND WIFE
149
Art. 82-81
General Provisions
150
Donations by Reason of Marriage
the Civil Code, insofar as they are not modified by the

following articles. (127a)
Art. 81. Everything stipulated in the settlements or

contracts referred to in the preceding articles in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place.
However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a)
Q.
What is the effect of a marriage settlement if the marriage does not

take place?
A.
Generally, the marriage settlement is rendered void because the

consideration of the marriage settlement is the marriage itself.
Q.
Are there cases when the provisions in a marriage settlement are
separable?
A.
Yes, for instance:
1.
Provisions which invalid but do not affect the rest of the
provisions stipulated in the marriage settlement will be
rendered ineffectual, the rest will continue to remain enforced;
or
2.
Stipulations which do not depend upon the celebration of
marriage shall be valid (e.g. provision to suppose the common
children of the contracting parties).
Art. 84. If the future spouses agree upon a regime other

than the absolute community of property, they cannot
donate to each other in their marriage settlements more
than one-fifth of their present property. Any excess shall
be considered void.
Q.
What is a donation propter nuptias?
A.
Donations by reason of marriage, or donation propter nuptias, are

those which are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses. (article 82, FC)
Q.
What is the consideration for donations propter nuptias?
A.
Donations propter nuptias are without onerous consideration, the

marriage being merely the occasion or motive for the donation, not its
causa. Being liberalities, they remain subject to reduction for
inofficiousness upon the donors death, if they should infringe the
legitime of the forced heir (Mateo v. Lagua, 29 SCRA 864) Thus, it has
been held that a deed of donation executed before the marriage by one
of the spouses, which, among other things, provides that the marriage
would have to be childless, that one of the spouses would have to die
before the donation would operate, and that the donation was made
not in favor of the wife but rather in favor of those who acted as her
parents and raised her from girlhood to womanhood in the absence of
her father, cannot be regarded as one made in consideration of
marriage. (Serrano vs. Solomon, 105 Phil. 998)
Q.
What are the requisites of a valid donation?
A.
The following are the requisites of a valid donation:

1. Must be made prior to the marriage ceremony
2. Made in consideration of marriage
Chapter 2. Donations by Reason of Marriage

Art. 82. Donations by reason of marriage are those which
are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses.
(126)
Art. 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of
CIVIL LAW REVIEW

HUSBAND AND WIFE
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 82-81

HUSBAND AND WIFE
151
Art. 82-81
152
3. Made in favor of one or both spouses

4. Donee must accept the donation personally or thru an authorized
person with special power of attorney for the purpose or with a
general/sufficient power
5. The acceptance must be made during the lifetime of donor and
donee
Q.
What kind of donations are excluded?
A.
The following donations are excluded:

1. Made in favor of the spouses after the celebration of the marriage;
2. Executed in favor of the future spouses but not in consideration of
marriage; and
3. Granted to persons other than the spouses even though they may be
founded on the marriage (6 Manresa 232, cited in Serrano v. Solomon,
105 Phil. 998)
Q.
What are the requisites of a valid donation between future spouses?
A.
The following are the requisites of a valid donation between future
spouses:
1. There must be a valid marriage settlement
2. The marriage settlement must stipulate a property regime
other than ACP
3. The donation contained in the marriage must not be more
than 1/5 of his/her present property
4. The donation must be accepted by the would-be spouse
5. It must comply w/ the requisites on donations (Title 3, Book 3,
NCC)
Q.
When can there be a donation between future spouses?
A.
Giving a donation propter nuptias to a would- be spouse prior to the

marriage is useless if the property regime that will govern their
marriage is the absolute community of property. This is so because
generally, in an absolute community of property, the spouses become
CIVIL LAW REVIEW

HUSBAND AND WIFE
4B 2012
co- owners of whatever each of them owns before the marriage and
whatever each of them acquires after the marriage.
Q.
When will the not more than one- fifth limitation not apply?
A.
If there is a marriage settlement providing for a particular property

regime other than the absolute community property and there is also a
donation propter nuptias not included in a marriage settlement but
contained in a separate deed, the not more than one- fifth limitation
will not apply. Instead, the general rules on donation contained in
Title III of Book III of the Civil Code shall govern. This is subject to the
provision in the Civil Code that no person may give or receive, by way
of donation, more than he may give or receive by will. The donation
shall be inofficious in all that it may exceed this limitation. (Article
752 of the Civil Code)
Art. 85. Donations by reason of marriage of property
subject to encumbrances shall be valid. In case of
foreclosure of the encumbrance and the property is sold
for less than the total amount of the obligation secured,
the donee shall not be liable for the deficiency. If the
property is sold for more than the total amount of said
obligation, the donee shall be entitled to the excess.
(131a)
Q.
If the object of the donation is subject of an encumbrance, is the

donation valid?
A.
Yes. The donation is still valid even if the object of donation is subject
of an encumbrance. However, the donees rights are subject to the
encumbrance.
Q.
What are the consequences if the property donated is subject to an

encumbrance?
A.
The following are the consequences if the object donated is foreclosed:
CIVIL LAW REVIEW
4B 2012
Art. 82-81

HUSBAND AND WIFE
153
Art. 82-81
Art. 86. A donation by reason of marriage may be revoked

by the donor in the following cases:
(1)If the marriage is not celebrated or judicially
declared void ab initio except donations made in
the marriage settlements, which shall be governed
by Article 81;
(2)When the marriage takes place without the consent
of the parents or guardian, as required by law;
(3)When the marriage is annulled, and the donee acted
in bad faith;
(4)Upon legal separation, the donee being the guilty
spouse;
(5)If it is with a resolutory condition and the condition
is complied with;
(6)When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general. (132a)
Art. 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the
marriage shall be void, except moderate gifts which the
spouses may give each other on the occasion of any
family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without a
valid marriage. (133a)
What are the grounds for the revocation of a donation propter nuptias?
CIVIL LAW REVIEW
154
1. Deficiency donee NOT liable if the amount obtained is less than

amount of the debt of donor; he is not a solidary debtor of the liability
of the donor
2. Excess donee entitled to the excess; but donee cannot seek
reimbursement from donor for the amount w/c was taken by the
creditor
Q.

HUSBAND AND WIFE
4B 2012
A.
A donation by reason of marriage may be revoked by the donor in the

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

not celebrated?
A.
If the marriage is not celebrated, the donor has the option to revoke or
to maintain the donation.
Q.
What happens to the donation propter nuptias, contained in a

marriage settlement executed prior to the marriage, if the marriage is
not celebrated?
A.
Generally, if the donation is contained in a marriage settlement

executed prior to the marriage, the donation is void. Except in cases
where the donation does not depend on the celebration of the
marriage, in which case, the donation remains effected.
Q.
Is there a prescriptive period within which the donor can exercise the
right to revoke or recover the donation given?
A.
Donor may revoke the donation within 5 years from the moment the
marriage is not solemnized on the fixed date.
CIVIL LAW REVIEW
4B 2012
Art. 82-81

HUSBAND AND WIFE
155
Art. 82-81

HUSBAND AND WIFE
156
Q.
When can the donor have the right to revoke the donation on the
ground that he marriage is void?
A.
Before revocation, there must be a judicial declaration that the

marriage is void. Notably, there are five situations that can arise
depending on the reason for the nullity of marriage:
1.
Subsequent void marriage for failure to comply w/ Art. 40
donation revoked by operation of law if the donee-spouse
contracted the subsequent void marriage in BF (Arts. 40, 52, 53)
2.
One obtains judicial declaration of presumptive death & both are
in bad faith in the subsequent marriage donation revoked by
operation of law (Arts. 41, 44)
3.
All other rounds for nullity where good faith and bad faith of the
donee are irrelevant donor has option to revoke the donation
4.
Donation inside a bigamous marriage second spouse has option
to revoke the donation made to his/her spouse who has a prior
subsisting marriage; but if the spouse who contracted 2
marriages made a donation to his/her 2nd spouse, it is void if
they are guilty of adultery, concubinage, or they were living
together as H&W w/o a valid marriage.
5.
If both parties in GF donor has option to revoke the donation
A.
The spouse who acted in bad faith in procuring the marriage should
not be allowed to profit/gain from the donation. The donation, in the
instant case, is revoked by operation of law.
Q.
What is the effect of the legal separation and where the donee is the
guilty party on the donation?
A.
Generally, the donor has the option either to revoke or to maintain the
donation. Unless, if the ground is sexual infidelity in the form of
concubinage or adultery, the donation is VOID. Thus, the donor has 5
years from the finality of the decree of legal separation within which to
exercise his right to revoke.
Q.
What is the consequence if the donation propter nuptias is with a

resolutory condition and the condition is complied with?
A.
Generally, if the donation propter nuptias is with a resolutory

condition and the condition is complied with, such donation the donor
has option to revoke or to maintain donation within 5 years. However,
if one spouse makes the donation to the other, the donor can recover
anytime.
Q.
What is the effect of the absence of the consent of the parents or

guardian to the donation propter nuptias?
Q. When can the donor revoke the donation by reason of acts of

ingratitude?
A.
The donor has the option to revoke the donation even before the
marriage is annulled. If the donor knew of the non- consent of the
parents before the marriage, the donor may not yet revoke because the
parents can still give their consent anytime prior to the marriage
ceremony. With this, the donor has five years from the time he had
knowledge that the needed consent was not obtained by the parties as
it is only from that time that the cause of action will accrue.
A.
Donor may exercise his option to revoke or to maintain the donation

within one year from knowledge of the fact of ingratitude & its possible
to bring the suit. However, alienations & mortgages effected before the
notation of the complaint for revocation in the Registry of Property
shall subsist. Later ones are void.
Q.
A.
What are deemed as void donations?

The following are void donations:
1.
Donations made by persons guilty of adultery/concubinage at the
time of the donation
Q.
What is the effect of the annulment of marriage and the bad faith of
the donee to the donation?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 82-81

HUSBAND AND WIFE
157
Art. 82-81

HUSBAND AND WIFE
2.
Donations between persons living together as H&W w/o a valid

marriage
1.
Q. Can spouses, during the marriage, make donations to the other

spouse?
2.
A.
Generally, donations made, directly or indirectly, between spouses

during the marriage are VOID. This prohibition applies to commonlaw spouses or those living together as H&W w/o the benefit of
marriage. (Matabuena v. Cervantes, 38 SCRA 284). Exceptions in the
following cases:
1.
Moderate gifts which the spouses may give each other on
occasion of family rejoicing. Moderate gifts will depend on a case-tocase basis esp. considering the financial capacity of the donor.
2.
Donations by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing/completing a
professional or vocational course/activity for self-improvement are
valid. The amount shall be chargeable to the ACP/CPG.
Q.
Are donations made by persons who were guilty of adultery or

concubinage at the time of donation, valid?
A.
No. In Agapay v. Palang, 85 SCRA 640, where the husband

transferred a property to his second wife at the time his first marriage
was still subsisting, the Supreme Court ruled that the transfer was in
fact a donation, and therefore, void under Article 739 of the Civil Code
and also under Article 87 of the Family Code which pertinently
provides that donations between persons living together as husband
and wife without a valid marriage is void.
Q.
What are considered as indirect donations of a spouse, and are thus

void under Article 87?
A.
Article 87 includes the following donations of a spouse to
CIVIL LAW REVIEW
158
4B 2012
3.
4.
5.
A stepchild who has no compulsory and/or legal heirs, as

his or her children, other than the other spouse at the time
of the donation;
A common child who has no compulsory and/or legal heirs
other than the other spouse at the time of the donation;
The parents of the other spouse;
The other spouses adopted child who has no compulsory
and/or heirs or, in cases when, at the time of the donation,
the only surviving relative of the adopted is the other
spouse (parent of the adopted);
A common adopted child who has no other compulsory
and/or legal heirs.
Q.
Who can challenge the validity of the transfer?
A.
Only persons who bear such a relation to the parties making the
transfer or to the property itself that such transfer interfere w/ their
rights or interests. The validity of the donation cannot be challenged
by those who bore absolutely no relation to the parties to the transfer
at the time it occurred & had no rights or interests inchoate, present,
remote, or otherwise in the property in question at the time the
transfer occurred.
Chapter 3
System of Absolute Community
Section 1
General Provisions
Art. 88. The absolute community of property between
spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or
implied, for the commencement of the community regime
at any other time shall be void. (145a)
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
159
Art. 88-104

HUSBAND AND WIFE
Art. 89. No waiver of rights, shares and effects of the

absolute community of property during the marriage can
be made except in case of judicial separation of property.
A.
When the waiver takes place upon a judicial separation

of property, or after the marriage has been dissolved or
annulled, the same shall appear in a public instrument
and shall be recorded as provided in Article 77. The
creditors of the spouse who made such waiver may
petition the court to rescind the waiver to the extent of
the amount sufficient to cover the amount of their
credits. (146a)
Art. 91. Unless otherwise provided in this Chapter or in

the marriage settlements, the community property shall
consist of all the property owned by the spouses at the
time of the celebration of the marriage or acquired
thereafter. (197a)
Art. 92. The following shall be excluded from the
community property:
(1)Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as
well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor
that they shall form part of the community
property;
(2)Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the
community property;
(3)Property acquired before the marriage by either
spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if
any, of such property. (201a)
Q. What comprises the absolute community property (ACP) between

spouses?
A.
All properties owned by the contracting parties before the marriage

ceremony and those which they may acquire thereafter shall comprise
the absolute community property regime. Also, in a partial separation
of property regime, the property not agreed upon as separate shall
pertain to the absolute community.
Q.
Can an alien married to a Filipino have any interest in the community

or partnership?
A.
No. The Supreme Court said in the case of Matthews v. Taylor, G.R.
no. 164584, June 22, 2009 that alienshave been disqualified from
acquiring lands of the public domain. Hence, by virtue of the aforecited
constitutional provision, they are also disqualified from acquiring
private lands. The primary purpose of this constitutional provision is
the conservation of the national patrimony.
Art. 93. Property acquired during the marriage is

presumed to belong to the community, unless it is proved
that it is one of those excluded therefrom. (160)
Q.
When will the ACP commence?
CIVIL LAW REVIEW
4B 2012
ACP commences at the precise moment of the celebration of the

marriage. Any stipulation, express or implied, for the commencement
of the community regime at any other time shall be void.
Section 2
What Constitutes Community Property
Art. 90. The provisions on co-ownership shall apply to the

absolute community of property between the spouses in
all matters not provided for in this Chapter.
Q.
160
Why is it that the system of absolute community of property (ACP) is

considered as a special type of co- ownership?
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
161
Art. 88-104

HUSBAND AND WIFE
A.
ACP is considered as a special type of co- ownership because the

spouses, as co- owners, can use the thing they owned in common in
such a way as not to injure the interests of the co- ownership.
However, unlike ordinary co-ownership, no waiver of rights, interests,
shares and effects of the ACP during the marriage can be made, except
in case of a judicial separation of property. This is for the reason that
the interest of the parties in the community property is merely
inchoate or an expectance prior to liquidation. (Abalos v. Macatangay,
439 SCRA 649)
Q.
Where can a waiver of rights, interests, shares and effects of the ACP
be made?
A.
When a waiver takes place upon a judicial separation of property, or

after the marriage has been dissolved or annulled, the same shall
appear in a public instrument and shall be recorded, as provided in
Article 77.
Q.
Who may petition the court to rescind the waiver?
A.
The creditors of the spouse who made such waiver may petition the
court to rescind the waiver to the extent of the amount sufficient to
cover the amount of their credits.
A.
The property regime, in the absence of any agreement to the contrary,

shall be the absolute community of property.
Q.
What properties can be excluded from the ACP?
A.
The following shall be excluded from the community property:

1.
Properties of each spouse that are excluded from the community
of property in the marriage settlement.
2.
Property acquired by valid gratuitous title during the marriage.
However, the donor, testor, or grantor may provide that the
property and the fruits as well as the income thereof shall form
part of the community property.
3.
Property for personal and exclusive use of either of the spouses,
except jewelry which shall form part of the community property.
4.
Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as
well as the income, if any, of such property.
Section 3
Charges and Obligations of the Absolute Community
Q. What is the effect of a waiver without a judicial separation of property

decree?
A.
If the waiver takes place without a judicial separation of property

decree, such waiver shall be void because it is contrary to law and
public policy pursuant to Article 6 of the Civil Code and because such
waiver shall constitute an act which is against a prohibitory law as
provided in Article 5 of the Civil Code.
Q.
What would govern the relationship if there was no marital agreement

entered into by the contracting parties prior to the marriage?
CIVIL LAW REVIEW
162
4B 2012
Art. 94. The absolute community of property shall be

liable for:
(1) The support of the spouses, their common children,
and legitimate children of either spouse; however, the
support of illegitimate children shall be governed by
the provisions of this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for
the benefit of the community, or by both spouses, or
by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the
family may have been benefited;
(4) All taxes, liens, charges and expenses, including major
or minor repairs, upon the community property;
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
163
Art. 88-104

HUSBAND AND WIFE
(5) All taxes and expenses for mere preservation made

during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or other
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they
have redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those
falling under paragraph (7) of this Article, the support
of illegitimate children of either spouse, and liabilities
incurred by either spouse by reason of a crime or a
quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment
of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon
liquidation of the community; and
(10) Expenses of litigation between the spouses unless
the suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities, except those falling under
paragraph (9), the spouses shall be solidarily liable for
the unpaid balance with their separate properties. (161a,
162a, 163a, 202a-205a)
Q.
What is Support?
A.
Support comprises everything indispensable for sustenance, dwelling,

clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.
CIVIL LAW REVIEW
164
4B 2012
Q.
Does the right for support to education end upon reaching the age of
majority?
A.
No.
Q.
Where will the support for illegitimate child come from?
A.
It shall be taken from the separate property of the parent-spouse. In

case of absence or insufficiency of separate property, the ACP shall pay
but it shall be considered as advances to be deducted from the share of
the parent concerned upon liquidation of the community.
Q.
Can an administrator-spouse contract a debt or obligation for and in

behalf of the ACP without obtaining the consent of the other spouse?
A.
Yes, provided there is proof to show that it redounded to the benefit of

the family. This requirement is indicative of the solicitude and tender
regard that the law manifests for the family as a unit. (BA Finance
Corporation v. Court of Appeals, 161 SCRA 608; Luzon Surety Co., Inc.
v. De Garcia, 30 SCRA 111)
Q.
What if the debt or obligation was not for the benefit of the family, will
the ACP be held liable?
A.
Yes, if the other spouse consented. Consent may be express or implied.

(Marmont Resort Hotel Enterprises v. Guiang, 168 SCRA 373)
Q.
Supposing the debt or obligation was contracted prior to the marriage,

can the ACP be held liable?
A.
Yes, provided it redounded to the benefit of the family. But if it did not
benefit the family, the ACP, in the absence or insufficiency of the
exclusive property of the debtor spouse, shall pay and it will be
considered as advances to be deducted on the share of the debtor
spouse upon liquidation.
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
165
Art. 88-104

HUSBAND AND WIFE
Q.
166
Are the losses resulting from the exercise of a profession or family

business by any of the spouses chargeable to the ACP?
common child who has no descendants or compulsory heir other that

his or her parents is an indirect donation to the other spouse.
A.
Yes. (Ayala Investment v. Court of Appeals, G.R. No. 118305,
February 12, 1998.)
Q.
Can the ACP be held liable to pay the obligation or debt arising from a
crime or quasi-delict of a particular spouse?
Q.
Suppose one of the spouses makes himself a surety or guarantor in

relation to an obligation of another person, can the ACP be held liable?
A.
A.
Any personal undertaking by a spouse cannot be presumed to be for

the benefit of the family as any advantage that may arise therefore is
merely indirect. (Security Bank and Trust Company v. Mar Tierra
Corporation, G.R. No. 143382, November 29, 2006; Ching v. Court of
Appeals, 423 SCRA 356).
The separate property of the erring spouse shall be liable. In case of

absence or insufficiency of the exclusive property, the ACP shall pay,
but such payments shall be considered as advances, to be deducted
from share of debtor spouse upon liquidation.
Q. Can the ACP be held liable for the expenses of litigation between
husband and wife?
A.
Q.
Can the taxes, liens, charges, and expenses upon the community
property be done without the consent of the other spouse?
A.
Yes, following the general rules on co-ownership.
Q.
Is the ACP liable for the expenditures incurred for the preservation of
the separate property of any of the spouses?
A.
Yes, because it is premised on the fact that the separate property has
been used or is being used by the family during the marriage.
Q.
Can the value of a donation or promise by both spouses in favor of

their common legitimate children ne chargeable to the ACP?
A.
Only if it is for the exclusive purpose of commencing or completing a

professional or vocational course or other activity for self-improvement.
Q.
What if only one of the spouses donates?
A.
This may fall under the prohibition under Article 87 making donations
between spouses, direct or indirect, void. A donation by one spouse to a
CIVIL LAW REVIEW
4B 2012
Yes, provided that the case is not groundless.
Q. Can the ACP be held liable for a suit not involving a case between
husband and wife?
A.
Yes, for as long as the suit benefits the family.
Q.
A wife was criminally sued by her husband for adultery and the wife
had to spend attorneys fees to defend herself, can the ACP be held
liable for such fees?
A.
Yes. The legal fees spent during litigation, wherein she was
subsequently acquitted, was as necessary as a claim for support,
inasmuch as the right to a good name and reputation and the right to
personal liberty are, at least, as vital and deserving of protection as the
right to existence which is, in the last analysis, the meaning of the
right to support. (Seva v. Nolan, 64 Phil. 374)
Q.
A stipulation in a lawyer-client agreement stating:

I hereby agree to pay said Attorney Claro M.
Recto twenty (20%) per cent of the value of the share
and participation which I may receive in the funds
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
167
Art. 88-104

HUSBAND AND WIFE
and properties of the said conjugal partnership of

myself and Defendant Fred M. Harden, as a result of
the liquidation thereof either by death, divorce,
judicial separation, compromise or by any means or
method by virtue of which said partnership is or may
be liquidated.
Can the CPG be held liable?
A.
No, it does not seek to bind the CPG. By virtue of said contract, Mrs.
Harden merely bound herself or assumed the personal obligation
to pay, by way of contingent fees, 20% of her share in said
partnership. The contract neither gives, nor purports to give, to the
Appellee any right whatsoever, personal or real, in and to her
aforesaid share. The amount thereof is simply a basis for the
computation of said fees. (Recto v. Harden, 100 Phil. 427)
The spouses shall be solidarily liable for unpaid balance with their
separate properties if the community property is insufficient to cover
the liabilities for which the ACP is liable. What are not included in the
solidary liability?
A.
(1) Ante-nuptial debts not redounding to the benefit of the family, (2)
support of illegitimate children by either spouses, and (3) liabilities
incurred by the spouse by reason of a crime or quasi-delict.
Q.
If the husband and wife maintains joint administration, and one of

them becomes insolvent, may the right of the insolvent spouse be to
jointly administer be legally curtailed by the court?
Yes. The court may make the non-insolvent spouse the sole
administrator or appoint a third person.
Art. 95. Whatever may be lost during the marriage in any
game of chance, betting, sweepstakes, or any other kind
of gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to
CIVIL LAW REVIEW
the community but any winnings therefrom shall form

part of the community property. (164a)
Q.
Suppose a stranger just gave, without consideration, one of the

spouses a sweepstake ticket which eventually won, will the winning
form part of the ACP?
A.
No. It is separate property, unless the donor expressly provided it to
form part of the ACP.
Q.
A.
168
4B 2012
Section 4. Ownership, Administration, Enjoyment and

Disposition of the Community Property
Art. 96. The administration and enjoyment of the
community property shall belong to both spouses jointly.
In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five
years from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration of
the common properties, the other spouse may assume
sole powers of administration. These powers do not
include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition
or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (206a)
Q. May administration of property be validly delegated to only one
spouse?
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
169
Art. 88-104

HUSBAND AND WIFE
A.
170
A.
No. The innocent purchaser for value may rely on what is officially
annotated in the TCT. The remedy of the aggrieved spouse is to
compel the erring spouse to account for the proceeds of the sale, as the
same is part of the ACP. (PNB v. Court of Appeals, 153 SCRA 435)
Q.
Suppose that a husband, without the consent of his wife but with her
knowledge, enters into a contract affecting the ACP, what is the status
of the contract?
A.
It is annullable at the instance of the wife. (Ravina v. Abrille, G.R. No.

160708, October 16, 2009) However, if the wife ratifies the contract by
any express or implied act, she cannot seek the annulment of the
contract even within the 5 year prescriptive period.
Yes, in a marriage settlement executed prior to the marriage.
Q. Does joint administration require the husband and wife to always act
together?
A.
No. Each spouse may validly exercise full power of management alone,
subject to the
intervention of the court in proper cases.
Q.
The signature of the husband or wife alone appears in a complaint

filed in court involving community or conjugal property. Is this valid?
A.
Yes. Each of the spouse may be reasonably presumed to have personal

knowledge of the filing or non-filing by the other spouse of any action
or claim similar to the petition which the other spouse filed given the
notices and legal processes involved in a legal proceeding involving
real property. (Docena v. Lapesura, G.R. No. 140153, March 28, 2001)
Note: The wife has the right to annul or nullify, as the case may be,
not only her share in the property involved, but the entire contract
itself.
Note: The ordinary rules on co-ownership apply in a suppletory

character.
Q. What is the effect of incapacity of one of the spouses on

administration?
Q.
A.
The other spouse may assume sole powers of administration.
Q.
If the spouse if absent or separated in fact, or abandoned the other, or

consent is withheld, how is the appointment to be effected?
A.
Through a summary proceeding.
Q.
What about if the spouse is incompetent who is in a comatose or

semi-comatose condition, without motor or mental faculties?
A.
The proper remedy is a judicial guardianship proceeding under Rule

93 of the Rules of Court, not a summary proceeding under the Family
Code. (Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000)
If, despite a disagreement, the wife implements her desires or enters

into any contract to enforce her objectives, what is the remedy of the
husband?
A.
The husband can go to court for adequate relief.
Q.
What is the effect of any disposition by one spouse of the properties in

an ACP, without the knowledge and consent of the other spouse?
A.
It is null and void. It is likewise imprescriptible.
Q.
Suppose that a third-party purchaser relied in good faith on the

Transfer Certificate of Title indicating that the person named therein
is single, when in fact he/she is married. Can the transaction be
voided?
CIVIL LAW REVIEW
4B 2012
Note: In any event, should the administering spouse decide to sell real
property as such administrator of the community of conjugal property,
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
171
Art. 88-104

HUSBAND AND WIFE
he or she must observe the procedure for sale of the wards estate
required of judicial guardians under Rule 95, not summary
proceedings under the Family Code. This is so because as the
administrator spouse, he or she must perform the duties of a guardian.
(Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000)
Q.
172
A.
Either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of
family rejoicing or distress.
Section 5
Dissolution of Absolute Community Regime
What is the legal significance of a transaction under this article?
Art. 97. Either spouse may dispose by will of his or her

interest in the community property. (n)
Art. 99. The absolute community terminates:

(1)Upon the death of either spouse;
(2)When there is a decree of legal separation;
(3)When the marriage is annulled or declared void; or
(4)In case of judicial separation of property during the
marriage under Articles 134 to 138. (175a)
Q. Will such disposition be considered a waiver of interest in the

community property?
Q. Does the termination of the ACP result to the termination of the

marriage?
A.
A.
No. But the termination of the marriage simultaneously results in the

dissolution of the ACP.
Q.
Suppose that after a decree of legal separation has been obtained, the
parties reconciled, may they agree to revive the property regime?
A.
Yes, subject to the provisions of Article 67.
Q.
What happens when a reappearing spouse or an interested person files

an affidavit of reappearance to terminate the subsequent marriage of
the present spouse?
A.
The subsequent marriage shall be terminated and result in the

dissolution of the ACP or CPG.
A.
It is treated as a continuing offer on the part of the consenting spouse
and the third person.
No. Such waiver is prohibited under Article 89 of the Family Code. The
act of disposition precisely highlights the testators intent to control the
property to take effect after death.
Art. 98. Neither spouse may donate any community
property without the consent of the other. However,
either spouse may, without the consent of the other,
make moderate donations from the community property
for charity or on occasions of family rejoicing or family
distress. (n)
Q.
What is the reason for the prohibition?
A.
It is intended to protect the other spouses share from the prodigality of

a reckless or faithless spouse. (Estate of McNutt, 36 Cal App 2d 542,
98 P2d 253)
Q.
What are the exceptions?
CIVIL LAW REVIEW
4B 2012
Art. 100. The separation in fact between husband and

wife shall not affect the regime of absolute community
except that:
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
173
Art. 88-104

HUSBAND AND WIFE
174
(1) The spouse who leaves the conjugal home or refuses

to live therein, without just cause, shall not have
the right to be supported;
(2) When the consent of one spouse to any transaction
of the other is required by law, judicial
authorization shall be obtained in a summary
proceeding;
(3) In the absence of sufficient community property,
the separate property of both spouses shall be
solidarily liable for the support of the family. The
spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to
administer or encumber any specific separate
property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter's share. (178a)
Q.
What is the effect of a separation in fact between the spouses?
A.
Generally, the ACP will not be affected, with the exception of the
circumstances enumerated in the article.
Q.
May the mere fact of separating from the conjugal roof constitute a
reason for annulling the right of support?
A.
No. It cannot be presumed culpable when there is no evidence of any

fault or guilt on the part of the one who so separates. (Sumulong v.
Cembrano, 51 Phil. 719) Fault must always be proven.
absence or insufficiency of community property for the support of the

family?
A.
Only the present spouse.

Art. 101. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property or for
authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property
relations.
A spouse is deemed to have abandoned the other when
her or she has left the conjugal dwelling without
intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has
failed within the same period to give any information as
to his or her whereabouts shall be prima facie presumed
to have no intention of returning to the conjugal
dwelling. (178a)
Q.
What is abandonment?
Q.
May the spouse who left the conjugal home without a valid cause seek
judicial authorization when the consent of the other spouse is not
obtained?
A.
Abandonment must not only be physical estrangement but also

amount to financial and moral desertion. (Dela Cruz v. Dela Cruz, 130
Phil. 324)
A.
Yes.
Q.
What obligations are contemplated in this article?
Q.
Who is given legal standing by law to seek judicial authority to

administer or encumber any specific property of the other spouse and
use the fruits or proceeds thereof to satisfy the latters share in the
A.
Marital, parental, or property relationship.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
175
Art. 88-104

HUSBAND AND WIFE
Q.
Does mere refusal or failure of the administrator of the property to

inform the other spouse of the progress of family businesses constitute
abuse of administration?
A.
No. (Dela Cruz v. Dela Cruz, 130 Phil. 32)
(4) The net remainder of the properties of the

absolute community shall constitute its net assets,
which shall be divided equally between husband and
wife, unless a different proportion or division was
agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share
provided in this Code. For purpose of computing the
net profits subject to forfeiture in accordance with
Articles 43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market value of
the community property at the time of the celebration
of the marriage and the market value at the time of its
dissolution.
Note: If it is shown that such failure to comply with the obligations of

a family constitutes a psychological incapacity to perform the essential
marital obligations, which existed at the time of marriage, the
marriage itself can be considered void under Article 36. And if the
abandonment without just cause is for more than one year, another
remedy is the filing of a legal separation case.
(5) The presumptive legitimes of the common children

shall be delivered upon partition, in accordance with
Article 51.
Section 6
Liquidation of the Absolute Community
(6) Unless otherwise agreed upon by the parties, in

the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall be adjudicated
to the spouse with whom the majority of the common
children choose to remain. Children below the age of
seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there
in no such majority, the court shall decide, taking into
consideration the best interests of said children. (n)
Art. 102. Upon dissolution of the absolute community

regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately
all the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute
community shall be paid out of its assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions
of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each of
them.
CIVIL LAW REVIEW
176
4B 2012
Q.
How do you liquidate an Absolute Community Regime?
A.
See Art. 102
Q.
When can the dissolution process begin?
A.
It occurs upon the happening of the events enumerated in Art. 99
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
177
Art. 88-104

HUSBAND AND WIFE
Q. Does this procedure apply in a voluntary judicial separation of

property?
A.
No. It may be governed by the agreement of the parties provided that

the court approves the same.
Q.
What should be inventoried?
A.
All properties or assets at the time of the dissolution, whether

belonging to the Absolute Community of property or separate property
of the spouses, should be inventoried.
Art. 103. Upon the termination of the marriage by

death, the community property shall be liquidated in
the same proceeding for the settlement of the estate of
the deceased.
If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the community
property either judicially or extra-judicially within
six months from the death of the deceased spouse. If
upon the lapse of the six months period, no
liquidation is made, any disposition or encumbrance
involving the community property of the terminated
marriage shall be void.
Q. What should be the basis when appraising the value of the inventoried
items?
A.
The market value or, in default thereof, the assessed value at the time
of liquidation should be taken into account and not the purchase price.
Q.
Will equal sharing between the spouses always apply in the partition
of the net assets?
A.
No. If there is a division agreed upon in the marriage settlement, it

will be followed. Or if there is a voluntary waiver made by one of the
spouses in accordance with the law.
Q.
When should the presumptive legitime be delivered?
A.
It should be delivered only after the finality of a judicial decree of

annulment or of nullity of a subsequent void marriage.
Q.
Should the presumptive legitimes be delivered in cases of legal

separation or in a case of judicially declared void marriage other than
in a subsequent void marriage as a result of the non-observance of
Article 40?
A.
No. It is only delivered in the two situations mentioned previously.
CIVIL LAW REVIEW
178
4B 2012
Should the surviving spouse contract a subsequent

marriage without compliance with the foregoing
requirements, a mandatory regime of complete
separation of property shall govern the property
relations of the subsequent marriage. (n)
Q.
Why is any disposition or encumbrance involving the community

property void if no liquidation was made prior to such actions?
A.
This is because it is only after liquidation and partition when specific

properties are definitely and physically determined. This is only the
time when a sale of such allotted property can be made. Prior to
liquidation and partition, the spouse or heirs of the decedent only
acquires an interest to the entire property.
Q.
What happens if there is a surviving spouse and compulsory heirs?
A.
A co-ownership of the community property will be formed between

them upon the death of the spouse.
Q.
Can the surviving spouse or the compulsory heirs undertake any act of
dominion over the property prior liquidation and partition?
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
179
Art. 88-104

HUSBAND AND WIFE
180
A.
Yes they can but only over their interest, share or participation and
not over a specific concrete property.
Q.
If a co-owner mortgages his interest over the property, can an

administrator still sell such property?
A.
Yes. The attachment is still subject to the administration of the estate.

The administrator retains the power to sell the property if it is
necessary to pay off the debts of the deceased.
Q.
A.
Q.
Where should a creditor make his claim against the community

property upon the death of the debtor-spouse?
A.
The claim should be filed in the settlement of estate proceeding of the

deceased spouse.
Q.
Is this rule absolute?
A.
No. If the surviving spouse committed himself or herself to be

solidarily liable for the claim against the community property, a
complaint may be brought against such spouse.
Q.
What happens if the surviving spouse remarries without liquidating

and partitioning the community property of the first marriage?
A.
The regime of Complete Separation of Property shall govern the

subsequent marriage.
Does this mandatory regime apply if the termination of the marriage

is by nullity or annulment?
No. This mandatory regime will only apply in case the termination of
the first marriage is by DEATH. If it is by nullity or annulment, the
property regime in the subsequent marriage is co-ownership since it is
void pursuant to Articles 52 and 53.
Art. 104. Whenever the liquidation of the community
properties of two or more marriages contracted by
the same person before the effectivity of this Code is
carried out simultaneously, the respective capital,
fruits and income of each community shall be
determined upon such proof as may be considered
according to the rules of evidence. In case of doubt as
to which community the existing properties belong,
the same shall be divided between the different
communities in proportion to the capital and
duration of each. (189a)
Q.
When is Article 104 applicable?
A.
It is applicable when there are at least two marriages contracted prior

August 3, 1988 and the community properties of such marriages are to
be liquidated at the same time.
Q.
What happens if there are two marriages that are equal in duration
and the total amount of assets is 15k?
Q.
Is this mandatory?
A.
Yes, it is mandatory.
A.
The heirs of each marriage get 7.5k each
Q.
What if prior to the subsequent marriage, a marriage settlement was

executed which states that either the ACP or CPG shall govern?
Q.
What if the first marriage lasted 2 years while the other 3 years and
the total amount of assets is 15k?
A.
Such stipulation is not valid as it is against the law.
A.
The first marriage gets 2/5 of 15k and the second marriage gets 3/5.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 88-104

HUSBAND AND WIFE
181
Art 105-133
The first marriage will get 1/3 of 15k while the second 2/3.
Q.
What if the first marriage lasted for 2 years and had 1k of assets while
the second lasted for 3 years and had 2k of assets?
Multiply the duration and the amount of each marriage then pro-rate
the entire amount of assets. In this case the first marriage will get 2/8
of 15k while the second marriage will get 6/8 of 15k.
A.
Chapter 4
Conjugal Partnership of Gains
Section 1
General Provisions
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership
gains shall govern their property relations during
marriage, the provisions in this Chapter shall be of
supplementary application.
The provisions of this Chapter shall also apply to
conjugal partnerships of gains already established
between spouses before the effectivity of this Code,
without prejudice to vested rights already acquired in
accordance with the Civil Code or other laws, as
provided
in
Article
256.
(n)
Art. 106. Under the regime of conjugal partnership of
gains, the husband and wife place in a common fund
the proceeds, products, fruits and income from their
separate properties and those acquired by either or
CIVIL LAW REVIEW
4B 2012
182
both spouses through their efforts or by chance, and,

upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally
between them, unless otherwise agreed in the
marriage settlements. (142a)
Q. What if the duration of the marriage is unknown but the amount of

assets of each marriage are known (1k for the first, 2k for the second)?
A.

HUSBAND AND WIFE
Q.
What is covered by the Conjugal Partnership of Gains?
A.
The spouses place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired by either or
both spouses through their efforts or by chance.
Q.
When is there a presumption of conjugality?
A.
The presumption attaches if it can be proven that the property was

acquired DURING the marriage.
Art. 107. The rules provided in Articles 88 and 89 shall
also apply to conjugal partnership of gains. (n)
Q.
When does the Conjugal Partnership commence?
A.
It commences at the precise moment (hour, not day) when the

marriage ceremony is celebrated.
Can a waiver be made of rights, interests, shares and effects of the
conjugal property during the marriage?
There can be no waiver during marriage by any of the spouse except
when there is a judicial separation of property.
Q.
A.
Art. 108. The conjugal partnership shall be governed by

the rules on the contract of partnership in all that is not
in conflict with what is expressly determined in this
Chapter or by the spouses in their marriage settlements.
(147a)
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
183
Art 105-133

HUSBAND AND WIFE
184
Q.
How is the ACP different from the CPG?
A.
Yes, if the owner-spouse consents to such. Otherwise, the other spouse

cannot.
A.
In ACP, the rules on CO-OWNERSHIP apply suppletorily while in

CPG, it is the rules on the contract of PARTNERSHIP which applies.
Q.
What if the property was purchased before the marriage but was only
registered after the marriage under the name of the owner-spouse and
the other spouse as co-owner?
A.
Such property is still to be deemed as the exclusive property of the

owner-spouse since he bought it with his exclusive funds prior the
marriage. The registering of the other spouse as co-owner only creates
a trust.
Q.
How are properties acquired by gratuitous title made in ACP similar

with donations made in CPG?
A.
Both donations shall belong exclusively to the spouse-recipient.
Q.
How are they different?
A.
In ACP, the income and fruits of such property are deemed as

exclusive property of the recipient-spouse while in CPG, it shall be
considered as conjugal property.
Q.
What about redeemed properties?
A.
It shall belong exclusively to the spouse who had the right to redeem
such property even if he uses his own funds or used conjugal funds. If
conjugal funds were used, such spouse is obliged to reimburse such
amount.
Q.
What if conjugal property were executed upon and sold and one of the
spouses redeemed such property with her own funds, would it still be
conjugal property?
A.
No, it will be the exclusive property of the redeeming spouse.
Q.
If a spouse files an action against the third party, is it required to

make the other spouse a party to the case?
A.
No, the other spouse is not an indispensable party to the case. Being a
partner, they are deemed co-owners and the filing of one co-owner does
not need the joining of the other co-owners.
Section 2
Exclusive Property of Each Spouse
Art. 109. The following shall be the exclusive property of
each spouse:
(1)That which is brought to the marriage as his or
her own;
(2)That which each acquires during the marriage
by gratuitous title;
(3)That which is acquired by right of redemption,
by barter or by exchange with property
belonging to only one of the spouses; and
(4)That which is purchased with exclusive money of
the wife or of the husband. (148a)
Q. What are the properties to be deemed owned exclusively by the

spouses?
A.
See Art. 109.
Q.
Can the properties brought into the marriage by the owner-spouse as

his own be encumbered, alienated or disposed of by the other spouse?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
185
Q.
What happens if separate properties were sold and the proceeds were
added to conjugal funds to buy properties, what is the nature of such
property?
A.
The property will be considered as conjugal property.
Q.
A property was purchased using the exclusive money of one of the

spouses and the title was taken in the spouses joint names, what is
the nature of the property?
A.
A.

HUSBAND AND WIFE
186
Art. 112. The alienation of any exclusive property of a

spouse administered by the other automatically
terminates the administration over such property and
the proceeds of the alienation shall be turned over to the
owner-spouse. (n)
Q.
Is Article 111 still in effect?
A.
It has been rendered superfluous by Article 234 which lowers the

majority age to eighteen years.
It depends. The circumstances of the situation will be considered to see

if such is a donation to the other spouse or a trust was intended.
Q.
Art. 110. The spouses retain the ownership, possession,

administration and enjoyment of their exclusive
properties.
Is there a limitation on the power of the owner-spouse to automatically

terminate the administration of the other spouse by alienating the
property?
A.
Yes. Article 127 contemplates a situation where the spouses are

separated in fact and the present spouse had been given authority by
the courts to administer or encumber any specific property of the other
spouse if the conjugal funds are not sufficient to pay off its obligations.
In this case, the owner-spouse cannot revoke such administration by
merely alienating such property. He may only alienate it upon the
courts approval.
Either spouse may, during the marriage, transfer the

administration of his or her exclusive property to the
other by means of a public instrument, which shall be
recorded in the registry of property of the place the
property is located. (137a, 168a, 169a)
Q.
Art 105-133
Can an owner-spouse still encumber, dispose or donate his exclusive

properties even after he transferred its administration to the other
spouse?
Yes, he still can.
Art. 111. A spouse of age may mortgage, encumber,
alienate or otherwise dispose of his or her exclusive
property, without the consent of the other spouse, and
appear alone in court to litigate with regard to the same.
(n)
CIVIL LAW REVIEW
4B 2012
Art. 113. Property donated or left by will to the spouses,

jointly and with designation of determinate shares, shall
pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and
share alike, without prejudice to the right of accretion
when proper. (150a)
Art. 114. If the donations are onerous, the amount of the
charges shall be borne by the exclusive property of the
donee spouse, whenever they have been advanced by the
conjugal partnership of gains. (151a)
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
187
Art 105-133

HUSBAND AND WIFE
188
Q. Is there accretion in cases of donation made in favor of husband and

wife?
Q.
Is an annuity a gratuity?
A.
Yes, there is accretion. If of a property is donated to a husband and

to the wife, the share of one spouse will go to the other in case he/she
rejects such donation.
A.
An annuity is not a gratuity if the recipient thereof is entitled to it as a

matter of right. So if a government teacher complied with all the
requirements of law to be entitled to an annuity which shall be
considered as conjugal.
Q.
What about in properties left by will, will there be accretion?

Q.
Are pensions gratuity?
A.
It depends, if the property left by will to the husband and wife is proindiviso (not divided), then there would be accretion. However, if the
will states that husband will get Cebu property while wife will get
Makati property, there would be no accretion in this case as the
properties are not pro-indiviso.
A.
No. Pensions are in the nature of compensation for services previously

rendered for which full compensation was not received. It is, in effect,
pay withheld. Therefore, pensions are considered as conjugal.
Q.
What about Insurance proceeds?
A.
It would depend on how the insurance was paid. If it were paid by

conjugal funds, then the proceeds would be conjugal property. If it was
paid by exclusive funds, then the proceeds will be exclusive property. If
it was paid partly by conjugal funds and partly by exclusive funds, the
proceeds will be partly owned by the conjugal partnership and partly
separate property in proportion with the amount of contribution.
Q.
What if conjugal funds were used to pay for an onerous donation?
A.
The property donated will still be considered as exclusive property of

the donee-spouse. However, he will be obligated to reimburse the
conjugal
partnership.
Art. 115. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous
acquisitions as may be proper in each case. (n)
Q.
Are pensions, annuities and gratuities conjugal or separate?
A.
It would depend on a case-to-case basis. The manner it was obtained

and the circumstances of the case will be considered.
Q.
When does a gratuity become separate property?
Section 3
Conjugal Partnership Property
Art. 116. All property acquired during the marriage,
whether the acquisition appears to have been made,
contracted or registered in the name of one or both
spouses, is presumed to be conjugal unless the contrary
is proved. (160a)
Q.
What property is presumed to be conjugal?
A.
It is considered as separate property if it was given because of previous
work.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
189
A.
All property acquired during the marriage, whether the acquisition

appears to have been made, contracted or registered in the name of
one or both spouses, is presumed to be conjugal unless the contrary is
proved.
Q.
When is the presumption applicable?
A.
The presumption is applied when it has been proven that the property
in controversy was acquired during the marriage. Proof of acquisition
during the marriage is a condition sine qua non for the presumption to
operate. (Jocson v. Court of Appeals, 170 SCRA 333) For as long as
acquisition is proven during the marriage, the presumption will apply
even when the manner in which the properties were acquired does not
appear (Tan v. Court of Appeals, 273 SCRA 229) and even if the
property is registered in the name of one or both of the spouses
(Villanueva v. Court of Appeals, G.R. No. 143286, April 12, 2004, 427
SCRA 439)
Q. Does the presumption apply even when the spouses are living
separately?
A.
Yes, the presumption also applies even though the spouses are living
separately (Wong v. IAC, 200 SCRA 792)
Q.
Is the presumption conclusive?
A.
No, it is a rebuttable presumption. The presumption of the conjugal

nature of properties subsists in the absence of clear, satisfactory and
convincing evidence to overcome said presumption or to prove that the
properties are exclusively owned by one of the spouses. (Wong v. IAC,
200 SCRA 792)
Q.

HUSBAND AND WIFE
190
A.
The fact that the title is in the wifes name alone is determinative.
(Maramba v. Lozano, et al., G.R. No. L-21533, June 29, 1967, 20 SCRA
474)
Q.
A Torrens Title states that the owner is A married to B. Does that

inscription prove that the land is conjugal?
A.
No, the phrase married to is merely descriptive of civil status.

(Magallon v. Mantejo, 146 SCRA 282; see also Heirs of Jugalbot v.
Court of Appeals, G.R. No. 170346, March 12, 2007, 518 SCRA 203)
Q. Is registration of the property proof of acquisition during the

marriage?
A.
No, because the property could have been acquired while the owner
was single and registered only after the marriage ceremony
(Metropolitan Bank and Trust Company v. Tan, G.R. No. 163712,
November 30, 2006, 509 SCRA 383)
Q.
A left his wife B and family to bigamously marry another woman, C.

Does registration of the property under the name of C disprove that
the property is conjugal property of A and B?
A.
No, it does not. (Belcodero v. Court of Appeals, 45 SCAD 400, 227
SCRA 303)
What happens when there is no showing as to when the property in

question was acquired and the title is in the wifes name alone?
CIVIL LAW REVIEW
Art 105-133
4B 2012
Q.
A is the wife of B. A conveyed her property to a third person C. It was

reconveyed to A several months later. Is the property automatically
transformed into conjugal property?
A.
No, the reconveyance does not transform it to conjugal property, in the

absence of proof that the money paid in the reconveyance came from
conjugal funds. (Plata v. Yatco, 12 SCRA 718)
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
191
Q.
Are proofs consisting of tax declaration in the name of one of the

spouses obtained during the marriage evidence of acquisition and
enough to give rise to the presumption that the property is conjugal?
A.
No, they are not. (Pintiano-Anno v. Anno, G.R. No. 163743, January
27, 2006, 480 SCRA 419)
Art. 117. The following are conjugal partnership properties:
(1)Those acquired by onerous title during the marriage
at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of
the spouses;
(2)Those obtained from the labor, industry, work or
profession of either or both of the spouses;
(3)The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as
well as the net fruits from the exclusive property of
each spouse;
(4)The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
(5)Those acquired through occupation such as fishing or
hunting;
(6)Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
(7)Those which are acquired by chance, such as winnings
from gambling or betting. However, losses therefrom
shall be borne exclusively by the loser-spouse. (153a,
154a, 155, 159)
Q.
What consists of conjugal property?
A.
The following are conjugal partnership properties:
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
192
(1) Those acquired by onerous title during the marriage at the expense
of the common fund, whether the acquisition be for the partnership,
or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits from
the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure is
found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess
of the number of each kind brought to the marriage by either
spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)
Q.
Spouses A and B finance a contract through their conjugal partnership

of gains. A third person C unduly breaches the contract. Are damages
granted by the courts in favor of any of the spouses conjugal?
A.
Yes (Zulueta v. Pan American World Airways, Inc., 49 SCRA 1)
Q.
The exclusive property of spouse A was illegally detained. Are the

damages arising out of such illegal detention conjugal?
A.
Yes, if such detention deprived the partnership of the use and earnings
of the same. (Bismorte v. Aldecoa, 17 Phil. 480)
Q.
Spouse A was physically injured by a third person C. Damages were

awarded to A. Is the damages conjugal?
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
193
A.
No, said damages exclusively belong to the said injured spouse. (Lilius
v. Manila Railroad Co., 62 Phil. 56, 64-65, cited in Zulueta v. Pan
American World Airways, Inc., 49 SCRA 1)
Q.
What is the significance of using the term net fruits?
A.
Net fruits are referred to because the fruits of the separate property
will be applied first to the expenses of administration of the said
separate property and the remaining balance of the said fruits which
constitute the net fruits shall be considered conjugal (See Minutes of
the 174th Joint Meeting of the Civil Code and Family Law committees
held on February 28, 1987, page 13)
Q.
What is the meaning of hidden treasure?
A.
Hidden treasure contemplates artifacts or objects which have

undergone transformation from their original raw state, such as
earrings, necklace and the like.
Are gold nuggets, precious stones in the raw state, oil and the like
hidden treasures?
A.
No, because they did not undergo transformation from their original
raw state.
Art 105-133

HUSBAND AND WIFE
194
shall be reimbursed by the owner or owners upon

liquidation of the partnership. (n)
Q.
What does Article 118 contemplate?
A.
It contemplates a situation when installment was initiated prior to the

marriage and ended during the marriage.
Q.
How is ownership determined when property is bought on installment

basis partly by exclusive funds of either or both spouses and partly by
conjugal funds?
A.
The ownership is determined by the time when the title is vested. If

ownership is vested before the marriage, it belongs to the class of
properties exempted from conjugal partnership as property brought to
the marriage by the spouses. However, if ownership is vested upon the
buyer-spouse after the marriage ceremony, it shall form part of the
conjugal partnership and the spouse who contracted the purchase
shall have the right of reimbursement from the partnership.
Q.
Spouse A bought friar lands before her marriage. However, some of

the installments were paid for with the conjugal funds during their
marriage. Is the conjugal partnership entitled to the land?
A.
No, the conjugal funds would only be entitled to reimbursement for the
expense (Lorenzo v. Nicolas, 91 Phil. 686). Under the Friar Lands Act
No. 1120, the equitable and beneficial title to the land passes to the
purchaser the moment the first installment is paid and a certificate of
sale is issued. (Alvarez v. Espiritu, 14 SCRA 892, citing Director of
Lands v. Rizal, 87 Phil. 806)
Q.
A property was bought during the marriage. The purchase was funded
partly by the exclusive money of either or both of the spouses and
partly by conjugal funds. Should the property be deemed both
paraphernal and conjugal in proportion to the contributions of each?
Q.
Q.
Who bears the losses from gambling or betting?
A.
Losses shall be borne exclusively by the loser-spouse.

Art. 118. Property bought on installments paid partly
from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the
conjugal partnership if such ownership was vested
during the marriage. In either case, any amount
advanced by the partnership or by either or both spouses
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 105-133
A.

HUSBAND AND WIFE
195
In the case of Castillo, Jr. v. Pasco, 11 SCRA 102, the Supreme Court
decided that the property should be considered as both paraphernal
and conjugal, taking in consideration the contributions of each to the
total purchase price.
However, the applicability of the above jurisprudence may be
questioned right now in view of Article 118. Clearly, the reason is to
give life to the states public policy of, as much as possible creating a
unified ownership of properties between husband and wife during the
time of marriage. While Article 118 contemplates a situation where
the property was bought prior to the marriage, the public policy sought
to be achieved by the said provision must with more reason,
necessarily be carried into effect also in cases where the property was
purchased at the time when the parties are already and legally
married.
Art 105-133
Will interests falling due during the marriage belong exclusively to the
spouse who owns the credit?
A.
No, the second sentence of Article 119 specifically provides that

interests falling due during the marriage on the principal shall belong
to the conjugal partnership.
Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through
the acts or efforts of either or both spouses shall pertain
to the conjugal partnership, or to the original ownerspouse, subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more
than the value of the property at the time of the
improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the ownerspouse, likewise subject to reimbursement of the cost of
the improvement.
In either case, the ownership of the entire property shall
be vested upon the reimbursement, which shall be made
at the time of the liquidation of the conjugal
partnership. (158a)
Art. 119. Whenever an amount or credit payable within a

period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests
falling due during the marriage on the principal shall
belong to the conjugal partnership. (156a, 157a)
What does Article 119 contemplate?
A.
It contemplates a situation where one of the spouses has in his or her

favor, a credit payable in installments or, in any case, a credit which
will be fully paid during the marriage. Article 119 provides that in
such instances, all payments made on the principal during the
marriage shall belong exclusively to the spouse who owns the credit.
CIVIL LAW REVIEW
4B 2012
196
Q.
If it is bought partly by conjugal funds and partly by separate funds, it

cannot be said to be exclusively bought by the exclusive money of
either of the spouses and therefore, the property so bought should be
considered conjugal, subject to the same reimbursement scheme under
the last sentence of Article 118.
Q.

HUSBAND AND WIFE
Q.
When an improvement is made on a separate property at the expense

of the partnership, to who shall the improvement and property belong?
A.
It depends. If the value of the improvement and any resulting increase

in value are more than the value of the separate property at the time
of improvement, the entire property shall belong to the conjugal
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
197
Art 105-133
partnership. But ownership shall vest only upon reimbursement to the

owner-spouse. If the value of the improvement and any resulting
increase in value are not more than the value of the separate property
at the time of improvement, the property shall be retained by the
owner-spouse, subject to reimbursement of the cost of improvement.
Q.
When shall reimbursement be made?
A.
Reimbursement shall be made at the time of the liquidation of the

conjugal partnership.
Art. 121. The conjugal partnership shall be liable for:
CIVIL LAW REVIEW
4B 2012
198
(6) Expenses to enable either spouse to commence or

complete a professional, vocational, or other activity
for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they
have redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the
suit is found to groundless.
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable
for the unpaid balance with their separate
properties. (161a)
Section 4
Charges Upon and Obligations of the Conjugal Partnership
(1) The support of the spouse, their common children,

and the legitimate children of either spouse; however,
the support of illegitimate children shall be governed
by the provisions of this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for
the benefit of the conjugal partnership of gains, or by
both spouses or by one of them with the consent of the
other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the
family may have benefited;
(4) All taxes, liens, charges, and expenses, including
major or minor repairs upon the conjugal partnership
property;
(5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of
either spouse;

HUSBAND AND WIFE
Q. What are the charges upon and obligations of the conjugal

partnership?
A.
The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this Code
on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal
partnership of gains, or by both spouses or by one of them with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor
repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
199
(6) Expenses to enable either spouse to commence or complete a

professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded
to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor
of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or other
activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found
to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid balance
with their separate properties. (161a)
Q.
Are liabilities always chargeable to the conjugal partnership?
A.
No, liabilities shall only be chargeable to the conjugal partnership if it

benefits the same.
Q.
Can creditors of a third person go against the conjugal partnership

property if one of the spouses is the surety?
A.
No, a husband acting as guarantor or surety for another does not act
for the benefit of the conjugal partnership. A contrary view would put
in peril the conjugal partnership property by allowing it to be given
gratuitously as in cases of donation of conjugal partnership property
which is prohibited. (Ayala Investment & Development Corp. v. Court
of Appeals, G.R. No. 118305, February 12, 1998)
Q.
A.
Can creditors go against the conjugal partnership property if both the

husband and the wife are sureties of a third person?
Yes, if both spouses signed the surety agreement, then the conjugal
partnership is liable.
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
200
Q.
Is the signature of one of the spouses as a mere witness and not as a

party to the contract indicative of her implied consent to a contract
executed by the other spouse?
A.
Yes. (Pelayo v. Perez, G.R. No. 141323, June 8, 2005).
Q.
Who has the burden of proof to show that the liability redounded to
the benefit of the family?
A.
The burden of proof must be on the person claiming it. (Homeowners

Savings and Loan Bank v. Dalio, G.R. No. 153802, March 11, 2005,
453 SCRA 283)
Q.
A husband is the administrator of a commercial enterprise. Debts are

incurred by the husband for gain or in exercise of the industry or
profession by which he contributes to the support of the family. Are
such debts chargeable to the conjugal partnership?
A.
Yes, the conjugal partnership of gains shall be liable. (Cobb-Perez v.

Lantin, 23 SCRA 637; Abella de Diaz v. Erlanger and Galinger, 56
Phil. 326; Javier v. Osmena, 34 Phil. 336)
Q.
What happens if the conjugal partnership is insufficient to cover the

debts and obligations enumerated in Article 121?
A.
The creditors may demand payment from either or any of the spouses
with their respective separate properties. He or she who made the
payment may claim from his or her spouse only the share which
corresponds to each, with the interest for the payment already due. If
the payment is made before the debt is due, no interest for the
intervening period may be demanded (Article 1217 of the Civil Code).
Q. When can the separate properties of the spouses be solidarily held

liable?
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
201
A.
(1) If the conjugal partnership is insufficient to cover the debts and

obligations enumerated in Article 121.
(2) If the spouses expressly made themselves liable in a solidary
manner in any obligation contracted by them for the benefit of the
conjugal partnership of gains.
Q.
Can the assignee take possession of the conjugal partnership property

for the payment of the insolvent debtors obligations?
Art 105-133
As a general rule, no. However, if it redounded to the benefit of the

family, it shall be chargeable to the conjugal partnership. Also, the
payment of the personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as
the support of illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities in Article 121
have been covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient. However, at the time
of the liquidation of the partnership, such spouse shall be charged for
what has been paid for.
Q.
What must be shown so that the payment of the personal debts

contracted by either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the partnership
assets?
A.
It must be shown that the obligations under Article 121 have been
covered and that the debtor-spouse has insufficient or not exclusive
properties to pay the debt or obligation involved.
Q.
What is the difference between the conjugal partnership of gains and

the absolute community regime in terms of liabilities and obligations?
A.
The conjugal partnership is liable for the personal debts, fines and
indemnities of either spouse only after payment of all the liabilities of
the conjugal partnership as enumerated under Article 121 are covered
and when the separate property of the spouse is insufficient. Under
the absolute community regime, such liabilities may be charged
against the community in case the separate property of the spouse is
insufficient, without the need for payment of all the liabilities of the
absolute community property.
Art. 122. The payment of personal debts contracted by

the husband or the wife before or during the marriage
shall not be charged to the conjugal partnership except
insofar as they redounded to the benefit of the family.
However, the payment of personal debts contracted by

either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered,
if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of
the liquidation of the partnership, such spouse shall be
charged for what has been paid for the purpose abovementioned. (163a)
Q.
Are payments of personal debts contracted by one spouse before or

during the marriage, fines and indemnities imposed upon them
chargeable to the conjugal partnership?
CIVIL LAW REVIEW
4B 2012
202
A.
A.
No, except insofar as it has redounded to the benefit of the family.
(Article 2238)
Neither shall the fines and pecuniary indemnities

imposed upon them be charged to the partnership.

HUSBAND AND WIFE
Art. 123. Whatever may be lost during the marriage in

any game of chance or in betting, sweepstakes, or any
other kind of gambling whether permitted or prohibited
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
203
Art 105-133

HUSBAND AND WIFE
204
by law, shall be borne by the loser and shall not be

charged to the conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership
property. (164a)
consenting spouse and the third person, and may be

perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (165a)
Q.
Who bears the loss in a game of chance, betting, sweepstakes or any

other kind of gambling?
A.
The loser. It shall not be charged to the conjugal partnership.
Q.
Who gains the winnings in a game of chance, betting, sweepstakes or

any other kind of gambling?
Art. 125. Neither spouse may donate any conjugal

partnership property without the consent of the other.
However, either spouse may, without the consent of the
other, make moderate donations from the conjugal
partnership property for charity or on occasions of
family rejoicing or family distress. (174a)
Q.
Is the rule for conjugal partnership of gains and absolute community

of property the same with regard to administration of the properties?
A.
Yes, Articles 124 and 125, pertaining to conjugal partnership of gains

and Articles 96 and 98, pertaining to absolute community property are
exactly identical.
Art. 124. The administration and enjoyment of the

conjugal partnership shall belong to both spouses jointly.
In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five
years from the date of the contract implementing such
decision.
Q.
To whom shall the administration and enjoyment of the conjugal

partnership belong?
A.
To both spouses jointly.
Q.
What happens in case of disagreement of the spouses with regard to

the administration and enjoyment of the conjugal partnership?
In the event that one spouse is incapacitated or

otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume
sole powers of administration. These powers do not
include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition
or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the
A.
The husband's decision shall prevail, subject to recourse to the court by

the wife for proper remedy, which must be availed of within five years
from the date of the contract implementing such decision.
Q.
What happens to the administration of the conjugal properties in the

event that one spouse is incapacitated or unable to participate in such
administration?
A.
The other spouse may assume sole powers of administration.
A.
The conjugal partnership property, regardless of which of the spouses
won.
Section 5. Administration of the Conjugal Partnership
Property
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
205
Q.
Does this mean that the spouse having sole powers of administration
may encumber or dispose the properties?
A.
No, the powers do not include disposition or encumbrance without

authority of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance
shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors.
Q.
A.
If the marriage settlement provides for the conjugal partnership of

gains as governing the property relationship within a marriage, but
the same stipulates that the sharing will not be equal upon
liquidation, will such unequal sharing affect the administration?
No, such unequal sharing will not affect the joint administration of the
spouses during the marriage which places the spouses in equal footing,
unless otherwise agreed upon also in the marriage settlement (See
Minutes of the 173rd Joint Meeting of the Civil Code and Family Law
committees held on February 21, 1987, page 13).
Q. Are alienations of conjugal partnership property made by one spouse

valid?
A.
Q.
No, any alienation made by one spouse without the knowledge and
consent of the other is invalid. (Homeowners Savings & Loans Bank v.
Dialo, G.R. No. 153802, March 11, 2005, 453 SCRA 283; Bautista v.
Silva, G.R. No. 157434, September 19, 2006, 502 SCRA 334)
If the sale of the conjugal partnership property done by the husband
was with the knowledge but without the approval of the wife, is the
sale valid?
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
206
A.
The sale is voidable at the instance of the wife who is given five (5)
years from the date of the contract implementing the decision of the
husband to institute the case (Ravina v. Abrille, G.R. No. 160708,
October 16, 2009)
Q.
If an act of administration is with the knowledge but without the

consent of the wife, is the contract valid?
Yes, the contract is merely rescissible at the instance of the wife and
she can question the transaction in court within five (5) years from the
implementation of the contract.
A.
Q.
In case the buyers knew that the property formed part of conjugal
partnership property but they bought it from the husband only
without the consent of the wife, is the sale valid?
A.
No, the sale is totally void. However, because of the doctrine of unjust
enrichment, the purchase price had to be returned to the buyers with
interest (Onesiforo v. Alinas, G.R. No. 158040, April 14, 2008)
Q.
What is the nature of the proceedings when the wife seeks to annul
the husbands decision in the administration and enjoyment of the
conjugal property?
A.
Summary procedure pursuant to Title XI (Articles 238 up to 253) of

the Family Code shall apply.
Section 6
Dissolution of Conjugal Partnership Regime
Art. 126. The conjugal partnership terminates:
(1)Upon the death of either spouse;
(2)When there is a decree of legal separation;
(3)When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138. (175a)
CIVIL LAW REVIEW
4B 2012
Art 105-133
Q.

HUSBAND AND WIFE
207
How does the conjugal partnership terminate?
A.
Through the death of either spouse, a decree of legal separation, a
decree of annulment or
nullity, or judicial separation of property.
Q.
Will partnership rules apply upon the dissolution of the conjugal
partnership?
A.
No. Upon termination, the conjugal partnership immediately ceases to

exist. (Nable Jose v. Nable Jose, 41 Phil. 713)
Art. 127. The separation in fact between husband and
wife shall not affect the regime of conjugal partnership,
except that:
(1)The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the
right to be supported;
(2)When the consent of one spouse to any transaction of
the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall
be solidarily liable for the support of the family. The
spouse present shall, upon petition in a summary
proceeding, be given judicial authority to administer
or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof to
satisfy the latter's share. (178a)
Q. If one spouse leaves the conjugal home without just case, is he or she
entitled to support?
A.
No.
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
208
Q.
In case of separation in fact, how is consent to a conjugal transaction

acquired?
A.
Through a judicial authorization obtained in a summary proceeding.
Q.
In case of separation in fact and the property of the absent spouse is

necessary in order to support the family, how is his separate
property sold or encumbered?
A.
Through judicial authorization.
Q.
Is the conjugal partnership liable if a spouse who leaves the conjugal

home
incurs a debt for the benefit of the family?
A.
Yes. Their separation in fact will not justify the non-liability of the
community property. (Garcia v. Cruz, 25 SCRA 225)
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligation to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property
relations.
A spouse is deemed to have abandoned the other when
he or she has left the conjugal dwelling without intention
of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within
the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
209
intention of returning to the conjugal dwelling. (167a,

191a)
Q.
What is the essence of abandonment?
A.
Abandonment implies a departure by one spouse with the avowed

intent never to return, followed by prolonged absence without just
cause, and without in the meantime providing in the lease for ones
family although able to do so. There must be absolute cessation of
marital relations, duties, and
rights with the intention of
perpetual separation.
Art 105-133

HUSBAND AND WIFE
210
Q. Do these rules likewise apply in case of failure to comply with

obligations to
the family?
A.
Yes.
Q.
Specifically, what are the obligations to the family being referred to?
A.
Marital, parental or property obligations.
Q. Statutorily, when is a spouse deemed to have abandoned the other?

A.
When he or she has left the conjugal dwelling without intention of
returning.
Q.
When does a prima facie presumption of abandonment arise?
A.
When a spouse leaves 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.
Q.
Does mere physical estrangement constitute abandonment?
A.
No. There must be financial and moral desertation as well. (Dela Cruz
v. Dela Cruz, 130 Phil. 324)
Q. What are the remedies of the aggrieved spouse in case of

abandonment?
A.
Receivership, judicial separation of property, and authority to be the

sole administrator of the conjugal partnership.
Q.
Any limitations?
A.
Subject to such precautionary measures as the court may impose.
CIVIL LAW REVIEW
4B 2012
Section 7
Liquidation of the
Conjugal Partnership
Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1)An inventory shall be prepared, listing separately all
the properties of the conjugal partnership and the
exclusive properties of each spouse.
(2)Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either
spouse shall be credited to the conjugal partnership as
an asset thereof.
(3)Each spouse shall be reimbursed for the use of his or
her exclusive funds in the acquisition of property or
for the value of his or her exclusive property, the
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
211
ownership of which has been vested by law in the

conjugal partnership.
(4)The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions
of paragraph (2) of Article 121.
(5)Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6)Unless the owner had been indemnified from
whatever source, the loss or deterioration of movables
used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to
said spouse from the conjugal funds, if any.
(7)The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in
the marriage settlements or unless there has been a
voluntary waiver or forfeiture of such share as
provided in this Code.
(8)The presumptive legitimes of the common children
shall be delivered upon the partition in accordance
with Article 51.
(9)In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of
the common children choose to remain. Children
below the age of seven years are deemed to have
chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court
shall decide, taking into consideration the best
interests of said children. (181a, 182a, 183a, 184a, 185a)
CIVIL LAW REVIEW
4B 2012
Art 105-133

HUSBAND AND WIFE
212
Q.
What is the step by step procedure in dissolution?
A.
See article 129.
Q.
What are the modes of liquidating the conjugal partnership?
A.
Extrajudicial settlement, partition, testate proceedings, and intestate

proceedings. (Villocino v. Doyon , 63 SCRA 460)
Q.
In the inventory, what value is taken into consideration?
A.
The market value and, in the default thereof the assessed value at the
time of
liquidation. (Prado v. Natividad, 47 Phil. 775)
Q.
Is the initial determination of the value fixed?
A.
No. If the proceedings take a long time and the values assessed are
substantially altered, a new valuation can be made. (Padilla v.
Paterno, 93
Phil. 884)
Q. How are amounts advanced by the conjugal partnership to the spouses

treated?
A.
They are treated as assets.
Q. In the payment of partnership debts and obligations, what is paid

first?
A.
Advances made by either spouse in favor of the conjugal partnership
are paid
first.
Q.
In the absence of stipulation or a valid waiver, how will the net

remainder be
shared by the spouses?
A.
Equally.
CIVIL LAW REVIEW
4B 2012
Art 105-133
Q.

HUSBAND AND WIFE
213
In what instances is the presumptive legitime delivered?
A.
In case of annulment of marriage under Article 45 or nullity under
Article 40.
Art 105-133

HUSBAND AND WIFE
214
A.
Judicial or extrajudicial liquidation within one year from death.
Q.
What if there is no liquidation within one year from death?
Q.
Which spouse retains possession of the conjugal dwelling?
A.
Any disposition or encumbrance involving the conjugal partnership
shall be
void.
A.
The spouse with whom majority of the children remain.
Q.
What if the surviving spouse remarries without liquidating assets of

the conjugal partnership?
A.
Complete separation of property governs the property relations of the

subsequent marriage.
Q.
A and B are married. A dies. A parcel of land is in Bs name but Bs

civil status is described as married. Should the property be treated
as separate
or conjugal?
A.
Separate. In the absence of proof that the property was acquired

during the marriage, the property shall be considered as owned by the
person stated in the certificate. (Estonia v. Court of Appeals, 266
SCRA 627)
Art. 130. Upon the termination of the marriage by death,

the conjugal partnership property shall be liquidated in
the same proceeding for the settlement of the estate of
the deceased.
If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the conjugal partnership
property either judicially or extra-judicially within six
months from the death of the deceased spouse. If upon
the lapse of the six-month period no liquidation is made,
any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be
void.
Should the surviving spouse contract a subsequent
marriage without compliance with the foregoing
requirements, a mandatory regime of complete
separation of property shall govern the property
relations of the subsequent marriage. (n)
Q.
In case of termination of the marriage by death, where shall the

conjugal partnership property be liquidated?
A.
In the settlement of the estate of the deceased.
Q.
What if settlement proceedings are not instituted?
CIVIL LAW REVIEW
4B 2012
Art. 131. Whenever the liquidation of the conjugal

partnership properties of two or more marriages
contracted by the same person before the effectivity of
this Code is carried out simultaneously, the respective
capital, fruits and income of each partnership shall be
determined upon such proof as may be considered
according to the rules of evidence. In case of doubt as to
which partnership the existing properties belong, the
same shall be divided between the different partnerships
in proportion to the capital and duration of each. (189a)
CIVIL LAW REVIEW
4B 2012
Art 105-133
Q.

HUSBAND AND WIFE
215
In case a person has had two marriages and the properties of both
marriages are being liquidated simultaneously, how is the liquidation
carried out?
A.
The capital, fruits and income shall pertain to the marriage where
they were respectively acquired.
Q. What if there is doubt as to which marriage the capital fruits and
income
belong?
A.
They shall be apportioned in proportion to the capital and duration of
each.
(For further illustrations, see the five scenarios under Article 104).
Art 105-133
Q.
Is this enumeration exclusive?
A.
Yes. (Babao v. Villavicencio, 44 Phil. 921)
In cases of appraisal and sale of property, what rules govern?
A.
The Rules of Court.
A.
They can still claim support. (Santero v CFI, 153 SCRA 728)
Q.
How is the maintenance and support taken by a widow from the

conjugal partnership treated?
A.
It is treated as an advance to be deducted from her share in the final

distribution. (Santos v. Bartolome, 44 Phil. 76)
Chapter 5.
Separation of Property of the
Spouses and Administration of Common
Property by One Spouse During the Marriage
Art. 133. From the common mass of property support

shall be given to the surviving spouse and to the children
during the liquidation of the inventoried property and
until what belongs to them is delivered; but from this
shall be deducted that amount received for support
which exceeds the fruits or rents pertaining to them.
(188a)
Art. 134. In the absence of an express declaration in the

marriage settlements, the separation of property
between spouses during the marriage shall not take
place except by judicial order. Such judicial separation
of property may either be voluntary or for sufficient
cause. (190a)
Q. During the liquidation, who can claim support from the common mass
of property?
Q.
What are the ways for a separation of property to exist?
A.
A.
Marriage settlement or judicial order.
Only the surviving spouse and the children.
CIVIL LAW REVIEW
4B 2012
216
Q. What if the children are already of age, gainfully employed, or

married?
Art. 132. The Rules of Court on the administration of

estates of deceased persons shall be observed in the
appraisal and sale of property of the conjugal
partnership, and other matters which are not expressly
determined in this Chapter. (187a)
Q.

HUSBAND AND WIFE
CIVIL LAW REVIEW
4B 2012
Art. 134-142

HUSBAND AND WIFE
217
Art. 134-142
Separation of Property of the Spouses and Administration

of Common Property by One Spouse During the Marriage
Q.
How will a judicial order be obtained?
A.
Voluntarily or for a sufficient cause.

HUSBAND AND WIFE
218

Q. What if he left a person in charge of the administration of his

property?
Art. 135. Any of the following shall be considered

sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced
to a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to
the family as provided for in Article 101;
(5) That the spouse granted the power of administration
in the marriage settlements has abused that power;
and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the
decree of judicial separation of property. (191a)
A.
The period is extended to five years.
Q.
When will the judicial declaration of absence take effect?
A.
Six months after publication.
Q.
Loss of parental authority refers to which child?
A.
Common child whether legitimate or illegitimate or a child with

another
person whether legitimate or illegitimate.
Q.
What constitutes abuse of administration?
A.
Abuse connotes willful and utter disregard of the interests of the

partnership, evidenced by a repetition of deliberate acts and/or
omissions prejudicial to the latter. (Dela Cruz v. Dela Cruz, 130 Phil.
342)
Q.
Will mere refusal or failure of the husband to inform the wife of the
progress of the family business constitute abuse?
A.
No. (Dela Cruz v. Dela Cruz, 130 Phil. 342)
Q.
Will the simple performance of an act or acts prejudicial to the other

spouse
constitute abuse?
No.
Q.
What are the grounds for a judicial separation of property?
A.
See Article 135.
A.
Q.
When can a declaration of absence be sought?
Q. Will mere separation in fact constitute a ground for judicial separation

of property?
A.
Two years having elapsed without any news about the absentee or
since the receipt of the last news.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 134-142

HUSBAND AND WIFE
219
Art. 134-142

A.

HUSBAND AND WIFE
220

No. They must have been separated in fact for at least one year and
reconciliation must be highly improbable.
Art. 137. Once the separation of property has been

decreed, the absolute community or the conjugal
partnership of gains shall be liquidated in conformity
with this Code.
Art. 136. The spouses may jointly file a verified petition

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

property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and
their children. (192a)
Q. What process must be followed in the liquidation of the property
regime?
A.
The process laid down in Article 102 and Article 129 must be observed.
However the delivery of the presumptive legitime is no necessary
because such delivery applies only in case the marriage is either
judicially annulled under Article 45 or declared void under Article 40.
Q.
What is the default sharing between the spouses?
A.
Equal sharing.
Q.
What are the exceptions?
Q. Is a partial voluntary separation of property agreed upon by the

parties valid?
A.
Agreement to the contrary or a valid waiver.
A.
Q.
What is the exception to the exception?
A.
If the agreement or waiver is against public policy.
Q.
Will the failure to notify the creditors nullify the judicial order?
A.
No.
Q.
When will the separation of property take effect?
A.
From the time of the issuance of the decree.
Yes. (Maquilan v. Maquilan, 524 SCRA 167)

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

community property or the conjugal partnership?
A.
Complete Separation of Property.
Q.
CIVIL LAW REVIEW
Does the mere filing of the petition to initiate the proceeding

automatically result in the dissolution of the property regime?
A.
No. Only after the finality of the decision of the court decreeing the
separation.
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 134-142

HUSBAND AND WIFE
221
Art. 134-142


HUSBAND AND WIFE
222

spouses, they agree to the revival of the former

property regime. No voluntary separation of property
may thereafter be granted.
Art. 139. The petition for separation of property and the

final judgment granting the same shall be recorded in
the proper local civil registries and registries of
property. (193a)
The revival of the former property regime shall be

governed by Article 67. (195a)
Art. 140. The separation of property shall not prejudice

the rights previously acquired by creditors. (194a)
Q.
What are the instances where the property regime that existed before
the separation of property is revived?
Q. What is the purpose of recording the petition for separation of

property?
A.
(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power
of administration in the marriage settlements will not again abuse
that power, authorizes the resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree
of legal separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have separated in fact for at least one year,
reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community of
property or conjugal partnership has been judicially decreed upon the
joint petition of the spouses, they agree to the revival of the former
property regime. No voluntary separation of property may thereafter
be granted.
A.
To aid present and future creditors in determining the whether an

asset of a spouse is conjugal or really separate.
Art. 141. The spouses may, in the same proceedings
where separation of property was decreed, file a motion
in court for a decree reviving the property regime that
existed between them before the separation of property
in any of the following instances:
(1)When the civil interdiction terminates;
(2)When the absentee spouse reappears;
(3)When the court, being satisfied that the spouse
granted the power of administration in the marriage
settlements will not again abuse that power,
authorizes the resumption of said administration;
(4)When the spouse who has left the conjugal home
without a decree of legal separation resumes common
life with the other;
(5)When parental authority is judicially restored to the
spouse previously deprived thereof;
(6)When the spouses who have separated in fact for at
least one year, reconcile and resume common life; or
(7)When after voluntary dissolution of the absolute
community of property or conjugal partnership has
been judicially decreed upon the joint petition of the
CIVIL LAW REVIEW
4B 2012
Q. What are the procedural requirements to initiate the above said

revival?
A.
To be able to revive the previous property regime, the spouses should

file a motion in the same court proceeding where the separation was
decreed. The agreement to revive the property regime shall be
executed under oath and specify: (1) the properties to be contributed
anew to the restored regime; (2) those to be retained as separate
CIVIL LAW REVIEW
4B 2012
Art. 134-142

HUSBAND AND WIFE
223
Art. 134-142

Art. 142. The administration of all classes of exclusive

property of either spouse may be transferred by the
court to the other spouse:
(1)When one spouse becomes the guardian of the
other;
(2)When one spouse is judicially declared an absentee;
(3)When one spouse is sentenced to a penalty which
carries with it civil interdiction; or
(4)When one spouse becomes a fugitive from justice or
is in hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of
incompetence, conflict of interest, or any other just
cause, the court shall appoint a suitable person to be the
administrator. (n)
Q.
What are the instances where the administration of classes of

exclusive property of either spouse may be transferred by the court to
the other spouse?
A.
(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it
civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as
an accused in a criminal case.
Q. What are the jurisprudential guidelines in determining a fugitive from

justice?
A fugitive from justice refers to one who having committed or being
accused of a crime in one jurisdiction is absent for any reason from
CIVIL LAW REVIEW
224

properties of each spouse; and (3) the names of all their known
creditors, their addresses and the amounts owing to each.
A.

HUSBAND AND WIFE
4B 2012
that jurisdiction; specifically, one who flees to avoid punishment.

(Ochida v. Cabarraguis, 71 SCRA 40).
Chapter 6. Regime of Separation of Property
Art. 143. Should the future spouses agree in the marriage
settlements that their property relations during marriage
shall be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory. (212a)
Q. In a regime of separation of property what shall principally govern the
regime?
A.
The marriage settlement. The Family Code shall only be suppletorily
applied.
Art. 144. Separation of property may refer to present or
future property or both. It may be total or partial. In the
latter case, the property not agreed upon as separate
shall pertain to the absolute community. (213a)
Q.
If the separation of property pertains only to a partial amount of the

property, What property regime will apply to the other portion?
A.
It shall pertain to the absolute community.
Q.
Can the spouses agree that the regime of absolute community of

property be effective up to until their first year of marriage and the
regime of separation of property be applied thereafter?
A.
No. This is tantamount to dissolving the absolute community property

by virtue of a cause or contingency not provided by law.
Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate,
CIVIL LAW REVIEW
4B 2012
Art. 143-146

HUSBAND AND WIFE
225
Art. 147-148
Regime of Separation of Property
226
Property Regimes of Unions without Marriage
without need of the consent of the other. To each spouse

shall belong all earnings from his or her profession,
business or industry and all fruits, natural, industrial or
civil, due or received during the marriage from his or her
separate property. (214a)
Q.
What belongs to each spouse in a regime of separation of property?
A.
To each spouse shall belong all earnings from his or her profession,
business or industry and all fruits, natural, industrial or civil, due or
received during the marriage from his or her separate property.
In the absence of proof to the contrary, properties

acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted in
the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent
of the other, until after the termination of their
cohabitation.
Art. 146. Both spouses shall bear the family expenses in

proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their
separate properties.
The liabilities of the spouses to creditors for family
expenses shall, however, be solidary. (215a)
Q.
What is the liability of the spouses to creditors for family expenses?
A.
Solidary.
When only one of the parties to a void marriage is in

good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of
the common children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the
cohabitation. (144a)
Chapter 7
Property Regime of Unions Without Marriage
Art. 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property
acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
CIVIL LAW REVIEW

HUSBAND AND WIFE
4B 2012
Q.
Who qualifies so that Art. 147 will apply?
A.
To qualify under Article 147, the man and the woman must: (1) must
be capacitated to marry each other; (2) live exclusively with each other
as husband and wife; and (3) be without the benefit of marriage or
under a void marriage. All these requisites must concur.
Q.
What is the structure of the property relationship under Article 147?
CIVIL LAW REVIEW
4B 2012
Art. 147-148

HUSBAND AND WIFE
227
Art. 147-148
A.
228
(1) Wages and salaries shall be owned by them in equal shares;

(2) Property acquired by either of the parties exclusively by his or her
own fund belongs to such party provided that there is proof that he or
she acquired it by exclusive funds;
(3) Property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership. Consequently, either
spouse may alienate in favor of the other his or her share in the
property;
(4) In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by their
joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in
the acquisition by the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the
household;
(5) The fruits of the couples separate property are not included in the
co-ownership (Valdes v. RTC, 260 SCRA 221);
(6) Property acquired by any of the parties after separation shall be
exclusively owned by the party who acquired it;
(7) Neither party can encumber or dispose by acts inter vivos of his or
her share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination
of their cohabitation. However, either spouse may alienate in favor of
the other his or her share in the property co-owned. But no one can
donate or waive any interest in the co-ownership that would constitute
an indirect or direct grant of gratuitous advantage to the other which
is void pursuant to Art. 87;
(8)When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all
CIVIL LAW REVIEW

HUSBAND AND WIFE
4B 2012
cases, the forfeiture shall take place upon termination of the

cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both
of the parties through their actual joint contribution of
money, property, or industry shall be owned by them in
common in proportion to their respective contributions.
In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to
be equal. The same rule and presumption shall apply to
joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith is
not validly married to another, his or her shall be
forfeited in the manner provided in the last paragraph of
the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith. (144a)
Q.
What relationships are contemplated under Art. 148?
A.
(1) A man and a woman living together as husband and wife, without
the benefit of marriage, but are not capacitated to marry;
(2) An adulterous relationship even if it occurred prior to the effectivity
of the Family Code (Atienza vs. De Castro, 508 SCRA 593).
(3) A bigamous or polygamous marriage;
(4) Incestuous void marriages under Art. 37; and
(5) Void Marriages by reason of public policy under Art. 38.
Q.
What is the structure of the property relationship under Art. 148?
CIVIL LAW REVIEW
4B 2012
Art. 147-148

HUSBAND AND WIFE
229
Art. 149-151
THE FAMILY
230
Family as an Institution
A.
(1) The salaries and wages are separately owned by the parties and if
any of the spouses is married, his or her salary is the property of the
conjugal partnership of gains of such legitimate marriage;
(2) Property solely acquired by funds of any of the parties belongs to
such party;
(3) Only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective
contributions;
(4) The respective shares of the parties over properties owned in
common are presumed to be equal. However, proofs may be shown to
show that their contribution and respective shares are not equal.
Without proof of actual contribution by both parties, there can be no
presumption of co-ownership and equal sharing (Villanueva v. Court of
Appeals, G.R. No. 143286, April 14, 2004; Rivera v. Heirs of Romualdo
Villanueva, G.R. No. 141501, July 21, 2006, 496 SCRA 135).
(5) The rule and presumption mentioned above shall apply to joint
deposits of Money and evidences of credit; and
(6) If one of the parties is validly married to another, his or her share
in the co-ownership shall accrue to the absolutes community or
conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her share
shall be forfeited in the manner provided in the last paragraph of
Article 147. The foregoing rules on forfeiture shall likewise apply even
if both parties are in bad faith.
Art. 149. The family, being the foundation of the nation, is

a basic social institution which public policy cherishes
and protects. Consequently, family relations are
governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given
effect. (216a, 218a)
Q.
Husband and wife agrees to each have a paramour which will not be a
ground to invalidate the marriage. Is the agreement valid?
A.
No. The agreement is void. No agreement which will be destructive to

the family shall not be recognized.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or
half-blood. (217a)
Q.
What does family relations include?
A.
1) Between husband and wife;

(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
Art. 151. No suit between members of the same family
shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed.
This shall not apply to cases which may not be the
subject of compromise under the Civil Code. (222a)
TITLE V
THE FAMILY
Chapter 1
CIVIL LAW REVIEW
The Family as an Institution
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 149-151
THE FAMILY
231
Family as an Institution
Q.
Art. 152-162
As a general rule, what is needed before a suit between members of

the same family will prosper?
A.
No suit between members of the same family shall prosper unless it

should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the same have
failed.
Q.
What is the exception to the above general rule?
A.
It is not required if included in the suit between family members is a

stranger not of the same family. This is so because the interest of the
stranger differs from the interest of the members of the same family.
The rule will not also apply to cases which may not be compromised
under the Civil Code. These cases are enumerated in Art. 2035. It also
does not apply to special proceedings like a petition for settlement of
estate guardianship and custody of children, and habeas corpus.
232
Q.
What is a family home?
A.
Article 152. An additional requirement is that the land and the

dwelling house must be owned by the person or persons constituting
the family home.
Q.
When is a family home deemed constituted?
A.
Under the Family Code, a family home is deemed constituted on a

house and land from the time it is actually occupied as a family
residence. (Arriola v. Arriola, G.R. No. 177703, January 28, 2008, 542
SCRA 666) The occupancy must be actual and not constructive,
something which is merely possible or presumptive. (Patricio v. Dario
III, G.R. No. 170829, November 20, 2006)
Who can constitute a family home?
Q.
A.
Spouses must constitute a family home jointly. However, an

unmarried head of the family can constitute by himself or herself. The
occupancy of any of the beneficiaries can likewise constitute a home as
a family home.
Q.
What is the period of exemption from execution?
A.
The exemption from execution, forced sale, or attachment provided by

law is effective from the time of the family home as such and lasts so
long as any of its beneficiaries actually resides therein. ( Modequillo v.
Breva, 185 SCRA 766)
Q.
What is the characteristic of this right of exemption?
A.
It is a personal right (Versola v. Court of Appeals, G.R. No. 164740,

July 31, 2006, 497 SCRA 385). However it is not an absolute right as
there obligations and indebtedness excluded from the exemption as
listed in Article 155. Article 160 also gives a judgment creditor, whose
credit is not included in Article 155, the option to apply for the family
Chapter 2
The Family Home
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family
reside, and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from
execution, forced sale or attachment except as
hereinafter provided and to the extent of the value
allowed by law.
CIVIL LAW REVIEW
THE FAMILY
The Family Home
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 152-162
THE FAMILY
233
Art. 152-162
The Family Home
homes execution if he or she has reasonable grounds to believe that

the family home is actually worth more than the maximum amount
allowable for a family home.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is
the head of a family; and
(2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
(226a)
Who are the beneficiaries of a family home?
A.
Article 154
Q.
What is the importance of knowing the beneficiaries of a family home?
A.
Knowing the beneficiaries is important because their actual occupancy

of a home may constitute the same as a family home provided their
actual occupancy of the house and lot is with the consent either of the
husband and/or the wife who own the house and lot or of the
unmarried person who is the head of the family and who likewise
owns the house and lot, even if said owners do not actually reside
therein. (Manacop v. Court of Appeals 27 SCRA 57)
(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the
family home;
(3) For debts secured by mortgages on the premises
before or after such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building. (243a)
Q.
How is the term debt to be understood under Article 155?
Art. 156. The family home must be part of the properties

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

A. 1) They must be among the relationships enumerated in Article
154. 2) They actually live in the family home. 3) They are dependent
for legal support upon the head of the family.
Art. 155. The family home shall be exempt from
execution, forced sale or attachment except:
CIVIL LAW REVIEW
234
A. The term debt used in Article 155 is not qualified and must
therefore be used in its generic sense, i.e., obligations in general. A
court judgment is not necessary to clothe a pre-existing debt under
Article 155 with the privileged character of being enforceable against
the family home.
Q.
Q.
THE FAMILY
The Family Home
4B 2012
Q.
Where can a family home be constituted?
A.
A family home must be constituted at a place where there is a fixed

and permanent connection with the persons constituting it. It must be
part of the absolute community or the conjugal partnership, or of the
exclusive properties of either spouse with the latter's consent. It may
CIVIL LAW REVIEW
4B 2012
Art. 152-162
THE FAMILY
235
Art. 152-162
The Family Home
THE FAMILY
236
The Family Home
also be constituted by an unmarried head of a family on his or her own

property.
Q. Can the family home be sold or otherwise alienated? Under what

conditions?
Art. 157. The actual value of the family home shall not
exceed, at the time of its constitution, the amount of the
three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
A.
In any event, if the value of the currency changes after

the adoption of this Code, the value most favorable for
the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to
include chartered cities and municipalities whose
annual income at least equals that legally required for
chartered cities. All others are deemed to be rural areas.
(231a)
Q.
When is this actual value of the family home examined?
A.
It is the value at the time of the constitution that is important. Hence,

if after the constitution, the value of the house increased due to
improvements or renovations to an amount more than that fixed by
law at the time of the constitution, such family home will remain a
family home.
Art. 158. The family home may be sold, alienated,
donated, assigned or encumbered by the owner or
owners thereof with the written consent of the person
constituting the same, the latter's spouse, and a majority
of the beneficiaries of legal age. In case of conflict, the
court shall decide. (235a)
CIVIL LAW REVIEW
4B 2012
The family home may be sold, alienated, donated, assigned or

encumbered by the owner or owners thereof with the written consent
of the person constituting the same, the latter's spouse, and a majority
of the beneficiaries of legal age. In case of conflict, the court shall
decide.
Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the
property or constituted the family home. (238a)
Q.
Can the heirs partition the family home upon the death of the person
who constituted it?
A.
No. The family home shall continue as a family home for a period of 10
years or for as long as there is a minor beneficiary. The heirs cannot
partition the same unless the court finds compelling reasons therefor.
The Supreme Court found that though a house and lot passed to the
heirs because of the death of the father, it cannot be immediately
partitioned because of Article 159. Article 159 imposes the proscription
against the immediate partition of the family home regardless of its
ownership. (Arriola v. Arriola, 542 SCRA 666)
Art. 160. When a creditor whose claims is not among
those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the
CIVIL LAW REVIEW
4B 2012
Art. 152-162
THE FAMILY
237
Art. 152-162
The Family Home
THE FAMILY
238
The Family Home
sale of the property under execution. The court shall so

order if it finds that the actual value of the family home
exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value
exceeds the maximum allowed in Article 157 and results
from subsequent voluntary improvements introduced by
the person or persons constituting the family home, by
the owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for
a family home shall be considered. The proceeds shall be
applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs.
The excess, if any, shall be delivered to the judgment
debtor. (247a, 248a)
Q.
What is the difference between claims under Article 155 and claims
under Article 16
A.
Unlike Article 155, there is a need under Article 160 for a court
decision before a judgment creditor can avail of the privilege under
Article 160 of the family code. Also, the judgment creditor making a
claim under Article 160 should not be one of those mentioned in Article
155.
Q. What is the extent and legal significance of Article 162 of the Family
Code?
A.
As discussed by the Supreme Court in Modequillo v. Breva, 185 SCRA

766, Article 162 does not mean that Articles 152 and 153 of the family
code have a retroactive effect such that all existing family residences
are deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code. Article 162 simply means that all
existing family residences at the time of the effectivity of the Family
Code, are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code. Article
162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect.
Art. 161. For purposes of availing of the benefits of a

family home as provided for in this Chapter, a person
may constitute, or be the beneficiary of, only one family
home. (n)
Art. 162. The provisions in this Chapter shall also govern
existing family residences insofar as said provisions are
applicable. (n)
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Arts. 163-172
PATERNITY AND FILIATION

Legitimate Children
239
Arts. 163-172

Legitimate Children
with the birth certificate

TITLE VI
of the child.
Q.
In recognizing children conceived as a result of artificial insemination,
does it mean
then that the Code gave legality to such process?
A.
No. We are not concerned with the legality or illegality of artificial

insemination. We are not concerned with the morality or immorality of
it. But we are concerned of the
status of the child born of that
fact. (Justice Caguioa, Hearing on Committee on
Women
and
Family Relations of the Senate, 1988)
Q.
What are the two types of artificial insemination?
Art.164. Children conceived or born during the marriage

of the parents are legitimate.
A.
Children conceived as a result of artificial insemination

of the wife with the sperm of the husband or that of a
donor or both are likewise legitimate children of the
husband and his wife, provided, that both of them
authorized or ratified such insemination in a written
instrument executed and signed by them before the birth
of the child. The instrument shall be recorded in the civil
registry together with the birth certificate of the child.
(55a, 258a)
Homologous and Heterologous. Homologous insemination is the

process by which the wife is artificially impregnated with the semen of
her husband. This procedure is
referred to as AIH (Artificial
Insemination Husband). Heterologous insemination is
the
artificial insemination of the wife by the semen of a third-party donor
(Artificial Insemination Donor).
Q. Does the wife, who conceived a child as a result of artificial

insemination without the
consent of his husband, liable for adultery?
Chapter 1
Legitimate Children
Art.163. The filiation of children may be by nature or
by adoption. Natural filiation may be legitimate or
illegitimate. (n)
Art. 165. Children conceived and born outside a valid

marriage are illegitimate, unless otherwise provided in
this Code.
Q. What are the requirements for a child conceived as a result of
artificial insemination to be recognized as legitimate?
A.
240
Children conceived as a result of artificial insemination of the wife

with the sperm of the husband or that of a donor or both are
likewise legitimate children provided
that: a) both of them
authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child; and b) the
instrument
shall be recorded in the civil registry together
CIVIL LAW REVIEW
4B 2012
A.
No. A wife who, without consent of the husband, had herself artificially
inseminated by the semen of another which led to the siring of a child
not of the husband, cannot be held criminally liable for adultery. The
crime of adultery has been defined in Article 333 of the Revised Penal
Code as committed by any married woman who shall have sexual
intercourse with a man not her husband. Artificial insemination,
nevertheless, does not involve sexual intercourse which is one of the
essential elements in the crime of adultery in the Revised Penal Code.
(U.S. v. Abad
Santos, 36 Phil. 243; People v. Yu Huat, 99 Phil. 728)
Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
(1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the
CIVIL LAW REVIEW
4B 2012
Arts. 163-172

Legitimate Children
241
birth of the child because of:
(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
(c)serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the
instance provided in the
second
paragraph
of
Article
164;
or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either
parent was obtained through mistake, fraud,
violence, intimidation,
or undue influence. (255a)
Art. 167. The child shall be considered legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
(256a)
When is Article 166 applicable?
A.
Article 166 necessarily presupposes a valid marriage between the
husband and the wife.
Q.
Who can invoke the grounds under article 166?
A.
Only the husband and, in proper cases provided in Article 171, the
heirs can invoke the grounds under Article 166. No other person can
make the same.
Q. What is the exception to the rule that the legitimacy of the child can
likewise be questioned on the ground that the marriage between the
CIVIL LAW REVIEW

Legitimate Children
242
husband and wife is void?
(a) the physical incapacity of the husband to have

sexual intercourse rith his wife;
Q.
Arts. 163-172
4B 2012
A.
If the ground for nullity is article 36 or Article 53 of the Family Code.
Q. In any event that any of the grounds enumerated in Article 166 is

proven, what will be the status of the child?
A.
The child will neither be legitimate nor illegitimate in so far as the
husband is concerned. Simply, the husband and the child will not be related
to each other in any
manner considering that the husband did not
participate in any way as to the childs procreation. In so far as the mother
is concerned, the child will be illegitimate.
Q.
Where does Articles 166 and 167 necessarily apply?
A.
Only to a situation where the child has been delivered by a woman
who is the childs natural mother. They do nt apply where the alleged
mother did not, in fact, deliver the child herself, or, in short, where the child
did not come from her own womb. This is
likewise a condition sine qua
non for Articles 166 and 167 to apply.
Q. Is it correct to rely on Articles 164, 166, 167, 170 and 171 in opposing a
personss claim to be the only daughter of the deceased married couple
whose estate was under
consideration?
A.
No. The articles do not contemplate a situation, like in the instant

case, where a child is alleged not to be the child of nature or biological
child of a certain couple. Rather, these articles govern a situaton
where a husband (or his heirs) denies as his own a child of his wife.
(Benitez-Badua v. Court of Appeals, G.R. No. 105625, January 24,
1994, 47 SCAD 416)
Art. 168. If the marriage is terminated and the mother
contracted another marriage within three hundred days
after such termination of the former marriage, these
rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered
CIVIL LAW REVIEW
4B 2012
Arts. 163-172

Legitimate Children
243
Arts. 163-172
to have been conceived during the former marriage,

provided it be born within three hundred days after the
termination of the former marriage;
(2) A child born after one hundred eighty days following
the celebration of the subsequent marriage is considered
to have been conceived during such marriage, even
though it be born within the three hundred days after
the termination of the former marriage. (259a)
This is so because it is not unlikely that the spouses could have

engaged in sexual intercourse just prior to the death of one of them or
just before the issuance of a decree of annulment or a declaration of
nullity. Also, the law fixes the period of 300 days as the longest
gestation period for a child inside the womb of the mother.
Q.
What is the basis behind the 180-300 day period provided by law?
A.
The 180-day period provided by law is considered as the shortest

gestation period of a woman. On the other hand, the 300-day period is
considered the longest gestation period.
Q.
What happens when the mother marries again and a child is born
within 180 days from the solemnization of the second marriage and
within the 300-day period after the termination of the first marriage
and there is no concrete proof as to the father of the child?
A.
The child is considered to have been conceived of the first marriage.

The presumption is in accordance with decency, reason and the
supposed virtue of the mother.
Art. 169. The legitimacy or illegitimacy of a child born
after three hundred days following the termination of
CIVIL LAW REVIEW
4B 2012
244
the marriage shall be proved by whoever alleges such

legitimacy or illegitimacy. (261a)
Q.
Is there a presumption for a child born after 300 days after the
termination of a marriage?
A.
No. In the absence of any subsequent marriage after the termination

of the first marriage, the father of a child born after 300 days from
such termination can be anybody. This includes the husband of the
previous marriage as it is not improbably that the gestation period
may extend extraordinarily beyond 300 days or that the previously
married couple had sexual intercourse after the finality of their decree
of annulment or nullity.
Q.
What happens if a child is born after 300 days after the termination of
a marriage?
A.
Other convincing proofs of filiation must be shown. No presumption

can attach, thereby necessitating the introduction of evidence by
whoever alleges legitimacy or illegitimacy.
Q. Why is there a presumption of access prior to the termination of

marriage?
A.

Legitimate Children
Art. 170. The action to impugn the legitimacy of the child

shall be brought within one year from the knowledge of
the birth or its recording in the civil register, if the
husband or, in a proper case, any of his heirs, should
reside in the city or municipality where the birth took
place or was recorded.
If the husband or, in his default, all of his heirs do not
reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be
two years if they should reside in the Philippines; and
three years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier. (263a)
CIVIL LAW REVIEW
4B 2012
Arts. 163-172

Legitimate Children
245
Art. 171. The heirs of the husband may impugn the

filiation of the child within the period prescribed in the
preceding article only in the following cases:
Arts. 163-172
A.
The action should be dismissed because only the husband, as a general

rule, can claim that the child is illegitimate in a direct action for that
purpose and only on the grounds provided for by law. To allow the
custody case to prosper would mean allowing the paramour to impugn
the legitimacy of the child vis--vis the husband which is not
sanctioned by the law.
Q.
Who are the heirs contemplated by law that can file an action as a
substitute for the husband?
A.
All kinds of heirs, whether testamentary or legal, compulsory or

voluntary, are contemplated by law.
Q.
Can the mother have standing to impugn the legitimacy of her child?
A.
The law does not give the mother standing to file an action to impugn
the filiation or legitimacy of her children because maternity is never
uncertain (Eloi v. Made, 1 Rob. 581). Moreover, for reasons of public
decency and morality, a married woman cannot say that she had no
intercourse with her husband and that her offspring is spurious
(People ex rel. Gonzales v. Monroe, 43 Ill. App 2d 1, 192 N.E. 2d 691)
Q.
What is reason behind the limitation of parties with legal standing to

impugn the legitimacy of the child?
A.
The reason for preventing disavowal of paternity except within

extremely narrow limits is based upon a desire to protect innocent
children against attacks upon paternity (Russell v. Russell Eng [1924]
AC 687 [HL]; Taylor v. Taylor, 295 So. 2d 494). To allow other persons,
especially those not belonging to the family wherein the child was
born, to bring an action to impugn the legitimacy of such child, would
be to invite similar actions, with or without basis, by those whose only
purpose is to break up a family to satisfy a jealous or revengeful feeling
(A v. X, Y, and Z, Supreme Court of Wyoming, 641 P2d 1222 74 L. Ed.
(2) If he should die after the filing of the complaint

without having desisted therefrom; or
(3) If the child was born after the death of the husband.
(262a)
Who may file an action to impugn the legitimacy of the child?
A.
Principally, only the husband can file a direct action to impugn the
legitimacy of the child. Article 171 provides for the exception. His
heirs can substitute him only if he dies before the period fixed for
bringing the action or after the filing of the same, without having
desisted therefrom, or if the child was born after his death.
Q.
Can legitimacy be collaterally attacked?
A.
Legitimacy cannot be collaterally attacked or impugned (Angeles v.

Maglaya, G.R. No. 153798, September 2, 2005, 469 SCRA 363). It can
be impugned only in a direct suit precisely filed for the purpose of
assailing the legitimacy of the child. However, if one of the issues
presented in an action for annulment of an extrajudicial partition
concerned the right of a particular person to inherit and the assertion
that the alleged heir was not in fact the child of the deceased, a
determination of filiation can be made (Spouses Fidel v. Court of
Appeals, G.R. No. 168263, July 21, 2008)
Q.
Consider this situation. A wife gives birth to a child of her paramour,

and the child is born inside the valid marriage of the wife and the
CIVIL LAW REVIEW
4B 2012
246
husband. Can a case where the paramour of a wife who filed an action
for the custody of the child prosper?
(1) If the husband should die before the expiration of the

period fixed for bringing his action;
Q.

Legitimate Children
CIVIL LAW REVIEW
4B 2012
Arts. 163-172

Legitimate Children
247
2d 518). Moreover, it is also to prevent a child so born from

repudiating his own legitimacy (Eloi v. Made, 1 Rob [La] 581 cited in
10 Am. Jur. 2d 858)
Q.
What are the prescriptive period for the husband or, in proper cases,
the heirs to impugn the legitimacy of a child?
A.
The following are the different prescriptive periods:

1) One (1) year from knowledge of the birth or its recording in the civil
register, if the impugner resides in the city or municipality where the
birth took place or was recorded;
2) Two (2) years from knowledge of the birth or its recording in the
civil register, if the impugner resides in the Philippines other than in
the city or municipality where the birth took place or was recorded;
and
3) Three (3) years, if the impugner resides abroad;
If the birth of the child has been concealed from or was unknown
to the husband or his heirs, the period shall be counted from the
discovery or knowledge of the birth of the child or of the fact of
registration of the birth, whichever is earlier.
Q.
Why are the prescriptive periods for impugning the legitimacy shorter
compared to the other prescriptive period relative to any other action
such as annulment of marriage and legal separation?
A.
This is precisely to avoid leaving in dispute for a long period of time

the status of the child. Bastardization of a child is a very serious
matter which public policy does not encourage.
Q.
Can the legitimacy of the child still be question after the lapse of the
applicable prescriptive period?
A.
No, after the lapse of the prescriptive period, the status of the child
becomes fixed and cannot be questioned anymore (Angeles v. Maglaya,
G.R. No. 153798, September 2, 2005, 469 SCRA 363; Tison v. Court of
Appeals, 276 SCRA 582; De Jesus v. Estate of Decedent Juan Gamboa
Dizon).
CIVIL LAW REVIEW
4B 2012
Arts. 163-172

Legitimate Children
248
Q.
When does the prescriptive period start to run?
A.
It starts to run from the time of the knowledge of birth or its recording
in the civil register.
Chapter 2
Proof of Filiation
Art. 172. The filiation of legitimate children is established
by any of the following:
(1) The record of birth appearing in the civil
register or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the
status of a legitimate child; or
(2) Any other means allowed by the Rules of Court
and special laws. (265a, 266a, 267a)
Q.
How is the filiation of legitimate children established?
A.
The filiation of legitimate children may be established by the following:

1) The record of birth appearing in the civil register or a final
judgment; 2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall
be proved by: 1) The open and continuous possession of the status of a
CIVIL LAW REVIEW
4B 2012
Arts. 172-174

Proof of Filiation
249
Arts. 172-174
legitimate child; or 2) Any other means allowed by the Rules of Court

and special laws.
Q.
A.
It is a prima facie evidence of the facts therein considered. (Article 410

of the Civil Code; Malicdem v. Republic, 12 SCRA 313). As prima facie
evidence, the statements in the record of birth may be rebutted.
Hence, if there are no evidences to disprove the facts contained
therein, the presumption will hold and the children, as stated in the
birth certificate, shall be considered legitimate (Mariategui v. Court of
Appeals, 205 SCRA 337).
What is the implication if the alleged father did not sign in the birth
certificate?
It has been held that if the alleged father did not sign in the birth
certificate the placing of his name by the mother, or doctor or registrar,
is incompetent evidence of paternity of said child (Reyes v. Court of
Appeals, 135 SCRA 439; Berciles v. GSIS, 128 SCRA 53; Roces v. Local
Civil Registrar, 102 Phil. 1050)
Q.
Which between the two presumptions will prevail, a presumption of

fact created by the record of birth or a presumption or declaration of
law provided for in Article 164?
A.
The presumption or declaration of law provided for in Article 164 will

prevail. (Concepcion v. Court of Appeals, 468 SCRA 438)
Q.
Can a final judgment on the status of the children be based on a

compromise agreement?
A.
A final judgment based on a compromise agreement where the parties

stipulated and agreed on the status of a person is void. Contractually
agreeing and establishing the civil status of a person is against the law
and public policy. Article 2035(1) of the Civil Code provides that no
CIVIL LAW REVIEW
4B 2012
250
compromise agreement upon the civil status of persons shall be valid.

In Rivero v. Court of Appeals, G.R. No. 141273, May 17, 2005, 458
SCRA 714, the Supreme Court said that paternity and filiation, or the
lack of the same, is a relationship that must be judicially established,
and it is for the court to determine its existence or absence. It cannot
be left to the will or agreement of the parties.
Q. What is the weight of the record of birth as evidence in establishing

filiation?
A.

Proof of Filiation
Q.
Does an admission of legitimate filiation in a public instrument or

private handwritten instrument require court action?
A.
An admission of legitimate filiation in a public instrument or a private

handwritten instrument and signed by the parent concerned is a
complete act of recognition without need of court action. (De Jesus v.
De Jesus, G.R. No. 142877, October 2, 2001).
Q.
What does continuous possession mean in the context of legitimate

filiation?
A.
In Mendoza v. Court of Appeals, 201 SCRA 675, the Supreme Court

explained what continuous possession means, to wit:
continuous does not mean that the concession of status
shall continue forever but only that it shall not be of an
intermittent character while it continues. The possession of such
status means that the father has treated the child as his own,
directly and not through others, spontaneously and without
concealment though without publicity x x x. There must be a
showing of the permanent intention of the supposed father to
consider the child as his own, by continuous and clear
manifestation of paternal affection and care (Mendoza v. Court of
Appeals, 201 SCRA 675)
Q.
What are the overt acts and conduct that satisfy the requirement
of open and continuous possession of legitimate status?
A.
In Jison v. Court of Appeals, G.R. No. 124853, February 24,

1998, the following overt acts and conduct satisfy the
requirement:
CIVIL LAW REVIEW
4B 2012
Arts. 172-174

Proof of Filiation
251
[L]ike sending appellant to school, paying for her tuition

fees, school uniforms, books, board and lodging at the Colegio del
Sagrado de Jesus, defraying appellants hospitalization
expenses, providing her with [a] monthly allowance, paying for
her funeral expenses of appellants mother, acknowledging
appellants paternal greetings and calling appellant his hija or
child, instructing his office personnel to give appellants monthly
allowance, recommending appellant for employment at the
Miller, Cruz & Co., allowing appellant to use his house in
Bacolod and paying for her long distance telephone calls. Having
appellant spend her vacation in his apartment in Manila and
also at his Forbes residence, allowing appellant to use his
surname in her scholastic and other records.
Q.
Can a baptismal record or certificate constitute proof of filiation?
A.
Yes. For a baptismal certificate to be proof of filiation under the

Rules of Court, it must be shown that the father therein
participated in the preparation of the same. A birth certificate
not signed by the father is not competent proof of filiation.
Q.
Is the certificate of live birth purportedly identifying the putative

father competent evidence of paternity?
A.
It is not a competent evidence when there is no showing that the

putative father had a hand in the preparation of said certificates,
and the Local Civil Registrar is devoid of authority to record the
paternity of an illegitimate child upon the information of a third
person. Simply put, if the alleged father did not intervene in the
birth certificate, e.g. supplying the information himself, the
inscription of his name by the mother or doctor or registrar is
null and void; the mere certificate by the registrar without the
signature of the father is not proof of voluntary acknowledgment
on the latters part. (Jison v. Court of Appeals, G.R. No. 124853,
February 24, 1998)
Q.
Arts. 172-174

Proof of Filiation
252
A.
Yes, deoxyribonucleic acid (DNA) testing is also a valid means of

determining paternity. (Agustin v. Court of Appeals, G.R. No.
162571, June 15, 2005)
Q.
What is the minimum value of the Probability of Paternity

required in order for there to be a refutable presumption of
paternity?
A.
If the value of the Probability of Paternity is 99.9% or higher,

there is a refutable presumption of paternity. If it is lower than
99.9% it should be considered as corroborative evidence. (Herrera
v. Alba, G.R. No. 148220, June 15, 2005
Art. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute
the action.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the
parties.
Q.
As between the parent and the child, can other persons file an action
to claim legitimacy in behalf of the child?
A.
Generally, no. The right of action for legitimacy devolving upon the
child is of a personal character and generally pertains exclusively to
him. Only the child may exercise it at any time during his lifetime. As
exception, and in three cases only, it may be transmitted to the heirs of
the child, to wit: if he or she died during his or her minority, or while
insane, or after action had already been instituted. Inasmuch as the
right of action accruing to the child to claim his or her legitimacy lasts
during his or her whole lifetime, he or she may exercise it either
Is there a scientific method in proving paternity?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Arts. 172-174

Proof of Filiation
253
Arts. 172-174
against the presumed parents, or his or her heirs (Conde v. Abaya, 13

Phil. 249)

Proof of Filiation
254
case for an illegitimate child (Art. 195 2, 3). As to successional rights,

the legitime of an illegitimate child is only one-half of a legitimate
child (Art. 364, Civil Code) and he or she has no right to inherit ab
instestado from the legitimate children and relatives of his or her
parents (Art. 992, Civil Code) while a legitimate child has.
Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on
Surnames;
Chapter 3
Illegitimate Children
(2) To receive support from their parents, their

ascendants, and in proper cases, their brothers and
sisters, in conformity with the provisions of this Code on
Support; and
Art. 175. Illegitimate children may establish their

illegitimate filiation in the same way and on the same
evidence as legitimate children. The action must be
brought within the same period specified in Article 173,
except when the action is based on the second paragraph
of Article 172, in which case the action may be brought
during the lifetime of the alleged parent. (289a)
(3) To be entitled to the legitimate and other successional

rights granted to them by the Civil Code. (264a)
Q.
What are the rights of a legitimate child?
A.
Legitimate children shall have the right:
Q.
(1) To bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames;
May an illegitimate child establish his or her illegitimate filiation in

the same way and on the same evidence as legitimate children?
A.
Yes (Montefalcon v. Vasquez, GR No. 165016). The action must be

brought within the same
period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
Q.
In proving illegitimate filiation, if there is no record of birth or an

admission of illegitimate
filiation in a public document or a private
handwritten instrument and signed by the parent concerned, what
other evidence can be presented?
A.
Illegitimacy can be proven within the lifetime of the parent through

open and continuous possession of the status of an illegitimate child
or any other means allowed by the Rules of
Court and special laws.
Q.
Is a judicial testimony sufficient to prove paternity?
(2) To receive support from their parents, their ascendants, and in

proper cases, their brothers and sisters, in conformity with the
provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights
granted to them by the Civil Code.
Q.
Is there a greatest and preferential sum of rights to legitimate children

compared with an illegitimate child?
A.
Yes. (Clemena v. Clemena) A legitimate child has lifetime to claim

legitimacy (Art. 172), such right may be transmitted to heirs (Art. 173)
but an illegitimate child can only bring an action during the lifetime of
the parent and such right is not transmissible to heirs. He or she is
also entitled to support from ascendants and descendants (Arts. 195,
199) and not merely from grandparents or grandchildren, which is the
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Arts. 175-176

255
A.
Yes, provided it is not rebutted and in fact not disputed by the alleged
parent (Navarro v.
Bacalla, 15 SCRA 114).
Q.
In proving filiation, what are examples of other means allowed by the

Rules of Court?
A.
Such evidence may consist of his baptismal certificate, a judicial

admission, a family Bible in which his name has been entered,
common reputation respecting his pedigree, admission by silence, the
testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court (Mendoza v. Court of Appeals, 201
SCRA 675).
Q.
Should the evidence be clear and convincing to prove filiation?
A.
Yes. If the birth of the illegitimate child is way beyond nine months
from the approximate time of conception resulting from the alleged
sexual intercourse between the parties, this can negate filiation
(Constantino v. Mendez, 209 SCRA 28).
Q.
Are private letters and notes enough to prove filiation?
A.
No. Private letters and notes are not enough to prove filiation Section
40, Rule 130, Rules of Court:
Arts. 175-176
v.

256
Posadas, GR No. 159785)
Q.
What are the prescriptive periods to prove illegitimate filiation?
A.
Same as a legitimate child if filiation is established by any of the

following: (1) the record of birth appearing in the civil register or a
final judgment; or (2) an admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the
parent concerned (Art. 172, first paragraph). In the absence of these,
the legitimate filiation should be proved during the lifetime of the
parent by (1) the open and continuous possession of the status of a
illegitimate child; or (2) any other means allowed by the Rules of Court
and special laws (Art. 172, second paragraph). The parties should be
allowed to adduce evidence to know whether he or she falls under the
first or second paragraph (Tayag v. Tayag- Gallor, GR No. 174680).
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this
Code. However, illegitimate children may use surname of
their father if their filiation has been expressly
recognized by the father through the record of birth
appearing in the civil register, or when an admission in a
public document or private handwritten instrument is
made by the father. Provided, the father has the right to
institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime
of a legitimate child.(As amended by Republic Act 9255,
approved February 24,2004.)
The reputation or tradition existing in a family previous to the

controversy, in respect to the pedigree of any one of its members, may
be received in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or affinity. Entries
in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of
pedigree. They do not fall unde rhte phrase and the like (Jison v.
Court of Appeals).
Q.
Can an illegitimate child use the surname of his or her father?
Q.
How about love letters?
A.
A.
The love letters are in the handwriting of the petitioner, using alias,
declaring that should the respondent got pregnant, he will have no
regret and they should enjoy the responsibility are considered as a
private handwritten instrument that can establish filiation (Verseles
Yes. An illegitimate child may use the surname of his or her father if
the filiation has been expressly recognized by the father through the
record of birth appearing in the civil register, or when an admission
in a public document or private handwritten instrument is made by
the father.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Arts. 175-176
Q.

257
Arts. 177-182

Legitimated Children
258
Does the father have the right to institute an action before the regular
courts to prove non-filiation during his lifetime?
the former, were not disqualified by any impediment to

marry each other may be legitimated. (269a)
A.
Yes, even though he allowed the use of his surname by the illegitimate
child.
Art. 178. Legitimation shall take place by a subsequent

valid marriage between parents. The annulment of a
voidable marriage shall not affect the legitimation. (270a)
Q.
What is the legitime of an illegitimate child?
A.
The legitime of each illegitimate child shall consist of one-half of the

legitime of a legitimate child.
Art. 179. Legitimated children shall enjoy the same rights

as legitimate children. (272a)
Q.
Who exercises parental authority over the illegitimate child?
A.
The mother has parental authority over the illegitimate child. This is
the case notwithstanding the recognition of the father (Briones v.
Miguel, GR No. 156343) because the alleged putative father may not
be the real natural father, hence, the parental authority is solely given
to the mother. Even though paternity is certain, the mother still has
custody with the father not cohabiting with the mother (David v. CA,
65 SCAD 508).
Art. 180. The effects of legitimation shall retroact to the

time of the child's birth. (273a)
Q.
Is parental authority waivable?
A.
No, except in cases of adoption, guardianship, and surrender to a

childs home or orphan institution.
Q.
Can the illegitimate child be under the parental authority of the father
and mother?
A.
Yes, if the father lives together with the illegitimate child whom he
admits as his, and with
the mother, parental authority is
exercised by both parents?
Chapter 4
Art. 177. Only children conceived and born outside of
wedlock of parents who, at the time of the conception of
CIVIL LAW REVIEW
4B 2012
Q.
Who can be legitimated?
A.
Only children conceived and born outside of wedlock of parents who, at

the time of the conception of the former, were not disqualified by
any impediment to marry each other may
be legitimated.
Q.
When does legitimation take place?
A.
Legitimation takes place by a subsequent valid marriage between
parents.
Q.
Does the annulment of marriage affect legitimation?
A.
The annulment of a voidable marriage does not affect the legitimation.
Q.
What are the rights of a legitimated child?
A.
A legitimated child enjoys the same rights as a legitimate child.
Q.
When do the effects of legitimation retroact?
A.
The effects of legitimation retroact to the time of the child's birth.
Q.
How should legitimation be construed?
A.
Legitimation is construed liberally (Cardenas v. Cardenas, 12 III. App

2d 497) because it is
remedial in character intended for the benefit
and protection of the innocent offspring.
CIVIL LAW REVIEW
4B 2012
Arts. 177-182

259
Arts. 177-182

260
Q.
What are the requirements of legitimation?
A.
The requirements for legitimation are: 1) the parents do not suffer any
legal impediment or are disqualified to marry because either one or
both of them are 18 years of age at the time of the conception of the
child by the mother; 2) the child has been conceived and born outside
of a valid marriage; and 3) the parents subsequently enter into a valid
marriage.
Q.
Who may impugn legitimation?
A.
Legitimation can only by those who are prejudiced in their rights
Q.
What is the prescriptive period to impugn legitimation?
Q. Could legitimation be applied prior to the effectivity of the Family

Code?
A.
The prescriptive period is within five years from the time the cause of
action accrues.
Yes, it retroacts when the law [the Family Code] becomes effective
(Henry v. Jean, 238 La 314, 225 So2d 363). This is for the benefit of
the child and for his or her paramount interest.
Q.
Can creditors impugn legitimation?
A.
Yes, if the legitimation affected their rights and are prejudiced.
Should legitimation prior to the effectivity of the Family Code affect

property rights?
Q.
What does rights in Art. 182 include?
A.
The rights refer to successional rights, the persons who can be

prejudiced are the legal
heirs of the parents.
A.
Q.
A.
No, it will not affect vested property rights (Mudrow v. Cladwell, 173
SC 243).
Art. 182. Legitimation may be impugned only by those

who are prejudiced in their rights, within five years from
the time their cause of action accrues. (275a)
Republic Act 8552
Q. If one or both of the parents is/are less that 18 years old, is

legitimation possible?
A.
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE

DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES
Yes, legitimation is allowed if the legal impediment consists of one or

both of the parties are less that 18 years old.
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their
descendants. (274)
Q.
Can legitimation of children who died before the celebration of the

marriage benefit their descendants?
A.
The legitimation of children who died before the celebration of the

marriage benefits their
descendants to give the descendants
what they should have enjoyed during the lifetime of their father or
mother.
CIVIL LAW REVIEW
4B 2012
SECTIONS 1-3
Q.
Who is a child?
A.
1.) a person below 18 years of age

2.) a person over 18 of age but is unable to fully take care of
him/herself or protect himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of physical or mental disability
or condition. (RA 9523)
Q.
Who is a Child Legally Available for Adoption?
A.
Certification has been issued by the DSWD that he/she is available for
CIVIL LAW REVIEW
4B 2012
RA 8552
ADOPTION
Republic Act No. 8552
261
RA 8552
adoption either by being voluntarily or involuntarily committed.

Q.
A.
Define voluntarily committed child, involuntarily committed child,

abandoned child, and neglected child?
Voluntarily committed child parent(s) knowingly and willingly
relinquishes parental authority to the Department.
ADOPTION
262
compliance with mandatory requirements is enough to validate an

adoption degree(Republic v CA and Zenaida Bobiles, 205 scra 356).
Q.
What is the purpose behind adoption?
A.
Promotion of the welfare of the child and the enhancement of his or

her opportunities for a useful and happy life (Daoang v Municipal
Judge of san Nicholas, Ilocos Norte, 159 SCRA 366, citing In re
Adoption of Resaba, 95 Phil 244; Santos v Aranzanso, 123 Phil 160).
Involuntarily committed child parents, known or unknown, has

been permanently and judicially deprived of parental authority due to
SECTION 4
1.) abandonment;
Q.
2.) substantial, continuous, or repeated neglect;
To whom are counselling sessions provided?
3.) abuse; or incompetence to discharge parental responsibilities.
A.
principal parties namely, the 1.) natural parents, 2.) adopter and 3.)
adoptee.
Abandoned child 1.) no proper parental care or guardianship or
Q.
What is this period given to Biological Parents?
2.) whose parent(s) has deserted him/her for a period of atleast 6

months and has been judicially declared as such.
A.
A period of 6 months is given to the biological parents to reconsider

any decision to relinquish his/her child for adoption before the decision
become irrevocable. However, such irrevocability must give way to the
childs best interest rule.
Q.
Is an adoption plan granted prior the birth his/her child binding?
Neglected child a child whose basic needs have been deliberately

unattended or inadequately attended within a period of three (3)
continuous months. Neglect may occur in
two (2) ways:
a. Physical neglect malnourished, ill-clad, and without proper
shelter, provisions and/or supervision.
A.
No binding commitment of adoption shall be permitted before the birth
of the child.
b. Emotional neglect maltreated, raped, seduced, exploited,

overworked, made to work under ill conditions, made to beg,
or placed in moral danger, gambling, prostitution, and other
vices. (RA 9523)
SECTION 5-6
Q.
What is the status of an adoption degree which did not comply with all
requirements of law?
A.
NULL (In re OKeefe, 164 Misc 473 [1937]), but the burden of proof in
establishing adoption is upon the person claiming such relationship, as
such he/she must prove compliance with the statutes relating to
adoption (Lazatin v Campos, 92 scra 263). However, substantial
CIVIL LAW REVIEW
4B 2012
Q.
Adoption process involves how many phases?
A.
Two phases
1.) Administrative phase govern by RA 9523

2.) Judicial phase done by proper family courts.
SECTION 7
Q.
Who may adopt?
A.
Any Filipino citizen, any alien or guardians
CIVIL LAW REVIEW
4B 2012
RA 8552
ADOPTION
263
Q.
What are the requirements for Filipino citizens to adopt?
A.
1.) with full civil capacity and legal rights
RA 8552
ADOPTION
2.) One who seeks to adopt a legitimate son/daughter of his/her

Filipino spouse; or
3.) One who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the 4th civil
degree of consanguinity and affinity of the Filipino spouse.
2.) good moral character and has not been convicted of any crime
involving moral turpitude
3.) emotionally and psychologiucally capable of caring for children
Q.
What are the requirements for a Guardian to adopt?
4.) atleast 16 years older than the adoptee
A.
1.) only applies with respect to his/her ward
5.) able to support and care for his/her children in keeping with the
means of the family.
NOTE: requirement of 17 years difference may be waived when
adopter is the
biological parent of the adoptee or the spouse of the
adoptees parent.
Q.
What are the requirements for Alien to adopt?
A.
1.) Same qualification stated for Filipino adopter
2.) after the termination of the guardianship and

3.) clearance of financial accountabilities.
Q.
May Husband and wife adopt separately?
A.
General Rule is NO (In Re: Petition for Adoption of Michelle Lim, G.R.
Nos. 168992-93, May 21, 2009). Except when:
1.) If one spouse seeks to adopt the legitimate son/daughter of
the other; or
2.) His/her country has diplomatic relations with the Republic of the
Philippines
2.) If one spouse seeks to adopt his/her own illegitimate

son/daughter with the consent of the other spouse; or
3.) He/she has been living in the Philippines for at least three (3)
continuous years prior to
the filing of the application for adoption
and maintains such residence until the adoption
decree is entered
- final and executory.
4.) He/she has been certified by his/her diplomatic or consular office or
any appropriate government agency that he/she has the legal
capacity to adopt in his/her country, and that his/her
government
allows the adoptee to enter his/her country as his/her adopted
son/daughter.
NOTE: Residency and certification requirements may be waived, in
the discretion of the
court, in cases of:
1.) Former Filipino seeking to adopt a relative within the 4th civil
degree of consanguinity or affinity; or
CIVIL LAW REVIEW
4B 2012
264
3.) If the spouses are legally separated from each other.

NOTE: Joint Parental Authority shall be exercised by the spouses
except in situation #3 (legally separated). In case of disagreement
however, the fathers decision shall prevail
unless there is a
judicial order to the contrary (Art. 211).
SECTION 8
Q.
Who may be adopted?
A.
1.) A child legally available for adoption; or

2.) legitimate son/daughter of one spouse by the other spouse; or
3.) illegitimate son/daughter by a qualified adopter to improve status
CIVIL LAW REVIEW
4B 2012
RA 8552
ADOPTION
265
RA 8552
ADOPTION
266
to legitimate; or
Q.
What is the effect of adoption?
4.)a person of legal age, if prior to the adoption, said person has been
consistently considered
and treated by the adopter(s) as his/her
own child since minority; or
A.
ALL legal ties with biological parents are effectively cut except when
the biological parent is the spouse of the adopter. It makes the
adopted child the natural child of the adoptive parents.
5.) a child whos previous adoption has been rescinded (minor); or
NOTE: Such effect is not affected even if adoptive parents died, or

adopted child reached majority age or his/her subsequent marriage.
6.) a child whos biological or adoptive parent(s) has died (minor):

Provided, no proceedings
shall be initiated within six (6) months
from the time of death of said parent(s).
NOTE However: Such relationship is limited only to the adoptive

parents and adopted child
and does not extend to other relatives.
SECTION 9
SECTION 18
Q.
What consent is needed and from whom?
Q.
What are the succession rights of the adopted child?
A.
Written consent is required from
A.
It is as if he/she is a natural and legitimate child of the adoptive

parents, with no legal ties as to its biological parents except if made
through testamentary succession. The only exception
is that no
right of representation is given to the adopted because this does not
involve
reciprocal rights between parent and child. Thus, unless
provided by the adoption statute, the adopted child does not inherit
from the lineal or collateral kindred of the adoptive parents (in re
Harringtons Estate, 120 ALR 8300; Shemaker v Newman, 89 ALR
1034).
1.) The adoptee, if ten (10) years of age or over; and

2.) Biological parents, legal guardian or state; or
3.) Legitimate and adopted children, ten (10) years of age or over, of
the adopter(s) and adoptee, if any; or
4.) Illegitimate children, ten (10) years of age or over, of the adopter if
living with said adopter and the latters spouse, if any; or
5.) The spouse, if any, of the person adopting or to be adopted.
NOTE: Written consent is mandatory.
In the case of Santos v Aranzanso it states that consent by
parents to the adoption is not
absolute, in cases of abandoned
child, consent of guardian or/and state suffices.
In the case of Landingin v Republic, if child is illegitimate, consent of
mother suffices. Except
when the father acknowledged and
admitted that the child is his and there is no doubt as to the same,
his consent must likewise be obtained.
SECTION 19
Q.
Who may rescind an adoption?
A.
Only the adoptee except if minor or if over 18 but is incapacitated, then

with assistance of
DSWD as guardian/counsel.
Q.
What are the grounds of rescission?
A.
1.) repeated physical and verbal maltreatment despite counselling;

2.) attempt on the life of the adoptee;
3.) sexual assault or violence;
SECTION 16-17
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
RA 8552
ADOPTION
267
AM 02-6-02 SC
ADOPTION
Inter-Country Adoption
268
4.) abandonment and failure to comply with parental obligations.

Q.
Wont the adopter have a right to rescind adoption?
A.
No. He has not right to rescind but may disinherit for cause provided
in Article 919 of the
Civil Code.
Procedural Rule A.M. No. 02-6-02 SC

Q.
Can the Inter-Country Adoption Board (ICAB) cancel the license of

child-caring/placement agencies once issued?
A.
Yes, the ICAB can cancel the license to operate and blacklist the childcaring and placement agency involved from the accreditation list of the
ICAB upon finding of violation of any provision under the Act. (Sec. 4
(h), RA 8043)
Q.
What are the requirements before the ICAB will accredit foreign
private adoption agencies?
A.
(1) The foreign private adoption agency must have demonstrated

professionalism, competence and have consistently pursued non-profit
objectives to engage in the placement of Filipino children in their own
country; (2) Such foreign adoption agency is duly authorized and
accredited by their own government to conduct inter-country adoption;
(3) The total number of authorized and accredited foreign private
adoption agencies shall not exceed 100 a year. (Sec. 6 (i), RA 8043)
Q.
What is inter-country adoption?
A.
It refers to the socio-legal process of adopting a Filipino child by a

foreigner or a Filipino citizen permanently residing abroad where the
petition is filed, the supervised custody is undertaken, and the decree
of adoption is issued outside the Philippines. (R.A. 8043, Sec. 3 [a])
Q.
Is the Inter-Country Adoption Act applicable only to foreign nationals

who want to adopt Filipino children?
Can an alien who is 25 years old apply for inter-country adoption,

wherein the child available for adoption is 8 years old?
A.
Generally no, because the law says that the alien must be at least 27
years old and at least 16 years older than the child to be adopted. The
exception is when the adopter is the natural parent of the child or the
spouse of such parent. (Sec. 9 (a), RA 8043)
Must a married couple jointly file for adoption?
Q.
A.
No, the Act can also apply to Filipino citizens permanently residing
abroad.
Q.
Where is the decree of adoption issued under this Act?
Q.
A.
In the foreign country where the applicant resides.
A.
Yes. This is an explicit requirement under the law. (Sec. 9 (b), RA
8043)
Q.
What does the term legally-free child mean?
A.
A child who has been voluntarily or involuntarily committed to the

Department of Social Welfare and Development, in accordance with
the Child and Youth Welfare Code. (Sec. 3 (f), RA 8043)
CIVIL LAW REVIEW
4B 2012
Q.
Where can an applicant file an application for inter-country adoption?
A.
In the Philippine Regional Trial Court having jurisdiction over the

child or with the ICAB through an intermediate agency, whether
CIVIL LAW REVIEW
4B 2012
AM 02-6-02 SC
ADOPTION
269
governmental or an authorized and accredited agency, in the country

of the prospective adoptive parents.
Q.
A.
Before a child can be legally adopted under the Inter-Country

Adoption Act, must there be a finding that all possibilities for adoption
of the child in the Philippines have been exhausted?
Yes, in fact, the rules says that there should be a certification first by
the Department of Social Welfare and Development that all
possibilities for the adoption of the child in the Philippine have been
exhausted and that inter-country adoption is in the best interest of the
child (Sec. 32, Rules and Regulation). Also, the law says that no child
shall be matched to a foreign adoptive family unless it is satisfactorily
shown that the child cannot be adopted locally. (Sec. 11, RA 8043).
Q.
What is matching?
A.
It refers to the judicious pairing of the applicant and the child to

promote a mutually satisfying parent-child relationship.
Q.
What are the costs that the applicant must bear incidental to the
placement of the child?
A.
(1) The cost of bringing the child from the Philippines to the residence
of the applicant abroad, including all travel expenses within the
Philippines and abroad and (2) The cost of passport, visa, medical
examination and psychological evaluation required and other related
expenses. (Sec. 12, RA 8043)
AM 02-6-02 SC
ADOPTION
270
A.
When the ICAB fails to find another placement for the child within
reasonable time after the termination of the pre-adoptive relationship
and that repatriation is the only option available provided it is still in
the best interest of the child. (Sec. 47, Rules and Regulations)
Q.
Where and when can the petition for adoption be filed?
A.
This is filed with the proper court of the country where the applicant
resides within 6 months after the completion of the trial custody
period.
Q.
Are the illegal acts under RA 8043 mala in se or mala prohibita?
A.
Mala prohibita, thus mere perpetration of the act is enough to be

adjudged guilty of committing the crime.
TITLE VIII
SUPPORT
Q.
What is the purpose of the clause in keeping with the financial

position of the family?
A.
It determines the amount of support to be given. It also eliminates the

distinction between
natural support and civil support (Sta. Maria,
p. 756).
Q.
Distinguish natural support from civil support.
A.
During the trial custody what must be submitted by the adoptive
parents to the governmental agency or authorized and accredited
agency?
Natural support has been understood as the basic necessities while

civil support refers to anything beyond the basic necessities.
Q.
Who are obliged to support each other?
A.
A progress report of the childs adjustment. (Sec. 14, RA 8043)
A.
Q.
When can the child be repatriated?
1. Spouses
2. Legitimate ascendants and descendants.
3. Parents and their legitimate children and the legitimate and
illegitimate children of the latter.
Q.
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 194- 208
SUPPORT
271
4. Parents and their illegitimate children and the legitimate and

illegitimate children of the latter.
5. Legitimate brothers and sisters, whether of full or half-blood
Q.
Can a common-law wife ask support from her common-law husband?
A.
No. Support between spouses presupposes a valid marriage. It is the

fact of a valid marriage that gives rise to the duty (Santos v. Sweeney,
4 Phil. 79)
Q.
What is a valid defense against an action for support by a wife?
A.
Adultery (Quintana v. Lerma, 24 Phil. 285). However, the adultery of

the wife must be established by competent evidence (Reyes v. InesLuciano, 88 SCRA 803).
Q.
Can a spouse ask for support pendente lite from the other spouse in a
case wherein the validity of the marriage is the very lis mota of the
case without a hearing?
A.
No, they shall be supported by the absolute community or the conjugal

partnership (Article
198, Family Code; Sta. Maria, p. 760)
Q.
When does the obligation to give support, as between a husband and

his wife, cease?
A.
When the marriage is annulled or declared void ab initio (Mendoza v.

Parungao, 41 Phil. 271)
What is a valid defense to refuse to give support to a child?
Q.
A.
That the child is a fruit of an adulterous relationship (Sanchez v.

Zulueta, 68 Phil. 110)
Q.
If the status of the child is the issue of the case, can the child get
support pendent lite?
CIVIL LAW REVIEW
4B 2012
Art. 194- 208
SUPPORT
272
A.
Yes, if the status of the chid has been proven provisionally, which can
be attained if there is prima facie evidence (affidavit of the claimantchild, testimonies)? However, the finding is
only provisional and is
subject to the final outcome of the trial on the merits (Mangulabnan
v. IAC, 185 SCRA 760)
Q.
Can an illegitimate sibling ask for support?
A.
Yes, unless the sibling is of age, and that the need for support is due
to a cause imputable to the claimants fault or negligence (Article 196,
Family Code).
Q.
Where do you get the support to be given to descendants, ascendants,

brothers and sisters?
A.
From the separate property of the one who is obliged to give support.
However, if the obligor has no separate property, the absolute
community or conjugal partnership will be liable, if financially capable,
and such will be considered as a deduction from the share of the
spouse obliged upon liquidation (Article 197, Family Code).
Q.
What is the exception to this?
A.
When the one who is to be supported is the common child of the

husband and the wife, the
absolute
community
or
conjugal
partnership shall be principally charged (Article 94 [1] and
Article 121 [1], Family Code, Sta. Maria p. 763). However, if it is
an illegitimate child of a
spouse, mere insufficiency of the
separate property is enough to make the absolute
community,
or
the conjugal partnership liable if all the required conditions in are
complied with and there is insufficient separate property of the one
who is obliged to give support.
Q.
When two or more persons are obliged to give support, what is the
order upon whom the obligation devolves?
A.
1. Spouse;
CIVIL LAW REVIEW
4B 2012
Art. 194- 208
SUPPORT
273
2. Descendants in the nearest degree;

3. Ascendants in the nearest degree;
4. Brothers and Sisters (Article 199, Family Code)
Art. 194- 208
SUPPORT
274
A.
Demandable from the time the person has a right to receive the same
needs it. It is payable only upon judicial or extrajudicial demand, and
it should be paid within the first five days of each
corresponding
month (Article 203, Family Code).
Q.
Does the right to support arise from the mere fact of relationship?
A.
No. It arises from imperative necessity without which it cannot be

demanded, and the law presumes that such necessity does not exist
unless support is demanded (Jocson v. Empire Insurance Co. 103 Phil.
580).
Q.
When the obligation to give support falls upon two or more persons,
how is the payment divided?
A.
In proportion to the resources of each (Article 200, Family Code).
Q.
What if there is an urgent need?
A.
A judge may order only one to pay, without prejudice to his right to
claim from the others the share due from them (Article 200, Family
Code).
Q.
Can a claimant get support in arrears?
Q.
What if there are two or more claimants and only one obligor?
A.
Yes (Mangonon v. CA 494 SCRA 1).
A.
He must satisfy both. In the event that s/he has insufficient means,
the order in Article 199
should be followed, unless the claimant
is a child under his/her parental authority, then the child is preferred
(Article 200, Family Code).
Q.
What are the options of the one who is obliged to give support?
A.
Fulfill the obligation by paying the allowance fixed, or by receiving and

maintaining the family dwelling the person who has a right to receive
it.
Q.
Does the obligor always have a choice?
A.
No. Maintaining and receiving the family dwelling cannot be availed

of in case there is a moral or legal obstacle thereof (Article 204, Family
Code)
Q.
Can the right to receive support, as well as any money or property

obtained as such be levied
up on attachment or execution?
A.
No (Article 205, Family Code).
Q.
Does a stranger/third person have a cause of action against the person

who is obliged to give support if the stranger/third person was the one
who gave the needed support even without the knowledge of the
Q.
Is a judgment for support final or provisional?
A.
It is provisional in character. It can be reduced or increased according

to the necessities of
the recipient and the resources or means of the
person obliged to furnish the same (Article
201, Family Code).
Q.
Does the 5-year period for execution apply in support cases?
A.
No. The support under the judgment becomes due from the time to
time as provided and is
enforceable by simple motion at ANY
time, except as to instalments not recovered within the
statute of
limitations (Sta. Maria, p. 771).
Q. When does the obligation to give support demandable? When is it

payable?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 194- 208
SUPPORT
275
Art. 194- 208
SUPPORT
276
person required to give the support?

A.
A.
Yes, unless it appears he gave it without intention of being reimbursed

(Article 206, Family Code).
Q.
What are the requirements for a stranger to be reimbursed?
A.
1. The support has been furnished a dependent of one bound to give

support but who fails to
do so.
2. The support was supplied by a stranger
3. The support was given without knowledge of the person charged
with the duty to give support (Ramirez and De Marciada v. Redfern,
49 Phil. 849)
Q.
A.
Q.
Q. What is the difference between contractual support and support given

by will?
A.
While both can be subject to levy on attachment or execution, when

there is excess in amount beyond that required for legal support,
Contractual support can be a subject of adjustment whenever
modification is necessary (Article 208, Family Code; Sta. Maria p. 777)
TITLE IX
PARENTAL AUTHORITY
What happens if the person obliged to give support unjustly refuses or

fails to give support when it is urgently needed?
Chapter 1
General Provisions
Any third party may furnish such support with a right to be

reimbursed by the person obliged (Article 207, Family Code).
Article 209. Pursuant to the natural right and duty of

parents over the person and property of their
unemancipated children, parental authority and
responsibility shall include the caring for and rearing of
such children for civic consciousness and efficiency and
the development of their moral, mental and physical
character and well-being. (n)
What are the requirements for Article 207 to apply?
A.
1. There is an urgent need to be supported

2. The person obliged to give support unjustly refuses or fails to give it
3. A third person furnishes the support to the needy individual
(Sta. Maria, p. 776)
Q.
One which is entered into by the parties usually with reciprocal

obligations, and is not mandated by law (Sta. Maria, p. 777)
What is the resulting relationship between the third party and the
person obliged to give support?
A.
Quasi-contract (Sta. Maria, p. 774)
Q.
What is legal support?
A.
It is the one mandated by the law (Sta. Maria, p. 777)
Q.
What is contractual support?
CIVIL LAW REVIEW
4B 2012
Q.
What is the nature of parental authority?
A.
Under the present concept of parental authority, the right of the

parents to the company and custody of their children is but ancillary to
the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training, and
development (Medina vs. Makabali, 27 SCRA 502; Luna vs. IAC, 137
SCRA 7).
Q.
Can a child below seven years old be separated from the mother?
CIVIL LAW REVIEW
4B 2012
Art. 209-215
A.
PARENTAL AUTHORITY
General Provision
277
Art. 209-215
Thus, while our law recognizes the right of a parent to the custody of
the child, courts have not lost sight of the basic principle that in all
questions of the care, custody, education and property of the children,
the latters welfare shall be paramount and that for compelling
reasons, even a child under seven may be ordered separated from the
mother (Medina vs. Makabali, 27 SCRA 502; Luna vs. IAC, 137
SCRA 7).
Q.
What is the coverage of parental authority?
A.
Parental authority is the sum total of the rights of parents over the
person and property of their children (2 Manresa 8, cited in Paras,
Civil Code of the Philippines, Annotated, Fourth
Ed., p. 591).
May parental authority be renounced or transferred?
A.
Yes, parental authority and responsibility may be renounced or

transferred in cases provided by law. The right attached to parental
authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a
childrens home or orphan institution. Only in cases of parents death,
absence, or unsuitability may substitute parental authority be
exercised by the surviving parents (Santos vs. Court of Appeals, 58
SCAD 17, 242 SCRA 407).
It is a rule that parental authority is inalienable and every abdication
of this authority by the parents is void (1 Planiol and Ripert, 324;
Bacayo vs. Calum, 35 [CA] 53 O.G. 8607). It cannot be waived except
under circumstances allowed by law like adoption, guardianship or
surrender to a childrens home or an orphan asylum (See Act No.
3094). If a mother, as in Celia vs. Cafuin, 86 Phil. 554, would
surrender the custody of her child to another that is merely
temporary it does not deprive her of the right to get back or regain
the custody of her child.
CIVIL LAW REVIEW
4B 2012
278
Article 211. The father and the mother shall jointly

exercise parental authority over the persons of their
common children. In case of disagreement, the fathers
decision shall prevail, unless there is a judicial order to
the contrary. Children shall always observe respect and
reverence toward their parents and are obliged to obey
them as long as the children are under parental
authority. (17a, P.D. No. 603)
Q.
How is parental authority exercised?
A.
The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement,
the fathers decision shall prevail, unless there is a judicial order to the
contrary.
Q.
Is joint parental authority only applicable to legitimate children?
Article 210. Parental authority and responsibility may

not be renounced or transferred except in the cases
authorized by law. (313a)
Q.
PARENTAL AUTHORITY
General Provision
A.
No, Article 211 of the Family Code uses the phrase common children
which does not distinguish whether the said common children are
legitimate or illegitimate.
Q. What is needed for joint parental authority to apply to illegitimate
children?
A.
Two requisites must concur: 1) the father is certain and 2) the

illegitimate children are living
with the said father and mother,
who are cohabiting without benefit of marriage or under a void
marriage not falling under Article 36 and 53.
Q.
Is parental authority waivable?
A.
Once parental authority is vested, it cannot be waived except in cases

of adoption, guardianship and surrender to a childrens home or an
orphan institution (Sagala-Eslao vs.
Court of Appeals, 78 SCAD
50, 266 SCRA 317) However, parental authority can be
terminated
in accordance with the legal grounds provided in the Family Code.
CIVIL LAW REVIEW
4B 2012
Art. 209-215
PARENTAL AUTHORITY
General Provision
279
Art. 209-215
PARENTAL AUTHORITY
General Provision
280
considerations, especially the choice of the child over

seven years of age, unless the parent chosen is unfit. (n)
Q.
How is the preferential choice of the father exercised?
A.
The binding force of the decision of the father in case of conflict is

highlighted by the law itself when it provides that only a court order
can alter it. If the mother or the children want to change the decision
of the father, they must go to court.
Article 212. In case of absence or death of either parent,
the parent present shall continue exercising parental
authority. The remarriage of the surviving parent shall
not affect the parental authority over the children,
unless the court appoints another person to be the
guardian of the person or property of the children (17a,
P.D. No. 603).
No child under seven years of age shall be separated

from the mother unless the court finds compelling
reasons to order otherwise.
Q.
If the child is seven years old and above, is his or her choice of a
parent with whom he or she will live conclusive upon the courts?
A.
If the child is seven years old and above, his or her choice of a parent
with whom he or she will live is significant and the court should take
this into consideration. However, such choice is not determinative of
the issue of custody because, while the choice may be in favor of
parent, the court may still nevertheless award custody to the other
parent or even to a third person if the paramount interest of the child
so dictates.
Q.
Will death of one of the parents terminate parental authority?
A.
The death of one of the parents will not terminate the parental
authority of the surviving
parent over their children.
Q. What is the nature of the word shall under Article 213 of the Family
Code?
Q.
How about remarriage of the surviving parent to another?
A.
A.
Upon remarriage of the surviving parent, the parental authority over

the children shall likewise not be affected. The new spouse, by virtue of
his or her marrying the surviving parent, does not automatically
possess parental authority over the children of the surviving parent
unless such new spouse adopts the children. Upon remarriage of the
surviving parent, the court may appoint another person to be the
guardian of the person or property of the children if it is clearly shown
that, by reason of the remarriage, the surviving parent cannot
undertake the necessary devotion, care, loyalty and concern
toward the children.
The use of the word shall in Article 363 of the Civil Code (now Article
213 of the Family
Code), coupled with the observations made by
the Code Commission in respect to the said
legal
provision,
underscores its mandatory character. It prohibits in no uncertain
terms the separation of a mother and her child below seven years,
unless such separation is grounded
upon compelling reasons as
determined by a court (Lacson vs. San Jose-Lacson, 24 SCRA
837).
Thus, any agreement by the parties unduly depriving the mother of
the custody of her children under seven years of age in the absence of
any compelling reason to warrant the
same is null and void (Ibid.)
Q.
How may a mother be deprived of custody of a child under seven years

of age? How can it be shown?
A.
Compelling reason must be clearly shown by positive and clear

evidence of the unfitness of the mother and its determination is left
Article 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
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 209-215
PARENTAL AUTHORITY
General Provision
to the sound discretion of the courts (Medina vs.

SCRA 502; Cervantes vs. Fajardo, 169 SCRA 575).
281
Makabali,
Art. 209-215
27
Q.
Is being a lesbian enough to deprive a mother of custody of a child

under seven years of age?
A.
No, it is not enough to show that the mother was lesbian. It must be
shown that the purported relationship with a person of the same sex in
the presence of the child is not conducive for the childs proper moral
development (Gualberto vs. Rafaelito)
Q.
Is judgment of custody final and irreversible?
A.
The decisions of the courts, even the Supreme Court, on the custody of
minor children are always open to adjustments as the circumstances
relevant to the matter may demand in the light of the inflexible
criterion, namely the paramount interest of the children (Unson III vs.
Navarro, 101 SCRA 189).
PARENTAL AUTHORITY
General Provision
282
still in a position to take care of the

child. This is especially so
because parental authority and responsibility is inalienable and may
not be transferred or renounced except in cases authorized by law
(Santos vs. CA, et. al., G.R. No. 113054, March 16, 1995, 59 SCAD
672).
Article 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant or by
one parent against the other. (315a)
Q.
May a descendant testify against his parents in a criminal case?
A.
The privilege is solely addressed to the descendant-witness. He or she

may or may not testify against his or her parents in a criminal case. If
the descendant does not want to testify, he or she cannot be compelled.
Article 214. In case of death, absence or unsuitability of

the parents, substitute parental authority shall be
exercised by the surviving grandparent. In case several
survive, the one designated by the court taking into
account the same consideration mentioned in the
preceding article, shall exercise the authority. (19a, P.D.
No. 603)
Q.
When may substitute parental authority be exercised?
A.
It is in case of death of the parents or their unsuitability or absence

that substitute parental authority shall be exercised by the
grandparents, but the law still considers the welfare,
moral, and
physical development of the child as the most important consideration.
The rearing of the child for civic efficiency shall be considered by the
grandparents. The law says that it is in case of the absence of the
parents, death or unsuitability that the grandparents
will
exercise parental authority; so, if the mother of the child is abroad, the
custody of the
child should be given to the father since the father is
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 216-219
PARENTAL AUTHORITY
Substitute and Special Parental Authority
283
Chapter 2
Art. 216. In default of parents or a judicially appointed
guardian, the following person shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art.
214;
(2) The oldest brother or sister, over twenty-one
years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over
the property of the child becomes necessary, the same
order of preference shall be observed. (349a, 351a, 354a)
Q.
Why do persons exercising substitute parental authority have very

important roles to undertake?
A.
They have very important roles because they shall have all the rights
of the parents enumerated under in Article 220. They shall have the
same authority over the person of the child as the parents (Article
233). And they shall be civilly liable for the injuries and damages
caused by the acts or omissions of the unemancipated children living
in their company and under their parental authority.
Q.
Is the order in Article 216 mandatory?
A.
No.
Q.
What must be the basis of the custody and care of the child?
A.
Always, the paramount interest of the child must be the basis of the
custody and care.
Q.
What is the purpose of the order?
CIVIL LAW REVIEW
4B 2012
Art. 216-219
A.
PARENTAL AUTHORITY
284
The order must, as much as possible, be observed especially when all

those enumerated are equally fit to take care of the children.
Art. 217. In case of foundlings, abandoned neglected or
abused children and other children similarly situated,
parental authority shall be entrusted in summary
judicial proceedings to heads of children's homes,
orphanages and similar institutions duly accredited by
the proper government agency. (314a)
Q.
Who is a foundling?
A.
A foundling is a newborn child abandoned by its parents who are

unknown.
Q.
Who is an abandoned child?
A.
An abandoned child is one who has no proper parental care or

guardianship, or whose parents or guardians have deserted him for a
period of at least six continuous months.
Q.
Who is a neglected child?
A.
A neglected child is one whose basic needs have been deliberately

unattended or inadequately attended. Neglect may either be physical
neglect or emotional neglect.
Q.
Who is an abused child?
A.
An abused child can come within an emotionally neglected child: when

children are maltreated, raped or seduced; when children are
exploited, overworked or made to work under conditions not conducive
to good health; or are made to beg in the streets or public places, or
when children are in moral danger, or exposed to gambling,
prostitution or other vices.
Q.
Who is a dependent child?
A.
A dependent child is one who is without a parent, guardian or

custodian; or one whose parent, guardian or custodian for good cause
desires to be relieved of his care and custody; and is dependent upon
CIVIL LAW REVIEW
4B 2012
Art. 216-219
PARENTAL AUTHORITY
285
Art. 216-219
the public for support.
PARENTAL AUTHORITY
286
agency or individual. The child must be surrendered in writing by the

parent or guardian to the Department or duly licensed child placement
agency.
Q.
What is required to establish a child welfare agency?
A.
Any private person, natural or juridical, who shall establish a child

welfare agency must first secure a license from the Department of
Social Welfare which shall not be transferable and shall be used only
by the person or institution to which it was issued and the place stated
therein. The license shall be granted if the purpose or function of the
agency is clearly defined and stated in writing which shall include the
geographical are to be served, the children to be accepted and the
services to be provided. The protection and best interests of the child
shall be the first and basic consideration in the granting, suspension or
revocation of the license (PD 603).
Q.
How and to whom is parental authority transferred over these

children?
A.
Parental authority over these children shall be entrusted in a

summary proceeding to heads of childrens homes, orphanages and
similar institutions duly accredited by the proper government agency.
Q.
What is involuntary transfer of parental authority?
A.
The Department of Social Welfare Secretary or his authorized

representative or any duly-licensed child placement agency having
knowledge of a child who appears to be dependent, abandoned or
neglected, may file a verified petition to the proper court for the
involuntary commitment of the child to the care of any duly licensed
child placement agency. After due hearing, when a child shall have
been committed, his parents or guardians shall thereafter exercise no
authority over him except upon such conditions as the court may
impose. The Department of Social Welfare or any duly licensed child
placement agency or individual receiving a child pursuant to the order
of the court shall be the legal guardian.
Art. 218. The school, its administrators and teachers, or

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

institution engaged in child care.
Q.
What is voluntary transfer of parental authority?
Q.
Over whom can such special parental authority be exercised?
A.
The parent or guardian of the child may voluntarily commit him to the
Department of Social Welfare or any duly licensed child placement
A.
Only over minors while under their supervision, instruction or

custody. The authority or supervision also attaches to all activities
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 216-219
PARENTAL AUTHORITY
287
Art. 220-224
whether inside or outside the school, entity or institution.

Q.
What is the consequence of such special parental authority?
A.
They are civilly liable for acts and omissions of the minor. However,
the liabilities will not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
Q.
Who is the teacher referred to in this Article?
A.
The teacher must be the teacher-in-charge, the one designated by the

dean, principal or other administrative superior to exercise supervision
over the pupils and is the one immediately involved in the discipline of
the student and has direct control and influence over them. (Amadora
v. Court of Appeals, 160 SCRA 315).
Q.
What is the liability of parents, judicial guardians or persons

exercising substitute parental authority?
A.
They shall be subsidiarily liable because while the child is in school,

the said persons do not have direct custody of the children. They shall
only be liable if the persons with special parental authority cannot
satisfy their liability.
Q.
What is the defense of persons with special parental authority?
A.
The defense of the exercise of proper diligence required under the

particular circumstances.
Q.
What applies when the students are not minors?
A.
Article 2180 of the Civil Code.
PARENTAL AUTHORITY
288
Effect of Parental Authority Upon

the Persons of the Children
unemancipated children on wards the following rights

and duties:
(1) To keep them in their company, to support, educate
and instruct them by right precept and good example,
and to provide for their upbringing in keeping with their
means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in
civic affairs, and inspire in them compliance with the
duties of citizenship;
(4) To furnish them with good and wholesome
educational materials, supervise their activities,
recreation and association with others, protect them
from bad company, and prevent them from acquiring
habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their
interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required
under the circumstances; and
(8) To perform such other duties as are imposed by law
upon parents and guardians. (316a)
Chapter 3
Q.
Where does the concept of parental rights and duties stem from?
Effect of Parental Authority Upon the Persons of the Children
A.
The laws concept of the family rests on the presumption that parents
possess what a child lacks in maturity, experience and capacity for
judgment required for making difficult life decisions. Also, it has been
recognized that natural bonds of affection lead parents to act in the
Art. 220. The parents and those exercising parental

authority shall have with the respect to their
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 220-224
PARENTAL AUTHORITY
289
Art. 220-224

PARENTAL AUTHORITY
290

best interest of the child.

Q.
Can the child, despite her wrong and seemingly incorrigible behavior,
file an action to compel the parents to provide support?
A.
There has been no case decided by the Supreme Court on this matter.
However, American decisions may be helpful. In Roe v. Doe, 29 NY 2d
188, 272 N.E. 2d 567, 324 NY S.2d 71 (1971), it was held that the
actions of the child in disregarding the parental authority of the parent
forfeited her rights to demand support.
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and
damages caused by the acts or omissions of their
unemancipated children living in their company and
under their parental authority subject to the appropriate
defenses provided by law. (2180(2)a and (4)a )
A.
It is anchored upon parental authority coupled with presumed

parental dereliction in the discharge of the duties accompanying such
authority.
Q.
How do you overturn the presumption of parental dereliction?
A.
The parents must show that they exercised the diligence of a good
father of a family to prevent the damage.
Q.
Who is liable when a minor child, who shot another person, was
subject of adoption proceedings but was still in the custody and
parental authority of the natural parents?
A.
The natural parents. Although the law provides that the adoption
decree has a retroactive effect that goes back to the filing of the
petition for adoption, such cannot apply to issues of vicarious liability
of parents which can only attach, if at the time of the incident, the
child were under their custody and parental authority. (Tamargo v.
Court of Appeals, 209 SCRA 518)
Q.
What is the liability of parents and other persons exercising parental

authority?
A.
They are principally and primarily liable for the acts or omission of
their unemancipated children resulting in injuries to others. For the
liability to attach, the child must be living in their company and under
their parental authority.
Q.
What is a guardianship?
Q.
What is the philosophy of parental liability?
A.
A.
The principle of parental liability is a species of vicarious liability, or

the doctrine of imputed negligence, where a person is not only liable
for torts committed by himself but also for torts committed by other
with whom he has a certain relationship and for whom he is
responsible. Parental liability is made a natural and logical
consequence of parental authority which includes the instructing,
controlling and disciplining of the child. (Tamargo v. Court of Appeals,
209 SCRA 518)
A guardianship is a trust relation of the most sacred character, in

which one person, called a guardian, acts for another, called the
ward, whom the law regards as incapable of managing his own
affairs (39 Am. Jur. 9).
Q.
Who is a guardian ad litem?
A.
Guardians ad litem are considered officers of the court in a limited

sense, and the office of such guardian is to represent the interest of the
incompetent or minor. (Rivero v. Court of Appeals, G.R. No. 141273,
May 17, 2005, 458 SCRA 714)
Q.
What is the selection process?
Q.
What is parental liability anchored upon?
CIVIL LAW REVIEW
4B 2012
Art. 222. The courts may appoint a guardian of the child's

property or a guardian ad litem when the best interests
of the child so requires. (317)
CIVIL LAW REVIEW
4B 2012
Art. 220-224
PARENTAL AUTHORITY
291
Art. 220-224

A.
PARENTAL AUTHORITY
292

Appointment of a guardian ad litem is addressed to the sound

discretion of the court and designed to assist the court in the
determination of the best interest of the child (Rivero v. Court of
Appeals, G.R. No. 141273, May 17, 2005, 458 SCRA 714).
Q.
Who cannot be appointed as a guardian?
A.
A court cannot appoint a guardian who is not personally subject to its

jurisdiction (Vancil v. Belmes, G.R. No. 132223, June 19, 2001).
AM No. 03-02-05-SC
Rule on Guardianship of Minors
Q.
In what cases will this rule apply?
A.
This Rule shall apply to petitions for guardianship over the person
or property, or both, of a minor. (Section 1, A.M. No. 03-02-05-SC)
This Rule amends Rules 92 to 97 inclusive of the Rules of Court on
guardianship of minors. Guardianship of incompetents who are
not minors shall continue to be under the jurisdiction of the
regular courts and governed by the Rules of Court. (Section 27,
A.M. No. 03-02-05-SC)
Q.
Where is the petition filed?
A.
Petition may be filed in the Family Court of the province or city

where the minor actually resides. If he resides in a foreign
country, it shall be filed with the Family Court of the province or
city where his property or any part thereof is situated. (Section 3,
A.M. No. 03-02-05-SC)
Q.
What are the grounds for the appointment of a guardian?
A.
(1) death, continued absence, or incapacity of his parents; (2)

suspension, deprivation or termination of parental authority; (3)
remarriage of his surviving parent, if the latter is found
unsuitable to exercise parental authority; or (4) when the best
interests of the minor so require. (Section 4, A.M. No. 03-02-05SC)
Q.
In appointing a guardian, what factors shall the court consider?
A.
The court shall consider the guardians: (a) moral character; (b)
physical, mental, and physical condition; (c) financial status; (d)
relationship of trust with the minor; (e) availability to exercise the
powers and duties of a guardian for the full period of the
guardianship; (f) lack of conflict of interest with the minor; and (g)
ability to manage the property of the minor. (Section 5, A.M. No.
03-02-05-SC)
Q.
Will the rule apply in case the father and the mother jointly
exercise legal guardianship over the person and property of their
unemancipated common child without the necessity of a court
appointment?
A.
In such case, the rule shall be suppletory to the provisions of the

Family Code on Guardianship. (Section 1, A.M. No. 03-02-05-SC)
Q.
Who may be appointed as guardian?
Q.
Who may petition for appointment of guardian?
A.
A.
Any relative or other person on behalf of a minor, or the minor

himself if fourteen (14) years of age or over. The petition may also
be filed by the Secretary of Social Welfare and Development and
by the Secretary of Health in the case of an insane minor who
needs to be hospitalized. (Section 2, A.M. No. 03-02-05-SC)
In default of parents or a court-appointed guardian, the court may

appoint a guardian, observing as far as, practicable, the following
order of preference: (a) the surviving grandparent and in case
several grandparents survive, the court shall select any of them
taking into account all relevant considerations; (b) the oldest
brother or sister of the minor over twenty-one years of age, unless
unfit or disqualified; (c) the actual custodian of the minor over
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 220-224
PARENTAL AUTHORITY
293
Art. 220-224

twenty-one years of age, unless unfit or disqualified; and (d) any

other person, who in the sound discretion of the court, would serve
the best interests of the minor. (Section 6, A.M. No. 03-02-05-SC)
Q.
How is a guardian of a non-resident minor appointed?
A.
Any relative or friend of such minor, or any one interested in his

property, in expectancy or otherwise, may petition the Family
Court for the appointment of guardian over the property. The
court may dispense with the presence of the non-resident minor.
(Section 12, A.M. No. 03-02-05-SC)
Q.
What are the general duties of a guardian?
A.
A guardian shall have the care and custody of the person of his
ward and the management of his property, or only the
management of his property. A guardian shall perform the
following duties: (a) To pay the just debts of the ward out of the
personal property and the income of the real property of the ward,
If the same is sufficient; otherwise, out of the real property of the
ward upon obtaining an order for its sale or encumbrance; (b) To
settle all accounts of his ward, and demand, sue for, receive all
debts due him, or may, with the approval of the court, compound
for the same and give discharges to the debtor on receiving a fair
and just dividend of the property and effects; and to appear for
and represent the ward in all actions and special proceedings,
unless another person is appointed for that purpose; (c) To
manage the property of the ward frugally and without waste, and
apply the income and profits thereon, insofar as may be necessary,
to the comfortable and suitable maintenance of the ward; and if
such income and profits be insufficient for that purpose, to sell or
encumber the real or personal property, upon being authorized by
the court to do so; (d) To consent to a partition of real or personal
property owned by the ward jointly or in common with others
upon authority granted by the court after hearing, notice to
relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action; (e) To submit to the
CIVIL LAW REVIEW
PARENTAL AUTHORITY
294

4B 2012
court a verified inventory of the property of his ward within three

months after his appointment, and annually thereafter, the
rendition of which may be required upon the application of an
interested person; (f) To report to the court any property of the
ward not included in the inventory which is discovered, or
succeeded to, or acquired by the ward within three months after
such discovery, succession, or acquisition; and (g) To render to the
court for its approval an accounting of the property one year from
his appointment, and every year thereafter or as often as may be
required. (Section 17, A.M. No. 03-02-05-SC)
Q.
What are the grounds for removal of a guardian?
A.
When a guardian: (a) becomes insane or otherwise incapable of

discharging his trust or is found thereafter to be unsuitable; (b)
has wasted or mismanaged the property of the ward; or (c) has
failed to render an account or make a return for thirty days after
it is due. However, no motion for removal shall be grated unless
the guardian has submitted the proper accounting of the property
of the ward and the court has approved the same. (Section 24,
A.M. No. 03-02-05-SC)
Q.
Can a guardian resign?
A.
Yes. For justifiable causes. However, no motion for resignation

shall be grated unless the guardian has submitted the proper
accounting of the property of the ward and the court has approved
the same. (Section 24, A.M. No. 03-02-05-SC)
Q.
What are the grounds for termination of guardianship?
A.
When the ward has: (a) come of age; or (b) died, the court motu
proprio or upon verified motion of any person allowed to file a
petition for guardianship may terminate the guardianship.
(Section 25, A.M. No. 03-02-05-SC)
CIVIL LAW REVIEW
4B 2012
Art. 220-224
PARENTAL AUTHORITY
295
Art. 220-224

Art. 223. The parents or, in their absence or

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

inhumanly or beyond what is absolutely necessary. However, if
the children remain incorrigible, the parents are given the right to
seek the aid of the court to impose other more drastic disciplinary
CIVIL LAW REVIEW
PARENTAL AUTHORITY
296

4B 2012
measures for the childs improvement and which the court may
provide as warranted under the premises.
Q.
What is the measure imposable on the child?
A.
Commitment of the child for not more than thirty days in entities
or institutions engaged in child care or in childrens homes duly
accredited by the proper government agency. The parent
exercising parental authority shall not interfere with the care of
the child whenever committed but shall provide for his or her
support.
R.A. No. 8972
Solo Parents Welfare Act of 2000
Q.
Who is a solo parent under the provisions of the law?
A.
(1) A woman who gives birth as a result of rape and other crimes
against chastity even without a final conviction of the
offender: Provided, That the mother keeps and raises the child; (2)
Parent left solo or alone with the responsibility of parenthood due
to death of spouse; (3) Parent left solo or alone with the
responsibility of parenthood while the spouse is detained or is
serving sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood
due to physical and/or mental incapacity of spouse as certified by a
public medical practitioner; (5) Parent left solo or alone with the
responsibility of parenthood due to legal separation or de facto
separation from spouse for at least one (1) year, as long as he/she
is entrusted with the custody of the children; (6) Parent left solo or
alone with the responsibility of parenthood due to declaration of
nullity or annulment of marriage as decreed by a court or by a
church as long as he/she is entrusted with the custody of the
children; (7) Parent left solo or alone with the responsibility of
parenthood due to abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them or
CIVIL LAW REVIEW
4B 2012
Art. 220-224
PARENTAL AUTHORITY
297

Q.
Will a change in status or circumstance of the parent terminate

his or her eligibility to claim benefits under the law?
A.
Yes. Such that he or she is no longer left alone with the

responsibility of parenthood. (Section 3, RA 8972)
Q.
Are all solo parents eligible to claim benefits under the law?
A.
No. Only those whose income in the place of domicile falls below
the poverty threshold as set by the National Economic and
Development Authority (NEDA) and subject to the assessment of
the DSWD worker in the area shall be eligible for assistance.
However, any solo parent whose income is above the poverty
threshold shall enjoy the benefits mentioned in Sections 6 (flexible
work schedule), 7 (no work discrimination) and 8 (parental leave)
of the Act.
Q. What are the benefits which a solo parent is entitled to claim

under the law?
(a) flexible work schedule provided, the same shall not affect
individual and company productivity (Section 6); (b) no work
discrimination with respect to terms and conditions of
employment on account of his or her status (Section 7); (c)
parental leave, in addition to leave privileges under existing laws,
of not more than seven (7) working days every year if the solo
parent employee has rendered service for at least one (1) year
(Section 8); (d) educational benefits for both the solo parents and
their children by DECS, CHED and TESDA (i.e. scholarship
programs in institutions of basic, tertiary and technical or skills
CIVIL LAW REVIEW
PARENTAL AUTHORITY
298

give them up to a welfare institution; (9) Any other person who

solely provides parental care and support to a child or children;
(10) Any family member who assumes the responsibility of head of
family as a result of the death, abandonment, disappearance or
prolonged absence of the parents or solo parent. (Section 3, RA
8972)
A.
Art. 220-224
4B 2012
education; and non-formal education programs) (Section 9); (e)

housing benefits (Section 10); and (f) medical assistance (Section
11).
Chapter 4
Effect of Parental Authority Upon the Property of the Children
Art. 225. The father and the mother shall jointly exercise
legal guardianship over the property of the
unemancipated common child without the necessity of a
court appointment. In case of disagreement, the father's
decision shall prevail, unless there is a judicial order to
the contrary.
Where the market value of the property or the annual
income of the child exceeds P50,000, the parent
concerned shall be required to furnish a bond in such
amount as the court may determine, but not less than ten
per centum (10%) of the value of the property or annual
income, to guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be filed
in the proper court of the place where the child resides,
or, if the child resides in a foreign country, in the proper
court of the place where the property or any part thereof
is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding
the performance of the obligations referred to in the
second paragraph of this Article shall be heard and
resolved.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a
CIVIL LAW REVIEW
4B 2012
Art. 225-227
PARENTAL AUTHORITY
299
300
parent has remarried, in which case the ordinary rules

on guardianship shall apply. (320a)
thus give in whole or in part shall not be charged to the

child's legitime. (322a)
What is the reason for the P50,000 bench mark?
A.
The committee considers P50,00 as the amount when the property is

valuable enough to require a bond on the basis of the current
valuation. (Minutes of the 186th Joint Meeting on the Civil Code and
Family Law committees)
A.
PARENTAL AUTHORITY
Q.
Q.
Art. 225-227
What does market value of the property of annual income of the child
mean?
It means the aggregate of the childs property or annual income. Thus,
if the total of the childs property or annual income exceeds P50,000,
then the parents are required to furnish a bond. (Pineda vs. CA, 226
SCRA 754)
Art. 226. The property of the unemancipated child earned
or acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the latter's support
and education, unless the title or transfer provides
otherwise.
Q.
What is the scope of the parent or guardians authority over the estate
of the child or ward?
A.
It is limited only to acts of management or administration. Thus,

parents cannot execute acts of encumbrance or disposition. A sale of
the wards realty by the guardian without authority from the court is
void.
Q.
Do parents have the power to compromise their childrens claims?
A.
No, for a compromise has always been deemed equivalent to an

alienation and is an act of strict ownership that goes beyond mere
administration. (Visaya et al., vs. Suguitan, et al., G.R. No. L-8300,
November 18, 1955; Lindain vs. CA, 212 SCRA 725) The courts
approval is necessary in compromises entered into by guardians,
parents, absentees representatives and administrators or executors of
decedents estates. (Article 2032 of New Civil Code)
Q.
What does the phrase all incidents and issues include?
A.
It may include the alienation, disposition, mortgaging or otherwise

encumbering of the property beyond P50,000. These incidents and
issues shall be decided in an expeditious and inexpensive manner
without regard to technical rules in the same proceeding where the
bond was approved.
Q.
When will the rules on ordinary guardianship apply?
A.
In three instances: (a) when the child is under substitute parental

authority; (b) guardian is a stranger; or (c) a parent has remarried.
Q.
Is a child obliged to support his or her parents?
The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's
support and secondarily to the collective daily needs of
the family. (321a, 323a)
Art. 227. If the parents entrust the management or
administration of any of their properties to an
unemancipated child, the net proceeds of such property
shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less
than that which the owner would have paid if the
administrator were a stranger, unless the owner, grants
the entire proceeds to the child. In any case, the proceeds
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 225-227
PARENTAL AUTHORITY
301
Art. 228-233
A.
Yes, according to Article 195 of the Family Code. The support can be
taken from his or her separate property if the parents need it and if
the child can afford it.
Q.
What is the effect of Article 228?
A.
Parental authority is permanently terminated due to events that

happen without fault on the part of the parents. Here, parental
authority cannot be revived.
Art. 229. Unless subsequently revived by a final
judgment, parental authority also terminates:
(1)Upon adoption of the child;
(2)Upon appointment of a general guardian;
(3)Upon judicial declaration of abandonment of the
child in a case filed for the purpose;
(4)Upon final judgment of a competent court
divesting the party concerned of parental
authority; or
(5)Upon judicial declaration of absence or
incapacity of the person exercising parental
authority. (327a)
A.
No, this is not included in the causes established by the laws for
depriving parents of patria potestas and the custody of their
unemancipated minor children.
Q.
Upon rescission of the adoption decree, who has parental authority

over the adoptee?
A.
The adoptees biological parents (if known) or the DSWDs legal

custody shall be restored.
Q.
What does abandonment mean?
A.
It is any conduct on the part of the parent which evinces a settled

purpose to forego all parental duties and relinquish all parental claims
to the child. It means neglect or refusal to perform the natural and
legal obligations of care and support which they owe to their children.
Q.
What proof is needed in order for the court to issue a decree of

termination of parental authority?
A.
Clear, convincing and positive proofs.

Art. 230. Parental authority is suspended upon
conviction of the parent or the person exercising the
same of a crime which carries with it the penalty of civil
interdiction. The authority is automatically reinstated
upon service of the penalty or upon pardon or amnesty of
the offender. (330a)
Q. Can the court appoint a guardian for the person and property of the
child?
A.
Q.
Yes. Under Art. 20 of PD 603, the court can appoint a guardian on

petition of any relative or friend of the family or the DSWD.
Is parental authority terminated upon the parents act of compelling
their unemancipated minor daughter to marry against her will or the
CIVIL LAW REVIEW
4B 2012
302
parents refusal to consent to the marriage of their unemancipated

minor children?
Chapter 5. Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
Q.
What is civil interdiction?
A.
It is an accessory penalty that involves the depravation of the offender

during the time of his or her 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
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
303
Art. 228-233
the right to dispose of such property by any act or conveyance inter

vivos. (Article 34, Revised Penal Code)
Art. 231. The court in an action filed for the purpose in a
related case may also suspend parental authority if the
parent or the person exercising the same:
(1) Treats the child with excessive harshness or
cruelty;
(2) Gives the child corrupting orders, counsel or
example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected
to acts of lasciviousness.
The grounds enumerated above are deemed to include
cases which have resulted from culpable negligence of
the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of
the child so demands, the court shall deprive the guilty
party of parental authority or adopt such other measures
as may be proper under the circumstances.
A.
304
Q.
What is the procedure to suspend parental authority?
A.
Under Art. 231, it can be judicially decreed in a case specifically filed

for hat purpose or in a related case. The phrase related case can be
an off-shoot of an incident or a collateral pronouncement in another
case or an independent or collateral proceeding.
Q.
May the parental authority of father who has sexually abused his
daughter be revived upon a showing that he has reformed and will not
subject his daughter to the same abusive acts?
A.
No, his parental authority cannot be revived even if the reformation of

the father is authentic. It is a permanent deprivation.
Q.
What are the grounds for terminating parental authority under the
Revised Penal Code?
A.
When any ascendant, guardian, teacher or person entrusted un any

capacity with the care of a child under 16 years of age to deliver, either
gratuitously or in consideration of any price, compensation or promise
such child to any habitual vagrant or beggar, or to any person who,
being an acrobat, gymnast, rope-walker, diver, wild animal tamer or
circus manager or engaged in a similar calling who employs said
children in exhibitions.
Art. 233. The person exercising substitute parental
authority shall have the same authority over the person
of the child as the parents.
In no case shall the school administrator, teacher of
individual engaged in child care exercising special
parental authority inflict corporal punishment upon the
child. (n)
Q. May severe beating of a child be a ground to terminate parental

authority?
Q.
4B 2012
No, unless the circumstantial evidence is so strong and convincing that

the only conclusion that can be derived from the acts of the parents
would cause the child serious physical, mental, moral and emotional
harm. (Blore vs. John and Susan Z., 53 ALR 3d 592)
Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to
sexual abuse, such person shall be permanently deprived
by the court of such authority. (n)
The suspension or deprivation may be revoked and the

parental authority revived in a case filed for the purpose
or in the same proceeding if the court finds that the
cause therefor has ceased and will not be repeated. (33a)
CIVIL LAW REVIEW
PARENTAL AUTHORITY
What is corporal punishment under Art. 233?
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
305
Art. 228-233
PARENTAL AUTHORITY
306
profit or advantage therefrom.

A.
It is the infliction of physical disciplinary measures to a student.
Q.
May a teacher be held feloniously liable for the criminal offense of

slight physical injuries?
A.
No. Where there was no criminal intent on the part of the teacher and
where the purpose was to discipline a student. (Bagajo vs. Marave, 86
SCRA 389)
Q.
May parents inflict corporal punishment?
A.
Yes. Only persons exercising special parental authority cannot inflict

corporal punishment. Parents and persons exercising substitute
parental authority can inflict it but must do it in a reasonable manner
and not treat the child with excessive harshness or cruelty.
Q.
May parents be held criminally liable?
A.
Yes, upon commission of the acts enumerated under Art. 59 of PD 603.
REPUBLIC ACT NO. 7610

Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act.
Q.
What is the legislation for the protection of children?
A.
On June 17, 1992, President Corazon Aquino approved Republic Act

Number 7610, otherwise known as the Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act.
Q.
Are children in prostitution criminals?
A.
No, they are deemed children exploited in prostitution and other

sexual abuse. Penalty is imposed on those who 1) who engage in or
promote, facilitate or induce child prostitution 2) commit the act of
sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse (3) Those who derive
CIVIL LAW REVIEW
Q.
Who are children in prostitution?
A.
Under Article III, Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution
and other sexual abuse.
Q.
Who may be liable for an attempt to commit child prostitution?
A.
(1) any person who, not being a relative of a child, is found alone with
the said child inside the room or cubicle of a house, motel, hotel, or
other similar establishments, vessel, vehicle or any other hidden or
secluded area under circumstances which would lead a reasonable
person to believe that the child is about to be exploited in prostitution
and other sexual abuse.
(2) any person receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments.
Q.
What is child trafficking?
A.
It is committed by Any person who shall engage in trading and dealing

with children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration, or barter
Q.
May a child be employed?
A.
Yes, children below 15 years of age may be employed and only when
the following minimum requirements are present:
(a) The employer shall secure for a work permit from the Department
of Labor and Employment;
4B 2012
(b) The employer shall ensure the protection, health, safety, and
morals of the child;
(c) The employer shall institute measures to prevent exploitation or
discrimination taking into account the system and level of
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
307
Art. 228-233
308
remuneration, and the duration and arrangement of working time;

and
(c) Immediate notice of such arrest to the parents or guardian of the

child; and
(d) The employer shall formulate and implement continuous program

for training and skill acquisition of the child.
(d) Release of the child on recognizance within twenty- four (24) hours
to the custody of the Department of Social Welfare and Development
or any responsible member of the community as determined by the
court.
Q.
What is the prohibition on the employment of children?
A.
No person shall employ child models in all commercials or

advertisements promoting alcoholic beverages, intoxicating drinks,
tobacco and its by-products, and violence.
Q.
What are the protections given to children of indigenous cultural

communities?
A.
Children of indigenous cultural communities shall be entitled to

protection, survival and development consistent with the customs and
traditions of their respective communities. They are also protected
against any and all forms of discrimination. It is also the interest of
the state to provide them access to education and deliver basic social
services in health and nutrition.
Q.
What is the policy for children in situations of armed conflict?
A.
They are declared as Zones of Peace. Thus, it shall be the

responsibility of the State and all other sectors concerned to resolve
armed conflicts in order to promote the goal of children as zones of
peace. They shall be prioritized during evacuation as a result of armed
conflict.
Q. Who may file a complaint for unlawful acts committed against

children?
A.
The (a) Offended party; (b) Parents or guardians; (c) Ascendant or

collateral relative within the third degree of consanguinity; (d) Officer,
social worker or representative of a licensed child-caring institution; (e)
Officer or social worker of the Department of Social Welfare and
Development; (f) Barangay chairman; or (g) At least three (3)
concerned responsible citizens where the violation occurred.
Q.
How are the protection accorded to offended children after the filing of
a complaint against their offenders?
A.
(1) The offended party shall be immediately placed under the

protective custody of the Department of Social Welfare and
Development pursuant to Executive Order No. 56, series of 1986.
(2) At the instance of the offended party, his name may be withheld
from the public until the court acquires jurisdiction over the case.
(3) It shall be unlawful for any media to cause undue and
sensationalized publicity of any case of violation RA 7610 which
results in the moral degradation and suffering of the offended party.
Q. What are the rights of children arrested for reasons related to armed
conflict?
A.
PARENTAL AUTHORITY
Any child who has been arrested for reasons related to armed conflict,
either
as combatant, courier, guide or spy is entitled to the
following rights:
(4) Cases involving violations of RA 7610 shall be heard in the

chambers of the judge of the Regional Trial Court duly designated as
Juvenile and Domestic Relations Court.
(a) Separate detention from adults except where families are

accommodated as family units;
Q.
(b) Immediate free legal assistance;
CIVIL LAW REVIEW
RULES ON EXAMINATION OF A CHILD WITNESS
4B 2012
When is the rule on examination of child witnesses applicable?
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
309
Art. 228-233
A.
Examination of child witnesses who are victims, accused, and

witnesses to crime. It shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses
Q.
How shall the rule be construed?
A.
Liberally, to uphold the best interests of the child, and to promote

maximum accommodation of child witnesses, without prejudice to the
rights of the accused.
Q.
Who may be considered a child witness?
A.
Any person who, at the time of giving testimony, is below the age of 18
years. In child abuse cases, a child includes one over 18 years but is
found by the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation, or discrimination
because of a physical or mental disability or condition.
Q.
Who is a guardian ad litem?
A.
A person appointed by the court where the case is pending for a child
who is a victim of, accused of, or a witness to a crime to protect the best
interests of the said child.
Q.
What are the powers and functions of the Guardian Ad Litem?
A.
Section 5. Guardian ad litem.

(a) The court may appoint a guardian ad litem for a child who is a
victim of, accused of, or a witness to a crime to promote the best
interests of the child. In making the appointment, the court shall
consider the background of the guardian ad litem and his familiarity
with the judicial process, social service programs, and child
development, giving preference to the parents of the child, if qualified.
The guardian ad litem may be a member of the Philippine Bar. A
person who is a witness in any proceeding involving the child cannot
be appointed as a guardian ad litem.
CIVIL LAW REVIEW
PARENTAL AUTHORITY
310
4B 2012
(b) The guardian ad litem: (1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a child participates; (2) Shall
make recommendations to the court concerning the welfare of the
child; (3) Shall have access to all reports, evaluations, and records
necessary to effectively advocate for the child, except privileged
communications; (4) Shall marshal and coordinate the delivery of
resources and special services to the child; (5) Shall explain, in
language understandable to the child, all legal proceedings, including
police investigations, in which the child is involved; (6) Shall assist the
child and his family in coping with the emotional effects of crime and
subsequent criminal or non-criminal proceedings in which the child is
involved; (7) May remain with the child while the child waits to testify;
(8) May interview witnesses; and (9) May request additional
examinations by medical or mental health professionals if there is a
compelling need therefor.
(c) The guardian ad litem shall be notified of all proceedings but shall
not participate in the trial. However, he may file motions pursuant to
sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer,
he may object during trial that questions asked of the child are not
appropriate to his developmental level.
(d) The guardian ad litem may communicate concerns regarding the
child to the court through an officer of the court designated for that
purpose.
(e) The guardian ad litem shall not testify in any proceeding
concerning any information, statement, or opinion received from the
child in the course of serving as a guardian ad litem, unless the court
finds it necessary to promote the best interests of the child.
(f) The guardian ad litem shall be presumed to have acted in good faith
in compliance with his duties described in sub-section (b).
Q.
What are the best interests of the child?
A.
The totality of the circumstances and conditions as are most congenial

to the survival, protection, and feelings of security of the child and
most encouraging to his physical, psychological, and emotional
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
311
Art. 228-233
development. It also means the least detrimental available alternative

for safeguarding the growth and development of the child.
Every child is presumed qualified to be a witness. However, the court

shall conduct a competency examination of a child, motu proprio or on
motion of a party, when it finds that substantial doubt exists regarding
the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the
truth in court.
Q.
Who must prove the need for competency examinations?
A.
A party seeking a competency examination must present proof of

necessity of competency examination. The age of the child by itself is
not a sufficient basis for a competency examination. Moreover, to rebut
the presumption of competence enjoyed by a child, the burden of proof
lies on the party challenging his competence.
Q.
Is the competency examination a final determination as to the

competence of the child?
A.
No. The court has the duty of continuously assessing the competence of
the child throughout his testimony.
Q.
When may the court appoint an interpreter for the child?
A.
Section 9. Interpreter for child. (a) When a child does not understand the English or Filipino language
or is unable to communicate in said languages due to his
developmental level, fear, shyness, disability, or other similar reason,
an interpreter whom the child can understand and who understands
the child may be appointed by the court, motu proprio or upon motion,
to interpret for the child.
(b) If a witness or member of the family of the child is the only person
CIVIL LAW REVIEW
312
who can serve as an interpreter for the child, he shall not be

disqualified and may serve as the interpreter of the child. The
interpreter, however, who is also a witness, shall testify ahead of the
child
Q. What is the rule with regard to the qualification of the child as a

witness?
A.
PARENTAL AUTHORITY
4B 2012
(c) An interpreter shall take an oath or affirmation to make a true and

accurate interpretation.
Q.
When may the court appoint a facilitator to ask questions to the child?
A.
Section 10. Facilitator to pose questions to child.

(a) The court may, motu proprio or upon motion, appoint a facilitator if
it determines that the child is unable to understand or respond to
questions asked. The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor, teacher, religious
leader, parent, or relative.
(b) If the court appoints a facilitator, the respective counsels for the
parties shall pose questions to the child only through the facilitator.
The questions shall either be in the words used by counsel or, if the
child is not likely to understand the same, in words that are
comprehensible to the child and which convey the meaning intended
by counsel.
(c) The facilitator shall take an oath or affirmation to pose questions to
the child according to the meaning intended by counsel.
Q.
Who is a support person?
A.
Person chosen by the child to accompany him to testify at or attend a

judicial proceeding or disposition to provide emotional support for him.
Q.
What are the rules relevant to support persons?
A.
Section 11. Support persons.

(a) A child testifying at a judicial proceeding or making a deposition
shall have the right to be accompanied by one or two persons of his
own choosing to provide him emotional support. (1) Both support
persons shall remain within the view of the child during his testimony.
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
313
Art. 228-233
314
(2) One of the support persons may accompany the child to the witness
stand, provided the support person does not completely obscure the
child from the view of the opposing party, judge, or hearing officer. (3)
The court may allow the support person to hold the hand of the child
or take other appropriate steps to provide emotional support to the
child in the course of the proceedings. (4) The court shall instruct the
support persons not to prompt, sway, or influence the child during his
testimony.
A.
Yes. The court shall permit a child to use dolls, anatomically-correct

dolls, puppets, drawings, mannequins, or any other appropriate
demonstrative device to assist him in his testimony.
Q.
May the child be allowed to have an emotional security item?
A.
Yes. While testifying, a child shall be allowed to have an item of his

own choosing such as a blanket, toy, or doll.
(b) If the support person chosen by the child is also a witness, the court
may disapprove the choice if it is sufficiently established that the
attendance of the support person during the testimony of the child
would pose a substantial risk of influencing or affecting the content of
the testimony of the child.
Q.
Does the examination of the child need to follow strictly the usual
procedure for examination of witnesses?
A.
No. Some exceptions are:

1. The court may allow leading questions in all stages of examination
of a child if it will further the interests of justice
2. The court may allow the child witness to testify in a narrative form
3. Objections must be couched in a manner so as not to mislead,
confuse, frighten, or intimidate the child.
Q.
Does the child witness testimony need to be corroborated?
A.
No. His / her testimony, if credible by itself, shall be sufficient.
Q.
On what grounds may the court exclude the public during the
examination of a child witness?
A.
Such an order may be made to protect the right to privacy of the child
or if the court determines on the record that requiring the child to
testify in open court would cause psychological harm to him, hinder
the ascertainment of truth, or result in his inability to effectively
communicate due to embarrassment, fear, or timidity.
Q.
Does the child need to testify inside the courtroom?
A.
No. The prosecutor, counsel or the guardian ad litem may apply for an
order that the testimony of the child be taken in a room outside the
courtroom and be televised to the courtroom by live-link television.
Also, the judge may question the child in chambers, or in some
Q.
May the courtroom environment be adjusted to make the child more

comfortable?
A.
Yes. Section 13 says: To create a more comfortable environment for

the child, the court may, in its discretion, direct and supervise the
location, movement and deportment of all persons in the courtroom
including the parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The child may be
allowed to testify from a place other than the witness chair. The
witness chair or other place from which the child testifies may be
turned to facilitate his testimony but the opposing party and his
counsel must have a frontal or profile view of the child during the
testimony of the child. The witness chair or other place from which the
child testifies may also be rearranged to allow the child to see the
opposing party and his counsel, if he chooses to look at them, without
turning his body or leaving the witness stand. The judge need not
wear his judicial robe. Nothing in this section or any other provision of
law, except official in-court identification provisions, shall be construed
to require a child to look at the accused. Accommodations for the child
under this section need not be supported by a finding of trauma to the
child.
Q.
PARENTAL AUTHORITY
May the child use testimonial aids during his / her testimony?
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
315
Art. 228-233
comfortable place other than the courtroom, in the presence of the

support person, guardian ad litem, prosecutor, and counsel for the
parties. The questions of the judge shall not be related to the issues at
trial but to the feelings of the child about testifying in the courtroom.
Q.
What are the grounds to allow testimony by live-link television?
A.
If there is a substantial likelihood that the child would suffer trauma

from testifying in the presence of the accused, his counsel or the
prosecutor as the case may be.
Q.
What other similar measures may the court take aside from live-link
television?
A.
The prosecutor or the guardian ad litem may apply for an order that
the chair of the child or that a screen or other device be placed in the
courtroom in such a manner that the child cannot see the accused
while testifying. If the court grants an application to shield the child
from the accused while testifying in the courtroom, the courtroom shall
be arranged to enable the accused to view the child.
316
Q.
What is the Sexual Abuse Shield Rule?
A.
Section 30. Sexual abuse shield rule. (a) Inadmissible evidence. - The following evidence is not admissible in
any criminal proceeding involving alleged child sexual abuse: (1)
Evidence offered to prove that the alleged victim engaged in other
sexual behavior; and (2) Evidence offered to prove the sexual
predisposition of the alleged victim.
(b) Exception. - Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of semen, injury, or other physical evidence shall be admissible.
A party intending to offer such evidence must: (1) File a written
motion at least fifteen (15) days before trial, specifically describing the
evidence and stating the purpose for which it is offered, unless the
court, for good cause, requires a different time for filing or permits
filing during trial; and (2) Serve the motion on all parties and the
guardian ad litem at least three (3) days before the hearing of the
motion. Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad litem, the
parties, and their counsel a right to attend and be heard. The motion
and the record of the hearing must be sealed and remain under seal
and protected by a protective order set forth in section 31(b). The child
shall not be required to testify at the hearing in chambers except with
his consent.
Q. May the testimony of the child be given through videotaped

deposition?
A.
Yes. If the court finds that the child will not be able to testify in open
court at trial, it shall issue an order that the deposition of the child be
taken and preserved by videotape.
Q.
Does the hearsay rule apply to childrens testimony?
A.
Not strictly, in child abuse cases. A statement made by a child

describing any act or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted in evidence in any
criminal or non-criminal proceeding subject to certain rules found in
Section 28 (a)
Q.
May the court admit videotape and audiotape interviews as evidence?
A.
Yes, under certain conditions imposed under Section 29.
CIVIL LAW REVIEW
PARENTAL AUTHORITY
4B 2012
Q.
How is the privacy of the child protected?
A.
Any records regarding the child shall be confidential and kept under
seal. Except upon written request and order of the court, the record
may only be released to certain persons under Section 31(a). Moreover,
any videotape or audiotape of a child that is part of the court record
shall be under a protective order as provided by Section 31(b). The
court may issue additional protection orders to protect the childs
privacy. Whoever publishes or causes to be published the identifying
information of the child or the immediate family of the child shall be
liable to the contempt power of the court. Any videotape or audiotape
CIVIL LAW REVIEW
4B 2012
Art. 228-233
PARENTAL AUTHORITY
317
Art. 234-237
EMANCIPATION AND AGE OF MAJORITY
318
of a child made part of the court record shall be destroyed after 5 years
from the date of entry of judgment.
Q.
How are the ordinary rules of Court applied?
A.
Suppletorily.
TITLE X
EMANCIPATION AND AGE OF MAJORITY
Art. 234. Emancipation takes place by the attainment of
majority.
Unless
otherwise
provided,
majority
commences at the age of twenty-one years.
Emancipation also takes place:
(1) By the marriage of the minor; or
(2) By the recording in the Civil Register of an
agreement in a public instrument executed by the parent
exercising parental authority and the minor at least
eighteen years of age. Such emancipation shall be
irrevocable. (397a, 398a, 400a, 401a)
Art. 235. The provisions governing emancipation by
recorded agreement shall also apply to an orphan minor
and the person exercising parental authority but the
agreement must be approved by the court before it is
recorded. (n)
Q.
Define emancipation?
A.
Emancipation takes place by the attainment of majority. In the

Philippines, majority is attained at the age of 18 years.
Art. 236. Emancipation for any cause shall terminate
parental authority over the person and property of the
child who shall then be qualified and responsible for all
acts of civil life. (412a)
CIVIL LAW REVIEW
4B 2012
Q.
What happens when a person between 18 to 21 decides to marry

without the consent of his/her parents? Is the marriage valid, void, or
voidable?
A.
Valid, Art. 236 of the Family Code does not make parental consent an
essential requirement nor a formal requirement of marriage in the
sense that its absence will render the marriage void. The requirement
of parental consent in case of marriage is a recognition of Filipino
culture and tradition.
Art. 237. The annulment or declaration of nullity of the
marriage of a minor or of the recorded agreement
mentioned in the foregoing. Articles 234 and 235 shall
revive the parental authority over the minor but shall
not affect acts and transactions that took place prior to
the recording of the final judgment in the Civil Register.
(n)
TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Chapter 1
Prefatory Provisions
Art. 238. Until modified by the Supreme Court, the
procedural rules provided for in this Title shall apply as
regards separation in fact between husband and wife,
abandonment by one of the other, and incidents
involving parental authority. (n)
Chapter 2
Separation in Fact
Art. 239. When a husband and wife are separated in fact,
or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the
CIVIL LAW REVIEW
4B 2012
Art. 238-253 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
319
consent of the other spouse is required by law but such

consent is withheld or cannot be obtained, a verified
petition may be filed in court alleging the foregoing facts.
Art. 243. A preliminary conference shall be conducted by

the judge personally without the parties being assisted
by counsel. After the initial conference, if the court
deems it useful, the parties may be assisted by counsel at
the succeeding conferences and hearings. (n)
The petition shall attach the proposed deed, if any,

embodying the transaction, and, if none, shall describe in
detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case,
the final deed duly executed by the parties shall be
submitted to and approved by the court. (n)
Q.
A.
Art. 244. In case of non-appearance of the spouse whose

consent is sought, the court shall inquire into the reasons
for his failure to appear, and shall require such
appearance, if possible. (n)
What is the remedy of a wife separated in fact with his husband who
wants a portion of their conjugal partnership of gains disposed to
support the needs of their child when the husband, just to spite the
wife, does not agree to the alienation?
Art. 245. If, despite all efforts, the attendance of the nonconsenting spouse is not secured, the court may proceed
ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall
endeavor to protect the interests of the non-appearing
spouse. (n)
The wife may seek judicial approval (Art. 239). The petition should be
verified and must detail the transaction and state the reason why the
required consent thereto cannot be secured.
Art. 246. If the petition is not resolved at the initial

conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence
or oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses
to be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses. (n)
Art. 240. Claims for damages by either spouse, except

costs of the proceedings, may be litigated only in a
separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon proof
of notice to the other spouse, be exercised by the proper
court authorized to hear family cases, if one exists, or in
the regional trial court or its equivalent sitting in the
place where either of the spouses resides. (n)
Art. 242. Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the transaction
is required, of said petition, ordering said spouse to show
cause why the petition should not be granted, on or
before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of
the petition and shall be served at the last known
address of the spouse concerned. (n)
CIVIL LAW REVIEW
4B 2012
320
Q. What is the nature of proceedings for cases involving properties of

spouses?
A.
Summary proceedings. (Art. 246)

Art. 247. The judgment of the court shall be immediately
final and executory. (n)
Art. 248. The petition for judicial authority to administer
or encumber specific separate property of the
abandoning spouse and to use the fruits or proceeds
CIVIL LAW REVIEW
4B 2012
321
thereof for the support of the family shall also be

governed by these rules. (n)
Civil Code of the Philippines, as amended, and Articles

17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential
Decree No. 603, otherwise known as the Child and Youth
Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules and regulations,
or parts thereof, inconsistent herewith are hereby
repealed.
Chapter 3. Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of
this Code involving parental authority shall be verified..
(n)
Art. 255. If any provision of this Code is held invalid, all

the other provisions not affected thereby shall remain
valid.
Art. 250. Such petitions shall be verified and filed in the

proper court of the place where the child resides. (n)
Art. 251. Upon the filing of the petition, the court shall
notify the parents or, in their absence or incapacity, the
individuals, entities or institutions exercising parental
authority over the child. (n)
Art. 256. This Code shall have retroactive effect insofar as

it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other laws.
Art. 257. This Code shall take effect one year after the
completion of its publication in a newspaper of general
circulation, as certified by the Executive Secretary,
Office of the President.
Art. 252. The rules in Chapter 2 hereof shall also govern

summary proceedings under this Chapter insofar as they
are applicable. (n)
Q.
How about cases involving parental authority?
A.
Summary proceedings. This is for the benefit of the child. (Art 252)
Publication shall likewise be made in the Official

Gazette.
R.A. No. 8369
FAMILY COURTS
Chapter 3
Incidents Involving Parental Authority
Art. 253. The foregoing rules in Chapter 2 and 3 hereof
shall likewise govern summary proceedings filed under
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.
TITLE XII
FINAL PROVISIONS
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of
Book I of Republic Act No. 386, otherwise known as the
CIVIL LAW REVIEW
322
4B 2012
Q.
Where shall Family Courts be established?
A.
It shall be established in every province and city in the country. If the

city is the capital of the province, the Family Court shall be
established in the municipality with the highest population. (Sec. 3)
Q.
What are the qualifications of Family Court Judges?
A.
He/she must be a natural-born citizen of the Philippines, at least 35

years of age, and has been engaged in the practice of law in the
Philippines for at least 10 years, or has held a public office in the
CIVIL LAW REVIEW
4B 2012
FAMILY COURTS
323
Philippines which requires admission to the practice of law as an

indispensable requisite. (Sec. 4)
FAMILY COURTS
Q.
What is the Social Services Counseling Division (SSCD)?
A.
The SSCD, under the guidance of the DSWD, as established in each

judicial region as the Supreme Court deems necessary, is tasked with
providing appropriate social services to all juvenile and family cases
filed with the court and recommend the proper social action. It shall
also develop programs, formulate uniform policies and procedures, and
provide technical supervision and monitoring of all SSCD in
coordination with the judge. (Sec. 9)
Q.
What is the composition of the SSCD?
A.
The SSCD shall be composed of qualified social workers and other

personnel with academic preparation in behavioral sciences. (Sec. 9)
Q.
In areas where there is no Family Court, who handles juvenile and

family cases filed in the RTC?
A.
The DSWD shall designate and assign qualified workers of the local
government units. (Sec. 10)
Q.
How are the decisions and orders of the Family Courts appealed?
A.
They shall be appealed in the same manner and subject to the same
conditions as appeals from the ordinary RTC. (Sec. 14)
Q. What are the cases falling under the exclusive jurisdiction of Family
Courts?
A.
See Section 5 of RA 8369.
Q.
What are the cases falling under the concurrent jurisdiction of Family
Courts?
A.
In cases of habeas corpus involving minors, Family Courts, the

Supreme Court, and the Court of Appeals have concurrent jurisdiction.
(Madrinan v Madrinan, GR No. 159374, July 12, 2007, 527 SCRA
487)
Q. What are the special provisional remedies which a Family Court may
grant?
A.
Family Court may issue a restraining order in cases of violence among

immediate family members living in the same domicile or household.
It may also order the temporary custody of children in all civil action
for their custody. The court may also order support pendent lite,
including deduction from salary and use of conjugal home and other
properties in all civil actions for support. (Sec. 7)
Q.
When can a Family Court issue a restraining order?
A.
The Family Court may issue restraining order against the accused or
defendant upon verified application or defendant upon a verified
application by the complainant or the victim for relief from abuse. (Sec.
7)
TITLE X
FUNERALS
Q.
Who has direct control and supervision of youth detention homes

established by the LGU?
A.
The judge of the Family Court. (Sec. 8)
CIVIL LAW REVIEW
324
Article 305. The duty and the right to make

arrangements for the funeral of a relative shall be in
accordance with the order established for support, under
article 294. In case of descendants of the same degree, or
of brothers and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall have a better right.
Q. Who has the duty and the right to make arrangements for a deceased
relatives funeral?
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 305-310
325
Art. 305-310
Funerals
A.
326
Funerals
This duty and right shall fall first on the spouse; and in his or her
absence or incapacity, on the descendants in the nearest degree. In
their absence or incapacity, it shall fall on the ascendants in the
nearest degree and the paternal shall be preferred. In the absence of
all these persons, the duty and right shall fall on the brothers and
sisters and the oldest shall be preferred. (Art. 294 and 305)
Q.
What happens if a person allows disrespect to the dead or wrongfully

interferes with a funeral?
A.
That person shall be made liable to the family of the deceased for
material and moral damages. (Art. 309)
Article 310. The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.
Article 306. Every funeral shall be in keeping with the

social position of the deceased.
Article 307. The funeral shall be in accordance with the
expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of
the funeral shall be decided upon by the person obliged
to make arrangements for the same, after consulting the
other members of the family.
Q.
How shall the expenses for the construction of a tombstone or

mausoleum be treated?
A.
They are deemed part of the funeral expenses. If the deceased is one of
the spouses shall be chargeable to the conjugal partnership property.
TITLE XII
CARE AND EDUCATION OF CHILDREN
Q.
How shall the funeral rites be executed?
A.
The funeral shall be in keeping with the social position of the deceased.
The expressed wishes of the deceased shall be primarily followed. In
its absence, is/her religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the of the funeral shall be
decided by the person obliged to make the arrangements, after
consulting with the other family members. (Art. 307)
Article 308. No human remains shall be retained,
interred, disposed of or exhumed without the consent of
the persons mentioned in articles 294 and 305.
Article 309. Any person who shows disrespect to the
dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages, material
and moral.
Article 356. Every child:

(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the
parents or guardian;
(4) Has a right to live in an atmosphere conducive to
his physical, moral and intellectual development.
Q.
What are the rights of a child?
A.
Every child is entitled to (1) parental care, (2) receive at least

elementary education, (3) moral and civic training by parents or
guardians, and (4) the right to live in an atmosphere conducive to his
physical, moral and intellectual development. (Art. 356)
Article 357. Every child shall:
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 356-363
327
Art. 356-363
Care and Education of Children
328
(1) Obey and honor his parents or guardian;

(2) Respect his grandparents, old relatives, and
persons holding substitute parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that
make for the good of the same.
Q.
What are the duties of a child?
A.
Every child shall: (1) obey and honor his parents or guardians, (2)
respect his grandparents, old relatives , and persons holding substitute
parental authority, (3) exert utmost for his education and training, and
(4) cooperate with the family in all matters that make for the good of
the same. (Art. 357)
(1) Schools in every barrio, municipality and city

where optional religious instruction shall be taught as
part of the curriculum at the option of the parent or
guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Q.
What is the responsibility of the government to the child?
A.
The government promotes the faculties of every child. Whenever

possible, it shall establish (1) schools in every barrio, municipality and
city where religious instruction shall be taught at the option of the
parents or guardians (2) puericulture and similar centers, (3) Council
for the Protection of Children And (3) Juvenile Courts. (Art. 359)
Article 358. Every parent and every person holding

substitute parental authority shall see to it that the
rights of the child are respected and his duties complied
with, and shall particularly, by precept and example,
imbue the child with highmindedness, love of country,
veneration for the national heroes, fidelity to democracy
as a way of life, and attachment to the ideal of permanent
world peace.
Q.
What are the responsibilities of a parent and every person holding

substitute parental authority?
A.
They shall see to it that the rights of the child are respected and his
duties complied with. They shall, by example, imbue the child with
high mindedness, love of country, veneration for national heroes,
fidelity to democracy as a way of life, and attachment to the ideal of
permanent world peace. (Art. 358)
Article 359. The government promotes the full growth of
the faculties of every child. For this purpose, the
government will establish, whenever possible:
CIVIL LAW REVIEW
4B 2012
Article 360. The Council for the Protection of Children

shall look after the welfare of children in the
municipality. It shall, among other functions:
(1) Foster the education of every child in the
municipality;
(2) Encourage the cultivation of the duties of
parents;
(3) Protect and assist abandoned or mistreated
children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of
playgrounds;
(7) Coordinate the activities of organizations
devoted to the welfare of children, and secure their
cooperation.
Q.
What is the Council for the Protection of Children?
CIVIL LAW REVIEW
4B 2012
Art. 356-363
329
Art. 407-413
A.
330
Civil Register
It is the body entrusted with the function to look after the welfare of
the children in the municipality. See Article 360 for the enumeration of
the functions of the Council.
A.
1) The given or proper name and 2) the surname or family name. The
given or proper name is that which is given to the individual at birth
or at baptism. The surname or family is that which identifies the
family to which he belongs and is continued from parent to child. (In
the matter of the adoption of Stephanie Nathy Astorga Garcia 454
SCRA 541 March 31, 2005)
Article 361. Juvenile courts will be established, as far as

practicable, in every chartered city or large municipality.
Q.
What happens if a child is found delinquent by any court?
Q.
How is ones name constituted?
A.
The father, mother, or guardian may, in proper cases, be judicially

admonished. (Art. 361)
A.
The given name may be freely selected by the parents for the child
while the surname is fixed by law.
Article 362. Whenever a child is found delinquent by any

court, the father, mother, or guardian may in a proper
case be judicially admonished.
Q.
What is the significance of the middle name of a person?
A.
It serves to identify the maternal lineage or filiation of a person and

further distinguishes the person from another who may have the same
given and surname.
Article 363. In all questions on the care, custody,

education and property of children the latter's welfare
shall be paramount. No mother shall be separated from
her child under seven years of age, unless the court finds
compelling reasons for such measure.
Q. May a legitimate / legitimated child use the surname of his / her

mother?
A.
Q.
What shall be considered in questions of care, custody, education and

property of children?
A.
In such cases, the childs welfare is paramount. In cases of custody, the

mother shall not be separated from her child, unless the court finds
compelling reasons for such measure. (Art. 363)
TITLE XIII
USE OF SURNAMES
Article 364. Legitimate and legitimated children shall
principally use the surname of the father.
Q.
Article 365. An adopted child shall bear the surname of

the adopter.
Article 366. A natural child acknowledged by both
parents shall principally use the surname of the father. If
recognized by only one of the parents, a natural child
shall employ the surname of the recognizing parent.
Article 367. Natural children by legal fiction shall
principally employ the surname of the father.
What constitutes the name of an individual?
CIVIL LAW REVIEW
Yes. The word principally in Art.364 is not equivalent to

exclusively. There is no legal bar to a child who opts to choose the
surname of his / her mother. (Alfon v. Republic 97 SCRA 858 May 29,
1980)
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 407-413
331
Art. 407-413
Civil Register
332
Civil Register
Article 368. Illegitimate children referred to in article 287

shall bear the surname of the mother.
Article 371. In case of annulment of marriage, and the

wife is the guilty party, she shall resume her maiden
name and surname. If she is the innocent spouse, she
may resume her maiden name and surname. However,
she may choose to continue employing her former
husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to
another person.
Article 369. Children conceived before the decree

annulling a voidable marriage shall principally use the
surname of the father.
Q.
May illegitimate children use the surname of their father?
A.
Yes. Illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through the
record of birth appearing in the civil register or when an admission in
a public document or private handwritten instrument is made by the
father.
Article 372. When legal separation has been granted, the

wife shall continue using her name and surname
employed before the legal separation.
Article 370. A married woman may use:

(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's
surname or
(3) Her husband's full name, but prefixing a word
indicating that s
she is his wife, such as "Mrs."
Article 373. A widow may use the deceased husband's

surname as though he were still living, in accordance
with article 370.
Q.
May a married woman maintain her name and surname?
A.
Yes. Art. 370 is directory and permissive in character. A married

woman can maintain her name and surname or follow any of the
names in Art. 370.
Article 375. In case of identity of names and surnames

between ascendants and descendants, the word "Junior"
can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Q.
May a married woman who used her husbands surname in her

passport revert to using her maiden surname in case of renewal?
A.
No. Under R.A No. 8239, a married woman who initially used the
surname of her husband in her passport can revert to her maiden
surname in subsequent renewals only if the marriage were annulled
or nullified or the woman obtained a valid divorce abroad. (Remo v.
Honorable Secretary of Foreign Affairs, GR No.169202, March 5, 2010)
CIVIL LAW REVIEW
4B 2012
Article 374. In case of identity of names and surnames,

the younger person shall be obliged to use such
additional name or surname as will avoid confusion.
Q.
May a female person use the word Junior in her name?
A.
No. Under Art. 375, the word Junior can be used only by a son. N.B:
RA No. 10172 has amended Sec.1 of RA No. 9048, SECTION 1.
Authority to Correct Clerical or Typographical Error and Change of
First Name or Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
CIVIL LAW REVIEW
4B 2012
Art. 407-413
333
Art. 407-413
Civil Register
334
Civil Register
typographical errors and change of first name or nickname, the day

and month in the date of birth or sex of a person where it is
patently clear that there was a clerical or typographical error
or mistake in the entry, which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules
and regulations.
Article 376. No person can change his name or surname
without judicial authority.
there is no injury to third persons. Pen names and stage

names cannot be usurped.
Article 380. Except as provided in the preceding article,
no person shall use different names and surnames.
Q.
Is the employment of pen names or stage names allowed?
A.
Yes. Provided that it is done in good faith and there is no injury to

third persons.
Article 377. Usurpation of a name and surname may be

the subject of an action for damages and other relief.
TITLE XIV
ABSENCE
Article 378. The unauthorized or unlawful use of another

person's surname gives a right of action to the latter.
Chapter 1
Provisional Measures in Case of Absence
Q.
May a male person who became biologically a woman through sexual

reassignment use this as a ground to change his name?
A.
No. A persons sex is immutable from birth. (Silverio v. Republic 537

SCRA 373 October 19, 2007) N.B: In Republic v. Cagandahan (565
SCRA 72), a change was allowed by the S.C where the person did not
undergo sexual reassignment in a case where the person was found to
have Congenital Adrenal Hyperplasia (CAH) which was a rare
biological condition where the person had the sex organs of a male and
a female, had no menstruation, no breasts as a woman, and was
wanting in woman-hormones.
Q.
Does a change of name alter the status of persons?
A.
No. A change of name does not alter family relations, rights or duties,
legal capacity, civil status or citizenship. (Calderon v. Republic, 19
SCRA 721)
Article 381. When a person disappears from his domicile,

his whereabouts being unknown, and without leaving an
agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend,
may appoint a person to represent him in all that may be
necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired. (181a)
Article 382. The appointment referred to in the preceding
article having been made, the judge shall take the
necessary measures to safeguard the rights and interests
of the absentee and shall specify the powers, obligations
and remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning
guardians. (182)
Article 379. The employment of pen names or stage

names is permitted, provided it is done in good faith and
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 407-413
335
Art. 407-413
Civil Register
Article 383. In the appointment of a representative, the

spouse present shall be preferred when there is no legal
separation.
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the
court. (183a)
Q.
Is court appointment of a representative necessary?
A.
33
Yes. It should be by way of a court order. Ablang v. Fernandez, 25 Phil.
Q.
Is the phrase spouse present is a minor still effective?
A.
No. It has been repealed by R.A. No. 6809 which lowered the
emancipation age to 18.
Chapter 2
Declaration of Absence
Article 384. Two years having elapsed without any news
about the absentee or since the receipt of the last news,
and five years in case the absentee has left a person in
charge of the administration of his property, his absence
may be declared. (184)
Article 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present
an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition of his
death. (185)
CIVIL LAW REVIEW
336
Civil Register
4B 2012
Article 386. The judicial declaration of absence shall not

take effect until six months after its publication in a
newspaper of general circulation. (186a)
Q.
Whose interests does a Judicial Declaration of absence protect?
A.
Interested persons, including the absentee.
Q. What is the effect of a Judicial Declaration of absence to the present

spouse?
A.
It is a cause for an involuntary judicial separation of property between

spouses under Art. 135 of the Family Code. Furthermore, it is a
ground for the transfer of all classes of exclusive properties of a spouse
to his or her other spouse under Art. 142 of the Family Code. Lastly, it
is a basis for the termination of parental authority under Art. 224 of
the Family Code.
Q.
When should the absence of the absentee be counted?
A.
Date on which the last news of the absentee was received. (Jones v.
Hortiguela, 64 Phil. 179)
Chapter 3
Administration of the Property of the Absentee
Article 387. An administrator of the absentee's property
shall be appointed in accordance with article 383. (187a)
Article 388. The wife who is appointed as an
administratrix of the husband's property cannot alienate
or encumber the husband's property, or that of the
conjugal partnership, without judicial authority. (188a)
Q.
Does Art. 388 likewise prohibit the husband from alienating properties
of the wife without her consent?
CIVIL LAW REVIEW
4B 2012
Art. 407-413
337
Art. 407-413
Civil Register
A.
338
Civil Register
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. (n)
Yes. Under the Family Code, rights of the spouses as to their

respective exclusive properties are respected.
Article 389. The administration shall cease in any of the
following cases:
(1) When the absentee appears personally or by
means of an agent;
(2) When the death of the absentee is proved and his
testate or intestate heirs appear;
(3) When a third person appears, showing by a
proper document that he has acquired the
absentee's property by purchase or other title.
Article 392. If the absentee appears, or without appearing

his existence is proved, he shall recover his property in
the condition in which it may be found, and the price of
any property that may have been alienated or the
property acquired therewith; but he cannot claim either
fruits or rents. (194)
In these cases the administrator shall cease in the

performance of his office, and the property shall be at the
disposal of those who may have a right thereto. (190)
Q.
What is the purpose of appointing an administrator?
A.
Protect the properties of the owner during his/her absence.
Q.
How should absence be understood?
Chapter 4
Presumption of Death
A.
A person is not at the place of his domicile and his actual residence is
unknown, and it is for this reason that his existence is doubtful.
Article 390. After an absence of seven years, it being

unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of
succession.
Q.
Is mere removal alone sufficient?
A.
No. Gorham v. Settegast, 98 SW 655
Q.
Do you need to file a case to declare the presumption of death?
A.
General rule, No. Except for purposes of remarriage under Art. 41 of

Family Code.
Q.
Can a person claim under Art. 391 when a person fell into the sea
while on board a vessel and consequently drowned?
The absentee shall not be presumed dead for the purpose

of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order
that his succession may be opened. (n)
CIVIL LAW REVIEW
4B 2012
CIVIL LAW REVIEW
4B 2012
Art. 407-413
339
Art. 407-413
Civil Register
A.
No because the vessel was not lost during a sea voyage. Caltex v.
Villanueva, 2 SCRA 897
Q.
When does the presumption of death start?
lapse of time fixed for prescription. In the record that is

made in the Registry of the real estate which accrues to
the coheirs, the circumstance of its being subject to the
provisions of this article shall be stated. (197)
A.
Time when the person was last heard of and not at the end of the
period.
Article 396. Those who may have entered upon the

inheritance shall appropriate the fruits received in good
faith so long as the absentee does not appear, or while his
representatives or successors in interest do not bring the
proper actions. (198)
Chapter 5. Effect of Absence Upon the Contingent Rights of the

Absentee
Article 393. Whoever claims a right pertaining to a
person whose existence is not recognized must prove
that he was living at the time his existence was necessary
in order to acquire said right. (195)
Q.
A.
X made a donation of a house to Y to be given on January 5, 1990 and

likewise promised to give another donation of a specific car also to Y in
the event that Y would still be alive by January 2, 1991. If after
December 25, 1990, Y was nowhere to be found, what are the rights of
the heirs?
The heirs of Y can claim that the car already belongs to Y after
January 2, 1991 by proving that Y was alive on such date.
Article 394. Without prejudice to the provision of the
preceding article, upon the opening of a succession to
which an absentee is called, his share shall accrue to his
coheirs, unless he has heirs, assigns, or a representative.
They shall all, as the case may be, make an inventory of
the property. (196a)
Article 395. The provisions of the preceding article are
understood to be without prejudice to the action of
petition for inheritance or other rights which are vested
in the absentee, his representatives or successors in
interest. These rights shall not be extinguished save by
CIVIL LAW REVIEW
340
Civil Register
4B 2012
TITLE XVI
CIVIL REGISTER
Article 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register. (325a)
Q.
What are the duties of the local civil registrar?
A.
a. file registerable certificates and documents presented to them for
entry;
b. compile the same monthly and prepare and send any information
required of them by the Civil Registrar General;
c. issue certified transcripts or copies of any certificate or document
registered, upon payment of the proper fees;
d. order the binding, properly classified, of all certificates or documents
registered during the year;
e. send to the Civil Registrar-General during the first ten days of each
month, a copy of the entries made during the preceding month, for
filing;
f. index the same to facilitate search and identification in case any
information is required; and
g. administer oaths, free of charge, for civil register purposes (Section 12
of the Civil Registry Law, Act No. 3753).
CIVIL LAW REVIEW
4B 2012
Art. 407-413
341
Art. 407-413
Civil Register
Article 408. The following shall be entered in the civil

register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship;
(13) civil interdiction; (14) judicial determination of
filiation; (15) voluntary emancipation of a minor; and (16)
changes of name. (326a)
Article 409. In cases of legal separation, adoption,
naturalization and other judicial orders mentioned in
the preceding article, it shall be the duty of the clerk of
the court which issued the decree to ascertain whether
the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry of
the city or municipality where the court is functioning.
(n)
Article 410. The books making up the civil register and
all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained. (n)
Q. Can the local civil registrar allow the removal of documents
entrusted to his
care?
A.
No except by court order.
Q.
Does the Civil Register Law provide for constructive notice to all
persons of any document filed in the Office of the Local Civil Registrar
or Office of the Civil Registrar General?
A.
No.
Q.
What does prima facie evidence mean?
CIVIL LAW REVIEW
342
Civil Register
4B 2012
A.
Proofs which, if remaining unrebutted or uncontradicted, is sufficient

to maintain the fact such evidence seeks to substantiate. It creates a
presumption of fact. Malicden v. Republic, 12 SCRA 313
Article 411. Every civil registrar shall be civilly
responsible for any unauthorized alteration made in any
civil register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
alteration. (n)
Article 412. No entry in a civil register shall be changed
or corrected, without a judicial order. (n)
Q.
Is Art. 412 still good law?
A.
No. It has been amended by R.A. No. 9048
Q.
What does clerical error mean?
A.
Error in copying or writing. (Yu v. Republic 21 SCRA 1018)
Q.
Does a change in civil status and nationality involve a clerical error?
A.
No. It is a substantial change which has to pass through judicial
proceedings
Article 413. All other matters pertaining to the
registration of civil status shall be governed by special
laws. (n)
CIVIL LAW REVIEW
4B 2012
Art. 407-413
343
Civil Register
CIVIL LAW REVIEW
4B 2012

Persons Primer

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Persons Primer

Enviado por

Direitos autorais:

Formatos disponíveis

PERSONS AND FAMILY

CIVIL LAW REVIEW 2012

Atty. MELENCIO S. STA.MARIA, JR.

THE FAMILY CODE OF THE PHILIPPINES

TITLE VII. ADOPTION (Articles 183 to 193)

A law may be given retroactive effect in the following instances:

A law cannot be given retroactive effect in the following instances:

What is a curative or remedial legislation?

It is a type of retrospective legislation that reaches back on past events

Article 3. Ignorance of the law excuses no one from

Can the publication requirement be dispensed with on the basis of the

NO. The clause unless otherwise it is provided pertains to the fifteen

Every person is presumed to know the law. Can this presumption be

NO. The presumption is conclusive. (See Tanada v. Tuvera, supra)

What is retrospective legislation?

These are legislations with retroactive effect.

CIVIL LAW REVIEW

Article 5. Acts executed against the provisions of

When can a violation of mandatory or prohibitory laws be valid?

CIVIL LAW REVIEW

When can a waiver be considered as an effective waiver?

A waiver is effective when it is a knowing and intelligent waiver.

Article 11. Customs which are contrary to law, public

Can courts take judicial notice of customs?

NO. A custom must be proved as a fact according to the rules of

Administrative or executive acts, orders and

CIVIL LAW REVIEW

Article 10. In case of doubt in the interpretation or

When the courts declared a law to be inconsistent

If months are designated by their name, they shall be

CIVIL LAW REVIEW

No. In the eyes of Philippine law, he is still married as divorce is

Are diplomatic agents immune from the jurisdiction of Philippine

Yes, by virtue of the 1961 Vienna Convention on Diplomatic Relations.

What is the exception to the abovementioned rule?

Art. 15. Laws relating to family rights and duties, or to

With respect to the order of succession and the amount of

What is the nationality rule?

The nationality rule states that regardless of where a citizen of

What law will apply if a foreigner executed a will in the

If a married Filipino obtains a decree of divorce from abroad, may

CIVIL LAW REVIEW

CIVIL LAW REVIEW

Article 17. The forms and solemnities of contracts, wills,

The law of the country where they are executed.

What law will govern if public instruments are executed before

Is a Filipina wife who obtained a divorce abroad and remarried an

Yes. Prohibitive laws concerning persons, their acts or property, and

CIVIL LAW REVIEW

Article 18. In matters which are governed by the Code of

Prohibitive laws concerning persons, their acts or

Article 19. Every person must, in the exercise of his

What matters does Article 20 cover?

Article 20 speaks of a general sanction for all other provisions of law

CIVIL LAW REVIEW

Is willful intent necessary to constitute a violation of Article 20?

No. It can be violated through negligence.

A government employee was singled out by the deputy administrator

Article 23. Even when an act or event causing damage to

CIVIL LAW REVIEW

No. (See Republic v. Ballocanag, 572 SCRA 436)

Without As knowledge, a flood drives his cattle to the cultivated land

Yes. See Article 19. (Llorente v. Sandiganbayan, 202 SCRA 309)

Two parties executed a contract and implemented it for a lengthy