LAST MINUTE POINTERS IN PERSONS &

FAMILY RELATIONS
(PROF. ATTY. ELMER T. RABUYA)
1. A Year is understood to be twelve calendar months.
Under the Civil Code, a year is equivalent to 365 days
whether it be a regular year or a leap year. Under the
Administrative Code of 1987, however, a year is
composed of 12 calendar months. Needless to state,
under the Administrative Code of 1987, the number of
days is irrelevant. There obviously exists a manifest
incompatibility in the manner of computing legal periods
under the Civil Code and the Administrative Code of
1987. Hence, the Supreme Court recognized the existence
of implied repeal and declared that the provision of
Section 31, Chapter VIII, Book I of the Administrative
Code of 1987, being the more recent law, now governs the
computation of legal periods with respect to counting a
year. Hence, a year now means 12 calendar months.
[CIR v. Primetown Property Group, Inc., 531 SCRA 436,
444 (2007); reiterated in CIR vs. Aichi Forging Company
of Asia, Inc., 632 SCRA 422 (2010) and Co vs. New
Prosperity Plastic Products, 727 SCRA 503 (2014)]
2. An accion in rem verso is considered merely an
auxiliary action, available only when there is no other
remedy on contract, quasi-contract, crime or quasi-delict.
If there is an obtainable action under any other
institution of positive law, that action must be resorted
to, and the principle of accion in rem verso will not lie.
Hence, if the delivery is by reason of mistake, the action
must be based on the quasi-contract of solutio indebiti
and not under in rem verso. In solutio indebiti, mistake
is an essential element; but in the accion in rem verso, it
is not necessary that there should be mistake in the

payment. [UP vs. Philab Industries, Inc., G.R. No. 152411,

Sep. 29, 2004; see also Land Bank of the Philippines vs.
Ong, 636 SCRA 266 (2010)]
3. The concept of "unfair competition" under Article 28
of the NCC is very much broader than that covered by
intellectual property laws. In order to qualify the
competition as "unfair," it must have two characteristics:
(1) it must involve an injury to a competitor or trade rival,
and (2) it must involve acts which are characterized as
"contrary to good conscience," or "shocking to judicial
sensibilities," or otherwise unlawful; in the language of
our law, these include force, intimidation, deceit,
machination or any other unjust, oppressive or highhanded method. The public injury or interest is a minor
factor; the essence of the matter appears to be a private
wrong perpetrated by unconscionable means. [Willaware
Products Corporation vs. Jesichris Manufacturing Corp.,
734 SCRA 238 (2014)]
4. The Mercado ruling (Mercado vs. Tan, 337 SCRA 122)
applies only where a marriage, at least ostensibly, had
taken place, although later declared void ab initio, as
when the first marriage is void by reason of lack of
marriage license. But if no marriage ceremony at all was
performed by a duly authorized solemnizing officer, there
is no marriage that took place, even ostensibly. Hence,
there is no need to comply with the requirements of
Article 40 of the FC. Recall the case of Morigo vs. People.
In Republic vs. Olaybar (G.R. No. 189538, Feb. 10,
2014, 715 SCRA 605), involving a case of identity theft,
the Court allowed the correction of an entry in the civil
registry by cancelling the wife portion in the subject
marriage contract without need of a judicial declaration
of nullity of the marriage, on the ground that there was

no marriage to speak of. In that case, Melinda Olaybar

requested from the National Statistics Office (NSO) a
Certificate of No Marriage (CENOMAR) as one of the
requirements for her marriage with her boyfriend of five
years. Upon receipt thereof, she discovered that she was
already married to a certain Ye Son Sune, a Korean
National. It turned out that someone made use of her
identity. This is another situation where a judicial
declaration of nullity of a void marriage is no longer
required.
5. Jurisprudence clearly requires that for the accused to
be convicted of bigamy, the second or subsequent
marriage must have all the essential requisites for
validity except for the existence of a prior marriage. Thus,
if the second marriage is void not because of the
existence of the first marriage but for other causes, such
as lack of license, the crime of bigamy is not committed.
Hence, where it is established that the second marriage
was contracted without the necessary license and thus
void, no liability for the crime of bigamy can attach
[People vs. De Lara, CA, 51 O.G., 4079; Go-Bangayan vs.
Bangayan, 700 SCRA 702 (2013)]. BUT if the reason for
the absence of a marriage license during the celebration
of the marriage was because the parties falsified the
Affidavit of Cohabitation to make it appear that the
marriage is exempt from the license requirement
pursuant to Article 34 of the Family Code, the parties to
the subsequent marriage are liable for bigamy and the
absence of the marriage license in this situation is not
considered a defense [Santiago vs. People, G.R. No.
200233, July 15, 2015]
6. If the second marriage is alleged to be void on the
ground of psychological incapacity, the pendency of a

previously instituted civil action for declaration of nullity

of the said marriage does not constitute a prejudicial
question to the criminal action for bigamy. In Tenebro
v. Court of Appeals, the Supreme Court held that in
psychological incapacity as ground for the nullity of a
marriage, there is recognition written into the law itself
that such a marriage, although void ab initio, may still
produce legal consequences and among these legal
consequences is incurring criminal liability for bigamy.
7. Articles 40, 41 and 42 of the Civil Code on natural
persons, must be applied in relation to Article 37 of the
same Code. There is no need to establish the civil
personality of the unborn child if his/her juridical
capacity and capacity to act as a person are not in issue
and the case is not whether the unborn child has
acquired any rights or incurred any obligations prior to
his/her death that were passed on to or assumed by the
childs parents. Hence, when the issue in a case pertains
directly to the rights of the parents of the unborn child,
the above-mentioned provisions do not apply
[Continental Steel Manufacturing Corp. vs. Montao,
603 SCRA 621 (2009)]. In Continental Steel
Manufacturing Corp. vs. Montao, the Collective
Bargaining Agreement provides for bereavement leave
and other death benefits in case of death of a legitimate
dependent of an employee. One of the members of the
union applied for said benefits because his unborn child
died when his wife had a premature delivery after 38
weeks of pregnancy. The employer does not want to pay
on the ground that under Articles 40, 41 and 42 of the
Civil Code only one with civil personality could die and
hence, the unborn child never died because it never
acquired juridical personality. The Court ruled: First. The

reliance on Articles 40, 41 and 42 of the Civil Code for the

legal definition of death is misplaced. Articles 40, 41 and
42 of the Civil Code on natural persons, must be applied
in relation to Article 37 of the same Code. There is no
need to establish civil personality of the unborn child
herein since his/her juridical capacity and capacity to act
as a person are not in issue. The issue in this case is not
whether the unborn child acquired any rights or incurred
any obligations prior to his/her death that were passed
on to or assumed by the childs parents. Instead, the
rights to bereavement leave and other death benefits in
this case pertain directly to the parents of the unborn
child upon the latters death. Second. Articles 40, 41 and
42 of the Civil Code do not provide at all a definition of
death. Moreover, while the Civil Code expressly provides
that civil personality may be extinguished by death, it
does not explicitly state that only those who have
acquired juridical personality could die. Third. Death has
been defined as the cessation of life. Life is not
synonymous with civil personality. One need not acquire
civil personality first before he/she could die. Even a
child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the
life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered,
qualifies as death.
8. In Republic vs. Albios (707 SCRA 584 (2013),
where a citizen of the Philippines got married to an
American citizen solely for the purpose of acquiring
American citizenship in consideration of a sum of money,
it was alleged that the marriage was void because it was
one made in jest and consent was therefore lacking. In

declaring the marriage to be valid, the Court ruled that

that there is no law that declares a marriage void if it is
entered into for purposes other than what the
Constitution or law declares, such as the acquisition of
foreign citizenship. While the avowed purpose of
marriage under Article 1 of the Family Code is for the
couple to establish a conjugal and family life, the
possibility that the parties in a marriage might have no
real intention to establish a life together is, however,
insufficient to nullify a marriage freely entered into in
accordance with law. Thus, marriages entered into for
other purposes, limited or otherwise, such as
convenience, companionship, money, status, and title,
provided that they comply with all the legal requisites,
are equally valid. Love, though the ideal consideration in
a marriage contract, is not the only valid cause for
marriage. Other considerations, not precluded by law,
may validly support a marriage.
9. No marriage license shall be issued by the Local Civil
Registrar unless the applicants present a Certificate of
Compliance issued for free by the local Family Planning
Office certifying that they had duly received adequate
instructions and information on responsible parenthood,
family planning, breastfeeding and infant nutrition (Sec.
15, R.A. No. 10354, The Responsible Parenthood and
Reproductive Health Act of 2012 (RH Law). But the
absence of such certificate is merely an irregularity in
complying with the formal requirement of procuring a
marriage license which will not affect the validity of the
marriage.
10. In Republic vs. Dayot (550 SCRA 435 (2008), the
Supreme Court ruled that the falsity of an affidavit of
marital cohabitation, where the parties have in truth

fallen short of the minimum five-year requirement,

effectively renders the marriage void ab initio for lack of
a marriage license. In De Castro vs. Assidao-De
Castro (G.R. No. 160172 February 13, 2008, 545 SCRA
162), the Court further clarified that the falsity of the
affidavit cannot be considered as a mere irregularity in
the formal requisites of marriage. To permit a false
affidavit to take the place of a marriage license, the Court
explained in Dayot, is to allow an abject circumvention of
the law. In Santiago vs. People (G.R. No. 200233, July
15, 2015), the Court held that the falsity of an affidavit of
cohabitation CANNOT be used as a defense in the crime
of bigamy, for it will be the height of absurdity for the
Court to allow the accused to use her illegal act to escape
criminal conviction.
11. In Ronulo vs. People (728 SCRA 675 (2014), a
solemnizing officer from the Aglipayan Church was
charged with violation of Article 352 of the RPC for
allegedly performing an illegal marriage ceremony
because he solemnized the marriage knowing fully well
that the parties did not have marriage license. The
accused contended that he merely conducted a blessing
and that in order for a marriage ceremony to exist, the
law require the verbal declaration that the couple take
each other as husband and wife, and a marriage
certificate containing the declaration in writing which is
duly signed by the contracting parties and attested to by
the solemnizing officer. In holding that the accused
indeed performed a marriage ceremony, the Court ruled
that the law sets the minimum requirements constituting
a marriage ceremony: first, there should be the personal
appearance of the contracting parties before a
solemnizing officer; and second, their declaration in the

presence of not less than two witnesses that they take

each other as husband and wife. Both requirements were
present in this case.
12. Only the Filipino spouse can invoke the second
paragraph of Article 26 of the Family Code while the
alien spouse can claim no right under said provision. The
Court explained that the provision was included in the
law to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse. The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status,
settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of the
Family Code provided the Filipino spouse a substantive
right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to
remarry. Thus, if the Filipino spouse invokes the second
paragraph of Article 26 of the Family Code, the action is
not limited to the recognition of the foreign divorce
decree. If the court finds that the decree capacitated the
alien spouse to remarry, the courts can declare that the
Filipino spouse is likewise capacitated to contract
another marriage. No court in this jurisdiction, however,
can make a similar declaration for the alien spouse (other
than that already established by the decree), whose status
and legal capacity are generally governed by his national
law. The unavailability of the second paragraph of Article
26 of the Family Code to aliens does not, however,
necessarily strip the alien spouse of legal interest to
petition our courts for the recognition of his/her foreign
divorce decree. The foreign divorce decree itself, after its
authenticity and conformity with the aliens national law

have been duly proven according to our rules of evidence,

serves as a presumptive evidence of right in his/her
favor. [Corpuz vs. Sto. Tomas, G.R. No. 186571, 11 August
2010, 628 SCRA 266; Fujiki vs. Marinay, 700 SCRA 69
(2013)]
13. The principle in Article 26 of the Family Code is also
applicable to a marriage between a Filipino and a foreign
citizen who obtains a foreign judgment nullifying the
marriage on the ground of bigamy. The Court explained
that the principle in the second paragraph of Article 26 of
the Family Code applies because the foreign spouse, after
the foreign judgment nullifying the marriage, is
capacitated to remarry under the laws of his or her
country. If the foreign judgment is not recognized in the
Philippines, the Filipino spouse will be discriminated
the foreign spouse can remarry while the Filipino spouse
cannot remarry. [Fujiki vs. Marinay, 700 SCRA 69
(2013), citing Braza vs. The City Civil Registrar of
Himamaylan City, Negros Occidental, G.R. No. 181174, 4
December 2009, 607 SCRA 638]
14. With the advent of A.M. No. 02-11-10-SC, it appears
that the Court is emphasizing on the necessity of a direct
action in cases where the validity of a void marriage
covered by said Rule is call into question. As explained by
the Court, a direct action is necessary to prevent
circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No.
02-11-10-SC and other related laws. Among these
safeguards are the requirement of proving the limited
grounds for the dissolution of marriage, support
pendente lite of the spouses and children, the liquidation,
partition and distribution of the properties of the
spouses, and the investigation of the public prosecutor to

determine collusion. A direct action for declaration of

nullity or annulment of marriage is also necessary to
prevent circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997 (Republic Act
No. 8369). [Fujiki vs. Marinay, 700 SCRA 69 (2013)]
Thus, in Braza vs. The City Civil Registrar of
Himamaylan City, Negros Occidental (G.R. No.
181174, 4 December 2009, 607 SCRA 638), the Court
held that a trial court has no jurisdiction to nullify
marriages in a special proceeding for cancellation or
correction of entry under Rule 108 of the Rules of Court.
In that case, the first family of the deceased filed a
Petition for Correction of Entries in the birth certificate
of a child, who is alleged to a legitimated child of the
deceased with another woman. They wanted the court to
nullify the childs legitimation and to declare the
marriage of the childs mother with the deceased as void
for being bigamous. The Court ruled that their cause of
action is actually to seek the declaration of the second
marriage as void for being bigamous and impugn the
childs legitimacy, which causes of action are governed
not by Rule 108 but by A.M. No. 02-11-10-SC which took
effect on March 15, 2003, and Art. 171 of the Family
Code, respectively, hence, the petition should be filed in a
Family Court. [Note that in the Braza case, the marriage
which is sought to be declared void is covered by A.M.
No. 02-11-10-SC]
15. For marriages which are not covered by A.M. No. 0211-10-SC, the Court applied the ruling in Nial that the
validity of a void marriage can be subjected to a collateral
attack, as follows: In Garcia-Quiason vs. Belen (G.R.
No. 189121, July 31, 2013, 702 SCRA 707), the Court
allowed a marriage to be declared void ab initio for being

bigamous in a Petition for Letters of Administration filed

by a compulsory heir. The Court, citing Nial, ruled that
any interested party may attack a void marriage directly
or collaterally without prescription, which may be filed
even beyond the lifetime of the parties to the marriage.
[Note: In this case, the law in effect at the time of the
marriage was the Civil Code, and not the Family Code,
making the ruling in Nial applicable.] In De Castro vs.
Assidao-De Castro (G.R. No. 160172, Feb. 13, 2008,
545 SCRA 162), the wife filed an action for support
against the husband who, in turn, denied the marriage
claiming that the same is void ab initio since they
falsified the affidavit of cohabitation required in Article
34 of the Family Code and they failed to meet the
minimum period of cohabitation required under said law.
On the question of whether the lower court had
jurisdiction to determine the validity of the marriage, the
Court ruled that the trial court had jurisdiction to
determine the validity of the marriage between the
parties in an action for support. Citing the case of Nial,
the Court reasoned that the validity of a void marriage
can be collaterally attacked. [Note: While the marriage in
this case took place during the effectivity of the Family
Code (it was celebrated on March 13, 1995), nonetheless
the complaint for support was filed on June 4, 1998, or
long before the promulgation of A.M. No. 02-11-10-SC.]
16. If the marriage sought to be declared void was
celebrated during the effectivity of the Civil Code, in
which case A.M. No. 02-11-10-SC is not applicable, the
ruling in Nial that a petition for declaration of nullity
may still be filed even after the death of either party to
that marriage still applies. If the marriage is covered by
A.M. No. 02-11-10-SC, a void marriage can still be

questioned even after the death of either party, but no

longer by way of a petition for declaration of nullity of the
marriage because the same can only be filed during the
lifetime of the parties. Pursuant to AM No. 02-11-10-SC,
in case a party dies at any stage of the proceedings before
the entry of judgment, the court shall order the case
closed and terminated (Sec. 24(a), A.M. No. 02-11-10SC), but without prejudice to a collateral attack that may
be done by the compulsory or intestate heirs of the
spouses upon the death of a spouse in a proceeding for
the settlement of the estate of the deceased spouse
(Enrico vs. Heirs of Sps. Medinaceli, G.R. No. 173614,
September 28, 2007, 534 SCRA 418).
17. The following actions for declaration of absolute
nullity of a marriage are excepted from the application of
A.M. No. 02-11-10-SC and the rule that only the husband
or the wife can file a petition for declaration of absolute
nullity of a void marriage: (a) Those marriages celebrated
during the effectivity of the Civil Code; and (b) Those
petitions for nullity of marriages commenced prior to
March 15, 2003, the effecitivity date of A.M. No. 02-1110-SC.
18. For marriages covered by AM 02-11-10-SC, A
petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or
the wife. However, the rule in A.M. No. 02-11-10-SC
that only the husband or wife can file a declaration of
nullity or annulment of marriage does not apply if the
reason behind the petition is bigamy (Juliano-Llave vs.
Republic, 646 SCRA 753 (2011). Section 2(a) of A.M. No.
02-11-10-SC does not preclude a spouse of a subsisting
marriage to question the validity of a subsequent
marriage on the ground of bigamy. On the contrary,

when Section 2(a) states that a petition for declaration

of absolute nullity of void marriage may be filed solely by
the husband or the wife it refers to the husband or the
wife of the subsisting marriage. Under Article 35(4) of
the Family Code, bigamous marriages are void from the
beginning. Thus, the parties in a bigamous marriage are
neither the husband nor the wife under the law. The
husband or the wife of the prior subsisting marriage is
the one who has the personality to file a petition for
declaration of absolute nullity of void marriage under
Section 2(a) of A.M. No. 02-11-10-SC. (Fujiki vs. Marinay,
700 SCRA 69 (2013).
19. Recently, the Court applied Article 40 retroactively to
cases where the second marriage took place prior to the
effectivity of the Family Code. In Jarillo vs. People
(G.R. No. 164435, Sep. 29, 2009; and the Resolution of
the Motion for Reconsideration, G.R. No. 164435, June
29, 2010, 622 SCRA 24), the second marriage was
celebrated on November 26, 1979; while in Montaez
vs. Cipriano, (684 SCRA 315 (2012). the second
marriage took place on January 24, 1983. In both cases,
the Court applied Article 40 retroactively in a criminal
action for bigamy holding that said provision, being a
rule of procedure, may be applied retroactively.
20. Under present law, the subsequent marriage under
Article 41 of the Family Code is automatically terminated
by the recording of the affidavit of reappearance of the
absent spouse, without prejudice to the fact of
reappearance being judicially determined in case such
fact is disputed. But the termination of the subsequent
marriage by affidavit provided by Article 42 of the Family
Code does not preclude the filing of an action in court to
prove the reappearance of the absentee and obtain a

declaration of dissolution or termination of the

subsequent marriage. Thus, there are two ways of
terminating the subsequent marriage, to wit: (1) by the
recording of the affidavit of reappearance; or (2) by a
judicial declaration of dissolution or termination of the
subsequent marriage. [SSS vs. Jarque Vda. De Bailon,
485 SCRA 376 (2006).
21. But what if the presumptively dead spouse has not
really been absent and the judicial declaration of
presumptive death was obtained by reason of extrinsic
fraud, what is his/her appropriate remedy? Must he/she
file an affidavit of reappearance? According to the Court
in Santos vs. Santos (G.R. No. 187061, October 08,
2014, 737 SCRA 637), the proper remedy available to the
presumptively dead spouse is not the filing of an affidavit
of reappearance but an action to annul the judgment
declaring him/her presumptively dead. The Court
reasoned out that if the presumptively dead spouse is to
be limited to the filing of an affidavit of reappearance as
his/her remedy, such remedy is not sufficient because:
(1) it carries with it an admission on the part of the first
spouse that his or her marriage to the present spouse was
terminated when he or she was declared absent or
presumptively dead; (2) if the subsequent marriage is
terminated by mere recording of the affidavit of
reappearance, the children of the subsequent marriage
conceived before the termination shall still be considered
legitimate; (3) the property relations of the spouse in the
subsequent marriage will be the same as in valid
marriages; and (4) a judgment declaring presumptive
death is a defense against prosecution for bigamy. So
therefore, the choice of proper remedy is important for
purposes of determining the status of the second

marriage and the liabilities of the spouse who, in bad

faith, claimed that the other spouse was absent.
22. If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by affidavit or
by court action, such absentees mere reappearance, even
if made known to the spouses in the subsequent
marriage, will not terminate such marriage. Since the
second marriage has been contracted because of a
presumption that the former spouse is dead, such
presumption continues inspite of the spouses physical
reappearance, and by fiction of law, he or she must still
be regarded as legally an absentee until the subsequent
marriage is terminated as provided by law. (SSS vs.
Jarque Vda de Bailon)
23. In Santos vs. Santos, the Court held that the
reappearance of the absentee spouse does not always
immediately cause the subsequent marriage's
termination. According to the Court in said case, the
reappearance of the absent or presumptively dead spouse
will cause the termination of the subsequent marriage
only when all the conditions enumerated in Article 42 of
the Family Code are present, as follows: (1) the nonexistence of a judgment annulling the previous marriage
or declaring it void ab initio; (2) recording in the civil
registry of the residence of the parties to the subsequent
marriage of the sworn statement of fact and
circumstances of reappearance (the affidavit of
reappearance); (3) due notice to the spouses of the
subsequent marriage of the fact of reappearance; and (4)
the fact of reappearance must either be undisputed or
judicially determined. Hence, the subsequent marriage
may still subsist despite the absent or presumptively
dead spouse's reappearance (1) if the first marriage has

already been annulled or has been declared a nullity; (2)

if the sworn statement of the reappearance is not
recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent
spouses; or (4) if the fact of reappearance is disputed in
the proper courts of law, and no judgment is yet rendered
confirming, such fact of reappearance.
24. General Rule: If the marriage is void, regardless of
the cause thereof, the property relations of the spouses
during the period of cohabitation are governed by the
provisions of Article 147 or 148, as the case may be.
Article 147 applies to unions of parties who are legally
capacitated and not barred by any Impediment to
contract marriage, but whose marriage is nonetheless
void, such as when the marriage is declared void on the
ground of psychological incapacity or when it was
celebrated without a valid marriage license.
Article 148, on the other hand, applies to void marriages
where the parties are incapacitated to marry each other,
such as when the marriage is bigamous or one of the
parties thereto is below 18 years of age.
25. Exception: If the subsequent marriage is void by
reason of non-compliance with Article 40 (but the prior
marriage is indeed void ab initio), the property relations
of the parties to the subsequent marriage would still be
absolute community or conjugal partnership of gains, as
the case may be, or even complete separation. [Dio vs.
Dio, 640 SCRA 178 (2011); Valdez vs. RTC, Br. 102, QC,
260 SCRA 221 (1996), citing Art. 50, in relation to Art.
43(2), FC.
26. The surviving spouse must liquidate the community
property, either judicially or extrajudicially, within one
year from the death of the deceased spouse, otherwise

any disposition or encumbrance of any community or

conjugal partnership property is void. But in Heirs of
Patricio Go, Sr. and Marta Barola vs. Servacio
(657 SCRA 10 (2011), it was held that the disposition by
sale of a portion of the conjugal property by the surviving
spouse without the prior liquidation mandated by Article
130 of the Family Code (which is the counterpart
provision of Article 103 in the regime of conjugal
partnership of gains) is not necessarily void if said
portion has not yet been allocated by judicial or
extrajudicial partition to another heir of the deceased
spouse.
27. If the spouses got married prior to the effectivity of
the Family Code without a marriage settlement, in which
case the property relation is that of conjugal partnership
under the Civil Code, may it be argued that pursuant to
the transitory provisions of the Family Code such
property relation was changed to absolute community
when the Family Code took effect in 1988 considering
that no vested or acquired rights are impaired? In Pana
vs. Heirs of Jose Juanite, Sr. (G.R. No. 164201, Dec.
10, 2012, 687 SCRA 414), both the RTC and the CA took
the position that such property relation was changed to
absolute community upon the effectivity of the Family
Code considering that no vested or acquired rights are
impaired. The Supreme Court did not, however, agree as
it ruled that Article 256 of the Family Code does not
intend to reach back and automatically convert into
absolute community of property relation all conjugal
partnerships of gains that existed before 1988 excepting
only those with prenuptial agreements.
28. REMINDERS: The following obligations chargeable
to the separate properties of the spouses may be enforced

against the conjugal partnership if: (1) all the

responsibilities of the partnership have already been
covered; and (2) the spouse who is bound has no
exclusive properties or the same are insufficient, subject
to reimbursement upon liquidation of the partnership
(Art. 122, 3rd par., FC):
a) Personal debts of either spouse contracted before the
marriage which did not redound to the benefit of the
family;
BUT: if the personal debt is contracted during the
marriage, note that the same may not be enforced against
the conjugal partnership.
b) Support of illegitimate children of either spouse;
c) Fines and indemnities arising from delicts and quasidelicts.
NOTE: In case of absence or insufficiency of separate
property of the debtor-spouse, the foregoing liabilities
can be enforced against the assets of the conjugal
partnership provided that the responsibilities of the
conjugal partnership enumerated in Article 121 of the
Family Code have already been covered [Dewara vs.
Lamela, 647 SCRA 483 (2011), and Pana vs. Heirs of Jose
Juanite, Sr., 687 SCRA 414 (2012)]. Article 121 of the
Family Code allows payment of criminal indemnities
even prior to the liquidation of the conjugal partnership,
so long as the responsibilities enumerated in same article
have been covered. The Court explained that such is not
altogether unfair since Article 122 of the Family Code
states that at the time of liquidation of the partnership,
such (offending) spouse shall be charged for what has
been paid for the purposes above-mentioned. [Pana vs.
Heirs of Jose Juanite, Sr., 687 SCRA 414 (2012)]
29. In the cases of Bautista vs. Silva (G.R. No. 157434,

September 19, 2006, 502 SCRA 334), Ravina vs. Villa

Abrille (604 SCRA 120 (2009) and Aggabao vs.
Parulan (Aggabao vs. Parulan, G.R. No.165803, Sep. 1,
2010), the Court erected a standard to determine the
good faith of the buyers dealing with a seller who had
title to and possession of the land but whose capacity to
sell was restricted, in that the consent of the other spouse
was required before the conveyance, declaring that in
order to prove good faith in such a situation, the buyers
must show that they inquired not only into the title of the
seller but also into the sellers capacity to sell. Thus, the
buyers of conjugal property must observe two kinds of
requisite diligence, namely: (a) the diligence in verifying
the validity of the title covering the property; and (b) the
diligence in inquiring into the authority of the transacting
spouse to sell conjugal property in behalf of the other
spouse.
30. Rule: In a void marriage, regardless of the cause
thereof, the property relations of the parties during the
period of cohabitation is governed by the provisions of
Article 147 or Article 148, such as the case may be, of the
Family Code. In other words, there is no absolute
community or conjugal partnership in a void marriage.
Exception: If the subsequent marriage is void by reason
of non-compliance with Article 40 (but the prior
marriage is indeed void ab initio), the property relations
of the parties to the subsequent marriage may either
absolute community or conjugal partnership of gains, as
the case may be, unless the parties agree to a complete
separation of property in a marriage settlement entered
into before the marriage. As such, Sec. 19(1) of A.M. No.
02-11-10-SC, which requires the liquidation, partition
and distribution of properties prior to the issuance of

decree of nullity of the marriage applies only to a void

marriage under Article 40 of the Family Code when said
rule mentions of decree of absolute nullity and not to a
marriage declared void by reason of psychological
incapacity under Article 36 of the Family Code. In the
latter case, since the applicable property regime is that
provided in Article 147 of the Family Code, the
declaration of nullity can already be made even without
waiting for the liquidation of the properties of the parties
because it is not necessary to liquidate the properties of
the spouses in the same proceeding for declaration of
nullity of marriage. In Article 147, what governs the
liquidation of properties owned in common are the rules
on co-ownership. In Article 40, however, since the
property relations of the parties is governed by absolute
community of property or conjugal partnership of gains,
there is a need to liquidate, partition and distribute the
properties before a decree of absolute nullity could be
issued. [Dio vs. Dio, 640 SCRA 178 (2011); see also
Art. 50, in relation to Art. 43(2), FC]
31. Article 148 does not apply to a cohabitation of parties
coming from same sex, or to a same-sex marriage. Note
that Article 148 refers to cohabitations between a man
and a woman. With respect to the property relations of
same-sex cohabitations, the same shall be governed by
the applicable provisions of the Civil Code on Property.
32. In order for the relatives of the person who
constituted the family home to be considered a
beneficiary of the family home, three (3) requisites must
concur:
(i) They must be among the relationships enumerated in
Art. 154 of the Family Code;
(ii) They live in the family home; and

(iii) They are dependent for legal support upon the head
of the family. (Patricio vs. Dario III)
33. Generally, in order for a private handwritten
instrument to be considered competent evidence of
filiation, it is necessary that: (1) that there must be
statement of admission of filiation; and (2) the
handwritten instrument must be signed by the parent
concerned [Salas vs. Matusalem, 705 SCRA 560 (2013);
Nepomuceno vs. Lopez, 616 SCRA 145 (2010)]. Are the
foregoing twin requirements to be strictly applied? What
if there is admission of filiation in the handwritten
instrument but the same was not signed by the alleged
parent, can it not be considered as competent evidence of
filiation? In the case of Dela Cruz vs. Gracia [594
SCRA 648 (2009), Reiterated in Aguilar vs. Siasat, G.R.
No. 200169, January 28, 2015], the Court adopted the
following rules respecting the requirement of affixing the
signature of the acknowledging parent in any private
handwritten instrument wherein an admission of filiation
of a legitimate or illegitimate child is made:
a) Where the private handwritten instrument is the lone
piece of evidence submitted to prove filiation, there
should be strict compliance with the requirement that the
same must be signed by the acknowledging parent; and
b) Where the private handwritten instrument is
accompanied by other relevant and competent evidence,
it suffices that the claim of filiation therein be shown to
have been made and handwritten by the acknowledging
parent as it is merely corroborative of such other
evidence.
34. In the recent case of Grande vs. Antonio (G.R. No.
206248, Oct. 18, 2014, 716 SCRA 698), the Court
clarified that Article 176 of the Family Code, as amended

by R.A. No. 9255, gives illegitimate children the right to

decide if they want to use the surname of their father or
not. It is not the father or the mother who is granted by
law the right to dictate the surname of their illegitimate
children. The use of the word "may" in the provision
readily shows that an acknowledged illegitimate child is
under no compulsion to use the surname of his
illegitimate father. Hence, a father cannot compel the use
of his surname by his illegitimate children upon his
recognition of their filiation.
35. If the admission of paternity is made in a private
handwritten instrument which was not signed by the
father, may the illegitimate child be allowed to make use
of the fathers surname on the basis of such instrument?
In Dela Cruz vs. Gracia, the Court allowed the child to
use the fathers surname on the basis of such private
handwritten instrument considering that there are other
evidence to prove paternity and filiation. In the same
case, the Court adopted the following rules respecting the
requirement of affixing the signature of the
acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a
legitimate or illegitimate child is made:
a) Where the private handwritten instrument is the lone
piece of evidence submitted to prove filiation, there
should be strict compliance with the requirement that the
same must be signed by the acknowledging parent; and
b) Where the private handwritten instrument is
accompanied by other relevant and competent evidence,
it suffices that the claim of filiation therein be shown to
have been made and handwritten by the acknowledging
parent as it is merely corroborative of such other
evidence.

36. One of the exceptions to the rule of joint adoption by

the spouses is when one spouse seeks to adopt his or her
own illegitimate son/daughter. However, the law
requires the spouse seeking to adopt his/her illegitimate
child to first obtain the consent of his/her spouse. This
requirement is mandatory according to the case of
Castro vs. Gregorio (G.R. No. 177728, July 31, 2009,
594 SCRA 648). According to the Court, in all instances
where it appears that a spouse attempts to adopt a child
out of wedlock, the other spouse and other legitimate
children must be personally notified through personal
service of summons and it is not enough that they be
deemed notified through constructive service; otherwise,
the court does not validly acquire jurisdiction over the
proceedings and the decision of the court is null and void.
37. The process of declaring a child legally available for
adoption is entirely administrative. Under present law, it
is only the Department of Social Welfare and
Development (DSWD) who shall have the sole authority
to issue the certification declaring a child legally available
for adoption [Sec. 2(1), R.A. No. 9523]. But the abovementioned Certification is not required in the following
cases which can be filed directly in court:
Adoption of an illegitimate child by any of his/her
biological parent;
Adoption of a child by his/her step-parent; and
Adoption of a child by a relative within the fourth (4th)
degree of consanguinity or affinity.
38. The law also requires the written consent of the
adopter's children if they are 10 years old or older, for the
adoption to be valid (Castro vs. Gregorio, 738 SCRA 415
(2014). The consent of the adopter's other children is
necessary as it ensures harmony among the prospective

siblings. It also sufficiently puts the other children on

notice that they will have to share their parent's love and
care, as well as their future legitimes, with another
person.
39. If the child is under the age of seven, the law
presumes that the mother is the best custodian. Hence,
the law provides that no child under seven years of age
shall be separated from the mother unless the court
finds compelling reasons to order otherwise. This is the
so-called tender-age presumption. In the case of
Dacasin vs. Dacasin [611 SCRA 657 (2010)], the Court
held that this statutory awarding of sole parental custody
to the mother under the second paragraph of Article 213
of the Family Code is mandatory and any agreement to
the contrary is void. Reminder: The Court in Dacasin
recognized, however, the validity of an agreement
providing for joint custody if the children are already
over seven years of age considering the fact that the
imposed custodial regime under the second paragraph of
Article 213 is limited in duration, lasting only until the
childs seventh year. From the eighth year until the
childs emancipation, the law gives the separated parents
freedom, subject to the usual contractual limitations, to
agree on custody regimes they see fit to adopt