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PERSONS & FAMILY RELATIONS: Believe you can and youre halfway there T. Roosevelt
In UNION, There is STRENGTH
CIVIL LAW REVIEWER: PERSONS AND FAMILY RELATIONS AS DISCUSSED BY ATTY. MONTECLAR
2015 2016
PERSONS
Civil Code (RA No. 386) - took effect on August 30, 1950
Divided in FOUR books:
Book I- Law on Persons and Family Relations (Art. 1 to 413)
Book II- Property Ownership and its Modification (Art. 414 to 711)
Book III- Different Modes of Acquiring Ownership (Art 712 to 1155)
Book IV- Law on Obligations and Contracts (Art. 1156 to 2270)
Civil Code on Family Relations was amended on August 3, 1988 by the Family Code of the Philippines (EO 209 as amended by EO
227)

CHAPTER I: EFFECTS AND APPLICATION OF LAWS


Art. 2 (Effectivity of laws)
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.

The fifteen day period only applies if the law does not provide its own effectivity.
Publication is an indispensable requirement of due process. Whether the law is punitive or not, publication is necessary.
unless it is otherwise provided does not mean unless the law provides that there is no need for publication. In the case of
Taada vs Tuvera, the Supreme Court said that it means unless the law provides for a shorter or longer period of fifteen
days but the publication should not be dispensed with.
Publication is mandatory.
Publication should be made in the Official Gazette and in newspaper of general circulation. In accordance with EO No
200.
The Civil Code took effect on August 30, 1950. But others disagree as the law provides that it should take effect one year
after its publication that is from June 1949, the date it was published in the Official Gazette. But in Lara vs Del Rosario, the
SC said that the effectivity of the Civil Code is on August 30, 1950, one year after it was released for circulation. Because
that was the time it was made known to the public. This is controversial as the court may have committed judicial
legislation for the word of the law is clear. But there is no higher court than the SC to question the said ruling.

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

This only applies to ignorance of domestic law.


Ignorance of the foreign law is not ignorance of the law. It is ignorance of the fact because foreign laws must be alleged
and proved as a fact. If you cannot prove the foreign law which is applicable in your case then the court will assume that
it is similar to our domestic law. This is known as the doctrine of processual presumption.

Wong Woo Yiu vs Vivo et al.


Facts:
A Chinese woman married a Filipino, Mr. Blas in China. It was solemnized by a village elder. After the marriage, Mr.
Blas went back to the Philippines then the Chinese woman followed. Then she applied to the Commissioner to be
recognized as the wife of the said Filipino.
Issue:

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WON she validly married Mr. Blas.
Held:
It may be contended that under Section 4 of General orders No. 68, as reproduced in Section 19 of Act No. 3613,
which is now Article 71 of our new Civil Code, a marriage contracted outside of the Philippines which is valid
under the law of the country in which it was celebrated is also valid in the Philippines. But no validity can be given
to this contention because no proof was presented relative to the law of marriage in China. Such being the case,
we should apply the general rule that in the absence of proof of the law of a foreign country it should be
presumed that it is the same as our own. This is the doctrine of processual presumption.
In order that a marriage celebrated in the Philippines may be valid it must be solemnized either by a judge of any
court inferior to the Supreme Court, a justice of the peace, or a priest or minister of the gospel of any
denomination. Since our law only recognizes a marriage celebrated before any of the officers mentioned therein,
and a village leader is not one of them, it is clear that petitioners marriage, even if true, cannot be recognized in
this jurisdiction.

Del Socorro vs Van Wilsem


G.R. No. 193707
December 10, 20141
Facts:
Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in Holland on
September 25, 1990.2 On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem.
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate Court
of Holland. petitioner and her son came home to the Philippines. Not long thereafter, respondent came to the Philippines
and remarried in Pinamungahan, Cebu, and since then, have been residing thereat. When Norma knew of the said fact,
through her counsel, sent a letter demanding for support from respondent. However, respondent refused to receive the
letter. Thus, Norma filed a complaint for the violation of RA 9261 (VAWC).
The trial court dismissed the case saying that since the accused is a foreign national he is not subject to our
national law (The Family Code) in regard to a parents duty and obligation to give support to his child. Consequently, he
cannot be charged of violating R.A. 9262 for his alleged failure to support his child. Unless it is conclusively established that
R.A. 9262 applies to a foreigner who fails to give support to his child, notwithstanding that he is not bound by our domestic
law which mandates a parent to give such support, it is the considered opinion of the court that no prima facie case exists
against the accused herein, hence, the case should be dismissed.
Issue: Whether or not a foreign national has an obligation to support his minor child under Philippine law
Held:
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioners son under Article195 of
the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioners son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of
proving the foreign law. In the present case, respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to support. While respondent pleaded the laws of the
Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.
Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.
In view of respondents failure to prove the national law of the Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts
will presume that the foreign law is the same as our local or domestic or internal law. Thus, since the law of the Netherlands
as regards the obligation to support has not been properly pleaded and proved in the instant case, it is presumed to be
the same with Philippine law, which enforces the obligation of parents to support their children and penalizing the noncompliance therewith.

As far as I can manage, g.highlight nako ug YELLOW ang relatively new cases (2011-2015), if naay nalimtan, aw caveat na ni daan hahaha :p

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Art. 4
Law shall have no retroactive effect, unless the contrary is provided.

Instances where the law may be applied retroactively:


1. When the law expressly provides for its retroactivity.
This is only applicable to civil law
2. When the Law is curative or remedial in nature.
3. When the law is procedural.
4. When the law is penal in character and only if favorable to the accused.
Otherwise it will be an ex post facto law
Example: the suspension of Death Penalty Law by the 1987 Constitution benefits those who are charged of
capital offenses and those cases pending in court.
The retroactive application is automatic so long as its a penal law and favorable to the accused.
5. When a substantive right is declared for the first time, unless vested rights are impaired.
The best example is the New Family Code, the Family Code provides for its own retroactivity. It expressly
states that it should have retroactive effect. But according to the SC, we cannot apply the law retroactively
even if it expressly provides that it should have a retroactive effect if it impairs a vested right of a person
acquired by him under the old law.
The best illustration would be the case of Bernabe vs Alejo, this is a case of a fiscal in Quezon City who
impregnated his own secretary and so the secretary resigned. The fiscal supported the secretary who is his
paramour and their child. The child was born in 1982 but the fiscal died in 1992, the child was 10 yrs old
already. After the death of the fiscal the child, represented by his mother, filed a claim against the estate of
the fiscal as an illegitimate child.
The family of the fiscal opposed the claim of the child and argued that even if the child can prove
that he is an illegitimate child of the fiscal that is too late already because under the New Family
Code, which took effect in 1988 before the death of the fiscal but after the child was born in 1982,
that an illegitimate child can only prove his/her illegitimate filiation during the lifetime of his father. So
as argued by the family, the child should have established that when the fiscal was still alive and
considering also that the Family Code expressly provides a retroactive application.
SC: ruled in favor of the child. The SC stated that although the Family Code provides for its own
retroactivity but the said application cannot be applied as against the child because he was born
before the Family Code took effect. When the child was born, the prevailing law at that time was still
the Civil Code - it was provided that an illegitimate child may still prove his filiation within 4 years from
the death of his father for as long as the father died while the child was still a minor. By virtue of the
provision of the Civil Code he already acquired a vested right. So, the Family Code cannot be
applied retroactively because to do so it would impair a vested right of the child which he acquired
under the old law.

Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes
their validity.

There are even instances when an act, even if it is violative of a mandatory or prohibitory law, may be considered as valid
or it may produce legal effect. These instances are:
1. When the law makes the act voidable (e.g. Annulment of Marriage);
2. When the law makes the act valid when it should have penalized the wrongdoer;
3. When the law makes the act valid when it should have been void;
4. When the law makes the act void but recognizes some legal effects flowing therefrom

(e.g. Art. 36 of the FC regarding psychological incapacity as ground to declare the marriage void but the
law provides some legal effects and one of which is that when a child is born out of a void marriage on the
ground of psychological incapacity, the latter is considered as legitimate)

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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.

You cannot waive your right if by doing so it will violate an existing law, public order, public policy, morals, or good
customs.

In case of public policy, if when a law is created for the public good or is founded on public policy the right given to a
person by such law is non-waivable. You cannot waive it because it is a matter of public policy.
o

The best example of this in the case of land cases, when the government gives a person a land, the latter is not
supposed to sell that within 5 years. The reason of course is that the government wants to give lands to the
landless but since the lands are given to the government the recipient should not sell it for at least 5 years, so
there is a prohibition. If the recipient transacts it within the prohibitive period of 5 yrs, can the latter waive his/her
right to redeem the land? No. Because the land that was given by the government is basically founded on public
policy and you cannot waive a right that is given by law founded on public policy.

Another example here is the case of Arellano vs. Cui. In this case, Arellano University College of law gave Mr. Cui
a scholarship but he was made to sign a contract waiving his right to transfer to other school. When Mr. Cui did
not want to continue his studies in the said school (Arellano), the school refused to give him his certificate of
honorable dismissal. It was also provided in the contract that in case of Mr. Cuis failure to continue his studies in
the Arellano University he will be made to reimburse the amount of the scholarship granted to him. So by virtue of
the said stipulation Arellano sought for reimbursement.
v The SC said that the waiver is void for it is against public policy. The SC ruled that the school
should not make their scholarship as propaganda tool because Arellano University said that the
reason why we granted Mr. Cui scholarship is there is an expectation for him to top the Bar. The
SC said that a right to transfer to another school cannot be prevented, that is a non-waivable
right.

The same is true with respect to the right to run for public office, you cannot waive that for a certain
consideration.

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.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution.

An existing law can only be changed by a passage of a new law that is inconsistent with the existing law. The repeal
of a law can only be done either express or implied.
o
o

There is an express repeal when the new law expressly provides that it repeals the old law
In implied repeal, it occurs when the new law does not state that it repeals the existing law but by looking at
the provisions of the new law it is really irreconcilable with the old law.

But the SC said that implied repeal is not the general rule. It is in fact discouraged. It simply means
that if the new law is inconsistent with the old law, the court should not be quick to declare an
implied repeal; the court should try to reconcile the conflict first. If they can stand together, well and
good, but if the conflict is really irreconcilable then that is the time that the court will have to declare
an implied repeal.

Paragraphs 2 and 3 of Article 7 are self-explanatory.

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Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines.

Decisions of the Supreme Court are considered as part of our legal system. It is called jurisprudence. The SC cannot
make laws, its duty is to interpret the laws and its interpretation is part of the law. An interpretation on a particular law is
considered as part of that law. When the SC decides, its decision is already like a law.

But a Supreme Court decision, unlike laws or statutes, cannot be applied retroactively. The SC said that its decisions can
only be applied prospectively it should not be applied retroactively. Also, decision of a Supreme Court can only be
revoked or repealed if a new doctrine has been established which is different and contrary to the old doctrine. This is
different from a statute in which it can only be repealed by an enactment of a subsequent law.

Congress can also repeal or abrogate a decision decided by the Supreme Court through the enactment of a new law
that is inconsistent or that repeals the old law on which the decision or doctrine is based. This usually happens when the
decision of the SC is not in accordance with the intent or purpose of the law so they have to enact a new law, we called it
CORRECTIVE LEGISLATIVE ACT OF CONGRESS. But, such act cannot be done if it is an interpretation of the Constitution and
not an ordinary statute. Congress has no right to overturn the interpretation of the Supreme Court pertaining to the
Constitution. Since it is the official interpreter of the Constitution, the congress cannot overturn nor abrogate it by an
enactment of a statute.

In the case of Endencia vs David, the SC said that Congress cannot correct Constitutional interpretation of the Supreme
Court.

Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.

What is the duty of a judge if the law is silent? The judge must have to decide the case by all means. A judge cannot
refuse to decide a case simply because there is no law applicable. This is really the argument of the SC that it cannot
avoid a judicial legislation because there are instances where the court is confronted with a problem or a case where
there is no applicable law, but the Civil Code says the judge must have to decide the case by all means even if the law is
silent, it cannot be left hanging. He must decide.
In that instance, the judge can use the rule on EQUITY what he thinks is fair and reasonable. That is why we have the
concept of equity follows the law , which means that courts exercising equity jurisdiction are bound by the rules of law and
have no arbitrary discretion to disregard them. The rule on equity can only be applied in the absence of, but never
against the, statute or law. It should not be the other way around, you cannot use equity if there is an applicable law.

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.
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. (n)
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.
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)
THEORIES OF TERRITORIALITY
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)

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If the criminal act is committed within our territory, the Philippines has jurisdiction over it. It used the word sojourn. Our penal
laws apply.
There are however EXCEPTIONS to that. The principle of public international law and treaty stipulations.
o
One example of principle of public international law is the 1961 Vienna Convention on diplomatic relations to
which the Philippines is a signatory. In this convention, we agree to grant diplomatic immunity to diplomats or
head of the states who are in the Philippines. So an ambassador of a foreign country cannot be prosecuted
criminally in the Philippines even if they commit a crime in the Philippines because of that diplomatic immunity.
The immunity applies not only to the ambassador but to all the members of the diplomatic team.
o
Another exception is treaty stipulations. We can exempt a citizen of another country from the application of our
penal law through a treaty with that country. The best example is the RP-US military basis agreement which we
used to have before where we agree that when a US military assigned in the Subic Naval base commits a crime
in the Philippines, he is exempt from criminal liability and cannot be prosecuted in the Philippines. They will be
prosecuted through their court martial. The US court martial but not here. The agreement was terminated in 1992
when the Philippine senate decided that after the expiration of the agreement no renewal shall be entered into.
No treaty between the Philippines and the US exempting US military from the application of our penal laws. Thats
why the American soldier who raped a Filipino was tried in RTC Olonggapo.

NATIONALITY THEORY
Article 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)

Under this theory, laws relating to family rights, status, conditions and legal capacity are binding with citizens of the
Philippine wherever they may go.
But this nationality theory applies not only to Filipinos abroad but also to foreigners living in the Philippines. This means that
a foreigner is also governed by his our family code. Thats why when a foreigner marries in the Philippines he is not asked
for a birth certificate but a certificate of legal capacity to contract marriage issued by his embassy in the Philippines.
o
Why not birth certificate? Because it is not our law which governs his capacity to contract marriage. So if the
foreigner is 16 yrs old, he can get married if his national law allows him to marry. What he needs only is
certification from the embassy stating such fact from his embassy. The majority age, which is 18 yrs old, applies
only to Filipinos.

DOCTRINE OF LEX REI SITAE


Article 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found. (10a)

Another important concept in the conflict of law is the lex rei sitae rule. Lex rei sitae rule is the law where the property is
located. That will govern. Meaning, a real or personal property is governed by the law where the it is located, thats the
general rule.
If a foreigner owns a property in the Philippines, the same is protected by the laws of the Philippines. It is just fair especially
when it comes to taxation. So its governed by the national laws of the country where it is located and not by the national
law of the owner.
However when it come to intestate succession, in so far as the order of succession, amount of successional rights, intrinsic
validity of the will, it will be governed by the national law of the person whose succession is under consideration. So article
16 provides that although the real and personal property are governed by the country to where it is situated, when it
comes to inheriting these properties, it is the law of the person whose successional rights is under consideration.

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So the EXCEPTION of the lex rei sitae is the NATIONALITY THEORY. This covers both the testate and intestate succession.
o
So, a US national(State of California), whose national law does not consider illegitimate children as compulsory
heirs prevails over our law on succession which provides otherwise, illegitimate children may inherit as much as
the testator wishes to. So the testator may give his estate to whoever he wants to without violating the law on
legitime. The law in California also provides that when the testator dies in another country, the law of that country
will govern his successional rights. The law on California recognizes the domiciliary theory. Nationality theory as
against the domiciliary theory recognized in California. Which provision shall we apply?
o
The Supreme court said that the nationality theory applies only to a citizen of California who lived and died there.
The domiciliary theory applies when the citizen of California LIVES and DIES in another country, then the law of
that country prevails. This is a conflict of law case. The domiciliary theory should be applied. This is called the
RENVOI doctrine. If our court applies the nationality theory and the national law of the testator refers the case
back to us, we should apply our national law because if we refer it back to them, they may refer it back to us
also. So we have to accept it and apply Philippine law instead.

LEX LOCI CELEBRACIONES2


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.
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)

Under this rule, the law of the country where the contract was executed governs the validity of the contract. But this rule
applies only to the forms and solemnities of the contract. This does not involve the intrinsic validity of the contract. Only the
extrinsic.
When we speak of extrinsic validity, those that apply to the forms and solemnities. Extrinsic validity that applies to the
essence of the contract like capacity of the party to enter into the contract. So, whether the contract needs to be
notarized, comply with certain forms and solemnities, thats LEX LOCI CELEBRACIONES.
But if intrinsic validity, nationality rule applies. When two Filipino nationals WHO ARE MINORS went to California to get
married, the same shall be void for lack of legal capacity as required under our national law for a valid marriage, the law
in California allowing minors to get married notwithstanding. So the nationality rule applies.

If the contract is executed in the diplomatic and consular office of the Philippines abroad, our law will govern. The same
being considered as extension of our territory. Thats the PRINCIPLE ON EXTERRITORIALITY.

Prohibited laws in the Philippines cannot be made effective by foreign judgment rendered by a foreign court. So a
divorce decree in another country validly obtained by two Filipinos is not recognized in the Philippines. The nationality
theory applies. Foreign judgment has no effect in the Philippines if it runs counter with our prohibited law.

SUPPLETORY NATURE OF CIVIL CODE:


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)

What is the effect of the civil code with special laws? The rule is when the civil code conflicts with a special law, the latter
shall prevail. Civil code is applied suppletorily. There are EXEMPTIONS though, and thats by express provision of the civil
code.

I asked SIR about sa saktong spelling ani, mao kuno ni kay mao ni ang latin form. Using T kay murag Americanized form or something basta
kanang naa sa iya book nga spelling ang sundon kay siya ang mu.check sa atong exam hahaha

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In insurance cases which should be governed by the insurance code which is silent as to when a contract of insurance is
deemed perfected, the provisions in the civil code which provides that insurance contract is perfected when the
acceptance of the insurer comes into the knowledge of the insured applies.
o
So if the latter dies without him knowing of such acceptance, the insurer may not be liable. The contract of
insurance not having been perfected. The civil code is applied suppletorily.

In another case, the supreme court said that we cannot apply the civil code all the time if the special law has no
deficiency. In Dole Phil. vs Maritime company, the contract between the two parties was covered by COGSA, a special
law. When the cargo arrived, it was found out the there were damaged cargoes. Under COGSA, the prescriptive period is
one year to file a case against the shipper, but Dole Phil. did not file such and made a demand through their lawyer
instead. The demands were not acted until they filed a case after the lapse of 1 year. Maritime Co. filed a motion to
dismiss on the ground of prescription; Dole Phil. argued that the demand made by them tolls the running of the
prescriptive period as provided for by the civil code.
o
Supreme court said that the civil code cannot be made to apply because the special law(COGSA) was not
deficient. The special law should be applied, the same is being clear that a JUDICIAL demand and not
EXTRAJUDICIAL demand should be made within one year.

LAW ON HUMAN RELATIONS

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, wilfully or negligently causes damage to another, shall indemnify the latter for the
same.

The whole chapter of human relations deals with the norms and conduct one should observe in the exercise of his rights
and in the performance of his duties. Such when if you fail to observe these norms and conduct, this may rise to an action
for damages against you.

Article 19 or otherwise known as abuse of rights provides that even in the exercise of ones right, he may be held liable for
damages if he does it with bad faith. Even if its your right to do it, make sure that you do it in good faith. When you file a
civil case asking for damages, you always cite this provision. (MEMORIZE ARTICLE 19).
o
In a case where the landlord in the exercise of his right to enforce a judgment of eviction against tenant
destroyed the latters property.
o
In UE case where the school was held liable for including a student in the graduation list when he failed a subject
in law school. On the day of the graduation he was not allowed to graduate for he failed the removal exam. SC
said that there was negligence on the part of the school that caused damage to the student. Only actual
damages was awarded to the complainant in this case.

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

Another point to remember is the breach of promise to marry, the act alone may not be actionable but the aggrieved
party may claim for damages.
In a case where the SC said that even if there was no carnal knowledge but if the intention of the man is to embarrass the
woman, moral damages may be awarded. Actual damages may also be awarded for the actual cost spent for the
wedding. Damages may not be awarded if the woman was 10 years older than the man and if the sexual intercourse
made was brought about by mutual lust.

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Before we proceed with our discussion of the Family Code there are provisions that we failed to discuss and this is with regards the
law on persons.
2 Kinds of Persons
1.
2.

Natural human beings.


Juridical Corporations vested with a juridical personality, separate and distinct from its owners.

2 Concepts that we should take note


1.

2.

Juridical Capacity
a. Fitness of the person to be the subject of a legal relation.
b. Acquired at the moment of birth and lost upon death.
Capacity to Act
a. Capacity of a person to do acts with legal effect on his own.
b. Acquired when one reaches the age of majority (now 18 years old as per RA6809).
c. May be restricted or modified by certain factors even if one has reached the age of majority (i.e. insanity, deaf
mute, prodigality or civil interdiction)
d. Family Relations may also limit ones capacity to act as when a person may not enter into a contract of marriage
with his sister.
A minor for example, has Juridical Capacity but he cannot enter into a contract by himself. He would require the
assistance of a parent or guardian since he has yet to possess the Capacity to Act.
When there is already a merger of a persons Juridical Capacity and Capacity to Act, he may be referred to as a person
with FULL CIVIL CAPACITY (Sui Juris).

WHEN DO NATURAL PERSONS ACQUIRE NATURAL PERSONALITY?


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 later with the conditions specified in the following article.
General Rule: Personality is vested upon a Natural Person upon the moment of BIRTH.
Conditional Exception: PRESUMPTIVE PERSONALITY is vested upon fetuses inside the mothers womb for all purposes beneficial to it
provided that Article 41 has been complied with.
Example: A fetus may already be a Donee in a Deed of Donation.

Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb.
However, if the foetus had an 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.

A Child who had an intra-uterine life of less than 7 months needs to survive for more than 24 hours from delivery in order for
it to be deemed as born and considered as a person.
If the intra-uterine life of the Child was 7 months or more, he is deemed born and shall be considered as a person
regardless if he dies within 24 hours from delivery (thus, personality is vested from the moment of birth).
INTRA-UTERINE LIFE - the period when the fetus stayed in the womb of the mother.

Going back to the donation made to a fetus:

A donation made to a fetus inside the womb of the mother is VALID but CONDITIONAL.
If the condition in Article 41 is not met, then the donation is INVALIDATED since the donee has not acquired juridical
personality.

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Its personality while still in the womb is only PRESUMPTIVE and the donation may only be complete when he finally acquires
juridical personality subject to the conditions under Article 41.
SC ruled in the case of QUIMIGUING VS. ICAO (GR L-26795) that a conceived child is already entitled to support from the
alleged father.
However, in the case of GELUZ VS. CA (GR L-16439) SC ruled that parents are not entitled to damages for and in behalf of
their aborted child. Here, a pregnant woman is a passenger in a PUV which met an accident and the woman had an
abortion. So they filed a case against the operator and demanded damages for her unborn child. The Supreme Court
ruled that the aborted fetus is not yet a person and therefore may not yet claim damages against the operator as
represented by the parents. Although it has presumptive personality, it has not yet ripened into actual personality.

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.

RALLOS VS FELIX GO CHAN & SONS REALTY CORP. (GR L-24332) this is a case where a person appointed his friend as his
agent to sell his property. Later on, the land owner died but the agent continued to look for a buyer despite knowledge
that the landowner is already dead. He sold the land on the basis of the SPA executed by the deceased in his favor. Is the
sale valid?
o
The Supreme Court ruled that NO because when the landowner died, the agency was terminated. Death
extinguished the Contract of Agency.

PEOPLE VS TIROL AND BALDESCO (GR L-30538) if the accused in the Criminal Case dies, his criminal liability is extinguished
however, civil liability subsists.

DUMLAO VS QUALITY PLASTIC (GR L-27956) in a civil case, when the defendant is already dead when the service of
summons was effected, the service was invalid. Here, the sheriff served the summons on the defendant and when he went
to the residence of the latter, he was told that the defendant died a few days prior but still the summons was served upon
the deceased through his son. Supreme Court ruled that it was invalid because the defendant has already lost his
personality so there should have been proper substitution of parties.

Article 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died
first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they
died at the same time and there shall be no transmission of rights from one to the other.

When do we apply Article 43? Only when there is controversy as to who died first between two persons who are called to
succeed each other.
An example would be a Father and Son. We have to know who died ahead of the other in order to determine their rights
and that of their heirs.
We dont apply Rule 131 of the Rules of Court because those instances are applied only when the two persons are not
called to succeed each other.

WHO ARE CONSIDERED JURIDICAL PERSONS?


Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon
as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality,
separate and distinct from that of each shareholder, partner or member.

The State (Republic of the Philippines) and its political subdivisions, which are:
o
Provinces

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o
Cities
o
Municipalities
o
Barangays
Corporations which are Government owned or controlled (GOCCs).
Private Corporations

WHEN do they acquire juridical personality?

Effectivity of the LAW creating it, if any.


For Private Corporations, approval by the Securities and Exchange Commission.

What are the GOVERNING LAWS for the Juridical Persons?

Local Government Code


Public Corporation Law
Corporation Code of the Philippines
Civil Code (Partnerships and Associations)

What are the EFFECTS of acquiring juridical personality?

Perform acts of a natural person like sue and be sued, acquire properties, and enter into contracts.

FAMILY CODE
Brief History
Approved into law by Pres. Corazon Aquino as EO 209 and amended by EO 227. EO 209 was approved on July 6, 1987. There was
no congress at the time since it was just after the EDSA Revolution. When Marcos was driven out, Aquino assumed as a
revolutionary leader and she abolished the legislative department and exercised legislative power herself thru Executive Orders
until a new body was created. The Committee which drafted the Family Code finished it by this time that is why it was Pres. Aquino
who converted the draft into a law. The Code itself provides that it should take effect ONE YEAR after its publication in any
Newspaper of General Circulation. The last publication came out on August 4, 1987, thus it took effect on August 3, 1988 because
1988 was a leap year. The family code amended the law on Family Relations found in the Civil Code starting from Article 52 until
300-something.
Law on Family Relations
Marriage
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code.

In the Civil Code, the definition was brief and simple, however now it is more comprehensive.
SPECIAL CONTRACT

Governing Law
Parties
Termination
Freedom to
Stipulate

MARRIAGE
Law on Marriage (Family Code)
Two (Man and Woman)
Death or Annulment
Only with regards marriage
settlement

ORDINARY CONTRACTS
Law on Contracts (Civil Code)
Any number and sex
May be by voluntary termination (Terms)
Yes as long as it is not contrary to law, morals,
good customs, public order and public policy

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We do not need to amend the Constitution for Same-sex marriage to be legal, just the Family Code.
Marriage settlement or Pre-nuptial agreement the only aspect of marriage where the parties may agree as to what type
of property regime will govern them during the marriage but in all other aspects, they are not free to stipulate.
Validity of the marriage is determined by the law prevailing at the time of the celebration of the marriage. If it was valid at
the time of celebration, cannot be invalidated by a subsequent law; if void at the time of celebration, cannot be
validated by a subsequent law.
Marriage as a contract may not be restricted by discriminatory practices of individuals or corporations like the cases in
labor law discussed extensively by Atty. Marquez.
o
DUNCAN vs. GLAXO (GR 162994)
o
STAR PAPER VS ESPIRITU (GR 154006)
o
These cases are about policies of companies which tend to discriminate against marriage which the Supreme
Court ruled as VOID.
In the case of SILVERIO VS REPUBLIC (GR 174689), a homosexual who underwent sexual reassignment surgery filed a
petition with the Civil Registrar of Manila to change his sex as reflected in the birth certificate from male to female
together with his name because he wanted to marry his American boyfriend. The Supreme Court ruled that the surgery
does not convert a man into a woman for purposes of marriage. Further, corrections in the sex under the birth certificate
may only be made in cases of clerical or typographical error.
In REPUBLIC VS CAGANDAHAN (GR 166676), the Supreme Court made a ruling regarding inter-sex persons, a person who
has the sex organ of both a man and a woman (hermaphrodite). It is only him/her who knows what he/she really is
therefore the initial sex determination is not conclusive and the person may determine his/her true sex when he/she
reaches the age of majority.

REQUIREMENTS FOR A VALID MARRIAGE


1. Essential requisites
a. legal capacity
b. consent freely given
2. Formal requisites
a. Authority of a solemnizing officer
b. Valid marriage license
c. Marriage ceremony
ESSENTIAL REQUISITES:
A. Legal capacity
The marriageable age is 18 and above.

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.

Partners must be a male and female, must be at least 18 years of age and not under any of the legal impediments in articles
37 and 38
Even if you are 18 years old already, but if you are marrying someone of the same sex then you have no legal capacity to
marry
Even if you are already 18 years of age but if you are marrying one who has a legal impediment under article 37 and under
article 38, still not a valid marriage.
o
Article 37 is about impediments on incestuous marriages, marriages between descendants and descendants,
between brothers and sisters full blood or half-blood.
o
Article 38 refers to marriages to against public policy like if you are marrying your first degree cousin, a marriage
between step brother, a marriage between step parents and step children between adopting parents adapting
children etc. These are against public policy.

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B.

Consent freely given by the parties to the marriage (and voluntarily )


If the consent is vitiated, marriage is not void. Its voidable which means valid until it is annulled. When there is total absence of
consent, the marriage is void.
Example of absence of consent or total absence of consent is a marriage in jest or one meant as a joke and you dont
intend to be bound by it. It is only pakitang tao, then there is total absence of consent
Republic vs. Liberty Albios GR no. 198780 October 2013
o
Facts: A Filipino woman contracted an American man to marry her so that she will acquire American
citizenship. According to Albios, she even paid the American $2000 for that transaction, so they got
married in the Philippines. The marriage was in accordance with our law; they applied for a marriage
license etc. and after they got married the American returned to the USA with the promise to petition her.
When the American got back, the American will not any more communicate. Albios later on filed a case
to nullify her marriage on the ground that it was just a marriage in jest and therefore there was no valid
consent.
o
Ruling: It is not a marriage in jest when she married the American man. She really intended to enter into
marriage otherwise she cannot become an American. She married with the intention to become an
American citizen. The motive does not affect the validity of the marriage. A marriage entered into for the
purpose of enabling the Filipino woman to acquire the American citizenship of the man for a consideration
of $2000 is not a marriage in jest as there is a valid consent. The court said for consent to be valid it must be
1.) Freely given and 2.) made in the presence of the solemnizing officer. Freely given consent requires
that the contracting party willingly and deliberately entered into the marriage. Based on the forgoing,
consent was not lacking between the parties. There was clear intention to enter into a real and valid
marriage so as to fully comply with the requirements for application of U.S citizenship.
o
Sir: Actually here the Supreme court was saying that, you are making a mockery of our law on marriage,
you should suffer the consequences

The 2 essential elements and the 3 formal elements of marriage must be present
FORMAL REQUISITES:
Art. 3 The Formal requisites of marriage are:
1.)
Authority of the solemnizing officer
2.)
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.
1.) Authority of the solemnizing officer
o
o

The person who solemnizes the marriage should be authorized to solemnize the marriage.
If the person is not authorized to solemnize, the marriage will be void
Exception: In article 35 paragraph 2 that they believe in good faith that the person who solemnized the marriage is
authorized to solemnize marriage. The marriage becomes valid. This is the only part in the entire family code where you
can find good faith that could validate a void marriage.
The general rule is that when the marriage is void, it is really VOID and good faith cannot cure a void marriage. An
action to nullify a void marriage does not prescribe unlike in a voidable marriage which is curable so good faith can
make a voidable marriage valid. So good faith should not make a void marriage valid, for example when I married my
wife I believe in good faith then she is already 18 years old but it turns out that she was lying she was still 17 when we
got married.
Another example, When I married my wife I believe in good faith that the license that we were able to secure was a
valid license. It turns out it is not valid license but it will not make the marriage valid. There is only one good faith that
can make a void marriage valid: Good faith as to the authority of the solemnizing officer.

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2.) A valid marriage license
o
There are instances where license is not needed:
1.) Marriage under Articulo Mortis
2.) Marriage in a far and remote place
3.) Marriages between Muslims or marriage between members of the ethnic cultural communities, and
4.) Ratification of marital cohabitation which means a marriage between two persons who have already been living
together for at least 5 years

Secure the marriage license in the office of the local civil registrar where either of the parties reside
If the marriage license is not valid, then marriage is not also valid
If the marriage license presented to the solemnizing officer turns out to be a fake marriage license then there is absence of
marriage license and therefore the marriage is void

Syed Azhar Abbas vs. Gloria Goo Abbas, GR no.183896. January 30, 2013
Facts : Gloria Abas is the land lady of a boarding house. There was an Arabian student studying in manila living in the
boarding house of Gloria Go Abas. This guy must be very handsome kay gidakup man jud sa land lady. They got
married but after the marriage the middle-eastern man wanted to get out of marriage so he said I dont remember
applying for a marriage license. He went to the lawyer who found out that the marriage license presented (because it
was Gloria Go who processed the marriage license) was secured from the Local civil registrar of Carmona Cavite and
bears a number of 9969967. The lawyer went to the LCR of carmona cavite to investigate and found out that licence
9969967 was not issued to Syed Abas and Gloria go but to another person named Arlando Gilatado and Myrna
Dinolanagan. The local civil registrar of carmona cavite testified that the license was not issued to them but it was
issued to another person and that he never issued a license to Syed Abas and Gloria Go abas.
Ruling: If it is proven by sufficient evidence that said marriage license no. 9969967 allegedly issued is fake then the
marriage is void. In this case, The Local civil registrar of Carmona, Cavite issued a license but to another person, thus
the marriage of the parties is null and void for lack of a valid marriage license.
Sally Go Bangayan vs. Benjamin Bangayan Gr. No 201061, July 3, 2013
o
The Local Civil registrar of Pasig issued a certification that the purported Marriage License no. 07568 was not
issued to Benjamin and Sally.

To be considered void on the ground of an absence of a marriage license, the law requires that the absence of such must be
apparent on the marriage contract or supported by a certification from the local civil registrar that no such marriage license
was issued to the parties.

A common Law marriage is recognized in the united kingdom and united states where a man and a woman who have been
living together for quite a number of years is considered married. Such marriage is not recognized in the Philippines. We do not
have common law marriage because one of the formal requisites required here it that there should be a marriage ceremony.
So even if youve been living together for 20 years, if you did not undergo a marriage ceremony then you will never be
considered validly married.

Absence of any essential or formal requisites renders the marriage VOID


Defect in any of the essential requisite shall render the marriage only VOIDABLE
o
Defect here refers to the defect in the consent. If the consent given by the party is defective because of fraud,
intimidation, undue influence then the marriage is only VOIDABLE.
Irregularity in the formal requisite does not affect validity of marriage but the person responsible for that irregularity will be held
administratively or civilly liable.
Navarro vs. Domagtoy
o
The Supreme Court said that a judge who solemnizes a marriage outside his territorial jurisdiction is administratively
liable but the marriage is still valid.
o
Facts: Judge Domagtoy was a judge in one town in Surigao solemnizing marriage in another town which is outside
his jurisdiction, the question now here: is the marriage valid when a judge solemnizes a marriage outside his territorial
jurisdiction?

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o

Ruling: SC said yes. The marriage is still valid. This is only considered as an irregularity in one of the formal requisites but
the person who is responsible of that irregularity maybe held administratively and civilly or even criminally liable.
Judge Domagtoy was ordered to pay a fine of 20,000 pesos by the supreme court administratively.

Aranes vs. Occiano


If there is no license or there is a license but the license is fake then the marriage is void. If there is no license, marriage
is void. The marriage license must be issued before the celebration of the marriage not after the celebration
Facts: The judge was a very good friend of the groom who requested the judge to solemnize the marriage. The groom
was a retired military general and a very good friend of the judge, and the groom was already a widower and he
found a young girl who he can marry again and the groom here was already a very old man. He just had a heart
attack so he was still very weak. The judge went to the residence of the man which is actually outside the territorial
jurisdiction of the judge. Before the judge solemnized the marriage, he asked the groom where is your marriage
license. The groom said the registrar is on leave so he promised he will forward the license after the registrar comes
back. He agreed to solemnize the marriage considering the condition of his friend. The parties were able to get a
marriage license but that was several days after the marriage ceremony. Later, the General died and the children
questioned the validity of the marriage of their father and the second wife.
o
SC said there must be a license issued already before the celebration of the marriage and not after the marriage.
The marriage was void.

Cosca vs. Palaypayon


SC said if there was already a license issued but only that the parties were not able to bring it and show it to the
solemnizing officer at the time of the marriage, the marriage would still be valid. They can show it to the solemnizing
officer after the marriage and that it was issued in fact before the marriage.
Facts: The couple forgot to bring their marriage license due to excitement. Solemnizing officer said I will solemnize the
marriage but show me that the marriage license was already issued before this day. The court said its valid.

WHO issues the marriage license?


It is the office of the local civil registrar where either of the parties reside
So if the man is from Cebu city and the woman is from Mandaue city, they can apply for a marriage license in
Mandaue or in Cebu city.
If they apply for a marriage license in Santander because the local civil registrar there is their good friend, will it affect the
validity of the marriage?

No, that is an only irregularity. The marriage is still valid but the person responsible for that shall be held
responsible.

If the marriage is solemnized in the consular office abroad between two Filipinos, they must also apply for a marriage license
and the one who will issue the marriage license is also the consul. The consul plays a dual role being the solemnizing officer
and the LCR.

The DOCUMENTS that must accompany your application for a marriage license:
1. Birth certificate
o If there is none then baptismal certificate or joint affidavit
o There are however instances that birth certificate is NO longer needed:
a. When the parents of the party will personally appear before the local civil registrar and vouch that their son or
daughter is of legal age. The local civil registrar will ask the father or mother of the applicant to sign an affidavit,
stating that child is of legal age and have it notarized (can be liable for perjury)
b. When the local civil registrar by looking at the face of the applicant is convinced that he is over 18 years of age
c. When the applicant has already been married previously. He will be asked to produce a death certificate of the
previous spouse or annulment decree.
2. If a party to the marriage is between 18 to 21 years old, parental consent is required. Voidable if no parental consent.
3. If the party is between the ages of 21 to 25, parental advice is required. In either case you need a certificate of marriage
counselling when you are aged 18 to 25 because parental consent or advice is required.
The applicant will undergo a seminar about family planning and any authorized marriage counselor of the
government will issue this. If you will marry in the church, you undergo a pre-cana seminar and after that you will

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be issued a certificate of a marriage counselling because the counselor here will discuss with you what are your
duties and responsibilities as husband and wife

Once the local civil registrar receives the application and finds everything in order he will put a notice of the application to be
published, which means the posting to the public that you are applying for a marriage license and it is done in the bulletin
board outside the office of the local civil registrar. It will be posted there for at least 10 days.

After 10 days, the license will be issued. The purpose of the notice is to notify the public that pedro and maria are planning to
get married, so that if anyone in the community who is aware that they have legal impediment to marry, they will come
forward and inform the local civil registrar. If the local civil registrar is already informed, he has no authority to withhold issuance
of a license even with the knowledge of the impediments. He has to issue the license after the lapse of 10 days unless there is a
court order enjoining him from issuing. There must be an injunction or TRO issued by the court.

The court will not issue an injunction or TRO if there is no case filed, so someone should file a case asking the court to issue a
TRO to stop the local civil registrar from issuing the license.

Once the license is issued it is valid for 120 days from the date of issuance. It can be used anywhere in the Philippines, provided
that you use it within 120 days. After the laps of 120 days from the issuance, the marriage license now becomes void and can
make a marriage void for being without a valid license.

That is what Article 18 says and in fact if you have no money to pay for the license it will also be given to you for free.
The license now costs only 300 pesos and if you cannot afford it, it will be given to you for free so that you will be able to
get married. You know the government is encouraging you to get married even if you dont have 300 pesos.

VALIDITY OF THE LICENSE3

Once the license is issued it is valid for 120 days from the date of issuance and it can be used anywhere in the Philippines

The license issued by the local civil registrar of Cebu City can be used in Tawi-Tawi and even in Batanes provided that you
use it within 120 days.

What happens if the marriage was solemnized after the lapse of the 120-day period from the issuance:
The marriage now becomes void.
It is now a marriage without a valid license.
When an applicant to a marriage license is a foreigner he is not required to bring his birth certificate.
Instead he is required to present a certificate of legal capacity to contract marriage. This in line with the nationality theory.
So a foreigner even if he is still fifteen years old, therefore a minor according to our law, the foreigner can get married in the
Philippines provided he secures a certificate of legal capacity to contract marriage from his own consular office or embassy here
in the Philippines because his capacity to marry is determined by his own national law.

3.) Marriage Ceremony

There is no prescribed form in the solemnity of celebrating marriage


It simply consists in the appearance of the parties before the solemnizing officer and then personally declare that they take
each other as husband and wife and it is done in the presence of at least two witnesses who are of legal age
They have to personally declare that they take each other as husband and wife. This is very important, representatives are not
allowed. Thats why marriage by proxy is not valid in the Philippines. The law requires personal appearance of the parties
before the solemnizing officer where they personally declare that they take each other as husband and wife

Slight reiteration lang ha?

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Art. 7. Marriage may be solemnized by:


(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and
registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect
and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.

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

The venue must be followed but an EXCEPTION is if both parties requested solemnization to be elsewhere. The request must be
in writing and there must be a valid reason why you want to solemnize the marriage outside these places.
o
The minutes of the deliberation of the lawmakers was very clear that this is an exception to the rule on marriage
to be solemnized on these places but there must be a valid reason. Some valid reason is a person could be very
sickly he could no longer walk to the church so celebrated in the house; another when they are celebrities so
secluded resort. Nowadays this has been abused.
o
It will not affect the validity of the marriage. The marriage will be valid but the person responsible for this
irregularity may be held administratively liable.

What happens after the marriage is solemnized by the judge or by the priest:
The last part of the marriage ceremony is the signing of the marriage contract
After the ceremony the parties will now sign the marriage contract which we call as the marriage certificate.
How many copies of the marriage certificate to be prepared:
4 copies of the marriage certificate will be prepared by the solemnizing officer.
Where will these copies go:
The first original copy will go to the contracting party
The 2nd and the 3rd copy-local civil registrar
The 4th copy- retained by the solemnizing officer together with the other ccompanying documents (e.g. marriage license)
Who will keep the marriage license:
The solemnizing officer
So he will be keeping the marriage license, other accompanying documents and the fourth copy of the marriage
certificate
Some will say why only one copy will be given to the parties? It is because under our law once you get married you are
considered as one. So you will be given only one copy.
But why 2 copies to the local civil registrar when he is only one?
2 copies to the local Civil Registrar because the other copy will be forwarded to Manila, to the NSO or the Civil
Registrar General.
Is a marriage certificate an important requirement to the validity of marriage:

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The answer is NO. Marriage certificate in fact is not one of the essential and formal requisites for a valid marriage.
So what is the effect if there is no marriage certificate that can be shown by the parties:
The absence of marriage certificate does not affect the validity of the marriage. In fact marriage can be proven
by parole evidence, by oral evidence. There is always a presumption in law, and this is one of the disputable
presumptions in law that when a man and a woman have been living together as husband and wife for many
years, the law presumes them to be lawfully married.
Since the presumption is in favor of marriage, whoever claims that there was no marriage between them has the
burden of proof. The burden of proof is shifted to the one who claims that there was no marriage.
This is because the law already creates a presumption that when a man and a woman lived together under one
house as husband and wife they are lawfully married.
So these are illustrated in many cases.
As what I have said if a man and a woman have been living together for more than 50 years, the presumption is
that they are lawfully married. Semper tri somitor nupro patrimonio. Always presume marriage.
In the matter of Intestate Estate of Josefa Delgado vs. Guillermo Rustia
Doctrine: The absence of a marriage contract does not mean there was no marriage. The presumption is always in favor
of marriage.
Perigrina Macua Vda. De Avenido vs. Tecla De Avenido, G.R. No. 173540 (2014)
Facts: This is a recent ruling applying this basic principle.
This is a case of a married couple. They got married in Bohol before the second World War andnd they begot 3
children.
When the war broke out, the husband, fled to Mindanao, leaving his wife and 3 children in Bohol. And while he
was in Mindanao, he stayed there until the war ended and he did not anymore return to Bohol. He found another woman
in Mindanao. So he got married in Davao. In other words, he got married the second time.
Until he died. After his death, the legal wife in Bohol learned about the death of the husband, she now claimed
for the inheritance from the estate since his husband had many properties. So the second wife in Davao fought it out with
the first wife in Bohol over the inheritance.
Now the second wife was able to prove his marriage to the man by presenting their marriage contract.
The first wife could no longer show their marriage contract because according to her it was destroyed during the
war.
Ruling: The Supreme Court favored the first wife.
According to the Supreme Court, even if the first wife could no longer show their marriage contract that does not
mean that they were not married.
The evidence presented by the first wife s convincing enough to show that they were really married even if there
was no marriage contract presented.
During the hearing of the case, the first wife was able to present the following evidences: the birth certificate of
the 3 children showing who their father was, the brothers and the sisters of the deceased husband also testified that their
brother was married to this woman before the war, and there was also a testimony from one of their principal sponsors of
the marriage.
Even if you will not be able to present a marriage contract, it does not matter for as long as you can prove that
there was marriage. These evidences are sufficient.
On the other hand, the second wife was able to present their marriage contract, but according to the Supreme
Court, that marriage is bigamous because the first marriage was not yet dissolved.

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LEX LOCI CELEBRACIONES
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law. (As amended by Executive Order 227)
Article 26 is divided into 2 parts:
The first paragraph deals with the lex loci celebritiones rule which is says that a marriage solemnized abroad, if considered as valid
there when it was celebrated, it shall be recognized as valid here in the Philippines for as long as they are not prohibited by Article
35 (456) 36 37 38
Lex loci celebraciones means if the contract is celebrated abroad and it is valid there, we shall recognize it as valid here except if
the marriage solemnized abroad is one of the void marriages in Article 35 (456) 36 37 38 in that case, we will never recognize it as
valid here.
Article 35 - Void ab initio marriage
Paragraph 1 - When one of the parties is a minor, below 18 years of age
Paragraph 4 - When the marriage is a bigamous marriage
Paragraph 5 - Marriage by mistake in identity
Paragraph 6 - Marriage which are considered void under Article 52
Article 36 - Void marriage because one of the parties is psychologically incapacitated
Article 37 - Incestuous marriage
Article 38 - Void against public policy
If your marriage that was solemnized abroad is one of the void marriages enumerated, the lex loci celebraciones rule will not
apply.
If you got married abroad and you are both Filipinos and your wife was still 17 years old, it will never be considered as valid here
because it falls under the exception paragraph 1 of Article 35.
What if two Filipinos got married abroad and the marriage was done by proxy which kind of marriage is considered as valid in the
place where it was celebrated, can we recognize that as valid here?
Yes, it can be valid here. It is not one of the exceptions. So marriage by proxy abroad may be allowed. Those enumerated
exceptions are exhaustive and we have a rule that if there is an enumeration, what is not included are deemed excluded.
The second paragraph of article 26 is actually an amendatory provision that was introduced by Executive Order No. 227, 11 days
after the Family code was approved by President Cory Aquino.
The Family Code was approved by Cory on July 6, 1987 pursuant to EO No. 209, 11 days after, there were amendments that were
introduced and these amendments were contained in EO 227. These amendments later introduced are the more controversial
ones now. We have Art 26 par 2 and the other one is Article 36 on psychological incapacity.
A marriage with a foreigner where the latter obtains a divorce against a Filipino spouse, capacitating the foreigner to remarry,
entitles the Filipino spouse to also remarry.
This amendment was inserted or introduced to the Family Code in order to avoid the injustices created to Filipinos married to
Foreigners, especially at that time there were many Filipino women who got married to foreigners and after the marriage the
foreigner went home and did not anymore communicate with the Filipina wife. The next thing you know, the foreigner spouse
already got married abroad because been divorced which can be easily secured abroad.

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Because we do not recognize divorce obtained abroad, under our law, the Filipina wife is still married to that man. And that would
be very unfair to the Filipino women. The Filipina wife is still married to a man who is no longer married to her. And it is our law that
dictates that you are still married to that man.
In order to correct that, we have the second paragraph of Article 26. This is the reason why this was passed as an amendment.
Can the Filipino spouse immediately remarry after learning of the divorce obtained by the husband:
The answer is NO. You have to do something.
Our courts will not take judicial notice to a foreign judgment.
So the remedy is t file a petition for recognition of a foreign judgment of divorce. You file it here in our courts- the Regional
Trial Court.
And once it is recognized, then your marriage to a foreigner here in the Philippines will now be considered dissolved, and
you are now free to remarry.
Garcia-Recio vs. Recio
Doctrine: If you read Art. 26, it provides that it should be a marriage between a foreigner and a Filipino. It is the foreigner spouse
who filed the divorce capacitating him to remarry. Because if it is the Filipino spouse who filed the divorce, that is not recognized
here. It should be the foreigner spouse.
Republic vs. Cipriano Obrecido
Facts: Both were Filipinos at the time of the marriage but later on one of them became a foreigner, and after becoming a
foreigner, she filed a divorce.
This case is quite controversial because the Supreme Court was even accused here of judicial legislation. This is because
both of the parties were Filipinos when they got married. Later on, after they begot 2 kids, the wife went to the United States to
work as a nurse.
While being there, she applied for US citizenship. In the mean time, the husband was left in Zamboanga. After she
obtained, her American citizenship, she immediately filed a divorce against her husband. The case was filed in the United States
and it was granted by the US court. After it was granted, she married an American, named Innocent Stanley.
When the husband learned about the divorce, the husband consulted a lawyer to know if he can also remarry. And the
lawyer in Zamboanga said yes since there is a new law, Art 26 paragraph 2 of the Family Code.
So the husband filed a petition in the RTC of Zamboanga and it was entitled, Petition to Remarry. The Court of Zamboanga
granted the petition to Remarry. And the OSG appealed the case to the SC.
Ruling: The Supreme Court said that the Petition that was filed was wrong. There is no such thing as Petition to Remarry in our law.
But considering the novelty of the issue raised and the need to resolve it, we will entertain even if the Petition to Remarry filed was
wrong.
The correct action for petition to be filed here was Declaratory Relief; you ask the court to decide on what are your rights
under this law.
So you ask the court, what your rights are under Article 26 of the Family Code. Ask the court if you can I also remarry
considering that both of us were Filipinos at the time of our marriage.
The Supreme Court ruled in favor of the husband. Article 26 paragraph 2, will apply even if both parties are Filipinos at the
time of the marriage. What is important is that at the time one of the parties filed the divorce, she is no longer a Filipino, she is
already a foreigner.
Some lawyers argued that the Supreme Court is wrong and it is making its own law. If you read the deliberation of the
committee that drafted this law, the intention was really for a mixed marriage only; for a mixed marriage, one is a Filipino and the
other is a foreigner at the time of the marriage.
But the Supreme Court here ruled that it doesnt matter for as long as at the time the divorce was filed, she was no longer
a Filipino at the time she filed the divorce. What is important is the date of the filing of the divorce.

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Quita vs. CA, reiterated in Llorente vs. CA
Doctrine: The Supreme Court in deciding the case of Obrecido cited cases and said that prior to the Obrecido ruling, it was said
that a Filipino spouse who filed a divorce against their foreigner spouse is not capacitated to remarry here in the Philippines. The
Filipino spouse is still governed by her national law.
But if the Filipino spouse has already acquired the citizenship of her husband, by virtue of the marriage, and thereafter
obtained a divorce against the foreigner husband, such divorce is considered as valid here, not because of Article 26 but because
of our adherence to the Nationality Principle insofar as the status of the person is concerned.
In these two cases here, the SC said if a Filipina has now acquired a foreign citizenship, she is no longer a Filipino for all
intents and purposes. And when he files a divorce at the time when he is already naturalized, it will be recognized here. Not
because he is a Filipino but because he is already a foreigner because of the nationality theory.
As said earlier it was in the case of Garcia-Recio vs. Recio that the Supreme Court said that if the foreigner spouse already
filed a divorce which was granted, this would not ipso facto entitle the Filipino spouse to remarry.
Before the Filipino spouse can remarry, he first prove in court the fact of the divorce obtained by the foreigner spouse and
also the fact that the foreigner spouse is capacitated by his national law to remarry after the divorce.
The divorce obtained abroad must first be presented in court as a FACT.
A foreign law or judgment must first be established as a fact before our court will take judicial recognizance of that. If you
cannot prove it, then our court will not recognize it.
What you need to prove:
1. Divorce was validly issued by a competent court
2. That the foreigner spouse who obtained the divorce is now capacitated to remarry under his national law
Edilina Ando vs. DFA (2014)
Doctrine: Absence of judicial recognition of a foreign divorce by our court, renders the subsequent marriage with Filipina wife null
and void.
Facts: Edilina Ando was married to Japanese. Then the Japanese husband went home in Japan and filed a divorce against Edilina
and then married another Japanese.
Edilina was left here in the Philippines and also found another Japanese, Mr. Ando. But she did not file a judicial
recognition of the divorce filed by her first Japanese husband she just married Mr. Ando directly.
Later on, after they got married, Mr. Ando decided to bring Edilina to Japan. So Edilina filed for the renewal of her
Philippine passport. She requested with the DFA to change her family name to Ando.
The DFA denied her request. She presented her marriage contract, and the foreign divorce decree showing that her first
marriage was already dissolved.
Since her petition was denied by the DFA, she now went to the SC.
Ruling: The SC said, first of all, the case should have been dismissed for non-exhaustion of administrative remedies.
Under the law, if your petition for renewal of your passport is denied by the DFA your remedy is to first go to the Secretary
of Foreign Affairs and then to the Office of the President before you can go to court.
But the SC waived this because the issue was interesting.
SC said, well you are now married to a second Japanese and your first marriage was already dissolve. But you did not go
to court to have your first marriage declared dissolved by virtue of the divorce obtained by your first foreigner husband petition for
judicial recognition of foreign judgment of divorce.
Without doing that and you contracted a second marriage, your second marriage is bigamous and therefore you have
no right to insist that you carry the surname Ando because your marriage is bigamous.
The point is failure to have the divorce judgment obtained abroad recognized by our court, does not entitle you to
contract a second marriage.
If you do that you will be liable for bigamy or that your second marriage is null and void.

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Bayot vs. CA (2008)
Doctrine: A divorce obtained by a former Filipino who has now acquired American citizenship is recognized as valid here in the
Philippines if sufficiently proven as a fact in court.
The SC said the filing of Petition to Declare Nullity of Marriage on the ground of psychological incapacity against the
husband in the Philippines; the same is no longer tenable.
Given the validity and efficacy of the divorce secured by her abroad the same shall be given a res judicata effect.
Therefore the petition under Article 36 is dismissible for lack of cause of action.

Lavadia vs. Heirs of Juan Luna, G.R. No. 171914, July 23, 2014
Doctrine: The absolute divorce obtained by a Filipino spouse abroad is not valid here because of our adherence to the Nationality
Theory.
Facts: Juan Luna is a well known lawyer in Manila. Since he had not been in good terms with his wife, they had been separated de
facto. So they agreed to have a divorce but since there is no divorce in the Philippines, they agreed to go to Dominican Republic.
They got divorced and then they dissolved their conjugal partnership and separated their properties which was also approved by
the Dominical Republic Court
Later on the wife went to the United States and the husband remarried here. After died Atty. Juan Luna died.
So the issue arose between the second wife and the first wife and the children as to the properties of the deceased.
Issue: Is the divorce obtained in the Dominican Republic valid?
Ruling: NO. When both of them obtained the divorce, they were both Filipinos and are governed by the Philippine law.
As to the subsequent separation of properties, the same is not also valid considering that the marriage was not dissolved
and so there is no cause to dissolve the conjugal partnership.
As to the second marriage, the same is bigamous since the first marriage was not dissolve. The property relation between
the deceased and the second wife is governed by co-ownership in Art. 148 of the FC which is by actual contribution.
Since the second wife was not able to prove that she has contributed in acquiring the disputed property, then this belongs
to the conjugal partnership between the deceased and the first wife.
Fujiki vs. Marinay and Maekara
Doctrines: A foreign judgment by the Japanese Court declaring the marriage between a Filipina and Japanese as null and void on
the ground of bigamy can be given recognition in the Philippine court
The first husband is the proper person to bring the action. It may be made in a petition for cancellation or correction of entry in the
Civil Registry under Rule 108 of the Rules of Court. Fujiki, the first husband, has personality to file the action or petition for recognition
of a foreign judgment because it concerns his civil status as married to Marinay, his Filipina wife.

Noveras vs. Noveras, G.R. No. 188289, August 20, 2014


Doctrine: The requirements in recognizing a foreign divorce decree is found in Rule 132, Sec. 24 and 25 in relation to Rule 39, Sec.
48(b) the Rules of Court.
Section 24, Rule 132:
The record of a public document of a foreign or a sovereign authority or tribunal may be proved here in the Philippines by:
1. An official publication thereof;
2. A copy attested by the officer having legal custody thereof.
3. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that
the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine
embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of
his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof,
as the case may be, and must be under the official seal of the attesting officer.

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You get a copy of the foreign divorce decree that copy must be attested to by the person having legal custody of that
document- the Clerk of Court of the Court that rendered the divorce judgment in the foreign country. It is attested by the
Clerk of Court who will attest that it is a genuine copy.

Then submit it to the Philippine embassy in that place. It will be authenticated by the Philippine embassy. The Philippine
embassy will attest to the fact that that court that rendered judgment is a genuine existing court and that the one issuing
the certification is a legitimate employee of the court and a person who has legal custody thereof.

Sec 25, Rule 132:


Whenever a copy of a foreign document or record is attested for the purpose evidence the attestation must state in substance
that the copy is a correct copy of the original or a specific part thereof and the attestation must be under the seal of the attesting
officer.

Sir discussed the Property Regime thinking this is where he should start. But the truth of the matter is that, we are still in Art.26 J4
Default Regime if theres no marriage settlement
Old law Conjugal Partnership of gains
New Absolute of Community property regime
This commences at the precise moment of the celebration of marriage. Once you get married, you cannot change anymore your
property regime.
Absolute Community
cannot waive the interest, rights, shares or effects until marriage is dissolved by death, annulment, nullity or legal
separation.
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6),
36, 37 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law. (As amended by Executive Order 227)
NOVERAS vs. NOVERAS
FACTS:
David A. Noveras (David) and Leticia T. Noveras (Leticia) were married on 3 December 1988 in Quezon City, Philippines. They
resided in California, where they eventually acquired American citizenship. They own properties in the USA and in the Philippines.
Due to business reverses, David left the USA and returned to the Philippines in 2001. According to Leticia, sometime in September
2003, David abandoned his family and lived with Estrellita Martinez in Aurora province. Leticia obtained a decree of divorce from
the Superior Court of California in June 2005 wherein the court awarded all the properties in the USA to Leticia. With respect to their
properties in the Philippines, Leticia filed a petition for judicial separation of conjugal properties.
RULING:
The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial
notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our
rules on evidence, together with the aliens applicable national law to show the effect of the judgment on the alien himself or
4

Oh ha, effort jud kaau si joanne paminaw sa kani nga part bisan wala pay labot sa iya i.transcribe kay nasaup si SIR. *palakpakan* J

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herself. The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes
the foreign decree as an integral aspect of his claim or defense. Specifically, for Philippine courts to recognize a foreign judgment
relating to the status of a marriage, a copy of the foreign judgment may be admitted in evidence and proven as a fact under Rule
132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court.
Based on the records, only the divorce decree was presented in evidence. The required certificates to prove its authenticity, as
well as the pertinent California law on divorce were not presented.
Attys Discussion:
In this case, the SC laid down the procedures on how to conduct the judicial recognition of the foreign divorce judgment. A
divorce obtained abroad cannot automatically be recognized in the Philippines if theres no judicial recognition.
v Marriages exempt from the requirement of marriage license:
Chapter 2. Marriages Exempted from License Requirement
Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without
necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a)
Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the
local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or
that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages
and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract,
shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the
period of thirty days after the performance of the marriage. (75a)
Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at
least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.
(4 exemptions Articulo Mortis, Far & Remote areas, Muslims or Ethnic, and Ratification)
1.

Articulo Mortis

Any of those enumerated in Art.7 may solemnize such marriage


i. Ship captain / airplane chief only marriage under articulo mortis

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2.

3.

ii. Priest, rabi, imam, minister, judges regular marriages & articulo mortis
iii. Consuls only in the consular office and BOTH Filipinos
iv. Mayors- under local govt code
conducted in Far and Remote areas/ places

OLD law more than 15 kilometers away from the office of the local civil registrar (this definition from the old law
was no longer reproduced in the new code)

NEW CODE - means a place NOT accessible by any other means of transportation (no jeepney, or bus that goes
to the place)
by Muslims or Ethnic cultural communities

must be between Muslims

if 1 Muslim and the other Christian, you still need to obtain marriage license (still FC and not muslim code PD 1083)

ZAMORANOS vs. PACASUM


FACTS:
On May 3, 1982, lady lawyer Zamoranos wed Jesus de Guzman, a Muslim convert, in Islamic rites. Prior thereto, Zamoranos
was a Roman Catholic who had converted to Islam on April 28, 1982. Subsequently, on July 30, 1982, the two wed again,
this time, in civil rites before Judge Laguio of the RTC, Quezon City. A little after a year, on December 18, 1983, Zamoranos
and De Guzman obtained a divorce by talaq. The dissolution of their marriage was confirmed by the Sharia Circuit District
Court, 1st Circuit, 3rd District, Isabela, Basilan, which issued a Decree of Divorce on June 18, 1992.
Zamoranos married anew on December 20, 1989. As she had previously done in her first nuptial to De Guzman, Zamoranos
wed Samson Pacasum, Sr. (Pacasum), under Islamic rites in Balo-i, Lanao del Norte. Thereafter, Zamoranos and Pacasum
renewed their marriage vows in a civil ceremony before Judge Salazar of the RTC, Iligan City. However, unlike in
Zamoranos first marriage to De Guzman, the union between her and Pacasum was blessed with progeny, namely:
Samson, Sr., Sam Jean, and Sam Joon. But then the relationship between Zamoranos and Pacasum turned sour and, in
1998, the two were de facto separated. The volatile relationship of Zamoranos and Pacasum escalated into a bitter battle
for custody of their minor children.
RULING:
If both parties are Muslims, there is a presumption that the Muslim Code or Muslim law is complied with. If together with it or
in addition to it, the marriage is likewise solemnized in accordance with the Civil Code of the Philippines, in a so-called
combined Muslim-Civil marriage rites whichever comes first is the validating rite and the second rite is merely ceremonial
one. But, in this case, as long as both parties are Muslims, this Muslim Code will apply.
Attys Discussion:
There were many cases he filed here against his wife 1) disbarment, 2) falsification and 3) bigamy. Pacasum said that
Zamoranos prior marriage was not yet dissolved as we were married twice (muslim and civil rites). The SC said that a
marriage between Muslims done under muslim rites, and later on by civil rites is governed by the Muslim Code (PD 1083)
and NOT by the Family Code a divorce by talaq is valid and no bigamy is committed. The marriage by the RTC judge is
merely a confirmatory marriage since they were BOTH muslims (mura ra gud nag nagpakasala kas huwes, then sa pari,
confirmatory ra ang pari).
ATILANO O. NOLLORA JR. vs. CA
FACTS:
Assistant City Prosecutor Raymond Lledo filed an Information against Atilano O. Nollora, Jr. and Rowena P. Geraldino for
the crime of Bigamy. Information states: accused ATILANO O. NOLLORA, JR., being then legally married to one JESUSA

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PINAT NOLLORA, and as said marriage has not been legally dissolved and still subsisting, did then and there willfully,
unlawfully and feloniously contract a subsequent or second marriage with her co-accused ROWENA P. GERALDINO, who
knowingly consented and agreed to be married to her co-accused.
RULING:
The circumstances in the present case satisfy all the elements of bigamy. (1) Nollora is legally married to Pinat; (2) Nollora
and Pinats marriage has not been legally dissolved prior to the date of the second marriage; (3) Nollora admitted the
existence of his second marriage to Geraldino; and (4) Nollora and Geraldinos marriage has all the essential requisites for
validity except for the lack of capacity of Nollora due to his prior marriage.
Attys Discussion:
Many Filipino men converted themselves into Muslims in the belief that they can marry many times because Muslims are
allowed to marry up to 4 times. Here, Mr Atilano converted himself and got married to his 1st wife who is a Christian then he
abandoned her and married another Christian wife. His defense was that he is a Muslim. SC said that NO, you are still guilty
of Bigamy even if you converted since your wife is a Christian and a marriage between a Muslim and Christian is governed
by the FAMILY code, same goes with the 2nd marriage as your 2nd wife is still a Christian.
ESTRELLITA JULIANO-LLAVE vs. REPUBLIC
FACTS:
Around 11 months before his death, Sen. Tamano married Estrellita twice initially under the Islamic laws and tradition on
May 27, 1993 in Cotabato City and, subsequently, under a civil ceremony officiated by an RTC Judge at Lanao del Sur on
June 2, 1993. In their marriage contracts, Sen. Tamanos civil status was indicated as divorced. Since then, Estrellita has
been representing herself to the whole world as Sen. Tamanos wife, and upon his death, his widow.
On November 23, 1994, private respondents Haja Putri Zorayda A. Tamano (Zorayda) and her son Adib Ahmad A. Tamano
(Adib), in their own behalf and in behalf of the rest of Sen. Tamanos legitimate children with Zorayda, filed a complaint
with the RTC of Quezon City for the declaration of nullity of marriage between Estrellita and Sen. Tamano for being
bigamous. The complaint alleged, inter alia, that Sen. Tamano married Zorayda on May 31, 1958 under civil rites, and that
this marriage remained subsisting when he married Estrellita in 1993.
RULING:
As far as Estrellita is concerned, Sen. Tamanos prior marriage to Zorayda has been severed by way of divorce under PD
1083, the law that codified Muslim personal laws. However, PD 1083 cannot benefit Estrellita. Firstly, Article 13(1) thereof
provides that the law applies to "marriage and divorce wherein both parties are Muslims, or wherein only the male party is
a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines." But we
already ruled in G.R. No. 126603 that "Article 13 of PD 1083 does not provide for a situation where the parties were married
both in civil and Muslim rites."
Moreover, the Muslim Code took effect only on February 4, 1977, and this law cannot retroactively override the Civil Code
which already bestowed certain rights on the marriage of Sen. Tamano and Zorayda. The former explicitly provided for the
prospective application of its provisions unless otherwise provided.
Attys Discussion:
This is about a famous Muslim Senator named Mamintal AJ Tamano who married his Muslim wife in year 1958 under the
Muslim and Civil Rights. This is governed by the Civil Code since at that time, there was yet no Muslim Code (PD only took

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effect in year 1977). His marriage is bigamous. First wife won against the 2nd wife. The 1st marriage was governed by the
Civil Code.

4.

Ratification of marital cohabitation

When:
i. man and woman living together as husband and wife for more than 5 years and
ii. without legal impediment to marry each other

But when should this absence of legal impediment be considered? In the old civil code of the Philippines, the two
elements must qualify each other. It means that during that period of cohabiting, they should not have any legal
impediment to marry each other.

Now comes the NEW Family Code which took effect on Aug 3, 1988, the SC in a very controversial case of
Manzano vs Sanchez said that it is not necessary for a man and a woman to have no legal impediment to marry
each other during the 5-year cohabitation since the absence of legal impediment to marry each other is
necessary ONLY at the time you decide to marry each other- considered at the time of the marriage. This ruling
decided in 2001 was disagreed by many because if this were the case, then we are giving a reward to those who
enter into an illicit relationship as illustrated in the case of

NIAL vs. BAYADOG


FACTS:
Pepito Nial was married to Teodulfa Bellones on September 1974. Out of their marriage were born herein petitioners.
Teodulfa was shot by Pepito resulting in her death on April 1985. One year and 8 months thereafter, Pepito and
respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an
affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and
were thus exempt from securing a marriage license.
On February 1997, Pepito died in a car accident. After their father's death, the main case here is the settlement of the
estate. But then petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the
said marriage was void for lack of a marriage license.
RULING:
The 5-year period should be the years immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning no third party was involved at anytime within the 5 years and
continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to
whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning
immorality and encouraging parties to have common law relationships and placing them on the same footing with those
who lived faithfully with their spouse.
In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other as
husband and wife for at least five years prior to their wedding day. Even assuming that Pepito and his first wife had
separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted
for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law.
Attys Discussion:
This is a case that happened in Toledo City where a married man abandoned his wife to live with another woman or his
kabit for more than 5 years. Later on, his wife died and in fact, he was suspected to have caused her death. Thereafter,
he married his kabit and simply executed an Affidavit of cohabitation of 5 years or without a marriage license (Art.34).
Later on, he died and so theres a quarrel of the estate he left behind. These all happened before 1988 (the wifes death

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and the subsequent marriage) or before the Family Code took effect. However, the SC decided it AFTER the Family Code
took effect.
But how did SC rule? The children of the 1st wife get the share while the 2nd wife cannot (her marriage is null and void
because of the absence of a marriage license. N.B. not bigamous here kay lahi nang bigamous but null and void due to
the absence of the said license since man has legal impediment while he was cohabiting with kabit since his 1st wife was
still alive at that time). The SC used the Civil Code because the validity of the marriage is determined by the law prevailing
at the time of celebration of such marriage (2nd marriage celebrated BEFORE Family Code took effect). The Civil Code
was clear that 5-year cohabitation must be attended with the absence of legal impediment. Thats why the other casethe Manzano case was full of criticism since it encourages immorality. Finally, the SC ruled in the case of:
OFFICE of the COURT ADMIN vs. JUDGES NECESSARIO, ACOSTA, TORMIS & ROSALES
(A.M. No. MTJ-07-1691 )
FACTS:
This is an administrative case that stemmed from the Memorandum of the OCA. The judicial audit team created by the
OCA reported alleged irregularities in the solemnization of marriages in several branches of the MTCC and RTC in Cebu
City. Certain package fees were offered to interested parties by "fixers" or "facilitators" for instant marriages. So a female
and male lawyer of the audit team went undercover as a couple looking to get married. They went to the Palace of
Justice and inside Branch 4, a woman named Helen approached and assisted the female lawyer. When the female
lawyer asked if the marriage process could be rushed, Helen assured the lawyer that the marriage could be solemnized
the next day, but the marriage certificate would only be dated the day the marriage license becomes available. Helen
also guaranteed the regularity of the process for a fee of three thousand pesos (P3,000) only. The team reported that out
of the 643 marriage certificates examined, 280 marriages were solemnized under Article 34 of the Family Code. There is
also an unusual number of marriage licenses obtained from the local civil registrars of the towns of Barili and Liloan, Cebu.
RULING:
Marriages of exceptional character such as those made under Article 34 are, doubtless, the exceptions to the rule on the
indispensability of the formal requisite of a marriage license. Under the rules of statutory construction, exceptions as a
general rule should be strictly but reasonably construed. The affidavits of cohabitation should not be issued and accepted
pro forma particularly in view of the settled rulings of the Court on this matter. The five-year period of cohabitation should
be one of a perfect union valid under the law but rendered imperfect only by the absence of the marriage contract. The
parties should have been capacitated to marry each other during the ENTIRE period and NOT only at the time of the
marriage.
Attys Discussion:
These 4 Judges were all City Court judges of Cebu City and they were all unceremoniously dismissed without any benefits
because of the marriage scam or fixed marriages in Cebu. This decision was carried out on April 2013. This happened
because SC sent discreetly a team to investigate- 2 lawyers (a man and woman) pretended to get married and asked
how to get married and they were told to pay and naay fixer. So they found out many anomalies, most were done in
accordance with Art.34 (without license). And then theres a syndicate Judge who would solemnize the marriage. Its also
funny since it was reported that some Judges conducted more marriages than hearing a case (mura na nuon silag pari).
And many were marriages of 18 year old Filipinas and Foreigners. (So it would imply that within the 5yr-cohabitation, 13
year old pa ang pinay?) So here, SC said that we should clarify our rules and so the parties should have been capacitated
to marry each other during the ENTIRE period of cohabitation and NOT only at the time of the marriage. So now, we got
back to the old ruling.
(When you go to Manila next year to review, I heard that theres this Reviewer who would say that No, the case of OCA
should not be considered as having abandoned the ruling in Manzano as it (OCA case) was merely an obiter dictum. Well

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for me, I was about to ask that reviewer and say that will you please read Manzano as this case is as well an obiter dictum.
This Manzano case is an administrative case against a judge)5
v

Query: Can a judge notarize the Affidavit of Cohabitation of parties whose marriage they will solemnize? NO, as held in the
case of:
TUPAL vs. JUDGE REMEGIO V. ROJO (AM no MTJ-14-1842)
FACTS:
Rex M. Tupal filed with the OCA a complaint against Judge Remegio V. Rojo for violating the Code of Judicial Conduct and
for gross ignorance of the law. Judge Rojo presides in MTCC, Branch 5, Bacolod City, Negros Occidental. Judge Rojo allegedly
solemnized marriages without the required marriage license. He instead notarized affidavits of cohabitation and issued them
to the contracting parties. He notarized these affidavits on the day of the parties marriage. These "package marriages" are
allegedly common in Bacolod City.
RULING:
As a solemnizing officer, the judges only duty involving the affidavit of cohabitation is to examine whether the parties have
indeed lived together for at least five years without legal impediment to marry. Affidavits of cohabitation are documents not
connected with the judges official function and duty to solemnize marriages. Notarizing affidavits of cohabitation is
inconsistent with the duty to examine the parties requirements for marriage. If the solemnizing officer notarized the affidavit of
cohabitation, he cannot objectively examine and review the affidavits statements before performing the marriage
ceremony. Should there be any irregularity or false statements in the affidavit of cohabitation he notarized, he cannot be
expected to admit that he solemnized the marriage despite the irregularity or false allegation. Thus, judges cannot notarize the
affidavits of cohabitation of the parties whose marriage they will solemnize. Affidavits of cohabitation are documents not
connected with their official function and duty to solemnize marriages.
Attys Discussion:
This was a case in Bacolod City. The SC said that a judge CANNOT notarize an Affidavit of Cohabitation whose marriage they
will solemnize. Based on law and the Guidelines on the Solemnization of Marriage by the Members of the Judiciary, the person
who notarizes the contracting parties affidavit of cohabitation cannot be the judge who will solemnize the parties marriage.
Why? Because his duty is only to examine whether the parties have indeed lived together for at least five years without legal
impediment to marry.

Query: What happens if the Affidavit of Cohabitation submitted to the Solemnizing officer turns out to contain falsified
statements (i.e. the truth was that they have not been living together for more than 5 years)? What is its effect? As held in the
cases of:
REPUBLIC vs. DAYOT
FACTS:
Jose and Felisa were married at the Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza. In lieu of a
marriage license, Jose and Felisa executed a sworn affidavit, also dated 24 November 1986, attesting that both of them had
attained the age of maturity, and that being unmarried, they had lived together as husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint for Annulment and/or Declaration of Nullity of Marriage with the RTC, Laguna. He
contended that his marriage with Felisa was a sham, as no marriage ceremony was celebrated between the parties; that he

Nah hala, manila poison reviewer pa more or gross ignorance of the law na? tsktsktsk

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did not execute the sworn affidavit stating that he and Felisa had lived as husband and wife for at least five years; and that his
consent to the marriage was secured through fraud.
RULING:
The falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisas cohabitation, which would have
qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to
a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential
matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no
affidavit at all. An action for nullity of marriage is imprescriptible. Jose and Felisas marriage was celebrated sans a marriage
license. No other conclusion can be reached except that it is void ab initio.
DE CASTRO VS. ASSIDAO-DE CASTRO
FACTS:
Petitioner and respondent became sweethearts in 1991 and planned to get married, thus they applied for a marriage license
in September 1994. They had their first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter.
When the couple went back to the Civil Registrar, the marriage license had already expired. Thus, in order to push through with
the plan, in lieu of a marriage license, they executed an affidavit dated March 1995 stating that they had been living together
as husband and wife for at least five years. The couple got married on the same date.
In 1998, respondent filed a complaint for support against petitioner. Petitioner denied that he is married to respondent,
claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was merely
prevailed upon by respondent to sign the marriage contract to save her from embarrassment due to her pregnant state. He
also averred that they never lived together as husband and wife and that he has never seen nor acknowledged the child.
RULING:
The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses
with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as
husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is
to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of
persons outside a valid marriage due to the publication of every applicants name for a marriage license.
In the instant case, there was no "scandalous cohabitation" to protect; in fact, there was no cohabitation at all. The false
affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it
is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a
marriage license renders their marriage void ab initio.
Attys Discussion:
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. The reason for the law on ratification
without any marriage license required is that the publicity attending a marriage license may discourage such persons who
have lived in a state of cohabitation from legalizing their status.
The lesson we learned here is that if an affidavit contains untruthful statements, then the marriage is void. It is without a valid
marriage.
KINDS OF DEFECTIVE MARRIAGES

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There are only two kinds of defective marriages:
1)
2)

VOID ART. 35, 36, 37, 38, 40 & 53


VODABLE ART. 45 only
VOID

VOIDABLE

Void from the very beginning


void ab initio
GR: does not produce any effect

valid until annulled

cannot be ratified

can be ratified (defects of marriage can be cured)

can be attacked collaterally (the case you filed is not


about the validity of the marriage but you raised the
issue of the validity of marriage, so just collaterally
since it is necessary to the determination of the main
issue i.e the case of Nial)

attack directly (you have to file a case in court


precisely to declare your marriage void. The title will
be Annulment of the marriage on the ground of blank
(___)

Action is imprescriptible (i.e Psychological incapacity,


nangapo na sila, pwede gihapon ka file)

period of 5 years generally within which to annul the


marriage, after the lapse then cannot anymore annul
most of voidable marriages have defects or vices in
the consent (force, intimidation, undue influence)

Caption is: Declaration of Nullity of Marriage

Caption is: Annulment of marriage

Suppose that you were coerced by your husband to marry him, that marriage is voidable. You can annul it within a specific
period. 5 years from the time the force or intimidation ceases or when it is through fraud, 5 years from the discovery of fraud.
What happens if after the marriage to your husband who coerced you, maayo raman diay siyag batasan, buotan raman
sad diay? Ay di nalang ipaannul ui. So nilapas ang 5 years as you did not file a case. This is an example of ratification.

MALLION vs. ALCANTARA (2006)


FACTS:
On October 24, 1995, petitioner Oscar P. Mallion filed a petition with the RTC of San Pablo City seeking a declaration of nullity of his
marriage to respondent Editha Alcantara under Article 36 of the Family Code, citing respondents alleged psychological
incapacity. The case was docketed as Civil Case No. SP 4341-95. After trial on the merits, the RTC denied the petition upon the
finding that petitioner "failed to adduce preponderant evidence." The appeal filed with the Court of Appeals was likewise
dismissed for failure of petitioner to pay the docket and other lawful fees within the reglementary period.
After the decision in Civil Case No. SP 4341-95 attained finality, petitioner filed on July 12, 1999 another petition for declaration of
nullity of marriage with the RTC of San Pablo City, this time alleging that his marriage with respondent was null and void due to the
fact that it was celebrated without a valid marriage license. For her part, respondent filed an answer with a motion to dismiss
praying for the dismissal of the petition on the ground of res judicata and forum shopping.
RULING:
By definition, a cause of action is the act or omission by which a party violates the right of another. In both petitions, petitioner has
the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of
action is predicated. The present action for declaration of nullity of marriage on the ground of lack of marriage license is barred by
the decision in Civil Case No. SP 4341-95 which already attained finality.
Attys Discussion:
The court denied the petition. It was strict. But then he really wanted to dissolve their marriage so he found another loophole, and
that it was the absence of a valid marriage license. So file siyag 2nd nullity, but SC said you cannot do that. An action to declare a

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marriage void is only one cause of action (review Civil Procedure- put all grounds available, Omnibus motion rule). There cannot
be any piecemeal since you will be violating a rule against Multiplicity of suits. SC dismissed. Served as res judicata.
Under the rules of court, any person who is affected by the validity of the marriage can bring an action. If the husband filed this,
then eventually cohabited with another (so Bigamous), and the children are illegitimate, then husband died. The children cannot
file a nullity case since they are still covered and they are barred from filing due to res judicata.
Chapter 3. Void and Voidable Marriages
Art. 35. The following marriages shall be VOID from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either
or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling 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.
Different types of Void Marriages:
I.

Void ab initio (Art. 35)


1. below 18 years of age
even if the entire family consents, still it is void. The defect cannot be curable.
2.

solemnized by a person not authorized to solemnize a marriage


except when either or both of the parties believe in good faith that the person who solemnized such
marriage had the legal authority to do so
this is the ONLY portion of the Family Code where you can find GOOD FAITH as a ground to validate
what is an otherwise void marriage since the General rule is: when marriage is Void, it cannot produce
anything and good faith is not generally a defense. So for example:
a. you married your wife thinking she was already 18 and turns out she was only 17. So will
your good faith make your marriage valid? NO.
b. You married your wife thinking that the license is true and turns out it was a fake one. So
will your good faith make your marriage valid? NO.

3.

when there is an absence of a marriage license (exceptions Art. 27-34)

4.

bigamous or polygamous marriage


Bigamous when there is a prior, subsisting marriage which has not been legally dissolved
Polygamous more than 2 ( 3 or 4) and a prior, subsisting marriage which has not been legally dissolved

5.

Those contracted through mistake of one contracting party as to the identity of the other; and
Ex. The person you married before a priest or a judge, turns out to be not the real person that you
intended to marry. The consent you gave in front of the solemnizing officer is not for that person that
you are marrying, it is intended for another person.

6.

Those subsequent marriages that are void under Article 53.

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Article 53 should be read in conjunction with Article 52.

Article 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and
incidents are governed by law and not subject to stipulation, except that the marriage settlements may to a
certain extent fix the property relations during the marriage. (n)
Article 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.
Article 52 provides that when a Court dissolves your marriage through a decree of annulment or a decree
declaring your marriage void, you should not remarry right away. The following should be complied with first:
1. Have the decree of annulment recorded in the office of the local civil registry;
2. The partition of the conjugal property between the former spouses should also be recorded in the
office of the register of deeds;
Failure to comply with the foregoing will make the subsequent marriage void.
Article 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.
Brief History of the Origin of Psychological Incapacity as a ground for annulment.
A provision not found in the original draft of the Family Code. It contained a chapter on absolute divorce. But the Roman Catholic
Church was very much against it, and they lobbied and opposed the approval of absolute divorce in the Family Code. So the
provision on absolute divorce was removed. But the framers of the Family Code and the members of Congress wanted to have a
provision in the Family Code where couples who are no longer living together and whose marriages could never be saved, may be
allowed to find another partner. So the framers copied the provisions of the Canon Law.
The Church has been annulling marriages. There is even a Matrimonial Tribunal of the Roman Catholic Church and they grant
annulment of marriages. So the framers studied the basis for the annulment granted by the church. In Canon 1095 of the Canon
Law provides for 3 grounds for the annulment of marriages :
Canon 1095. The following are incapable of contracting marriage:
1.

those who lack sufficient use of reason;

2.

those who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and obligations to
be mutually given and accepted;

3.

those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage.

However, the Canon Law does not provide for an exact definition of Psychological Incapacity. So the framers decided to copy
the ground and incorporated the same in the Family Code. The ground was then introduced as an amendment 11 days after Cory
Aquino signed the original draft of the Family Code.
President Aquino approved the Family Code through EO 279, and she signed it on July 6, of 1987. On July 17 or 11 days after, Cory
Aquino signed another EO 227 which introduced some amendments to the Family Code.
PSYCHOLOGICAL INCAPACITY, defined
No clear and precise definition. According to the framers, no exact definition was given to give the judges a greater leeway in
deciding for themselves which marriages are worth saving and what cannot be saved.

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Minimum Definition : The inability or incapacity of the spouse to comply with any of the essential marital obligations due to
psychological reasons.
3 ELEMENTS OF PSYCHOLOGICAL INCAPACITY
1. Juridical antecedence - The incapacity of the spouse must already be existing at the time of the celebration of the
marriage. But it was discovered by the other spouse only during the marriage.
2. Gravity - The defect must be very serious
3. Incurability
The Supreme Court repeats these 3 elements every time they decide cases regarding psychological incapacity. The 3 elements
must be present, if one is absent there is no psychological incapacity.
Psychological incapacity according to the SC does not mean insanity.
An insane person does not know what he is doing. A psychologically incapacitated person, knows very well what he is doing. He is
aware, he just cant perform an essential marital obligation.
CASES :
LEOUEL SANTOS vs. CA
204 SCRA 20 (310 Phil. 21)
Note: This was the first case where the term psychological incapacity was discussed by the Supreme Court.
FACTS :
Leouel Santos, a member of the Army, met Julia Rosario Bedia in Iloilo City. In September 1986, they got married. The couple later
lived with Julias parents. Julia gave birth to their son in 1987. Their marriage, however, was marred by the frequent interference of
Julias parents, as averred by Leouel. The couple also occasionally quarrelled about as to, among other things, when should they
start living independently from Julias parents. In 1988, Julia went to the US to work as a nurse despite Leouels opposition. 7 months
later, she and Leouel got to talk and she promised to return home in 1989. She never went home that year. In 1990, Leouel got the
chance to be in the US due to a military training. During his stay, he desperately tried to locate his wife but to no avail. Leouel, in an
effort to at least have his wife come home, filed a petition to nullify their marriage due to Julias alleged psychological incapacity.
Leouel asserted that due to Julias failure to return home or at least communicate with him even with all his effort constitutes
psychological incapacity. Julia filed an opposition; she said that it is Leouel who is incompetent. The prosecutor ascertained that
there is no collusion between the two. Leouels petition is however denied by the lower and appellate court.
ISSUE: Whether or not psychological incapacity is attendant to the case at bar.
HELD:
No. Before deciding on the case, the SC noted that the Family Code did not define the term psychological incapacity, which is
adopted from the Catholic Canon Law. But basing it on the deliberations of the Family Code Revision Committee, the provision in
PI, adopted with less specificity than expected, has been designed to allow some resiliency in its application. The FCRC did not
give any examples of PI for fear that the giving of examples would limit the applicability of the provision under the principle of
ejusdem generis. Rather, the FCRC would like the judge to interpret the provision on a case-to-case basis, guided by experience,
the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. The term psychological
incapacity defies any precise definition since psychological causes can be of an infinite variety.
Article 36 of the Family Code cannot be taken and construed independently of but must stand in conjunction with, existing
precepts in our law on marriage. PI should refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage

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which (Art. 68), include their mutual obligations to live together, observe love, respect and fidelity and render help and support.
The intendment of the law has been to confine the meaning of PI to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition
must exist at the time the marriage is celebrated. The SC also notes that PI must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be 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.
In the case at bar, although Leouel stands aggrieved, his petition must be dismissed because the alleged PI of his wife is not clearly
shown by the factual settings presented. The factual settings do not come close to the standard required to decree a nullity of
marriage.

REPUBLIC vs. CA and MOLINA


268 SCRA 198 (335 Phil. 664)
Note: Provides for the Guidelines in Applying Article 36 of the Family Code. The SC was alarmed because lower court judges, due
to the wide leeway given to them in determining the applicability of Article 36, laid down the jurisprudential guidelines in
determining the presence of Psychological incapacity.
FACTS :
In 1985, Roridel Olaviano married Reynaldo Molina. They begot one child. But in 1990, Roridel filed a petition to have her marriage
be declared void on the ground that Reynaldo is psychologically incapacitated to perform the essential marital obligations.
Roridel alleged that Reynaldo was a highly immature and habitually quarrelsome individual who thought of himself as a king to be
served; and that it would be to the couples best interest to have their marriage declared null and void in order to free them from
what appeared to be an incompatible marriage from the start. A psychologist testified in favor of Roridel and the doctors
testimony was given weight by the trial court hence, the marriage was declared void. The decision was affirmed by the Court of
Appeals.
ISSUE: Whether or not the finding of psychological incapacity is proper.
HELD:
No. In the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to
be more of a difficulty, if not outright refusal or neglect in the performance of some marital obligations. Mere showing of
irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity.
The Supreme Court also noted in this case that there has been a difficulty by courts and lawyers in applying the concept of
psychological incapacity. Hence, the SC handed down the following guidelines in the interpretation and application of Art. 36 of
the Family Code:
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 the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution
and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family,
recognizing it as the foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution at
the whim of the parties. Both the family and marriage are to be protected by the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and
solidarity.
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. Article 36 of the Family Code requires that the incapacity

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must be psychologicalnot physical, although its manifestations and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known
the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis,
nevertheless such 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. The evidence must show that the
illness was existing when the parties exchanged their I dos. The manifestation of the illness need not be perceivable at such time,
but the illness itself must have attached at such moment, or prior thereto.
4. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children
as an essential obligation of marriage.
5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus,
mild characterological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The
illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is
a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.
6. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.
7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:
The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due
to causes of psychological nature.
Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it
stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate
tribunal. Ideally subject to our law on evidencewhat is decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious
interpretation is to be given persuasive effect. Here, the State and the Churchwhile remaining independent, separate and apart
from each othershall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the
family as the inviolable base of the nation.
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating
therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095. (No longer applicable, see discussion below)

CHI MING TSOI vs. CA and GAINA LAO-TSOI


GR NO. 119190 January 16, 1997

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FACTS:
Ching married Gina on May 22, 1988 at the Manila Cathedral, Intramuros, Manila as evidenced by their marriage contract. After
the celebration they had a reception and then proceeded to the house of the Ching Ming Tsois mother. There they slept together
on the same bed in the same room for the first night of their married life.

Ginas version: that contrary to her expectations that as newlyweds they were supposed to enjoy making love that night of their
marriage, or having sexual intercourse, with each other, Ching however just went to bed, slept on one side and then turned his
back and went to sleep. There was no sexual intercourse between them that night. The same thing happened on the second, third
and fourth nights.
In an effort to have their honey moon in a private place where they can enjoy together during their first week as husband and wife
they went to Baguio City. But they did so together with Chings mother, uncle and nephew as they were all invited by her husband.
There was no sexual intercourse between them for four days in Baguio since Ching avoided her by taking a long walk during siesta
time or by just sleeping on a rocking chair located at the living room.

They slept together in the same room and on the same bed since May 22, 1988 (day of their marriage) until March 15, 1989 (ten
months). But during this period there was no attempt of sexual intercourse between them. Gina claims that she did not even see
her husbands private parts nor did he see hers.
Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag. Results were that Gina is healthy,
normal and still a virgin while Chings examination was kept confidential up to this time.
Gina claims that her husband is impotent, a closet homosexual as he did not show his penis. She said she had observed him using
an eyebrow pencil and sometimes the cleansing cream of his mother. She also said her husband only married her to acquire or
maintain his residency status here in the country and to publicly maintain the appearance of a normal man
Chings version: he claims that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with Gina. He
does not want their marriage annulled for reasons of (1) that he loves her very much (2) that he has no defect on his part and he is
physically and psychologically capable (3) since the relationship is still very young and if there is any differences between the two
of them, it can still be reconciled and that according to him, if either one of them has some incapabilities, there is no certainty that
this will not be cured.
Ching admitted that since his marriage to Gina there was no sexual contact between them. But, the reason for this, according to
the defendant, was that every time he wants to have sexual intercourse with his wife, she always avoided him and whenever he
caresses her private parts, she always removed his hands.
ISSUE:
Whether or not Ching is psychologically incapacitated to comply with the essential marital obligations of marriage
HELD:
The Supreme Court affirmed the decisions of the trial court and Court of Appeals in rendering as VOID the marriage entered into by
Ching and Gina on May 22, 1988. No costs.
The Supreme Court held that the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a
sign of psychological incapacity. If a spouse, although physically capable but simply refuses to perform his or her essential marriage
obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity
than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
One of the essential marital obligations under the Family Code is to procreate children based on the universal principle that
procreation of children through sexual cooperation is the basic end of marriage. Constant non-fulfilment of this obligation will

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finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill this marital obligation is equivalent to psychological incapacity.
While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity, the
sanction therefore is actually the spontaneous, mutual affection between husband and wife and not any legal mandate or court
order (Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the
cruellest act of a partner in marriage is to say I could not have cared less. This is so because an ungiven self is an unfulfilled self.
The egoist has nothing but himself. In the natural order, it is sexual intimacy that brings spouses wholeness and oneness. Sexual
intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures
the continuation of family relations.
NYMPHOMANIAC
A wife who is a nymphomaniac may be considered psychologically incapacitated. She cannot perform an essential marital
obligation fidelity, to be faithful to the husband. A nymphomaniac can never be satisfied or contended with the husband alone.
They will always look for other men who will satisfy their sexual desires. Even if they know that they should not have sex with other
men, their mind dictates that they have to do it. So they are not able to perform an essential marital obligation.
PERSONAL MEDICAL OR PSYCHOLOGICAL EXAMINATION
First Ruling of the Court in Marcos vs Marcos : Not a requirement for the declaration of psychological incapacity. There is no need
to subject the spouse to a psychological test.
MARCOS vs MARCOS
343 SCRA 755 (397 Phil. 840)
Note : On Psychological Test Requirement
FACTS :
Wilson and Brenda were military personnel working at the Malacaang. They got married in 1982. After the EDSA Revolution, they
left the military and led a civilian life.
However, Wilson found it hard to get a job while Brendas business started to take off as a result of her hard work. Unfortunately,
due to Wilsons failure to engage in any gainful employment, the spouses frequently quarrelled. Wilson would verbally and
physically abuse Brenda and would even force her to have sex with him even if Brendas too tired from work. Wilson would also
excessively chastise their children even for slight mistakes.
In 1994, Brenda had too much of Wilsons abuses. She decided to file a petition to have their marriage be annulled on the ground
of psychological incapacity. Brenda alleged that Wilsons drunkenness, joblessness, and failure to give material and moral support
to his family constitute psychological incapacity. During the pendency of the case, Brenda requested Wilson to undergo
psychological examination but Wilson refused to submit himself to tests. Brenda submitted herself to tests and was also interviewed
by a competent psychologist as to the psychological state of her husband.
After said interview, the psychologist submitted that Wilson is psychologically incapacitated. The Regional Trial Court granted
Brendas petition. On appeal, the Court of Appeals reversed the RTC on the ground that the petition should not have been
granted because Wilsons psychological incapacity was never proven due to the fact that Wilson was never subjected to
psychological evaluation.
ISSUE: Whether or not psychological examination is required as a condition sine qua non for a declaration of psychological
incapacity.
HELD: No. Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of
evidence presented. There is no requirement, however, that the respondent in an annulment case should be examined by a
physician or a psychologist as a condition sine qua non for such declaration.

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In this case, Wilson refused to submit himself to psychological evaluation. Hence, his psychological incapacity may be ascertained
through other sources. Further, in the case of Republic vs. CA and Molina, the guidelines set therein did not require that a physician
examine the person to be declared psychologically incapacitated. In fact, the root cause may be medically or clinically
identified. What is important is the presence of evidence that can adequately establish the partys psychological condition. For
indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical
examination of the person concerned need not be resorted to.
But in this case, was Wilsons psychological incapacity proven?
No. The Supreme Court used the totality of evidence rule. Based on the totality of evidence presented, Brenda failed to establish
that Wilson is psychologically incapacitated. Psychological Incapacity must exist at the time of the marriage. In this case, Wilsons
behavior only arose when he failed to find gainful employment. Verily, the behavior of Wilson can be attributed to the fact that he
had lost his job and was not gainfully employed for a period of more than six years. It was during this period that he became
intermittently drunk, failed to give material and moral support, and even left the family home.
Second Ruling : In Matias vs. Dagdag. The Court said expert testimony of a psychologist evaluating the behavioural pattern of a
person allegedly suffering a psychological incapacity are extremely helpful.
RP vs. ERLINDA MATIAS DAGDAG
G.R. No. 109975. February 9, 2001
FACTS:
On September 7, 1975, Erlinda Matias, 16 years old, married Avelino Parangan Dagdag, 20 years old, at the Iglesia Filipina
Independent Church in Cuyapo, Nueva Ecija. The marriage certificate was issued by the Office of the Local Civil Registrar of the
Municipality of on October 20, 1988. Erlinda and Avelino begot two children. The birth certificates were issued by the Office of the
Local Civil Registrar of the Municipality of Cuyapo, Nueva Ecija also on October 20, 1988. A week after the wedding, Avelino
started leaving his family without explanation. He would disappear for months, suddenly re-appear for a few months, and then
disappear again. During the times when he was with his family, he indulged in drinking sprees with friends and would return home
drunk. He would force his wife to submit to sexual intercourse and if she refused, he would inflict physical injuries to her.
In October 1993, he left his family again and that was the last that they heard from him. Erlinda learned that Avelino was
imprisoned for some crime, and that he escaped from jail and remains at large to-date. In July 1990, Erlinda filed with the RTC of
Olongapo City a petition for judicial declaration of nullity of marriage on the ground of psychological incapacity. Since Avelino
could not be located, summons was served by publication in the Olongapo News, a newspaper of general circulation. On the
date set for presentation of evidence, only Erlinda and her counsel appeared. Erlinda testified and presented her sister-in-law as
her only witness.
The trial court issued an Order giving the investigating prosecutor until January 2, 1991 to manifest in writing whether or not he
would present controverting evidence, and stating that should he fail to file said manifestation, the case would be deemed
submitted for decision. The Investigating Prosecutor conducted an investigation and found that there was no collusion between
the parties.
However, he intended to intervene in the case to avoid fabrication of evidence. Without waiting for the investigating prosecutors
manifestation, the trial court declared the marriage of Erlinda and Avelino void under Article 36. The investigating prosecutor filed a
Motion to Set Aside Judgment on the ground that the decision was prematurely rendered since he was given until January 2, 1991
to manifest whether he was presenting controverting evidence. The Office of the Solicitor General likewise filed a Motion for
Reconsideration of the decision on the ground that the same is not in accordance with the evidence and the law. Since the trial
court denied the Motion for Reconsideration, the Solicitor General appealed to the CA. The CA affirmed the decision of the trial
court holding that Avelino Dagdag is psychologically incapacitated not only because he failed to perform the duties and
obligations of a married person but because he is emotionally immature and irresponsible, an alcoholic, and a criminal.
ISSUE:
Did the CA correctly declare the marriage as null and void under Article 36 of the Family Code, on the ground that the husband

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suffers from psychological incapacity, as he is emotionally immature and irresponsible, a habitual alcoholic, and a fugitive from
justice?
HELD:
Whether or not psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than
in any field of law, on the facts of the case. Each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of marriage, it is
trite to say that no case is on all fours with another case. The trial judge must take pains in examining the factual milieu and the
appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.
In REPUBLIC VS. MOLINA, the Court laid down the GUIDELINES in the interpretation of Article 36 of the Family Code.
Taking into consideration these guidelines, it is evident that Erlinda failed to comply with the above-mentioned evidentiary
requirements. Erlinda failed to comply with guideline number 2 which requires that the root cause of psychological incapacity must
be medically or clinically proven by experts, since no psychiatrist or medical doctor testified as to the alleged psychological
incapacity of her husband. Further, the allegation that the husband is a fugitive from justice was not sufficiently proven. In fact, the
crime for which he was arrested was not even alleged. The investigating prosecutor was likewise not given an opportunity to
present controverting evidence since the trial courts decision was prematurely rendered.
Guideline Number 7 : WEIGHT OF THE DECISION OF THE MATRIMONIAL TRIBUNAL OF THE ROMAN CATHOLIC CHURCH
Must be given great weight and should have persuasive and effect. Mainly because we copied the provision on psychological
incapacity from the Canon Law. This guideline as enunciated in the Case of Molina, was first applied in the case of Antonio vs.
Reyes :
ANTONIO vs. REYES
G.R. No. 155800
FACTS:
In 1990, Leo married Marie, the latter being ten years his senior. In 1993, Leo filed to annul the marriage due to Maries
Psychological Incapacity. Leo claimed that Marie persistently lied about herself, the people around her, her occupation, income,
educational attainment and other events or things. She would claim that she is a psychologist but she is not. Shed claim she is a
singer with the company Blackgold and that she is the latters number 1 money maker but shes not. Shed also spend lavishly as
opposed to her monthly income. She fabricates things and people only to serve her make believe world. Leo presented an expert
that proved Maries PI. Marie denied all Leos allegations and also presented an expert to prove her case. The RTC ruled against
Marie and annulled the marriage. The Matrimonial Tribunal of the church also annulled the marriage and was affirmed by the
Vaticans Roman Rata. The CA reversed the decision hence the appeal.
ISSUE:
1. How should the decision of the Matrimonial Tribunal of the Church be appreciated;
2. Whether or not PI is attendant to the case.
HELD:
1. The Court of Appeals clearly erred when it failed to take into consideration the fact that the marriage of the parties was annulled
by the Catholic Church. The appellate court apparently deemed this detail totally inconsequential as no reference was made to it
anywhere in the assailed decision despite petitioners efforts to bring the matter to its attention. Such deliberate ignorance is in
contravention of Molina, which held that interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

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As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the invalidity of the marriage in question, citing
the "lack of due discretion" on the part of respondent. Such decree of nullity was affirmed by both the National Appellate
Matrimonial Tribunal, and the Roman Rota of the Vatican. In fact, respondents psychological incapacity was considered so grave
that a restrictive clause was appended to the sentence of nullity prohibiting respondent from contracting another marriage without
the Tribunals consent.
Evidently, the conclusion of psychological incapacity was arrived at not only by the trial court, but also by canonical bodies. Yet,
we must clarify the proper import of the Church rulings annulling the marriage in this case. They hold sway since they are drawn
from a similar recognition, as the trial court, of the veracity of petitioners allegations. Had the trial court instead appreciated
respondents version as correct, and the appellate court affirmed such conclusion, the rulings of the Catholic Church on this matter
would have diminished persuasive value. After all, it is the factual findings of the judicial trier of facts, and not that of the canonical
courts, that are accorded significant recognition by this Court.
2. Yes, Psychological Incapacity is attendant. The guidelines established in the Molina case is properly established in the case at
bar.
The SC also emphasized what fraud means as contemplated in Art 45 (3) of the FC vis-a-vis Art 46 of the FC. In PI, the
misrepresentation done by Marie points to her inadequacy to cope with her marital obligations, kindred to psychological
incapacity. In Art 45 (3), marriage may be annulled if the consent of either party was obtained by fraud, and Article 46 which
enumerates the circumstances constituting fraud under the previous article, clarifies that 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. These provisions of Art 45 (3) and Art 46 cannot be applied in the case at bar because the misrepresentations done by
Marie is not considered as fraud but rather such misrepresentations constitute her aberrant behaviour which further constitutes PI.
Her misrepresentations are not lies sought to vitiate Leos consent to marry her. Her misrepresentations are evidence that Marie
cannot simply distinguish fiction/fantasy from reality which is so grave and it falls under the fourth guideline laid down in the Molina
Case.
DISCUSSION : The husband in this case also filed a case of annulment in the Matrimonial Tribunal of the Church. The annulment was
granted. The decisions of the Tribunal are reviewed by the Roman Rota of the Vatican which affirmed the decision of the Tribunal.
Because of that, the Supreme Court gave great weight to the case and granted the petition. Due to the prior grant of annulment
by the Tribunal which was affirmed by the Vatican, the Court also granted the petition in order to show respect to the decision of
the Church.
The decision of the National Appellate Matrimonial Tribunal to be given weight and respect by our courts must be anchored in
Canon 1095 par. 3 which is the basis of Article 36. Thus if the decision is based on par. 2 of Canon 1095, the court should not give
weight to it. (Najera vs. Najera)
This ruling was reiterated in the case of Mallilin vs. Jamesolamin :

MALLILIN vs. JAMESOLAMIN


GR No. 192718 February 18, 2015
FACTS:
Robert and Luz were married in 1972. They begot three children. On 16 March 1994, Robert filed a case for annulment of their
marriage on the ground of psychological incapacity under Article 36 of the Family Code. Roberts petition was tried by the family
court (RTC) of CDO. Robert alleged that at the time of the celebration of their marriage, Luz was suffering from psychological and
mental incapacity and unpreparedness to enter into such marital life and to comply with its essential obligations and
responsibilities. He alleged that such incapacity became even more apparent during their marriage when Luz exhibited clear
manifestation of immaturity, irresponsibility, deficiency of independent rational judgment, and inability to cope with the heavy and
oftentimes demanding obligation of a parent. (In the meantime, Roberts petition with Metropolitan Tribunal and the National
Matrimonial Tribunal of the Catholic Church was granted and their marriage declared void) After the hearing, the family court
granted the petition but the Court of Appeals reversed family court and declared that there is no psychological incapacity.
ISSUE :

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Whether or not the Court of Appeals is correct in declaring that there is no psychological incapacity to warrant annulment of
marriage.
RULING : Court of Appeals is correct.
What is psychological incapacity within the meaning of Article 36 of the Family Code of the Philippines?
Psychological incapacity, as a ground to nullify a marriage under Article 36 of the Family Code, should refer to no less than a
mental not merely physical incapacity that causes a party to be truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family
Code, among others, include their mutual obligations to live together; observe love, respect and fidelity; and render help and
support. There is hardly a doubt that the intendment of the law has been to confine the meaning of psychological incapacity to
the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage.
What characterizes psychological incapacity to constitute grounds for annulment of marriage?
a) gravity
c) incurability
b) juridical antecedence and
The incapacity must be grave or serious such that the party would be 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 only emerge
after the marriage. It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.
Guidelines in resolving petitions for declaration of nullity of marriage.
(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 the marriage and against its dissolution and nullity.
(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. Article 36 of the Family Code requires that the incapacity
must be psychological not physical, although its manifestations and/or symptoms may be physical.
(3) The incapacity must be proven to be existing at the time of the celebration of the marriage.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.
Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband
and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our courts.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state.
When can the evidence of psychological incapacity be considered as medically and clinically indentified?
Based on the records, Robert failed to prove that Luzs disposition of not cleaning the room, preparing their meal, washing the
clothes, and propensity for dating and receiving different male visitors, was grave, deeply rooted, and incurable within the
parameters of jurisprudence on psychological incapacity. The alleged failure of Luz to assume her duties as a wife and as a

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mother, as well as her emotional immaturity, irresponsibility and infidelity, cannot rise to the level of psychological incapacity that
justifies the nullification of the parties marriage. The Court has repeatedly stressed that psychological incapacity contemplates
downright incapacity or inability to take cognizance of and to assume the basic marital obligations, not merely the refusal,
neglect or difficulty, much less ill will, on the part of the errant spouse. Indeed, to be declared clinically or medically incurable is
one thing; to refuse or be reluctant to perform ones duties is another. Psychological incapacity refers only to the most serious cases
of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.
Is sexual perversion or promiscuity of an errant spouse alone enough to constitute psychological incapacity? When can sexual
promiscuity be considered psychological incapacity?
No. As correctly found by the CA, sexual infidelity or perversion and abandonment do not, by themselves, constitute grounds for
declaring a marriage void based on psychological incapacity. Robert argues that the series of sexual indiscretion of Luz were
external manifestations of the psychological defect that she was suffering within her person, which could be considered as
nymphomania or excessive sex hunger. Other than his allegations, however, no other convincing evidence was adduced to
prove that these sexual indiscretions were considered as nymphomania, and that it was grave, deeply rooted, and incurable within
the term of psychological incapacity embodied in Article 36. To stress, Roberts testimony alone is insufficient to prove the
existence of psychological incapacity. . respondents act of living an adulterous life cannot automatically be equated with a
psychological disorder, especially when no specific evidence was shown that promiscuity was a trait already existing at the
inception of marriage. The petitioner must be able to establish that the respondents unfaithfulness was a manifestation of a
disordered personality, which made her completely unable to discharge the essential obligations of the marital state.
(Please observe however the tenor of the underscored portion of the decision. Roberts argument that nymphomania constitutes
psychological incapacity might have been considered had it been backed up with proper evidence.
What is the probative value of the decision of the National Matrimonial Tribunal of the Catholic Church?
the decision of the Metropolitan Tribunal is insufficient to prove the psychological incapacity of Luz. Although it is true that in the
case of Republic v. Court of Appeals and Molina, the Court stated that interpretations given by the NAMT of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts, still it is subject to the law on
evidence. Thus: Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith
of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such
appellate tribunal. Ideally subject to our law on evidence what is decreed as [canonically] invalid should be decreed civilly
void x x x. Pertinently, Rule 132, Section 34 of the Rules of Evidence provides: The court shall consider no evidence which has not
been formally offered. The purpose of which the evidence is offered must be specified. In this regard, the belated presentation of
the decision of the NAMT cannot be given value since it was not offered during the trial, and the Court has in no way of
ascertaining the evidence considered by the same tribunal.
In this regard, the belated presentation of the decision of the NAMT cannot be given value since it was not offered during the trial,
and the Court has in no way of ascertaining the evidence considered by the same tribunal.
Granting that it was offered and admitted, it must be pointed out that the basis of the declaration of nullity of marriage by the
NAMT was not the third paragraph of Canon 1095 which mentions causes of a psychological nature similar to Article 36 of the
Family Code, but the second paragraph of Canon 1095 which refers to those who suffer from grave lack of discretion of judgment
concerning essential matrimonial rights and obligations to be mutually given and accepted.
Hence, Roberts reliance on the NAMT decision is misplaced. To repeat, the decision of the NAMT was based on the second
paragraph of Canon 1095 which refers to those who suffer from a grave lack of discretion of judgment concerning essential
matrimonial rights and obligations to be mutually given and accepted, a cause not of psychological nature under Article 36 of the
Family Code. A cause of psychological nature similar to Article 36 is covered by the third paragraph of Canon 1095 of the Code of
Canon Law (Santos v. Santos)
Guideline Number 8 : No longer applicable. The guideline reflects that the judges are somehow under the authority of the Solicitor
General, thus the Supreme Court issued an Administrative Circular (A.M 02-11-10) removing such guideline.
WON PSYCHOLOGICALLY INCAPACITATED PERSON MAY CONTRACT A SECOND MARRIAGE

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A party who has already been declared as psychologically incapacitated by the court may still contract a second marriage as
this ground is very personal and a limited one. (Halili vs. Halili)
WON THE OFFENDED SPOUSE MAY CLAIM MORAL DAMAGES
No. In the case of Buenaventura vs. CA the Supreme Court said that moral damages may not be recovered from the guilty party
in an action for the declaration of nullity of marriage based on the ground of psychological incapacity. This is because a
psychologically incapacitated person is not aware of his incapacity and therefore cannot be held answerable for moral
damages.
There is no bad faith on the part of the guilty spouse, hence, there is no basis for the grant of moral damages.
RELAXATION OF THE MOLINA DOCTRINE
With the promulgation of the Molina Doctrine, it has now become very much difficult for the courts to grant petitions to declare the
marriage void under Article 36, because the jurisprudential guidelines laid down by the SC in the Molina case is very strict that is
difficult now to have a favourable judgement.
Because of that the Supreme Court decided to relax the rules, and this was incorporated in the case of Eduard Ngo Te vs Rowena
Yu Te. In this case the SC criticized the Molina doctrine saying that :
In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases
of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital
bonds, and was sensitive to the OSGs exaggeration of Article 36 as the most liberal divorce procedure in the world. The unintended
consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and
sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social
institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by
it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota
has annulled marriages on account of the personality disorders of the said individuals.
The Court need not worry about the possible abuse of the remedy provided by Article 36, for there are ample safeguards against
this contingency, among which is the intervention by the State, through the public prosecutor, to guard against collusion between
the parties and/or fabrication of evidence. The Court should rather be alarmed by the rising number of cases involving marital
abuse, child abuse, domestic violence and incestuous rape.
In dissolving marital bonds on account of either partys psychological incapacity, the Court is not demolishing the foundation of
families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological
disorder, who cannot comply with or assume the essential marital obligations, from remaining in that sacred bond. It may be
stressed that the infliction of physical violence, constitutional indolence or laziness, drug dependence or addiction, and
psychosexual anomaly are manifestations of a sociopathic personality anomaly. Let it be noted that in Article 36, there is no
marriage to speak of in the first place, as the same is void from the very beginning. To indulge in imagery, the declaration of nullity
under Article 36 will simply provide a decent burial to a stillborn marriage.
The prospect of a possible remarriage by the freed spouses should not pose too much of a concern for the Court. First and
foremost, because it is none of its business6. And second, because the judicial declaration of psychological incapacity operates as
a warning or a lesson learned. On one hand, the normal spouse would have become vigilant, and never again marry a person
with a personality disorder. On the other hand, a would-be spouse of the psychologically incapacitated runs the risk of the latters
disorder recurring in their marriage.
Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case. We simply declare that, as aptly stated by
Justice Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other perspectives as well which should govern the
disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the principle
that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own

Pfft<sarcastic remark withheld for fear of an imaginary reprisal>

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facts. And, to repeat for emphasis, 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.
VALERIO KALAW vs. ELENA FERNANDEZ
G.R. No. 166357

January 14, 2015

FACTS:
In the case at bar, Kalaw presented the testimonies of two supposed expert witnesses who concluded that respondent is
psychologically incapacitated. Petitioners experts heavily relied on petitioners allegations of respondents
constant mahjong sessions, visits to the beauty parlor, going out with friends, adultery, and neglect of their children. Petitioners
experts opined that respondents alleged habits, when performed constantly to the detriment of quality and quantity of time
devoted to her duties as mother and wife, constitute a psychological incapacity in the form of NPD.
However, the Supreme Court in its September 19, 2011 decision dismissed the complaint for declaration of nullity of the
marriage on the ground that there was no factual basis for the conclusion of psychological incapacity.
ISSUE:
Whether or not the marriage was void on the ground of psychological incapacity.
HELD:
YES. The Court in granting the Motion for Reconsideration held that Fernandez was indeed psychologically incapacitated as they
relaxed the previously set forth guidelines with regard to this case.
Note: Molina guidelines were not abandoned, expert opinions were just given much respect in this case.
Guidelines too rigid, thus relaxed IN THIS CASE
The Court held that the guidelines set in the case of Republic v. CA have turned out to be rigid, such that their application
to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection. But Article 36 of the
Family Code must not be so strictly and too literally read and applied given the clear intendment of the drafters to adopt its
enacted version of less specificity obviously to enable some resiliency in its application. Instead, every court should approach
the issue of nullity not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts in
recognition of the verity that no case would be on all fours with the next one in the field of psychological incapacity as a ground
for the nullity of marriage; hence, every trial judge must take pains in examining the factual milieu and the appellate court must,
as much as possible, avoid substituting its own judgment for that of the trial court.
In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage, the courts,
which are concededly not endowed with expertise in the field of psychology, must of necessity rely on the opinions of experts in
order to inform themselves on the matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed,
the conditions for the malady of being grave, antecedent and incurable demand the in-depth diagnosis by experts.
Personal examination by party not required; totality of evidence must be considered
We have to stress that the fulfillment of the constitutional mandate for the State to protect marriage as an inviolable social
institution only relates to a valid marriage. No protection can be accorded to a marriage that is null and void ab initio, because
such a marriage has no legal existence.
There is no requirement for one to be declared psychologically incapacitated to be personally examined by a physician,
because what is important is the presence of evidence that adequately establishes the partys psychological incapacity. Hence,
if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination
of the person concerned need not be resorted to.

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Verily, the totality of the evidence must show a link, medical or the like, between the acts that manifest psychological
incapacity and the psychological disorder itself. If other evidence showing that a certain condition could possibly result from an
assumed state of facts existed in the record, the expert opinion should be admissible and be weighed as an aid for the court in
interpreting such other evidence on the causation.
Indeed, an expert opinion on psychological incapacity should be considered as conjectural or speculative and without
any probative value only in the absence of other evidence to establish causation. The experts findings under such circumstances
would not constitute hearsay that would justify their exclusion as evidence.
Expert opinion considered as decisive evidence as to psychological and emotional temperaments
The findings of the Regional Trial Court (RTC) on the existence or non-existence of a partys psychological incapacity
should be final and binding for as long as such findings and evaluation of the testimonies of witnesses and other evidence are not
shown to be clearly and manifestly erroneous. In every situation where the findings of the trial court are sufficiently supported by the
facts and evidence presented during trial, the appellate court should restrain itself from substituting its own judgment. It is not
enough reason to ignore the findings and evaluation by the trial court and substitute our own as an appellate tribunal only
because the Constitution and the Family Code regard marriage as an inviolable social institution. We have to stress that the
fulfilment of the constitutional mandate for the State to protect marriage as an inviolable social institution only relates to a valid
marriage. No protection can be accorded to a marriage that is null and void ab initio, because such a marriage has no legal
existence
The findings and evaluation by the RTC as the trial court deserved credence because it was in the better position to view
and examine the demeanor of the witnesses while they were testifying. The position and role of the trial judge in the appreciation
of the evidence showing the psychological incapacity were not to be downplayed but should be accorded due importance and
respect.
The Court considered it improper and unwarranted to give to such expert opinions a merely generalized consideration
and treatment, least of all to dismiss their value as inadequate basis for the declaration of the nullity of the marriage. Instead, we
hold that said experts sufficiently and competently described the psychological incapacity of the respondent within the standards
of Article 36 of the Family Code. We uphold the conclusions reached by the two expert witnesses because they were largely
drawn from the case records and affidavits, and should not anymore be disputed after the RTC itself had accepted the veracity of
the petitioners factual premises.
The Court also held that the courts must accord weight to expert testimony on the psychological and mental state of the
parties in cases for the declaration of the nullity of marriages, for by the very nature of Article 36 of the Family Code the courts,
despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive
evidence the expert opinion on the psychological and mental temperaments of the parties.
Willfully exposing children to gambling constitutes neglect of parental duties
The frequency of the respondents mahjong playing should not have delimited our determination of the presence or
absence of psychological incapacity. Instead, the determinant should be her obvious failure to fully appreciate the duties and
responsibilities of parenthood at the time she made her marital vows. Had she fully appreciated such duties and responsibilities, she
would have known that bringing along her children of very tender ages to her mahjong sessions would expose them to a culture of
gambling and other vices that would erode their moral fiber. Nonetheless, the long-term effects of the respondents
obsessive mahjong playing surely impacted on her family life, particularly on her very young children.
The fact that the respondent brought her children with her to her mahjong sessions did not only point to her neglect of
parental duties, but also manifested her tendency to expose them to a culture of gambling. Her willfully exposing her children to
the culture of gambling on every occasion of her mahjong sessions was a very grave and serious act of subordinating their needs
for parenting to the gratification of her own personal and escapist desires.
The respondent revealed her wanton disregard for her childrens moral and mental development. This disregard violated
her duty as a parent to safeguard and protect her children.

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Discussion: This case was denied by the lower courts, and when it was first appealed to the Supreme Court, the Court denied the
petition ruling saying that there was no psychological incapacity. But a motion for reconsideration was filed, and it was then that
the Court reversed the ruling. (The phrases emphasized by dean, are in bold letters)
Seven days after the promulgation of Kalaw, came the case of GLENN VIAS vs. MARY GRACE PAREL-VIAS, where the Court
again denied the petition. According to the Supreme Court :
The lack of personal examination or assessment of the respondent by a psychologist or psychiatrist is not necessarily fatal
in a petition for the declaration of nullity of marriage. If the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the person concerned need not be resorted to.
In the instant petition, however, the cumulative testimonies of Glenn, Dr. Tayag and Rodelito, and the documentary evidence
offered do not sufficiently prove the root cause, gravity and incurability of Mary Graces condition. The evidence merely
shows that Mary Grace is outgoing, strong-willed and not inclined to perform household chores. Further, she is employed in
Dubai and is romantically-involved with another man. She has not been maintaining lines of communication with Glenn at
the time the latter filed the petition before the RTC. Glenn, on the other hand, is conservative, family-oriented and is the exact
opposite of Mary Grace. While Glenn and Mary Grace possess incompatible personalities, the latters acts and traits do not
necessarily indicate psychological incapacity.
Note : Every time the court denies a petition, it never fails to cite the 3 elements of psychological incapacity. If one element is
lacking, then the petition will be denied.
OTHER CASES :
Ting vs Velez-Ting the Supreme Court said that the respondent failed to prove that the psychological incapacity was existing at
the time of marriage.
Rumbaua v. Rumbaua : In Bier v. Bier, we ruled that it was not enough that respondent, alleged to be psychologically
incapacitated, had difficulty in complying with his marital obligations, or was unwilling to perform these obligations. Proof of a
natal or supervening disabling factor an adverse integral element in the respondents personality structure that effectively
incapacitated him from complying with his essential marital obligations had to be shown and was not shown in this cited case.
In the present case, the respondents stubborn refusal to cohabit with the petitioner was doubtlessly irresponsible, but it was
never proven to be rooted in some psychological illness. x x x Likewise, the respondents act of living with another woman four
years into the marriage cannot automatically be equated with a psychological disorder, especially when no specific evidence
was shown that promiscuity was a trait already existing at the inception of marriage. In fact, petitioner herself admitted that
respondent was caring and faithful when they were going steady and for a time after their marriage; their problems only came
in later.
Ascueva vs Republic dependent personality disorder is a form of psychological incapacity.

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.
REASONS for the prohibition:
1. It has been scientifically proven that marriages between persons who are closely related by blood will often result to a
degenerate offspring.
2. It would tend to create confusion of rights and duties incident to family relations.

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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.
Under the Old Civil Code, marriages between first cousins are void for being incestuous. Under the Family Code, it is void not
because it is incestuous but because it is against public policy.
Under the 7th prohibition : (7) Between an adopted child and a legitimate child of the adopter If Illegitimate, there is no
prohibition
o
If you are an adopted child you cannot marry the legitimate child of your adopter, but if illegitimate, it is not
covered by the prohibition.
The enumeration is exclusive. Those not included is deemed excluded. Thus the following marriages are VALID:
A. Between the adopted child and the illegitimate child of the adopter;
B. Between the adopter and the relatives of the adopted;
C. Between step brothers and step sisters
D. Between brothers-in-law and sisters-in-law

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.
PRESCRIPTION
When the marriage is void, there is no prescription
o
Under the Old Law, it used to provide for a prescriptive period for Article 36, only if the marriage was celebrated
before the effectivity of the Family Code. If you were married before August 3, 1988, you can have your marriage
declared void on the ground of psychological incapacity only within the first 10 years from the effectivity of the
the Family Code. Thus only from August 3, 1988 until August of 1998.
o
All other forms of void marriages, there was no prescriptive period.
o
RA 8533 removed the 10-year prescriptive period. The applicable rule now is that even if you were married in the
1950s or 1940s, you can still have you marriage declared void now under Article 36, since there is no more
prescriptive period under psychological incapacity.
WHO MAY FILE AN ACTION TO DECLARE NULLITY OF MARRIAGE
Under A.M. 02-11-10 dated March 15, 2003, otherwise known as New Rules on Declaration of Nullity of Marriage and Annulment
of Marriage. Under the new rules, only the husband and the wife can ask the Court to declare the marriage void. Only the parties
to the marriage may file an action. Third parties may not.
o
This A.M. in effect abandons the ruling in Cojuangco vs Ramillo.
It is a case which involves Danding Cojuangco. The daughter of Danding Cojuangco eloped with the lawyer of
Cojuangco. The lawyer is the trusted lawyer of Cojuangco who was allowed to visit their house from time to time
to discuss legal issues. Little did he know that the lawyer had an eye on his daughter, and the daughter also has a
crush on the Lawyer. Unfortunately the lawyer is a married man. However, they had a relationship, eloped and
went to Singapore and got married there. When Cojuangco learned about the marriage, it was Cojuangco who
filed for the declaration of nullity of the marriage. The Court entertained the case and granted it.

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This is a case where the marriage was void and the petition for the declaration of nullity was filed by a person
other than a person party to the marriage. This was before the Administrative Matter took effect. Now, the father
may no longer file for the declaration of nullity of the marriage.
General Rule : No other person, other than the parties to the marriage (husband and wife) may file for the declaration of nullity of
marriage or the annulment of the marriage.
Exception : Parents may ask that the marriage of their daughter/son be declared void in cases of Voidable Marriages where
their child is between 18-21 and there was absence of consent on the part of the parents.
Even the guilty spouse may have the marriage declared void (Chi Ming Tsoi case)
An action to declare the marriage void on the ground of psychological incapacity can be filed even by the incapacitated
spouse.
The law does not prohibit the guilty spouse from bringing the action in court as a void marriage is not ratifiable and the in pari
delicto rule will not apply here.7
RECAP:

The void marriages are found in Articles 35, 36, 37, 38, 40, 53.
Void marriages under Article 35 are Void ab initio marriages because of absence of any essential or formal requisites
Void marriages under Article 36 are void because a party is psychologically incapacitated
Void marriages under Article 37 are void because there are incestuous marriages
Void marriages under Article 38 since they are against public policy
If the marriage is void, action to declare it void is imprescriptible

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.

Refers to BIGAMOUS MARRIAGES


This provides that if your marriage is void, have it declared void by the court before you can contract another
It is true that if a marriage is void, it does not produce any legal effect. It is as if there was no marriage
o
BUT for purposes of remarriage, have it declared void first otherwise the 2nd marriage is also void
The void marriage under Art. 40 refers to 2nd marriage contracted while the 1st marriage was still subsisting even if that 1st
marriage is OBVIOUSLY null and void
When 1st marriage is void, law considers it non-existent. Is there a need to have it declared void? SC in the past has been very
inconsistent8
o
People vs Mendoza, People vs Aragon (decided 1950s; already abandoned)
SC said there is no need for judicial declaration of nullity of marriage that is really void since it is as if that marriage
does not exist
SC has now abandoned the above doctrine. This is now the prevailing rule:
o
Gomez vs. Lipara (1970), Consuegra vs. GSIS
There is a need for judicial declaration of marriage before contracting a 2nd marriage
o
There has been a lot of flip-flopping in many cases but in 1986, the framers decided to incorporate in the Family Code a
specific provision to solve the flip-flopping of the SC. Art. 40 now provides the rule.
If you violate this, 2nd marriage is also void under Art. 40. Furthermore, the SC has been consistent in saying that this is not only
void but also BIGAMOUS (settled rule). You can be charged for Bigamy
CASES
James Capili vs. Tismo
o

7
8

SC: Jurisprudence is replete with cases holding that the accused may still be charged with a crime of bigamy even if there
is a subsequent declaration of nullity of the 2nd marriage so long as the 1st marriage was still subsisting when the 2nd was
celebrated

All hail Netty for the comprehensive case digests these past few 20 or so pages J - questions on psychological incapacity? You know who to call J
Mura ka ug SC mu rule if kelangan ba i.declare ug void, INCONSISTENT. HAHA #cornix #duka

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o

Sir: What is important is that when you contracted the 2nd, the 1st marriage was subsisting even if the 1st was void ab initio
marriage

People vs. Odtojan


o

SC: The issue is not novel. We have already ruled upon this that there is bigamy when the 1st marriage still subsists when the
2nd was contracted. Even if the 1st marriage was subsequently declared void, what is important is that when he contracted
the 2nd, the 1st was not yet declared void. He is liable 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 the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse.

Here, you may have your spouse declared presumptively dead for the instances provided for purposes of remarriage
o
4 years absence - well-founded belief that the absent spouse was already dead
o
2 years absence there is danger of death under the circumstances in Art. 391

The rule is that if your spouse is already dead, you are now a widower/widow and thus you can remarry. But if you are not sure
if your spouse is really dead, you can remarry but you must go to court and have your absent declared presumptively dead
otherwise you will be liable again for BIGAMY and 2nd marriage is VOID

Instances when the disappearance of spouse is considered UNDER GREAT DANGER OF DEATH:
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;
o
The law says the vessel or airplane disappeared or is lost. It does not say plane crashed or vessel sank. The
ship really is lost like those that disappear in the Bermuda Triangle.
o
If your spouse rode an airplane and it crashed, it was declared there is no survivor, you dont have to wait for
2 years. He really died there. But if the plane just disappeared, we cant tell where it went, you have to wait 2
years.
(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.
o
This refers to condition analogous to the 1st two. If after 4 years you have not heard any word from your
absent spouse and you have reasonable ground to believe he is dead, you can go to court and have him
declared presumptively dead and you can remarry

PURPOSE of declaration of presumptive death: To protect the present spouse from possible prosecution of bigamy in case the
1st or absent spouse turns out to be alive. You cannot be liable for bigamy if you have that declaration
This judicial declaration is a SUMMARY PROCEEDING under the Rules on Summary Judicial Proceedings

CASES

Republic vs Nolasco
o
Facts: Nolasco is a Filipino seaman who married a British woman and then they lived in the province. Nolasco went back
to work and he left the wife together with his mother. The wife said shes going to process some papers in Manila but
never returned. When he came back, he never saw her again. They never had any communication.

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After several years, he filed a petition to declare the British wife as presumptively dead. He was asked what he did to
find her. He said he exerted all efforts. When their ship was docked in England, he tried to look for her in London for
several days. But during cross-examination, it was found out that he knew that his wife is not from London but from
Liverpool, England. It is about 300 miles from London.
o

SC: Nolasco did not exert enough effort to locate his wife. His petition was not anchored on a well-founded belief that
the absent spouse is really dead. Show to the court that you have sufficient basis to presume that your spouse is already
dead.

Republic vs Cantor ( December 2013)


o

SC: There are 4 essential requisites for the declaration of presumptive death
1. The absent spouse has been missing for 4 or 2 consecutive years as the case may be
2. The present spouse wishes to remarry
Art. 41 is a new provision, and this is only important if you want to REMARRY. If you have no intention to
remarry, no need to go to court and have the absent spouse declared presumptively dead.
Why is there no need? There is already a provision in the Civil Code regarding presumptive death
a. More than 7 years absence he/she presumed dead by law
b. 10 years absence purposes of opening up the estate for succession
c. 4 years under great danger of death
So in the Family Code regarding 4/2 years, this only applies for purposes of remarriage
3. Present spouse has well-founded belief that the absent spouse is dead
Brought about by Republic vs. Nolasco
4. Present spouse files a summary proceeding for declaration of presumptive death
Most of the cases under the Family Code are summary proceedings and this here is one of them
Valdez vs. Republic (2009)

Facts:
Valdez was married to her husband in 1970 and he disappeared in 1974. These happened before the
Family Code took effect. She waited for about 10 years. She tried to look but never found him.
She finally decided to remarry in 1984, still under the Civil Code (Family Code took effect in August 3,
1988, never forget because this is the cut off!). She married a Filipino-American. While she was processing
her papers to go to USA, her application was denied because it was discovered that she was still married
to the 1st husband. When her petition was denied, the Family Code was already effective.
Her lawyer said, no problem! The new Family Code says you can have your husband declared
presumptively dead, and so she filed a petition.
OSG opposed because allegedly she did not exert earnest efforts to look for him.

SC:
There is no need for Valdez to file a petition to declare her husband presumptively dead. In the Civil
Code, no judicial declaration of presumptive death is required as such presumption arises from law. The
present spouse may remarry after the lapse of 7 or 4 years EVEN WITHOUT a judicial declaration of
presumptive death.
Thus, if the disappearance of the husband and the subsequent marriage of the wife 10 years after occur
before the effectivity of the Family Code, the marriage is valid even if there is no judicial declaration. The
validity of the subsequent marriage is determined by the law prevailing at the time of the marriage. The
Family Code, particularly Art. 41, cannot be applied retroactively. Proof of well-founded belief is not
required. In fact, the petition to declare the husband presumptively dead is unnecessary.

Sir: So the SC said in the Civil Code, there is no need for judicial declaration. That judicial declaration of
presumptive death is provided for by the Family Code (FC). It only applies after August 3, 1988.
Remember that the validity of marriage is determined by the law prevailing at its time.

Bermudez vs. Loreno

SC: A petition to declare your spouse presumptively dead under Art. 41 of the FC is a petition that falls
under summary proceedings. Under the rule on summary proceedings, the decision of the court in a

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summary proceeding case is FINAL, EXECUTORY AND UNAPPEALABLE. OSG was wrong in filing a notice of
appeal to the Court of Appeals.
The appeal filed by the OSG was dismissed

Fermentino Tango vs. XXX

SC: The decision of a court declaring a spouse presumptively dead under Art. 41 is unappealable and
immediately executory as it falls under the summary judicial proceedings in Family Law. An aggrieved
party may file a Petition for certiorari under Rule 65. This is now the remedy to question the abuse of
discretion amounting to lack or excess of jurisdiction.

This is what the OSG should have done. It should question based on grave abuse of discretion. Go to the
CA from the RTC. After, go to the SC by way of Certiorari under Rule 45.

SSS vs. Vda. De Baylon

Facts:
The husband and wife were already separated. The husband found another woman and wanted to
marry her, but cannot because his 1st marriage was not annulled. So what he did is have his 1st wife
declared presumptively dead. The 1st wife did not object. So the husband now married again and he
later on died. He was to receive SSS benefit. The 2nd wife claimed it. But the 1st wife said, Im the legal
wife. Give that to me.
SSS initially awarded it to the 2nd wife. However, it later awarded the benefit to the 1st wife because
according to it, the husband is clearly in bad faith when he filed petition to declare presumptively dead
the 1st wife. The 1st marriage was not dissolved. The judicial declaration of presumptive death is of no
moment. The 2nd wife went to the SC.

SC:
The declaration of presumptive death of the wife as declared by the court cannot be overturned or
disregarded by the SSS to award the death benefit of the husband to the 1st wife because of its finding
that the husband is in bad faith when he filed the petition. That presumption of death can only be
destroyed by the reappearance of the absent spouse and execution of an affidavit of reappearance.
Without these, the presumption continues.
Since the 1st wife did not reappear despite knowledge that she was declared presumptively dead, the
SSS does not have authority to overrule the RTC. SSS has to follow the decision of the regular court. The
benefit should go to the 2nd wife.

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the
parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

Reappearing spouse must execute Affidavit of Reappearance if he/she wants to get back the present spouse and submit it to
the office of the Local Civil Registrar where the present spouse and 2nd spouse resides
Not only the reappearing spouse can execute the Affidavit any interested party can
If the husband is not anymore willing, the children or even his parents can execute it because they are considered interested
party. Even the 2nd husband is an interested party and may execute the affidavit in order that he can return the wife to the 1st
spouse
Effect if reappearing spouse refuse to execute it and none is willing to execute: reappearing spouse cannot remarry because
he is still married to the present spouse while the latter is also married to the 2nd spouse and can continue living with the 2nd
spouse. Thus, the wife can continue living with the 2nd husband while the 1st cannot marry another woman

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;

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

These are the effects of the termination of the subsequent marriage because of the reappearance of the absent spouse
Number 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
o
Refers to donations propter nuptias (in favor of spouse in bad faith) or those made before the marriage because spouses
cannot donate to each other during the marriage
o
Example. Wife donated land to husband before marriage. Later, wife disappeared and husband had her declared
presumptively dead even if he knew she was alive. The husband remarried and the 2nd wife also donated land to the
husband before the marriage. 1st wife reappeared and executed affidavit. The 2nd marriage is now dissolved. The
donation made by the 2nd wife is revoked by operation of law. Even if she did not want to revoke, it is still revoked because
it is automatic by operation of law.

Number 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.
o
If innocent spouse has made guilty spouse a beneficiary in life insurance policy, it can be revoked even if irrevocable.
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.

If either spouse in subsequent marriage acted in bad faith, marriage is VOID under Art. 44.
VOIDABLE MARRIAGES

Void marriage action filed is Declaration of Nullity of Marriage


Voidable marriage action filed is Annulment of Marriage

GROUNDS FOR ANNULMENT OF MARRIAGE:


Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and wife;
(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;

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(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
(85a)
DISCUSSION:
(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;
o

If party to a marriage is between 18-21, party will have to present parental consent

If parents do not give consent, marriage is voidable. Valid until annulled

WHO CAN ANNUL & PRESCRIPTIVE PERIODS:


a.

By the parents who did not give consent - any time before such party has reached the age of 21

b.

By the party who did not secure the required parental consent - within 5 years after attaining the age of 21

Action to declare marriage void is imprescriptible. If voidable, there is prescriptive period

BASIS:
Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated
herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her
consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having
legal charge of the minor, at any time before such party has reached the age of twenty-one

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband
and wife;
o

WHO CAN ANNUL & PRESCRIPTIVE PERIODS:


a.

By the sane spouse, who had no knowledge of the other's insanity at any time before the death of either party

b.

By any relative or guardian or person having legal charge of the insane at any time before the death of either
party

c.

By the insane spouse - during a lucid interval or after regaining sanity

BASIS:
Art. 47 (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of
either party, or by the insane spouse during a lucid interval or after regaining sanity

(3) 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;
o

WHO CAN ANNUL & PRESCRIPTIVE PERIOD:

By the injured party - within 5 years after the discovery of the fraud (Art 47 (3))

Not all deceit/fraud can invalidate the marriage

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;

Example. Husband married wife and did not tell her he was an ex-convict for rape/homicide/murder. It was only
after marriage that the wife discovered. She may annul the marriage on ground of fraud here in No. 1

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Crime involving moral turpitude: reflects the bad character of person, examples are rape, homicide, murder,
robbery, theft

(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;

This is committed only by the wife

This is a very serious fraud because there is the danger in the act of the wife in introducing spurious blood into the
family of the husband

Like human smuggling

If husband did not tell wife that he had previously impregnated someone, wife cannot ask for annulment since
there is no danger in introducing spurious blood into their family since its another woman who will give birth

Rationale is in the danger of introducing spurious blood

Keyword is CONCEALMENT

Buccat vs. Buccat

If the wife is already 7 months pregnant at the time of the marriage, husband must have known of the pregnancy
so he cannot anymore claim fraud

Aquino vs. Delizo

If the wife was still 5 months pregnant and she was plump (or tambok), the pregnancy may still be concealed.
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage;

Regardless of its nature even if the STD is only mild and easy to cure for even just a few days of antibiotics; still
a ground of annulment

(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.

If husband said before marriage he is very very rich, that is not a ground if it turns out its not true. Same if the
wife before marriage declared she is a virgin even if she really was not. These are not the frauds contemplated

(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;
o

Consent refers to the time the spouse said I do. If that I do was obtained through force, etc., marriage can be
annulled

WHO CAN ANNUL & PRESCRIPTIVE PERIOD:

By the injured party - within 5 years from the time the force, intimidation or undue influence disappeared or ceased
(Art. 47 (4))

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues
and appears to be incurable;
o

Sex consummates marriage. If husband is not capable of performing it, its a ground for annulment

Incapacity must be PHYSICAL, like impotency

Impotency is different from sterility. Sterility means he can perform sex but he cannot produce a child. Impotency means
husband is incapable of erection.
(Sir: Sterility mura rag pusil na mubuto pero di kapatay. Impotency kay di jud mubuto J )

If impotency is psychological, you can use Art. 36 like Chi Ming Tsoi. He was impotent psychologically so it was
psychological incapacity

WHO CAN ANNUL & PRESCRIPTIVE PERIOD:

By the injured party - within 5 years after the marriage (Art. 47 (5))

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DOCTRINE OF TRIENNIAL COHABITATION

There is always the presumption of potency that a man is potent when he married the wife. However, if the wife
remains a virgin for 3 years from marriage, the presumption is that the husband is impotent

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
o
o

Differs from Art 46 (3) because there, the STD is not serious. Here, it is BOTH serious and incurable, and existing before the
marriage. In Art 46, concealment is an element, while here it is not.
WHO CAN ANNUL & PRESCRIPTIVE PERIOD:

By the injured party - within 5 years after the marriage (Art. 47 (5))

PROCEDURES in Annulment of Marriage and Declaration of Nullity of Marriage:


1.
2.
3.
4.
5.
6.
7.

A complaint must be file in court. This is treated as a civil action.


The court will prepare summons and will be served to the defendant.
If there no answer from the defendant, this will not result to a default.
The court will order the prosecutor to appear for the state and conduct an investigation to determine whether or
not there is collusion between the parties.
The parties will be invited to come to the prosecutors office in order for the prosecutor to investigate.
No judgment shall be based on stipulations of facts or confession of judgment.
The support of the children while the case is pending shall be provided for.

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.
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)

The rules on Annulment of Marriage and Declaration of Nullity of Marriage is primarily governed by A.M. No. 02-11-10

Tuason vs. Court of Appeals


The submission of a report by the fiscal that there is no collusion between the parties can be dispensed with if it is very clear that
there is no collusion. In this case, the fiscal failed to actively intervene in the case and in fact he forgot to submit a report that there
was no collusion between the parties. Nevertheless, the judge proceeded to hear the case. When it was appealed, it was the
ground that was cited in order to nullify the proceedings. The SC however refused to nullify the proceedings simply because of the
failure of the prosecutor to submit a collusion report. It was found out by the SC that the defendants filed an answer and in fact
actively participated in the case. It was a no holds barred proceeding. According to the SC, the report could be dispensed with if
it is very clear that there was no collusion.
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 their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.

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All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final
judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement
judicially approved, had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children
accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime.

The decree of Annulment of Marriage under Art. 45 and Declaration of Nullity of Marriage under Art. 40 shall include the
dissolution of the conjugal partnership or the absolute community property regime as they are necessary consequences of
annulment or declaration of nullity. This includes the liquidation, partition of the conjugal partnership of gains, custody and
support of the children and giving of presumptive legitimes. THIS ONLY APPLIES TO ANNULMENT OF MARRIAGE UNDER ART.
45 AND DECLARATION OF NULLITY OF MARRIAGE UNDER ART. 40 EXCLUDING OTHER TYPES OF VOID MARRIAGES.

Valdes vs. RTC


The SC said in all other cases of void marriages other than Art. 40, the property regime shall be governed by the rule on coownership provided for under Art. 147 and 148 of the Family Code as the case may be and not the conjugal partnership of gains or
absolute community. In other words, when the marriage is void except for Art. 40, there is no conjugal partnership or absolute
community created between the parties. The parties in that void marriage shall be governed by co-ownership.
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article
53 shall likewise be legitimate.

As a general rule, children born under a void marriage are illegitimate. However, there are children born under certain
circumstances that are to be considered LEGITIMATE. They are:
1.
2.
3.

Children born before the annulment of a voidable marriage became final. When the marriage is annulled under Art.
45.
Nullity under Art. 36 on the grounds of psychological incapacity, the children born are considered legitimate.
Those born of a subsequent marriage under Art. 53.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons.
Art. 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.

When your marriage is annulled or declared void, the decree must be registered with the local civil registrar. If there
liquidation of properties or distribution of presumptive legitimes, such must be registered with the Registry of Deeds. If not
complied with, the subsequent marriage shall be void. This is the void marriage contemplated under Art. 53.

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

You will notice par. 5 and 6 are also grounds for annulment of marriage. In annulment of marriage, these grounds must
have existed before the marriage and were concealed by the party. In legal separation, existence before the marriage
and concealment of such is not required.

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

If any of these occur then the legal separation will not prosper.
Condonation is given after the act was committed and consent is given prior to the act.

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)

The prescriptive period is 5 years from the occurrence of the cause.

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)

In legal separation, there is a six month cooling off period which is mandatory. In Pacete vs. Cariaga, the Supreme Court
ruled that if the court did not observe the six month cooling off period, it will nullify the entire proceeding.

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)

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The fiscal is likewise required to intervene to protect the interest of the state which is the preservation of the marriage.

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same
powers and duties as those of a guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common children. (105a)
EFFECTS OF THE RENDITION OF THE DECREE OF SEPARATION:
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall
have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be
forfeited in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of
this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.
(106a)

Actually even before the decree is issued, the moment the petition is filed in court the husband and the wife is allowed to
live separately even when the case is still pending.

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in
favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the
places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the
complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation
become final. (107a)

Take note that the word used is may revoke. In Art. 43, the revocation is automatic, by operation of law. In legal
separation, if the innocent spouse does not choose to revoke then the donation will continue to be valid.

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)

As a matter of state policy, the spouses are encouraged to reconcile.


Art. 66 states the effects of reconciliation.

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

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(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of
the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)

What the parties need to do if they choose to revive their former property regime is to inform the court which granted the
decree of separation and dissolution of the property regime. The new rules on legal separation allow them to use not only
the former regime but any other new property regime.

Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and
shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect
the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtorspouse has sufficient separate properties to satisfy the creditor's claim.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

This chapter in the Family Code is important in relation to Art. 36. As I said, in Art. 36, psychological incapacity means the
incapacity of a party to comply with any of the essential marital obligations.

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

The husband and the wife should live together under one roof. But what happens when the wife does not want to live in
the same house where her husband resides? Can the husband force the wife to live with him under one roof?
o

In Arroyo vs. Arroyo, the Supreme Court said no. It is a personal choice. Although it is an obligation under the
law, this is an obligation that the court is not willing to enforce against the wife.

The only recourse of the husband is to stop providing support to the wife. In fact in the case of Tenchavez vs.
Escano, the SC said the if the wife refuses to live together with the husband under one roof without justifiable
cause, the husband can even demand damages from the wife for her failure to comply with her marital
obligation.

As long as there is no valid justification as to why the wife does not want to live together with the husband, the
husband may stop providing support and he will not be liable under VAWC.

It is the obligation of the husband and the wife to live together and part of that obligation is to have sex. You remember
the case of Chi Ming Tsoi? The husband was held to be psychologically incapacitated to comply with essential marital
obligations. Living together under one roof includes the obligation to procreate, the obligation to have carnal
knowledge.

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o

Although it is the obligation of the wife to have sex with the husband, the husband cannot force his wife to have
sex if she doesnt want to. There is now what is called Marital Rape.

In the case if People vs. Jumawan, a 2014 case, the SC convicted the husband of raping his wife. The SC said that
husbands do not have property rights over their wives bodies. Sexual intercourse within marriage if not consensual is rape.
This is the clear state policy legislated under 266-A of the RPC as amended by RA 5383 or the Anti-Rape Law of 1997.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling
reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.
(110a)
Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate
properties. (111a)
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management
shall be paid in accordance with the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a)
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The
latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the
resulting obligation shall be enforced against the 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.

TITLE IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE


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)

The marriage settlement also known as the Pre-nuptial Agreement, if there is any, is the one that primarily governs the
property relations of the husband and the wife.

They may use any of the property regimes recognized under the Family Code. We have Absolute Community of Property
Regime, Conjugal Partnership of Gains and Complete Separation of Property Regime.

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They may also use a modified property regime. Any combination of the above-mentioned property regimes is valid.

Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership
of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a)
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the
marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)

Any marriage settlement must be executed before the celebration of marriage for it to be valid.

Can you modify the property regime you have agreed upon? Yes, but provided there was no marriage yet. Once
married, you can no longer change your property regime. That is the general rule.
o

But there are EXCEPTIONS stated in Articles 66, 67, 128, 135 and 136.

Art 66 & 67 In case of legal separation, the property regime is being dissolved and the common
properties will be divided without dissolving the marriage. It results to a modification of the original
property regime during marriage. From either absolute community or conjugal, to complete separation.
If later on you reconciled and you opt to be governed by a new property regime it also results to a
change of property regime during the marriage.

Art 128, 135 & 136 this refers to judicial separation of property during the marriage. The husband and
the wife may dissolve their absolute community or conjugal partnership during the marriage provided
that it is approved by the court. It may be done in two ways. One is under the grounds stated in Art. 135
or by mutual agreement of the parties even when there is no ground. The separation will take place
only upon the approval of the court.

PLEASE REMEMBER, when you become lawyers, never notarize a document where the husband and the wife have agreed
to separate or divide their absolute community or conjugal properties. That is invalid. They have to go to the court for
approval. It cannot be done extrajudicially.9

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)

Art. 77 states the requirements for the modification of a marriage settlement.

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)

In case of a minor capacitated to marry, his or her parents or guardians must also sign such marriage settlement.
Although, this no longer applies because of the changing of the age of majority. Now, a minor cannot get married.

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)

Gibalik2 ni ni SIR nga tip ayaw lageh pataka ug notaryo, sama sa gugma, ayaw pataka ug fall2x dira ug walay musawo. HAHA #chaka

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In the case of a person executing a marriage settlement is suffering from civil interdiction, the guardian must also sign such
settlement.

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)

What law governs the marriage settlement? It depends.


o
If the spouses are both Filipinos then Philippine Law will govern under the nationality theory.
o
If they are foreigners then their own national law will govern.

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.

If the marriage did not push through, the marriage settlement shall be void except those provisions in the marriage
settlement that are not dependent on the marriage.
o
Like for example, when the man recognizes the child that has just been delivered by the woman as his own child.
The recognition still stands because it is not dependent on their marriage.

DONATIONS BY REASON OF MARRIAGE (DONATIONS PROPTER NUPTIAS)

The husband and the wife are allowed to donate to each other their exclusive property by reason of marriage. What
about after marriage? No, it is not allowed.

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)

ELEMENTS OF DONATION PROPTER NUPTIAS:


1. Made before celebration of marriage;
2. In consideration of the same;
3. In favor of one or both of the future spouses;

Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following articles. (127a)

Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each
other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

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If the donation propter nuptias is contained in the marriage settlement, there is a limit to the amount you can donate. You
cannot donate more than 1/5 of the amount of your present property to the other spouse.

That PROHIBITION is subject to the following CONDITIONS:


1. The donation was contained in the marriage settlement;
2. In the marriage settlement, you agreed to be governed by a regime other than absolute community;

If you dont have a marriage settlement then absolute community governs, so the prohibition will not apply. If the
property regime that governs the marriage is absolute community then a spouse can donate all his or her properties to the
other.

If REGIME: ABSOLUTE COMMUNITY: NO LIMIT (If no marriage settlement, this rule applies)

If REGIME: OTHER THAN ABSOLUTE: NOT MORE THAN 1/5

This rule will ONLY apply IF the donation is made in the marriage settlement. IF the donation is made in a SEPARATE
DEED, the rule does not apply (1/5 limitation rule).

What if the property is ENCUMBERED?


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)

REVOCATION OF DONATION PROPTER NUPTIAS:


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)

Revocation is not by operation by law!!!

PROHIBITION OF DONATION DURING THE MARRIAGE:


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

REASON:
o
1.) Prevent undue influence to the weaker spouse.
o
2.) Protect individual creditors.
o
3.) Avoid deviation from the property regime

EXCEPTION: Moderate gifts on the occasion of any family rejoicing. (Depends on the financial capability of the giver)

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The prohibition also applies to indirect donation. Ex: Husband donates a property to father of the wife and the latter is the
sole heir of the donee.
Also includes: grant of gratuitous advantage. Ex: usufruct
The prohibition applies to those who are living together as husband and wife without a valid marriage. The reason for the
rule exists.

AGAPAY VS PALANG
FACTS:
Miguel Palang married Calina Vellesterol with whom he had 1 child. He then contracted his second marriage with Erlinda
Agapay, with whom he had a son. The couple purchased a parcel of agricultural land and the transfer certificate was issued
in their names. She also purchased a house and lot in Binalonan, where the property was later issued in her name. Miguel and
Carlina executed a Deed of Donation, wherein they agreed to donate their conjugal property consisting of 6 parcels of land
to their only child, Herminia. Carlina filed a complaint against Miguel and Erlinda for bigamy.
Miguel died, and Carlina and Herminia instituted an action for recovery of ownership and possession with damages
against Erlinda. They sought to get back the riceland and house and lot allegedly bought by Miguel during his cohabitation
with Erlinda. RTC dismissed the complaint and ordered the respondents to provide for the intestate shares of the parties,
particularly of Erlinda's son. CA reversed the trial court's decision.
ISSUE:
Whether or not the properties from Miguel's second marriage be granted to Erlinda.
HELD:
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the property testified that Miguel Palang provided
the money for the purchase price and directed that Erlindas name alone be placed as the vendee.
Since Erlinda failed to prove that she contributed money to the purchase price of the riceland, we find no basis to justify
her co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the CA, revert to the
conjugal partnership property of the deceased Miguel and Carlina Palang.
The transaction was properly a donation made by Miguel to Erlinda, thus void. Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses now applies to donations between persons living together as
husband and wife without a valid marriage, for otherwise, the condition of those who incurred guilt would turn out to be better
than those in legal union.

WHO CAN QUESTION THE VALIDITY OF THE DONATION? Only those who are directly prejudiced.
HARDING vs. COMMERCIAL UNION
FACTS: In February 1916, Mrs. Harding applied for car insurance for a Studebaker she received as a gift from her husband.
She was assisted by Smith, Bell, and Co. which was the duly authorized representative (insurance agent) of Commercial
Union Assurance Company in the Philippines. The cars value was estimated with the help of an experienced mechanic
(Mr. Server) of the Luneta Garage. The car was bought by Mr. Harding for P2,800.00. The mechanic, considering some
repairs done, estimated the value to be at P3,000.00. This estimated value was the value disclosed by Mrs. Harding to
Smith, Bell, and Co. She also disclosed that the value was an estimate made by Luneta Garage (which also acts as an
agent for Smith, Bell, and Co).
In March 1916, a fire destroyed the Studebaker. Mrs. Harding filed an insurance claim but Commercial Union denied it as it
insisted that the representations and averments made as to the cost of the car were false; and that said statement was a
warranty. Commercial Union also stated that the car does not belong to Mrs. Harding because such a gift [from her
husband] is void under the Civil Code.

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ISSUE: Whether or not Mrs. Harding is entitled to the insurance claim.


HELD: Yes, Commercial Union is not the proper party to attack the validity of the gift made by Mr. Harding to his wife. An
insurance company has no relation to the parties and had no rights or interests inchoate, present, remote, or otherwise, in
the property in question at the time the transfer occurred.

SYSTEM OF ABSOLUTE COMMUNITY

This is the default regime of the Family Code which means if there is no marriage settlement, this automatically governs.
Before, the Civil Code provides Conjugal Partnership as the default regime.

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)

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.
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. 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.

What CONSTITUTES COMMUNITY PROPERTY


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)
EXCEPTIONS:
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements
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)

Art. 92 (1) does not apply if you inherited it BEFORE the marriage. It is part of absolute community.

PRESUMPTION OF LAW:

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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.

CHARGES AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY


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; (*if did not benefit, not chargeable to absolute)
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the
family; (*if major repairs, the separate fund of the owner spouse)
(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for selfimprovement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (*Ante-nuptial debts is debts
incurred by the spouse before the marriage)
(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 (*Debts that did not redound to benefit of the family and this
paragraph provides 3 personal obligations of the spouse)
(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)

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 the community but any winnings
therefrom shall form part of the community property. (164a)

OWNERSHIP, ADMINISTRATIVE, 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.
When can a spouse be a sole administrator?

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1.) Delegation to the other spouse
2.) 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. (VOID BUT RATIFIABLE) 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) ( NCC Art. 96)
o
Incapacity/Inability could be due to the fact that the said spouse is absent, has abandoned the other, or that
they have been separated in fact. However, if the inability of the spouse is due to the fact that he is already in
the comatose stage, a victim of stroke, or cerebrovascular accident which makes him incompetent, the proper
remedy is JUDICIAL GUARDIANSHIP PROCEEDING and not a summary proceeding under Art. 253.

GENERAL RULE: The non-consenting spouses action to nullify the contract of sale is IMPRESCRIPTIBLE because it is a VOID
contract.
EXCEPTION: It is in the hands of a buyer in good faith. The remedy is to demand the share of the proceeds of the sale.
Under the Old Law (NCC), the sale is VOIDABLE and the spouse has 10 years to annul the sale. More importantly, if the
property was acquired after the effectivity of the Civil Code in August 30, 1950, CONSENT of wife is REQUIRED. If before the
effectivity, CONSENT is NOT required.

Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n)
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)

GROUNDS FOR DISSOLUTION OF ABSOLUTE COMMUNITY REGIME:


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)

Liquidation of the Absolute Community:

Upon the dissolution due to grounds provided by law, liquidation shall take place as a matter of right.

ASSETS AND LIABILITIES


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.
(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

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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.
(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.
(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)

What is NET PROFIT forfeited by the guilty spouse? The net profit is the difference between the market value of the
properties at the time of the celebration of the marriage and at the time o the community's dissolution. The guilty spouse is
not entitled to a share. It will go to the common children. If none, to the children in the previous marriage. If none, to the
innocent spouse.

EFFECTS IF THE REASON FOR THE DISSOLUTION OF THE ABSOLUTE COMMUNITY WAS DEATH:
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.
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)
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.

EFFECTS OF SEPARATION DE FACTO TO ABSOLUTE COMMUNITY:


Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community 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 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)
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 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 intention of returning to the conjugal dwelling. (178a)

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The property relation between the husband and the wife is primarily governed by the marriage settlement if there is any.
If there is no marriage settlement, the default regime is the absolute community of property regime.
Under the absolute community of property regime, everything that is owned by the husband and/or the wife at the time
of the marriage will become part of the community property, regardless of how the property was acquired. So even if the
property was acquired by gratuitous title, before the marriage, once the marriage is celebrated, that property becomes
part of the community property.
The absolute community regime of property is dissolved by death, legal separation, annulment of marriage, or declaration
of nullity of marriage and if there is a judicial separation of property during the marriage.

EFFECT OF THE DISSOLUTION OF THE ABSOLUTE COMMUNITY:

The guilty spouse is not entitled to a share in the net profit of the absolute community, not as to the capital.
Net Profit:
Brigido Quiao vs. Rita Quiao et.al.
(G.R.No. 176556, July 4, 2012)
Net Profit is defined in Art. 102 (4) of the Family Code as the increase in value between the value at the time of
the celebration of the marriage and the market value at the time of its dissolution. The guilty spouse will have no
share in the net profit.

Property at the time of marriage: 1m


Property at the time of dissolution: 3m
Net Profit: 2m
As to the net profit, it should have been divided between the husband and the wife, tag-1m unta sila, each. But if
he is the one who is the guilty party, the share in the net profit will go to the common children. If none, then to his
children of the previous marriage if there is any. If there is none, then it will go to the innocent spouse.
As to the original value of 1m, the guilty spouse is still entitled to his share of , the 500k.

The case of Quaio vs Quaio involves legal separation, which is one of the grounds for the dissolution of the
absolute community. Once the legal separation is granted, the court will have to dissolve the absolute
community or the conjugal partnership as the case may be. Here, the guilty spouse will not be entitled to a share.
In this case, considering that the properties were acquired by them at the time after their marriage, then all those
properties gained after the celebration of marriage are considered as net profits. Therefore, the husband, the
guilty spouse is not entitled to a share of all those properties that were acquired after the celebration of the
marriage because they are net profits.

CONJUGAL PARTNERSHIP OF GAINS

Before the Family Code, this is the default property regime if there is no marriage settlement agreement.
Commences at the precise moment of the marriage.
As a general rule, only those properties acquired during the marriage, through the efforts or industry of either of the
spouses, as well as the income or fruits of their exclusive properties that accrues during the marriage will comprise the
conjugal partnership of properties.

Two kinds properties that belong to the conjugal partnership:


1. Those that were acquired during the marriage through the effort or industry of either of the spouses.
This includes their salaries, wages, income in the business or anything that they have acquired during
the marriage due to their effort or industry.
2. The fruits or income of the exclusive properties of either spouse.

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If the property is owned by the husband alone or the wife alone, whatever fruits or income is derived
from those properties they are considered as part of the conjugal partnership.
If the wife inherits a land before the marriage, that land will continue to be her exclusive property
even after their marriage but the fruits of that land, the income of that land, that accrues during
marriage, thats part of the conjugal partnership.
What about if the land is sold by the wife? Who owns the proceeds of the land? The wife. The
proceeds of the sale is not an income. But if at the time of the marriage, the land is worth 1m, and it
was sold for 1.5 then the 500k is considered as income and that is part of the conjugal partnership.

Just like the absolute community, the conjugal partnership of gains commences at the precise moment of the celebration
of the marriage and the spouses cannot also waive their rights, interests, shares or effects in the conjugal partnership
during the marriage except if there is already a judicial separation of property.

There are many properties that are exclusive and also there are many properties that are conjugal or common.

What are the EXCLUSIVE PROPERTIES OF THE HUSBAND AND THE WIFE during the conjugal partnership of gains?
1. Those that brought into the marriage as his or her own.
Properties that you already own at the time of the marriage that will remain as your own property. That
will not be contributed to the common property.
2. That which each spouse acquires during the marriage by gratuitous title.
Acquired by inheritance or donation.
3. That which is acquired by right of redemption or by barter or exchange with a property belonging to only one of
the spouses.
If the property was already owned by the husband during the marriage, and he mortgaged it with the
bank, and during the marriage, the bank foreclosed the mortgage, and the husband decides to
redeem the property, and at the time he is already married, even if the money that he used to redeem
the property is conjugal money, that property will remain his exclusive property because he is merely
exercising a right of redemption, over an exclusive property. By using the conjugal money, he will be
indebted to the conjugal partnership. He will have to reimburse the conjugal partnership.
4. That which is purchased with the exclusive money of the wife or of the husband.
You bought a property during the marriage with your exclusive money, then the property is also exclusive
not considered part of the conjugal property.
The above sentence does not apply to absolute community because it is not mentioned on the chapter
of absolute community of property regime. If you are governed by the absolute community of property
regime and you have an exclusive money, e.g. during the marriage, your parents gave you by way of
donation an amount of 1m, that 1m is your exclusive property; because you have acquired that money
by gratuitous title. But once you use this money to buy something, that thing bought will no longer be
your exclusive property because you have already acquired that property during the marriage by
onerous title. Sale man. Under the absolute community of property, when you buy something, by
onerous title, that belongs to the absolute community of property regardless of the source of the money.

Ownership, Administration and Enjoyment of the Exclusive Property and Other Principles:

When the property is an exclusive property and you are governed by conjugal partnership of gains, the ownership,
enjoyment and the administration of the exclusive property shall belong to the husband or the wife who owns it. The
spouse shall have the ownership and enjoyment of his or her exclusive property.
However, a spouse may transfer the administration of his or her exclusive property to the other spouse. But if there is a
transfer, it must be done in a public document.
o
For example, the wife, after the marriage, told her husband, Sweetheart, will you please manage my property.
You are the king of the family now. I will entrust all my exclusive property to you. For management and
administration. Thats alright. But the transfer must be in a public document to be binding to third persons.
o
But the fact that the exclusive administration of the wife has already been transferred to the husband, it does not
make the husband the owner of the property. His right is only to manage but he cannot alienate nor dispose the
exclusive property of his spouse. Likewise, if the administration and management of these properties has already
been transferred by the wife to the husband, it does not preclude the wife to sell these properties even without

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the consent of the husband; because that is her exclusive property. If the wife sells her exclusive property, that
means that the wife is terminating the exclusive administration of the property by her husband.

If the exclusive property of the spouse is involved in a litigation, only the other spouse will litigate and will not include the
other spouse.
o
The wife at the time of the marriage, governed by the conjugal partnership, is already an owner of 10 apartment
units. She has already been collecting rentals at 10k per unit. Once the wife gets married, the wife will remain to
be the owner of those apartments. But the rental of these apartments that accrues during the marriage will now
be part of the conjugal partnership because those are fruits or income of the exclusive property of the wife.
Suppose one of the tenants is already delinquent and he refused to pay, the wife decides to file an ejectment
case against that tenant.
Should the wife involve her husband in the case? We have a rule that states that if a party to a litigation is a
married woman, the husband must be impleaded. As a general rule, a married woman cannot litigate without
impleading the husband. An exception is that if the property sought to be recovered by the wife is her exclusive
property, she need not involve the husband.

So, in this case, the wife can file an ejectment case alone.
But should the wife also demand from the tenant the payment of rentals in arrears, the wife will have to
implead the husband because the rental that she seeks to recover is already conjugal. And so she is
recovering here not only her exclusive property but she is also recovering the conjugal money which is
the rental.

A property left by will to both spouses during the marriage is an exclusive property not conjugal.
If during the marriage, the couple is governed by the conjugal partnership, someone donated a land to the husband and
the wife; they accepted the donation. The land is not conjugal because the land was acquired during the marriage by
gratuitous title, donation. It is exclusive. That means, of the land is the exclusive property of the husband and the other
half of the land is the exclusive property of the wife.
In case of donation during the marriage, accretion in case of property donated to both the husband and the wife will
apply if donation is pro indiviso.
Accretion means that when a property is donated to two persons, and one did not accept it. For example, a 1 hectare
agricultural land was donated to the husband and the wife, it turns out that the husband is not qualified to accept the
donation, accretion will come in. That means the entire land will go to the wife or the husband when, although qualified
he refused to accept the donation, then the share of the husband will accrue to the benefit of the wife. The entire land
will now be owned by the wife because of the principle of accretion. But accretion will only apply if the property donated
is pro indiviso, meaning undivided.
If the relative of the wife donated 1 hectare land that is still undivided, still 1 whole land to the husband and the wife, and
the husband refused to accept the donation, accretion will come in. The entire land will now be owned by the wife. It
becomes an exclusive property of the wife.
o

What happens if the uncle, before he gave that land, he decided to subdivide it first into two parts? Lot A Wife.
Lot B Husband. The husband refused to accept Lot B. Will Lot B go to the wife?
No because accretion will not apply here. The property donated was not pro indiviso.

If conjugal funds are used to pay obligations under an onerous donation. What will happen to the property?
If a property is donated to a wife but there are conditions attached to it and therefore the donation is not purely
gratuitous but also onerous. The uncle donated a parcel of land to the wife only with a condition that the donee wife will
construct a chapel of San Lorenzo Ruiz on the parcel of land donated.
Then the husband told the wife to use the conjugal funds to construct the chapel.

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Will it make the property donated to wife conjugal? No. It remains to be an exclusive property of the wife. But the wife will
be indebted to the conjugal partnership for the money used to build the chapel.

This is an example of conjugal funds used to pay obligations under an onerous donation.

What about pensions, retirement benefits and other life annuities received by a spouse during the marriage? Is it conjugal
or exclusive?
If the husband retires, he received 1m, the classification as conjugal or exclusive property of the 1m depends on the
nature of the retirement benefit received by the husband.
o
o

If it is onerous, conjugal.
If it is gratuitous, exclusive.

CONJUGAL PARTNERSHIP PROPERTIES:


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)
Comments on Conjugal Partnership Properties:

If the husband is engaged in treasure hunting, and he discovered the Yamashita Treasure; his share on the hidden
treasure will go to the conjugal partnership, not as his exclusive property.
What happens if the husband discovers the hidden treasure in a land exclusively belonging to the wife? The entire treasure
forms part of the conjugal partnership property regime of the spouses. share of the husband as the finder and share of
the wife as the owner of the land where the hidden treasure was found goes to the conjugal partnership.
Those that are acquired through occupation such as fishing or hunting, livestock existing upon the dissolution of the
partnership.
Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be
borne exclusively by the loser-spouse.
o
To discourage the spouse from gambling.
o
So if during the marriage, you gamble, if you win, conjugal; if you lose, that is yours alone.

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Basic Rules in Determining the Property Acquired During the Marriage as Conjugal or Not:
1.

Property bought on installment paid partly from the exclusive funds and partly from the conjugal funds.
o
Suppose before the marriage, the husband bought some properties by installment. Like appliances to be used by
the couple once they get married. 1st to 3rd installments were paid by the husband using his exclusive money. The
subsequent installments were already paid by the conjugal funds. Who owns those properties?
Answer: Article 118, Family Code

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 shall be
reimbursed by the owner or owners upon liquidation of the partnership. (n)

It depends on when the ownership was transferred:


If the ownership was transferred immediately when the husband paid the first installment,
exclusive.
If the ownership will be transferred upon payment of the last installment, at that time the
husband is already married, owned by the conjugal partnership.
So check the agreement between the buyer and the seller regarding the transfer of the ownership.

2.

Rule on credit payable by installment.


o
E.g. the husband extended a loan to his friend before he got married to his wife and the friend debtor promised
to pay it by installment. 1st to 3rd installment, he was still single. On the subsequent installment, the creditor is
already married. There is already a conjugal partnership. Who owns the subsequent installments during the
marriage?
The payments remain as the exclusive property of the husband.
However the fruits of the loan like the interest that accrues will be conjugal.

3.

Rule in case of improvements introduced on the exclusive property of the spouse using the conjugal funds.
o
E.g. the land is an exclusive property of the wife. During the marriage, the husband and the wife decide to build
their house on the land of the wife. Who owns the house and lot now?
In the Civil Code, we use the principle, accessory follows the principal. In this case, the principal is the
land. The house is the accessory. So whoever owns the land will own the building or the house. We do
not apply that on the Family Code, okay?
In the Family Code, if an improvement like a house or a building is introduced on the land belonging to
the wife as her exclusive property, the house and lot will go to the wife or to the conjugal partnership
depending on which is more valuable.
Land 1m. House 2m. House is more valuable, the land will be absorbed by the owner of the house.
Since the house is built by the use of conjugal funds, the land owned by the wife exclusively becomes
conjugal.
Land 1m. House 500k. Land is more valuable. Then the house will be absorbed by the owner of the
land. Then the house becomes the exclusive property of the wife.
However, ownership is transferred only upon reimbursement.
Reimbursement usually takes place during the dissolution of the conjugal partnership of gains
property regime.

4.

*Everything that is acquired during the marriage is presumed to be conjugal.


o
Presumption of conjugality requires that the property must be acquired during the marriage.
o
So if you claim that the property is conjugal, you first have to prove that the property was acquired during the
marriage or after the celebration of the marriage.

5.

Damages received by the husband or by the wife during the marriage.


o
Zulueta case vs Lilius case SC has different rulings
o
Zulueta case:

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Wife acquired money from damages awarded by the court on a damages suit involving her and the
airline company, PanAm.
SC said that money is conjugal. The money that was used to buy the plane ticket was conjugal.
o

Lilius case:
Wife was one of the passengers of a train and the train met an accident. She was injured and sued the
railroad company. She won the case and was awarded damages.
SC said that the money awarded is exclusive. The Court took into consideration the severe injury of the
wife in the accident.

NEW CASE! Matthews vs. Taylor, GR No. 164584, June 22, 200910
Filipina married a foreigner and they bought a land. The land is placed under the name of the wife
because the husband who is foreigner cannot own the land.
SC said that the land, even if it was acquired during the marriage, shall not be considered as part of the
conjugal but only an exclusive property of the wife. Thus if the property will sell, encumber or lease the
land, she need not ask the permission of the husband.
Taken from the case:
In light of the foregoing jurisprudence, we find and so hold that Benjamin has no right to nullify the
Agreement of Lease between Joselyn and petitioner. Benjamin, being an alien, is absolutely prohibited
from acquiring private and public lands in the Philippines. Considering that Joselyn appeared to be the
designated "vendee" in the Deed of Sale of said property, she acquired sole ownership thereto. This is
true even if we sustain Benjamins claim that he provided the funds for such acquisition. By entering into
such contract knowing that it was illegal, no implied trust was created in his favor; no reimbursement for
his expenses can be allowed; and no declaration can be made that the subject property was part of
the conjugal/community property of the spouses. In any event, he had and has no capacity or
personality to question the subsequent lease of the Boracay property by his wife on the theory that in so
doing, he was merely exercising the prerogative of a husband in respect of conjugal property. To sustain
such a theory would countenance indirect controversion of the constitutional prohibition. If the property
were to be declared conjugal, this would accord the alien husband a substantial interest and right over
the land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the
Constitution does not permit him to have.

6.

10

Inscription on the titles of the words, married to is merely descriptive of the status and not of the conjugality.
o
SC repeatedly said that the fact the title of the property bears, Rafael Nadal married to Kitchie Nadal, it does
not mean that it is conjugal. It is only descriptive of the status of the declared owner that he is married.
In order for it to become conjugal, you have to prove first that the property was acquired during the
marriage.
Relate this with principle number *4.
Case: Jocscon vs. CA, G.R. No. L-55322, February 16, 1989
Taken from the case:
It is thus clear that before Moises Jocson may validly invoke the presumption under Article 160 he must
first present proof that the disputed properties were acquired during the marriage of Emilio Jocson and
Alejandra Poblete. The certificates of title, however, upon which petitioner rests his claim is insufficient.
The fact that the properties were registered in the name of "Emilio Jocson, married to Alejandra Poblete"
is no proof that the properties were acquired during the spouses' coverture. Acquisition of title and
registration thereof are two different acts. It is well settled that registration does not confer title but merely
confirms one already existing (See Torela vs. Torela, supra). It may be that the properties under dispute

Highlighted kay g.butangan sa transcriber ug new case on the matter although 2009 ang case

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were acquired by Emilio Jocson when he was still a bachelor but were registered only after his marriage
to Alejandra Poblete, which explains why he was described in the certificates of title as married to the
latter.
Contrary to petitioner's position, the certificates of title show, on their face, that the properties were
exclusively Emilio Jocson's, the registered owner. This is so because the words "married to' preceding
"Alejandra Poblete' are merely descriptive of the civil status of Emilio Jocson. (Litam v. Rivera, 100 Phil.
354; Stuart v. Yatco, No. L-16467, April 27, 1962, 4 SCRA 1143; Magallon v. Montejo, G.R. No. L-73733,
December 16, 1986, 146 SCRA 282). In other words, the import from the certificates of title is that Emilio
Jocson is the owner of the properties, the same having been registered in his name alone, and that he is
married to Alejandra Poblete.
We are not unmindful that in numerous cases we consistently held that registration of the property in the
name of only one spouse does not negate the possibility of it being conjugal (See Bucoy vs. Paulino, No.
L-25775, April 26, 1968, 23 SCRA 248). But this ruling is not inconsistent with the above pronouncement for
in those cases there was proof that the properties, though registered in the name of only one spouse,
were indeed conjugal properties, or that they have been acquired during the marriage of the spouses,
and therefore, presumed conjugal, without the adverse party having presented proof to rebut the
presumption (See Mendoza vs- Reyes, No. L-31618, August 17, 1983, 124 SCRA 154).
In the instant case, had petitioner, Moises Jocson, presented sufficient proof to show that the disputed
properties were acquired during his parents' coverture. We would have ruled that the properties, though
registered in the name of Emilio Jocson alone, are conjugal properties in view of the presumption under
Article 160. There being no such proof, the condition sine qua non for the application of the presumption
does not exist. Necessarily, we rule that the properties under Exhibit 3 are the exclusive properties of
Emilio Jocson.
Dean Monteclar:
The strongest proof of conjugality is that the property was acquired during the marriage by onerous title.
(Gratuitous? Not conjugal!)

Charges Upon and Obligations of the Conjugal Partnership:


Art. 121. 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;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

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(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)

This is just the same with Article 94.


Recall on Ante-Nuptial Debts, incurred before the marriage, chargeable to the absolute community and even to the
conjugal partnership if it redounded to the benefit of the family.
o
If it did NOT redound to the benefit of the family, it is a personal obligation of the husband alone.
o
But in the absolute community, it can be charged to the absolute community or funds if the spouse concerned
does not have sufficient funds to pay for it. Because if the husband and the wife is governed by the absolute
community, they only have very few exclusive property. The law deems it fair and reasonable to charge that
obligation to the absolute community but it will be considered as advances of the spouse concerned; which will
be deducted from his share once the absolute community is dissolved.
o
If you can still recall Par. 9, Art. 94 of the Family Code, it mentions three classes of obligations which could be
charged to the absolute community but will be considered as advances:
1. Ante-Nuptial debts which did NOT redound to the benefit of the family.
2. Support of Illegitimate Child of the husband or the wife.
3. Civil liability arising from a crime committed or of a quasi-delict.
These three are personal obligations of the spouse but if the spouse has no sufficient funds, he can charge that to
the absolute community but will be considered as advances of the spouse concerned. The creditor then can
demand payment of these obligations from the absolute funds.
o

Will that rule above apply to the conjugal partnership of gains? Is there any difference on the rule?
Yes. Theres a case:
Efren Pana vs. Heirs of Juanite, GR No. 164201, December 10, 2012
Under the Family Code, the conjugal property may be held civilly liable arising out of a crime committed
by a wife but only after all the obligations mentioned in Art. 122 has already been fully claimed.
The wifes civil liability for slander cannot be charged against the conjugal partnership as it did not
redound to the benefit of the family. BUT if the wife does not have money to pay for it, it can be charged
to the conjugal partnership but only after all the obligations mentioned in Art. 121 has already been fully
paid or satisfied.

Art. 121 is a mere reproduction of Art. 94 about charges and obligations on the property regime.
The difference is that if you are governed by the absolute community of property regime, you can
charge right away the obligations to the absolute community if you do not have sufficient funds or
property to answer for the three obligations but if you are governed by the conjugal partnership, these
three obligations CANNOT be charged to the conjugal partnership; NOT until all the obligations
enumerated under Art. 121 have already been fulfilled. So last priority ni siya. You have to prove first
that all other obligations mentioned in Art. 121 have already been fully paid.

Taken from the case:


In deciding whether or not the conjugal properties of Efren and Melecia may be held to answer for the
civil liabilities imposed on Melecia in the murder case. Article 122 provides:
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 properties partnership except insofar as they redounded
to the benefit of the family.

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Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
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 above-mentioned.
Since Efren does not dispute the RTCs finding that Melecia has no exclusive property of her own,24 the
above applies. The civil indemnity that the decision in the murder case imposed on her may be
enforced against their conjugal assets after the responsibilities enumerated in Article 121 of the Family
Code have been covered.

11

Ante-Nuptial debts or debts incurred during the marriage shall be chargeable to the absolute
community or conjugal partnership if such debts redound to the benefit of the family.

The conjugal partnership is liable for all obligations incurred by the husband or the wife during the marriage. Thus, when
the said obligation becomes due, the conjugal partnership shall be answerable.
o
If it is a conjugal debt, you, as a creditor should demand payment from the conjugal partnership, not from the
husband or the wife, individually. If the conjugal partnership is solvent, it will be the one who will pay.
o
The husband or the wife can only be held individually liable when the conjugal partnership is already insolvent.
Solidary liability.

Administration of the conjugal properties is the same with absolute community. In the absolute community the
administration, use and enjoyment of the absolute community properties belong to the husband and the wife. They are
co-owners, so they should be joint administrators. The same rule applies to conjugal partnership. The same with Arts. 96 to
98.

SPS. ANTONIO GUIANG VS. CA: When the husband sold a conjugal property without the knowledge and consent of the
wife, the sale is VOID. The subsequent and questionable amicable settlement entered into by the wife with the buyer in
connection with the case for trespassing filed against her by the buyer, where the wife later contested her signature in the
said settlement, could not have validated or ratified an already void and illegal contract.

SPS. RAVINA VS. ABRILLE: If the sale was with the knowledge but without approval of the wife, thereby resulting in
disagreement, such sale is ANNULABLE at the instance of the wife who is given 5 years from the date the contract
implementing the decision of the husband to institute the case.
o
SIR: The Family Code says, sale of a conjugal property or an absolute community property by the husband
alone without the consent of the wife is VOID, not VOIDABLE BUT the non-consenting spouse may ratify it. Naa ba
diay void na ma.ratify? Maglibog lang ta.11
o
And there is another provision that says that the husband and wife are JOINT administrators of the absolute
community and also with the conjugal property.
o
In case of disagreement, the decision of the husband will prevail but the wife is given 5 years to question the
decision of the husband. So, she must go to court to question. Only the court can change the decision of the
husband. This was applied in the case of Ravina vs. Abrille.

MELANIA ROXAS VS. CA: The husband-administrator cannot LEASE a conjugal property without the consent of the wife.
o
Not only the sale is prohibited but also the LEASE of the property because that is a form of an encumbrance.
Husband or wife cannot alienate or encumber a property without the knowledge and consent of the other
spouse.

VOIDABLE before the Family Code BUT VOID but can be RATIFIED under the Family Code. What is the difference?

Duha na ta sir, hahaha!!

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o

FAMILY CODE: If the wife will not ratify it, it remains to be void and if it is void, it can be questioned by the wife
anytime, even after 10 years because there is NO PRESCRIPTION on the right to question a void contract. That is
the only effect. A cross-breed between void and voidable contract.
OLD LAW: If voidable, after the lapse of 10 years which is the period to annul it, you can no longer annul.

AGGABAO VS. PARULAN: The sale of a conjugal partnership without the knowledge and consent of the other spouse is
void. When the property is conjugal and the seller is only one spouse armed with an SPA allegedly executed by the other
spouse in favor of the other spouse, the buyer must verify the authenticity of the said SPA. Otherwise, he will not be
considered a buyer in good faith.
o
EXCEPTION: PNB VS. CA: sale of a conjugal property without the knowledge and consent of the wife is void.
However if the buyer is a BUYER IN GOOD FAITH, the wife cannot anymore recover the property, cannot anymore
nullify the sale. The only remedy of the wife is to ask for her share of the proceeds.

BUT this will NOT apply in the case of AGGABAO: especially in this case because the husband and wife
were already separated de facto and the husband sold the conjugal properties by falsifying the SPA of
his wife.

FUENTES VS. ROCA: if the sale, without the consent of the wife, was made after the effectivity of the Family Code, the sale
is VOID even if the parties were married in 1950. The buyer, however, may recover the amount they paid to the seller with
legal interest until fully paid and to be entitled to indemnity for the improvements they introduced into the property with a
right of retention until the reimbursement is made.

GROUNDS FOR DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

SAME with the absolute property

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)
v Same with Article 99
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)
Same with Article 100

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

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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 intention of returning to the conjugal dwelling. (167a, 191a)
v Same with Article 101
LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES
v

SAME with Absolute Community

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 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)
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.

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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)
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)
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)
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)

12

SAME procedure for termination of marriage after death.

REVIEW:
o
When the marriage is dissolved, the absolute community is liquidated in the settlement of the estate of the
deceased in order to avoid multiplicity of suit/action.
o
And the surviving spouse is mandated by law to settle the estate of the deceased spouse within a period of 1
year.
o
If she did not settle the estate and liquidate the AC/CPG12 , any alienation of disposition of the common property
shall be void.
o
And in case the surviving spouse decides to remarry without liquidating the AC/CPG, her subsequent marriage
shall be mandatorily governed by Complete Separation of Property.

HEIRS OF PROTACIO GO VS. SERVACIO (2011): The sale of the conjugal property by the surviving spouse without liquidating
the partnership with the deceased spouse is not valid under Article 130 of the Family Code. This provision however is
PROSPECTIVE and will not apply if the wife died in 1987 (1 year before the Family Code took effect) as it is Article 175 of the
Civil Code that will apply which provides that the sale may be valid but only as to share of the selling spouse. No vested
right can be impaired by the new law.
o
Take note of the difference between the new and old law:

FAMILY CODE: ENTIRE sale is VOID

CIVIL CODE: share of the selling spouse is VALID

Family code cannot be applied retroactively if it would impair vested rights acquired under the
old law.

Family code provides for its retroactive effect however if vested rights are impaired, it cannot be
applied.

Recall BERNABE CASE: son of a fiscal cannot impair vested right

AC absolute community; CPG conjugal partnership of gains

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CHAPTER 5. SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE
MARRIAGE
Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during
the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for
sufficient cause. (190a)
v

As a general rule, the regime of Complete Separation of Property13 can only apply to the husband and the wife if there is
Marriage Settlement and it is the regime agreed upon by them in the Marriage settlement. If there is none, automatic AC
which is the default regime.
However this CSP may apply during the marriage and it may even replace the existing regime (AC/CPG). This is now what
we call as the Separation of Property during the marriage.

During the marriage, the husband and the wife may decide to dissolve their AC/CPG and have it replaced with CSP. It is
done by JUDICIAL PROCEEDING.

Judicial Separation of Property during the marriage is equivalent to a dissolution of the AC/CPG during the marriage.
o
RECALL: the property regime that was agreed upon by the husband and the wife before the celebration of the
marriage in their marriage settlement CANNOT be changed during the marriage as a GENERAL RULE.

REASON: AC/CPG shall commence only at the precise moment of the celebration of the marriage. It
cannot commence at any other time.
o
BUT AC/CPG may be changed to CSP through a court order. There must be court intervention.

REMEMBER: Do NOT notarize an agreement of a husband and wife where they agree to divide their
conjugal properties among them. Advise them to go to court. Otherwise you will be subjected to
disciplinary actions which would be a ground for disbarment proceedings against you for ignorance of
the law.

TWO WAYS FOR JUDICIAL SEPARATION OF PROPERTY


1.
2.

BASED ON VALID GROUNDS


VOLUNTARY AGREEMENT

If based on VALID GROUNDS:

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

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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)

First 3 grounds are based on JUDICIAL DECISIONS so when you file a petition based on these grounds, the
decision of the court (penalizing him for civil interdiction, declaring him an absentee or for loss of parental
authority) would be sufficient evidence to support your petition. It would surely be granted.

If there is a ground, only one spouse will file the petition. The conformity of the other spouse is NOT needed,
especially the guilty spouse.

VOLUNTARY SEPARATION OF PROPERTY

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)
o
o

The husband and the wife may dissolve their AC/CPG by mutual agreement. A verified petition must be filed
with notice to all creditors.
The agreement to have a voluntary dissolution of properties by mutual agreement takes effect from the
moment the court approves it, NOT by the time the spouses sign the agreement.

EFFECTS OF THE DECREE OF SEPARATION OF PROPERTY


Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be
liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay
for the support of the spouses and their children. (192a)
Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of
property shall apply. (191a)
Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil
registries and registries of property. (193a)
Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a)
EFFECTS:
1.
2.
3.
4.

It will result to the dissolution of the AC/CPG. Here the dissolution shall be equal unless otherwise provided in the
marriage settlement.
This principle of presumptive legitime will not apply here because there is no dissolution of marriage here.
Support of the children and the spouse shall be taken from the AC/CPG.
The decree of separation must be recorded in the proper registry

REVIVAL OF THE FORMER PROPERTY REGIME


Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree

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

Petition for revival may take place in the very same court that granted the judicial separation of property.
o
If the reason for the judicial separation is based on any of the VALID GROUNDS enumerated under Article 135 and
that ground ceases to exist, then the husband and the wife can always petition the court to revive the old
regime.
o
If the reason for judicial separation is VOLUNTARY, not based on any of the grounds, they can always go back to
the old regime. BUT once they go back to the old regime, they CANNOT anymore go back to the separation of
properties again. If based on voluntary agreement, can be availed of only ONCE.

ADMINISTRATION OF EXCLUSIVE PROPERTIES


GROUNDS:
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)

REMEMBER: the revival of the previous property regime must be done in a motion in the same court where the separation
of the property was decreed. It must be under oath and it must specify the properties to be contributed anew to the
restored regime.

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CHAPTER 6. REGIME OF SEPARATION OF PROPERTY
This regime of separation of property may also commence AT THE TIME OF THE MARRIAGE provided it is the regime agreed upon in
the marriage settlement.
Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed
by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a)
Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the absolute community. (213a)
Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the
consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to
the current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)

When the husband and wife is governed by this regime of complete separation of property, each spouse shall own,
administer, use of enjoy his/her own exclusive property to the exclusion of the other spouse.

If the husband and wife is governed by the CSP14 , who will bear the expenses for the following?
o
Family expenses shall be borne in PROPORTION to their INCOME. Husband and wife will contribute for the
common expenses (groceries, electric bills, rental, education of the children)
o
If they incur LIABILITY, their liability shall be SOLIDARY to the creditors. The creditor can demand payment from the
husband/wife alone.

The 3 regimes discussed (AC/CPG/CSP) will only apply if there is a VALID MARRIAGE. So, if there is no marriage or even if there is
marriage but it is void, the husband and the wife in that void marriage will not be governed by the AC/CPG/CSP, there is a specific
rule for that under

CHAPTER 7. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE


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

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When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)

Under ARTICLE 147, a man and a woman live together without the benefit of marriage or under a void marriage BUT they
have NO LEGAL IMPEDIMENT to marry each other.

If there is LEGAL IMPEDIMENT, the co-ownership is based on ACTUAL CONTRIBUTION (ARTICLE 148)

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
share 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)
So there are 2 KINDS OF CO-OWNERSHIP:
1. FULL CO-OWNERSHIP
2. CO-OWNERSHIP BASED ON ACTUAL CONTRIBUTION

FULL CO-OWNERSHIP
o
Co-ownership under Article 147 speaks of FULL CO-OWNERSHIP. Full co-ownership means the husband and the
wife will own those properties equally (50-50)
o

Full co-ownership will only apply when a man and a woman lived together as husband and wife without the
benefit of marriage but they have NO LEGAL IMPEDIMENT to marry each other

This means that whatever is acquired during the period of cohabitation, it will be owned by both of them equally.
Even if it is only one of them who acquired all those properties during the period of cohabitation, the other
partner is entitled to one-half of it (1/2)

Example: Man is a very good businessman who acquired many properties. The woman, live-in partner,
was a housewife. She took care of the household, children and the man. She never contributed in the
acquisition of these properties. The man died. The woman will own of the properties as part of the coownership because under Article 147 care and maintenance of the family and of the household is
sufficient contribution for the other partner.

CO-OWNERSHIP BASED ON ACTUAL CONTRIBUTION


o
If the husband and the wife lived together without the benefit of marriage because they cannot marry each
other, one of them has a legal impediment, the rule that will govern will be Article 148. It will be based on actual
contribution. If you dont have any contribution, you will have no share.
o

This is actually intended to discourage these illicit relationships.

Example: Man living together with another woman, not his wife, as husband and wife. They cannot marry
because the man has a wife who he left behind. During the time that they lived together, the man
acquired many properties. The man died. Since it is an illicit relationship, then they will only be co-owners
based on their contribution. Even if the woman played the role of a housewife, her contribution as to her
lawas and kalag cannot be counted. So, if she cannot prove that she contributed money or effort in
acquiring these properties, she will not get anything.

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For VOID MARRIAGES:

Under ARTICLE 147: WITHOUT legal impediment must NOT be due to the ABSENCE OF LEGAL CAPACITY TO MARRY
o
Article 36
o
Article 44
o
Article 53
o
Absence of consent
o
Absence of the authority of the solemnizing officer
o
Absence of valid marriage license
o
Absence of marriage ceremony under Article 4

RECALL: Legal capacity under Article 5:

The parties must be BOTH of legal age

The parties must be a MAN and a WOMAN

The parties must not be suffering any of the legal impediment to marry each other under Article
37 and 38:
o
Incestuous marriage
o
Against public policy

Under ARTICLE 148: WITH legal impediment


o
Article 37: Incestuous marriage
o
Article 38: Against public policy

ALAIN DIO VS. MA. CARIDAD DIO: The void marriage under Article 36 is one of the void marriages referred to in Article
147 where co-ownership governs. It is an error for the trial court to order that a decree of absolute nullity of marriage shall
be issued only after liquidation, partition and distribution of the parties properties. The ruling has no basis because Section
19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code. There is no conjugal
partnership to govern you.
o
FACTS: Alain, the husband, filed a case against Ma. Caridad (wife) for nullity of marriage on the ground of
psychological incapacity of Caridad. RTC granted the petition and declared the wife psychologically
incapacitated. The husband waited for 15 days to elapse for the decision to become final. The wife and the OSG
did not appeal, so the decision became final. After the lapse of 15 days, the husband went to the judge to ask
for the certificate of finality of the decision. The judge denied the request saying that the he was not yet done
with the case. The judge was, apparently, not yet done with the liquidation of the conjugal properties. The
husband questioned the judges ruling to the Supreme Court.

SC: The husband is correct. It is wrong for the judge to withhold the issuance of the certificate of finality
for the simple reason that he has not yet finished liquidating the conjugal partnership after declaring the
marriage void under Article 36. It is wrong because this relationship is not governed by any conjugal
partnership or absolute community. When the marriage is void under Article 36, the parties are governed
by Co-ownership under Article 147. So the dissolution of the properties of the husband and the wife shall
be done in accordance to the provision of the Civil Code Article 496 which is about the dissolution of the
co-ownership, NOT the dissolution of CPG/AC.

HOW DO YOU DISSOLVE A CO-OWNERSHIP UNDER THE CIVIL CODE? Simple PARTITION:

Judicial

Extrajudicial
THE FAMILY

ARTICLE 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)

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ARTICLE 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-blood. (217a)

ARTICLE 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 case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)

Who are the members of the Family?


-Article 150
The reason why we have to know who family members are because there are provisions in the law which applies only to
members of the same family. We have provision that states that No suit between the members of the same family shall
prosper unless there was an earnest effort to settle the matter amicably. In your complaint you have to allege that you
made an earnest effort to settle the matters amicably.
Why?
o
Because this is a ground for a motion to dismiss under Rule 16. There are 10 grounds under Rule 16, the 10th ground
is failure to comply with the condition precedent for the filing of claim or action in court.

What are the CONDITIONS PRECEDENT for the filing of action in court?
- there are 3:
1) Katarungan Pambarangay you have to go through a Lupon TagaPamayapa.
Members of the same Barangay, no civil action will proper if there is no Certificate to
file Action issued by the Lupon
2) Exhaustion of Administrative Remedies if the law provides for the exhaustion of admin
remedies, must exhaust all, otherwise it will be dismissed
3) Article 151 of Family Code must allege, otherwise its a ground for dismissal
However, there are NON-COMPROMISABLE cases. Hence, you need not allege in your complaint that earnest efforts has
been made to settle matters amicably.
o
When is there NO need to allege such in the complaint?
1) Cases which cannot be compromised, such as:
1. Involving the validity of the marriage
2. Annulment of marriage
3. Declaration of Nullity of marriage
4. Legal Separation
5. Action involving filiation
2) One of the defendants is not a member of the same family.
CASE: Gayon vs Gayon (36 SCRA 104). Plaintiff filed a case against his sister-in-law, nephews and nieces
for the recovery of a parcel of land. Plaintiff failed to allege that there was earnest effort to settle matters
amicably. Hence, defendants filed motion to dismiss. But the SC said that there is no need for such
allegation because the sister-in-law, his nephews and nieces do not belong to his family so there is no
need to allege in the complaint.
CASE: (Hontiveros vs RTC GR 125465). Suit is filed against her own sister but he impleaded the latters
husband. So SC said no need for the earnest effort because the husband is not a member of the same
family.
3)

Barangay Conciliation

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CASE: (Martinez vs Martinez). The complaint states that the matter was first referred to the Barangay Conciliation.
Such according to SC is considered substantial compliance with the requirement of an allegation of prior
recourse to compromise.

The term suit between members of the same family refers to a case that is adversarial or controversial in nature.
o
CASE: (Pilar Vda. De Manalo vs CA). Case of settlement of the estate of the deceased is not adversarial. Hence,
no need to allege earnest effort.

Failure to allege earnest effort is a ground for a motion to dismiss. But among the 10 grounds under rule 16, there are 4
instances when the court can MOTO PROPRIO DISMISS the case.
o
These are: Lack of jurisdiction, litis pendentia, res judicata, and prescription.
o
Others are waivable.
o
CASE: (Heirs of Favis vs Juana Gonzales GR 185922, Jan. 15, 2014).
o
This is a case between siblings (half-brothers). SC ruled that motion to dismiss on the ground of failure to exert
earnest effort must be raised before the filing of an Answer in trial court. Otherwise, it is deemed barred. CA erred
when it moto proprio dismissed the case on such ground.
Sir: so you have to raise it in the Answer or in a Motion to Dismiss.
CHAPTER 2: FAMILY HOME

ARTICLE 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)

ARTICLE 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be
such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value
allowed by law. (223a)

ARTICLE 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.

The Family Home refers to the house and lot where the family resides. To be considered a family home, it must be owned
by the husband and the wife, the husband alone or the wife alone, or by an unmarried head of the family AND must be
devoted primarily for residential purpose. Under Civil Code, for a family home to be considered as such, it must be
constituted by the owner either judicially or extra-judicially.
o
For judicial, you have to ask the court for the issuance of an order declaring the home as the family home then it
shall be annotated on the title.
o
Extra-judicially, you have to submit an affidavit and submit it to the Local Civil Registrar. In the New Family Code,
there is no need for such. FC provides that it shall be automatically considered as family home the moment the
moment the family resides therein.

In the case of those houses which were built prior to the Family Code, they are now considered as Family Home but is
considered as such only at the time of the effectivity of the FC (Aug. 3, 1988).
o
CASE: (Mondequillo vs Breva). Levy on execution was made after Aug. 3, 1988 but the obligation of the husband
was before such date. The husband objected saying that it is a Family Home. SC said it becomes Family Home

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only upon the effectivity of the FC. It cannot be exempted from execution, forced sale or attachment because
the obligation was incurred prior to Aug. 3, 1988.

Occupancy must be actual.

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

CASE: (De Mesa vs Asero). SC said the exemption must be set up and proved to the sheriff before the sale in public
auction because this is a personal right. This is a personal privilege of the judgment debtor and therefore must be claimed
by him and not by the sheriff.

But there is a limit as to the value of the Family Home.

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

When it exceeds the limit provided by law, the creditor can now ask that the family home to be levied on execution and
the creditor will just give the judgment debtor the 300,000 or 200,000. The excess shall pay off the obligation. The idea is
that you can just build a new home with that 300k/200k.

ARTICLE 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)
ARTICLE 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)

There are people who must give their consent to the sale of the Family Home. These are the beneficiaries.
There are 2 kinds of beneficiaries under the Family Code:
1. Primary owner (spouses or unmarried head of the family)
2. Secondary children or those persons who are living in the family home dependent for support from the
owner (ex: parents of husband or wife, brother or sister of spouses)

CASE: (Eulogio vs Bell GR 186322 July 8, 2015). SC ruled that to warrant execution or sale of the respondents family home,
the following must be established:
1. There was an increase in the actual value of the family home
2. It resulted from the voluntary improvement introduced by the one who instituted or by the beneficiaries

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3.

Increased in the value exceeded the limits provided in Article 157 FC.

Also, it must be remembered that the value indicated in Article 157 must be reckoned from the time of the constitution as
the family home. If there is an increase in the value, it must not result from the ordinary increase but must be because of
improvements. In this case at bar, these were not established. When the court declares that it is really a family home, then
it means its value is within the limits. Then its incumbent upon petitioner to prove the increased value.

CASE: (Patricio vs Dario). The family home is owned by the grandmother. The SC ruled that grandchildren are not
considered as minor beneficiaries even if they are minors because they are not dependent for support from the
grandmother.
PATERNITY AND FILIATION
CHAPTER 1
Legitimate Children

ARTICLE 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

ARTICLE 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are
likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry
together with the birth certificate of the child. (255a, 258a)

ARTICLE 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

Paternity and Filiation refer to the bond or the ties that bind the parents and child.
Paternity refers status of the father in relation to his child.
Maternity refers to the status of the mother in relation to her child.
Filiation refers to the status of a child in relation to his parents.
Filiation could either be:
1. By nature
2. By adoption

Natural Filiation is base on blood relationship. It may either be:


1. Legitimate child born within lawful wedlock
2. Illegitimate child is born outside lawful wedlock or void marriages.
o
However, not all void marriages produce illegitimate children.
i. Article 36 psychological incapacity
ii. Article 54 subsequent marriage (relate to Article 52 to 53).
o
Before the FC, there are different types of illegitimate. The rule is that the share in inheritance is 10-54; 10 for legitimate child, 5 acknowledged natural child, 4-spurious or adulterous child. Under the
New Family Code, no more distinction of illegitimate child.
Under the New FC, child born of Artificial Insemination is considered as legitimate child.
Provided the CONDITIONS are
present:
1. Both spouses have authorized in writing the performance of artificial insemination on the wife;
2. That if the husband had no knowledge, he ratified it upon knowledge;
3. That the instrument containing the agreement between the parties must be executed before the birth of the
child and shall be recorded in the civil registry together with the birth certificate of the child.

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In artificial insemination, the sperm need not be that of the husband. Provided, the husband and the wife must agree on it
in writing and registered to the civil registrar before the birth of the child.

If wife undergoes the insemination without the knowledge of the husband, if the husband learned about it and did not do
anything about it, then still considered as legitimate because the child was born during the marriage.

If the husband does not agree to it, the wife cannot be convicted of Adultery because in artificial insemination, there is no
sexual intercourse. The introduction of the sperm was through an injection.

In in vitro fertilization, the sperm of the man is harvested and also the egg of the woman then the fertilized egg shall be
injected into another womans uterus. That woman is the surrogate mother. There was a US case wherein the surrogate
mom refused to give the child to the couple. US court ruled that the child is that of the husband and the wife and that the
surrogate mom is a mere carrier.

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

The Rule is that a child born during a lawful wedlock is considered to be legitimate. But that child can be illegitimate if the
husband questions the legitimacy of the child.

Under our law it is only the husband or in some instances the relatives of the husband who can question or impugn the
legitimacy of the child.

GROUNDS (Family Code) three grounds


1.
Physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days
preceding the birth. (period of conception)
Must be due to any of the FF:

physical incapacity of the husband to have sexual intercourse

impotent

husband and wife living separately

serious illness of the husband


Ex: child is born November 1 you count 300 days backward. That would be 10 months or January 1 (conception). this is
the longest period of gestation of the child.
Longest period- 10 months
shortest period 6months
Meaning first four months is presumed to be the conception of the child. From january 1- may 1. this date is the basis for
whether there was impossibility of sexual intercourse.

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Even if the husband had sex on december or april thus the child may not be his. But DNA testing was not yet applied when
this law was crafted. Now we apply DNA. (atay gilibog ra ta).
SERIOUS ILLNESS
Andal vs. macaraig
Husband who was already bedridden suffering from TB. Legs swollen and could no longer walk but the wife got
pregnant. Later on the husband died and the child was delivered, the family of the husband questioned the
legitimacy of the child.
SC: LEGITIMATE CHILD. Not totally impossible to have sex. MULTIVITAMINS = ERECTION! Woooo! As long as it is still
possible to have sex or to have an erection the child will still be considered as their legitimate child. Presumption
of legitimacy.
2.
3.

Proved by biological or scientific reason that the child is not legitimate. (DNA)
Artificial insemination was obtained by fraud.
v
v

As long as born during wedlock -LEGITIMATE even if mother declares otherwise.


Wife cannot impugn the legitimacy of the child.
Exception: if the child did not come from her womb
CHUA case
Chinese couple had a maid. The maid was impregnated by her boyfriend. When the child was delivered she indicated
the names of the couple as the parents. Later on, when the husband died, the bagag nawong child claimed a share from
the inheritance as a legitimate child. The wife impugned the legitimacy of the child.
RULING: the prohibition that the wife cannot impugn does not apply in this case. As the child was never delivered thru her
womb.

To impugn legitimacy must be by DIRECT ATTACK no collateral attack. You have to file a case precisely questioning the
legitimacy.
Tijing vs. CA case
o
Recognized DNA as an effective method
Arnel Agustin vs. CA case
o
Can the alleged father of the illegitimate child be compelled to submit himself to DNA testing? Would it not
violate his right to self incrimination?
o

Arnel agusten impregnated his gf, after birth when relationship turnd sour, arnel stopped supporting the child. So
the mother filed a case to compel arnel to recognize the child as his illegitimate child and to support the child.
Arnel denied the filiation. The mother challenged him to DNA testing.
Ruling: it does not violate self incrimination. The right only applies to testimonial compulsion. There were even
instances where we compelled the accused for rape with homicide.

Rosendo Herrera vs. Alba case


In assessing the probative value of DNA. The court should not right away accept it as gospel truth. The court should
examine carefully whether the DNA result has complied with all the requirements for provided by law. It must scrutinize
whether the samples were properly taken, collected, handled, etc.
Divina case
there must be prima facie evidence that the woman had indeed have sexual relation with the putative father.
Lucas vs. Lucas case

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when there is a request for DNA test to be conducted against the alleged father of the child it is wrong for the court to
outrightly dismiss the motion for DNA test. When in the motion it appears that there is no prima facie evidence. Courts
should just not rely in the allegation in the complaint. It must allow the movant to establish evidence. Court should set it for
hearing although it is a discretion on the court to approve or not.
v

DNA testing may be done even if the alleged father is already dead. Pending the case for DNA testing, the father died. SC
yes, we cannot deny the right of the child of his filiation due to the death of the father.

Filiation cannot be subject of compromise agreement. In other words, if you claim that you are an illegitimate you must
present clear and convincing evidence
Rivero vs. CA
Rich chinese business man died, Left a huge amount of wealth. With 1 daughter and 2 sons that are not of sound mind.
The daughter was appointed administrator. Later on a child assisted by his mother claimed to be an illegitimate. The
daughter entered into a compromise agreement. The compromise agreement is not valid.
Joanie Surposa Uy vs. Jose Ngo Chua case
Involving a prominent business man, joanie uy claimed to be an illegitimate. While case was pending, ngo chua and uy
entered into a compromise agreement where the latter will receive 2 million pesos from former for accepting that she is
not a child of Ngo Chua. 2 million gone, Uy filed the same case, raffled to a different sala. Ngo Chua filed motion to
dismiss on ground of res judicata.
SC ruling: sustained UY. The compromise agreement was null and void. Dismissing the second case on res judicata is not
proper. Remanded to the RTC. Determine whether Uy has evidence to prove that she is illegitimate.
Gerardo case
Married woman and husband was separated. Married woman met gerardo and decided to marry each other. During the
marriage they begot a child named gerardo jr.. Later on gerardo learned that his wifes first marriage was not yet
dissolved. Gerardo filed bigamy case against his wife and looked for the child. Filed for visitorial rights. Court ruled he is not
entitled to visitorial rights as he is not the father.
Ruling: child was born when the mother was still married. The first marriage was not yet dissolved. He was born during lawful
wedlock of the first marriage. The child therefore was a legitmate child of the mother and the first husband. Allowing
gerardo to claim the child would be making the legitimate child an illegitimate. The first husband must impugn the
legitimacy of gerardo jr. before gerardo may be able to claim filiation with the child.
Dizon case
married woman met another man who is also married. They decided to live together and begot 2 daughters. Later on the
man went back to the first wife. Before death he executed in the will recognizing the 2 daughters as his own illegitimate.
Upon death, 2 daughters claimed. Legal wife and legitimate family opposed.
SC ruling: 2 daughters are not recognized. At the time they were born, the marriage of their mother was still subsisting they
are considered legitimate children of the first marriage.
Born during wedlock considered legitimate.

Prescriptive period starts from knowledge of the birth of the child. 1 year!
v If birth of child is concealed, one year period will not run.
Exception: if wife delivers the child in a faraway place and registered in the LCR. Registration is notice to the whole world.

As to NATURAL FILIATION there are 3 kinds of children:


1.) Legitimate

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2.) Illegitimate, and
3.) legitimated

As to legitimated children, they are those born out of a lawful wedlock and also those children who are born out of
artificial insemination provided that the conditions for the performance of artificial insemination are all complied with.
How to prove legitimate 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 judgement; 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.
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 of in a state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.

In article 172 of the FC, we have 2 sets of evidence to prove legitimate filiation
1. Primary proofs
These are the strongest proof to prove or establish filiation. In fact if you have these proofs, it is tantamount to voluntary
admission by your father of your filiation. Even if your father is already dead you can prove this filiation as long as you have
these evidences.
2. Secondary proofs

The secondary proof of filiation are admissible evidences to prove filiation but they are not very strong.
PRIMARY PROOFS OF FILIATION
1.) The record of birth appearing in the civil register or a final judgement.

This refers to the birth certificate as appearing in the office of the LCR or in the NSO or it could be a final judgement of the
court where the court has rendered a decision involving the issue of your filiation.

So if your filiation is one of the issues involved in the case and the court has already passed upon that issue and that
Decision of the court is one of the primary proofs of filiation, which as a final judgment of the court declaring your filiation.
2.) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent
concerned.

The other kind of evidence is the admission by your father of your legitimate filiation contained in a public document or in a
private handwritten document signed by him.
Take note : there are TWO documents referred to here in no.2 :
1.) Public document
o
This the one notarized by a lawyer
o
Examples:
v Affidavit of recognition. If your father executes an affidavit recognizing you as his child and notarized by a
lawyer then it is a public document.
v Another is when your father works in the government he is asked to fill up an application form or employment
form with the agency that he works with or even in GSIS, among the entries there are whether his married , or
how many children?
If your name is mentioned there in his application form as one of his legitimate children and that is signed by
your father and notarized by a lawyer. That is a Public document. This is an admission of your father to your
filiation and one of the STRONGEST evidence of filiation.
2.) A private document

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A private document is a strong evidence of filiation if:


a) In the handwriting of your father;
b) If he acknowledged you in that document as his own son or daughter and;
c) Must be signed by him.
(Take note: If in his handwriting but not signed by him, NOT considered a primary proof of filiation.)

SECONDARY PROOFS OF FILIATION


Art. 172- (2nd paragraph)
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1.)
2.)

The open and continuous possession of the status of a legitimate child;or


Any other means allowed by the rules of Court and special laws.

Refers to all other evidence that could establish filiation but not falling under the first kind.
Examples:

Pictures of you and your father

Letter of your father to your mother but it was not signed by him.

You growing up where your father paid for your education and you can prove that by receipts of payment by your
father

Monthly allowance from your father

Testimony of the friends of your father


Take Note: They are admissible to prove filiation but they belong to the secondary evidence.
Berociles v. GSIS
o
The court clarified that for a birth certificate to be considered as a sufficient proof of filiation there must be an evidence of
participation of your alleged father in the making of such document like fathers signature appearing in the birth
certificate of the child.
o
Thus it has been held that where the father did not sign the birth certificate the placing of his name therein by the
daughter or mother in the registrar is an Incompetent evidence of paternity of said child. This is not strong evidence.
o
Because it is very dangerous when the mother is asked Maam who is the father of this child? Lucio Tan will be placed,
very dangerous.
o
So in furnishing such information and the father is not there, not having signed the document then that is not sufficient
proof of filiation.

Rodolfo Aguilar v. Edna ( January 2015 ruling)


As regards to public document are public records duly notarized by a lawyer
o
Supreme Court said that SSS form E- 1, satisfies the requirement for proof of filiation and the relationship to the Aguilar
spouses under Art.172 of the FC paragraph 1 (primary proof of filiation).
Facts: Aguilar couple died and Rodulfo Aguilar claims that he is the only son of the couple. Now his father was formerly
working in a sugar mill in Negros and at the time of the death of his father, Rodulfo Aguilar discovered that some of the
titles to the land left behind by his father were missing. So he filed a petition in court to declare these titles lost and he
asked for the issuance of a new copy of ownership of title so he can now use it for the settlement of his fathers estate.
When he filed the petition somebody opposed who is the niece of Rodulfos mother, because his father died ahead of
his mother. When the mother died, this was the time he settled the entire estate of both his parents, it was the time he
discovered about the titles. The niece opposed stating that his (Rodulfos) mother entrusted the land in her favor.
According to her, the land was already given to her by his mother and the title is hers. She also claimed that Rodulfo is
not really the child of her auntie and her husband and that Rodulfo is only a foundling and not a biological child. During
the trial Rodulfo submitted some evidences to prove that he is a legitimate child of his father and among his evidence is
the SSS form E-1. Accordingly in his fathers SSS records Rodulfo was declared by his father as the only son and which is
duly notarized. The RTC and CA did not consider it as strong proof of filiation. CA declared that it was only a secondary
proof of filiation specifically falling under Art. 172. The open and continuous possession of the status of a legitimate
child.
Issue:

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Is the Rodulfo the child of the deceased couple?


Ruling:
Supreme Court said it was an error of the CA to treat said document as a mere proof of open and continuous possession
of the status of a legitimate child under the 2nd paragraph of article 172. Indeed it is evidence of proof of filiation under
the first paragraph thereof the same being an express recognition in a public document. In other words the SC said that
the SSS form duly notarized is a public document, since the name of Rodulfo appears therein as the only child then
Rodulfo has a primary proof of his filiation that falls under as an Admission by his father of his filiation in a Public document.
Take note: SC said there would have been no problem if Rodulfo presented his birth certificate but such is unavailing for
his record in the LCR was already destroyed, So SC said had he had presented his birth certificate theres no problem,
but he couldnt so he needed to prove by means of other evidence and such SSS form is a primary proof of filiation, thus
a strong proof of his filiation.

Jenie San Juan Dela Cruz v. Gracia


Facts: A child was born to a couple, when the father died it was discovered that the father is fond of writing his
autobiography so he has a diary. The child wanted to prove his filiation being an illegitimate child of his father who just
passed away. One which he presented is the autobiography of his father where it clearly states there that his father
recognized him as his son. It was in the handwriting of his father but not signed by the alleged father.

Issue:
Can it be accepted as evidence as sufficient proof of filiation of the child?

Ruling:
SC said that an unsigned autobiography by the putative father acknowledging the paternity of the child may be
considered sufficient proof of filiation if special circumstances exist to establish that the child is really his:
1.) 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
2.) 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.
v If the child has evidence other than the autobiography, the autobiography shall be considered as corroborative
evidence to prove his filiation. The court should not deny it and accept it as part of corroborative evidence.

Secondary proof of filiation consists of baptismal certificate, judicial admission, admission by silence, testimony of witnesses,
bible to which the name of the child appears on etc.(art. 130 ROC). These are secondary proof which cannot be accepted
without the primary proof.
o
If the child claims to be legitimate, the child may bring an action for recognition as a legitimate child
during his lifetime and if the child dies a minor or insane, his relatives may bring an action to compel
recognition of legitmate filiation of the child by his father. That is the rule in case of legitimate children.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate
children.
The action must be brought within the same period specified in Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)
Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate
child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)
v

Lets go with illegitimate children. This pertains to children born out of wedlock or void marriage.

How do you establish illegitimate filiation? The evidences to establish legitimate filiation under art. 172 are the same
evidence to establish illegitimate filiation. Take note of art. 172, the primary and secondary proofs.

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If illegitimate, when can you prove your filiation? It can be proved during the lifetime and can be transmitted to the heirs if
he dies. The difference is that you should have the primary evidence to prove filiation even after the death of the father,
you can still prove filiation. If whats available is only the secondary evidence as provided for under the second paragraph
of article 172, you can only prove filiation during the lifetime of the father. Thats the difference.

Another effect if you are an illegitimate child parental authority shall be exercised only by the mother. The legal parent is the
mother.
However, if the mother and the father of the child are living together under one roof, together with the child, the father, even if
the child is illegitimate because his parents are not yet married to each other, may exercise parental authority over the child
jointly with the mother. (Article 211, Family Code)
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children
are under parental authority.

In Article 211, there is no distinction whether the child is legitimate or illegitimate. For as long as the child is living with his parents
then the parents will exercise joint parental authority over the child.
Under RA9255, a child who is recognized by his father and allowed by his father to carry the surname may now use the surname
of the father.
Once the child is acknowledged by the father, is it mandatory that the child must use the surname of the father? Can the Father
compel the Local Civil Registrar to change the surname of the child, from that of the mother to that of the father? Case of
Grace Grande vs. Patricio Antonio
GRANDE VS ANTONIO
FACTS :
Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived together as husband
and wife, although Antonio was at that time already married to someone else.
Out of this illicit relationship, two sons were born: Andre Lewis (on February 8, 1998) and Jerard Patrick (on October 13, 1999).
The children were not expressly recognized by respondent as his own in the Record of Births of the children in the Civil Registry.
The parties relationship, however, eventually turned sour, and Grande left for the United States with her two children in May
2007.
This prompted respondent Antonio to file a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of Minors.
RTC : RTC rendered a Decision in favor of Antonio, ruling that the evidence at hand is overwhelming that the best interest of the
children can be promoted if they are under the sole parental authority and physical custody of Antonio.
Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly ruling contrary to the law
and jurisprudence respecting the grant of sole custody to the mother over her illegitimate children.
CA : Modified the ruling of the RTC and it directed the Offices of the Civil Registrar General and the City Civil Registrar to enter the
surname Antonio as the surname of Jerard Patrick and Andre Lewis, in their respective certificates of live birth, and record the same
in the Register of Births and to deliver the minor children to the mother.
In arriving at the foregoing ruling, the CA ratiocinated that notwithstanding the fathers recognition of his children, the mother
cannot be deprived of her sole parental custody over them absent the most compelling of reasons; it however maintained that
the legal consequence of the recognition made by respondent Antonio that he is the father of the minors, taken in conjunction
with the universally protected bestinterestofthechild clause, compels the use by the children of the surname ANTONIO.
ISSUE : WON the father has a right to compel the use of his surname by his illegitimate children upon his recognition of their filiation.
RULING : No.

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Article 176 of the Family Code was later amended on March 19, 2004 by RA 9255 which now reads:
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 the surname of their father if
their filiation has been expressly recognized by their 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 nonfiliation during his lifetime. The legitime of each
illegitimate child shall consist of onehalf of the legitime of a legitimate child.
From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall use the surname of his or her
mother.
The exception provided by RA 9255 is, in case his or her filiation is 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. In such a situation, the illegitimate child may use the surname of the father.
Art. 176 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.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. 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. The word may is permissive and operates to confer discretion upon the illegitimate children.
It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is their best interest.
On the matter of childrens surnames, this Court has, time and again, rebuffed the idea that the use of the fathers surname
serves the best interest of the minor child.
In fact, in Calderon v. Republic, this Court, upholding the best interest of the child concerned, even allowed the use of a
surname different from the surnames of the childs father or mother. Indeed, the rule regarding the use of a childs surname is
second only to the rule requiring that the child be placed in the best possible situation considering his circumstances.
The use of the word shall in the IRR of RA 9255 is of no moment. The clear, unambiguous, and unequivocal use of may in Art.
176 rendering the use of an illegitimate fathers surname discretionary controls, and illegitimate children are given the choice on
the surnames by which they will be known.
If the father recognizes the child as his illegitimate child, the only effect of that is that the child will be considered as his
illegitimate child and he is bound to support the child.

When a Childs mother is lawfully married to another man, not the biological father, the child is always considered to be the
legitimate child of the mother and the legal husband.
Under the New Family Code, an illegitimate child can prove his legitimate filiation only within the lifetime of his father if the
evidence he has in his possession is a secondary evidence.
In the Civil Code of the Philippines, the old law, the rule was different. In the Civil Code, an illegitimate child, even if what he has
is a secondary evidence or proof of filitation, an illegitimate child can still prove his illegitimate filiation even after the death of his
father, for as long as his father died while he was still a minor, he has 4 years upon reaching the age of majority to prove his
illegitimate filiation.
The SC applied these distinctions in the case of Bernabe vs Alejo.
BERNABE vs. ALEJO
FACTS :
This is a case of a Fiscal who impregnated his secretary. The child was born in 1982 and the fiscal died in 1992 when the child was
still 10 years old.
After the death of the Fiscal, the child, assisted by his mother, filed a claim in the estate of the Fiscal as his illegitimate child.
The wife of the Fiscal and the legal family, opposed the claim
They contended that the child and the mother can no longer prove the filiation of the child because the alleged father is
already dead.
That under the New Family Code (Death was in 1992 and the Family Code took effect in 1988), an illegitimate child can only
prove his illegitimate filiation during the lifetime of the father. If the father is already dead, you may no longer prove filitiation if
what you have are only secondary evidence.
Unfortunately, the child here only had secondary evidence since the father was not indicated in his Birth Certificate and in any
public document or any written recognition signed by him. Since the fiscal here was married.

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RULING :
The child was born in 1982, there was yet no family code. The prevailing law at that time was the Civil Code.
The Civil Code provides that the child can still prove his illegitimate filiation within 4 years after reaching the age of majority if his
father died while he was still a minor.
Under the old law, which should apply to him, the child still has 4 years upon reaching the age of majority to prove his illegitimate
filiation
The SC added that even if the family code provides that it shall have a retroactive effect, it cannot be applied retroactively if it
will impair vested rights
Here, the child has already acquired a vested right under the old law. That vested right is the right to prove his illegitimate filiation
within 4 years upon reaching the age of majority. That right cannot be taken away from him, under the old law.

LEGITIMATED CHILDREN

The third kind of child by natural filiation


These are those children that were born illegitimate because his parents were not married to each other at the time of his birth.
But these children can be legitimated elevated to the status of a legitimate child if the following elements are present :
1. the child must be conceived and born outside of wedlock;
2. of parents who do not suffer any legal impediment to marry each other at the time of the conception of the child; and
3. the parents subsequently enters into a valid marriage.

First and Second Elements : That the child must be conceived AND born outside of wedlock and that the parent must not suffer any
legal impediment to marry each other at the time of the conception of the child

If the parents, or one of the parents have legal impediment to marry the other, the child can never be legitimated
The most important element here is that they must not have any legal impediment to marry each other.

Scenario 1 : The child was conceived at the time that the parents have no legal impediment to marry each other, but they were not
yet married, and later on they decide to marry each other and after the marriage, the child was born, what is the status of the child?
The child will already be considered legitimate. Because at the time of his birth, his parents are already married, so he is
already considered a legitimate child.
Scenario 2 : The child was conceived at the time when his parents have legal impediment to marry each other. Because his father,
at the time the child was conceived was still married to another woman. Later, the wife of his father died when the child was still in
the womb of his mother. And then the child was born. After the birth of the child, his father and the mother of the child decided to
marry each other. May the child be considered legitimated?
No. Because at the time of conception, there is legal impediment. It is important that there must be no legal impediment
to marry each other, on the part of the parents of the child, from the time the child was conceived, up to the time of the
birth of the child. The child must be conceived AND born outside of wedlock, but at that time the parents must not have
any legal impediment to marry each other.
Third Element : Subsequent marriage of the parents
This element is what legitimizes the child the subsequent marriage of the parents.
Under the Civil Code, a child can be legitimated only if he is acknowledged by his father. But that requirement is not any more
found in the Family Code
Recognition is no longer a requirement under the Family Code, for as long as the child was conceived and born outside of
wedlock, from parents who have no legal impediment to marry each other, the subsequent marriage will legitimize the child.
So the effect of legitimation is that the child will now be elevated into the status of a legitimate child.

A Legitimated child has the same rights and privileges of a legitimate child.

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If there is a legal impediment on the part of one of the parents of the child at the time the child was conceived and born,
the child can never be legitimated.
o
That is true even if the parents eventually get married, with the impediment already removed, it will not legitimize
the child.
o
However, there is a new law which took effect in 2009 which modifies this provision of the Family Code, RA 9858.
This law amended Article 177, where it now allows legitimation for children born of parents whose only
impediment is that either or both of them are still minors at the time the child was conceived and born.
o
Ex. If a child was born to a 17-year old mother who, upon reaching the age of majority, married the father of the
child and provided that the same child was conceived and born after this new law took effect in 2009 (took
effect December 20, 2009), he is legitimated even though there was that legal impediment on the part of the
mother to marry (minority) at the time of the conception and birth of the child.

Another important point to remember is that the effects of legitimation shall retroact to the time of the childs birth,
remember that here the child was born illegitimate and the subsequent marriage of the parents legitimated the child,
such will not take effect only on the date of marriage but retroacts to the date of birth of the child even if the child is
already dead (posthumous legitimation).

Legitimation may only be impugned by those who are prejudiced in their rights. Who are these persons?
o
Legitimate Children of the Parents
o
Other illegitimate Children

Their rights to the inheritance might be affected by the legitimation that is why they are considered as
prejudiced by such.
The Local Civil Registrar is mandated to keep a register where all the relevant facts about the legitimation of the child be
entered.

ARTIFICIAL FILIATION OR ADOPTION


Artificial Filiation or Adoption - Filiation that is established through or by operation of law

Our law on adoption is found in Article 183 to 193, FC but these provisions have been amended or repealed by 2
important laws:
A. RA 8552- Domestic Adoption Act of 1998
-governing law of adoption here in the Philippines, the entire proceeding of the adoption
will take place in the Philippines
B. RA 8043- Inter-Country Adoption Act of 1995
-form of adoption where the adopter is a foreigner or a Filipino permanently residing
abroad and the adoption
proceeding takes place abroad, the only aspect of adoption that
will take place in the Philippines is the selection or
the choosing of the child to be adopted
-Here the child to be adopted is a Filipino child and the adopter is a foreigner. The
adopt a child need not come to the Philippines and reside for at least 3 years.

foreigner here who will

-The foreigner here are those who do not qualify under the Domestic Adoption Law.

So if a foreigner wants to adopt a child and he has no time to come to the Philippines he may still adopt a child through
Inter Country Adoption.

In fact, a foreigner who has never been in the Philippines may initiate the adoption.
DOMESTIC ADOPTION ACT OF 1998

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The entire proceedings will take place in the Philippines.


This is filed in the RTC, now Family Court, of the place where the child to be adopted resides.
The adoption proceeding is basically a judicial proceeding.

Who may Adopt:


The Adopter can either be a Filipino or a Foreigner
Qualifications for a Filipino Adopter:
1. In possession of full civil capacity and legal right
2. He must be a person of good moral character
3. He must not be convicted of any crime involving moral turpitude
4. He must be emotionally and psychologically capable of caring for his children
5. He must be at least 16 years older than the child to be adopted
6. He must be in the position to support his own children
Qualifications for a Foreigner Adopter:
1. The Alien adopter must possess all the qualifications of a Filipino adopter
2. He must come from a country that has diplomatic relations with the Philippines
3. He must have resided in the Philippines for at least 3 years prior to the petition for adoption- 3-year residence requirement
for an alien adopter
4. He must be certified by his own country that he has the legal capacity to adopt
5. His government must allow the adopted child to enter his country
The 3 year residence requirement may be dispense with in the following instances:
1. If the adopter is a former Filipino citizen and he seeks to adopt a relative within the 4th degree f consanguinity or affinity
2. If the foreigner adopter is married to a Filipino spouse and the adopter seeks to adopt the legitimate son or daughter of his
or her Filipino spouse
3. One who is married to a Filipino citizen and he seeks to adopt jointly with his or her spouse a relative within the 4th degree
of consanguinity or affinity of the Filipino spouse
Republic vs. Toledano (1994), citing Republic vs. James Anthony Hughes and Mabunay (1993)
Facts: An American soldier who married a Filipina and after the marriage they decided to live or reside in the US. The Filipina wife
renounced her Philippine citizenship and she became an American citizen by virtue of the marriage. After living in the US for so
many years, they were not blessed with a child.
So they decided to adopt a younger brother of the wife here in the Philippines. So they came back in the Philippines.
Issue: Can they adopt the child without complying with the 3-year residency requirement?
Ruling: In this case the Petition for adoption was immediately adopted by the RCT of Angeles, Pampanga. But the OSG appealed
the ruling to the SC.
The SC said that the spouses are not qualified to adopt because they have not complied with the 3-year residence
requirement prior to the adoption of the child. They did not also fall under any of the exceptions.
In examining the exceptions, the wife could have been qualified under the first exception. However, our law here provides
that a married person cannot adopt alone, the husband must join in the adoption.
They cannot also fall under the second exception because they are not adopting the legitimate son or daughter of the
Filipina wife.
Under the third, they will not also qualify because this exception will only apply to a foreigner who is married to a Filipino
citizen and at the time of the adoption the wife is still a Filipino.

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In this case of Toledano, the wife is no longer a Filipino. This is already a case of 2 foreigners wanting to adopt a child in the
Philippines.
GENERAL RULE: When the Adopter is married, the spouse of the adopter must join in the adoption- Joint Adoption by the Husband
and the Wife
There are however EXCEPTIONS to the rule:
1. If the Adopter seeks to adopt the legitimate son or daughter of the other spouse
2.

If the adopter seek to adopt his or her own illegitimate child: Provided, however, that the other spouse must have signified
his/her consent.

A spouse may adopt alone in respect to the feelings of the other spouse who is not in any way related to the
child.

3.

If the spouses are legally separated from each other.


In the case of In re: Petition for adoption of Michelle Lim and Michael Jude Lim

In this case, the SC denied the petition of the wife because she did not let her husband join her in the
adoption.

Mr. and Mrs. Lim took care of the two children subject to this petition but they did not legally adopt them.
When Mr. Lim died thereafter Mrs. Lim remarried to a seaman. Their relationship turned sour so they separated
but not legally. Mrs. Lim decided then, though the children are all grown up, to adopt them without the
husband joining the petition. But the husband executed an Affidavit of Consent stating that he allowed his
wife to make the said petition.

The Court denied the petition. The wife cannot adopt the children without letting her husband join her. Even
if their relationship is no longer good or that the husband made an affidavit of consent or that he already
initiated a case for dissolution of marriage, the fact remains that at the time of the filing for the petition of
adoption the wife is still legally married to her husband.

Our law in adoption must be strictly construed as it is an artificial method of establishing paternity and
filiation. Thus, all the requirements of the law must be complied with.

Who may be adopted? (Sec. 8, RA 8552)

As a rule, only minors (below eighteen) may be adopted. And he/she must be administratively or judicially declared
available for adoption.
o
How can this be done?
o
Before a petition for adoption can be filed, a certification that a child is legally available for adoption
must first be secured from the DSWD. This proceeding is administrative.
o
Pursuant to RA 9523 (amendatory law), there is no need any more for judicial proceeding to declare a
child legally available. It will now be entirely administrative. So only the DSWD can declare that the child
is legally available for adoption.

Under RA 8552, there are EXCEPTIONS to the rule that only minors may be adopted:
1. When the Child to be adopted has been consistently treated as a child of the adopter during minority.
o
This is when a child grow up with the adopter and treated as his/her child even if he/she is above
eighteen. As to the case of Michelle and Michael Jude Lim (abovementioned case)
o
Known as De Facto adoption (based on his book)
2. The legitimate son/daughter of one spouse by the other spouse.
3. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy.
4. A child whose adoption has been previously rescinded.
5. A child whose biological father or adoptive parent(s) has died: Provided, that no proceedings shall be
initiated within 6 months from the time of death of said parents.

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Also pursuant to the amendatory law, you can also adopt not only minors but eighteen or above provided that the child is
physically or mentally defective. That the child cannot take care of himself because of physical and mental defects.

Whose Consent is Necessary to the Adoption? (Sec. 9, RA 8552)


a. The adoptee, if ten (10) years of age or over;
b. The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which
has legal custody of the child;
c. The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
d. The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latters
spouse, if any; and
e. The spouse, if any, of the person adopting or to be adopted.
The Procedure:
The procedure is judicial and you file the petition in court (Family Court) where the child to be adopted resides. The Court
will not immediately schedule your case for hearing.
First:
o

The court will verify through the DSWD whether there is hurried decision on the part of the biological parents to
give up their parental authority over the child. To determine that the biological parents are informed of the
consequences in giving up their parental authority. That there is no hurried decisions. (Sec. 10)

Second:
o
The court will refer the case to the social worker assigned in the court for case study.
o
This case study is a form of a background investigation of the person who is going to adopt, the child to be
adopted and as well as the natural parents of the child to be adopted.
o
The DSWD will go to the place of the child and will conduct an interview not only of the child but also of those
people whom the child has dealt with, like neighbors. After that, the DSWD will also go to the place of the
adopter, the DSWD will also interview the neighbors, relatives and the prospective adopters to also determine
whether the adopters are capable.
o
Then the social worker will make two reports, one on the adopter and the other one on the adoptee, and will
make their own recommendation. (sec. 11)
Third:
o
After the report, the court will now proceed to hear the case and schedule a hearing.
o
The adopter will now present evidence that he/she is qualified to adopt and the adoption is to the best interest of
the child.
Fourth:
o
The court will not immediately grant the decree of adoption. There should be supervised trial custody. (Sec. 12)
o
There will still be a SUPERVISED TRIAL CUSTODY for 6 months, the child will now be brought to the place of the
adopters but within that 6 months period the DSWD social worker will periodically visit them and monitor the
progress of the relationship between the adopters and adoptee.
Fifth:
o
Again, after the period of 6 months the DSWD will make a report to the court and the court may issue the decree
of adoption.
Sixth:
o
Once the decree of adoption is issued it will immediately be forwarded to Office of the Local Civil Registrar.
o
What will the Local Civil Registrar do? The local civil registrar will now cancel the old birth certificate of the child
and issue a new one. It will be confidential. Access can be done by virtue of a court order. In the new birth
certificate the child will carry the surname of the adopter as his or her parent.

EFFECTS OF ADOPTION are that all ties between the biological parents and the adoptee are severed and the adopted
child can now be considered as the legitimate child of the adopters; the adopter and the adoptee shall have reciprocal
rights of intestate succession (but only up to that because the relationship is only between the adopters and the
adopted); and the adoptee cannot inherit from the relatives of the adopter.

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Considering the adoption is only an artificial method of establishing paternity and filiation the effect of adoption is that it
creates a relationship of father and son only to the adopter and the child adopted, it does not make the adopted child a
relative of the adopters relatives and therefore an adopted child cannot inherit from the relatives of the adopters.

RESCISSION OF ADOPTION. An adoption granted by the court can be rescinded on the following grounds:
1.
2.
3.
4.

repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling;
attempt on the life of the adoptee;
sexual assault or violence; or
abandonment and failure to comply with parental obligations.

You will notice that the aforesaid grounds are only from the point of view from the adopted child because it is only the
adopted child who can rescind the adoption, the adopter cannot. However, the adopter can disinherit the child under
Article 919 of the Civil Code- that is only his/her remedy which is to disinherit. Quiet unfair!

The last part of Domestic adoption deals with the Simulation of Birth, it is the tampering of the civil registry making it appear
in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to
lose his/her true identity and status. The penalty prision mayor in its medium period and a fine not exceeding Fifty thousand
pesos (P50, 000.00). It is penalized because the reason being that simulation of birth is used as an alternative of adoption;
the child will lose his/her true identity.

INTER-COUNTRY ADOPTION LAW

Another interesting topic is the Inter-Country Adoption Law (Republic Act 8043). In the Domestic Adoption Law a foreigner
may adopt a Filipino child but he must have to posses all the qualifications of a Filipino adopter; he must have to stay in
the Philippines for at least 3 years before the adoption; and other several requirements. But if a foreigner although not
possessing all the qualifications can also adopt a Filipino child through the application of the Inter-Country Adoption Law.

RA 8043
..
Sec. 3. Definition of Terms. As used in this Act. the term:
(a) Inter-country adoption 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 trial custody is undertaken, and the decree of adoption is
issued outside the Philippines.

This is a kind of adoption where a foreigner is allowed to adopt a Filipino Child even if the foreigner has not been in the
Philippines in whole his life. This is actually intended for those who are not qualified under the Domestic Adoption Law.

How? They will go to the nearest adoption agency in their country (like Germany, USA or other foreign countries) and the
nearest adoption agency will be the one to coordinate with the Philippine Government through the ICAB (INTER-COUNTRY
ADOPTION BOARD).

Sec. 4. The Inter-Country Adoption Board. There is hereby created the Inter-Country Adoption Board, hereinafter referred to as
the Board to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for
purposes of carrying out the provisions of this Act, in consultation and coordination with the Department, the different child-care
and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement
activities
Sec. 5. Composition of the Board. The Board shall be composed of the Secretary of the Department as ex officio Chairman, and
six (6) other members to be appointed by the President for a nonrenewable term of six (6) years: Provided, That there shall be
appointed one (1) psychiatrist or psychologist, two (2) lawyers who shall have at least the qualifications of a regional trial court

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judge, one (1) registered social worker and two (2) representatives from non-governmental organizations engaged in child-caring
and placement activities. The members of the Board shall receive a per diem allowance of One thousand five hundred pesos
(P1,500) for each meeting attended by them: Provided, further, That no compensation shall be paid for more than four (4)
meetings a month.

Foreign national may apply for the adoption of the child through the ICAB and they will just communicate then the ICAB
will choose children who are legally available for adoption. The prospective adopter will choose a child that he/she wants
to adopt by showing to him the list of the names together with the pictures. The ICAB will do the matching of the
prospective adopter and the child chosen to be adopted. Once it is approved then that is the time that the prospective
foreigner adopter will have to come to the Philippines to get the child and bring the child to his country.

If the child is already brought to the country of the foreigner adopter then that would be the time to file a Petition for
Adoption in the adopters foreign country. It is the court of the country of the foreign adopter that will approve the said
petition. The entire proceedings for the adoption will take place in the foreign country.

Sec. 3. Definition of Terms. As used in this Act. the term:


..
(b) Child means a person below fifteen (15) years of age unless sooner emancipated by law.

Under the Inter-Country Adoption Law, the child to be adopted must be below 15 years of age; while in the Domestic
Adoption Law, the child to be adopted must be below 18 years of age.

The age gap between the adopter and the adoptee must be at least 16 years. An alien must be at least twenty-seven
(27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application (Sec. 9 of
RA 8043). It is different from the Domestic Adoption Law because the requirement therein is that the adopter must be of
legal age (take note of this because this came out in the Bar Exam)

The person to be adopted under the Inter-Country adoption must be a LEGALLY FREE CHILD, a child who has been
voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code. In the
Domestic Adoption, the said law requires that a child must be LEGALLY AVAILABLE FOR ADOPTION, a child who has been
voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring
agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of
adoption.
Sir: Legally Free Child and Legally Available for Adopt are just the same. The terms used are different to really differentiate
Inter-Country Adoption from Domestic Adoption.

SUPPORT
Art. 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and
from school, or to and from place of work.
Support is not a unilateral obligation of a person- it is actually reciprocal in a sense that if I have the obligation to support you, you
also have the obligation to support me. We are obliged to support each other. Thats why, in our law we use who are obliged to
support each other and we have:

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Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole
extent set forth in the preceding article:
1)
2)
3)
4)
5)

The spouses;
Legitimate ascendants and descendants;
Parents and their legitimate children and the legitimate and illegitimate children of the latter;
Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
Legitimate brothers and sisters, whether of full or half-blood

You have no obligation to support your aunties and uncles, much more your cousins.
1.

The first in line are the spouses and this presupposes a valid marriage.

YANGCO vs. RHODE


FACTS:
Petitioner, Luis R. Yangco, filed a petition for a writ of prohibition, alleging that before Judge William J. Rohde, of the CFI of Manila,
a complaint had been filed by Victorina Obin against the petitioner praying that she be declared the lawful wife of the said
Yangco, and that she be granted a divorce, an allowance for alimony, and attorney's fees during the pendency of the suit.
RULING:
In the present case the action for the support or alimony is brought by a woman who alleges that she is a wife; therefore it is
necessary for her to prove possession of the civil status of a spouse that is, a marriage, without which one has no right to the title
to husband or wife.
This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing can be taken for granted
upon the point in issue. The civil status of marriage being denied, and this civil status, from which the right to support is derived,
being issue, it is difficult to see how any effect can be given to such a claim until an authoritative declaration has been made as to
the existence of the cause.
Attys Discussion:
When the wife demanded support to her husband, and the latter denied that there was a marriage, then there is no basis for the
court to award support. The issue of the marriage must first be resolved because if theres no valid marriage, then there is no
obligation to support.
Now, the wife who is guilty of Adultery is not entitled to support by her husband. As said crime of adultery committed by the wife is
a valid defense against the action for support. However, if the wife an also prove that the husband is guilty of Concubinage, then
both of them are guilty, and so in pari delicto rule dictates that the obligation to support subsists. So they are now obliged to
support each other- as if nothing happens and obligation continues.
The obligation to support will continue for as long as the marriage subsists. When a marriage is annulled or decreed null and void,
the obligation to support each other is terminated. If only legal separation was decreed, the obligation still continues because in
this case, there is no dissolution of marriage. But the one who can demand the support is the innocent spouse.
2.

Grandparents have the obligation to support their grandchildren but this does not include their daughter-in-law

SPS LIM vs. MA. CHERYL S. LIM


FACTS:

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Respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward three children, respondents
Lester, Candice and Mariano III. Cheryl, Edward and their children resided at the house of petitioners in Makati City, together with
Edwards ailing grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards family business shouldered the family
expenses. Cheryl had no steady source of income. On 14 October 1990, Cheryl abandoned the residence, bringing the children
with her (then all minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak.
Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) for support.
RULING:
By statutory and jurisprudential mandate, the liability of ascendants to provide legal support to their descendants is beyond
cavil. However, petitioners partial concurrent obligation extends only to their descendants as this word is commonly understood to
refer to relatives, by blood of lower degree. As petitioners grandchildren by blood, only respondents Lester Edward, Candice
Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from the Lim family extends only to her
husband Edward, arising from their marital bond.
Attys Discussion:
The wife doesnt have any money to support the children. She demanded support from the parents of her husband for her and her
children. SC said for you- NO. For the grandchildren- YES.
Now, a conceived child that is still in the womb of the mother and unborn is entitled to support from the father since the said child is
given by law a provisional personality for all purposes favorable to him provided in Art.40 (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 later with the
conditions specified in the following article.)
5. Legitimate brothers and sisters, whether of full or half-blood are obliged to support each other.
Support of a spouses ascendants, brother and sister and illegitimate children shall be charged against the separate property of
the said spouse and NOT against the conjugal property. Like, if I am still supporting my parents now despite the fact that I am
already married, the money that I will use to support my parents or my siblings should come from my exclusive funds and I should
not use conjugal funds. And if I use conjugal money, this will be considered as advances of whats mine to the conjugal partnership
or deducted to my share later on.
As regards legitimate brothers and sisters, they are obliged to support each other especially of the sibling is still a minor. If he or she
is of legal age, the general rule is that you no longer have the obligation to support such brother or sister. However, if there is really
a need for him or her to be supported (i.e. physical defects, illness, etc.), then you may provide support except if the need for
support is due to his or her own fault (i.e. Ang imong igsuon sakto nas edad, dakog lawas pero dili jud mangitag trabaho, kay
nagsalig ka manoy kay dato si manoy, pwede na dili na nimo supportahan).
If you are in need of support, from whom will you ask support? The order of support is:
Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the
order herein provided:
1)
2)
3)
4)

The spouse;
The descendants in the nearest degree;
The ascendants in the nearest degree; and
The brothers and sisters.

Sa ato pa, ang una pangayuan kay imong asawa or bana. Then imong mga anak, then parents then to siblings. In other words,
you cannot go directly to your rich brother for support if you still have your wife, son, daughter or parents. This order must be
followed.

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v

What is the rule if the obligation to support falls on two or more persons?

Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between
them in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the
latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred.
There are several persons obliged to support you in the same category. 5 mu kabuok anak, then all five of you should support your
mother and in proportion to your income. In a situation like that, mother is hospitalized, any one of you may advance the charges
for hospitalization and then he may ask later on for reimbursement to his other siblings. Dili kay maghuwat mu ug magbahin sa
gasto.
v

What is the rule if there are several persons asking for support from only one person and his finances arent enough?

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of
the giver and to the necessities of the recipient. (296a)
Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the
reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.
Many relatives nangayog support and his means arent enough to support all of them. The law says the order of support provided
in Art.199 will be followed. So unahon nako akong asawa, ikaduha akong anak. But theres an exception: if your child is still a minor
and dependent on you, then siya gyud unahon over the wife/spouse. Kay kana imo asawa dili nimo kadugo, imo anak kadugo.
But id the child is no longer a minor, then unahon nang asawa.
The amount of support depends on the giver. There is no fixed amount. Wala ni ingon ang balaod na ug mangayo ang anak,
kelangan singko mil jud. It must be balanced. That is why you go to court and it will decide how much. Such court will try to
balance the needs and the capacity of the giver. When the court fixes the amount, this amount will never become final (one
judgment that never becomes final since the court can always adjust it anytime). If nadato na, and ang anak nidako pud ang
needs, the court will adjust. Or if nigamay ang income, then pwede sad iadjust.
Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it
for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.
Support pendente lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be
obliged to return what he has received in advance.
Support must be demanded, as it is only at the time of demand that the obligation to support commences. Once ordered by the
court, it must be made within the first five days of demand. So when support is ordered by the court, and if given every month, it
should be given on the 1st five days of demand and dili pa sa petsa 30 or 15 kay dili mani sweldo. J Support is needed by the child
for his subsistence for the whole month nya tagaan ra nimo igka petsa 30, so what will happen, unsa may iyang gamiton inig petsa
uno kutob biente nueve? Thats why it should be the first 5 days of the month.

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Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by
receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be
availed of in case there is a moral or legal obstacle thereto.
So 2 options: in cash or receive support and live with him. Except: moral or legal obstacle. Like in the case of:
GOITIA DELA CAMARA vs. RUEDA (what an interesting case J )
FACTS:
The parties were legally married, and immediately thereafter established their residence where they lived together for about a
month, when the plaintiff returned to the home of her parents. The pertinent allegations of the plaintiff are as follows: the
defendant, 1 month after he had contracted marriage with the plaintiff, demanded she perform unchaste and lascivious acts on
his genitals; that the plaintiff spurned the obscene demands and refused other than legal and valid cohabitation; that the
defendant, made similar lewd and indecorous demands on his wife, refusals of the plaintiff exasperated the defendant and induce
him to maltreat her by word and inflict injuries upon her lips, her face and parts of her body; and that, as the plaintiff was unable by
any means to induce the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to leave
the conjugal abode and take refuge in the home of her parents.
RULING:
The option which the article grants the person, obliged to furnish subsistence, between paying the pension fixed or receiving and
keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being considered wherein,
either because this right would be opposed to the exercise of a preferential right or because of the existence of some justifiable
cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be understood as being
thereby restricted.
Attys Discussion:
The wife abandoned her husband because the latter demands sex which is out of this world. Later on, she demanded support from
her husband. The husband said that under the law, I have the option, and I will exercise the second option -Art.204 maintaining in
the family dwelling the person who wants support (HAHA). Ingon ang court, you have no right to exercise the 2nd option since there
is a valid reason for her not to love together based on moral or legal obstacle.
Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied
upon on attachment or execution.
Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be
subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of
circumstances manifestly beyond the contemplation of the parties.
Now, a judgment for support is immediately executory and NOT appealable. It shall not be levied upon attachment or execution
by the creditors except contractual support.
Lastly, whoever advances the support shall be entitled to be reimbursed unless he gives it as an act of charity without any intention
of being reimbursed.
PARENTAL AUTHORITY

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Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children,
parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the
development of their moral, mental and physical character and well-being.
Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Definition of parental authority: The sum total of all the rights of the parents over the person or property of their unemancipated
children
Article 210 means that even if the parents of the child have already entrusted the child to someone for so many years and
they have not visited him for a long time, it does not mean that the parents have already renounced their parental authority. It
can only be renounced, waived or abandoned in instances provided for by law:
1. Adoption
2. If the child is placed under guardianship
3. If child is surrendered to the care and custody of any child-caring institution
Santos vs Republic
o
Facts:
The husband was assigned in Mindanao as military officer fighting the Abu Sayaff while the wife was a nurse. They had 1
son. Later, they separated and the wife went to the USA to work. She left the child with her parents. The husband after 3
years returned to Bacolod City but the parents-in-law refused. There commenced litigation. The grandparents argued that
the father already waived his parental authority because he did not even bother to visit the child for 3 years
o
SC:
Fact that the father did not visit for 3 years is not sufficient to deprive him of parental authority because it cannot be
renounced, waived or abandoned except in cases provided for by law.
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children
are under parental authority.

When a child is an illegitimate child, parental authority is vested in the mother. However, if the mother and father are living with
the illegitimate child under one roof, both parents will exercise joint parental authority
The phrase used in 211 is common children. It doesnt distinguish whether the child is legitimate or not.
Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The
remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another
person to be the guardian of the person or property of the children.
Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The
Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

In case of separation of the parents


o
General rule: If the child is below 7 years old, he should be under the custody of the mother
Exception: Unless there are compelling reasons to deprive mother of the custody
o
General rule: If the child is above 7 years old, he may choose whether he will go to his father or mother
Exception: If the court finds that the choice of the child is not to the best interest of the child
Kang vs CA
o
SC: Even if the father and the mother are already legally separated and the court awarded the custody of the child to
the mother (since the child is still below 7), and later on the mother offers child for adoption, the father needs to give his
consent.
Fact that the custody is with the wife does not mean that the husband already lost his parental authority. He should be
consulted and he should give his consent to the adoption otherwise the adoption will not be valid.

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On the issue of custody of the child in the event of the separation of the parents, the court is the one that eventually decides
on who should get custody.
Hirsch vs. CA
o
Facts:
A German citizen was married to a Filipina. They lived in Boracay but later they separated. The Filipina returned to Manila
and brought with her their only child. The husband filed a custody case against the wife. The RTC ruled to give joint
custody to the parents.
o
SC:
The court should not grant joint custody of a child when the parents are already separated. The grant of joint custody of
a child below 7 years old to parents who are already separated is wrong if there is no proof of the mothers unfitness.
Such arrangement is not to the best interest of the child.
o
Sir: Joint custody when the parents are already separated is inimical to his interest. He may be confused as to his real
residence. SC said only one should have custody and the other may be given visitorial rights. Since he is below 7, the
child should be under the custody of the mother.

(Case xxx)
o
Facts:
There was a divorce of parents in the USA where joint custody was agreed upon in the American court. Later, the wife
returned to the Philippines and brought the child with her. The husband followed suit and wanted to enforce their
agreement before the US court. He wanted it enforced here.
o
SC:
We cannot enforce that agreement because that is not for the good of the child. That is void for being contrary to law.
It should be the parents who should exercise custody and parental authority over the child. However there are instances
when even the real parents may be deprived of custody and parental authority as against other persons
Luna vs. IAC
o
Facts:
When the child was born, the parents gave custody to the grandparents because they were not yet financially capable
of raising him. When he was already 6 years old, the parents are now stable so they now want to get back the child. The
grandparents and even the child refused. The parents filed a case for custody against the grandparents. The latter lost in
RTC until the SC.
When the sheriff went to the house of the grandparents to enforce the judgment of the SC, the child told the sheriff, If
you take me out of this house, I will kill myself. The sheriff reported this to the SC.
o
SC changed the decision. They immediately gave the custody to the grandparents. As between the parents and
grandparents, the latter eventually won because of the statement of the child.
o

Important principle:
A judgment of the court awarding custody of the child to a certain person or the parents will never become final. It can
always be changed anytime, like support.

Cabanban Case:

There is this hostess who was impregnated by her then boyfriend. Since the boyfriend was not willing to support her and
the child, the mother gave the baby up for adoption with the Cabanban couple. Later on, the natural mother of the
child was able to work in Japan and earned income. When she came back to the Philippines, she and her former
boyfriend rekindled their love and decided to take back their child from the Cabanban couple. The Cabanban couple
refused to surrender the child so the natural parents decided to file a case against the adoptive couple.

The issue is very simple. Who should have the custody of the child? The real parents or the adoptive parents?

The SC decided in favor of the Cabanban couple. Even as against the real parents, the court may decide in favor of
strangers if the court feels that it is to the best interests of the child. In other words, in all cases for custody of the child, the
paramount consideration here is the best welfare of the child. The court may very well award the custody of the child
even to strangers if it finds that it is to the best interests of the child.

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Beckett vs. Judge Oligario Sarmiento (2013)


Facts:
This is a case of an Australian who was married to a Cebuana. They decided to live in Cebu City and they begot a son. Later on
they separated. The separation was a bitter one and they even filed cases against each other. While these cases were pending in
the sala of Judge Sarmiento, eventually they came to settle the matter amicably. They entered into an agreement that all cases
will be dismissed and that they will just forgive each other. Part of their compromise agreement was the custody of the child. The
custody was awarded to the father and the mother agreed to this. The compromise agreement was then approved and the child
was brought to Australia. But there was a provision in the agreement where the father must bring the child to Cebu every
Christmas time. The child will stay with the mother during Christmas season.
The husband made good his promise to bring the child to Cebu every Christmas season. Later on there came a time when the
child would no longer want to return to Australia after the Christmas season. The husband suspected that the mother was enticing
the child not to return to the father. So the father filed a habeas corpus case against the wife in the same sala of Judge Sarmiento.
When the child was brought to court, he becomes hysterical when he sees his father. He does not want to return to Australia
because he was not happy there. He was being left alone in the house. He wanted to stay here because he was happier here.
And so Judge Sarmiento decided to give the custody of the child to the mother. The father was very mad of such decision so he
filed an administrative case against Judge Sarmiento.
Ruling:
The SC ruled that Judge Sarmiento was correct. Even if he already awarded the custody of the child to the father pursuant to the
compromise agreement, he can always change that when the circumstances warrant. For the paramount consideration in
custody cases are the best interests of the child.

What is the basis for the Maternal Preference rule where the mother will always be awarded with the custody of a child
below 7 years old? The SC in one case stated that, this is based on a universally accepted rule that the mother is the
natural custodian of her young. However, this rule is subject to an exception. If a mother is unfit or there are compelling
reasons to deprive the mother of the custody of the child then the custody may be awarded to the father.
In the case of Yu vs. Yu, the SC said that the issue of custody of the children shall be resolved where the case for the
declaration of nullity of marriage was pending. This is pursuant to Art. 49 and 50 of the Family Code. This means that the
filing of a separate case for custody is not anymore necessary.

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY


Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority
over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; 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.

There are three kinds of parental authority:


1. Exercised by the parents;
2. Substitute Parental Authority;
3. Special Parental Authority;

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Substitute Parental Authority parental authority given to the grandparents of the child in case of death of both parents
or unfitness of the parents to exercise parental authority. In the absence of grandparents, the oldest brother or sister
who is of legal age and fit to assume parental authority.
If both grandparents from the maternal and paternal side are willing to assume parental authority, then the court will
decide.

Special Parental Authority refers to the parental authority exercised by the school administrators, the principals,
teachers or individuals or entities or institutions, engaged in child care over the minor child while under the supervision
and instruction or custody.

So when a minor child enters the school premises, parental authority is transferred to the school, principal, teachers or
administrators. They will be the ones to exercise parental authority. This is what is called the Special Parental Authority.

Remember the case of an elementary child who stabbed his classmate in the eye with a sharpened pencil. The
classmate became blind.

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. 129. 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 quasidelicts.

Once a minor student enters the premises of the school, he is immediately considered to be under the special parental
authority of the school concerned.
GENERAL RULE: School, its administrators and teachers is PRINCIPALLY and SOLIDARILY liable for the damage cause by the
child.
EXCEPTION: Defense of Due Diligence of A Good Father of A Family
Parents are only SUBSIDIARILY liable.
The articles only apply if the student is MINOR. If the student is NOT minor, teacher/head is PRIMARY liable. But the school
can be held liable under RESPONDEAT SUPERIOR.
Vicarious liability rule is also known as imputed negligence (see Article 2180 NCC)
A teacher/school is liable for tortuous act of his student/pupil regardless if it is an academic school or non academic
school (Amadora vs CA)

AMADORA VS CA
FACTS:
In April 1972, while the high school students of Colegio de San Jose-Recoletos were in the school auditorium, a certain Pablito
Daffon fired a gun. The stray bullet hit Alfredo Amadora. Alfredo died. Daffon was convicted of reckless imprudence resulting
in homicide. The parents of Alfredo sued the school for damages under Article 2180 of the Civil Code because of the schools
negligence.
The trial court ruled in favor of Amadora. The trial court ruled that the principal, the dean of boys, as well as the teacher-incharge are all civilly liable. The school appealed as it averred that when the incident happened, the school year has already

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ended. Amadora argued that even though the semester has already ended, his son was there in school to complete a school
requirement in his Physics subject. The Court of Appeals ruled in favor of the school. The CA ruled that under the last paragraph
of Article 2180, only schools of arts and trades (vocational schools) are liable not academic schools like Colegio de San JoseRecoletos.
ISSUE: Whether or not Colegio de San Jose-Recoletos, an academic school, is liable under Article 2180 of the Civil Code for the
tortuous act of its students.
HELD: Yes. The Supreme Court made a re-examination of the provision on the last paragraph of Article 2180 which
provides:Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices so long as they remain in their custody.
The Supreme Court said that it is time to update the interpretation of the above law due to the changing times where there is
hardly a distinction between schools of arts and trade and academic schools. That being said, the Supreme Court ruled that
ALL schools, academic or not, may be held liable under the said provision of Article 2180.
The Supreme Court however clarified that the school, whether academic or not, should not be held directly liable. Its liability is
only subsidiary.
For non-academic schools, it would be the principal or head of school who should be directly liable for the tortuous act of its
students. This is because historically, in non-academic schools, the head of school exercised a closer administration over their
students than heads of academic schools. In short, they are more hands on to their students.
For academic schools, it would be the teacher-in-charge who would be directly liable for the tortuous act of the students and
not the dean or the head of school.
VICARIOUS LIABILITY IN ADOPTION:

GENERAL RULE: When a decree of adoption is granted, one of the effects is it will retroact from the filing of the petition.
EXCEPTION: The retroactivity does not apply to vicarious liability committed by the adopted since the adopter has no
actual custody of the adopted.

LIBI VS IAC
FACTS:
Wendell Libi shot his lover Julie Ann Giotong, both minors, before he turned the firearm on himself. As a result, the parents
of Julie Ann filed against Wendell's parents to recover damages. The trial court rendered judgment dismissing the
complaint for insufficiency of evidence. CA reversed the decision.
ISSUE:
Whether or not the parents of Wendell Libi liable for vicarious liability.
HELD:
Yes. The subsidiary liability of parents for damages cause by their minor children is imposed by Article 2180 of the New Civil
Code, which covers obligations arising from both quasi-delicts and criminal offenses. The parents' liability as being primary
and not subsidiary and liability shall ceased if the parents can prove that they observe all the diligence of a good father to
prevent damage.
In this case, the parents had not exercised due diligence in supervising the activities of their son. It was only at the time of
Wendell's death that they allegedly discovered that he was drug informant of CANU and that the gun used in the
shooting incident was missing from the safety deposit box. Having been grossly negligent in preventing Wendell from
having access to said gun, the Libis are subsidiary liable for the natural consequence of the criminal act of said minor who
was living in their company.
TERMINATION OF PARENTAL AUTHORITY

Permanent :

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

Temporary:
Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
1.) Upon adoption of 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

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)

Another instance of permanent deprivation of parental authority is SEXUAL ABUSE


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)

EMANCIPATION AND AGE OF MAJORITY

R.A 6809 amended FC. The age of majority now is 18 but the 18-21 persons must still secure the required parental consent
for marriage purposes.
Section 1.
follows:

Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as

"Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the
age of eighteen years."
Section 3.

Article 236 of the same Code is also hereby amended to read as follows:

"Art. 236. Emancipation 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, save the exceptions established by existing laws in special cases.
"Contracting marriage shall require parental consent until the age of twenty-one.
"Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children
and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil
Code."

Even if the child has already been anticipated by marriage. His parents are still liable for damages for his acts if he is still
between the age of 18 to 21 and living in their company.
The parents however, can avoid liability if they can prove that they exercised due diligence. -> Defense

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When the case falls under Summary Judicial Proceedings of the Family Law, the decision is immediately executory and
therefore you cannot appeal that ruling.
Case of Bermudez vs Lorino:
o
Can you appeal the ruling of the court declaring a person presumptively dead?
o
SC said, No, you cannot; because this case falls under summary judicial proceeding where the decision of the
court is immediately executory. Your remedy is by way of Certiorari under Rule 65. You bring that matter to the
Court of Appeals under Rule 65.
o
If you still lost, you can bring that matter to the Supreme Court but this time already under Rule 45.
o
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect
an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code,
supra, are "immediately final and executory". It was erroneous, therefore, on the part of the RTC to give due
course to the Republics appeal and order the transmittal of the entire records of the case to the Court of
Appeals.
o
An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs. Comelec,11 "the right to appeal is not a natural
right nor is it a part of due process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of
the Family Code, all judgments rendered in summary judicial proceedings in Family Law are "immediately final
and executory", the right to appeal was not granted to any of the parties therein. The Republic of the Philippines,
as oppositor in the petition for declaration of presumptive death, should not be treated differently. It had no right
to appeal the RTC decision of November 7, 2001.

CIVIL CODE PROVISIONS NOT AFFECTED BY THE FAMILY CODE:

The first 51 articles of the Civil Code.


The law on Funerals under Title IX.
Education of children.
Use of surnames.
Absence
Civil Register

LAW ON FUNERALS

Who decides funeral arrangement?


o
In the order of preference.
1. Spouse
2. Ascendants on the nearest degree
3. Brothers and Sister
o
The same with the order of support under the Civil Code.

Case: Valino vs Adriano, GR 182894, April 22, 2014


o
This is a case of a lawyer who died in the arms of his concubine. He was already separated from his wife. The wife
resided in USA. It was the mistress who took care of the old husband until he died. According to the mistress, it was
the wish of Atty. Adriano to be buried in the mausoleum of the mistress family. After the death of Atty. Adriano,
when his legal wife learned about his death, she immediately called the mistress and told her not to burry Atty.
Adrianos body because she is going home with their children. When they arrived in the Philippines, Atty.
Adrianos body was already buried in the mausoleum of the mistress family. So the wife filed a case to get the
body of the husband from the mistress mausoleum. The wife won!
o
SC said: As between the wife and the mistress, the legal wife is the one who decides the funeral arrangement of
her husband. Gipakawt gyud og gipabalhin og lubong didto sa gusto sa legal pamilya.
o
Moreover, it cannot be surmised that just because Rosario was unavailable to bury her husband when she died,
she had already renounced her right to do so. Verily, in the same vein that the right and duty to make funeral
arrangements will not be considered as having been waived or renounced, the right to deprive a legitimate
spouse of her legal right to bury the remains of her deceased husband should not be readily presumed to have

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o
o

been exercised, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent of
the deceased to that end. Should there be any doubt as to the true intent of the deceased, the law favors the
legitimate family. Here, Rosarios keenness to exercise the rights and obligations accorded to the legal wife was
even bolstered by the fact that she was joined by the children in this case.
Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the Valino family plot at the
Manila Memorial Park, the result remains the same. Article 307 of the Civil Code provides:
Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the
funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the
other members of the family.
From its terms, it is apparent that Article 307 simply seeks to prescribe the "form of the funeral rites" that should
govern in the burial of the deceased. As thoroughly explained earlier, the right and duty to make funeral
arrangements reside in the persons specified in Article 305 in relation to Article 199 of the Family Code. Even if
Article 307 were to be interpreted to include the place of burial among those on which the wishes of the
deceased shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law, commented
that it is generally recognized that any inferences as to the wishes of the deceased should be established by
some form of testamentary disposition.10 As Article 307 itself provides, the wishes of the deceased must be
expressly provided. It cannot be inferred lightly, such as from the circumstance that Atty. Adriano spent his last
remaining days with Valino. It bears stressing once more that other than Valinos claim that Atty. Adriano wished
to be buried at the Valino family plot, no other evidence was presented to corroborate it.
At any rate, it should be remembered that the wishes of the decedent with respect to his funeral are not
absolute. As Dr. Tolentino further wrote:

The dispositions or wishes of the deceased in relation to his funeral, must not be contrary to law. They must not
violate the legal and reglamentary provisions concerning funerals and the disposition of the remains, whether as
regards the time and manner of disposition, or the place of burial, or the ceremony to be observed.11 [Emphases
supplied]
o

In this case, the wishes of the deceased with respect to his funeral are limited by Article 305 of the Civil Code in
relation to Article 199 of the Family Code, and subject the same to those charged with the right and duty to
make the proper arrangements to bury the remains of their loved-one. As aptly explained by the appellate court
in its disquisition:
The testimony of defendant-appellee Fe Floro Valino that it was the oral wish of Atty. Adriano Adriano that he be
interred at the Floro familys mausoleum at the Manila Memorial Park, must bend to the provisions of the law. Even
assuming arguendo that it was the express wish of the deceased to be interred at the Manila Memorial Park, still,
the law grants the duty and the right to decide what to do with the remains to the wife, in this case, plaintiffappellant Rosario D. Adriano, as the surviving spouse, and not to defendant-appellee Fe Floro Valino, who is not
even in the list of those legally preferred, despite the fact that her intentions may have been very commendable.
The law does not even consider the emotional fact that husband and wife had, in this case at bench, been
separated-in-fact and had been living apart for more than 30 years.

Another case:
o
Just like the case above. Involving a Bar reviewer and a former law school dean. (Dean Monteclar however did
not disclose the name of the party involved.) The one taking care also of the Bar reviewer is the mistress. When
the Bar reviewers family arrived, the mistress does not allow the family to visit their dead family member. What
they did? The family stole the coffin! Thats true! Sir: Gidagan gyud nila intawn ang longon sa ako amigo. Unsa
may mabuhat sa kabit? Wala man siyay right kay ang legal wife man ang gakawat sa longon! HAHA

USE OF SURNAMES:

If legitimate father, illegitimate mother:


o
Under RA 9255, the child can use the surname of the father IF acknowledged by the father.
o
This provision amended the Family Code under Article 176.

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

But Art. 176 was further amended by RA 9255. An illegitimate child may now use the surname of his father IF
acknowledged by the father. The acknowledgement must be:
1. Contained in a record of birth; or
2. When filiation is submitted by the father in a public document; or
3. In a private handwritten instrument.
The acknowledgement must be in accordance with primary proofs of filiation under Art. 172 par. 1.

Surname of a Married Woman:


o
Rule 1: A married woman can retain her maiden name plus surname of the husband if she wants.

Example: Marian Rivera Dantes (char)


o
Rule 2: First name of the married woman plus surname of the husband.

Example: Marian Dantes


o
Rule 3: Husbands name prefixed with Mrs.

Example: Mrs. Ding Dong Dantes


Surname of a woman when her marriage is annulled: options
o
If the wife is the guilty party, she will have to use her maiden name and her surname.
o
If the wife is the innocent party, she may use her maiden name as her surname or the surname of the husband.
o
But if the husband married another person, she cannot use the surname of her husband.

ARTICLE 376. No person can change his name or surname without judicial authority.|||
ARTICLE 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n)|||

To distinguish one from the other, you just have to put I, II, III etc. Thats why theres Tirso Cruz III.

Article 376 and 412 has already been amended by RA 9048. Under this RA 9048, clerical or typographical errors in the birth
certificate can already be changed or corrected without a need of judicial order. Before the amendment, even the comma
and period need to be corrected through judicial proceedings. This is very tedious and expensive because you have to
consult a lawyer.
There are now errors that can be corrected administratively. Before amendment, clerical errors can be corrected through
judicial proceedings but summary. If substantial changes, then its adversarial.

Under RA 9048, correction is now allowed before the local registrar without a need of judicial order. File petition:
1. local civil registrar of the place where your record of birth was registered;
2. OR local civil registrar of the place where you are now residing;
3. OR if you are residing abroad, to the nearest Philippine consulate office.
Prior to RA 9048, you have to file it in the court of the place where you were born.
RA 9048 does not only allow change due to clerical or typographical errors but it also allows change of name or nickname
without judicial order. But must be based on any of the following cases:
1. Petitioner finds that the first name or nickname ridiculous, tainted with dishonour or extremely difficult o write or
pronounce;
2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been
publicly known by the first names or nicknames in the community;
3. The change will avoid confusion.
One example is Sir himself. Known as Alex but his real name under the birth certificate as Alexander.
Procedure:
1. Petition must be in affidavit form.

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2.
3.
4.
5.

In case of change of names or surnames, must be published at least once a week for 2 consecutive weeks in a
newspaper of general circulation.
Petition shall be posted in conspicuous places for 10 days.
After completion of posting and publication, LCR shall render decision not later thatn 5 days thereof.
It shall be forwarded to Manila, then the Civil Registrar General may reverse the decision within 10 days.

Other entries in the birth certificate cannot be changed without judicial order like:
o
Nationality
o
Age
o
Status
o
Sex
o
Surname

Rule on Age and Sex was later on amended; may now be changed or corrected as long as it is evident that its a mere
typographical error. This is pursuant to RA 10172.
Under this, the LCR may correct clerical error in the day or month of date of birth or sex of a person.
The following are the salient features of RA 10172:
Correction in the date of birth or sex does not anymore require judicial proceeding.
Petition shall be in affidavit form supported by documents.
Examples:
o
Atty. Jennifer Sinco but he is male. Its possible that the typist may make mistake on this no need for judicial order
o
March 22, 1970 is the real birth date but reflected as March 12, 1970 no need for judicial order. You are really sure
that you were born on March 22 because of important events in your life, for instance your mother knew that your
grandfather died 2 days prior to your birth.
o
BUT if what is reflected is March 22, 1980 instead of 1970- you have to court. There is a need for judicial order for the
change in the year because this will change your age.

It needs to be judicial because it will change the age already.


If there are two birth certificates, you go to court because it is only the court that can cancel records.
RA 10172
Two items that could be changed administratively (LCR):
1.
date of birth- you have to present earliest school records, baptismal. Medical and other documents.
2.
Sex- must be accompanied by a certification issued by a credited GOVERNMENT DOCTOR stating the fact that you have
not undergone sex change/sex transplant
You must attach these to your petition as a requirement.
Other requirements:

Petition needs PUBLICATION at least once a week for two consecutive weeks in a newspaper of general circulation.

Must be filed in 3 copies

submit a certification of appropriate law enforcement agencies that you have no pending criminal case.

Indigents are exempted from filing fee

ABSENCE

WITH ADMINISTRATOR, he can only be declared so after 5 years

WITHOUT ADMINISTRATOR may be declared absentee after 2 years


PRESUMPTION OF DEATH (7 yrs/10yrs/4yrs)

(Art 41. FC) filing for judicial declaration of presumptive death is necessary only if you plan to get married

if you dont intend to get married you may use this provision in the civil code, if your spouse is absent for more than 7 years
he/she is already presumed dead by our law for all purposes.

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OFFICE OF THE CIVIL REGISTRAR - official custodian of records of a person pertaining to his status.
Documents to be entered in the LCR:

Birth

marriage

death

judgement
No change shall be effected without judicial order, but now amended by RA 9048 and further amended by RA10172.
All persons or interested parties affected by the change must be duly notified.
You must implead the local civil registrar.
RULE 108 of ROC
v Procedure of adversarial proceedings for correction of entry before the LCR.
v In the Civil code, the rule was only for clerical and typographical error then applying Rule 108.
But in the case of Republic vs.valencia
Rule 108 provides for procedure for cancellation/ correction of entry in the LCR. It may either be summary or adversarial.
Clerical/ typo error- before, it is summary, but RA9048 now provides that it may be done administratively. in short, this
summary proceeding under Rule 108 are no longer in use when it comes to clerical and typo.
If it affects the civil status, citizenship, nationality of a party it is deemed substantial. Then the procedure to be adopted is
ADVERSARIAL.
Any substantial correction therefore you use Rule 108.
In the new case of Republic vs erlinda olaymar February 10, 2014
ISSUE: can a woman ask for cancellation of a marriage contract appearing in the office of the LCR?
It was made to appear that she was already married to a korean when in truth and in fact she was not.
Upon seeking assistance from a lawyer, she filed a petition to cancel such record under Rule 108 she complied with all
requirements (publication, notice to parties etc). Judge ordered LCR to cancel but OSG opposed.
OSG- such cancellation will result to annullment of marriage. It is declaring the marriage as null and void through filing a
petition for correction of entry.
RULING: Order of Judge was correct. Rule 108 is the proper remedy as long as the proper adversarial procedure is
observed. While Rule 108 is not the law determinative of validity of marriage, we cannot nullify the proceeding before the
trial court where all the parties have been given opportunity to contest the allegations of respondent. Procedure have
been followed and evidences have been admitted and examined. RESPONDENT indeed sought not the nullification of the
marriage as there was no marriage to speak of, but only to correct the true fact which has been set forth in the evidence.
THANK YOU! MWAH! TSUP TSUP!
-endKUMBATI FUTURE PANYEROS/PANYERAS!!!!
It always seems impossible until it is DONE
-Dream, Believe, Survive-

CREDITS TO: ABEJO, GEONZON, GARCIA E., GAVIOLA, ENRIQUEZ, ITAO, PAPA, ERICSON, TAMAYO, CANOY, SALCEDO, GILLAMAC,
DEVERATURDA, CUADO, LICUP

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