2016 PRE-WEEK BAR LECTURE IN AUSL

(PROF. ELMER T. RABUYA)

PRELIMINARY TITLE &
CIVIL PERSONALITY
1. What is the doctrine of presumed-identity approach in private
international law?
The doctrine of presumed-identity approach is also known
as the doctrine of processual presumption, which says that
where a foreign law is not pleaded or, even if pleaded, is not
proven, the presumption is that foreign law is the same as Philippine
Law. [Orion Savings Bank v. Suzuki (2014])
In the same case, it was held that the property relations between
spouses are governed principally by the national law of the spouses.
2. Principle of Abuse of Rights
Q: Cocha Suson, in her internet blog followed by many, shared
and/or published articles, the authenticity and accuracy of which are
highly questionable, solely for the purpose of discrediting the
person or persons subject matter of the articles and/or to foment
hatred against such person or persons. When sued for damages,
Suson invoked freedom of expression or free speech as her defense.
Is she liable for damages?
Yes, she is liable. While she is entitled to the exercise of freedom
of expression, it is basic that the exercise of a right ends when the
right disappears, and it disappears when it is abused especially to
the prejudiced of others (MBTC v. Wong, 359 SCRA 608). If the right
is exercised in bad faith and for the sole intent of prejudicing or
injuring another, there is liability under the principle of abuse of
right (Albensons Enterprises Corp. v. CA, 217 SCRA 18). The
following are elements of abuse of rights are present in this case:
(1) there is a legal right or duty; (2) it is exercised in bad faith; and
(3) for the sole intent of prejudicing or injuring another (Sea
Commercial Company, Inc. v. CA, 319 SCRA 210).
3. Nationality Principle and Article 17, NCC
A foreigner married to a Filipino obtained a decree of absolute
divorce in his country. After the divorce, he failed to support his child
with the former spouse. Since all the parties are residents of the
Philippines, the former wife filed a criminal action against the foreigner

for violation of R.A. 9262 (VAWCI). The foreigner contended that under
his national law, he does not have the obligation to support his child
after a valid divorce. The former wife insisted on the application of the
provisions of the Family Code with respect to the obligation of a father
to support his child.
Q1: What law is applicable in relation to the foreigners obligation to
support his child?
The obligation to give support is a matter that falls under family
rights and duties. Hence, foreigners are governed by their national law
with respect to family rights and duties. [Del Socorro v. Van Wilsem
(2014)]
Q2: If you were the Court, will you dismiss the criminal action?
No. While the obligation to give support is a matter that falls under
family rights and duties and that foreigners are governed by their
national law with respect to family rights and duties following the
nationality principle, the national law of the foreigner father which
states that parents have no obligation to support their children or that
such obligation is not punishable by law, cannot, however, be applied
in the forum. It is an established principle in private international law
that when a foreign law is contrary to a sound and established public
policy of the forum, the said foreign law shall not be applied.
Applying the foregoing, even if the national law of the foreigner
neither enforce a parents obligation to support his child nor penalize
the noncompliance therewith, such obligation is still duly enforceable
in the Philippines because it would be of great injustice to the child to
be denied of financial support when the latter is entitled thereto. [Del
Socorro v. Van Wilsem (2014)]
4. Accion In Rem Verso
Q: What is an accion in rem verso? Distinguish it from solutio
indebiti? And what are the requisites in order for such action to
prosper?
An action for recovery of what has been paid or delivered without
just cause or legal ground under Article 22 of the Civil Code is called
an accion in rem verso. The purpose of the action is to prevent
unjust enrichment. [Land bank of the Philippines v. Ong (2010)] It is
distinguished from solutio indebiti in that in the latter, mistake in
the payment or delivery is an essential element whereas in the
former, the delivery or payment is not by reason of mistake.

In order that an accion in rem verso may prosper, the following

conditions must concur: (1) that the defendant has been enriched;
(2) that the plaintiff has suffered a loss; (3) that the enrichment of
the defendant is without just or legal ground; and (4) that the
plaintiff has no other action based on contract, quasi-contract, crime
or quasi-delict. [UP v. Philab Industries, Inc. (2004); Land bank of the
Philippines v. Ong (2010)]
5. Civil Personality
Birth determines personality and, unless a person is born, he is not
a person in law. Generally, a fetus is considered born if it is alive at the
time it is completely delivered from the mothers womb. But this rule
applies only if the fetus had an intra-uterine life of at least seven
months. 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.
Q: A worker is entitled to financial assistance under the CBA in case
of death of a legitimate dependent. The wife of the worker was forced
to deliver during her six month of pregnancy but the infant was already
dead at the time of delivery. The employer does not want to pay
because allegedly the fetus is not a person in law and therefore not
considered a dependent of the worker. Is the worker entitled to
financial assistance?
Yes, the provision of the Civil Code requiring that the fetus having
an intra-uterine life of less than seven months must survive for at least
24 hours before becoming a person in the eyes of law, does not apply
if the issue in the case is the rights of the parents of the infant, as in
the case at bar. Said provision is applicable only if it the issue is the
acquisition of rights on the part of the fetus that the latter may
transmit to his/her parents upon death. [Continental Steel
Manufacturing Corp. v. Montao (2009)]
6. Civil Personality of Child In Mothers Womb
Q: If the fetus is still inside the mothers womb, is it already
considered a person? Or does it have a personality?
Yes. A fetus inside the mothers womb has a limited and provisional
personality. Its personality is limited because the same exists only
for purposes beneficial to it. The same is also provisional because in
order for said personality to become permanent, it is required that
the fetus be born later on under the conditions outlined in the law

--- that if the intrauterine life is at least seven months, it must be

alive at the time of delivery; if the intrauterine life is less than seven
months, it must be alive for at least 24 hours.
7. Rule on Survivorship
Q: Father and Son boarded a ship, which capsized and sunk. Nothing
has been heard of this ship or its passengers since then. Father is rich
and survived by his spouse. Son does not have properties of his own
and survived by his mother and his spouse. May the widow of the son
inherit in this problem?
NO. Under Article 43 of the Civil Code, if the issue is succession
between two persons who are called to succeed each other and there
is no proof as to who died first, the law deems that they have died at
the same time and declares that there shall be no transmission of
rights from one to the other. The following requisites must be present
in order to apply the foregoing rule in Article 43: (1) the question of
survivorship is between persons who are called to succeed each other;
(2) the issue is succession; and (3) there is no proof as to who died
first. Such being the case, the son did not inherit from the father and
there is nothing therefore that the sons widow may inherit. She is not
also a legal heir of his father-in-law.
Q: In the above problem, when may succession in relation to the
fathers inheritance be opened? When does his acquire rights over the
inheritance? And is there is a need for a judicial declaration of
presumptive death prior to opening such succession?
Four years after the sinking of the ship. The law says that if the
disappearance is under any of those circumstances where there is
danger of death, four years of absence is sufficient for purposes of
opening the succession. In this situation, death is deemed to have
taken place on the day of the happening of the event which was the
reason for the absence. Hence, rights are deemed to have been
transmitted to the heirs on that day.
A judicial declaration of presumptive death is not required for
purposes of opening the succession because the presumption of death
is already provided for by law. Hence, death is presumed by operation
of law. The only instance in our laws where a judicial declaration of
presumptive death is required is for purposes of remarriage under
Article 41 of the Family Code. Other than that, no judicial declaration is
necessary for other purposes because the presumption of death is by
operation of law.

VALIDITY OF MARRIAGES
8. Same Sex Marriages Involving Foreigners; Nationality
Principle and case of Fujiki v. Marinay (2013)
Andy and Jack, are both citizens of California, USA, where same-sex
marriage is recognized as valid. Andy and Jack got married to each
other pursuant to the laws of California where such marriage is
recognized as valid. A year after and while staying in the Philippines,
Andy married Petra, a Filipino. When Jack learned of Andys marriage to
Petra, he filed an action before the California court to declare the
subsequent marriage void for being bigamous. After trial, the California
court declared such marriage void. Jack went to the Philippines and
petitioned our court for recognition of the foreign judgment. Andy and
Petra opposed the petition on the ground that Andys marriage to Jack
is not valid under Philippine laws and that Andy, therefore, has the
requisite capacity to marry Petra.
Q1: Does Jack have the personality to file the petition for recognition
of said foreign judgment? Or may the court dismiss the petition on the
ground that the same is in violation of the rule in A.M. No. 02-11-10-SC
that only the husband or the wife may file the petition to declare a
marriage void?
In Fujiki v. Marinay (2013), the Court reiterated the ruling in
Juliano-Llave v. Republic (2011) that the rule in A.M. No. 02-11-10SC that only the husband or wife can file a declaration of nullity or
annulment of marriage "does not apply if the reason behind the
petition is bigamy." On the contrary, the rule refers to the husband and
wife of the subsisting marriage because the parties in a bigamous
marriage are neither the husband nor the wife under the law, said
marriage being void from the beginning. Thus, the husband or the wife
of the prior subsisting marriage is the one who has the personality to
file a petition for declaration of absolute nullity of void marriage under
Section 2(a) of A.M. No. 02-11-10-SC.
Being a real party in interest, the prior spouse also has the
personality to petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that
such judgment is effective in the Philippines [Fujiki v. Marinay
(2013)]. And such recognition of a foreign judgment can be had in a
proceeding for cancellation or correction of entries in the Civil Registry
under Rule 108 of the Rules of Court [Fujiki v. Marinay (2013)].

Further, the Rule on Declaration of Absolute Nullity of Void Marriages

and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) does not
apply in a petition to recognize a foreign judgment relating to the
status of a marriage where one of the parties is a citizen of a foreign
country. [Fujiki v. Marinay (2013)].
Q2: If you were the Court, will you grant the petition for recognition
of said foreign judgment? Stated otherwise, may said foreign judgment
be recognized as valid here in the Philippines?
Yes, said foreign judgment may be recognized as valid here in
the Philippines. The issue of legal capacity to contract marriage is
governed by the national law of the spouses. Under the nationality
principle embodied in Article 15 of the Civil Code, status, condition,
legal capacity, family rights and duties are matters that are governed
by the national law of the person concerned. Since Andy and Jack are
both citizens of California USA and their national law recognizes the
validity of same sex marriages, the marriage of Andy and Jack is also
recognized as valid here in the Philippines. Such being the case, the
subsequent marriage of Andy to Petra during the subsistence of his
prior marriage to Jack renders the second marriage both under
California and Philippine laws. Therefore, our courts may recognize as
valid the foreign judgment nullifying the subsequent bigamous
marriage.
Q3: Assuming that the RTC where the petition for recognition of the
foreign judgment was filed granted the petition, is Petra required to file
a separate petition to declare her marriage to Andy void for being
bigamous if she wants to remarry?
Not anymore. According to the case of Fujiki v. Marinay
(2013), the same principle embodied in Article 26 of the Family Code
can be applied to a bigamous marriage between a foreigner and a
Filipino and a foreign judgment nullifying the said marriage is obtained
on the ground of bigamy. The Court explained that if the foreign
judgment is not recognized in the Philippines, the Filipino spouse will
be discriminatedthe foreign spouse can remarry while the Filipino
spouse cannot remarry. Under Article 26 of the Family Code, Philippine
courts are conferred jurisdiction to extend the effect of a foreign
divorce decree to a Filipino spouse without undergoing trial to
determine the validity of the dissolution of the marriage.
Besides, upon judicial recognition of the foreign judgment
nullifying the marriage on the ground of bigamy, the same can be
given res judicata effect [Corpuz v. Sto. Tomas (2010)]. Hence, there
is no need for the filing of a new petition involving the same issue

because a re-litigation of same issue is barred by the principle of res

judicata.
9. Same Sex Marriage Involving Filipinos
Andoy and Juan are both Filipinos who got married in California,
USA, where same-sex marriage is recognized as valid. After a year,
Andoy married Petra without a judicial declaration that his marriage to
Juan is void.
Q1: Is the marriage of Andoy and Juan valid?
No. It is not even a marriage under Philippine laws. A marriage
under Philippine laws is defined as a contract of permanent union
between a man and a woman. Hence, what transpired in California
between the parties is not a marriage in this jurisdiction.
Q2: Is the marriage of Andoy to Petra valid?
Since there is no marriage between Andoy and Juan to speak of,
Andoy has the legal capacity to marry Petra. The marriage of Andoy
and Petra is not, therefore, bigamous. Hence, the same is valid.
Q3: Is Andoy liable for the crime of bigamy?
No. Since there is no marriage to speak of between Andoy and
Juan, the former is not required to secure a judicial declaration of the
nullity of such alleged marriage prior to contracting a subsequent
marriage. As held in the case of Morigo v. People (2004), there is no
need to comply with the requirement of Article 40 of the Family Code
when there is marriage to speak of or when there is no semblance or
appearance of a marriage. Thus, Andoy did not commit bigamy when
he contracted a marriage to Petra.
Q4: If prior to Andoys marriage to Juan, the latter underwent sex
reassignment surgery, will your answer to Q1 the same?
Yes, my answer will be the same. The sex of a Filipino citizen is
determined at birth through a simple visual examination of the genitals
of the infant by the birth attendant. Such determination is considered
immutable in the absence of a palpable error and is not changed by
reason of a sex reassignment surgery considering that there is no law
recognizing the legal effects of a sex reassignment surgery. The same
being the case, what transpired between Andoy and Juan is not a
marriage under Philippine laws. [Silverio v. Republic (2007)]

Q5: If Juan is suffering from an abnormality known as Congenital

Adrenal Hyperplasia where Juans body is producing both female
chromosomes and male hormones and prior to Juans marriage to
Andoy, Juan filed a correction of entries in Juans birth certificate to
change the sex from Male to Female, will Andoy be liable for
committing the crime of bigamy?
Yes, Andoy is liable for bigamy. In the case of Republic v.
Cagandahan (2008), the Court allowed a person suffering from the
same abnormality to change the entries in the birth certificate
pertaining to sex, from Female to Male. In such a situation, the
Court respected the choice of the individual because the ambiguity in
the persons sexuality is due to natural causes. Such being the case,
the marriage of Andoy to Juan is valid and the subsequent marriage of
Andoy to Petra during the subsistence of the prior valid marriage is
bigamous.
10.

Rule 108 and Validity of Marriages

Q: Liza discovered that his deceased husband, Enrique, had another

child in a subsequent marriage. In said childs birth certificate, the
child was declared as legitimated because of the subsequent
marriage of the parents. Liza filed a petition for correction and/or
cancelation of entries in the childs birth certificate praying that the
second marriage of Enrique be declared void for being bigamous and
that the child be declared illegitimate. Will the action prosper?
No, the validity of a marriage cannot be questioned in a proceeding
under Rule 108. In Braza v. City Civil Registrar of Himamaylan
City, Negros Occidental (2009), the Court ruled that the trial court
has no jurisdiction to nullify marriages in a special proceeding for
cancellation or correction of entry under Rule 108 of the Rules of Court.
It was explained that if the cause of action is actually to seek the
declaration of the marriage as void for being bigamous, the same is
not governed by Rule 108 but by A.M. No. 02-11-10-SC.
Q: Angel Locsin applied for a Certificate of No Marriage before the
NSO because she is intending to marry her boyfriend. To her surprise,
she was told that she was already married to a Korean national. It
turned out that someone stole her identity. Thus, Angel filed a petition
for correction and/or cancellation of entries in the marriage contract,
specifically the entries in the wife portion thereof. The Republic
opposed the petition which it claimed to be actually a petition for
declaration of nullity of marriage in the guise of a Rule 108 proceeding.
Is the opposition meritorious?

No, the opposition is without merit. While Rule 108 cannot be

availed of to determine the validity of marriage as held in Braganza v.
City Civil Registrar of Himamaylan City, here there is no marriage to
speak of. Thus, what Angel sought is not the nullification of marriage as
there was no marriage to speak of, but the correction of the record of
such marriage to reflect the truth. Otherwise stated, in allowing the
correction of the subject certificate of marriage by cancelling the wife
portion thereof, the trial court does not, in any way, declare the
marriage void as there was no marriage to speak of. [Republic v.
Olaybar (2014)]

11.

Article 26, 2nd par., FC

a) The decree of absolute divorce should be obtained by the alien

spouse and not by the Filipino spouse. If the divorce is obtained by the
Filipino spouse, the same is not valid insofar as the Filipino spouse is
concerned. But insofar as the alien spouse is concerned, if the divorce
is valid pursuant to his national law, the same is recognized as valid
here in the Philippines insofar as the alien spouse is concerned,
following the nationality principle.
As clarified in Dacasin v. Dacasin (2010), the Court clarified
that Philippine courts will recognize the validity of an absolute divorce
obtained abroad, insofar as the foreign spouse is concerned
irrespective of who obtained the divorce, provided such decree is valid
according to the national law of the foreigner.
b) It is now a settled jurisprudence that for purposes of applying
the rules in the second paragraph of Article 26, the reckoning point is
not the citizenship of the divorcing parties at birth or at the time of
marriage, but their citizenship at the time a valid divorce is obtained
abroad. [Republic v. Orbecido III (2005)]
c) The decree of divorce must be proven as a matter of fact. The
presentation solely of the divorce decree is insufficient and that proof
of its authenticity and due execution must be presented. Follow the
rules under Sec. 24 and 25 of Rule 132. [Garcia v. Recio (2001)]

d) In Corpuz vs. Sto. Tomas (2010), the Court clarified that

only the Filipino spouse can invoke the second paragraph of Article 26
of the Family Code while the alien spouse can claim no right under said
provision.
e) May the provision of Article 26, par. 2, be applied retroactively
to a divorce and a subsequent marriage which took place prior to the
effectivity of the Family Code? In San Luis v. San Luis (2007), the
Court declared that there is sufficient jurisprudential basis to apply the
rule in the provision, citing the cases of Van Dorn v. Romillo, Pilapil v.
Ibay-Somera and Quita v. CA.
12.

Article 34, FC:

a) To exempt the parties from the requirement of a marriage

license, two requisites must be satisfied: (1) the parties must
have cohabited as husband and wife for a continuous minimum
period of five years; and (2) during said period, the parties must
not be suffering from legal impediments to marry each other. If
these requisites are met, the marriage is exempt from the
requirement of a marriage license and the marriage is valid even
if no affidavit of cohabitation was executed. What makes the
marriage exceptional is the parties compliance with the factual
basis (or the two requisites earlier mentioned) and not the
execution of the affidavit of cohabitation. The latter is a mere
statement of the parties compliance with the required factual
basis or requisites, the existence of which can also be
established thru testimony.
b) The five- year minimum period of cohabitation must be met;
otherwise, the marriage must be celebrated with a marriage
license. If the actual cohabitation is for less than the required
minimum period, the marriage is void in the absence of a
marriage license even if in the affidavit of cohabitation they
made it appear that they met the said requirement. [Republic v.
Dayot (2008); De Castro v. Assidao-De Castro (2008)] Such
falsity of the affidavit of cohabitation is not a mere irregularity,
for what exists is a case of absence of marriage license.
[Republic v. Dayot (2008); De Castro v. Assidao-De Castro
(2008)]
c) If the marriage is bigamous, the absence of a marriage license is
not a defense against criminal prosecution for bigamy if the
reason for the absence of such license is that the parties
falsified their affidavit of cohabitation to make it appear that the
requirements of Article 34 were satisfied; otherwise, there will be

a mockery of the institution of marriage. [Santiago v. People

(2015)]
13.

Personality to File Petition for Absolute Nullity

a) If the marriage is celebrated during the effectivity of the

Family Code and petition is filed beginning March 15, 2003,
the rule is that: (1) the petition can only be filed by the
husband or wife; and (2) the petition must be filed during the
lifetime of the spouses.
b) The rule that only the husband or wife can file the petition
includes any of the parties to a previous marriage if the
ground for the petition is bigamy. Otherwise stated, the
personality to sue for nullification of the marriage on the
ground of bigamy is not limited to the parties to such
bigamous marriage but also includes the aggrieved spouse in
the prior marriage. As explained in Fujiki v. Marinay (2013),
the rule refers to the husband and wife of the subsisting
marriage because the parties in a bigamous marriage are
neither the husband nor the wife under the law, said marriage
being void from the beginning. Thus, the husband or the wife
of the prior subsisting marriage is the one who has the
personality to file a petition for declaration of absolute nullity
of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.
[see also Juliano-Llave v. Republic (2011)]
c) Upon the death of either of the spouses, the compulsory or
legal heirs may question the validity of the marriage during
the settlement of the estate of the deceased spouse.
d) If the marriage was celebrated prior to the effectivity of the
Family Code, the rule that only the husband or wife can file
the petition does not apply. Likewise, the rule that such
petition cannot be filed upon the death of either of the
spouses does not also apply. Instead, the petition may be filed
by any real party-in-interest [Carlos v. Sandoval (2008)] and
such petition may be filed even after death of either of the
spouses [Garcia-Quiason v. Belen (2013); Ninal v.
Bayadog (2000)]
14.

Article 40 FC

Q: Jarillo contracted her first marriage in 1974. During the

subsistence of said marriage, she contracted another marriage in
1979. During the effectivity of the Family Code, she was charged with

the crime of bigamy. During the pendency of the criminal action, she
was able to get a final judgment declaring the first marriage void on
the ground of psychological incapacity. May she be convicted of
bigamy by applying Article 40 retroactively to a subsequent marriage
that took place in 1979?
In Jarillo v. People (2009 and 2010) and Montanez v.
Cipriano (2012), the Court applied Article 40 retroactively to a
subsequent marriage that was celebrated prior to the promulgation of
the Wiegel vs. Sempio-Dy (August 19, 1986) and the enactment of the
Family Code, on the ground that Article 40 is a mere rule of procedure
and that the retroactive application of procedural laws is not violative
of any right of a person who may feel that he is adversely affected.
Q: When to apply Mercado v. Tan? When to apply Morigo v.
People?
If there is an appearance or semblance of a marriage because
there is a marriage ceremony, even if the prior marriage is void,
comply with Article 40; otherwise, second marriage is void and bigamy
is committed.
If there is no appearance of a marriage, or there is no marriage
to speak of, there is no need to comply with Article 40 because the
subsequent marriage is valid, as when: (1) there is no marriage
ceremony [Morigo v. People (2004)]; (2) in case of identity-theft
[Republic v. Olaybar (2013)]; or (3) same-sex marriage.
Q: What is the property regime of a void marriage under Article
40?
It may either be absolute community, conjugal partnership of
gains or complete separation [Dino v. Dino (2011)]. In other words,
for purposes of determining the property regime of a void marriage
under Article 40, follow the rules applicable to a valid marriage.
15.

Article 41-44, FC (Presumptive Death)

a) Requisites for validity of second marriage if contracted during

effectivity of Family Code: (1) period of absence must be met,
either 4 or 2 years, the latter applies if the disappearance is
under any of those circumstances where there is danger of
death; (2) the spouse present is able to secure a judicial
declaration of presumptive death; and (3) both parties to the

second marriage did not act in bad faith. If these requisites are
present, the second marriage is valid. In the absence of a judicial
declaration, the second marriage is bigamous and the crime of
bigamy is committed [Manuel v. People (2005)]
b) If the second marriage took place prior to the effectivity of the
Family Code or during the effectivity of the Civil Code, a
subsequent marriage is allowed under three situations: (1)
absent spouse is presumed dead under Articles 390 and 391
(here, there is no need for a judicial declaration; (2) spouse is
absent for 7 consecutive years and spouse present has no news
that absentee is still alive; or (3) even if absent for less than 7
years, but generally believed to be dead and believed so by the
spouse present. In all three situations, the spouse present must
have a well-founded belief that absentee is already dead,
otherwise, second marriage is bigamous. Under the Civil Code,
the good faith or bad faith of the second spouse is not taken into
account. It is the good faith of the spouse present which is
material. Under the Civil Code, the second marriage is annullable
upon the reappearance of the absentee spouse.
c) When second marriage subsists even if absentee spouse
reappeared: (1) if the first marriage has already been annulled or
has been declared a nullity; (2) if the sworn statement of the
reappearance is not recorded in the civil registry of the
subsequent spouses' residence; (3) if there is no notice to the
subsequent spouses; or (4) if the fact of reappearance is
disputed in the proper courts of law, and no judgment is yet
rendered confirming, such fact of reappearance. [Santos v.
Santos (2014)]
Q: Husband (H), knowing that First Wife (FW) is still alive,
obtained a judicial declaration of presumptive death of FW. Thereafter,
H contracted a second marriage with Second Wife (SW), who was not
aware that FW is still alive. What is the status of the second marriage?
What is the remedy of the First Wife?
Three Alterative Answers:
First Answer. The marriage is void. A subsequent marriage
contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, does not terminate the first marriage
because it lacks the requirement of a well-founded belief that the
spouse is already dead. Hence, the second marriage is void for being
bigamous because it is contracted during the subsistence of the first
marriage. [Santos v. Santos (2014)] But the aggrieved spouse

cannot file a petition to declare the marriage as void because of the

rule that only the husband or the wife can file such petition. Instead,
the remedy of the aggrieved spouse is annulment of judgment based
on extrinsic fraud. [Santos v. Santos (2014)]
Second Answer: The marriage is void. A subsequent marriage
contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, does not terminate the first marriage
because it lacks the requirement of a well-founded belief that the
spouse is already dead. Hence, the second marriage is void for being
bigamous because it is contracted during the subsistence of the first
marriage. [Santos v. Santos (2014)] The remedy of the aggrieved
spouse is to file a petition to declare the second marriage as void. The
rule in A.M. No. 02-11-10-SC that only the husband or wife can file a
declaration of nullity or annulment of marriage "does not apply if the
reason behind the petition is bigamy." On the contrary, the rule refers
to the husband and wife of the subsisting marriage because the parties
in a bigamous marriage are neither the husband nor the wife under the
law, said marriage being void from the beginning. Thus, the husband or
the wife of the prior subsisting marriage is the one who has the
personality to file a petition for declaration of absolute nullity of void
marriage under Section 2(a) of A.M. No. 02-11-10-SC. [Fujiki v. Marinay
(2013) and Juliano-Llave v. Republic (2011)

Third Answer: The second marriage is valid notwithstanding the

bad faith of the spouse present in contracting the second marriage
considering that a judicial declaration of presumptive death was
obtained. Under Article 44 of the Family Code, the subsequent
marriage contemplated in Article 41 becomes void only if both of the
parties thereto acted in bad faith; otherwise, the marriage is valid.
Here, only the spouse present was in bad faith while the second spouse
had acted in good faith in contracting the second marriage. Since the
second marriage is valid, the only remedy of the aggrieved spouse is to
file an affidavit of reappearance as required by the provisions of the
Family Code in order to terminate the second marriage.
16.

Donation Propter Nuptias

a) Requisites: (1) made before the marriage; (2) in consideration of

the marriage: (3) in favor of the groom or bride or both. Donor
may be a third person or bride or groom.
b) Donation Between Groom and Bride:
(i)

If involving present property, donation is inter vivos and

must follow formalities of ordinary donation. If property

regime is other than absolute community, donation may

not exceed 1/5 of present property of donor. Excess is void.
(ii)

If involving future property, donation is mortis causa and

formalities of wills must be followed.

c) Donation From Third Person: Subject to limitations applicable to

ordinary donations. Cannot comprehend future property of donor.
d) Effect if marriage does not push thru: donation is still valid but
may be revoked by donor. But if donation propter nuptias is
embodied in a marriage settlement, it becomes void together
with the marriage settlement.
17.

Property Relations

a) Exclusive Property in ACP

Included: Whether acquired before or after the marriage,
included.
Exclusive:
1. Acquired before but has legitimate descendants in prior
marriage, including fruits and income.
2. Acquire before but excluded in marriage settlement.
3. Acquired during but thru gratuitous title, except when
grantor expressly says that it forms part of ACP
4. Acquired before or during but for personal use, except
jewelry.
b) Exclusive Property in CPG
Included: If acquired during marriage, presumed conjugal.
Exclusive:
1. Acquired before the marriage.
2. Acquired during but thru gratuitous title.
3. Acquired during thru onerous title but with exclusive
money.
4. Acquired during thru exercise of redemption, barter or
exchange.
18.
Special
Installments

Rule

in

CGP:

Property

Purchased

Thru

a) Requisites: (1) acquired before the marriage; (2) payable thru

installments; (3) some installments were paid using conjugal
funds.
b) Determination of Ownership: Time when ownership is vested.
If prior to marriage, exclusive. If during, conjugal.
19.

Special Rule in CGP: Separate Property Improved

a) Requisites: (1) property is exclusive; (2) subjected to

improvement during the marriage; (2) at the expense of
conjugal funds, or thru the acts or efforts of either or both
parties.
b) Determination of ownership: If cost of improvement plus
resulting increase in value by reason of improvement are
more than the value of property at the time of improvement,
entire property becomes conjugal; otherwise, entire property
remains exclusively owned by owner-spouse. Subject to
reimbursement in either case.
20.
Nature of Interest of Spouses in Specific Property of
APC or CPG: Prior to liquidation, merely inchoate. Will only ripen
into actual title after liquidation and there are still net assets left
that can be distributed between the spouses.
21.

Rule on Disposition or Encumbrance of Property

a) To be valid, both must give their consent. If consent of one

cannot be obtained, at least there must be court
authorization. In the absence of consent of both spouses or
court authorization, encumbrance or disposition is void in its
entirety.
b) While void, it is nevertheless considered as a continuing offer.
c) May buyer invoke good faith? Yes, if he is able to prove the
following: (1) that he exercised due diligence in determining
the validity of the title; and (2) that he exercised due diligence
in inquiring into the authority of the transacting spouse to sell
the property on behalf of the other spouse [Aggabao v.
Parulan (2010)].
Q: The RTC declared the sale of conjugal property (house and lot) of

the spouses null and void, which decision was affirmed by the Court of

Appeals. Thereafter, the husband entered into an amicable settlement

with the other parties recognizing the validity of the sale previously
declared void in the courts decision. Since the husband made the
amicable settlement over the wifes objection, the latter questioned
the validity of said settlement. Is the settlement valid?

No. By agreeing to the validity of the sale, the husband

disposed of or waived his and the wife's rights over the house
and lot. Such disposal or waiver by the husband is not allowed by
law. Article 124 of the Family Code requires that any disposition
or encumbrance of conjugal property must have the written
consent of the other spouse; otherwise, such disposition is void.
Further, under Article 89 of the Family Code, no waiver of rights,
interests, shares, and effects of the conjugal partnership of gains
during the marriage can be made except in case of judicial
separation of property. Clearly, the wife did not consent to the
husbands disposing or waiving their rights over the house and
lot through the Amicable Settlement. [Hapitan v. Sps. Lagradilla
(2016)]
22.

How do you compute net profits? Article 102, FC.

1. Get market value of community or conjugal properties at the

time of dissolution.
2. Subtract debts and obligations of ACP and CGP.
3. What remains are the net assets.
4. Deduct the market value of these properties at the time of
marriage or at the time of acquisition. The difference is the
net profits. [Quiao v. Quiao (2012)]
23.
Termination of ACP/CPG By Reason of Death
a) Mandatory Liquidation: Within one year from death of deceased
spouses.
b) Effect: (1) subsequent marriage is mandatorily governed by
complete separation; (2) any disposition or encumbrance of
community/conjugal property is void.
c) But in the case of Heirs of Protacio Go, Sr. v. Servacio
(2011), the Court ruled that the disposition of a specific conjugal
property upon the death of one of the spouses without prior
liquidation of the conjugal partnership is not void. Instead, said
property will be under a state of co-ownership among the heirs of
the deceased and the disposition is limited to the ideal share of
the selling co-owner, without affecting the ideal shares of the

other co-owners who did not give their consent to the

disposition.
24.

Property Regime of Void Marriages: Art. 147

a) If Void for reasons other than absence of legal capacity, such

as psychological incapacity, absence of marriage license or
absence of authority of solemnizing officer, property regime is
that provided in Article 147.
b) Under Article 147, wages and salaries shall be owned by the
parties in equal shares and properties acquired by them thru
their joint efforts, work or industry shall be considered coowned. 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 formers
efforts consisted in the care and maintenance of the family
and of the household.
c) In the co-ownership under Article 147, the provisions of Article
493 on co-ownership do not apply. In Article 147, any party
cannot dispose nor encumber his/her ideal share during the
cohabitation without the consent of the other party.
Q: The marriage of Pedro and Juana was declared void on the
ground of psychological capacity. After the finality of the judgment and
prior to liquidation of the properties acquired during the parties
cohabitation, Juana sold a property acquired during the marriage. Is the
sale valid? This is the case of MBTC v. Pascual (2008)
Yes. The property regime of a void marriage under Article 36 of
the Family Code is co-ownership under Article 147. In Article 147,
neither party can dispose of his or her share in the co-ownership
without the consent of the other if such disposition is made during the
cohabitation. Hence, such prohibition does not apply after the
termination of the cohabitation. In the latter situation, a party can
already dispose of his share in the co-ownership without the consent of
the other. As such, the sale made by Juana after the termination of the
cohabitation is valid but the same is limited only to her ideal share,
without affecting the ideal share of Pedro.
25.

Property Regime of Void Marriages: Article 148

a) If Void by reason of absence of legal capacity, such as bigamous

marriages, property regime is that provided under Article 148.

b) In Article 148, 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.
26.

Family Home

a) Privilege: Exempt from execution, force sale or attachment,

provided that, at the time of its constitution, its actual value does
not exceed P300,000, in urban areas, or P200,000, in rural areas.
b) Exemption from privilege:
Non-payment of taxes
Debts incurred prior to constitution.
Debts secured by family home, whether before or after
constitution.
Debts due to laborer, mechanics, builders, materialmen or
those who rendered service or furnished materials for the
construction of family home.
c) Extent of Exemption: Only up to extent of value allowed by law,
P300,000 in urban and P200,000 in rural.
d) Sale of Family Home Under Article 160: To warrant the execution
sale of a family home under Article 160, the judgment creditor
needs to establish the following facts: (1) there was an increase
in its actual value; (2) the increase resulted from voluntary
improvements on the property introduced by the persons
constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the
maximum allowed under Article 157 of the FC. [Eulogio v. Bell,
Sr (2015)]. Thus, if the actual value of family home exceeded
the allowable amount by reason of voluntary improvement, the
court may order its sale. But if the reason is involuntary
improvement, like the conversion into a residential area or
establishment of roads and other facilities, the one establishing
the family home should not be punished by making his home
liable to creditors; hence, Article 160 will not apply. [Eulogio v.
Bell, Sr. (2015)]
e) Requisites for Claiming Privilege: Claim for exemption from
execution of the family home should be set up and proved before
the sale of the property at public auction, and failure to do so
would estop the party from later claiming the exemption. Since
the right of exemption is a personal privilege granted to the

judgment debtor, it must be claimed by the judgment debtor

himself. [Honrado v. CA (2005)
f) Effect of Death of Person Constituting Family Home: If there are
beneficiaries who survive and are living in the family home, it will
continue for 10 years, unless at the expiration of 10 years, there
is still a minor beneficiary, in which case the family home
continues until that beneficiary becomes of age. [Patricio v.
Dario III (2006)] To be a beneficiary of the family home, three
requisites must concur: (1) they must be among the relationships
enumerated in Art. 154 of the Family Code; (2) they live in the
family home; and (3) they are dependent for legal support upon
the head of the family. [Patricio v. Dario III (2006)]
g) Prohibition Against Partition: During the time that such family
home continuous as such, the law prohibits its partition unless
there is a compelling reason to do so. Article 159 imposes the
proscription against the immediate partition of the family home
regardless of its ownership. This signifies that even if the family
home has passed by succession to the co-ownership of the heirs,
or has been willed to any one of them, this fact alone cannot
transform the family home into an ordinary property, much less
dispel the protection cast upon it by the law. The rights of the
individual co-owner or owner of the family home cannot
subjugate the rights granted under Article 159 to the
beneficiaries of the family home. [Arriola v. Arriola (2008)]
27.
Paternity and Filiation: Basic Rules in Determining
Status
(i)
(ii)
(iii)
(iv)

If conceived OR born inside a valid marriage, legitimate.

If conceived AND born outside of a valid marriage,
illegitimate.
Except: If marriage is void under Art. 36 and 53,
legitimate.
If conceived AND born outside of wedlock but at the
time of childs conception, parents were not barred by
any impediment to marry each other or, even if
disqualified, parents were disqualified by reason of age
(either or both were below 18) at that time, child
becomes legitimate upon the subsequent marriage of
the parents.
In legitimation, the child automatically becomes
legitimate upon the mere marriage of the parents.
The marriage, however, must not be void ab initio;
otherwise, legitimation does not take place.

28.

Paternity and Filiation: Presumption of Legitimacy

a) Any child conceived or born inside a valid marriage is

presumed legitimate.
b) Only the presumed father has the right to question his
paternity over the child presumed legitimate by filing an
action to impugn childs legitimacy. Such right is acquired by
the heirs of the presumed father upon the latters death in
two situations: (1) if presumed father dies prior to birth of the
child; or (2) if presumed father dies prior to expiration of
prescriptive period.
c) If child is presumed legitimate, childs legitimacy can only be
questioned in an action to impugn childs legitimacy. Childs
legitimacy cannot be subjected to collateral attack.
d) Mother cannot declare against the childs legitimacy.
29.
Paternity
Filiation)

and Filiation:

Proof

of

Filiation

(Illegitimate

a) Status not subject to agreement: Status and filiation of a child

cannot be subject matter of compromise agreement. It must
be judicially established.

Article 172, par. 1, FC:

b) Birth Certificate: If signed, amounts to voluntary recognition
and considered consummated act. No need for judicial action
to prove filiation. [Montefalcon v. Rodriguez (2008)] If not
signed but the alleged father had a hand, participated or was
involved in the preparation of the birth certificate, the birth
certificate is competent evidence of paternity. Thus, if it was
the father who supplied all information in the birth certificate,
including the fact of his paternity [Ilano v. CA (1994)] or he
was the one who caused its registration in the civil registry
[Arado v. Alcoran (2015)], the birth certificate becomes
competent evidence of paternity.
c) Public and Private Instrument: Three requisites must be
present: (1) there must be statement of admission of
paternity; (2) admission is made personally by the parent; and

(3) instrument is signed by the parent. If private handwritten

instrument acknowledging paternity is not signed, it is not
competent evidence of paternity if it is the only proof of
filiation; but if it is merely corroborative, it becomes a
competent proof of filiation [Dela Cruz v. Gracia (2009);
Aguilar v. Siasat (2015)]
d) Any admission of paternity by someone other than the
husband cannot be legally recognized if the child is presumed
legitimate child of the husband and wife. Neither may the
child file an action to claim illegitimate filiation against
another person if he is presumed to be a legitimate child of
the husband and wife. It is only when the legitimacy of a child
has been successfully impugned that the paternity of the
husband can be rejected [Liyao, Jr. v. Tanhoti-Liyao (2002)].
e) If proof of filiation is either a birth certificate, public or private
handwritten instrument, the action to claim illegitimate
filiation may be filed by the child even after the death of the
illegitimate father. Reason: These proof of filiation amount to
voluntary recognition and considered consummated act
which, ordinarily, do not require any further action for
acknowledgment. Even if the birth certificate is not signed by
the illegitimate fatherB but he had a hand or was involved in
its preparation, the action to claim illegitimate filiation will
prosper even if filed after the death of the illegitimate father
[Arado v. Alcoran (2015)]
Article 172, par. 2, FC:
f) Open and continuous possession of status as illegitimate
child: Two requisites must be present: (1) continuous,
spontaneous and clear manifestations of parental affection
and care; and (2) acts not attributable to charity [Perla v.
Baring (2012)]
g) Any other means allowed by law or rules: Result of blood
testing, not competent evidence to prove paternity because
inconclusive; but competent evidence to deny paternity
because conclusive if result is denial of paternity [Herrera v.
Alba (2005)] DNA test results, competent evidence to prove
paternity or to deny paternity [Agustin v. CA (2005)] A prima
facie case of paternity must be established before the alleged
father can be required to undergo DNA testing [Lucas v. Lucas
(211)] and a prima facie case exists if the woman declares
that she had sexual relations with the putative father [Herrera

v. Alba (2005)]. The death of the claimed father does not ipso
facto negate the application of DNA testing for as long as
there exists appropriate biological samples of his DNA [Estate
of Ong v. Diaz (2007)].
h) If proof of paternity is any of those enumerated in par. 2 of
Article 172, the action to claim illegitimate filiation must be
filed during the lifetime of the putative father; otherwise, the
action is already barred.
30.
Paternity and Filiation: Right to Use Surname of
Illegitimate Father
a) Illegitimate child acquires right to use surname of father if
voluntarily recognized in writing and signed by the father [Art.
176, FC; Dela Cruz v. Gracia (2009)]
b) Article 176 gives illegitimate children the right to decide if
they want to use the surname of their father or not. 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. [Grande v. Antonio
(2014), J. Velasco, ponente]
c) If private handwritten instrument admits paternity but
unsigned by the illegitimate father, the same may authorize
child to use fathers surname if it is accompanied by other
competent and relevant evidence of paternity. On the other
hand, if it is the only evidence of filiation, it will not authorize
the child to use the fathers surname because there must be
strict compliance with the requirement that the same must be
signed by the acknowledging parent [Dela Cruz v. Gracia
(2009)]
31.

Adoption: Who may adopt

a) Filipino citizen: If permanently residing in the Philippines,

domestic adoption. If permanently residing abroad, intercountry adoption.
b) Alien adopter: If residing in the Philippines for 3 continuous
years and maintains such residency until adoption decree is
issued, qualified to adopt by domestic adoption. Residency
requirement may be waived in 3 situations: (i) a former
Filipino citizen who seeks to adopt a relative within the fourth
(4th) degree of consanguinity or affinity; (ii) one who seeks to

adopt the legitimate son/daughter of his/her Filipino spouse;

or (iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative within the fourth
(4th) degree of consanguinity or affinity of the Filipino spouse.
If not qualified to adopt domestically by reason of residency,
adoption must be by inter-country adoption act.
c) Joint Adoption by Spouses: The requirement of joint adoption
by husband and wife is mandatory, even if the person to be
adopted have already been emancipated having reached the
age of majority [In re Adoption of Michelle Lim and Michael
Jude Lim (2009)]. Exceptions to rule of joint adoption: (1)
adoption of legitimate child of spouse; (2) adoption of ones
illegitimate child, but consent of other spouse must be
obtained; and (3) adoption by a spouse who is already legally
separated. In case of adoption of ones illegitimate child, the
consent of the other spouse is mandatory. In the absence of
such consent, the adopting parent is ineligible to adopt. For
the adoption to be valid, personal service of summons must
also be effected on the other spouse and it is not enough to
rely on constructive notice, otherwise the court does not
acquire jurisdiction. [Castro v. Gregorio (2014)]
32.

Adoption: Who may be Adopted

a) Child legally available for adoption: Only the DSWD can issue
certification that child is legally available for adoption and
such certification is the primary evidence of such fact [RA
9523]. Such certification applies only to surrendered,
abandoned, neglected, and dependent children [IRR, RA
9523]. The adoption of the following does not require such
certification: (1) adoption of a child by step-parent; (2)
adoption of an illegitimate child by biological parent; (3)
adoption of a relative within 4th degree of consanguinity or
affinity [IRR, 9523].
33.

Adoption: Requirement of Consent

a) Biological parent, if known. Such written consent is

indispensable for the validity of the adoption [Landingin v.
Republic (2006)].
b) Legitimate or adopted child, if 10 years or over. Such consent
is necessary for the validity of the adoption [Castro v.
Gregorio (2014)].

c) Adoptee, if 10 years or over.

d) Illegitimate child of adopter if living with adopter and if 10
years or over.
e) Spouse of adopter or adopted.
*** Where consent is required, such person must be personally
served with summons and constructive notice is not sufficient;
otherwise, the court does not validly acquire jurisdiction [Castro
v. Gregorio (2014)]
*** Where the adoption is obtained thru fraud because the
consent of those required by law was falsified, the remedy of the
aggrieved party is annulment of judgment based on extrinsic
fraud [Castro v. Gregorio (2014)]
34.

Adoption: Effects

a) Transfer of Parental Authority: Legal ties between adopted and

biological are severed and the same shall be vested in the
adopter. But if the adopter dies while the adoptee is still a
minor, the parental authority of the biological parents, if
known, is restored, applying by analogy Sec. 20 of DAA that
upon rescission of the adoption and the adoptee is still a
minor, the parental authority of the biological parents, in
known, shall be restored. Reason: best interest of the adopted
child since the child is not related to the relatives of the
adopter in view of the principle that adoption creates a
personal relationship only between the adopter and the
adopted. [Bartolome v. SSS (2014), J. Velasco, ponente]
b) Succession: Adopter and adoptee acquires reciprocal rights of
succession, they become legal and compulsory heirs of each
other. In In re Adoption of Stephanie Nathy Astorga
Garcia (2005), the Court, in obiter, declares that the adopted
child remains an intestate heir of the biological parents, citing
Article 189(3) of the Family Code. In Bartolome v. SSS
(2014), the Court, in an obiter, likewise declared that the
biological parents remain an inestate heir of the adopted,
citing Article 190(2) of the FC.
35.

Legal Support:

a) Order of liability for support (Art. 199): (1) spouse; (2)

descendants in nearest degree; (3) ascendants in nearest
degree; (4) brothers and sisters.
b) Liability of grandparents to their grandchildren for legal
support is not activated only in case of default of parents but
also in case of inability of the parents to provide sufficient
support [Lim v. Lim (2009)]
c) Manner of providing support: (1) paying fixed allowance; or (2)
receiving and maintaining in the family dwelling the person
who has right to receive support, at the option of obligor. But
latter mode may not be availed if there is a legal or moral
obstacle thereto. In Lim v. Lim (2009), it was held that the
grandchildren cannot be compelled by the grandparents to go
back to the conjugal dwelling where said place was the scene
of the husbands infidelity. In Mangonon v. CA (2006), it was
held that the strained relations between the parties brought
about by the filing of the suit for declaration of legitimacy and
support, where the grandfather denied familial relationship
with the grandchildren, amounted to legal and moral obstacle
for the availment of the second option.
36.

Parental Authority:

a) Cannot be waived nor renounced, unless in those instances

expressly allowed by law.
b) Foster parents shall have the rights and duties of persons
exercising substitute parental authority; but for purposes of
disciplining the child, they have the rights of persons
exercising special parental authority (Foster Act of 2012).
c) Custody over illegitimate: Under parental authority only of the
mother. Hence, father is not entitled to custody, even if he
admits paternity [David v. CA (1995)]. But father is entitled to
visitation rights [Silva v. CA, (1997)].
d) Custody over legitimate children in case of separation of
parents, if child is below seven: Cannot be separated from the
mother, unless mother is unfit. The provision is mandatory.
Any agreement to the contrary is void [Dacasin v. Dacasin
(2010)] This is the so-callled tender-age presumption rule.
To declare mother unfit to have custody: (1) moral lapses of
mother had averse effect upon the child; or (2) have

distracted her from exercising proper parental care [PabloGualberto v. Gulaberto (2005)]
e) If child is at least seven: primordial consideration is the
welfare of the child.