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Professor: Atty.

Carla Santamaria-Seña

Marc Roby de Chavez (MARX)
Jean Marionne Bermudez (JAM)
Kristine Tendencia (TIN)
Donnarence Masilungan (DONNA)
Glaiza Domingo (ICE)
Theena Martinez (THEENA)
Aileen Grace Pizaña (AILEEN)
Roxanne Joan Cruz (OXY)
Suzanne Bernadette Soriano (SUZY)
Jeffvince Guzman (JEFF)
Alvin Balagbag (ALVIN)
Holy Ampaguey (HOLY)
Jessaida Starla Aguirre (JESSY

CIVREV1_4A1 But Art 2 does not say that laws will take effect 15
days after publication. Instead what it says, laws
la take
Article 1. This Act shall be known as the "Civil Code of the Philippines." effect FOLLOWING 15 days after publication, so as to
indicate that laws shall actually take effect on the
When did the Civil Code take effect? th th
16 day after publication. And the 16 day from Aug
August 30, 1950 16 falls on September 1.

What about the Family Code? When do we apply/ excuse 15 days?

August 3, 1988 If the law is not worded similarly
sim to Art. 2. If it simply
says that “laws shall take effect after 15 days”.
What was the enacting law by the Family Code?
Executive Order No. 209 The word “following” in Art 2 made the difference.

Who passed this law? Art 2 provides for a qualification “unless it is otherwise
Pres. Corazon Aquino provided”. What, as that phrase, may be dispensed with?
“unless it is otherwise provided” refers to the date of
How was she able to pass this law? effectivity of laws, not the requirement of
Through the legislative powers of the President publication.

What effect did the Family Code have with the Civil Code? Who do we single out publication as a requirement in the
It amended some provisions of the Civil Code phrase “unless otherwise provided”?
Because Publication is an indispensable requirement
What is included in the family law? as held in the case in TANADA VS TUVERA
Marriage, family relations
Newspaper of General Circulation
(Original) Art. 2: Laws shall take effect after 15 days following the completion
of their publication in the Official Gazette, unless it is otherwise provided.
• It is published for the dissemnination of local news
and general information
This Code shall take effect one year after publication. • It has a bona fide subscription list of paying
(Amended) Art. 2: Laws shall take effect after 15 days following the • Published at regular intervals
completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines, unless it is otherwise
This case led to the enactment of EO 200.
The amendment which inserted
serted the phrase “or in a newspaper
of general circulation” was instituted by virtue of? EO 200
Executive Order No. 200 Ordinary citizens has no easy access to official
What does Art. 2 means?
The law must be published The case stemmed from a petition that was filed against the
then Executive Secretary to question laws promulgated by
So, if the law was published August 16, 2010, when will it take then Pres Marcos. By virtue of the amendment of the
effect? Constitution, he exercised legislative powers. Problem is, his
Considering that the law itself did not provide for its exercise of legislative powers moved in secrecy. No one knew
effectivity, we need to apply Article 2 which provides that there were laws existing except for him. SO a petition
that “Laws shall take effect after 15 days following was brought to question the validity of these laws in view of
the completion of its publication”. That means count the provisions in Art 2. According to the petitioners,
p these
15 days from publication and thereafter, add laws which were never found in the Official Gazette and
another day, y, to complete the requirement “that which was not made known to the public were all invalid.
effectivity takes place after 15 days following Respondents admitted the requirement of publication BUT
completion”. there is an exception
ception “unless otherwise provided” and it is so
otherwise provided in these Presidential decrees because
So from Aug 16, you add 15 days which gives you they all provide for immediate effectivity. Hence, they are
Aug 31. valid and need not be published. Respondents were actually
sustained by the SC because the SC then was also alleged in
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favor of the dictatorship. Then EDSA Revolution took place Congress, not from the SC. Hence, the issuance of EO
and the pending motion for reconsideration from the earlier No.. 200 which amended Art 2 by including
ruling of the SC was heard by a different set of justices newspapers of general circulation as additional way
headed by Justice Claudio Teehankee. for publication.

SC held publication
lication can never be dispensed with. SC said the * So what you have to remember in Art 2 comes to the tenor
need for publication is a matter of due process for which the of the provision in the law regarding publication. One word
people are entitled. tells the difference, the pr
presence of the word “following”
moved the effectivity date to the 16 day. Remove the word
Why due process? “following” such that it “takes effect 15 days after
Because of the conclusive presumption under Art 3 publication” makes the effectivity date on the 15 day.
that everyone knows the law. If we have this
ve presumption, it is unfair to apply this Would SC decisions be included in the term “laws” that must
conclusive presumption without even giving the be published first before it becomes effective?
people the opportunity to know. What is your basis No, because they are not laws. They are simply
for this conclusive presumption if notice was not interpretations of the laws.
given. So, publication cannot be dispensed.
Art. 3. Ignorance of the law excuses no one from compliance therewith.
What if the law itself
lf provides that it will be effective
immediately? How do we construe the provision of the law? What does it mean?
It does not dispense with publication. It will have Everyone is presumed to know what the law is and
effect immediately after publication. he cannot deem otherwise.

The petitioners also asked what should be published, should it The presumption is not based on fact because laws will cease
only be national laws? (Because there were instances where to be mandatory and ignorance is a state of mind
private laws were passed such as laws conferring Phil.
citizenship to foreigners.) There was a time when we had a Why do we conclusively presume to know the law?
national team which was questioned. They were able to show Because ignorance is a state of mind which is
laws which made them Filipino citizens. The public did not differentt to disprove. By reason of convenience on
know about this. Hence, the question, should private laws be the part of the State, to presume that everyone
published? How about local laws? knows the law. Because on that premise, they can
SC held all laws are required to be published to be proceed against everyone. And to correlate it with
effective because all laws are imbued with public Art 2, you can only invoke Art 3 if Art 2 has been
interest. complied with. Otherwise, right to due process
enshrined by the Constitution will be violated.
Except: internal memoranda,
oranda, internal rules of
different administrative agencies which does not When do we apply this conclusive presumption? To what
concern the public at large but only the people kinds of laws do we apply the presumption
working in those agencies Only domestic laws are covered by the presumption.

How should publication be made? Limited to mandatory and prohibitory laws

Laws should be published in whole. This is the only
way that the public mayy be accorded due process. Permissive laws can never be violated because it
gives the option of following or not following the law
Official Gazette is not attended with any regularity
Why are foreign laws excluded? What is the government
Where to publish? policy about foreign laws?
If your purpose is to bring knowledge to the people, Foreign law is a matter of fact.
the petitioners contend that newspapers will be
more effective. SC recognized the wisdom of the What is the doctrine
rine of processual presumption? (A.k.a:
ndation and acknowledged the ineffectivity presumed identity of laws)
of the publication in the Official Gazette. But the SC A foreign law is a matter of fact which must be
said it is not in its place to amend the law. If any proven with evidence. In the absence of any contrary
change will be made to Art 2, it should come from
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evidence, it is presumed to be the same as our Art 4. Laws shall have no retroactive effect, unless the contrary is provided.
domestic law.
Example: In succession General Rule: Laws are given prospective application.
How will you distinguish ignorance of the law from ignorance 1. Unless it is expressly provided that the law shall be
of facts? given retroactive application
Ignorance of Law- is the want of knowledge or 2. Remedial Laws
acquaintance with the laws of the land insofar as 3. Laws creating substantive rights provided no vested
they apply to the act, relation, duty or matter under rights are affected
consideration. It cannot be the basis
is of good faith. 4. Penal laws favorable to the accused or convict
5. Curative laws
Ignorance of Fact- is the want of knowledge of some 6. Emergency laws
facts constituting or the relating to the subject
matter in hand. It may excuse a party from the legal Unless it is expressly provided that the law shall be given
consequences of his conduct. It can be the basis of retroactive application
good faith.
Where can we find provisions that provide for retroactive
Is good faith material
erial in the nullity of marriages? application?
No. It is found in the transitory provisions

Absolutely? Was the Family Code given

ven retroactive application?
No Yes, it expressly provides under Art 256 that the
Code shall have retroactive effect insofar as it does
Is there an instance whereby good faith is material in not prejudice or impair vested or acquired rights in
considering the nullity of marriage? accordance with the Civil Code or other laws.
Only in one instance: If the nullity proceeds from the
authority of the solemnizing officer. Hence, when What about the Civil Code?
onee or both parties believe in good faith that the
solemnizing officer has authority to solemnize Is there any limitation on the right of Congress to provide
marriages, the marriage will be valid. retroactive application?
They cannot provide for:
How do we recognize good faith rooted on ignorance of law a. Ex post facto laws
and good faith rooted on ignorance of fact? Example:
Good faithth rooted on ignorance of law: If the parties What are ex post facto laws?
are married by the governor of the province thinking One that would make a previous
that the governor is authorized under the LGC to act criminal although it was not so
solemnize marriages. The parties cannot claim good at the time it was committed
faith, because what they are claiming to be in good
faith is rooted on their ignorance of the provision of Criminalizing the act after its
the LGC regarding the authority of the local commission
executives to solemnize marriages. They cannot
claim good faith because they are conclusively Why would this be violative of the
presumed to know that governors cannot solemnize constitution?
marriages. It is the mayors. Violates the right of citizen to due
Good faith rooted on ignorance of fact: If the
parties had their marriage solemnized by the b. Laws which impair the obligations of
governor on the belief that the latter was the mayor. contracts
In this case, the parties are in good faith rooted on a
mistake of fact. They mistook the govern
governor for the What is the impairment of contracts?
mayor. Hence, their good faith will render their A law impairs the obligation of
marriage valid even though the solemnizing officer contract if it has retroactive
did not have the authority to marry them. application so as to affect existing

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contracts concluded before its When the law provides for the validity of an otherwise invalid
enactment. act
e.g. Art 35: The following marriages shall be void
Basically, the State is not allowed from the beginning:
to undermine the contracts (2) Those solemnized by any person not
between the parties because legally authorized to perform marriages
contracts constitute the law unless such marriages were contracted with
between the parties.
parti Except: either or both parties believing in good faith
exercise of police power that the solemnizing officer had the legal
authority to do so.
Remedial Laws
When the law makes the act valid, but punishes the violator
What are remedial laws? e.g. a widow who remarries before the lapse of 300
Laws which provide for the methods of enforcing days after the death
de of her husband is liable to
rights or obtaining redress for their violation criminal prosecution but the marriage is valid.

How are procedural laws given retroactive effect? Example: A marriage license is a requisite to the
They are made to apply to pendinging cases.
cases The rules validity of a marriage. If a marriage license is
might change in the middle of the case defective, ordinarily, the marriage should be
considered null and void, however,
howe the law provides
We have a case, a judgment has been rendered and that the marriage will still be valid but there may be
then an appeal was filed, and suddenly the administrative or criminal liabilities for those
procedural laws were amended to shorten the responsible for the issuance of the marriage license.
period to appeal from 15 days to 10 days. Then, the For instance, posting period has not been observed,
ed period will be applicable to him even it was issued on the same
sam day when the application
though your case has long been pending before the was filed.
effectivity of the amendment of the rules of
procedure. Where the law merely makes the act voidable, that is, valid
unless annulled.
No one has a vested right in procedural laws
Where the law declares the act null and void, but recognizes
Laws creating substantive rights provided no vested rights are legal effects as arising from it.
affected (e.g. Family Code and Civil Code) Example:InIn a void marriage under Art 36 and 53 of
egitimate children now have betterrights under the the Family Code, the children born thereto are
Family Code because the classification under the Civil considered legitimate.
Code has already been abolished and illegitimate
children now is entitled to receive a legitime one-half
one of Art 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals or good customs, or prejudicial to a third person
the legitime of legitimate children.
with a right recognized by law.

Art 5. Acts executed against the provisions of mandatory or prohibitory laws

shall be void, except when the law itself authorizes their validity What is a waiver?
It is an intentional or voluntary relinquishment of a
How does the law provide otherwise? known right;
1. When the law provides for the val validity of an
otherwise invalid act Renounces,, giving up or surrendering a right
2. When the law makes the act valid, but punishes the
violator Example:
3. Where the law merely makes the act voidable, that X (Mr. Garcia’s mother)
is, valid unless annulled. Mr. Garcia (X’s son)
4. Where the law declares the act null and void, but Ms. Ong (Mr. Garcia’s daughter)
recognizes legal effects as arising from it.

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X dies, Mr. Garcia wants to renounce his inheritance. It also provides for the hierarchy of the Constitution as
Can Ms. Ong object to the renunciation/waiver made against statutes and as against implementing rules and
by Mr. Garcia? regulations of administrative agencies.
No, Ms. Ong cannot object to the
renunciation simply because she does not Repealing Clause is general. It is tantamount
t to an implied
have a right yet which is recognized in law. repeal
She only has an inchoate
nchoate right as heir of Mr.
Garcia. Implied repeal is not favored because the lawmakers are
presumed to know the existing law and in making new laws, it
Under the law on succession, a renunciation made is enacted to be in harmony with the prior law
by the parent will actually benefit the child because
the child is elevated to the status of the parent as Art 8. Judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines.
the compulsory heir. The child will not be receiving
by right of representation, but the child will be
receiving it in his/her own right. It means that judicial decisions shall have the force and effect
of laws. But since they are not laws,
Examples of a waiver that is contrary to public policy:
1. If a worker agrees to be paid lower than the Our government is divided into 3 branches and there should
minimum wage because it is contrary to public policy be a separation
ion of powers. So the judiciary is not supposed to
2. If the husband and wife execute a sworn affidavit be legislating. So how do we reconcile the fact that judicial
saying they agree to go on their separate ways and decisions should be given the force and effect of the law when
can have relationships with other persons, is the lawmaking power should be reserved in the Congress?
contrary to public morals and public policy. It is Will there be a violation
n of the separation of powers?
contrary to public policy because the Constitution There will be no violation because what the judiciary
itself approves the sanctity off marriage. does is to simply establish the contemporaneous
legislative intent. The Court is not adding anything to
Why rights may be waived? the law. The Court is simply stating categorically and
It is a prerogative or privilege not an obligation clearly what the lawmakers intended when the
lawmakers enacted the law law.
Requisites of a valid waiver
Art 9. No judge or court shall decline to render judgment by reason of the
• He must actually have the right that he is renouncing silence, obscurity or insufficiency of the laws.
• Capacity to make the renunciation
• Made in a clear and unequivocal manner Art. 10. In case of doubt in the interpretation or application of laws,
laws it is
• Not contrary ary to laws, public policy, morals or presumed that the lawmaking body intended right and justice to prevail.
prejudicial to 3 persons
• Waiver must be intelligent and voluntary Art. 11. Customs which are contrary to law, public order or public policy
shall not be countenanced.

Article 7. Laws are repealed only by subsequent ones, and their violation or
observance shall not be excused by disuse, or custom or practice to the Art. 12. A custom must be proved as a fact, according to the rules of
contrary. evidence.

When the courts declared a law to be inconsistent with the Constitution, the What is the judge supposed to do?
former shall be void and the latter shall govern.
The judge should rely on equity.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws
ws or the Constitution. What is equity?
Inherently fair and just
It means that even if a law is so obscure and has been
forgotten and no one has been following it anymore, does What is the basis equity must be relied on?
not mean that the authorities would be estopped from The basis for this is Art. 10: In case of doubt in the
prosecuting you for any violation of that law that you interpretation of laws, it is presumed
presume that the
commit. So long as it has not been repealed, it will forever be lawmaking body intended right and justice to
a good law. prevail. That is the liberal basis

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Aside from the principles of equity, what else that may be So what happens if a married Filipina woman should have
relied upon? sexual relations with a man not her husband in Hong Kong.
Customs may also be relied upon provided that the Would she be prosecuted for adultery?
customs are established and proven as facts
fact and to No, she cannot
not be prosecuted criminally because our
be acceptable as customs, they must be observed by penal laws have no effect outside the Philippines.
so many people for such a length of time that they Although it may be used as a ground for legal
have acquired some kind of obligatory force. separation because she committed sexual infidelity.

Do we observe any specific rule when it comes to criminal CIVREV1_4A2

cases when the law is silent or obscure? What should the
judge do if the law is obscure or silent? Art. 15. Laws relating to family rights and duties, or to the status, condition
When the law is silent or obscure, we should acquit and legal capacity of persons are binding upon citizens of the Philippines,
the accused. The basic principle “nullum crimen, even though living abroad.
nulla poena sine lege” which means “when there is
no law condemning the act, there is no crime”. Is there any principlee that is embodied in article 15?
Yes, the nationality principle.
Art 13. When the laws speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five
five days each; months, of nciple?
What is the nationality principle?
thirty days; days, of twenty-four
four hours; and nights from sunset to sunrise. Our national laws relating to family life or status
would follow its citizen anywhere in the world.
If months are designated by their name, they shall be computed by the
number of days which they respectively have.
Let’s say you are a Filipino and you stayed in Canada. Because
of your long stay in Canada, you no longer have contact with
In computing a period, the first day shall be excluded, and the last day
included. your wife. Can you now institute a divorce proceeding against
your wife in Canada considering that the law in Canada
When you are redeeming a foreclosed property by allows divorce?
extrajudicial foreclosure, how long do
o you have to effect the No, since I am considered to be a married person
redemption? under Philippine laws then the laws of the
1 year from the date of registration of certificate of Philippines relating to family and marriage apply to
sale. mee wherever I go and among those laws would be a
prohibition against divorce.
If certificate of sale was registered on October 29, 1987,when
is the last day to redeem? That’s a Filipino cannot secure divorce anywhere in
October 28, 1988 because 1988 is a leap year so that the world.
means there are 366 days so there is a need to
adjust. Redemption period should be 1 day earlier. Will it matter if you and your wife were married in Canada?
Will that make any difference?
*Note: To determine leap years,
ars, it must be divisible by 4 No. Filipinos can get married anywhere. As provided
in the Civil Code, marriages celebrated abroad are
Art 14. Penal laws and those of public security and safety shall be obligatory
deemed valid in the Philippines. That means they are
upon all who live or sojourn in n the Philippine territory, subject to the valid under Philippine laws.
principles of public international law and to treaty stipulations.
But the laws of the foreign state with regard to
What is the principle embodied in this provision? marriages would only be limited to the extrinsicextr
it is the territorial nature of criminal laws. validity of the marriage. The intrinsic validity and the
consequence of marriage will still be governed by
Principle of Territoriality - any offense committed
commi by anyone Philippine law. And one of the consequences of
within the territory of the country is an offense against the Philippine marriage is no divorce.
State. And the State has the power to prosecute and punish
the offender, be he a national or a foreigner.

It means that criminal law applies to anyone who lives or

sojourns in the Philippines. And conversely, criminal laws of
the Philippines have no effect outside its territory.
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In case of a married woman abroad having sexual relationrelations The Court said “we adhere with the
with a man other than his husband, by virtue of the nationality principle or nationality doctrine
territoriality principle that our criminal laws adheres to, she and following that principle, you under your
cannot be prosecuted for adultery. What legal consequence
consequences national law are no longer the husband of
may apply to her if she cannot be prosecuted of adultery? Alice and under the law only the husband
The act of having sexualual relations with a man other can make claim to the conjugal assets. Not
than his husband is an act of sexual infidelity which being the husband anymore under your
is a ground for legal separation. law, then you have no personality to bring
this suit.” The case was dismissed.
Criminal prosecution is not applicable against the
wife because criminal law is limited to Philippine Art. 16. Real property as well as personal property is subject to the law of
jurisdiction. But that has not takee away the fact that the country where it is situated
he woman here is still considered to be married
because of Art. 15. Thus,, consequently, even though However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
she cannot be prosecuted for bigamy,
bigamy an action may intrinsic validity of testamentary provisions, shall be regulated by the
lie against her for legal separation on account of the national law of the person son whose succession is under consideration,
sexual infidelity that she hass committed. whatever may be the nature of the property and regardless of the country
wherein said property may be found.
The nationality principle has not always yielded favorable
results for Filipino citizens particularly those who are married What principle is embodied in Art. 16, first paragraph?
to foreigners.. This was the situation until the Family Code Principle of lex rei sitae-
sitae the law of the place where
took effect, specifically Art. 26, par. 2 of the Family Code.
Co the property is located.

Before, the situation would be, if a Filipina is married to a Previously, this principle applies only to real property and not
foreigner and the foreigner secures a divorce against the to personal property. Would you know why it does not apply
Filipina, the result would be, the foreigner can now marry to personal property?
another person, whereas the Filipina on the other hand Because previously under Roman Law, personality is
would still be considered
onsidered married and cannot remarry. deemed to be always with wit its owner because of its
nature (it can be carried around). So the theory is,
That’s why Art. 26, par. 2 of the Family Code was introduced wherever the owner went, so did the property. So it
to address this situation. will be governed by the nationality
nat or domicile of the
But even before Art. 26, par. 2 of the Family Code was
introduced, the SC in the case of VAN DORN V. ROMILLO, JR. But, now under article 16, 16 this does not apply
already made use of the nationality principle to protect the anymore, because se we now adhere with the principle
rights of the Filipino spouse. of lex rei sitae.

VAN DORN V. ROMILLO, JR. Art. 16 in itself provides for exception to this rule. What are
In the said case, Alice, a Filipino woman was married the exceptions?
to a certain Richard, a foreigner. Then the latter in case of:
divorced her, but after divorcing her, he followed
foll 1. intestate and testamentary successions, both
her back to Manila for the purpose of trying to with respect to the order of succession and to
recover his share supposedly in the conjugal assets. the amount of successional
su rights and
How did the SC resolve this without deviating on the 2. to the intrinsic validity of testamentary
nationality principle? provisions
The SC simply exploited the nationality
principle as against the foreigner
foreigner. Instead of they shall be regulated by the national law of the
looking at the case on the point of view of person whose succession is under consideration,
the Filipina, because if the SC will do that, whatever may be the nature of the property and
she is still considered married and hence regardless of the country wherein said property may
the husband can still claim shares in the be found.
conjugal partnership. So the Court shifted
its view and looked at the case from the
point of view of the husband.
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Let’s say, you are a citizen of Korea, you have properties in the matter, it decided to apply the Philippine law,
Philippines but you have been a resident of the US for all the instead of referring it back to the US. Because, if that
years preceding your death. What law shall govern the order will happen, there will be a situation of
to the succession? “international football.”
The law of Korea willill govern. We do not look at the
location of the properties and the residence of the Because of this, Helen’s legitime was bigger.
decedent.. What will be considered is your national
law. Art. 17. The
he forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
Do we always adhere to this principle?
Yes When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Ph
Philippines in a foreign country, the
When the law says we shall adhere to the national law of the solemnities established by Philippine laws shall be observed in their
decedent or the person whose succession is in question. What execution.
kind of law do we refer to?
We refer to the national law. This was the ruling of Prohibitive laws concerning persons, their acts or property, and those which
have, for their object, public order, public policy and good customs
c shall not
the court in the case of Christensen vs Christensen-
Christensen be rendered ineffective by laws or judgments promulgated, or by
Garcia where the court laid down the rule on renvoi determinations or conventions agreed upon in a foreign country.
* Article 17 provides the rules for extrinsic validity.
ASED ADOLFO AZNAR AN AND LUCY What is extrinsic validity?
valid of an instrument.
Facts: What is an example of extrinsic validity?
In the said case, Edward Christiansen has two In case of notarial wills and holographic wills which
daughters Lucy and Helen Christiansen. In the must be in writing.
disposition of his properties,ties, he bequeathed
majority of his property to Lucy and left only a legacy Suppose the will is executed abroad, what form shall be
to Helen. Helen question the disposition because of followed?
her belief that she was a compulsory heir and as a if the will was executed abroad, the law abroad must
compulsory heir she was entitled to more. She be complied with, in order for it to be valid applying
wanted to have shares equal to Lucy after all they the principle of lex loci celebrationis.
were both legitimate children.
In case of extrinsic validity marriage, it shall be
Issue: governed by the law of the place where the marriage
whether or not the Philippine Courts should apply is celebrated.
the law on compulsory succession.
Supposing that, for a time California,
Califor allowed same sex
Held: marriages. For instance, Pedro and Jose, both Filipinos, went
Since compulsory succession pertains to rights of to California and availed the marriage granted by the laws of
succession which under Art. 16 will be governed by California. They went back to the Philippines and they want to
the national law of the decedent,, the court had to they want to be address as Mr. and Mr. They went wen to the Civil
refer to the national law Mr. Christensen who is a Registrar to register their marriage contract but the civil
citizen of US but a resident of California. So there registrar refused to register it. Can they compel the registrar
appears to be a problem of whether or not to apply to register their marriage contract saying that their marriage
the national law or the internal law of California. The
Th is valid in California so it is valid here?
national law provides that the case should be No.
referred back to the place of domicile of the
decedent, the internal law on the other hand, does Since the law on marriage defines marriage as a
not provide for compulsory succession. contract between a man and woman this implies
that public policy dictates that marriages can only be
SC chose to apply the national law, and upon made between persons of different gender. So
accepting the referral to the Philippines of the
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therefore, the marriage between Pedro and Jose, Illustration: Let’s say Mr. Icaro was your boyfriend. He
although valid in California
alifornia cannot be given effect became your boyfriend when you were just first year because
here in the Philippines because otherwise it will he was said to be the best student and your you hidden agenda
render ineffective the definition of marriage in the was to used him (borrow
borrow notes from him).
him Afterwards, you
Family Code. realized that you can survive
urvive law school without his help. So
you decided to break up with him. But Mr. Icaro took it very
It is also for this reason that you can invoke Art. 17, badly. He suffered mental anguish, sleepless nights, moral
par. 3 in divorce obtained by Filipinos abroad. anxiety and not to mention besmirch reputation. Can he sue
Art. 18. In matters which are governed by the Code of Commerce and No. This is an instance of damnum absque injuria. As
special laws, their deficiency shall be supplied by the provisions of this Code. a person I am entitled to pursue my own happiness. I
am simply exercising my right and if in the process
CHAPTER 2 someone gets hurt, then that would not be a ground
HUMAN RELATIONS for any actionable injury. This is the general rule.

Why do we have this provision on Human Relations? While as a general rule: exercise
e of one’s right does not give
In order to regulate the relations
ons of citizens within rise to any actionable complaint even if such exercise causes
the society. To established stability and order within damage to another.
the society.
The exercise of one’s rights and performance of duties are
*Provisions on Human Relations are supposed to act as safety subject to certain limitations. As provided in Art. 19, NCC,
nets. It supposed to answer for those instances which may “Every person must,t, in the exercise of his rights and in the
have escaped the foresight of the persons who came up with performance of his duties, act with justice, give everyone his
the Civil Code because it is impossible for anyone, for any due, and observe honesty and good faith.
legislator or legislative body to predict everything
eve that may
happen in the future for the purpose of preparing the laws. How can an aggrieve party such as Mr. Icaro bring an action
for damages suffered on account the exercise of a right?
For instance, the law on libel in the RPC. Do you think ththe When will the provisions on Human Relations come into play?
framers of the RPC could have predicted that libel can be When can you have an actionable injury on the ground of
committed though the used of a machine, internet or text abuse of rights?
messaging? When a person exercise his rights with the sole
No, because that technology was not yet available at intention of causing damage to another.
that time. So with these general provisions at hand,
the gaps in the law may
ay still be addressed. *note: the key is he is that causing damage to
another must be the only intention.
General Rule: Damnum Absque Injuria
Exception: Abuse of Right Let’s say that Mr. Icaro is now a lawyer and Ms. Domingo is
just a law student and because of your position as a lawyer,
What is the concept of “abuse of right”? she looks up. You courted her until
un you were able to get her
Abuse of Right is committed when a person and then she gets pregnant. Now, she sues you for
exercises his rights or duty with the sole intention of disbarment because she got so angry with you when you
causing damage to another. abandoned her. And in bringing that suit for disbarment, she
intend to cause damage to you. Would that be an instance of
If I have a right and I exercised my right, would I be abuse?
answerable to anyone if be my exercise of my right they It is not an abuse of right. The filing
fili of the case
would be prejudiced? against Mr. Icaro was not intended solely to cause
No. damage to him. In addition of causing damage to
him, she also wants to seek a redress for her injuries
So exercise of one’s right do not give rise to any which he is entitled
ntitled to under the law. But if your sole
actionable complaint even if such exercise causes purpose is to cause damage then that would be an
damage to another. abuse of right.

9|P a g e

What can be an example of an abuse of right? Mr. Icaro Supposing you were promised of marriage by Ms. Domingo
planned to leave his house and he knows that Ms. Domingo is and then she breaks that promise, can you sue her for breach
studying for the bar every night,, yet before leaving his house, of promise to marry?
Mr. Icaro set the timer of his component at exactly 9pm, full No, because every person has the right to choose
cho his
blasts, to the extent that his neighbors, Ms. Domingo status in life.
included, can hear it. He was not at home, so what is the used
of playing the component for him? It is recognition of the law of that fact
f of his lack of stability in
None. the human emotion with regard to love and marriage. You
cannot be sued for damages for a changed of heart, because
So what would be his reason for doing this? Does he have the that is human nature.
right to play the component?
Yes. But in this instance, there is an abuse of right So what is actionable is not the breach of promise to marry
because the circumstances clearly indicate that his but the circumstances in which the promise was made, in
sole purpose for doing so is to irritate Ms. Domingo. which the promise was received and the circumstances born
of that promise.
Art. 19. Every person must, in the exercise of his rights and in the
performance off his duties, act with justice, give everyone his due, and
There is no provision in the law for breach of promise to
observe honesty and good faith.
marry. It is provided in jurisprudence.
* article 19 does not really provide for any remedy for the
aggrieve party. It simply sets the standard. So if you want to What are the instances when the breach of promise to marry
sue on the basis of Article 19, how can wee sue on the basis of is actionable (as provided in the jurisprudence)?
article 19? (1) if there is fraud or deceit, such breach of promise to
You can sue on the basis of Art. 20, 21 which states marry is actionable.
that: (2) when there’s actual damages
Art. 20. Every person who, contrary to law, wilfully or (3) When woman was forcibly Abducted and raped.
negligently causes damage to another, shall indemnify
the latter for the same. If there is fraud or deceit, such breach of promise
prom to marry is
Art. 21. Any person who wilfully
fully causes loss or injury to in here, the deceit or fraud is committed through the
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
promise of marriage. So it is not really the breach of
for the damage. the promise that you are suing upon but the deceit
employed against the aggrieved party. And the
How you do differentiate Article 20 from article 21? deceit here was in the form of a promise to marry.
Art 20 covers only those which are contrary to law
while Art 21 covers contrary to public policy, How did the SC in these cases justify the award of
morals..etc.. “NO contrary to law” damages?
The situation referred to in this case is an
Art 21 provides that the act to be committed is with instance where the woman is supposedly
malice or intent, while Art 20 does not provide deceived into having sex with the man because
whether the act to be committed is with malice or of the promise to marry. This is the basis, the
intent premise of the Supreme Court being that
Filipino women hold on to their chastity because
Which is broader in scope? by nature, they are supposedly proper, morally
upright, and they will not have sex with a man
Why is there Art 21? unless it is for the purpose of marriage. So much
Because it covers those act which is wrong but no so that, if they are promised of marriage and
law is passed sanctioning the act they believed that promise and they
surrendered themselves to the man and then
*the most common example of an action for damages later on the man breaks his promise, they can
relating to abuse of rights under Articles 19,20 and 21 would sue for damages.
a breach of promise to marry.
But this is where it gets tricky. It may be true
before, during the time of ourou grandmothers.
But if you would read the newspapers now, it
10|P a g e

may be hard to find a woman who can be trousseau, party dresses and other apparel for f the
deceived of having sexual relations with her important occasion were purchased. Dresses for the
boyfriend on account of the promise to marry. maid of honor and flower girl were prepared. A
matrimonial bed, with accessories was bought. And then
I know for a fact that there are woman in the with but two days before the wedding, Velez simply
legal profession who
ho abhors marriage, they do called off the wedding, went to Mindanao and was never
not want to get married, but they have heard from again.
boyfriends and they engage in sexual relations
with their boyfriends. Ruling:
This is not a case of mere breach of promise to marry.
So if the premise is that she only had sexual Mere breach of promise to marry is not an actionable
relations because of the promise to marry then wrong But to formally set the weddingand
weddin go through all
we may be hard put to find d cases of this nature the above-described
described preparation and publication, only to
in the recent times. According to the studies of walk out of it when the matrimony is about to be b
the DOH, especially with call center industry, the solemnized is quite different.
different This is palpably and
called casual sex seems to be the trend. So unjustifiably contrary to good customs for which
this rule might not be applicable these days. But defendant must be held answerable in damages in
just the same, for academic discussi
discussion you accordance with article 21 of the Civil Code.
ought to know that we need to make a
distinction between consensual sex,
sex where sex • in the case of WASSMER VS. VELEZ, there was no
is considered to be an ordinary consequence of deceit involve.
the relationship between the man and the
woman and the other kind of sex that was Art. 22. Every person who through an act of performance by another, or any
rattled out of the woman because of tthe deceit other means, acquires or comes into possession of something at the expense
of the latter without just or legal ground, shall return the same to him.
in the form of a promise to marry.
What is an action in rem verso?
If the sexual congress takes place again or is
It is an action for the recovery of what has been paid
repeated several times over even after it has
without just cause. It can only be availed of if there is
been made clear that there is no intention at all
no other remedy to enforce it based on contract,
on the part of the man to fulfill the promise to
contract, crime or quasi-delict.
marry, then the case se of the woman is
weakened. Because the subsequent incidents
It is akin to solution indebiti but in in rem verso, it is
between them can no longer be justified on the
not necessary that the payment be made by mistake.
promise of marriage. It has been transformed
So it could an act
ac that is knowingly committed, but
into a consensual act between two consenting
the thing is you do not have any legal justification to
receive the benefit.
Unjust enrichment – any moral, physical or material which is
capable of estimation to monetary value
atriz Wassmer, following their
Franciso Veles and Beatriz
Illustration: Let’s say that Ms. Guardiano approached Mr.
mutual promise of love, decided to get married and set
Icaro and told him “I want to buy your palay”. Mr. Icaro
September 4,1954 as the big day. Before the wedding,
agrees and then Ms. Guardiano tells Mr. Icaro, “I want
w you to
Veles left a note for his bride-to-be
be which said that the
deliver it directly to the store of Ms. Domingo”. So delivery is
weeding should be postponed because his mother
made to Ms. Domingo and Ms. Guardiano is present at the
opposes it. Thereafter, Vilez did not appear nor was he
time of delivery. Payment is made by Ms. Domingo to Ms.
heard from again. Wassmer sued Velez for damages.
Guardiano. However, after unloading all the sacks of palay
Velez contended that “there is no provision of the Civil
and placingng it in the possession of Ms. Domingo, Mr. Icaro
Code authorizing” an action for breach of promise to
now seeks payment, but Ms. Guardiano was no longer
marry. The records reveal however ,that they already
around. What will Mr. Icaro do? He goes to Ms. Domingo and
applied for marriage license, which was subsequently
tries to recover the amount from Ms. Domingo. But Ms.
issued. Their wedding date was already set, their
Domingo said “No, I already paid Ms. Guardiano,
Guard you cannot
invitations were already printed and distributed to
recover from me anymore.” So what does he tries to recover
relatives, friends and acquaintances. The bride-to-be’s
11|P a g e

the palay but Ms. Domingo also does not want to give the Art. 24. In all contractual, property or other relations, when one of the
parties is at a disadvantage on account of his moral dependence, ignorance,
palay prompting him to go to court. In the meantime, Ms.
indigence, mental weakness, tender age or other handicap, the courts must
Domingo was able to run after Ms. Guardiano and recover be vigilant for his protection.
what she hasas paid. So Ms. Domingo now has the money with
her, she also has the palay but for for some reason she does Art. 25. Thoughtless extravagance in expenses for pleasure or display during
not want to give back the palay to Mr. Icaro. Mr. Icaro goes to a period of acute public want or emergency may be stopped by order of the
court and sues for the return of the sacks of palay. Will Mr. courts at the instance of any government or private charitable institution.
Icaro succeeds?
Yes, hee will succeed under Article 22, NCC. This is not Art. 26. Every person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons. The following and similar acts,
a case of solutio indebiti because there is no though they may not constitute a criminal offense, shall produce a cause of
mistake. action for damages, prevention and other relief:

Why will the action succeed? (1) Prying into the privacy of another's residence:
Because Ms. Domingo does not have any legal (2) Meddling with or disturbing the private life or family
justification over the palay, especially since she was relations of another;
(3) Intriguing to cause another to be alienated
alien from his friends;
able to recover to money from Ms. Guardiano. (4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
Does Mr. Icaro have any other recourse in law? Can there be other personal condition.
recourse under contracts?
None, there is no contract to speak of. Art. 27. Any person suffering material or moral loss because a public servant
or employee refuses or neglects, without just cause, to perform his official
duty may file an action for damages and other relief against he latter,
Can there be a recourse under quasi-contract?
contract? without prejudice to any disciplinary administrative action that may be
None, because this does not amount
amounts to solutio taken.
Art. 28. Unfair competition in agricultural, commercial or industrial
Is it quasi-delict? enterprises or in labor through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or highhanded method shall give
No, no negligence involved. rise to a right of action by the person who thereby suffers damage.

Is it delict?
rticles 24 to 28 are self explanatory
No, no crime was committed because under the
circumstances apparently Ms. Domingo was also a
Art. 29. When the accused in a criminal prosecution is acquitted on the
victim of Ms. Guardiano. ground that his guilt has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may be instituted. Such
So your only recourse is under the law, and that is Article 22. action requires only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
* the provision
rovision of article 22 presupposes that you have no
other recourse under the law.
If in a criminal case the judgment of acquitta
acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to that
Art. 23. Even when an act or event causing damage to effect, it may be inferred from the text of the decision whether or not the
another's property was not due to the fault or negligence of acquittal is due to that ground.

the defendant, the latter shall be liable for indemnity if

through the act or event he was benefited. What is the effect of acquittal on civil liability?
to fully understand article 29 you have to bear in
Illustration: Ms. Guardiano own three cows, flood came and mind the principle in criminal law which states that
they end up in the estate of Mr. Icaro destroying all of his “everyone criminally liable is also civilly liable”. So in
crops and his plants.. Ms. Guardiano will be liable. that sense, the civil liability in Article 29 must refer
to civil liability arising from the same act constituting
the offense prosecuted.
How was Ms. Guardiano benefited from the event?
They cows did not die from the floods. She was
If the civil liability arises from some other source
benefited because the cows were spared.
such as for instance a contract or a quasi-
quasi delict then
the acquittal in the criminal case shall have no effect
on the civil liability arising from other sources.

12|P a g e

Acquittal can either be of two kinds: get from

rom the court to make sure that this not just your
(1) Mere acquittal because the guilt is not proven harassment on the part of the aggrieved party?
beyond reasonable doubt or If a separate civil action will be instituted, the
(2) Because the accused was found to have not defendant or accused can asked the court to order
committed the crime or the crime was not the complainant to post a bond. The bond is
committed at all supposed to answer
nswer for the damages to be suffered
by the accused should the constitution of the civil
her be total exoneration because
*in other words it can either action proved to be malicious.
the accused was found to have not committed the crime or
the crime was not committed at all, or acquittal because of *you must correlate article 29 with article 35. The rules are
reasonable doubt. similar in both cases only that in article 35,
35 the situation
speaks of an instance where the criminal action has not been
What does acquittal based on reasonable doubt imply? filed by the prosecutor.. Because before an action be tried in
Means that the court is not entirely
ly discounting the court we have to go to the prosecutor who shall determine
possibility that the accused comm
committed the crime whether or not there’s pro
probable cause for acquittal. Now, if
only the evidence of the prosecution
ecution was found to on the fiscal level you already
ready loss,
los you still have recourse,
be wanting you can also still file a civil action to enforce civil liability
arising from the delict complained of, of in which case mere
*Article 29 says that if the acquittal is based on reasonable preponderance of evidence is required. The accused may also
doubt, the aggrieved party may still recover in a civil action. asked the court upon motion to compel
comp the complainant to
So when the law says “civil action” must this be one which has post a bond as protection against malicious prosecution.
been instituted separately or can it be one which is impliedly
instituted with the criminal action? What does “implied institution of civil action with the criminal
So the judgment can actually go this way- way “the action” mean?
accused is acquitted for failure of the prose
prosecution to The rule is that whenever you file a criminal action,
prove his guilt beyond reasonable doubt but bu he is the civil action is impliedly instituted withwi the
adjudged civilly liable” and that will not be criminal action.
acquitting him and at the same time
making him civilly liable for the
he damages caused by Again, let us be clear with regard to the definition of the civil
his action. action impliedly instituted in this case. Take note of article 31
which makes it clear to us that what is impliedly instituted in
Why? the criminal action is only that action
ac for civil liability arising
Because the evidence presented by the from delict or the act constituting the offense. So any other
prosecution may not have met the standard civil action or civil liability arising from other sources although
for criminal conviction but it may have pertaining to the same act will not be impliedly instituted
already satisfied the mere preponderance with the criminal action, will not no be affected by the institution
of evidence required in civil action. of the criminal action and that they will not be suspended.

* so Article 29 may be applied even if there is no civil The point is, an act which is negligent may give rise to two
action that is separately instituted.
ituted. If the civil action possible causes of action. If the negligence is so gross that it is
has been impliedly instituted then the judge would already reckless imprudence, then we have cause of action
be well within his power to adjudged civil liability for criminal prosecution or delict. At the same, you can still
even though he may be acquitting the accused on sue for a quasi-delict
delict or mere negligence.
the ground of reasonable doubt.
Let us say you sue for the criminal case, what is impliedly
Supposing that the civil action or civil a aspect was not instituted in the criminal case is the civil action-
action your right to
impliedly instituted so that after the acquittal of the accused
accused, recover damages arising from the offense, or arising from the
the private complainant is now going to institute a separate delict. But you still have a cause of action for damages arising
civil action which can be done under art. 29, but ___ in the from the quasi-delict
delict and then you file this action separately
place of the accused? The criminal case alone took seven seve from the criminal action which can proceed independently
years to be completed and then here you are again staring at because
use this action for quasi-delict
quasi does not constitute civil
the prospect of being involved in the litigation for the same liability arising from the act complained of as an offense.
act although of different nature (this time civil case
case) for the
next seven to ten years of your life. What protection can you
13|P a g e

Even if both actions are available to you as an aggrieved independent civil action for fraud, defamation and
party, you can only recover once, either from judgment of physical injuries.
civil liability arising
ing from delict or from judgment of civil
liability arising from a quasi-delict. *physical injuries should be taken to include death.

*So it is possible that one act may give you two causes of Art. 30. When a separate te civil action is brought to demand civil liability
action, but the only civil cause of action that will be impliedly arising from a criminal offense, and no criminal proceedings are instituted
during the pendency of the civil case, a preponderance of evidence shall
instituted to the criminal action will be the civil
c action arising likewise be sufficient to prove the act complained of.
from the commission of the offense.
Art. 31. When the civil action is based on an obligation not arising from the
Will there be any exemption to this rule of implied institution? act or omission complained of as a felony, such civil action may proceed
(1) if the aggrieved party does not want to recover independently of the criminal proceedings and regardless of the result of the
civilly and he waive, his only interest is to see to it latter.
that the offender is penalized for what he has done.
Art. 32. Any publicc officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
(2) If he reserves the right to institute it separately. impairs any of the following rights and liberties of another person shall be
If you have no confidence in the public liable to the latter for damages:
prosecutor, you may have your own private
prosecutor to litigate the civil action, (1) Freedom of religion;
provided you cannot institute your civil (2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical
action until your
ur criminal action has been
completed (4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(3) If the civill action has been instituted prior to the (6) The right against deprivation of property without due
process of law;
criminal action.
(7) The right to a just compensation when private property is
because this prior institution is much more taken for public use;
than mere reservation (you did not make a (8) The right to the equal protection of the laws;
reservation, you already instituted the (9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
separate action)
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
*independent civil action cannot be an exception to the (12) The right to become a member of associations or societies
implied institution of civil action because it is not covered at for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition
all. It is a totally different species.
the government for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
Aside from actions arising from quasi-delicts,
delicts, can you name (15) The right of the accused against excessive bail;
other independent civil action? (16) The right of the accused to be heard by himself and counsel,
to be informed of the nature and cause of the accusation
Articles 32, 33, 34, 21, 76.
against him, to have a speedy anand public trial, to meet the
witnesses face to face, and to have compulsory process to
What are those cases specified in article 33 which give rise to secure the attendance of witness in his behalf;
independent civil action? (17) Freedom from being compelled to be a witness against one's
self, or from being forced to confess guilt, or from being
(1) defamation
ced by a promise of immunity or reward to make such
(2) fraud confession, except when the person confessing becomes a
(3) physical injuries State witness;
(18) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
*what sets article 33 apart from the other independent civil
accordance with a statute which
w has not been judicially
actions would be the fact that civil liability
ility here are all based declared unconstitutional; and
on criminal acts. (19) Freedom of access to the courts.

How will this affect the “implied institution of civil action”? In any of the cases referred to in this article, whether or not the defendant's
How do we prevent it from being impliedly instituted inst act or omission constitutes a criminal offense, the aggrieved party has a right
to commence an entirely separate and distinct civil action for damages, and
considering that they clearly arise from the commission of the for other relief. Such civil action shall proceed independently of any criminal
offense? Do we also need to make a reservation? prosecution (if the latter be instituted), and mat be proved by a
Despite its being an independent nature we still preponderance of evidence.
need to make a reservation when it comes to
14|P a g e

The indemnity
ity shall include moral damages. Exemplary damages may also be *so there can be no issue as to the existence of
prejudicial question if the pending actions are
criminal and the other, administrative or both are
The responsibility herein set forth is not demandable from a judge unless his
act or omission constitutes a violation of the Penal Code or other penal
criminal cases.
*prejudicial question may exist when one of the
Art. 33. In cases of defamation, fraud, and physical injuries a civil action for pending actions is civil and the other, criminal.
damages, entirely separate and distinct from the criminal action, may be 3. The issue must be as regards the civil case.
brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of
* the issue which is prejudicial to the criminal case is
in the civil case.
Art. 34. When a member of a city or municipal police force refuses or fails to
render aid or protection to any person in case of danger to life or property, * And that issue will determine whether or not the
such peace officer shall be primarily liable for damages, and the th city or accused is guilty of the crime.
municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.
What is the effect of the existence of a prejudicial question?
Art. 35. When a person, claiming to o be injured by a criminal offense, charges it suspends the criminal proceedings.
another with the same, for which no independent civil action is granted in
this Code or any special law, but the justice of the peace finds no reasonable * Usually, the rule is, it is the civil prosecution which is
grounds to believe that a crime has been committed, or the prosecuting
suspended if there is a related
elated criminal action. However, if
attorney refuses or fails to institute criminal proceedings, the complaint may
bring a civil action for damages against the alleged offender. Such civil action there is a prejudicial question then it is the criminal action
may be supported by a preponderance of evidence. Upon the defendant's which is suspended until the prejudicial issue is resolved.
motion, the court may require the plaintiff to file a bond to indemnify the
defendant in case the complaint should be found to be malicious.
You were married to Mr. Icaro, subsequently he also married
If during the pendency of the civil action, an information should be presented
by the prosecuting attorney, the civil action shallhall be suspended until the
Ms. Guardiano. You instituted
stituted a case against him for bigamy.
termination of the criminal proceedings. During the pendency of the bigamy case, he questioned his
marriage to Ms. Guardiano and among other grounds that he
Art. 36. Pre-judicial
judicial questions which must be decided before any criminal raised, he also said that his consent was vitiated in that he
prosecution may be instituted or may proceed, shall be governed by rules of was only forced to marry Ms. Guardiano.
Guardiano Can he asked for the
court which the Supreme Court shall promulgate
romulgate and which shall not be in suspension of the criminal case on the ground that there is a
conflict with the provisions of this Code.
prejudicial question present in the civil case?
Yes.Because if it can proven by Mr. Icaro that his
What the concept of prejudicial question?
consent was truly vitiated in contracting the
One which arises in a case, the resolution of which
subsequent marriage to Ms. Guardiano then he
question is logical antecedent of the issued involved
could not have committed the crime of bigamy
in said case.
because he did not contract the subsequent
It is one based
ased on a fact distinct and separate from marriage intentionally. He was forced into it then
the crime
rime but so intimately connected with it that it there can be no criminal intent and in the absence of
determines the guilt or innocence of the accused, criminal intent would defeat the charge of bigamy
and for it to suspend the criminal action, it must that’s why it is a prejudicial question.
appear not only that said case involves facts
intimately related
lated to those upon which the criminal
prosecution would be based but also that in the
resolution of the issue or issues raised in the civil
case, the guilt or innocence of the accused would
necessary be determined.

What are the requisites for prejudicial question to exists?

1. There must two actions pending;
2. The other action is civil while the other is criminal

15|P a g e

BOOK I Everyone is minor at some point in their life. But even after
PERSONS passing minority, it is still possible that you do not have full
civil capacity because your capacity to act may still be limited
Title I. - CIVIL PERSONALITY or restricted.

CHAPTER 1 Natural person vs Juridical Person

• The acquisition of juridical capacity and
Art. 37. Juridical capacity, which is the fitness to be the subject of legal capacity to act is not simultaneous
relations, is inherent in every natural
atural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired • Juridical
uridical capacity is inherent
and may be lost.
Juridical Person
What is juridical capacity? • Simultaneous acquisition of juridical
It is the fitness to be the subject of legal relations. It capacity and capacity to act
is equivalent to the term personality, it is inherent in • Juridical capacity is not inherent
every human being and it is only lost upon death.
Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute,
To be the subject of legal relations means: prodigality and civil interdiction
ion are mere restrictions on capacity to act, and
It gives the person a standing in society do not exempt the incapacitated person from certain obligations, as when
the latter arise from his acts or from property relations, such as easements.

Is juridical capacity the same as capacity to act?

Art. 39. The following circumstances, among others, mo modify or limit capacity
No, Capacity to act means the power to do acts with to act: age, insanity, imbecility, the state of being a deaf-mute,
deaf penalty,
legal effect. It is not inherent, unlike judicial prodigality, family relations, alienage, absence, insolvency and trusteeship.
capacity. It cannot be acquired by simply being born The consequences of these circumstances are governed in this Code, other
codes, the Rules of Court, and in special laws. Capacity to act is not limited on
as it is acquired after birth.
account of religious belief or political opinion.

How is “capacity to act” acquired? A married woman, twenty-one

one years of age or over, is qualified for all acts of
Acquired when the person attain the age of majority civil life, except in cases specified by law.
which is 18 years old by virtue of R.A. 6809.
Whatt are the limitations of one’s capacity to act?
R.A. 6809. (1) Minority
Reduces the age of majority (2) civil interdiction
(3) state of being a deaf mute (physical disability)
Deleted all other ways of emancipation (4) state of prodigality
(5) Family relations
*when you have personality and capacity to act then you (6) Imbecility
have full civil capacity- that means you are not just capable (7) Insanity
of being the subject of juridical
ical relations but you can even be
someone who can act with full legal effect.
For instance, a minor. A minor has personality by virtue of the it is a defense against the enforceability of contracts.
fact that he was born but the minor cannot act with legal It can
an be a ground for annulment, it can also be
effect because he is still a minor. ground to make the contract unenforceable if both
parties happen to be incapacitated.
Can he be an owner of a property?
Yes, because that is simply a passive role but if he With regard to the right of the minor to invoke his
has to enforced his rights as owner, he will have to minority, in the ruling in the case of Mercado, it was
do so through duly appointed representatives or held that misrepresentation
misrepr on the part of the minor
guardians. He cannot sell his property without the regarding his age will prevent him from invoking
intervention of his guardians. minority as a defense. This was later on qualified in
the case of ____ while held that this rule on
Iff you have personality, it is possible that you may or may not misrepresentation should only be applicable to
have full capacity to act. The stumbling block is minority active misrepresentation.
misrepresentation So, in the absence of
because it is something that everyone goes through. active misrepresentation, the minor cannot be
16|P a g e

quoted if he is mistaken for an adult, because the

law does not require him to disclose his true age. It When do we apply the qualification?
is imperative on the other contracting party to check For rights that requires him to be born
the capacity of the person
on he is dealing with.
A conceived child has the right of support even if not born yet
Lack of capacity alone does not affect the contract.
There must be benefit on the part of the minor and How is personality acquired through birth?
active misrepresentation A conceived child is deemed born for every purpose
that is beneficial to him provided that he be born
later under the conditions provided in article 41.
Civil interdiction
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time
State of being a deaf mute (physical disability) it is completely delivered from the mother's womb. However, if the fetus had
an intra-uterine
uterine life of less than seven months, it is not deemed born if it dies
within twenty-four
four hours after its complete
comple delivery from the maternal
State of prodigality womb.

but it is not
ot the prodigality itself which restricts your
What are the conditions provided under article 41?
capacity to act; rather it is your being declared as
He must be alive at the time of his delivery from his
prodigal or spendthrift and being placed under
mother’s womb. But if he has an intrauterine life of
less than 7 months then it is further required that he
must nott die within 24 after delivery. If he dies
Family relations within 24 hours then he is deemed to have never
Party relations can also restrict your capacity to act been born at all.
because if you are related
lated to another person within the
th Why 7 months?
4 civil degree then you cannot marry one another; or if
you are husband and wife you cannot make donations to The fetus is considered to be viable meaning, greater
one another. You are prohibited because of your family chance of survival
Example where rights are given or recognized in favor of tthe
conceived child:
Imbecility In case of right of representation. Let’s say that the
only descendant of the heir is still in the womb and
Insanity when the parent of that heir dies, he renounces his
Imbecile or insane persons
rsons cannot act without the inheritance. Would there be a right of representation
intervention of your guardians. in favor of the conceived
concei child? The condition is that
the representative would be alive at the time of the
Do these extinguished ones capacity to act? death of the decedent. Can we consider that child as
No. it is still there but it is limited. being born for purposes the right to inherit?
Yes,, he has the right to succeed.
Limited capacity to act does not exempt absolute liability. He
may not be liable personally but his properti
properties Supposing we have a child with an intrauterine
in life of less
than 7 months, then after his complete delivery from his
CHAPTER 2 mother’s womb, someone killed him on purpose to prevent
NATURAL PERSONS him from acquiring inheritance. Will that prevent personality
from being given to the child?
Art. 40. Birth determines personality; but the conceived child shall be Yes. We do not look into thet circumstances of his
considered born for all purposes that are favorable to it, provided it be born death. Hence it does not matter if the death is
later with the conditions specified in the following article. intentional or accidental.

General Rule: Birth determines personality Why?

The law does not make any distinction as to the
Exception: conceived child; but only for a limited purpose. death of the child.
The qualification is that he/she be born later

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Art. 42. Civil personality is extinguished by death. Art. 47. Upon the dissolution of corporations, institutions and other entities
for public interest or purpose mentioned in No. 2 of Article 44, their property
and other assets shall be disposed of in pursuance of law or the charter
The effect of death upon the rights and obligations of the deceased is
creating them. If nothing has been specified on this point, the property and
determined by law, by contract and by will.
other assets shall be applied to similar purposes for the benefit of the region,
province, city or municipality which during the existence of the institution
Art. 43. If there is a doubt, as between two or more persons who are called derived the
he principal benefits from the same.
to succeed each other, as to which of them died first, whoever alleges the
death of one priorr 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. CIVREV_4A3

CHAPTER 3 What is marriage?

JURIDICAL PERSONS Marriage is a special contract of permanent union
between a man and a woman entered into in
Aside from natural persons, would there be other kinds of accordance with law for the establishment of
persons under the law? conjugal and family life. It is the foundation of the
Yes. Artificial or juridical persons family and an inviolable social institution whose
nature, consequences, and incidents are governed
They are (1) corporations, (2) partnerships, (3) by law and not subject to stipulation, except that
associations which powers are limited to those marriage settlements may fix the property relations
provided by law. during the marriage within the limits provided by
this Code. (Art.1 FC)
Do juridical persons also have juridical personality and
capacity to act? So it’s a contract, but the law says it’s a special contract.
Yes What makes it so special?
It is the foundation of the family and an inviolable
How do they acquire this considering that they are not human social institution. This is what makes marriage
beings? transgress the mere status of an ordinary contract,
They acquire capacity to act thru the issuance of the and not the gender of the contracting parties.
appropriate license and this license is issued
generally by the SEC. If you want to point out the differences between a
special contracts (marriage) from an ordinary
How about municipal corporations? contract then proceed to state that in the contract of
In case of municipal corporations,
corporation those local marriage only members of the opposite sex can
government units contract the same.

Art. 44. The following are juridical persons: Can you rescind a marriage? Can you file an action for
(1) The State and its political subdivisions; rescission on the ground that you already incurred ¼ losses?
(2) Other corporations, institutions and entities for public interest or No. It cannot be the subject of rescission.
purpose, created by law; their personality begins as so
soon as they
have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or Can you make marriage subject to term or period? I’m sure
purpose to which the law grants a juridical personality, separate you’ve heard d of proposals to make marriages subject to a
and distinct from that of each shareholder, partner or member. period or an expiration term, after the lapse of which, the
parties shall be freed from the marital bonds. They are no
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article
are governed by the laws creating or recognizing them.
longer married. According to the people who are proposing,
this would save the parties from
fr the expense of asking for an
Private corporations are regulated by laws of general application on the annulment or a judicial declaration of nullity.
subject. No, because of the following reasons:
• The law itself says it is a special contract of
Partnerships and associations for private interest
st or purpose are governed by “permanent” union.
the provisions of this Code concerning partnerships. • The parties are not allowed to stipulate on
the nature, consequences, and a incidents of
Art. 46. Juridical persons may acquire and possess property of all kinds, as marriage.
well as incur obligations and bring civil or criminal actions, in conformity with
the laws and regulations of their organization.

18|P a g e

These two reasons are based on the definition of

marriage itself. Let’s tackle the requisites one by one. Who are capacitated to
What is the purpose of marriage? Art. 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles
For the establishment of conjugal and family life.
37 and 38, may contract marriage.

Is this the same objective we had under the New Civil Code So what are the factors to consider in determining capacity?
• Gender (the parties must be male and female)
No, before,, the purpose of marriage is procreation,
• Age (at least 18)
to have children. But the law has been amended,
• Absence or presence of legal impediment to marry
which include the establishment of conjugal life,
(must not be under any of the impediments
because there are people who would like to get
mentioned in Arts. 37 and 38)
married but not have children, and that would not
lessen the validityy of the marriage as permanent
But if you are of the age of 18 to 21, the law still requires?
Parental consent
Is the prohibition against the stipulation on the nature, Art. 14. In case either or both of the contracting parties, not
consequences, and incidents of marriage absolute? having been emancipated by a previous marriage, are between
No, because the exception is that the parties are the ages of eighteen and twenty
twenty-one, they shall, in addition to the
allowed to stipulate, but only as regard to what requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother,
property relations
elations would govern the parties. This is surviving parent or guardian, or persons having legal charge of
the only aspect of marriage that can be the subject them, in the order mentioned. Such S consent shall be manifested
of stipulation. in writing by the interested party, who personally appears before
the proper local civil registrar, or in the form of an affidavit made
in the presence of two witnesses and attested before any official
What was that mean (property relation)? authorized by law to administera oaths. The personal
The property regime that will govern in their manifestation shall be recorded in both applications for marriage
marriage license, and the affidavit, if one is executed instead, shall be
attached to said applications.
If you had a falling out with your husband, and you both
agreed to execute an agreement that each of you will live Does the requirement of parental consent for parties of the
his/her own life, would that agreement be valid? age 18 to 21 take anything from the fact that under ordinary
No. It is null and void. It is not valid because it is circumstances, such person is already fully capacitated?
contrary to law, particularly Art. 1, FC. The marriage where either party of the age 18 to 21
who has not obtained parental consent is not void,
What are the requisites for a valid marriage?
riage? but only voidable.
They are divided into two. The essential requisites
and the formal requisites. That’s my point. The absence of the parental consent
apparently has an impact on the validity of the marriage.
What are the essential requisites? However, under ordinary cases, in ordinary contracts, if a
Art. 2. No marriage shall be valid, unless these essential requisites are person is aged 18 and above, he is already considered fully
present: capacitated. He may already enter into contracts
co w/o
(1) Legal capacity of the contracting parties who must be a male parental consent. Will this requirement of parental consent
and a female; and
(2) Consent freely given in the presence of the solemnizing for marriages contracted by parties aged 18 to 21 take
officer. anything away from the fact that these persons are fully
capacitated under the law? Does it make him any less
What are the formal requisites? capacitated?
Art. 3. The formal requisites of marriage are: No, it does not make him any less capacitated.
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
cas provided
for in Chapter 2 of this Title; and So why does he need parental consent then if he is
(3) A marriage ceremony which takes place with the contracting marriage?
appearance of the contracting parties before the This requirement has something to do with the fact
solemnizing officer and their personal declaration that that when FC was enacted, 21 was still the age was
they take each other as husband and wife in the
presencee of not less than two witnesses of legal age. majority, and 18 was the age for marriage,
marr so that
the age for marriage was lower than the age for
19|P a g e

majority. So this is in recognition that at the age of or guardian refuse to give any advice, this fact shall
18 up to below 21, that person is not really yet fully be stated in the sworn statement. (Art.15,FC)
Remember when you get married, you are married every day,
However, the law is not stagnant. It was modified, as you all every minute, every second, every hour, of your lives. “After
know, with the enactment of RA 6809, which lowered the age a year, kapag nainis ka sa asawa mo,”
mo, you’ll still be married to
of majority from 21 to 18. Following the logic that we used a him. That is the consequence of marriage. “Matakot kayo sa
while ago, that the requirement of parental consent is in word na permanent. Talagang permanent yan!” yan! Plus the fact
recognition of the incapacity of the individual to make that a Filipino cannot obtain a divorce wherever he goes. The
lifetime decision, we may now say that this no longer holds implication is … there
here is no escaping your marriage.
true, because under RA 6809, a person of the age 18 is now
considered to be fully capacitated. “Before,
Before, 21 pa yung That is why parental consent is required, in the hope that the
majority.” When parental consent is required for marriages parents would be able to talk to their children about the
involving person at the age of 18 to below 21, that is consequences of marriage.
understandable, because at that time, below 21 is still a
minor. However, the law has been changed, the age of Purpose of Parental consent
majority has been lowered to 18. How will this impact or To make the consent perfect, lack of it may be
affect the requirement of parental consent under FC? Can we considered a vitiation of consent
now say that the requirement may be dispensed with?
No. Parental consent still cannot be dispensed with. Attainment
ment of the required minimum age for marriage should
be reckoned on the date of marriage
[The one reciting invokes tradition among Filipino What are the possible impediments to marriage?
families and respect for parents.] • Art. 37 (incestuous marriages considered void)
• Art. 38 (void marriages by reason of public policy).
If we are going to argue along the lines of tradition or
customs, that it’s’s traditional for Filipinos to respect their The impediments refer
fer to the relationship of the contracting
elders, so that if we are going to enter into the contract of parties
marriage, we have to get parental consent, how come we
don’t apply the same tradition to ordinary 18 na, bakit hindi Art. 37. Marriages between the following are incestuous and void from the
ko kailangan ng parental consent?”contracts?
contracts? “Bakit kung beginning, whether relationship between the parties be legitimate or
bibili kunwari ako ng taho at ako’y (1) Between ascendants and descendants of any degr
degree; and
Because it’s not really just the tradition or customs. (2) Between brothers and sisters, whether of the full or half blood.
It goes to the nature of the contract that one is
entering into when he contracts marriage. Art. 38. The following marriages shall be void from the beginning for reasons
of public policy:
(1) Between collateral blood relatives whether legitimate or
And what contract is that? illegitimate, up to the fourth
fou civil degree;
A contact of permanent
ermanent union. And the intention of (2) Between step-parents
parents and step
the law for the parties to be guided by their parents (3) Between parents-in-law law and children
(4) Between the adopting parent and the adopted child;
can be seen from the requirement of parental advice (5) Between the surviving spouse of the adopting parent and the
for parties above 21 to 25. adopted child;
(6) Between the surviving spouses of the adopted child and the
Any contracting party between the age of twenty-
twenty adopter;
(7) Between an adopted child and a legitimate child of the adopter;
one and twenty-five
five shall be oblige
obliged to ask their (8) Between adopted children of the same adopter; and
parents or guardian for advice upon the intended (9) Between parties where one, with the intention to marry the
marriage. If they do not obtain such advice, or if it be other, killed that other person's spouse,
sp or his or her own spouse.
unfavorable, the marriage license shall not be issued
till after three months following the completion of When do you have a sister or a brother of the half-blood?
the publication of the application
ation therefor. A sworn There is a half-blood
blood relationship when the siblings
statement by the contracting parties to the effect share only one common parent, either the father or
that such advice has been sought, together with the the mother.
written advice given, if any, shall be attached to the
application for marriage license. Should the parents Full blood means that they have the same set of
20|P a g e

Art. 38(9) states that marriages between parties where one,

Art. 38(7) states that the marriage between an adopted child with the intention to marry the other, killed that other
and a legitimate child of the adopter shall be void. person’s spouse or his or her own spouse, shall be void.
Remember, the child of the adopter may be legitimate or The law says with the intention to
t marry “the other”, and not
illegitimate. The law speaks only of the legitimate children of just “another”. It cannot be just any other person.
the adopter. What about step-brother
brother and step-sister?
They can marry. They are not among those
Art. 38(5) states that the marriage between the surviving prohibited to marry each other.
spouse of the adopting parent and the adopted child shall be
void. The reverse is true. Under Art. 38(6), the marriage Has this always been the case? Has this always been the
between the surviving spouse of the adopted child and the rule?
adopter shall be void. No. Under old rule, under the NCC, step-brother
step and
sister cannot marry.
If you notice, all of these impediments under Art. 38 are
based on the relationship of the parties. So if the marriage between a step-brother
step and a step-sister
was contracted in 1978, what happens to the marriage since
Art. 38(1) states that marriages between collateral blood the same is now allowed under the present law?
relations, whether legitimate or illegitimate, up to the 4th civil It iss still void, because marriages are governed by the
degree, shall be void.. The law says “up to”, not “within”, the law at the time they were contracted.
4 civil degree.
Adopted parents and children, step parents and step children,
Who is your relative of the 4 civil degree? even though not blood relatives are prohibited to marry
My 1 cousin. because
Their relationship approximates as parent
pare and child
And your 2nd cousin is your? or brothers or sisters
6 degree relative.
The consent required under Art. 2(2) is the consent by?
Who is your 2 degree cousin? Consent by the parties, and in some cases, when the
Child of my mother’s cousin. party is of age 18 to 21, consent of the parents.

Illustration What is the characteristic of the consent to be given?

GP It must
st be freely given.

D A What does that mean? (freely given)

↓ ↓ There should be no vice of consent. There should be
C COUSIN no fraud, force, intimidation and undue influence.
↓ ↓
C1 C2 What if the party was suffering from doubts? What if the
contracting party doesn’t really want
wan to get married? He was
What would be the relationship between C1 and C2? crying throughout the ceremony. He was at a crisis in his life.
They are 2 cousins. At the very last minute he was not sure whether he wanted to
get married. He feels like this marriage is wrong. What kind
C and COUSIN are? of consent is required? You said it must
mus be freely given. In
1 cousins. this case, from the looks of it, it was reluctantly given. If you
see reluctance on the part of the contracting party, would
that negate consent?
So the prohibition against marriage will be up to? No.
What is the essence of vitiated consent?
What about C1 and C2? It is tantamount to absence of consent, because your
They can marry, because their
ir relationship is beyond consent is supplanted by that person who is
the 4 civil degree. committing the vices of consent against you.

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If there is mere reluctance, that means that there is The law says they must be “incumbent” members. What does
still consent, and what is more, it is your consent. It this mean?
may be against your better judgment, your They must be in active service in the judiciary.
principles, but the fact is ... you agreed, you
consented, and the law will not come to your aid. Are there any limitations in their authority to solemnize
marriage? Where may they exercise their authority?
How is consent manifested? Within the court’s jurisdiction. However, when we
The contracting parties appear before the speak of justices of SC, CA, CTA, their jurisdiction
solemnizing officer and personally declare that they would be the entire Philippines, or national.
take each other as husband and wife.
The restriction would become pertinent when we
Are there any specific forms? Are there any magic words? speak of the authority of the trial courts, because
No. their authority would be limited to their territorial
jurisdiction. Thus, a QC RTC judge can only
What if the parties did not say “I do”? Because some people solemnize marriages in QC.
would rather say their own vows, and nowhere in these
kilometric statements will you find “I do”. What if there was a written request from the contracting
So long as the essence of the statement, or even the parties for the marriage
iage to be celebrated
ce elsewhere this is
acts of the parties will indicate that they are allowed. But they
hey want a Makati judge to solemnize in Pasig
consenting to the marriage. wouldthe written request the Makati Judge to solemnize
marriage in Pasig?
Who is authorized to solemnize marriage? No.
Those enumerated under Art. 7, FC, and Mayors.
Art. 8. The marriage shall be solemnized publicly in the chambers of the
Art. 7. Marriage may be solemnized by: judge or in open court, in the church, chapel or temple, or in the office the
(1) Any incumbent member of the he judiciary within the court's consul-general, consul or vice-consul,
consul, as the case may be, and not elsewhere,
jurisdiction; except in cases of marriages contracted on the point of death or in remote
(2) Any priest, rabbi, imam, or minister of any church or religious sect places in accordance with Article 29 of thist Code, or where both of the
duly authorized by his church or religious sect and registered with parties request the solemnizing officer in writing in which case the marriage
the civil registrar general, acting within the limits of the written may be solemnized at a house or place designated by them in a sworn
hority granted by his church or religious sect and provided that statement to that effect.
at least one of the contracting parties belongs to the solemnizing
officer's church or religious sect; The right of the parties to request for the solemnization
solemniz of
(3) Any ship captain or airplane chief only in the case mentioned in
the marriage in places other than those specified in Art. 8 is
Article 31;
Any military
ary commander of a unit to which a chaplain is assigned, limited by the requirement that the solemnizing officer, the
in the absence of the latter, during a military operation, likewise judge here, can only solemnizing marriages within his
only in the cases mentioned in Article 32; territorial jurisdiction. He may allowed to solemnize marriage
(4) Any consul-general, consul or vice-consul
consul in the case provided in
in different
ferent place but it must be within his territorial
Article 10.
Mayors are
re not authorized to solemnize marriages
marri under the
FC. Where did they get their authority? What happens if the judge solemnizes marriage outside his
Under the Local Government Code (LGC) jurisdiction?
The marriage would be considered void. In the
So from the time of the effectivity of FC on Aug. 3, 1988 up to example, beyond Makati, the judge no longer has
the time of the effectivity of LGC on Jan. 1, 1992, mayors do authority to solemnize marriage. There is now
not have the authority to solemnize marriages. absence of authority, which will make the marriage
null and void. This is absence of a formal
Take note of the gap between Aug 1988 and Jan 1992.
1992 requirement.

(Mayor’s authority are being exploited for political purposes) Unfortunately, there are pronouncements of SC that the
celebration of marriages by judges outside of their territorial
Who are these incumbent members of the judiciary jurisdiction
sdiction is a mere irregularity that does not affect the
authorized to solemnize marriage? validity of the marriage. But we are not required to take this
The justices
ustices of SC, CA, SB, CTA and the judges of RTC, as prevailing jurisprudence on the matter, because these are
MeTC, MCTC and MTCC. administrative cases, where the issue is not related to the

22|P a g e

validity of thee marriage, and these statements are mere What does the law require then?
obiter dictum. We would stick to the clear requirements of Either of the contracting parties must be at the point
the law. of death,, which means that either party must be
mortally wounded or actually dying.
(Black Nazarene sect case)
May consul-generals,
generals, consuls, or vice consuls solemnize What are the requirements before a military commander may
marriages in the Philippines? solemnize marriage under Art. 7(4), in relation to Art. 32?
No, they can only solemnize in the foreign country in • He must be a military commander of a unit to which
which they were assigned. a chaplain is assigned.
• He is a commissioned officer
Art. 31.. A marriage in articulo mortis between passengers or crew members • The chaplain is absent
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
lso during stopovers at • The marriage is one in articulo mortis
ports of call. • The marriage was solemnized during a military
operation, within the zone of military operations
So the authority of ship
hip captains and airplane chiefs to • The marriage may be between members of the
solemnize marriage is not limited to the duration of the flight armed forces or civilians.
or voyage.
Again, the marriage here must be in articulo mortis.
The marriages referred to under Art. 31 may between
passengers or crew members. According
cording to Ma’am S,
S wala Art. 32. A military commander of a unit, who is a commissioned officer, shall
naman daw ibang tao inside the ship or plane. If you do not likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of militar
military operation, whether members of the
fall under the category of a passenger or crew member, you armed forces or civilians.
are either a fish or a bird.☺
What kind of marriages may the members of the judiciary
There is an inconsistency between Art. 7(3), which uses the solemnize?
term “airplane chief”,”, and Art. 31, which uses the term All marriages, whether ordinary marriages or
“airplane pilot”. There can be more than one pilot, but the marriages in articulo mortis
authority to solemnize marriage is vested to the chief, or the
one in charge of the plane. What about priests, rabbi, imam or ministers?
All marriages, whether ordinary marriages or
The marriage allowed in these instances is a marriage in marriages in articulo mortis
articulo mortis.
What about consul-generals,
generals, consuls, or vice consuls?
What is a marriage in articulo mortis? All marriages in the country
countr to which they are
It is a marriage wherein one of the contracting assigned
parties is at the point of death
What about ship captains or airplane chief and military
Function of the solemnizing officer in marriages in articulo commanders?
mortis Marriages
ges in articulo mortis
They determine legal capacity
What is the second formal requisite?
For example, “yung eroplano, huminto yung makina, so yung Valid marriage license
dalawang mag-sweetheart,
sweetheart, makasarili, pinilit yung pilot na
instead na isalba ng pilot yung lahat ng pasahero, eh ikasal What is the purpose of the requirement of a marriage license?
na lang silang dalawa.” Will that classify as an instance It symbolizes the involvement of the State in the
wherein the airplane chief is authorized to sol solemnize a marriage. It is by virtue of the license that the
marriage? parties are allowed by the State to get married.
No, because in this case, there is only danger of
death. Here, death may be certain, death may be To allow the State to determine the parties’ legal
conceived, but they are not yet dying. capacities

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What are the exemptions from the requirement of marriage ages and relationship of the contracting parties and the absence of legal
impediment to the marriage.
• Marriages in articulo mortis Art. 34. No license shall be necessary for the marriage of a man and a woman
• Marriages where either party resides in a remote who haveave lived together as husband and wife for at least five years and
place that there is no means of transportation to without any legal impediment to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any person authorized by
enable such party to appear personally before the law to administer oaths. The solemn
solemnizing officer shall also state under oath
local civil registrar that he ascertained the qualifications of the contracting parties are found no
• Marriages among Muslims or among members of legal impediment to the marriage.
the ethnic cultural communities
• Parties have lived together as husband and wife for But this requirement only applies to marriages in articulo
at least 5 years
ears with no legal impediment to marry mortis, to marriages where the parties are ar living in remote
each other places, and ratification of marital cohabitation. Interestingly,
such requirement is not imposed upon a ship captain, an
What happens if the marriage is contracted without a license airplane chief and a military commander. Why is this?
on account of the fact that one of the parties is dying, and It’s not just because of the requirement that the
that party survives? Are they required to get married again? solemnizingg officer appear before the civil registrar
No. The marriage is valid. Art. 27 state that the to execute the sworn statement, because that can
same shall remain valid even if the ailing party take place after. It is also not because of the
subsequently survives. emergency that someone is dying, because this is
also true as to the other officers solemnizing articulo
Art. 27. In case either or both of the contracting parties are at the point of mortis, andnd yet they are required to execute the
death, the marriage may be solemnized without necessity of a marriage affidavit.
ense and shall remain valid even if the ailing party subsequently survives.

Art. 28. If the residence of either party is so located that there is no means of What is required of these people to say in the t sworn
transportation to enable such party to appear personally before the local civil statement or affidavit?
registrar, the marriage
rriage may be solemnized without necessity of a marriage That he ascertained the qualifications of the parties
and their lack of any legal impediment between
What is contemplated by Art. 28 in saying that the parties live
in such a remote place that there is no transportation?
Now, if he is solemnizing
olemnizing a marriage between civilians or
Remember, these are modern times. It impossible to envision
members of the armed forces or between passengers and
a place where there is no means of transportation at all.
crew members, chances are he doesn’t know these people
There are carabaos. There are horses. Wouldn’t this qualify
and neither do the people present, because these are
as means of transportation? What does the law mean?
practically strangers. Or it may also happen that no one else
It’s not really impossibility or absolute absence of
is around. In which case, he h will not have any basis to say
any means of transportation, but it would
w be highly
that this really is their ages, that there really is no
inconvenient for the parties to travel, say, aboard
impediment between them. So what is the point of stating
the horse or carabao for 2 or 3 days.
these things under oath when there is no certainty as to their
truth? What’s the point of asking information from these
If the marriage was exempted from the requirement of a
people who may or may not know the truth? Whereas,
marriage license, would there be any additional requirement
ordinarily there are the parties, and there are these other
on the part of the solemnizing officer?
people, which is usually the case, they are gathered around
He is required to execute an affidavit, stating that he
you, there are people he can ask,
ask “ilang taon na ho ba ito?”,
has solemnized the marriage in articulo mortis,
“are there any legal impediments?” And then exacting that
marriages where the parties are living in remote
information, he can now claim that he has ascertained their
places, and ratification of marital cohabitation, and
qualifications to get married.
that he has determined the ages of the parties
parti and
the absence of any legal impediments.
Now let’s go to the nitty-gritty
nitty of applying for a marriage
license. Where do you apply for a license?
Art. 29. In the cases provided for in the two preceding articles, the
solemnizing officer shall state in an affidavit executed before the local civil Art. 9. A marriage license shall be issued by the local
registrar or any other person legally authorized to administer
administ oaths that the civil registrar of the city or municipality where either
marriage was performed in articulo mortis or that the residence of either contracting party habitually resides, except in
party, specifying the barrio or barangay, is so located that there is no means
marriages where no license is required in accordance
of transportation to enable such party to appear personally before the local
civil registrar
gistrar and that the officer took the necessary steps to ascertain the with Chapter 2 of this Title.
24|P a g e

The contracting parties need not be residing in the same public official authorized to administer oaths. Such instrument
shall contain the sworn declaration of two witnesses of lawful
place, because the law says, “where either contracting party
age, setting forth the full name, residence and citizenship of such
habitually resides”. contracting party and of his or her parents, if known, and the
place and date of birth ofo such party. The nearest of kin of the
So if one party resides in QC while the other resides in contracting parties shall be preferred as witnesses, or, in their
default, persons of good reputation in the province or the locality.
Paranaque, must the application both be applied in QC and
Paranaque? The presentation of birth or baptismal certificate shall not be
No. required if the parents of the contracting parties appear
personally before the local civil registrar concerned and swear to
the correctness of the lawful age of said parties, as stated in the
Should the one living in QC apply in QC, while the one living in
application, or when the local civil registrar shall, by merely
Paranaque apply in Paranaque? looking at the applicants upon their personally appearing before
No. They would be applying simultaneously but they him, be convinced that either or both of them have the required
would be filling up separate application forms. age.

So that is the first requirement,

rement, separate application The requirement of presentation of the birth certificate or
forms executed by the contracting parties. baptismal certificate or certified copies thereof may be
dispensed with if?
What will be set forth in the application form? If the original has been lost or destroyed and such
Art. 11. Where a marriage license is required, each of the party files an affidavit to the effect that such copies
contracting parties shall file separately a sworn application for have been “required of” (not just “requested”,
such license
se with the proper local civil registrar which shall specify
meaning to say there was already a commitment to
the following:
(1) Full name of the contracting party; issue) the person who has custody and the same
(2) Place of birth; subject
ct of issue, and the requirement has taken
(3) Age and date of birth; place at least 15 days prior to the filing of
(4) Civil status;
application, in which case, what will they present?
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
annu Such party may furnish in lieu thereof his
(6) Present residence and citizenship; current residence certificate or an
(7) Degree of relationship of the contracting parties; instrument drawn up and sworn to beforebef
(8) Full name, residence and citizenship of the father;
the local civil registrar concerned or any
(9) Full name, residence and citizenship of the mother;
and public official authorized to administer
(10) Full name, residence and citizenship of the guardian
guardia or oaths. Such instrument shall contain the
person having charge, in case the contracting party has sworn declaration of two witnesses of
neither father nor mother and is under the age of
lawful age, setting forth the full name,
twenty-one years.
residence and citizenship of such
The applicants, their parents or guardians shall not be required to contracting party
pa and of his or her parents,
exhibit their residence certificates in any formality in connection
c if known, and the place and date of birth of
with the securing of the marriage license.
such party.
What are the requirements? Who are preferred to make this affidavit?
Art. 12. The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, The nearest of kin of the contracting parties shall be
in default thereof, the baptismal certificates
rtificates of the contracting preferred as witnesses, or, in their default, persons
parties or copies of such documents duly attested by the persons of good reputation
on in the province or the locality.
having custody of the originals. These certificates or certified
copies of the documents by this Article need not be sworn to and
shall be exempt from the documentary ntary stamp tax. The signature Now, after going through all these enumerations, the law at
and official title of the person issuing the certificate shall be the end tells us that all these can be dispensed with if the
sufficient proof of its authenticity. parties, by appearing before the civil registrar, are able to
convince the latter, by having him look
l at them, that they are
If either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified copy of either
eith because of the already of legal age, or otherwise, if the parents of the
destruction or loss of the original or if it is shown by an affidavit of contracting parties appear personally before the local civil
such party or of any other person that such birth or baptismal registrar concerned and swear to the correctness of the
certificate has not yet been received though the same has been
lawful age of said parties, as stated in the application.
required of the person having custody thereof
hereof at least fifteen days
prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn
up and sworn to before the local civil registrar concerned or any

25|P a g e

In case of previous marriage, what should be submitted be recorded in both applications for marriage
together with their application for marriage license? license,
e, and the affidavit, if one is executed instead,
Art. 13. In case either of the contracting parties has shall be attached to said applications.
been previously married, the applicant shall be
required to furnish, instead of the birth
bir or baptismal So it can be in a mere private writing but you must appear
certificate required in the last preceding article, the before the local civil registrar. Now if you want to dispense
death certificate of the deceased spouse or the with the requirement of appearing before the th local civil
judicial decree of the absolute divorce, or the judicial registrar, then the consent must be reduced in a public
decree of annulment or declaration of nullity of his instrument. It must be notarized.
or her previous marriage.
What should the local civil registrar
registr do with the parental
If the death certificate is not available? consent?
In case the death certificate cannot be secured, the The personal manifestation shall be recorded in both
party shall make an affidavit setting forth this applications for marriage license,
lic and the affidavit, if
circumstance and his or her actual civil status and one is executed instead, shall be attached to said
the name and date of death of the deceased spouse. applications.

And the other requirements, aside from those which were It will be recorded in the affidavit, and the parents will be
discussed? required to sign it. Or if there is no appearance, the affidavit
Art. 14. In case either or both of the contracting parties, not will be attached to the application.
having been emancipated by a previous marriage, are between
the ages of eighteen and twenty-one,one, they shall, in addition to the
uirements of the preceding articles, exhibit to the local civil Any other requirements?
registrar, the consent to their marriage of their father, mother, Art. 15. Any contracting party between the age of twenty
twenty-one and
surviving parent or guardian, or persons having legal charge of twenty-five
five shall be obliged to ask their parents or guardian for
them, in the order mentioned. Such consent shall be manifested advice upon the intended marriage. If they do not obtain such
in writing by the interested party, who personally appears before advice, or if it be unfavorable, th
the marriage license shall not be
the proper local civil registrar, or in the form of an affidavit made issued till after three months following the completion of the
in the presence of two witnesses and attested before any official publication of the application therefor. A sworn statement by the
authorized by law to administer oaths. The personal contracting parties to the effect that such advice has been sought,
anifestation shall be recorded in both applications for marriage together with the written advice
a given, if any, shall be attached to
license, and the affidavit, if one is executed instead, shall be the application for marriage license. Should the parents or
attached to said applications. guardian refuse to give any advice, this fact shall be stated in the
sworn statement.

You can forget about the requirement of ““not having been Art. 16. In the cases where parental consent or parental advice is
emancipated by a previous marriage”” because b now needed, the party or parties concerned shall, in addition to the
emancipation can only take place upon reaching the legal age requirements of the preceding articles, attach a certificate issued
by a priest, imam or minister authorized to solemnize marriage
Now if you’re old enough to be married, then you’re old
under Article 7 of this Code or a marriage counselor duly
enough to be emancipated. accredited
credited by the proper government agency to the effect that
the contracting parties have undergone marriage counseling.
How do you apply the order of “father,
father, mother, surviving Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three
parent or guardian, or persons having legal charge of them”?
monthshs from the completion of the publication of the application.
You have a choice between the father and the Issuance of the marriage license within the prohibited period shall
mother if both are still alive, in which case, the subject the issuing officer to administrative sanctions but shall not
father is preferred. But if the father is still alive but affect the validity of the marriage.
not present, then the mother. And then if one of the
Should only one of the contracting parties need parental consent
parents has already died, then the surviving parent, or parental advice, the other party must be present at the
and then the guardian, and then the person who has counseling referred to in the preceding paragraph.
legal charge of the contracting party.
The requirement of undergoing marriage counseling is not
In what form must parental consent be? just required of parties who need parenta
parental advice; it is also
Such consent shall be manifested in writing by the required of parties who need parental consent.
interested party, who personally appears before the
proper local civil registrar, or in the form of an
affidavit made in the presence of two witnesses and
attested before any official authorized by law to
administer oaths. The personal manifestation shall
26|P a g e

Supposing parental advice is needed, and parental advice was Supposing that someone took the challenge and said [to the
not secured, what will happen to the process of the issuance local civil registrar] that yes, there is an impediment, will that
of the marriage license? justify him in not issuing the license?
If they do not obtain such advice, or if it be No.
unfavorable, the marriage license shall not be issued
till after three months following the completion of Art. 18. In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof and his
the publication of the application therefor.
findings thereon in the application for marriage license, but shall nonetheless
issue said license after the completion of the peperiod of publication, unless
What is the purpose of the 3-month delay? ordered otherwise by a competent court at his own instance or that of any
So that the parties would have time to reconsider or interest party. No filing fee shall be charged for the petition nor a
corresponding bond required for the issuances of the order.
think things through, about getting married.
If marriage counseling is not undergone by the parties, what
will be the effect? He may not issue the license
cense only if there is a TRO; an order,
Failure to attach said certificates of marriage or an injunction issued by a court. But the court will not act
counseling shall suspend the issuance of the on its own; a case must be brought before the court. Who is
marriage license for a period of thr
three months from empowered to bring such a case?
the completion of the publication of the application. At his own instance or that of any interest party.

What if one of the contracting parties is foreigners?

foreigner But do you think any local civil registrar will go through the
Art. 21. When either or both of the contracting parties are citizens trouble of going to the court and filing a case?
of a foreign country, it shall be necessary for them before a
arriage license can be obtained, to submit a certificate of legal Once the license has been issued, how long is this valid?
capacity to contract marriage, issued by their respective Art. 20. The license shall be valid in any part of the Philippines for
diplomatic or consular officials. a period of one hundred
red twenty days from the date of issue, and
shall be deemed automatically canceled at the expiration of the
Stateless persons or refugees from other countries shall, in lieu of said period if the contracting parties have not made use of it. The
the certificate of legal capacity
acity herein required, submit an expiry date shall be stamped in bold characters on the face of
affidavit stating the circumstances showing such capacity to every license issued.
contract marriage.

It is required that the expiration date be indicated on the face

But note, that they are not exempted from the requirement of the marriage license.
of the marriage license even if they both happen to be
foreigners. They are still required
equired to apply for the issuance of Is there anything required to make the license lose its
the marriage license;Only, they must attach, in lieu of the effectivity?
other documents, a certificate of legal capacity. Upon the expiration of the 120 days, it shall be
automatically canceled.
But the problem is in practice, this certificate of legal
capacity, just like the certificate of legal capacity
capac required in If the license was
as issued in Manila, where can you get
adoption, is a document unheard of by other countries. married?
Anywhere in the Philippines.
Supposing all of these documents have been submitted, what
is the local civil registrar supposed to do? Should you get married a day after the 120 days, what would
Art. 17. The local civil registrar shall prepare a notice which shall
contain thee full names and residences of the applicants for a be the status of the marriage?
marriage license and other data given in the applications. The Void, because it is tantamount to getting married
notice shall be posted for ten consecutive days on a bulletin board without a license in view of the expiration
exp of the
outside the office of the local civil registrar located in a
marriage license.
conspicuous place within the building and accessible to the
general public.
Let’s go to the last formal requisite, marriage ceremony.
The purpose of the notice is?
Art. 6. No prescribed form or religious rite for the solemnization of the
This notice shall request all persons having
marriage is required. It shall be necessary, however, for the contracting
knowledge of any impediment to the marriage to parties to appear
ar personally before the solemnizing officer and declare in the
advise the local civil registrar thereof. The marriage presence of not less than two witnesses of legal age that they take each
license shall be issued after the completion of the other as husband and wife. This declaration shall be contained in the
marriage certificate which shall be signed by the contracting parties and their
period of publication.
witnesses and attested by the solemnizing officer.

27|P a g e

In case of a marriage in articulo mortis,, when the party at the 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
point of death is unable to sign the marriage certificate, it
existing in such valid marriage. If the party who acted in bad faith is not
shall be sufficient for one of the witnesses to the marriage to validly married to another, his or her shall be forfeited in the manner
write the name of said party, which fact shall be attested by provided in the last paragraph of the preceding Article.
the solemnizing officer.
The foregoing rules on forfeiture
rfeiture shall likewise apply even if both parties are
in bad faith.
This requirement of the law is very simple. For as long as
there is appearance before the solemnizing officer and a Supposing the parties signed the marriage certificate without
declaration that they take each other
her as husband and wife in appearing before the solemnizing officer, would they be
the presence of witnesses not less than two. But simple as it considered as married?
is, this is strictly enforced, such that you cannot have No.
marriages by proxy.
But they have a marriage certificate?
What is a common law marriage? Marriage
arriage certificate is not a requirement to a valid
This is best described by saying that this is a marriage. What is required is that the parties
marriage by agreement of the parties. They simply personally appear before the solemnizing officer,
agreed to be husband and wife. and in this case, there was no personal appearance
so the marriage is void.
Do we recognize common law marriages?
No. The closest we give recognition to such Where should the marriage be solemnized?
marriages would be recognizing the property Art. 8. The marriage shall be solemnized publicly in
relation between the parties as unions without the chambers of the judge or in open court, in the
marriage under Arts. 147 and 148, but they will not church, chapel or temple, or in the office the consul-
be considered as each other’s spouses. general, consul or vice-consul,
vice as the case may be,
and not elsewhere, except in cases of marriages
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 contracted on the point of death or in remote places
benefit of marriage or under a void
id marriage, their wages and salaries shall in accordance with Article 29 of this Code, or where
be owned by them in equal shares and the property acquired by both of both of the parties request the solemnizing officer in
them through their work or industry shall be governed by the rules on co-
writing in which case the marriage may be
solemnized at a house or place designated
designat by them
In the absence of proof to the contrary, properties acquired
acqu while they lived in a sworn statement to that effect.
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
And? Other marriages?
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 Marriages in articulo mortis and marriages involving
acquisition thereof if the former's efforts consisted in the care and parties residing in remote places.
maintenance of the family and of the household.
What is the purpose of the marriage certificate if it is not an
Neither party can encumber or dispose by acts inter vivos of his or her
h share
in the property acquired during cohabitation and owned in common, without essential or formal requisite to
t marriage?
the consent of the other, until after the termination of their cohabitation. It is considered the best evidence of the marriage
taking place.
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
ownership shall be forfeited in favor of their
common children. In case of default of or waiver by any or all of the common But is it the only evidence of the marriage?
children or their descendants, each vacant share shall belong to the No. It may be evidenced by the testimony of the
respective surviving descendants. In the absence ce of descendants, such share contracting parties or any witnesses to the marriage,
shall belong to the innocent party. In all cases, the forfeiture shall take place
birth certificates, baptismal certificates,
c family bible,
upon termination of the cohabitation.
and judicial decisions in which the names of the
Art. 148. In cases of cohabitation not falling under the preceding Article, only spouses have been entered as married.
the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in
In other words other evidences, such as statements
common in proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding shares are of persons who witnessed the marriage, can be used
presumed to be equal. The same rule and presumption shall apply to joint as proof of the marriage.
deposits of money and evidences of credit

28|P a g e

Supposing only
nly one witness present in Marriage Certificate? Art. 4. The absence of any off the essential or formal requisites shall render
the marriage void ab initio,, except as stated in Article 35 (2).
Marriage is valid. The requirement is merely
directory. It is considered as a defect in the formal A defect in any of the essential requisites shall render the marriage voidable
requisite as provided in Article 45.

An irregularity in the formal requisites

req shall not affect the validity of the
Marriage certificate – not part of marriage
marriage but the party or parties responsible for the irregularity shall be
ceremony. A marriage certificate which is not signed civilly, criminally and administratively liable.
or registered does not invalidate the marriage
What happens if any of the essential or formal requisites is
General Rule: Art 40 (final judgment) absent?
The marriage shallll be void.
Exception: the mere private act of singing a marriage contract
does not amount to a marriage ceremony. No need for As for instance, if the officer does not have the authority
judicial decree of nullity for purposes of remarriage (Morigo [then the marriage is void], unless of course either one of the
vs People) parties believed in good faith that he was an authorized
What is supposed to be done with the marriage certificate? If there is no marriage license?
Art. 23. It shall be the duty of the person solemnizing the
The marriage shall also be void, except the instances
marriage to furnish either of the contracting parties the original of
the marriage certificate referred to in Article 6 and to send the exempt from the requirement of marriage license
duplicate and triplicate copies of the certificate not later than
fifteen days after the marriage, to the local civil registrar of the Supposing the application for marriage license was attended
place where the marriage was solemnized. Proper receipts shall
with the help of fixers; it was a one day application, he applies
be issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing this morning, he was able to get the license in i the afternoon.
officer shall retain in his file the quadruplicate copy of the There was no ten day posting, no marriage counseling, no
marriage certificate, the copy of the marriage certificate, the seminar, and he used that license to get married. How will it
original of the marriage license and, in proper cases, the affidavit
affect the marriage?
of the contracting party regarding the solemnization of the
marriage in place other than those mentioned in Art. 8. It is treated as a mere irregularity; however, the
person responsible for the irregularity shall be liable
Who takes the original? criminally, civilly and administratively.
The contracting parties.
An irregularity in the formal requisites shall not
What is supposed to be done with the duplicate and the affect the validity of the marriage but the party or
triplicate? parties responsible for the irregularity shall be civilly,
It shall be the duty of the person solemnizing the criminally and administratively liable.
marriage to xxx send the duplicate and triplicate
copies of the certificate not later than fifteen days Supposing an essential requisite is present but it is defective,
after the marriage, to the local civil registrar of the what happens to the marriage?
place where the marriage was solemnized.
emnized. A defect in any of the essential requisites shall
render the marriage voidable as provided in Article
What about the marriage settlement? Is there any entry in 45.
the marriage certificate which pertains to the marriage
settlement? Can you name an instance of a defective essential requisite?
Art. 22. The marriage certificate, in which the parties shall declare An instance of a defective essential requisite is
that they take each other as husband and wife, shshall also state: consent which is vitiated.There is consent, but it is
xxx xxx xxx
(7) That the parties have entered into marriage settlement, if any,
attaching a copy thereof. Art. 26. All marriages solemnized outside the Philippines, in accordance with
the laws in force in the country where they were solemnized,
solemn and valid there
as such, shall also be valid in this country, except those prohibited under
Let us now look at the consequences of the absence, defect, Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
or irregularity in these requisites.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereaft
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.

29|P a g e

Art. 26 embodies the principle of lex loci celebrationis as What would be the effect of such divorce? Should we
applied to the marriages. So we recognize recogn marriages recognize the same if it is acquired by one of the spouses who,
celebrated abroad, so long as they are also valid in the place at the time of the marriage
arriage was Filipino, but change his
where they are celebrated, except those prohibited under nationality to acquire divorce?
Articles 35 (1), (4), (5) and (6), 36, 37 and 38. Yes. Prior to the ruling of the Supreme Court in the
case of REPUBLIC VS V ORBECIDO, there was some
Art. 35. The following marriages shall be void from the beginning: confusion regarding the application of Art. 26, 2
(1) Those se contracted by any party below eighteen years of age even
par. to situations where the spouses were both
with the consent of parents or guardians; (This
This only applies if the
contracting party is a Filipino national.) formerly Filipinos then one of them becomes a
xxxxxxx foreign national. Those who were insisting
(4) Those bigamous or polygamous marriages not falling under Article otherwise were saying that this allows circumvention
of the law on divorce. By the mere expedience of
(5) Those contracted through mistake of one contracting party as to
the identity of the other; and changing the nationality, a Filipino is now able to
(6) Those subsequent marriages that are void under Article 53. acquire a divorce decree. But the reality is once a
person changes his nationality and becomes a citizen
of another country, we really have no way of
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically
gically incapacitated to comply with the essential imposing our laws upon him. So he will be able to
marital obligations of marriage, shall likewise be void even if such incapacity remarry, and the Filipino spouse would find himself
becomes manifest only after its solemnization. in the same situation that this law tried to do away
with. He’ll also be stuck in limbo.
Then there is an incestuous marriage under Art. 37 and those
void by reason off public policy under Art. 38. What matters is the nationality of the spouses not at the time
of the marriage but at the time that the divorce decree is
The second paragraph of Art. 26 was originally deleted, but obtained.
by Executive Order 227 it was included in the final draft of the
What are the requirements for Art. 26, 2 par.? What do you understand by a void marriage?
(1) Valid marriage celebrated abroad A marriage which is deemed inexistent from the
(2) Between a Filipino and a foreigner beginning.
(3) Divorce validly obtained by the foreigner
(4) Divorce capacitates the foreigner to remarry What is a voidable marriage?
A marriage which is valid until annulled.
Therefore, the Filipino spouse is also allowed to remarry.
I consider it a mortal sin when a law student would commit
Do you remember the discussion we had in relation to Article the mistake of interchangin
interchanging annulment with declaration of
15, NCC, where we discussed the case of VAN DORN V nullity. Annulment pertains only to voidable marriages. If a
ROMILLO? marriage is void, you do not annul that marriage; you seek a
Prior to the effectivity of the Family Code, judicial declaration of nullity.
specifically Art. 26, 2 par., Filipinos married to
foreign nationals would find themselves at a There is a world of differences attending the consequences of
disadvantage because the divorce decree obtained a void
id marriage and those attending a voidable marriage.
by their spouses would
uld allow the foreign spouses to
remarry but the Filipino spouses would be stuck in A voidable marriage is a marriage which is valid until
limbo. Art. 26, 2 par. was supposed to address that annulled, so there are legal effects, such as:
problem by allowing the Filipino to also remarry. • There will be conjugal partnership or community
The problem is it also gave rise to another kind of • The children will be legitimate.
problem because
use now some Filipinos with the means • An action to annul prescribes
to do so could easily just change their nationality • The defect in a voidable marriage
marria may be cured by
and then acquire a divorce. ratification
• Only one of the parties to the marriage may attack
thee defect in a voidable marriage

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• Should any one of the parties die without bringing

an action for annulment, that issue is moot. What are the marriages considered null and void under the
• No proceeding can be brought to annul the marriage law?
and by way it would baseas an issue in any other Arts. 35, 36, 37 and 38.
proceedings, such as settlement of estate.
A void marriage on the other is deemed to have never existed There willll be conjugal We apply Arts. 147 and 148
at all. Because of this, you are not even required to obtain a partnership or community (Property Regime of Unions
judicial decree of nullity to base the nullity of the marriage property Without Marriage)
either as a cause of action or as a defense. You can just prove The children will be GR: The children will be
the nullity in the proceeding. legitimate illegitimate.
For example, in settlement of the estate, you want to exclude psychological incapacity
the wife because
ause the wife’s marriage is null and void. Do you under Art. 36
need a prior judicial decree of nullity? nullity proceeding from Art.
No. You can just establish the nullity in the same 53
proceeding for the settlement of the estate. An action to annul Art. 39. The action or
prescribes defense for the declaration
of absolute nullity of a
When do we need a judicial decree of nullity? marriage shall not prescribe.
Only for purposes of remarriage. The defect may be cured by The defect may not be cured
ratification by ratification
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 Only one of the parties
rties to Other interested persons
previous marriage void. the marriage may attack the may question the nullity of
defect in a voidable the marriage even without
In this regard, the case of NINAL VS BADAYOG involved the marriage obtaining a judicial decree of
ation of marital cohabitation. Who raised that issue? nullity, but if the purpose is
It was the heirs of the deceased husband. remarriage, the judicial
decree of nullity is required
Where did they raise it? Should any one of the Other interested persons
In the proceeding for the settlement of the estate. parties die without bringing may question the nullity of
an action for annulment, the marriage even after the
Was there a judicial declaration of nullity? that issue is moot. death of the contracting
None. parties
Open only to direct attack Open to collateral attack
Where they allowed to do so? Enumerated under Art. 45 Enumerated under Arts. 35,
Yes, because they were interested parties. We only 36, 37 and 38
require the judicial decree of nullity if the purpose is CIVREV_4A4
remarriage which is not the purpose in this case.
What was the purpose?
To exclude the putative spouse from the succession Art. 35. The following marriages shall be void from the beginning:
to the estate. (1) Those contracted by any party below eighteen years of age even
with the consent
ent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform
By virtue of this case, the absence of legal marriages unless such marriages were contracted with either or
impediment for ratification of marital cohabitation both parties believing in good faith that the solemnizing officer
should exist for five-year
year period prior to the had the legal authority to do so;
(3) Those solemnized without license, except those covered the
marriage. preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article
Aside from that, void marriages do not produce legitimate 41;
children. Illegitimate always, except in two instances – (5) Those contracted through mistake of one contracting party as to
the identity of the other; and
psychological incapacity and nullity proceeding from Art. 53. (6) Those subsequent
bsequent marriages that are void under Article 53.
It is open to collateral attack.

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Is this an absolute rule (Art. 35. Par 1)? Are we required to bring an action for annulment to
Yes. terminate this
is terminable subsequent marriage?
Perhaps under the civil code, yes. But under the
How do you prove that there’s no marriage license? How do Family Code, it’s different.
you prove a negative fact?
Through the certification of the Local Civil Registar Do we have terminable bigamous marriage under the Civil
stating the fact that despite diligent efforts, there is Code?
no record of such marriage. Under Art. 25, the local Yes
civil registrar concerned shall enter all applications
for marriage licenses filed with him in a registry book Is it the same in the Family Code?
strictly in the order in which the same are rece
received. No
He shall record in said book the names of the
applicants, the date on which the marriage license How are they different?
was issued, and such other data as may be • Under the Civil Code: 7 years or 4 years or 2 years
necessary. • Under the Family Code: 4 years or 2 years

Why was the marriage in the case of Ninal vs Bayadog Art. 41. A marriage contracted by any person during subsistence of a
declared null and void? previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, thee prior spouse had been absent for four consecutive
Ninal vs Bayadog: The spouses there opted to years and the spouse present has a well well-founded belief that the absent
execute an affidavit of cohabitation instead of going spouse was already dead. In case of disappearance where there is danger of
through the process of applying for a marriage death under the circumstances set forth in the provisions of Article 391 of
license;; it was later on declared void for lack of a the Civil Code,, an absence of only two years shall be sufficient.
marriage license. For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present ent must institute a summary proceeding as
Art. 35 par 4 (bigamous and polygamous marriage) provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearanc
reappearance of the absent
When is a marriage considered bigamous?
a. existence of a prior subsisting marriage
When is there danger of death?
b. contracting of a subsequent marriage which should
Art. 391 – An absence of only two years shall be
have been valid were it not for the existing prior
sufficient when:
1. the missing person was on board a
vessel lost during a voyage or an
When is a marriage considered polygamous?
airplane which is missing
When a subsequent marriage iss contracted with at
2. the missing person is in the armed
least 2 prior marriages.
forces and had taken part in war
3. the missing person is in danger of
Is this rule absolute? (contracting of a subsequent marriage
death under other similar
which should have been valid were it not for the existing prior
No. There are bigamous marriages which are not
What is the purpose of the requirement of judicial declaration
necessarily void but are “terminable
erminable subsequent
of presumptive death?
marriages,” under Art. 42.
It is intended to protect the present spouse from the
possibility of a criminal prosecution for bigamy
What is a terminable subsequent marriage?
under the RPC, as good faith is already established.
It refers to a subsequent marriage that is contracted
during the subsistence of a prior marriage and which
What happens to the subsequent marriage if there is no such
is preceded by the absence of the spouse and by the
ration of presumptive death of such absent
It is null and void because it is bigamous, applying
the general rule.
What is the status of such terminable subsequent marriage?
If you contract a marriage during the subsistence of
It is voidable because it is subject to the
a prior marriage then you’re committingbigamy that
reappearance of the absent spouse.
is the general rule. Under Art. 35, the marriage you

32|P a g e

contract subsequently is void for being bigamous in How many parties are involved in a terminable subsequent
nature. marriage?
3 parties.
The thing is, Art. 35 provides for an exception, that is • The absent spouse;
Art. 41. But if you contract a subsequent marriage • the present spouse – subsequent spouse of
without obtaining a judicial declaration
dec of the spouse present; and the
presumptive death, then it means that you cannot • spouse present – spouse of the absent
apply the exception. spouse.

What are the requirements for a valid terminable bigamous Would

uld the good faith or bad faith of the parties have any
marriage under Art. 41? impact on the validity of the subsequent marriage?
a. Absentee spouse absent for 4 consecutive years Yes.
except where there is danger of death unde under the
circumstances in Art. 391, 2 years is sufficient If it is the present spouse who is in bad faith, we
b. present spouse has a well-founded
founded belief that the have no conflict with the requirements of art. 41
absent spouse was already dead because the law does not require him or her to have
c. present spouse has the purpose to remarry a well-founded
founded belief that the absent spouse is dead.
d. present spouse obtained a declaration of The law clearly provides that the consequences of
presumptive death his/her bad faith will be limited to his/her rights in
the marriage like property, donation propter
nuptias, rights of succession.
What constitutes a “well-founded belief”?
That despite diligent efforts, the absent spouse Art. 41 requires something from the spouse present,
cannot be found. that is, well founded belief. It protects the present
spouse because he/she acted in good faith. Where
Republic vs Nolasco:: The SC overturned the ruling of the the spouse present is in bad faith, but he or she was
lower court allowing the petition to declare the wife able to obtain a decree of presumptive death, the
presumptively dead because the husband did not exert exe subsequent
equent marriage is considered valid. The more
diligent efforts. His efforts consisted of trying to find out on compelling reason is that there is a judicial
his friends and trying to look for her on board the ship to declaration of presumptive death which operates
London and when he got there, he searched the streets for just like any court ruling.
ruling In this specific case, it
his wife on foot which is not only impractical but inefficient, insulates and protects the parties from any possible
and nott once did he ask for help in the British embassy. That’s charge of bigamy. The effect of the spouse present’s
why his petition was denied. His intention is not to look for bad faith would be limited to his or her rights under
his wife but to be free the property regime, donations propter nuptias, and
those matters provided under Art. 43.
There must be a purpose to remarry, why? Is this article
limited to purposes of remarriage? Under Art. 44, if both spouses of the subsequent
Actually, the presumption
umption also comes in handy in marriage acted in bad faith, said marriage shall be
case of succession and other purposes. However, for void ab initio and all donations by reason of
any other purpose, you are not allowed by the court marriage and testamentary dispositions made by
to bring a petition for presumptive are allowed to one in favor of the other are revoked by operation of
bring such a petition under article 41. In fact you are law.
not just allowed
ed but you are mandated if you intend
to remarry. Art. 42. The subsequent marriage referred to in the preceding Article
Articl shall be
automatically terminated by the recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment annulling the previous
Taking article 41 in conjunction with article 247 of marriage or declaring it void ab initio.
the FC such declaration of presumptive death lay
down in summary proceeding before the family A sworn statement of the fact and circumstances of reap reappearance shall be
courts has given the character of immediate finality, 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
it cannot be a subject of an appeal. spouses of the subsequent marriage and without prejudice to the fact of
reappearance e being judicially determined in case such fact is disputed.

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How do you terminate a terminable subsequent marriage? benefits that belong to the man who shall now
n pertain to the
By the recording of the affidavit of reappearance of legal wife? Is it the W1 or the W2? Supposing both the absent
the absent spouse; not by the absent spouse spouse and spouse present acted in bad faith?
because any interested person can file the same, First, the good faith or bad faith of the absent
such as the children in the prior marriage as they are spouse has no bearing on the validity of the
interested in the subsistence of the first marriage. terminable subsequent marriage. With
Wit regard to the
Mere reappearance shall have no effect on the bad faith of the spouse present,
present it has already been
subsequent marriage,, there must be filing of the irrelevant because of his death.
affidavit of reappearance to terminate the
subsequent marriage. According to Senator Tolentino, in the absence of
any affidavit of reappearance that will terminate the
What will be the consequences of the termination of the subsequent marriage, it remains to be valid. And
subsequent marriage? should it be terminated by the death of either party,
Art. 43. The termination of the subsequent marriage referred to then the consequences attending dissolution of
in the preceding Article shall produce the following effects:
marriages because of death will follow regardless of
(1) The children of the subsequentsubsequen marriage
conceived prior to its termination shall be the good faith or bad faith of the parties. This may
considered legitimate; be likened to a voidable marriage that has been
(2) The absolute community of property or the terminated by the death of one of the parties. There
conjugal partnership, as the case may be, shall be
can be no proceeding brought to question the
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith,
faith his or her marriage validity once death has taken place. (SSS
( VS
share of the net profits of the community TERESITA JARQUE VDA. DE BAILON, March 24, 2006)
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 Article 83 of the Civil Code provides:
children, the
he innocent spouse;
(3) Donations by reason of marriage shall remain Art. 83. Any marriage subsequently contracted by
valid, except that if the donee contracted the
any person during the lifetime of the first spouse of
marriage in bad faith, such donations made to
said donee are revoked by operation of law; such person with any person other than such first
(4) The innocent spouse may revoke the designation spouse shall be illegal and void from its
of thee other spouse who acted in bad faith as performance, unless:
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent (1) The
e first marriage was annulled or dissolved; or
marriage in bad faith shall be disqualified to
inherit from the innocent spou
spouse by testate and (2) The first spouse had been absent for seven
intestate succession.
consecutive years at the time of the second marriage
without the spouse present having news of the
If the termination of the subsequent marriage will put an end absentee being alive, or if the absentee, though he
to the relationship between the spouses such that he or she is has been absent
bsent for less than seven years, is
no longer the husband or the wife of the innocent spouse, why generally considered as dead and believed to be so
then would there still be a need for the law to disqualify the by the spouse present at the time of contracting
guilty spouse from inheriting by intestate succession? such subsequent marriage, or if the absentee is
Because there is a possibility that the subsequent presumed dead according to Articles 390 and 391.
guilty spouse is a collateral relative within the 5 The marriage so contracted
contrac shall be valid in any of
civil degree or further of the innocent spouse, in the three cases until declared null and void by a
which casese he or she may inherit by intestate competent court. (Emphasis and underscoring
succession. supplied)
Supposing that the subsequent marriage is not terminated in Under the foregoing provision of the Civil Code, a
accordance with Art. 42, and one of the parties dies, what subsequent marriage contracted during the lifetime
happens then? For example, H contracted a 1st marriage. of the first spouse is illegal and void ab initio unless
Subsequently, he was able to obtain
btain a decree of declaration of the prior marriage is first annulled or dissolved or
presumptive death on the basis that W1 has been absent for contracted under any of the three exceptional
15 years. So he marries W2. H dies without the 2 marriage circumstances. It bears noting that the marriage
being terminated. Who shall be entitled to receive the death under any of these exceptional cases is deemed valid
34|P a g e

"until declared nullll and void by a competent court." The termination of the subsequent marriage by
It follows that the onus probandi in these cases rests affidavit provided by the above-quoted
above provision of
on the party assailing the second marriage. the Family Code does not preclude the filing of an
action in court to prove the reappearance of the
In the case at bar, as found by the CFI, Alice had absentee and obtain a declaration of dissolution or
been absent for 15 consecutive years when Bailon termination
on of the subsequent marriage.
sought the declarationn of her presumptive death,
which judicial declaration was not even a If the absentee reappears, but no step is taken to
requirement then for purposes of remarriage. terminate the subsequent marriage, either by
affidavit or by court
co action, such absentee’s mere
Eminent jurist Arturo M. Tolentino (now deceased) reappearance, even if made known to the spouses in
commented: the subsequent marriage, will not terminate such
marriage. Since the second marriage has been
Where a person has entered into two successive contracted because of a presumption that the
marriages, a presumption arises in favor of the former spouse is dead, such presumption
presu continues
validity of the second marriage,, and the burden is on inspite of the spouse’s physical reappearance, and
the party attacking the validity of the second by fiction of law, he or she must still be regarded as
marriage to prove that the first marriage had not legally an absentee until the subsequent marriage is
been dissolved; it is not enough to prove the first terminated as provided by law.
marriage, for it must also be shown that it had not
ended when the second marriage was contracted. If the subsequent marriage is not terminated by
The presumption in favor of the innocence of the registration of an affidavit of reappearance or by
defendant from crime or wrong and of the legality of judicial declaration but by death of either spouse as
his second marriage, will prevail over the in the case at bar, Tolentino submits:
presumption of the continuance of life of the first
spouse or of the continuance of the marital relation x x x [G]enerally if a subsequent marriage is
with such first spouse. (Underscoring supplied) dissolved by the death of either spouse, the effects
of dissolution
on of valid marriages shall arise. The good
Under the Civil Code,, a subsequent marriage being or bad faith of either spouse can no longer be raised,
voidable, it is terminated by final judgment of because, as in annullable or voidable marriages, the
annulment in a case instituted by the absent spouse marriage cannot be questioned except in a direct
who reappears or by either of the spouses in the action for annulment.
annulment (Underscoring supplied)
subsequent marriage.
y, Lapuz v. Eufemio instructs:
Under the Family Code,, no judicial proceeding to
annul a subsequent marriage is necessary. Thus In fact, even if the bigamous marriage had not been
Article 42 thereof provides: void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second
Art. 42. The subsequent marriage referred to in the marriage had been contracted with the first wife
preceding Article shall be automatically terminated having been an absentee
absent for seven consecutive
by the recording of the affidavit of reappearance of years, or when she had been generally believed
the absent spouse,, unless there is a judgment dead, still the action for annulment became
annulling the previous marriage or declaring it void extinguished as soon as one of the three persons
ab initio. involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action
A sworn statement of the fact and circumstance
circumstances of for annulment should be brought during the
reappearance shall be recorded in the civil registry of lifetime of any one of the parties involved. And
the residence of the parties to the subsequent furthermore, the liquidation of any conjugal
marriage at the instance of any interested person, partnership that might have resulted from such
with due notice to the spouses of the subsequent voidable marriage must be carried out "in the
marriage and without prejudice to the fact of testate or intestat
intestate proceedings of the deceased
appearance being judicially determined in case spouse," as expressly provided in Section 2 of the
such fact is disputed. (Emphasis and underscoring Revised Rule 73, and not no in the annulment
supplied) proceeding. (Emphasis and underscoring supplied)
35|P a g e

It bears reiterating that a voidable marriage cannot

be assailed collaterally except in a direct proceeding.
Consequently, such marriages can be assailed only
during the lifetime of the parties and not after the
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. Upon thee death of either, the
marriage cannot be impeached, and is made good ab

Art. 35 par. 5 (mistaken identity)

The mistake refers to what?

As to the physical identity of the other party. Not
mistake as to his name, station in life, profession, or
haracter. Here, you have mistaken his entire
physical essence for someone else.

Art. 35 par. 6 (void subsequent marriage under Art. 53)

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

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. 52). Non-compliance
compliance with such requirement will render
rende the
subsequent marriage void

Valid 2nd Marriage is Void 2nd Marriage is Void

(Art 35 par 4) If both spouses acted in
Effects: Bad faith
• Children Illegitimate
• Art 148 will apply
2nd Marriage is Void
1st (Art 35 par 6 in rel to Art 53)
Marriage Non-compliance with the Effects:
registration requirements • Children Legitimate
• Art 144 will apply
With Judicial decree
of Nullity

Complied with the

registration requirements Valid 2nd Marriage


Without Judicial decree 2nd Marriage is Void

of Nullity (Art 40 in rel to Art 50)
• Children Illegitimate
• Dissolution of ACP or

36|P a g e

Art. 36. A marriage contracted by any party who, at the time of the Why is it that marriage of an insane person is placed
celebration, was psychologically incapacitated to comply with the essential
under art. 45 and not article 36?
marital obligations
ions of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. (As amended by Executive Mental incapacity refers to insanity
Order 227) tantamount to a vice of consent;he does
not have the capacity to consent with the
What is psychological incapacity? marriage because he has no understanding
It refers to the incapacity in discharging the essential of what he is getting himself into, which is a
marital obligations.
ions. The article itself does not ground for annulling
an the marriage
provide parameters/standards so as not to limit the (voidable).
courts, and to allow them to decide on a case to case
basis. However, the Supreme Court has come up However, a person who is psychologically
guidelines with the effect of limiting the scope of incapacitated may have the mental capacity
Art. 36, to give consent to the marriage. He may
have consented but he cannot discharge
Why is this? the marital obligations. In psychological
The SC is not trying to prevent the use of Art. 36 for incapacity, it is not just physical inability but
nullifying marriages but it is trying to address the also mental inability
abuse of such article. It is as though we have our
own version of a divorce law. b. juridical antecedence – the root cause of the
incapacity can be traced prior to the celebration of
Insanity VS Psychological Incapacity the marriage (ex. Molested as a child – he might
Insanity grow up to be promiscuous/ a nymphomaniac)
• Annullable
• No understanding on what he enters into c. incurability– absolute or relative, depending on your
• Graver than Psychological incapacity partner
Psychological incapacity
• Null and void marriage Republic vs CA (MOLINA DOCTRINE):
DOCTRINE) (expanded) (AM 02-11-
• He is not precluded of the understanding of 10-SC)
what he enters into 1. The burden of proof to show the nullity of the
• Only inability to discharge marital marriage belongs to the plaintiff. Any doubt should
obligations be resolved in favor of the existence and an
• It is null and void because
ecause psychological continuation of the marriage and against its
incapacity was based in a Catholic Canon dissolution
where only valid and void marriage is 2. A petition under Art 36 of the family code shall
recognized. No voidable status specifically allege the complete facts showing that
either or both parties were psychologically
SANTOS VS CA: The SC laid down three characteristics of incapacitated from complying with the essential
psychological incapacity-- marital
tal obligations of marriage at the time of the
a. Gravity – must be so grave and serious so as to celebration of the marriage even if such incapacity
prevent the party from discharging his marital becomes manifest only after its celebration. The
obligations. complete facts should allege the physical
Does it mean that the party is mentally incapacitated manifestations, if any, as indicative of psychological
to give consent to the marriage? incapacity at the time of the marriage but expert
No opinion need not be allege. Instead, the court shall
determine the advisability of expert testimony
What is the difference between psychological during the pre-trial
trial conference
incapacity and mentally incapable? For example one 3. The incapacity must be proven to be existing at the
pouse is mentally incapacitated, it is given that a time of the marriage
mentally incapacitated person is incapable of 4. Such incapacityity must also be shown to be medically
discharging his/her marital obligation, what will be or clinically permanent or incurable. Furthermore,
the status of the marriage? such incapacity must be relevant to the assumption
Voidable under art. 45 of marriage obligations, not necessarily to those not
related to marriage

37|P a g e

5. Such illness must be grave enough to brin

bring about the Who can invoke Psychological incapacity?
disability of the party to assume essential obligations Either spouse or both
of marriage. The illness must be shown as downright
incapability, not a refusal, neglect or difficulty, much If the person who is psychological incapacitated is the
less ill will. In other words, there is natal of petitioner
supervening disabling factor in n the person, an It is self-serving
serving and there is no assurance to have
adverse integral element in the personality structure the marriage declared void
that effectively incapacitates the person from really
accepting and thereby complying with the marital No exactt definition of Psychological Incapacity
obligations It is deliberate on the part of the law not to give exact
6. The essential marital obligations must be those definition because the law allows the court to decide on a
embraced by Art 68-71 of the Family Code as regards case to case basis. It must be appreciated depending on
the husband and wife as well as Art 220, 221 and circumstances
225 of the same code in regard to parents and their The person declared to be Psychologically
P incapacitated is not
children. Such non-complied
complied marital obligation must incapacitated to contract another marriage
also be stated in the petition, proven by evidence
and included in the text
ext of the decision AM 02-11-10-SC
7. Interpretations given by the National Appellate • Direct action for nullity
Matrimonial Tribunal of the Catholic Church in the o Only the husband and wife
Philippines, while not controlling or decisive, should o Under the family code
be given respect in our courts o The action is brought after its effectivity

The certification of the Solicitor General is alre

already dispensed ANTONIO VS REYES: Petitioner claimed that respondent
with to avoid delay persistently lied about herself, the people around her, her
occupation, income, educational attainment and other events
How indispensable is expert evidence when it comes to the or things, such as she concealed the fact that she previously
clinical explanation of psychological incapacity? gave birth to an illegitimate son, and instead introduced the
Expert evidence is not indispensable because after boy to petitioner as the adopted child of her family; she
all the case should be adjudged on the totality of the fabricated a story that her brother-in-law,
brother Edwin David,
circumstances (Marcos vs Marcos). attempted to rape and kill her when in fact, no such incident
occurred; she misrepresented herself as a psychiatrist to her
In Molina, it was made clear that the OSG represents the obstetrician, Dr. Consuelo Gardiner, and told some of her
Republic and that the OSG’s certification is indispensable friends that she graduated with a degree in psychology, when
before a decision can be handed down. Does that still hold she was neither; she claimed to be a singer or a free-lance
true? voice talent affiliated with Blackgold Recording Company; she
Not anymore. According to a SC Resolution effe
effective represented herself as a person of greater means, thus, she
March 15, 2003, the Trial Court MAY require the altered her payslip to make it appear that she earned a higher
parties and the prosecuting attorney in consultation income.
with the OSG to file their respective memoranda
within 15 days from the date of termination of the SC: Afflicted with a discretionary faculty impaired in its
trial and that the Court MAY require the OSG to fifile practico-concrete
concrete judgment formation on account of an
its memorandum if the case is of significant interest adverse action and reaction pattern, the Respondent
R was
to the State. impaired from eliciting a judicially binding matrimonial
consent. “Marriage, in legal contemplation, is more than the
Examples of Psychological Incapacity legitimatization of a desire of people in love to live together.”
• Obsessive Compulsive Disorder
• Homosexuality Is there an obligation to tell the truth when you’re marr
Marriage is supposed to be based on trust and you
OCD as Psychological incapacity cannot trust a person who lies all the time not even
• If it affects the marriage out of necessity but because she simply cannot stop
• It must always have a bearing on the marria
marriage lying.
• Anti-social behavior

38|P a g e

Interestingly the SC bended a lot of rules in this case. For one, Actually, the trial court declared the marriage null and void
there’s no finding from
rom an expert witness that the condition of without
out specifying which party was psychologically
the wife is incurable. Would you know why? incapacitated. It was a safe decision. The SC said that it is
The SC said that since this was decided before the really impossible for a man who is supposedly in love with his
ruling Molina it was unfair to impose the wife to be able to restrain himself night after night for 10
requirement in Molina to the evidence presented by months because the wife was found to be a virgin after 10
the petitioner. However in PESCA VS PESCA (G.R.( No. months. If you really want to, then you would have been able
136921, 17 April 2001, 356 SCRA 588), the SC said to.. So that you were not able to, that may mean that there
that the Molina ruling should be given retroactive must be something psychologically incapacitated in your
application and that it should apply even to pending make-up as a person.
cases including this case of Reyes. So it went against
their pronouncement in Pesca. The only consolation Art. 37. Marriages between
ween the following are incestuous and void from the
beginning, whether relationship between the parties be legitimate or
that we can consider as that which may have
impelled the SC to nullify the marriage between the (1) Between ascendants and descendants of any degree; and
parties in the Reyes Case is the existence of a (2) Between brothers and sisters, whether of the full or half blood.
decision from the national matrimonial tribunal of
the Catholic Church to dissolve
ve the marriage. Art. 38. The following marriages shall be void from the beginning for reasons
of public policy:
1. Between collateral blood relatives whether legitimate or
This case of Antonio vs Reyes is thus far one of the only 2 illegitimate, up to the fourth civil degree;
cases decided by the SC wherein they found psychological 2. Between step-parents
parents and step
incapacity to exist. The other case is – 3. Between parents-in-law law and children
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent and the
CHI MING TSOI VS CA:: According to the Plaintiff (herein adopted child;
private respondent GINA LAO-TSOI) contrary to her 6. Between the surviving spouse of the adopted child and the
expectations, that as newlyweds they were supposed to adopter;
7. Between an adopted child and a legitimate child of the adopter;
enjoy making love, or having sexual intercourse, with each
8. Between adopted children of the same adopter; and
other, the defendant just went to bed, slept on one side 9. Between parties where one, with the intention to marry the
thereof, then turned his back and went to sleep . There was other, killed that other person's spouse,
spouse or his or her own spouse.
no sexual intercourse between them during the first night.
The same thing happened on the second, third and fourth Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. (As amended by Executive Order 227 and
Republic Act No. 8533;; The phrase "However, in case of marriage celebrated
before the effectivity
fectivity of this Code and falling under Article 36, such action or
In an effort to have their honeymoon in a private place where defense shall prescribe in ten years after this Code shall taken effect" has
they can enjoy together during their first week as husband been deleted by Republic Act No. 8533 [Approved February 23, 1998]).
and wife, they went to Baguio City. But, they did so together
with her mother, an uncle, his mother and his nephew. They Art. 39 is now
ow absolutely imprescriptible.
were all invited by the defendant to join them. During their
stay, there was no sexual intercourse between them, since Previously, there was a limitation to marriages contracted
the defendant avoided her by taking a long walk during siesta before the family code, there was only a 10-year
10 period to
time or by just sleeping on a rocking chair located at the living bring the petition for nullity but the SC found that it was not
room. They slept together in the same room and on the same productive especially toward the end of 1998, there was
bed since May 22, 1988 until March 15, 1989. But during this continuous filing. Also, the imposition of a 10-year
10 limitation
period, there was no attempt of sexual
xual intercourse between would be contrary to the nature of a marriage which is void
them. She claims that she did not even see her husband's ab initio.
private parts nor did he see hers.
If you read the Rules on Nullity of Marriages, you will find that
The court held that the senseless and protracted refusal of it now
w limits the right of action to the parties to the marriage.
one of the parties of sexual cooperation for the procreation But does this mean that you cannot collaterally attack the
of children is equivalent
uivalent to psychological incapacity. In this marriage anymore after the death of the parties?
case, there was no sexual contact between the parties since No, because that is inherent in the nature of void
their marriage on May 22, 1988 up to March 15, 1989 or for marriages, it is subject to collateral
collate attack.
more or less 10 months.

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CIVREV1_4A5 marriage without need of securing a previous

prev judicial
decree of nullity andeven
and without need for either of
Art. 40. The absolute nullity of a previous marriage may be invoked for the party to be dead (emphasis supplied)
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void.
How come the law is more stringent in requiring a judicial
Art 40 requires to dissolve the prior Marriage before decree of nullity of the first marriage when remarrying but
remarriage. Rationale: the parties must not pass on the when in all other matter you just need to establish the nullity
validity of their own marriage in the same proceeding?
In the other instances
instances, you are simply attacking the
Our reading of article 40 tells us that if a party who is married incidence of marriage and not the institution itself.
would want to remarry again on the basis of the nullity of his You are not asking really for the dissolution of the
first marriage, he can only do so if hee first secures a judicial marriage for you to be free and to take another
declaration of the nullity of the first marriage. Why does the marriage of your own.
own This is rooted on the nature of
law impose this requirement imposed? the marriage is an
n inviolable social institution.
Because this doesn’t run contrary to the principle
that a marriage, if void, may be attacked even If your purpose is other than remarriage,
remarriage are you not allowed
collaterally because this provisionsion clearly provides to seek a judicial decree of nullity on account of article 40?
that before you can close on the issue of nullity of You may stillll be allowed, the law does not prohibit
the prior marriage you can only do so on the basis of the procurement of judicial decree of nullity for the
a judicial decree of nullity. purpose other than remarriage

Article 40 harks back to the rule enunciated in WEIGER VS In DOMINGO VSS CA, the wife filed a petition of
SEMPIO DY.. Article 40 was meant to pu put an end to the nullity. The husband in turn
tur filed a motion to dismiss
confusing and contradictory doctrine on the matter. on the ground of lack of cause of action because he
was saying the judging from article 40 you cannot
In WEIGEL VS SEMPIO DY, the wife who contracted the file a petition for declaration of nullity of marriage if
subsequent marriage wanted to introduce evidence regarding the petitioner does not allege that she is filing for
the existence, on the other hand, of a prior marriage on the the purpose of remarriage. In Domingo, the
part of her first husband. She wanted to say that her marriage petitioner would want to have the marriage nullify
to the first husband was null and void because the first for the purpose of partitioning of the property. The
husband himself was previously married. So in her defense, SC said the Art 40 is not limited to the purpose of
she wanted to introduce evidence to establish the nullity of remarriage. You need not allege that you will
the marriage on the first husband. But the Court said that remarry for you to have a cause of action for
such evidence would be irrelevant because absent the judicial declaration of nullity of the marriage.
declaration dissolving the first marriage such first marriage is
still presumed to be valid
alid and subsisting. Marriage, being an What are prejudicial questions?
important social institution, its validity cannot
not just be left to The resolution of the criminal action is dependent
the judgment of the parties. upon the resolution of the prejudicial question in a
prior civil action. It is one based on a separate and
Subsequent Jurisprudence, however, overturned WEIGEL, distinct from a crime but is so intimately connected
until finally, a few years later, we have the Family Code which therewith
ith that it would determine the guilt or
settled, once and for all, for purposes of remarriage you can innocence of the accused.
only invoke the invalidity
nvalidity of a prior marriage thru a judicial
declaration of nullity. What is bigamy? (in relation with Art. 40)
Contracting a subsequent marriage during the
How does this affect, the previous holding,
holding that a void subsistence of a previous valid marriage.
marriage may be subject to collateral attack following the
ruling in NINAL VS BAYADOG? Elements of Bigamy
In Ninal v Bayadog itself laid down the instances
i • There is a first valid marriage
wherein you can raise the nullity by way of collateral • That the first marriage has not yet been dissolved
attack. Such as heirship, legitimacy, successional • That the party contracted another marriage knowing
rights, filiation and even property relations, which that the first marriage has not been dissolved
• The 2 marriage must be valid if not for the
you can raise base ase on the nullity of the prior
existence of the prior marriage
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From the foregoing, there seems to o appear two potential What if the husband comes to you and tells you “But I
sources of prejudicial questions acquired a judicial decree of nullity and the effect of that
• the question of the validity of the first marriage and decree of nullity retroacts to the time of the marriage so that
• the validity of the subsequent marriage at the time that I contracted the subsequent marriage it
should be deemed that it was contracted without
with any prior
Supposing you have a husband who has contracted a existing marriage”how would we counter this argument?
marriage, the marriage has not been dissolve then he The Supreme Court ourt held in TEH VS CA that the
contracts another marriage and then he was charged with retroactive effect of the decree of nullity will be
bigamy. The husband then filed a petition to declare his prior unavailing
availing to free the husband from the charge of
marriage be declared null and void. Can he move for the bigamy because at the th time of the second marriage
suspension of the criminal action of bigamy against him on the charge of bigamy has already been
the ground that the petition
tition of nullity poses a prejudicial consummated. Bigamy is punishable under the
question?Does Art 40 say that if he will not comply then he Revised Penal Code and such criminal intent is an
will be liable for bigamy? Does it make any reference with indispensible element. At the time he contracted the
Article 345 of the RPC? second marriage he knew very well that he is
No, it does not. previously married and such married has not been
dissolved. But he still proceeded with the
What happens if the declaration of nullity is granted by the subsequent
uent marriage. So even if by fiction of law
court? your 1 marriage is nullified as of the time of your
It retroacts at the time of the marriage. 2 marriage, that retroactive effect will not change
the fact that you committed bigamy.
What is the substantial issue in our example?
The substantial issue here is whether or not the In TEH V CA,, the action involves a voidable marriage
issue(void ma would have a bearing on the guilt or annulment, butt the doctrine laid down is
innocence of the husband. encompassing enough to include void marriage or
action for nullity. If the prior marriage is voidable,
(going back to the question)) Can he move for the suspension you have less difficulty in deciding that the party all
of the criminal action of bigamy against him on the ground the more cannot contract a subsequent marriage
that the petition of nullity poses a prejudicial question? because a voidable
able marriage is valid until annulled.
No, it is not a prejudicial question, because
b the
presumption of validity given to the existing If your marriage is null and void and your husband decided to
marriages. In reality, the first marriage may be void fool around and commit concubinage would it also be a
or voidable until we have a judgment declaring to be prejudicial question?
such that marriage is presumed to be valid. This The nullity of your 1 marriage would not also justify
presumption is made necessary by the important committing concubinage/adultery
concubinage on the part of
role of marriage in society. either spouse. The same prohibition applies as was
enunciated in the case of BELTRAN V PEOPLE
It is the most convenient ground, d, and that is to
presume that all marriage to be valid so that we can Now let us focus on the second marriage in bigamy. It is
relate the consequences arising from the existence required that if not for the prior marriage the second
of the presumption. Otherwise, we would be second marriage is valid. What is the consequence if the second
guessing relationship, legal consequences,
consequences marriage is void? If the second marriage is null and void can
legitimacies, etc.. because of this presum
presumption, such the party still be charged with bigamy?
presumption must be respected and it should be The answer is that since one of the elements of the
allowed to continue until there is an judgment crime is missing which is the validity of the second
annulling or nullifying the marriage.. marriage, the crime of bigamy is not committed.
Would the nullity of the 2 marriage constitute a prejudicial
question on the charge of bigamy that may be brought to the
YES. The nullity of the subsequent marriage on
grounds other than the existence of prior marriage
will determine the guilt or innocence of husband for
the charge of bigamy.
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For the past 70 years or so the elementss of bigamy have been the Catholic Church,
Church there is no such thing as
constant and the elements included the 4 element, that a voidable marriage. Under Church laws there is only
subsequent marriage should be valid if not for the existence
existenc valid and void marriages. Perhaps if the Church have
of the prior marriage. So that, if your second marriage is a observed the distinction
distinctions, Psychological Incapacity
nullity on grounds like lack of marriage license or relationship would have fallen under voidable marriages. But
is within the 4 civil degree or any other absence of the when we transplanted the concept of Psychological
formal or essential requisites then the party cannot be guilty Incapacity in the Family Code, the framers placed it
of bigamy because one of the essential elements
element is lacking. under the category of a void marriage.

TENEBRO V CA So what is the importance of knowing all this?

However, the Supreme Court in TENEBRO V CA Perhaps we can argue that we can limit the effects of
sitting en banc ruled that the subsequent marriage the retroactive effect to the instances where
even if it is found to be null and void can still be a subsequent marriage
arriage is null and void by reason of
basis for the charge of bigamy. In this case, the Psychological Incapacity and should there be some
husband filed for a declaration of nullity of the 2 other ground to invalidate the marriage the
marriage that he contracted on the ground of subsequent marriage other than Psychological
psychological incapacity and he was also Incapacity or by being bigamous nature then there
subsequently charged with bigamy. So logically the would no crime of bigamy committed.
husband raises the petition for nullity as a prejudicial
question. If we go by the ruling at that time, the So if I ask you the question,
question will the nullity of the subsequent
nullity of the second marriage would indeed marriage constitute a prejudicial question in the crime of
constitute a prejudicial question because if the bigamy?
second marriage is found to be null and void for The answer is YES because the elements of bigamy
reason other than it is bigamous in nature then he are the following
following….. However in the case of
cannot be guilty of bigamy because he did not TENEBRO VS CA, the Supreme
Supr Court recognize that a
contracted a second marriage. Since the marriage is marriage is null and void by Psychological Incapacity
null and void it is legally inexistent. is not totally bereft its legal effects,
effects so that it cannot
constitute a prejudicial question for the existence of
But the SC ruled otherwise, it said that the second bigamy.
marriage even if void is not bereft of any legal
consequence. You cannot deny eny its legal existence. Art. 50. The effects provided for by paragraphs (2),
(2 (3), (4) and (5) of Article
43 and by Article 44 shall also apply in the proper cases to marriages which
This throws away centuries old legal doctrine that
are declared ab initio or annulled by final judgment under Articles 40 and 45.
we have adhered to. The SC rationale through
Justice Ynarez-Santiago,
Santiago, A marriage is null and void The final judgment in such cases shall provide for the liquidation, partition
on the basis of psychological incapacity still have the and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of third presumptive legitimes, unless
effect to producing legitimate
mate children.
such matters had been adjudicated in previous judicial proceedings.

Justice Carpio dissented, he is of the opinion that All creditors of the spouses as well as of the absolute community or the
nd conjugal partnership shall be notified of the proceedings for liquidation.
there is no crime of bigamy here if the 2 marriage
is null and void for psychological incapacity.
In the partition, the conjugal dwelling and the lot on which it is situated, shall
be adjudicated in accordance with the provisions
provisi of Articles 102 and 129.
Justice Vitug in his own separate opinion said that
we can justify the charge of bigamy
bigam in this case of Let us just focus on the effects of nullity. In Art 50 it singles
psychological incapacity because a marriage is void out marriages that are null and void under Art 40. But if you
for psychological incapacity actually has the look at Art 40, it does not provide for a cause for nullity of
hallmarks of a voidable marriage. Psychological marriage. It does not create on its own another category of a
Incapacity according to Justice Vitug, nullifies the null and void marriage.
effect of marriage but not the existence
existenc of the
marriage such that we can still justify the crime of What are the following void marriages?
bigamy. They are found it 35, 36, 37 and 38.

And he has a point, because we only lifted

Psychological Incapacity as a concept from the
church. Unfortunately, under the internal rules of
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How do you reconcile this in Art 50 relation to Art 40? Exception:

Art 40 in relation to Art 50 does not create for a new • Those children conceived or born before a
category of null and void marriage
marriages but it provides final and executory decree of nullity of
for a different set of consequences that will apply in marriage under Art 36 are considered
case Art 40 is found to be applicable. legitimate
• Children conceived or born of the
Because of the presence Article 40 in relation to article 50, it subsequent marriage under Art 53 are also
becomes imperative to make some distinctions among tthe considered legitimate.
categories of void marriages found in
n Art 35 par 4 and 6, and
by implication under art 40. It is enough that conception takes place.
These are the only two instances where
In Art. 35 par 4 speaks of? legitimate children may be born of null and
a bigamous marriage,, in other words, a marriage void marriage.
conducted during subsistence of a another marriage
Property Relations:
Art. 35 par 6 speaks of?
A subsequent marriage that is considered void but General Rule:
not because it is bigamous in nature because in Art No community
munity property. We do not speak
35 par 6, there is already a judicial decree of nullity of community property or conjugal
or annulment. In other words, a subsequent partnership. They shall be governed by
marriage with dissolution of the prior marriage only Article 147 and 148 of the Family Code and
there is a lapse on the part of the parties that they the provision of co-ownership
co under the
failed to comply with the registration requirement Civil Code in suppletory character.
under Art 52, that makes it void.
When do we apply Article 147?
While in Art 40 in relation to Art 50 implies that this is a The parties do not suffer any legal
subsequent marriage as well that is contracted by a party impediment. Legal impediment
who hadad a previously void marriage but did not move for the speaks of their ages and presence
dissolution of that previous void marriage. So it is a of their relationships in Article 37
subsequent marriage without the dissolution of a prior void and 38
When do we apply
a Article 148?
All other cases of subsequent marriages not falling under Art If the parties suffers legal
41, Art 35 par 6, Art 40 in relation to Art 50,
50 will be void impediment
under art 35 par 4.
The distinctions are important because of the varying effects However
owever, if the nullity precedes from the
of the nullity of these 3 kinds of void marriages. existence of a prior
pri marriage that is void but
was never legally dissolved, then applying
Art 35 par 4 and Art 35 par 6 will have the same effects the provision of Art 50 in relation to Art 40
expect for the filiation of children. there is Community
C of Property or Conjugal
artnership that is deemed to have existed
Art 40 will be totally different with all other void marriages between the parties
because it will be governed by article 43 except for par 1.
Article 147 VS Article 148
EFFECTS OF NULL AND VOID MARRIAGES Article 147 provides for co-ownership
co of the wages
and income of the parties in equal shares. It also
Status of Children: provides for a presumption that all properties
General Rule: acquired during the union are acquired through joint
Illegitimate. effortss and industry of the parties. Furthermore,
hould there be no actual contribution on the part of
Why?How does the law define illegitimate children? one of the parties, her contribution can be taken to
Those conceived and born outside a valid her efforts in the care and maintenance of the
marriage household
43|P a g e

Article 148 on the other hand provided that there is (2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
no co-ownershipip of wages and income
income. There is also
husband and wife;
no presumption of co-ownership
ownership that properties
acquired during the union. Co-ownership
Co is (3) That the consent of either party was obtained by fraud,
determined by actual contribution. unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband and wife;
Donations propter nuptias granted to the Spouses
(4) at the consent of either party was obtained by force,
General Rule: intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
it shall be considered void
d by operation of
cohabited with the other as husband and wife;
law. Applying Art 86 in general for void
marriages. Under Article 86, Donation (5) That either party was physically incapable of
propter nuptias may be revoked at the consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
option of the donor except if it was made in
the marriage settlement, in which case it (6) That either party was afflicted with a sexually-transmissible
would be void. The good faith or bad
b faith disease found to be serious and appears to be incurable.
of the parties here would be immaterial
First ground. What does this tell
t you with regards to the effect
Exception: of the absence of parental consent?
• Except if the donee acted in bad faith.faith In The absence off parental consent is taken as some
this case, the good faith or bad faith of one kind of defect in the consent of the parties. That is
of the parties becomes material. the concept of a voidable marriage,
marriage there is a defect
• And also in art 44, when both parties in the in the essential requisite o
of consent.
subsequent marriage acted in i bad faith, the
marriage would be null and void and Who can invoke the lack of parental consent?
donation proper nuptias and donation in • The parties after reaching the age of 21 and
favor of the contracting party shall also be • the parents or guardian.
Parents has no power to ratify, only the party whose parental
Voidable Marriages consent is lacking has the power to ratify

What is a voidable marriage? Supposing you married d Ms

M Laurentino who is 18 yrs old and
It is a marriage which is valid until annulled. It is you Mr Garcia is 35 years old,
old can you ask for the annulment
subject to ratification subject to exception and may of the marriage on the ground that she is 18 and no parental
be barred by prescription. consent?
No, because
ecause the law also provides that a capacitated
Look at the voidable marriage as a valid marriage party cannot invoke the incapacity of the other party
until annulled,, it suffers from defects which allow to get out of the marriage. In so far as he is
the parties to ask forannulment within a specific concerned there is nothing wrong with the marriage,
period and conditioned upon the t absence of it is perfectly valid because his consent is perfect.
ratification in most cases.. Every consequence that
will affect a valid marriage should also apply to 2 ground. What does unsound mind mean? Why is unsound
voidable marriages. mind a ground?
His consent is defective because he could not have
What are the grounds? been aware what he has committed.
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
Supposing as in a movie, A raped B and the scheming mother
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but decided to have B marry C, C is the mentally retarded brother
below twenty-one,one, and the marriage was solemnized of A. What is the status of the marriage?
without the consent of the parents, guardian or person It is Voidable.
having substitute parental authority
uthority over the party, in that
order, unless after attaining the age of twenty
twenty-one, such
party freely cohabited with the other and both lived
together as husband and wife;

44|P a g e

What is the status of the child? Rationale of the law: to avoid confusion as to the
Since it is a voidable marriage, it is valid until paternity of the child; to prevent the introduction of
annulled. With all the attendant conse
consequences of a the child to the marriage sired by the husband.
valid marriage among which a presumption that any
child born to such is legitimate child of the spouses
spouses. The law does not consider a requirement that the
woman is just pregnant.
pregnant The fraud consists in the
So what must be done to correct this? concealment of the fact that the father of the child is
The legitimate status of child must be impugned by some man other than his husband. If a man notices
the husband. that his girlfriend is pregnant and he did not react in
anangry manner that means that the child is also his.
3 Ground – do we take the word fraud in its ordinary That means that they are doing something that
meaning as in the obligations and contract? could lead to pregnancy.
No, because the law in the family code specifically
provides thatat fraud should be confined in those Is it unjustifiable to make him marry the woman
enumerated in art 46. considering that they made carnal knowledge and
make them bound by that marriage?
marriage What the law
Art. 46. Any of the following circumstances shall constitute fraud punishes here is not the indiscretion of the woman
referred to in Number 3 of the preceding Article:
aving sex before marriage but it is punishingis the
(1) Non-disclosure
disclosure of a previous conviction by final
judgment of the other party of a crime involving moral concealment of the fact that the child is actually not
turpitude; of the husband. Would the wife be in the position to
know who exactly the father is? Concealment
(2) Concealment by the wife of the fact that at the time of
precedes from the fact the husband is not the father
the marriage, she was pregnant by a man other than
her husband; of the child otherwise how can you conceal
something which you do not know?
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
Suppose the husband has been away for several months and
marriage; or
when he returned home he found the woman pregnant for a
(4) Concealment of drug addiction, habitual alcoholism or period shorter than he has been away.
away He is absent 6 months
homosexuality or lesbianism existing at the time of the and the woman is pregnant for 4 months. Then he marries
her. The woman knows that the husband is not the father but
No other misrepresentation or deceit as to character, health, he does not tell the man that he is n not a father. Is that
rank, fortune or chastity shall constitute such fra
fraud as will give concealment?
grounds for action for the annulment of marriage. There is no concealment because he ought to have
known that the child is not his. He cannot later on
Why is lack of knowledge is a justification for the sane spouse ask for annulment.
to bring an action?
Knowledge is a factor to give consent, her consent is What if Mr. Garcia is now 24 years old and he got married at
considered vitiated the agee of 20. Then after 5 years he passed the bar and as a
new lawyer,, he had been introduce to _____ of society and in
Non-disclosure vs Concealment a process he contracted sexual transmissible disease and he
Concealment requires a positive act to hide the truth did not tell his wife. His wife got infected.
infected Can she ask for
Art. 46 par 2 No, because it is existing at the time of the marriage.
The woman must know that her husband is not the It was not before the marriage. If it was acquired
father before marriage and concealed then it can ca be a
ground for annulment.
There is active misrepresentation on the part of the
wife to conceal Art. 46 par 3
Why is it a ground for annulment?
Failure of the husband to ask the wife of the fact of It goes to the consent of the other spouse.
ncy, there is no concealment He would not have contracted the marriage
if he knows

Does not hold true vitiated consent

45|P a g e

It does not matter if the healthy spouse knows

k or Insanity?
not know By the sane spouse after the insanity of the other
spouse or by the insane spouse after being cured of
Art 46 par 4 the insanity or the guardian of the
t insane spouse.

How can you conceal homosexuality? What are closet The prescriptive period of the sane spouse and the
homosexuals? guardian of the insane spouse at anytime before the
What is important here is that the element of death of either party.
homosexuality must exist at the time of the
marriage. The same ground exists in legal separation Fraud
although it existed
ted after the marriage.
marriage Within 5 years after the discovery of fraud

Let go to the rest of the ground in Art 45. How can you apply Force intimidation or undue influence
force to make some get married? When do you say force is After it ceases but within 5 years.
still existing even after the application of pain or hurt has
been terminated? Annulment is available within the period indicated as long as
Force coupled with threat. there has been no ratification
ratifica yet. So that even if the 5-year
period has not expired, for example, 2 years have passed
eat is easily understandable but what about undue since the person reached the age of 21, but if he has been
influence? Example cohabiting with the other spouse for the last 2 years after he
It is totally different from threat or intimidation. reached the age of 21, then the annulment will no longer be
Undue influence is different, the closest we can available to him even if the action has not yet prescribed
make an example of is emotional blackmail. because he is deemed to have ratified the marriage.

How do we differentiate Art 45 par 6 from

om Art 46 par3? So if you are givenn a problem look at the implications
implication of
In Art 46 par 3, the fact that it is concealed is ratification because once ratification is shown to be present
sufficient while in Art 45 par 6, it must be serious then annulment would not be available to you anymore.
and appears to be incurable and need not to be Except if the ground is incapacity to consummate the
concealed marriage or because of illness is serious and incurable
because they are not subject to ratification but may be
Supposing Miss Ampaguey married Mr. Garcia and she knew barred by prescription.
he is inflicted with AIDS.
DS. Can you ask for annulment? Even if
you knew about the disease? What are the effects of annulment?
It is one of the groundswere were ratification is not • Conjugal dwelling
allowed, so if it cannot be ratified therefore you Art. 102. Upon dissolution of the absolute community
cannot be barred by previous knowledge of the regime, the following procedure shall apply:
illness of your husband. Such nature of that
tha ground
is serious and incurable.The law recognizes theth right (6)) Unless otherwise agreed upon by the parties, in the
for you to change your mind because of the nature partition of the properties, the conjugal dwelling and
of the disease. You have the right of self the lot on which it is situated shall be adjudicated to
the spouse with whom the majority of the common
preservation because it will endanger your health children choose to remain. Children below the t age of
but there is a prescriptive period of 5 years. seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there
et us now discuss the implication of ratification vis a vis
Let in no such majority, the court shall decide, taking into
consideration the best interests of said children.
• Forfeiture: to the spouse at fault
You can ask for annulment but must be within a certain
• Donation propter nuptias
period and the period varies depending on your ground. Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
If it is based on lack of parental consent? xxx
When the party within 5 yearsars after attaining 21 or
(6) When the donee has committed an act of
by the parents before the party reaches the age of ingratitude as specified by the provisions of the Civil
21 except if freely cohabitated Code on donations in general

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Art 83 par 3 vs Art 43 par 3 For purposes of this Article, the term "child" shall include a child by
nature or by adoption.
In art 86, the revocation is not be operation of law,
while Art 43, the revocation is by operation of law
When we say child, child by adoption and by nature.
nature do we
Effect of Ratification distinguish as to thee filiation of the child whether it’s
It cures the defect in the marriage legitimate or illegitimate?
When are the grounds for annulment not available?
How would you u differentiate ground no. 2 from the physical
• If ratified
violence in ground no. 1?
• Prescriptive period had lapsed
In ground number 1, it is repetitive with respect with
ground number 2, it is enough that it took place
once because what we are emphasizing in ground
• Free cohabitation
number 2 is the purpose of the petition, the physical
• There must be knowledge of defect
violence or the moral pressures which is through to
compel the aggrieved party to change religious or
Ratification comes prescription
political affiliation
If there is ratification, even though the prescriptive
period had not lapsed
Article 55 par 3.
What is Legal Separation? Why is it called relative divorce?
Do we factor in the gender of the child? Does the child
In legal separation the spouses remain married to
necessarily be female?
each other and the marital bond is not severed. They
It’s actually NO, right now, you know the old song
are merely separate in bed and board. The provision
male prostitutes.
of support still exist.
Article 55 par 4
When then should the final conviction take place? Can this
What are the grounds for legal separation?
refer to a final conviction antedating the marriage?
Art. 55. A petition for legal separation may be filed on any of the
following grounds: It should be during the marriage. It should be during
(1) Repeated physical violence or grossly abusive conduct the marriage.
directed against the petitioner, a common child, or a child of
the petitioner;
The grounds for legal separation, it must be always
(2) Physical violence or moral pressuree to compel the petitioner be during the marriage.
to change religious or political affiliation;
Article 55 par 7
(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 This is the remedy of the absent, that we he/she discover that
inducement; his/her spouse present has married during his/her absence
(4) Final judgment sentencing the respondent to imprisonment
Article 55 par 8
of more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent; Use to be, this ground
round was described as either adultery or
concubinage. Would you have any ____ why the law has
(6) Lesbianism or homosexuality of the respondent;
changed the concept of sexual infidelity
infidelit instead?
(7) Contracting by the respondent of a subsequent bigamous The committee changed the ground to sexual
marriage, whether in the Philippines or abroad; infidelity because if the basis is adultery or
concubinage, there is a difference as to the
(8) Sexual infidelity or perversion;
occurrence of the sexual intercourse between the
(9) Attempt by the respondent against the life of the petitioner; parties involved.

(10) Abandonment of petitioner by respondent without

justifiable cause for more than one year.

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So they pronounced as to the occurrence of sexual intercourse How do you say there is attempt?How do you differentiate
what does that mean? the attempt which is ground number 9 from ground number 1
In adultery it is sufficient that the wife had sexual which is physical violence??
intercourse with anotherr man while in concubinage Number 1 the requirement is that the physical
three are required from sexual intercourse such as violence must be repeated. In number 9, it is not
the maintenance of a mistress in the conjugal necessary that the physical violence be repeated or
dwelling;sexual intercourse under scandalous must be done in a repeated manner so long as the
circumstances; There must be a habitation in the intent is to kill the other spouse.
But howow do we know that there is intention as to
As you can see, the law reallyy made it difficult to make the trample under #9 which is an attempt of
prove concubinage. Because who has, who will bring the life and one were there was no such intention in
a mistress in a conjugal dwelling? No, only stupid which case is we have to prepared with ground
husband will do that given the options available to number 1?
them. And how do you have sexual intercourse under
scandalous circumstances? How? w? The law doesn’t We look at the circumstances to see whether there
even care
re to define what scandalous is, so how do is intent to kill.
you go to court and say “My husband had sexual
intercourse with another woman not his wife under As for instance what circumstances can you
scandalous circumstances.?”ThenThen the court will say consider?
“you can prove sexual intercourse with the identity You determine intent from the means
of the woman as someone who’s not his wife,butwife employed in the spouse.
what about the element of a scandal? How was it
established? It was really difficult and we understand Article 55 par 10
the purpose of the law, which is what?
When is there abandonment? How can you tell there is no
So this was made to have severance of equality intention to return?
between the genders. Sexual infidelity would apply There is no intention to return
r can be determined
to both husband and the wife and it’s generic, it is from the circumstances.
easy to prove so long as he/she has sex with
someone not his/her spouse For instance if the spouse left the conjugal dwelling
without telling the other spouse his destination and
What about sexual perversion? there is a cessation to the communication of the
Sexual perversion is the act of one of the spouses other spouse. And if the other spouse does not take
whichh is offensive to the feelings or decency of the into account the needs or necessities of its family
other spouse. That is the acceptable standard or that when he left them. Such cessation of communication
is convenient standard. So long as both spouses and support is for a period of more than one year.
agreed voluntarily and really agreed to do the act
act, no
matter how much it may be vague of the accepted Where do you file the legal separation?
rm of sexual intercourse then it cannot be sexual In the court where the party reside.
perversion. It can be what others may describe as
the harmless exploration of the sexuality of the When should it be filed?
spouse. We don’t have an objective standard. We It should be filed within 5 time from the time of the
only have a relative standard. occurrence of the cause

Article 55 par 9 Is knowledge by the other spouse material? What If you only
found out 5 years after the occurrence of the cause?
Is it required that respondent succeeds?
No, as long as there is an intent. Because if he If you find out that your husband is a homosexual,
homosexual 3 years
succeeds there is no more legal separation. after he became a homosexual, you can still file

But if you find out seven years after. You can no longer file.

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Isn’t that unfair? But what could be the reason of the law in The court,
ourt, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
dispensing the knowledge on the part of the spouse?
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
For instance the conviction
iction by final judgment,
judgment where the same powers and duties as those of a guardian under the Rules of
sentence is for more than ten years. What if this happens Court.
without their knowledge? What if you were abroad working
as OFW and you only find out after 5 years a after the finality of What about the supportt of the spouses and children during
conviction? So that means you are no longer ger allowed to ask the pendency?
Art. 62. During the pendency of the action for legal separation,
for legal separation. So why? Why 5 years? Why is it fixing the
the provisions of Article 49 shall likewise apply to the support
sup of
period to 5 years after the occurrence of the cause? Would it the spouses and the custody and support of the common children.
be more reasonable to peg the prescriptive period from the
time of knowledge of the other party? Or from the knowledge
kn Is the court mandated to award / grant the petition for legal
or from the time of the occurrence whichever comes later? separation?
Because the law believes that 5 years is already a No, it has the option to deny, even If the grounds
long period of time, if you talking of the relationship have been proven?
of the spouses for a spouse not to find out
something regarding the other within tthat period of But what if it has been shown in the grounds
gr as well the other
5 years then there’s something wrong with the spouse has forgiven the other?
marriage, with their relationship. In other words, it is not enough that you prove the
existence of the grounds you must likewise prove
5 years na palang homosexual ang asawa mo hindi that there has been no condonation, no collusion, no
mo pa napapansin. 5 years na siyang drug addict connivance between the parties. So these are the th
hindi mo pa rin napapansin. grounds upon which the courts may deny the
petition for legal separation.
it will be raffled to a family court
urt if there is one in the place
where you file it. So what happens after you file it? The law listt down the grounds for declare legal
6 months cooling off period. separationso
so it should be a given that these grounds
should be proven n to exist in order the petition to
So what is the purpose of the cooling off period? prosper. Sothat if not been proven, then only one
For the spouses chance to reconcile. And during this recourse for the court which is to deny the petition
period the case will not be heard. but being able to prove the grounds do not be a
And supposing the other spouse does not really care anymore guarantee that the petition will be granted if it can
for the petitioning spouse and he files an answer that be shown that there has otherwise been
basically admits the grounds for legal separation which condonation, connivance,, etc.
amounts to confession of judgment or he is willing to stipulate
on the grounds. Will that make it easier for the petitioner to What is Condonation?
have the decree of legal separation? Act of forgiveness.
NO. because there is a possibility of collusion
How do you condone? How does the spouse condone a
Art. 60. No decree of legal separation shall be based upon a
ground for legal separation?
stipulation of facts or a confession of judgment.
Express or implied. The most common implied
In any case,, the Court shall order the prosecuting attorney or condonation is cohabitation specifically having
fiscal assigned to it to take steps to prevent collusion between the sexual intercourse with the offended spouse. Like
parties and to take care that the evidence is not fabricated or
the innocent spouse having sexual intercourse with
offending spouse after it has committed sexual
Who will guard against this possibility against collusion infidelity.
between the spouses?
Prosecuting attorney or fiscal Why is it (sexual intercourse) taken as a form of condonation?
How come that single instance of sexual intercourse for us to
What are the effects of filing the petition of legal separation? say that there is condonation?
nation? What is so special about it?
Art. 61. After the filing of the petition for legal separation, the It is the most intimate act between the spouses and
spouses shall be entitled to live separately from each other. just place yourself in the shoes of the offended
spouse, if you have been betrayed by your; spouse if
you have caught them having sex with another
49|P a g e

woman. I don’t
n’t think you even want to kiss him ang given the proper encouragement he will soon
pakiramadam mo hinahalikan mo din ang kanyang succumb to the temptation and will be a ground for
kalaguyo. (soo truue!!!! ) if you are able to get pass legal separation..
that and you are able to get intimate with him again
and that means you have forgiven him. You think its Collusion – you have an agreement. Ok commit an a act of
bad for the women; it worst for the men. ITONG infidelity so we can a have a ground for legal
leg separation. So
MGA LALAKI THEY THINK THEY HAVE THE LICENSE they actually manufacture the grounds.
gro Or they can just agree
TO FOOL AROUND – (correct correct ka diyan mam!!!)
mam!!! thatt they will make it appear that one is a homosexual.
homosex It may
Hahahah at kapag sila ang nahuli they think that or may not actually exist.
they are entitled to be forgiven – (may
( ganon level
talaga!!!!) That is how they feel
eel we are not saying The proceeding of legal separation is confidential
they are right. But placee them in the other
situation., parang you have committed na a crime Mutual guilt
against humanity!!! Something they cannot recover Both spouses committed a ground for legal
from… (Ahhahaha
Ahhahaha I love you mam!)
mam! separation

Condonation in relation to sexual intercourse Barred by prescription

Exp: If donee to give a chance to work on the
marriage but thereafter there is a realization that Is there a requirement that it should be brought within the
the marriage will not work lifetime of either spouse?
Yes, personal right of one spouse
How do you differentiate consent with condonation?
Consent– manifested before the commission of the The children cannot continue the action for legal
ground of legal separation separation in case the innocent spouse died pending
action (Sy vs CA)
Husband: “Love mambabae muna Art 61 par 1
ako ha?” Effect of filing
Wife: “sige good luck”
Art. 61. After the filing of the petition for legal se
separation, the
spouses shall be entitled to live separately from each other.
Condonation—manifested after the commission of
the grounds for legal separation The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
Example: administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
Husband: Hon nambabae ako ehh
same powers and duties as those of a guardian under the Rules of
Wife: I forgive you.. Court.

How is connivance different from consent? Art 61 par 2

There is collusion when you agree or you make it Economic relationship
appear that there is ground for legal separation
sep The spouses depend for ACP for support

Connivance – proactive consent; short of having an Supposing none of this grounds exist And the courts grant the
agreement with other spouse. You do not only consent to but petition What are the effects?
you even facilitate the commission of the grounds but Art. 63. The decree of legal separation shall have the following
without getting into an agreement with the other spouse. The effects:
(1) The spouses shall be entitled to live separately from
consent is not communicated to the other party
each other, but the marriage bonds shall not be
You know before your marriage your spouse is a (2) The absolute co
community or the conjugal partnership
shall be dissolved and liquidated but the offending
drug addict thenduring marriage, you no lon
longer want
spouse shall have no right to any share of the net
him; you want legal separation.. Suddenly
Suddenl there are profits earned by the absolute community or the
pills popping out everywhere in your house.. sachets conjugal partnership, which shall be forfeited in
of marijuana.. Are you consenting? Yes, and also accordance with the provisions of Article 43(2);
.. does he know? No.. but you know that
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(3) The custody of the minor children shall be awarded to (emphasis on MADE IN GOOD FAITHprior to the
the innocent spouse, subject to the provisions of
registration of a petition for cancellation will be
Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
i if you are the innocent spouse and you intend to
succession. Moreover, provisions in favor of the
revoke the donation,
donation you have the complaint or
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. petition registered in the register of deeds to put on
notice all potential buyers regarding the possibility
Art. 64. After the finality of the decree of legal separation, the that ownership here will be heard.
innocent spouse may revoke the donations
tions 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 Legal separation does not severe marital bond. They are still
designation be stipulated as irrevocable. The revocation of the married. So would reconciliation
reconciliat be a possibility?
donations shall be recorded in the registries
egistries of property in the Yes
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 It is easy than filing for legal separation because it
respected. The revocation of or change
hange in the designation of the requires no court action
insurance beneficiary shall take effect upon written notification
thereof to the insured.
What is reconciliation?
The action to revoke the donation under this Article must be Not just mutual forgiveness. Its not you forgive me
brought within five years from the time the decree of legal we can be friends or even best friends.
separation become final. Reconciliation, under the law,
law contemplates a joint
decision to renew their marriage and to live together
How do you call this kind of revocation ation in wills and as husband and wife.
Revocation by implication of law What is the effect of reconciliation on legal separation?
If this happens the legal separation proceedings will
Donations may be revoked,
voked, what kind of donations? be terminated at whatever stage, even if the judge is
Donations propter nuptias just about to release her decision

But the law did not said donation propter nuptias… But what if the decree was already given?
This will be limited
imited to donations propter nuptias The final decree of legal separation shall be set
because donations between the spouses are aside,
generally null and void. There is no need to revoke
which is something null and void But the separation of property and the forfeiture of
net profits if already effected shall subsist.
Period during which revocation of the donations can be (important)
Within 5 years from final judg
judgment of legal Will there be any exception on this?
separation. Unless the spouses agreed to revise the
former property regime.
What if the property has been disposed of by the donee
spouse in favor of third persons before the revocation can be Can they adopt a different property regime?
effected? Does the innocent spouse have a cause of action The law is clear.. “former property regime only” …
against the transferee?? What if it was sold after the finality of revive the former regime that existed between them
legal separation but before the revocation of the donation? before.
efore. They cannot adopt a different property
What are the rights of the parties? regime such for instance changing to absolute
The answer is found in the provision of the law. community of property.
Alienations, liens and encumbrances registered in
good faith before the recording of the complaint
complain for So if you want revive the former property regime what are
revocation in the registries of property shall be you supposed to do?
respected. They have to have an agreement in the agreement;
they have too specify the things they want to be
contributed back into the property regime because
there has been separation of property;
property there has
51|P a g e

been liquidation and Partition. so now they are given PELAYO vs. LAURON
the option on what do they want to be placed back The doctor was summoned by the parents of the
in the community property;; what do they want to husband o attend to the wife who is about to give
retain as separate properties and you must also list birth but the wife died. And the
th doctor remained
down the creditors of the spouses and the details unpaid. And he sued the parents of the husband for
such as the amount of the indebtedness.. payment of his fees.

How do you carry out the effect of reconciliation? What Did the doctor have no cause of action against the in-
action will you file? laws?
A manifestation from the same proceeding where No, You should have sued the husband
the petition for legal separation was heard and from because it is him who is obligated to give
the manifestation they are to attach their agreement support to his wife. The in-laws are
to revive their former property regime if that is their strangers They have no obligation under
intention. the law to give her support,
notwithstanding the fact that they ask you
Oral Separation of property is not a defense because the to attend to the wife.
same is null and void and not subject to ratification
This ruling only holds true because
becaus there
Execution: before celebration of Marriage was no indication that there was an express
Registration: After celebration of Marriage agreement
greement between the parents-in-law
parents and
the doctor. If there is an agreement, the
Execution is not the same as notarization doctor has cause of action against the
parents on the
th basis on breach of contract
Supposing the notarization took place after the marriage
settlement, is the marriage settlement valid? Now, who shall determine where the parties
par will live?
Yes, what matters is the signature of the parties The husband and the wife are supposed to fix the
before the marriage family dwelling

RIGHTS AND OBLIGATIONS In case of disagreement?

File a petition in court.
Rights and obligations of the husband and wife?
Art. 68. The husband and wife are obliged to live togethe
together, There is no case that has been filed in court because
observe mutual love, respect and fidelity, and render mutual help
his is something the spouses will eventually settle.
and support.

Can all of these can be enforce by action? When could the court exempt one spouse to live separately
NO! personal obligations. So you cannot compel the from the other?
husband or wife to live with the other. The court may exempt one spouse from living with
the other if the latter should live abroad or there are
But if the husband does not want to live with the wife without other valid and compelling reasons for the
justifiable reason aside from denying the husband support exemption
what else can the wife do?
Relief. Is there exception to the exemption?
Such exemption shall not apply if the same is not
What possible relief can she obtain?? What if she
s does not compatible with the solidarity of the family
want support but the husband? What is the recourse of the
wife? You cannot compel
ompel the wife to live together etc.. but Who shall shoulder the family expenses and the management
what about mutual help and support? of the household?
Art. 70. The spouses are jointly responsible for the support of the
family. The
he expenses for such support and other conjugal
Of all the obligations, mutual help and support is the only one obligations shall be paid from the community property and, in the
that can be enforceable by action. absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations
ligations shall be satisfied from the separate

52|P a g e

The management of the household is delegated to the wife

customarily. Why did the law change the default property regime?
In keeping with the oneness of marriage because in
Why do we have a change in the law? absolute community of property
propert everything that the
In the olden times before the men are enlightened, future spouses owned prior to the marriage will be
women are not allowed to work, 2 to sexual considered part of the community property unlike in
infidelity, it is also a crime against humanity for the conjugal partnership where separate properties will
wife to be working. Men en feel that their manhood is remain to be separate.
diminished if the wife are working and earn more.
There are also some who express their apprehension in
For women to work. No need to secure the consent adopting absolute community of property system as the
of the husband. Recognition in the law that you can default property regime. What was the objection in this
choose your profession. concept?
Under absolute community of property,
property it is possible
PROPERTY RELATIONS that if you are a very well
well-known personality who
earns millions in commercials and TV shows who
Only one aspect of marriage that is subject to agreement or marries a little known “sports personality” who is
stipulation is the property relations between the spouses and not rich, because of their marriage everything that
the stipulation will be in the form of a marriage settlement. the popular celebrity will now be co-owned by law
with the less popular sports personality.
But is the marriage settlement the only vehicle by which the
property relation can be established? When should the marriage settlement be executed?
NO. Customs and family code. Before the marriage settlement

Is there any order? If they execute it after the marriage?

Yes, there is an hierarchy It will be void

First the marriage settlement, in the absence of a Remember this, there is only one property regime which you
valid marriage settlement, then we go
g to the Family can
an adopt after the marriage or during the marriage that is
Code, then the local customs the separation of property.

We all know that marriage settlement may or may not be If you want a valid marriage settlement, it should be adopted
entered between the spouses. There is no obligation on their before the marriage celebration.
part to enter into the marriage settlement, so in default, the
family code will apply. In what form? Is there a specific form?
Art. 77. The marriage settlements and any modification thereof
shall be in writing, signed by the parties and executed before the
When will there be any occasion where the local customs to
ebration of the marriage. They shall not prejudice third persons
govern the property relation between the spouses
spouses? unless they are registered in the local civil registry where the
When there is a marriage a settlement but it does marriage contract is recorded as well as in the proper registries of
not provide what property relation will governed properties.
and a stipulation that it will be governed by the
Absolute Community of Property. It must be in writing and signed by the parties
part and
ecorded in the local civil registry and the registry of
What is the default property regime? What is the property property where the property is located
relations by default?
Absolute Community of Property Registration is not a requirement for validity but only
to make it binding upon third persons, but it should
In the absence of marriage settlement it is the Absolute be made in writing otherwise it is void.
Community of Property
roperty that will govern the property
relations of the spouses Do we observe the same formal requirements under the civil
What is the property relations by default under the old civil No. under the old civil code, the marriage settlement
code? is governed by the statute of frauds. Which requires
Conjugal Partnership of Gains that it must bee in writing to be enforceable, oral
53|P a g e

settlement is valid but unenforceable

eable and as such made therein, shall be rendered void if the marriage does not
take place. However, stipulations that do not depend upon the
that the oral marriage settlement is subject to
celebration of the marriages shall be valid
Do we need not say that occurrence of the marriage is a
Who are the parties to a marriage settlement? suspensive condition attached to the marriage
m settlement?
Art. 78. A minor who according to law may contract marriage may
also execute his or her marriage settlements, but they shall b be What will be the effect of the non-occurrence
non of the
valid only if the persons designated in Article 14 to give consent to suspensive condition?
the marriage are made parties to the agreement, subject to the It will not extinguish but it will prevent the
provisions of Title IX of this Code.
agreement from taking effect from coming into
Spouses, In case of a minor (18 (18-21) requiring
parental consent, the parents or guardian
guar must also We have a problem with that because the law also says that
be a party to the settlement otherwise it shall be any other provision in the marriage settlement that is placed
void. in not in consideration of the marriage will remain valid. So if
our argument is along that lineli which is the non happening of
Art. 79. For the validity of any marriage settlement executed by a
person upon whom a sentence of civil interdiction has been the suspensive condition will prevent the entire agreement
pronounced or who is subject to any other disability, it shall be from coming to existence then necessarily that should also
indispensable for the guardian appointed by a competent court to include other provisions not made in consideration of the
be made a party thereto.
marriage. But that is not the case,
case if there is a provision on
legitimacy of a child in the marriage settlement then that
Parties suffering from disability—then
then the person in recognition remains or subsist even if the marriage does not
charge to the party must also be a p party to the take place.. But it will not subsist if we say that occurrence of
settlement. Likeike persons suffering from civil the marriage is a suspensive condition to the birth of the
ion is not prohibited from entering into a agreement (marriage settlement).
contract of marriage.
How should we treat the non-occurrence of the marriage?
“II am requiring you to know the requirements under the civil
c How should we consider it? it because clearly it can not a
code because the family code is relatively new. Chances are suspensive condition.
there problems that took place under the civil code.
code.” The better view is to consider it as the cause or
consideration for the provisions in the marriage
What law shalll govern the property relations of the spouses? settlement that are made in consideration of
Art. 80. In the absence of a contrary stipulation in a marriage
settlement, the property relations of the spouses shall be marriage. So take away the marriage, you take away
governed by Philippine laws, regardless of the place of the the consideration this will make the agreement void
celebration of the marriage
age and their residence. and all other provisions which exist in consideration
of marriage VOID.
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 What is Donations propter nuptias or donations
donatio in
executed in the country where the property is located
consideration of marriage?
Art. 82. Donations by reason of marriage are those which are
made before its celebration, in consideration of the same, and in
(3) With respect to the extrinsic validity of contracts
favor of one or both of the future spouses.
entered into in the Philippines but affecting property
situated in a foreign country whose laws require
different formalities for its extrinsic validity. Who can make donation propter nuptias?
The future spouses and third person in favor of one
With respect to Article 80 par 2 and 3 are both or both of the spouses.
statements of Lex loci celebrationis rule and lex rei
sitae rule Everyone can donate donation propter nuptias

What happens to the marriage settlement if the marriage did What matters in law is that the donee is either or
not take place? both spouses
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
54|P a g e

Gifts given at the marriage

age reception is an ordinary Can you donate an encumbered property?
donation There is no condition on its validity. Encumbered
property may be donated.
unsalan decided to marry you and the mother is very
Mr Punsalan
thankful to you and gave you jewelry. How would you An encumbered
bered property is a property burdened
consider that gift? Ordinary donation? Donation propter with ___.
he law identifies who the recipient should be but
The What will be consequences of the foreclosure upon the
the law does not identify who the giver is. We only donee?
look at two things made in consideration of marriage There will no liability for the deficiency judgment on
and in favor of either or both the spouses. It can be the part
art of the donee, but she will be entitled to the
considered as donation propter nuptias because it is excess because she is, after all, owner of the
made in consideration of the marriage
marriag and in favor property. She will be no different from a person who
of either of the spouse. has mortgage his property to secure the
indebtedness of a another person
When can you make a donation propter nuptias
Before the marriage. Art. 85. Donations by reason of marriage of property subject to
ces shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
Is there any specific form in making donations propter amount of the obligation secured, the donee shall not be liable for
nuptias? the deficiency. If the property is sold for more than the total
The formalities governing ordinary donations also amount of said d obligation, the donee shall be entitled to the
apply to donations propter nuptias.

What formalities are these? Is there a limit as to the amount of property to be donated?
We distinguish according to the kind of property • If the donor is a third person the requirements in
involve inofficious donations will be observed.
Personal property --- donation coupled • if the donation between the future spouses
with simultaneous deliver will be sufficient limitation
mitation of 1/5 that is applied if done in the
except where the value of the property marriage settlement and the parties has agreed
exceeds more than 5k,in,in which case the upon a property regime other than absolute
donation and acceptance must be in writing community of property

Art. 84. If the future spouses agree upon a regime other than the
Real property—public
public instrument both the absolute community of property,
proper they cannot donate to each
donation and acceptance.. The acceptance, other in their marriage settlements more than oneone-fifth of their
ideally, should be done in the same public present property. Any excess shall be considered void.
instrument but it can be in a separate so
Donations of future property shall be governed by the provisions
long as it is referred to in the deed of on testamentary succession and the form
formalities of wills.
Art. 765. The donation may also be revoked at the instance of the donor, by
What can be donated? reason of ingratitude in the following cases:
Just like in
n ordinary donation class any kind of
(1) If the donee should commit some offense against the person, the
property within the commerce of man may be the honor or the property of the donor, or of his wife or children
subject of donation under his parental authority;
(2) If the donee imputes to the donor any criminal offense, or any act
Future property - it must comply with the limits of involving moral turpitude, even though he should prove it, unless
the crime or the act has been committed against the donee
the spouse and formalities of last will and testament. himself, his wife or children
hildren under his authority;
(3) If he unduly refuses him support when the donee is legally or
` future properties in donation propter nuptias may morally bound to give support to the donor.
be donated. Like future inheritance. This is
significant because future properties are not subject
to ordinary donation

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Grounds for revoking donations propter nuptias? right given by law and any action brought upon it
Art. 86. A donation by reason of marriage may be revoked by the should
uld be filed within the period f 10 years.
donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect,
void ab initio except donations made in the marriage
between the spouses during the marriage shall be void, except moderate
settlements, which shall be governed by Article 81;
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
(2) When the marriage takes place without the consent of
husband and wife without a valid marriage.
the parents or guardian,
uardian, as required by law;

(3) When the marriage is annulled, and the donee acted in Art. 87 is the provision of the ruling of the SC in MATABUENA
bad faith; VS. FERNANDEZ because previously,there
previously was no prohibition
as to people living
ng together as husband and wife without the
(4) Upon legal separation, the donee being the guilty
spouse; benefit of marriage to make donations to one another. The
SC ruled that this prohibition should extend to them as well,
(5) If it is with a resolutory condition and the condition is otherwise, those living in sin and in immorality are given
complied with;
preference as though immorality
mmorality is given a premium. Not just
(6) When the donee has committed
itted an act of ingratitude the husband and wife are prohibited from making donations
as specified by the provisions of the Civil Code on but also those cohabiting without benefit of a marriage.
donations in general.
hat will be the reason for that prohibition against donations
Art. 86 par 1 between the spouses?
Marriage is not celebrated or if it is judicially To prevent the exercise
xercise of undue influence
declared void except donations made in the
marriage settlement, which shall be governed b
by art. Is the prohibition limited to donation or are there any other
81.. And under Art. 81, there is no need to revoke transactions that cannot takes place between husband and
them because there are unrelated to the celebration wife?
of the marriage NO. They cannot sell to one another unless they are
governed by the regime of separation of property or
Annulled and the donee acted in bad faith. How do you unless there has been a decree for separation of
reconcile this with art. 50 to art. 43 par 2?Will
?Will there be any property.
inconsistency between art 43 in relation with art 50 and art
86?Is there an action that has to be done by the donor? Would there be any exception to the prohibition against
He has to file an action to revoke within 5 years from donation between the spouses?
the date of finality of decree of annulment Donations during marriage allowed if moderate
donations in cases of family is rejoicing.
Art. 50 makes the effects of Art 43, the first
paragraph is also applicable to marriages that are What is moderate?
allowed. Donations are revoked by operation of law Will depend on the circumstances of the parties if
if donee acted in bad faith. Look
ook at art 86 par 3 it you are earning 500k a year Lamborghini is not
also speaks of annulment and the donee acted in moderate.
bad faith, but under article 86, it is not revoked by
operation of law. you have to file an action for CIVREV1_4A7
How do you reconcile these? What did you learn in
statutory construction? Under the Family Code the default property regime is the
We can justify that it on that ground that it ABSOLUTE COMMUNITY OF PROPERTY
comes later in the law and should be
treated as the latest expression of solute Community of Property?
What is Absolute
legislative intent. A property regime which the community property
shall consist of all the property owned by the
What is the period for filing? spouses at the time of the celebration of the
The law does not specify except for the ground marriage or acquired thereafter.
based on legal separation which we apply, 5 years. If
it is base on other grounds, we should treat it as a
56|P a g e

Absolute Community of Property is similar in ways exclusions from the community property. Though in
with Co-ownership the long run it may prove to be beneficial to them.

owned, but what

The property during the marriage is co-owned, Art. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either
about the property acquired by the spouses prior to the
spouse, and the fruits as well as the income thereof, if any, unless
marriage? Prior to the marriage the spouses
pouses are individuals
i it is expressly provided by the donor, testator or grantor that they
who may have accumulated properties of their own shall form part of the community property;
individually. What happens to these properties belonging to
(2) Property for personal and exclusi
exclusive use of either spouse.
them prior to the marriage?
However, jewelry shall form part of the community property;
Properties will undergo some kind of transformation
from individual to co-ownership (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 propert

House & Lot owned by Husband

usband prior to marriage
marriage. Article 92, par 1
He gets married. There is no marriage settlement.
Property regime by default will be Absolute Gratuitous Title would mean?
Community of Property, what happens to House H Title acquired without any material consideration;
&Lot in terms of ownership? only pure liberality of the donor
It will be co-owned
owned by the husband and
wife, so the wife becomes co-owner
co of the Example:
property If a donation is made during the marriage is exclusive

But how is that co-ownership

ownership created? Is there any If it is a donation Propter nuptias
nuptias, it is co-owned because this
instrumentation or delivery required to be done by the will be acquired prior to the marriage and necessarily it
husband so as to transfer part ownership to W
Wife? becomes community Propertyroperty, unless excluded from the
Transformation in terms of ownership. Property community property in the Marriage settlement
once individually owned becomes co co-owned and
there is no need for any instrument, tradition, The exclusive nature of the property acquired is not limited to
delivery to vest ownership because this becomes property alone. It also
lso extends to fruits and income of the
automatic upon celebration of the marriage and property.
there being no marriage settlement.
Can the exclusive nature of the property
prop be defeated by the
What comprises Absolute Community of property
property? act of grantor/donor? What you can actually include? Are we
All properties acquired BEFORE and THEREAFTER limited to property,, fruits, income thereof?
No, we are not limited to the property, fruits or
Any exceptions? Sources of exceptions: income, he can in his deed grant that the donation
1. by law say that the prop
property, fruits and income would from
2. by Marriage Settlement- in the marriage settlement part of the Community
ommunity Property.
the Husband &Wife, if they are diligent enough
enough, can
actually provide exclusion of property from the Article 92, par 2
Absolute Community of Property.
What will be our basis here? Will the classification solely base
Example: on the actual use or benefit
fit of the property?
Husband, with the consent of W
Wife, can stipulate No
that House &Lot that was acquired prior to the
marriage shall not become community property
that is allowed.

Unfortunately, Filipinos are not really inclined in

doing marriage settlements.. And even if they do,
they would simply adopt what is provided by law.
They would not make time and effort to make

57|P a g e

What is the basis? Actual use/benefit? If the Husband buys a Husband/Wife”.”. Admittedly, such provision is not reproduced
car for you, will that be a separate property? Because there for Absolute Community
ommunity of Property
are certain props that may be used by either parties,
susceptibility of us of other, is that separate? Like in
i case of Example:: you have acquired property
prop by gratuitous title
vehicle may be used by Husband & Family, unlike a during Marriage, this is your separate
sep property. Suppose you
dress/earrings? What is the basis? Whatever the spouses sell this. How should we treat proceeds of the sale? Should we
agree? use it to buy another property?
prop How should we treat property
NATURE of the property as being limited to only had been bought by proceeds from the sale of separate
either spouse’s use. property? Community or separate?
Family Code is silent. Only explicit with regard to
Conjugal Partnership
artnership of Gains
Jewelry is excepted Rationale:
ewelry, by way of
because jewelry is of value. Jewelry, Sen. Tolentino: this provision
prov is taken from
exception, is treated as community property even Portuguese Civil Code= ‘property
‘prop acquired using the
though it may be susceptible of one’s spouse’s use proceeds of sale of separate property
prop also SEPARATE
and no reason why we should treat tr separate
Do we look on value of jewelry? Because jewelry may be property under Absolute
A Community of Property
cheap; custom jewelry. Like Pearl in greenhills/divisoria but different from separate
sep property under Conjugal
they are jewelry nonetheless. Do we also distinguish? Partnership of Gains
In short, it should be considered as a separate
What is the basis for distinction? property
VALUE, it should be luxurious, otherwise, no sense in
including them in the Community Property.
P Is there presumption in law as to ownership of property
acquired DURING Marriage
Article 92, par 3 YES- -ARTICLE 93-- Rebuttable Presumption

Is there a requirement by the law that the former Marriage Art. 93. Property acquired during the marriage is presumed to
belong to the community, unless it is proved that it is one of those
should be valid?
excluded therefrom.
NO. Does not matter so long as children are
LEGITIMATE. This may be applicable even if former HOW do you rebut a presumption?
Marriage is invalid. There are M Marriage though Clear and convincing
convin evidence that it is one of the
invalid produces legitimate children. properties excluded from the Community
C Property.
Example: if nullity proceeds from psych incapacity Art. 94. The absolute community of property shall be liable for:
Art. 36 or void subsequent Marriage under Art. 53. (1) The support of the spouses, their common children, and
legitimate children of either spouse; however, th the support of
illegitimate children shall be governed by the provisions of this
The law is not limited to the presence of legitimate children
Code on Support;
hence the law speaks legitimate descendants which include
grandchildren, great grandchildren etc.. (2) All debts and obligations contracted during the marriage by the
designated administrator
administrator-spouse for the benefit of the
community, or by both spouses, or by on one spouse with the
With regard to filiation of other descendants after children,
consent of the other;
their filiation as legitimate or illegitimate will no longer be
determined by the validity or nullity of the former Marriage.
M (3) Debts and obligations contracted by either spouse without the
The validity of former Marriage will be irrelevant to the consent of the other to the extent that the family may have been
filiation of the descendants AFTER children. Because what will
determine filiation descendant after Children? What will make (4) All taxes, liens, charges and expenses, including major or minor
them legitimate or illegitimate? repairs, upon the community property;
The marriage of their own parents, no longer of the
(5) All taxes and expenses for mere preservation made during
spouses in question
marriage upon the separate property of either spouse used by the
With regard to Conjugal Partnership of Gains,
G there is a
provision “separate property of spouses which includes those
properties bought with the exclusive money of either
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(6) Expenses to enable either spouse to commence or complete a Is this considered valid or should this be considered a
professional or vocational course, or other activity for self
disposition mortis causa that should be embodied in
a will?
(7) nuptial debts of either spouse insofar as they have
Ante-nuptial VALID transaction. Not a disposition mortis
redounded to the benefit of the family; causa.
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the excl exclusive If you would look at it, this is an investment that may
purpose of commencing or completing a professional or seem not benefit the family,
f at least not directly.
vocational course or other activity for self-improvement;
improvement; Why?
Because what will happen here is that if the
Art. 94 par. 1 SUPPORT of spouses, common children, survivorship agreement is triggered into
legitimate children of other effect by the death of either of the spouses,
the proceeds of the deposit will not go to
What about the support of illegitimate children of one the family BUT only to one of the spouses.
spouse? Generally
erally, if we’re speaking of family, it
EXCLUSIVE prop of that parent spouse should benefit the children as well but here,
not the children. We could say that the
When we say support, what does it contain? money was scooped out of the Community
SUPPORT everything indispensable to sustenance; Property
roperty. And then the spouses were
includes educational expense of the children. allowed to gamble with it. The money will
go to whoever
who outlives the other.
Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the Is this valid?
family. YES; but you can say there is something
wrong here as it is like circumvention of the
The education of the person entitled to be supported referred to
prohibition against donation among
in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of spouses.. BUT the beauty of the thing here is
majority. Transportation shall include expenses in going to and that it is not a property
prop belonging to either
from school, or to and from place of work. 1 of them, that they can donate to the
other, so that the prohibition does not
Art. 94 par.2 Debts and obligations CONTRACTED DURING apply. This is Community
C Property which
Marriage. they can do as they please PROVIDED they
BOTH consent to the transaction which, in
The need to prove that it redound to o benefit of family is this case, THEY DID. That’s why in the end,
dispense with by the presence of the consent of other spouse the Husband
usband was able to get the money in
or both spouses the account (that is an example of an
express consent because both the spouses
How is consent given? are parties to the agreement)
• Express or
• implied If only one of them consented to the
agreement, it would not be binding upon
EXPRESS: because both of the spousess are parties to an the Community
ommunity Property UNLESS it is
agreement. contracted
cted by the designated administrator
spouse and there is benefit OR UNLESS
[VITUG CASE] other spou
ouse has consented.
Spouses have money which came from their income
and placed it in deposit in the Bank of America under if you come across a documents,
doc where a married
an “AND/OR account” either one of them may person is a party, you will notice at the end, there is
withdraw. There was a survivorship agreement. That a provision which says “CONFORME” and then the
whoever survives the other shall be entitled to the other spousess is made to sign to show s/he is
entire amount of the deposit. consenting.. This requirement is made so as to make
Community Property
roperty liable.

EX: IMPLIED=no categorical statement;

59|P a g e

What if instead of using “conforme” preceding the name and

signature of the wife, we only havee the word “WITNESS”
“WITNESS”— Par (5)-separate propertyerty which is used by the family; even
that the wife only witnessed that the husband
usband has executed debt/ liablility for taxes and expenses for mere preservation
and entered into a transaction with a 3 person. Will the
obligation of the incurred by the Husband be binding to the Art. 94 Par (6) any activity for self improvement
Community Property?
YES,, such signature as a witness is aan implied Ex: Wife wants to take up law, chargeable to
consent, as decided in Community Property
roperty no matter how long it takes her

[MARMONTH RESORT HOTEL CASE] Art. 94 par (7) Ante nuptial Debt of either benefited the
this is taken as a form of implied consent because family
when you witness a document,, necessarily you are
aware of what the document embodies and what it arriage entered a contract of loan and
Ex: Husband before Marriage
stands for and that when you did not make aany money acquired from such loan was used for the building of
objection, means you are consenting to the the house for the family. The loan is chargeable to the
transaction. Community Property

Art. 94 par 3 DEBTS by either 1 WITHOUT the consent of the Possibility of Inequitable situation: A spouse
sp may have a lot of
other obligation prior Marriage
arriage. He may be indebted to a lot of
people and at the same time, he may have lots of properties.
BUT in lieu of consent, you need to show BENEFIT to the He gets married. All his propproperties that he owned prior to
family, Marriage will now be considered Community
C Property BUT
this obligation he incurred prior to M Marriage will not be
What kind of benefit? automatically
matically chargeable to Community
C Property BUT ONLY
DIRECT benefit to the extent that the obligations
obli may have redounded to the
benefit of the family. Hence, if only 10% of the obligations
Example: redounded to the benefit of the family, 90% remaining will be
Husband agrees to act as guarantor from his company separate obligation of the debtor-spouse.
debtor Problem is, most of
because he was requested to do so by his bosses. If he his properties now becomes Community
C Property which as
decline then he runs the risk of displeasing his superiors and General Rule is not chargeable for ante nuptial obligation if
that may jeopardize his livelihood. So he agrees. Problem is, not redound to benefit of the family.
the corporation falls off and he is now being called on the
guaranty. Can the Creditor of the company run after the Art 94 Par (8) DONATED/PROMISED
/PROMISED by BOTH spouses and in
conjugal assets of the family on the ground that this is favor of COMMON LEGITIMATE
indebtedness which redounded to the benefit of the family;
therefore chargeable to the Community Property
P although Art 94 par (9) Ante nuptial debts, not redounding to the
without consent of the other spouses? benefit of the family,, support illegal,
illeg crime/quasi delict
NO; although he may be benefited with this
transaction (napabango niya ang pangalan niya sa This refers to obligation pertains solely to the debtor-spouse
bosses) but this is a form of an INDIRECT benefit.
Who shall be liable?
Different matter if it is his livelihood to act as Spouses themselves with
w their separate properties
guarantor and that is his form of livelihood OR if he
acts as guarantor for his own indebtedness.(ex: he roperty be liable?
When will Community Property
offers property to guaranty his obli
obligation incurred in “ABSENCE/INSUFICIENCY”
SUFICIENCY” of separate
sep property of
his livelihood in that case there is a DIRECT benefit to the debtor-spouse
the family
When we say absence/insufficiency of the debtor-spouse
debtor the
Art. 94 pars (4) & (5) BOTH speaks of taxes, liens and he is considered under the law to be insolvent
How does this
is work? Can Creditor proceed against the
broader in scope because deals with Community
Par (4)-broader C Community Property upon showing debtor insolvent?
Property, ownership is vested with the Absolute
bsolute Community This provision appears to be easier said than done
of Property particularly when you go to Conjugal
C Partnership of
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Gains which imposes an additional condition: If Community Property is insufficient to satisfy these
satisfaction of all the obligations chargeable against obligations,, what will happen?
the conjugal partnership. The spouses
ses shall be SOLIDARILY liability
liab using their
separate property
erty. Exception: par(9)—because it will
When can we make use of this provision? Under what be a ‘chicken and egg situation”; because the reason
circumstances? why par(9) is being charged in the community
CREDIT TRANSACTION (Provisions in Concurrence property because debtor-spouse
debtor has no separate
and Preference of Credits)If If the debtor happens to property of his/her own.
be married, when can Community ity Property be liable
for his personal obligation? BUT on the point of view of the other spouse,
sp the
The reason why Community
ommunity Property is other spouse
se who is not the debtor for the items in
made to answer for the personal obli
obligation par(9), can the other spouse(not
sp the debtor-spouse)
of the debtor-spouse, se, in case of be now liable for these?
insufficiency/absence of separate
sep property,
because he also has an interest in the Example: Can Wife be made liable/legally obliged for the
Community Property.. That’s why he is support of the illegitimate child of the Husband,
H if the
allowed to charge his personal obligation
obli husband does not have sufficient property to answer for the
against Community Property roperty as last support and, at the same time, when Community Property is
recourse. Because he has interest therein. no longer sufficient to satisfy personal obligation
obli of Husband
as in par (9)? Can the separate properties of the wife be used
How will you determine the extent of his interest in the for the support of the illegitimate child of the husband?
Community Property itself? Does it mean that whe when there is a There would be n no legal obligation on part of Wife to
Creditor knocking at your door to collect on a personal give supportrt to illegitimate Child of her Husband,
obligation,, that will justify the liquidation of the Community
C that will NOT be covered by subsidiary liability of
Property to satisfy obligation of debtor-spououse? spousess for charges against Community
C Property.
This is a provision in law which is oftentimes ignored
because of the personal ties of the spouses.
sp They will Hierarchy of support
not insist that they will have to wait for liquidation, Art. 105. Subject to the provisions of the succeeding articles, the
following are obliged to support each other to the whole extent set
there would be voluntary satisfaction but that is not
forth in the preceding article:
based on any legal obligation.. Something done (1) The spouses;
voluntarily. But if you’ll be technical about this, there
must be liquidation of the community properties (2) Legitimate ascendants and descendants;
especially for the conjugal partnership
nership, you have to
(3) Parents and their legitimate children and the legitimate and
wait until all of these obligations
gations are satisfied. illegitimate children of the latter;

So the legal requirements provided by law are (4) Parents and their illegitimate
illeg children and the legitimate
and illegitimate children of the latter; and
sometimes ignored because of the family relations
existing among spouses.
ses. They act as one. (5) Legitimate brothers and sisters, whether of full or half-blood


Obligations where Debtor--spouse ALONE is liable:
Are we encouraging that the spouses
ses litigate on each other? 1. Ante-nuptial which do not benefit the family
NO. Applicable in litigation between spouses
sp in legal 2. Support of the illegitimate children
separation, declaration of nullity and annulment of 3. taxes expenses on separate
sep not used by family
Marriage unless suit is groundless 4. obligations incurred without consent of other spouse
and which did not benefit the family
This is not applicable to the spouse who is the defendant 5. gambling debts

If a suit for legal separation is dismissed, can the spouse Art. 96. The administration and enjoyment of the community property shall
recover from the complainant-spouse? belong
elong 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
Not necessarily because the dismissal may be for
remedy, which must be availed of within five years from the date of the
other grounds like technicality contract implementing such decisio

61|P a g e

In the event that one spouse is incapacitated or otherwise unable to No consent of the other spouse, the contract is void,
participate in the administration of the common properties, the other spouse
but so long as the other party has not withdrawn its
may assume sole powers of administration. These powers do not include
disposition or encumbrance without authority
uthority of the court or the written offer or interest in the transaction, tthen mere
consent of the other spouse. In the absence of such authority or consent, the consent of the other spouse
sp will be sufficient for a
disposition or encumbrance shall be void. However, the transaction shall be valid contract to arise between the parties. Isn’t this
construed as a continuing offer on the part of the consenting spo
spouse and the
the way
ay you ratify a contract?
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. If a contract is entered into in your behalf without
your consent, that contract is unenforceable. But
What are the rights do the spouses acquired with regard with
wi once u learned about the contract and u give ur
the Community of Property? consent thereto, the contract becomes valid because
The family code speaks only of Enjoyment and of ur ratification.
Administration; silent on Ownership,
Would that amount to RATIFICATION?
Even if with the silence of the law do we still take it as there is NO, although it has all the hallmarks of a ratification.
ownership enjoyed by the spouses?
Even if the law does not speak so, we mu must take it as Generally, Ratification carries RETROACTIVE EFFECT
implied from the nature of Absolute
bsolute Community of that the contract will be binding from then
the it was
Property where co-ownership
ownership is enjoyed by the entered into.
Who shall administer the properties? once consented to by the other sp
spouse, will only be
BOTH jointly perfected FROM THAT MOMENT, when consent c is
given. [Law is very careful here that’s considered
In case of disagreement, Husband
usband decision prevails only “continuing offer”, which may be accepted by
BUT wife can file petition w/in 5yrs from time of the other spouse
se at any time]
transaction by Husband with the court
Here, it is only upon ACCEPTANCE (meeting of the
What happens if one spouse is incapacitated or unable to minds) that will give rise to a perfected contract.
participate in administration of properties?
In the event that one spouse is incapacitated or Can the spouses
uses dispose of their interest in the C
otherwise unable to participate in the administrati
administration Property?
of the common properties, the other spouse may YES.
assume sole powers of administration. These powers
do not include disposition or encumbrance without Example:
authority of the court or the written consent of the a Community Property is composed of a House
H &Lot, a car, a
other spouse. parcel
arcel of land. there a 3 properties
prop belonging to Absolute
Community of Property.. If Wife
W wants to dispose her interest
If other spouse wants to Dispose or Encumber, what must be in the community property, what can she dispose of? of The
done? House &Lot is worth the combined value of the parcel of land
Must have court authorization or written consent of and the car.
other spouse. Wife cannot specify specific property

Ex: Husband cannot be found, so he canno not participate in When the law speaks of “INTEREST” this will mean the ideal
administration of the properties. The wife wants to mortgage interest in the community property. She cannot dispose of
and proceeds with mortgage of the property.
property Mortgage is an specific properties
encumbrance. Mortgage entered into without authorization
by court or consent of Husband. What is the status of the When you alienate a property
erty in Community Property, it must
mortgage? be with the consent of BOTH spouses.
Mortgage is VOID but is considered as a
CONTINUING OFFER as long as other party has not Is donation a form of alienation?
withdrawn. YES

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Can the spouses make donations involving C Community period of time otherwise, 3rd persons will be
Property? prejudiced.
General Rule: they Cannot donate community
properties without consent of other 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 o judicial
separation of property.
Exception: charity, family
ily rejoicing/distress
When the waiver takes place upon a judicial separation of property, or after
Example of family distress, where there can be a donati
donation? 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.
When does Absolute Community Property commence? Can a spouse waive his rights, interest and shares in the
from the moment of the celebration of the Marriage
M community property during the marriage?
No waiver of rights, shares and effects of the
If the Marriage celebrated at 5pm, will you say that prior to absolute community of property during the marriage
5pm there is no Community Property to speak of yet? Are we can be made
that technical that we go by the hour/minute when the vows
are said? Exception
NO, even though the law speaks of precise moment,
moment Judicial Separation of property. There will
in REALITY, it is enough that we do it by the DAY of be liquidation of Absolute
A Community of
the wedding. From that day forward there would be Property
roperty. Hence, the rights of the parties
Absolute Community Property. can be determined and now can waive.
waive The
Waiver must be contained in Public
Can the spouses make Marriage settlement subject to a document and Recorded.
suspensive condition?
Can waiver be objected/questioned?
Example: YES, Creditor, to the extent of the interest in the
“that Community Property will not begin UNTIL 5 years after Community Property
the Marriage?
NO, When Community Property
roperty DISSOLVED?
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
But aren’t they allowed to make stipulation in M
(2) When there is a decree of legal separation;
Settlement? (3) When the marriage is annulled or declared void; or
NO, law is clear (4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Can they make the adoption of the Communityommunity Property
subject also of a suspensive condition in the M Marriage Art. 99 par 3
Settlement? Example:: “we will be governed by C Conjugal This refers to VOID Marriages
M only in Art. 40 in
Partnership of gains unless this condition happens, we will be relation to Art. 50
governed by Absolute Community Property”” Can they do thisthis?
We cannot deviate from the time prescribed in the why do we always say in relation to Art. 50?
law for the commencement of property regime and Because taking Art. 40 alone will not tell us that the
it does not matter even if the deviation is in the form law provides for
or another instance of a void Marriage
of stipulation directly providing for the
commencement period or it is in the form of Why cannot relatee this to other instances of VOID Marriage?
suspensive condition. we cannot deviate from the because Absolute
bsolute Community of Property CAN EXIST
commencement prescribed in Art. 88 even if IN A VALID Marriag
stipulated in Marriage Settlement.
in other cases of VOID Marriage
M like those arising
Why? from Arts. 36, 37 and 38, we can only refer to
Because the property regime DOES NOT only affect Articles 147 and 148.
the spouses BUT ALSO third person ((Creditor/s).
Therefore, the law does not allow that status of your
property regimes be made undeterminable for a
63|P a g e

Some spouses separate from one another without securing

decree of legal separation but what they have is sep separation If you are the abandoned, what is you REMEDY?
de facto/in fact. Does this have any impact/effect on the receivership, judicial
jud separation of property, sole
Absolute Community of Property? administration
NO. Even if you separate in fact from your H Husband,
there’s still a chance
ance that you may be liable for ~All these provisions re: ADMINISTRATION,
obligation that he incurs on his own if it would fall on COMMENCEMENT, DISSOLUTION, AUTHORITIES FOR
those which can be charged on the C Community SALE/ENCUMBRANCE also holds true for Conjugal
C Property of
Property. Gains

How can you be liable? bsolute Community of Property [ART. 102]

Because at the same time, any property you acquire
DURING the Marriage which is still existing,
ex will form STEPS:
part of the Community Property.. It’s as though you Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
are still living together. Everything is as it was. So if
(1) An inventory shall be prepared, listing separately all the
you decide to separate from your H Husband, better properties of the absolute community and the exclusive
make sure that you are protected by asking for at properties of each spouse.
least a judicial separation of property
prop if you don’t
(2) The debts and obligations of the absolute community shall be paid
want to secure a decree of legal separation. In that
out of its assets. In case of insufficiency of said assets, the spouses
way, your property will be liquidated and there will shall be solidarily liable for the unpaid balance with their separate
be no possibility of your property will be considered properties in accordance with the provisions of the second
Community Property that in turn may be answerable paragraph of Article 94.
for the obligation he incurs.
(3) Whatever remains of the exclusive properties o
of the spouses shall
thereafter be delivered to each of them.
Would there be right to support?
It depends, If other spouse se is compelled to leave, (4) The net remainder of the properties of the absolute community
shall constitute its net assets, which shall be divided equally
there is still right to support
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements, or unless
What if spouse present needs to encumber of the property there has been a voluntary waiver of such share provided in this
belonging to the absent spouse? Code. For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
Spouses may ask from court which shall be governed
the said profits shall be the increase in value between the market
by summary proceedings.. She shall file an value of the community property at the time of the celebration of
application in the court which will b e governed by the marriage and the market value at the time of its dissolution.
summary proceedings
(5) The presumptive legitimes of the common children shall be
red upon partition, in accordance with Article 51.
Remember: you cannot dispose of the separate property of
your spouse, but you can encumber (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
What is the purpose of the petition?
majority of the common children choose to remain. Children
To encumber of a separate property of the absent below the age of seven years are deemed to have chosen the
spouse which you do not own and the Community mother, unless the court has decided otherwise. In case there in
Property insufficient, go to court for judicial no such majority, the court shall decide, taking into consideration
the best interests off said children.
authorization to ADMINISTER OR ENCUMBER and
then u will be allowed to use proceeds ,fruits or
income to satisfy the obligations chargeable to the What do we call the remainder of the community property
absolute community of property. after the obligations have been satisfied?
Net Assets
There is ABANDONMENT when one of the spouses leave
conjugal dwelling without intention of coming back What are net profits?
the increase in value between the market value of
It is presumed that there is no intention to come back if the the community property at the time of the
other spouse who left does not ot come back within a period celebration off the marriage and the market value at
of3 months OR does nott leave any information as to the time of its dissolution.
whereabouts within same period
64|P a g e

What is the _____ in accordance with article 43, No. (2) and When do the possibility of a co-ownership
co to exist between
63, No. (2)? the spouses independent of the absolute community of
The net profits which are the subject of forfeiture. property?
Example:: Donation Jointly in favor of Husband
ontrary to the common notion that the guilty &Wife?
spouse in legal separation will end up with Still separate because gratuitous BUT co-
absolutely nothing because of the forfeiture, this owned cause gratuitous BUT since given to
tells us that the forfeiture is limited in scope. Weonly Husband
usband &Wife, it is a separate property
forfeit the increase in value of the prop
property at time co-owned
owned by the Husband
H &Wife.
of commencement of Marriagecompared compared value at
time of dissolution of Absolute bsolute Community of Is it a Community
ommunity Property?
Property. NO because it is acquired by Gratuitous title

Where do you carry out the liquidation? In what proceeding? CONJUGAL PARTNERSHIP
General Rule: in the Ordinary Proceeding relating to
the dissolution of Marriage and/or the A Absolute How can the spouses
ses adopt the Conjugal
C Partnership of
Community of Property Gains?
ONLY 1 WAY, by adopting it in the Marriage
Exception: Absolute Community
ommunity of Property Settlement
dissolved by DEATH proceeding for settlement of
estate which may be judicial or extrajudicial
extrajud Beauty of this regime: you can provide for the rules that will
govern your conjugal partnership in your Marriage
Supposing that there is no proceeding within 1 year from the Settlement
time of death of the decedent spouse?
If no such judicial proceeding brought for settlement The rules in Marriage Settlement
ettlement will primarily govern the
of estate from time of death, Surviving spouse
sp MUST conjugal partnership.
nership. The rules in the Family code will be on
liquidate the absolute community of property either supppletory application. In case of insufficiency of the rules in
judicially or extrajudicially the marriage settlement and in the family code then we apply
the Rules on Partnership.
If she fails within 1yr after the death of the decedent
spouse, any encumbrance or disposition
dispo shall be Separation of property can be adopted in 2 WAYS:
VOID 1. Marriage Settlement
ettlement or
2. Judicial Separation
aration of Property
If the surviving spouse marries again, the
subsequent marriage will be governed mandatorily Before, Conjugal Partnership
artnership of Gains is the default regime.
by separation of property.
How will the provisions of the Family
F Code affect existing
In every Marriage,, there will always be 3 Patrimonies in conjugal partnership?? Will they be converted to Absolute
Absolute Community of Property: Community of Property?
• Absolute Community of Property The provisions of Family
F Code on Conjugal
• Separate Property of Husband Partnership of Gains
G shall be applied to Marriage
• Separate Property of Wife prior to effectively of Family
F Code BUT without
prejudice to the vested rights
If we envision the concept in the abovementioned way, it is
easier to designate the obligations chargeable to the What is the concept
oncept of the Conjugal Partnership?
Community Property, to the Husband/Wife. Art. 106. Under the regime of conjugal partnership
of gains, the husband and wife place in a common
It will also be easier to appreciate that it is possible of a co-
co fund the proceeds, products, fruits and income from
ownership to exist between the spouses independent of the their separate properties and those acquired by
absolute community of property. either or both spous
spouses through their efforts or by
chance, and, upon dissolution of the marriage or of
the partnership, the net gains or benefits obtained
by either or both spouses shall be divided equally

65|P a g e

between them, unless otherwise agreed in the of the other donee-spouseunless

donee donor provides for
marriage settlements. the contrary

Conjugal Partnership of Gains, the spouses will retain ~Art. 753 is an exception to the General Rule: Accretion does
the ownership of their separate property
prop prior to not take place
Marriage.. What will they contribute to the common
fund would just be the proceeds, products, fruits, Exception: unless contrary is provided
income of these properties. s. BUT Capital remains
with the owner-spouse. And whatever
hatever they acquired Different rule when it comes to donation to spouses jointly.
through effort or industry will also be contributed to Accretion takes place as a matter of course.
the common funds that should also include their
wages and salaries Art 109 par 3.
Explain: Property sold with right of redemption
Just like in Partnership, in the end, capital will be returned to
you + share in the Conjugal Partnership of Gains.
G What will be What are the rights do the spouses
sp enjoy with their separate
the composition of that? property?
Whatever has been acquired or contributed
contri with the Art. 110. The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties.
use of conjugal funds
Either spouse may, during the marriage, transfer the
It is for this reason that the law makers thought that administration of his or her exclusive property to the other by
Community Property is more in keeping with the concept of means of a public inst
instrument, which shall be recorded in the
registry of property of the place the property is located.
unity and oneness. Because in Community
ommunity Property, it is
possible that the one would have very little would walk away
from the marriage with equal shares as the other one who Is it possible for them to transfer administration
admin of separate
had the bulk of the property. While in Conjugal
onjugal Partnership of property to the other spou
Gains, chances are, you would still walk away with what you YES.
have at the start of the Marriage. If any increment would only
pertain to the shares of the property acquired thru the frui
fruits, When will this terminate?
income/proceeds of your separate property erty or those to your Alienation of other spouse
sp OR it can be terminated
labor, efforts or industry. “at will” and no need to go to court.
court You do not have
to alienate the property to terminate the
What are the exclusive properties? administration. Although alienating the properties
Art. 109. The following shall be the exclusive property of each subject of administration is also a means of
spouse: terminating the administration
(1) That which is brought to the marriage as his or her
How do we treat
reat annuities, gratuities,
gra pensions, usufructs?
(2) That which each acquires during the marriage by
gratuitous title; GO TO THE SOURCE: Whether onerous or gratuitous
(3) That which is acquired byy right of redemption, by
barter or by exchange with property belonging to only PENSIONS – something received after retirement
one of the spouses; and
(4) That which is purchased with exclusive money of the
wife or of the husband. BASIS: if he is entitled to the pension as a matter of right as
part of his benefits arising from his industry/labor and
Acquisition DURING Marriage by Gratuitous title—includes
title therefore this should be taken as part of the conjugal
donation. Donation
n can be done in favor of the spouses.
sp If it partnership of gains.. But it is something that he is not
is donated in favor of the spouses then that will be co- entitled to as a matter of right, it is voluntarily given to him,
ownership of separate property then that will be his separate property (Gratuitous title)

ACCRETION and DONATIONS made to 2 donees How do we know if it was given because of his services?
JOINTLY Look on the circumstances. Whether or not
onerous/gratuitous title
Is this provision applicable to the spouse here?
YES. If donee spouse renounces,
enounces, incapacitated or Ex: you give waiter a TIP/gratuity. You give this because of his
predeceased donor, There will be accretion in favor services

66|P a g e

PROCEEDS OF LIFE INSURANCE POLICY applicable REGARDLESS of whose name property

prop is
When you are given a life insurancerance policy, you have the titled/registered
privilege of indicating your beneficiary. If there is an indicated
beneficiary the Proceeds go to the beneficiary (1) Redemption using exclusive
(2) Purchases using exclusive
But if you make your own estate your beneficiary, that’s the
time we determine whether or not the proceeds will be What comprises Conjugal Partnership
P of Gains?
treated as conjugal or separate,, and the way to do that would 1. Those acquired by onerous title during the marriage
be to go to the source of the premiums payment. at the expense of the common fund, whether the
• If payment is sourced from conjugal ugal funds, then the acquisition be for the partnership, or for only one of
proceeds, even if given
ven to your estate, is conjugal the spouses
• If premiums are sourced from the separate
sep property [Zulueta Case] damages awarded because of breach
then proceeds is separate property of contract of carriage. How do we treat the award
RETIREMENT BENEFITS:: goes to you as Matter of right; arises for damages?
from fact of your employment Damages (actual losses, moral-because
moral this
SOURCE: industry/labor; therefore its conjugal will affect his capacity to work. This has an
partnership property interest to his earnings
earnings. And whatever he
earns would form part of the ConjugalC
tnership of Gains?
Is there also a presumption in Conjugal Partnership Partnership
artnership of Gains) part of Conjugal
YES. Presumption ownership acquired DURING Partnership of Gains because purchase of
Marriage regardless of whether the acquisition plane tickets came from Conjugal C
appears on how then made contracted or registered Partnership
artnership of Gains.
in the name of one or both of the spouses.
Damages awarded for physical injuries suffered by
CONDITIONS to be meet for the presumption TO APPLY: Wife?
1. show that the acquisition done DURING Marriage
M Compens
Compensated for personal sufferings; no
contract that may have been funded by the
If property registered during M Marriage, is that Conjugal
onjugal Partnership of Gains, Wife’s basis
enough to give rise to the presumption? is the PAIN
PA inflicted on her body. The
NO. registration, by itself, does not give rise damages awarded to her will be treated as
to the presumption of acquisition of personal property
prop (separate)
ownership during the marriage
marriage. Because
acquisition may be done prior to Marriage
M 2. Those obtained from the labor,
la industry, work or
but only registered during Marriage. profession of either or both of the spouses;
whatever they earn in the exercise of their
LTD: Registration is not a mode of profession, job, functions. Correlate this to
acquisition of ownership. par.5 whatever they acquire through
X Tax declaration executed during the
Marriage will not also be treated as proof of OCCUPATION - mode of acquisition of ownership of
acquisition DURING Marria
arriage property over properties
prop which did not have any
previous owner (res nullius)
Ex: Property is named: “Mr. Laure married to Ms.
Liwag”? Would that give raise a presumption that Ex: hunting/fishing
nting/fishing you create ownership for the
the property belong to the Conjugal partnership? first time
No. Absence any showing that acquisition
took place during the marriage that phrase “married 3. The fruits, natural, industrial, or civil, due or received
to” will only be taken as only a descriptive of civil during the marriage from the common property, as
status. well as thee net fruits from the exclusive property of
each spouse;
But once that condition is satisfied, once it is shown
that there is acquisition during the marriage then It is not required that the fruits fallen due
presumption of Conjugal Partnership
artnership of Gains is
67|P a g e

FRUITS [of Conjugal Partnership

artnership of Gains] the payment was done during the 2nd Marriage. Part of
due/received during Marriage (natural, civil, payment was from fund of 2 Marriage. How should we treat
industrial) = NET FRUITS [of exclusive/separate
exclusive/sep the property?
property] This will pertain to the CPG of the 2 marriage
REIMBUR for the contribution.
• If it is common property then it is just fruits How do we treat CREDIT PAYMENTS? (Art 119)
• But if it is separate property it is Net Fruits • Payment on principal, since this isi capital, should
belong to the - creditor sp
What is the difference? • Payment on interest, since this is considered as
Because owner-spouse is allowed to deduct fruits/income - conjugal
expenses of administration
istration from the fruits
of the separate property Art. 119. Whenever an am amount or credit payable within a period
of time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by
Ex: fruits come
ome from income coming the rental from installments on the principal shall be the exclusive property of the
separate property,, you have overhead expense. This spouse. However, interests falling
fall due during the marriage on the
must first be deducted before fruits be given to the principal shall belong to the conjugal partnership.
Conjugal Partnership of Gains
SEP PROPERTY of spouse
4. The share of either spouse in the hidden treasure through CONJUGAL FUNDS or EFFORTS of the spouse
which the law awards to the finderer or owner of the If the COST OF IMPROVEMENT and INCREASE IN
property where the treasure is found VALUE OF THE PROPERTY
PROP is greater than the value of
the property at the time of Improvement - Conjugal
What is hidden treasure? Partnership of Gains
G subject to reimbursement of
Any hidden or unknown deposit of money, the value of property
prop at the time of the
jewelry or other precious things and the improvement OTHERWISE, it shall belong to owner-
ownership of which does not appear spouse

5. Those acquired through occupation such as fishing *speak of LIQUIDATION when the time ti
or hunting reimbursement is MADE. BUT as to the VALUE to be
reimbursed, look at the time of improvement.
6. Livestock existing upon the dissolution of the
partnership in excess of the number of each kind This Rule applies only if Improvements were done on
brought to the marriage by either spouse properties BELONGING to either 1 of the spouses.

~naturally, if the M lasted for 20 years, you What if Improvements were done on the properties
prop belonging
do not expect to receive the original to the parents of the Wife.. After completion of improvements,
livestock that you brought in.
in parents died. Wife inherited the property?
RULE is not applicable because the improvement in
7. Those acquired through occupation such as fishing the example were not property belonging to either
or hunting spouses because such property is made belonging to
3 persons. Improvements belong to Wife W as
What is the rule regarding property bought on installments SEPARATE property
erty. [BASIS: Accessories follow the
paid partly from exclusive funds of either or both spouses and principal.] Ownership of the accessory follows
partly from conjugal funds? ownership of principal. Ownership is vested on the
BASIS: TIME OWNERSHIP is vested parents of Wife. So when they died, it was passed on
If vested during Marriage - conjugal to the Wife by gratuitous title.
If vested before Marriage
arriage - separate
property BUT subject to REIMBURSEMENT BUT NOT UNDER FC but
[Jovellanos vs. CA]- Husband had a prior Marriage
ERTY as regards, BUILDER.]
dissolution of his first marriage,, he contracted 2 Marriage,
BUT prior to 2nd Marriage,, he acquired properties
prop which he
was paying for inn installments, only that the completion of
68|P a g e

CIVREV_4A8 In the same manner the partnership will have the right to
make use of the separate property of the owner spouse by
Prior to the liquidation of the conjugal partnership and the virtue of his right of usufruct.
payment off the endorsement, how shall we treat the
ownership of the property and the improvements? We do not apply article 120 if the property upon which the
What happens here is that the land property most improvements are made de do not belong to anyone of the
probably that upon which improvements are: spouses and belongs to some third person. You look at the
a) Improvement can be in the form of a real thing.
thi ownership at the time the improvements are introduced.
These could be the building. This is constructed
and an expense on the conjugal funds or The example given was property that belongs to the in-laws
through the efforts of the spouses which will of the husband, improvements are introduced usingus conjugal
surely make it conjugal. funds. After the improvements were introduced, the parents
b) The parcel of land which pertains in ownership died, the wife inherits by gratuitous title,
title during the marriage
to the owner spouse. making the land her separate property. Question who shall
own the improvements, do we apply the formula in art. 120?
Ownership of the entire property will only vest in one o Wee do not because this situation does not fall within
personality or one entity, it’s either the conjugal partnership the provisions of article 120.
or the owner spouse at the end of the conjugal partnership of
gains, when there is liquidation or when proper What do we apply then?
reimbursement is made. Ordinary rules of accession. Meaning the
ownership of the accessory which would be
Prior to liquidation, ownership shall be retained by the
th owner the improvements would follow the
spouse over the parcel of land. In n the same way that ownership of the principal. Subject to any
ownership over the improvements will still pertain to the right of reimbursement that the law will
conjugal partnership of gains. grant the conjugal partnership. “accessory
follows the principal”.
So what happens is, we have separate ownerships over
properties that are joined together. This
his will prove
pro to be Different situation. The husband who owns the land was able
impractical or inconvenient because if you are the owner to sell the land in favor of a third person. Syempre, if you’re
spouse you will be hard put selling the property you own,
own if justt another third person, you do not have knowledge that the
there is a building constructed thereon which does not funds used to build the building are conjugal in nature. In all
belong to you. probability, you will consider it to be as of the same nature as
the land. If it’s represented as the separate property of the
imilarly, if you are the conjugal partnership
partnership, you’ll also be husband,
nd, you can take it for granted that the building is also
hard put selling the improvement. Can an you imagine selling a his separate property. So you buy it, title is vested in you both
building without out the land on where it stands? But over the land and the building. The husband dies, can the
unfortunately, that’s what the law provides. And this is so wife now in representation of the conjugal partnership, seek
because the law does not provide that ownership over the reimbursement nt from the buyer or third person who bought
entire property shall vest upon the introduction of the property, both the land and the improvement, can she
improvements. Instead, it vests the ownership at the time of invoke article 120?
reimbursement which (is given fix) to be done at the time of Art 120 does not apply. It cannot
c be invoked against
liquidation. a person who is not one of the spouses. What we
have here is a case brought by thet wife on behalf of
Now given that situation, what right does the conjugal the conjugal partnership against a third person or
property have over this parcel of land
and over which the building the buyer.
just like with regard to the other separate properties What is the recourse of the wife?
of the spouses, the conjugal partnership enjoys a her recourse is to bring the claim for reimbursement
right of usufruct. This is why the conjugal in the proceedings for the settlement of the estate
partnership has ownership over the fruits and of the husband. Because if there
ther is any
income of the separate properties
roperties of the spouses. reimbursement that is due from the husband it can
be claimed in the proceeding in the settlement of his
estate. You cannot claim that from a third person
especially since you are claiming under art. 120.
69|P a g e

Charges against the conjugal partnership of gains.

The charges against the conjugal partnership are the Note: we do not speak of redounding to the benefit of the
same as the charges against the community property family if it is personal obligations
with very suttle
ttle difference but over all they are the
same charges. Ex. Support, obligations, etc. What will be the liquidation of the conjugal partnership of
gains before payment of the personal obligations
obl of the
Differences: debtor spouse may be made? Because the law says that all
More than just the literal exclusion clusion of this personal the obligations of the conjugal partnership must first be
obligations of the least imposed chargeable against the satisfied, so how exactly will you do that? How do we know
conjugal partnership property. What you must focus on that all the obligations have been satisfied? Must we call
would be the Imposition of an additional condition to make upon all the creditors of the conjugal partnership? And you
them the liability of the conjugal partnership. You would must know that this only takes place when you have
know w that these personal obligations consisting of ante ante- liquidation proceedings, where you gather all the creditors
nuptial debts not redounding to the benefit of the family, and pay them off. Does the law require that the conjugal
support of the illegitimate children, liabilities from fines and partnership be liquidated for us
u to apply the last paragraph of
indemnities, these are also personal obligations that fall Art. 122?
primarily upon the debtor
ebtor spouse. It is the debtor spouse this has been ruled upon by the SC in the case cas of
who is liable for them. And the same still holds true for People vs. _____tas, the SC interpreted art 161
conjugal partnership. Yun nga lang sa community property it which is now reproduced as art 122 under the family
is considered to be the liability of the community property at code, the SC said that the conjugal partnership may
the first instance, at the outset, you only need to show that be held liable
able for the payment of fines and
the debtor spouse does not have sufficient properties of his indemnities due from the debtor spouse who
own. In which case it can be charged to the community. The committed a crime. And An that payment may be
same rule still applies for conjugal partnership only this time, _____ on the conjugal partnership even without
in addition to show the insufficiency of the separate liquidating the same. What is the basis of the SC for
properties of the debtorr spouse, you also need to show that saying that? The SC said art 161 is clear. That
all the other obligations have already been satisfied. These payment shall be made from partnership assets and
obligations are those mentioned in art. 121. In community that furthermore, art 161 says that there should be
property there is no such requirement, that means so long as reimbursement at the time of the liquidation of the
he property of the debtor spouse is insufficient, the conjugal partnership. All of which are sufficient to
community property can actually be answering for personal indicate that the payment of indemnities
in or the fines
obligations and community obligations, all at the same time. can be had even during the subsistence of the
In conjugal partnership it cannot be. There should be two conjugal partnership. And also appears to be
levels, the first level will be satisfaction ahead of all the supported by art. 129 which are the steps to be
obligations of the conjugal partnership under art. 121, if may taken for the liquidation of the conjugal partnership.
matitira, then the conjugal partnership will also answer for
the personal obligations. So there will be two steps. Note class, that after taking the inventory
in of the conjugal
partnership properties and the (separate) properties of the
For community property, those personall obligations incurred spouses, the next step crediting amounts advanced by the
during the marriage are not chargeable against the absolute conjugal partnership in payment of personal obligations of
community property because item no. 9 of art 94 only speaks the spouses as assets of the conjugal partnership. When
of ante- nuptial debts not redounding to the benefit of the trying to credit amounts that we have paid to the assets of
family. Does it also hold true for conjugal partners
partnership? Does the conjugal partnership at the liquidation of the conjugal
the conjugal partnership also exclude personal obligations partnership and this presupposes that the payments were
incurred during the marriage? made before the liquidation of the conjugal partnership.
apparently the same rule also holds true for conjugal
partnership although you will notice that in the first Last meeting I mentionedioned that most of the provisions in
par. Of art. 122 speaks of personal obligations conjugal partnership are the same as the provisions of the
incurred during or before the marriage as though to Absolute Community of Property:
P the test of separation in
imply that even personal obligations incurred during fact, joint administration, grounds for dissolution.
the marriage will be covered, can be charged against
the conjugal partnership but the third par. makes
m it
clear that it is only limited to ante-nuptia
nuptial obligations
not redounding to the benefit of the family.
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Steps for the liquidation of the CPG (Art. 129 o

of FC): (9) In the partition of the properties, the conjugal
(1) An inventory shall be prepared, listing separately dwelling and the lot on which it is situated shall, unless
all the properties of the conjugal partnership and the otherwise agreed upon by the parties, be adjudicated
exclusive properties of each spouse. to the spouse with whom the majority
ma of the common
children choose to remain. Children below the age of
(2) Amounts advanced by the conjugal partnership in seven years are deemed to have chosen the mother,
payment of personal debts and obligations of eitheither unless the court has decided otherwise. In case there
spouse shall be credited to the conjugal partnership as is no such majority, the court shall decide, taking into
an asset thereof. consideration the best
bes interests of said children.

(3) Each spouse shall be reimbursed for the use of his The division of the net assets is usually equal. But the spouses
or her exclusive funds in the acquisition of property or may agree upon a different proportion of sharing or one o of
for the value of his or her exclusive property, the the spouses may also waive a portion or his entire share after
ownership of which
hich has been vested by law in the the liquidation of the property regime.
conjugal partnership.
(4) The debts and obligations of the conjugal - The only property regime that can be adopted
partnership shall be paid out of the conjugal assets. In during the marriage
case of insufficiency of said assets, the spouses shall - Can be agreed upon in the marriage settlement or
be solidarily liable for the unpaid bal
balance with their through judicial order
separate properties, in accordance with the provisions - If through judicial order, separation of property can
of paragraph (2) of Article 121. be based on a sufficient cause
ca as enumerated in Art.
135 or by virtue of an agreement between the
(5) Whatever remains of the exclusive properties of spouses
the spouses shall thereafter be delivered to each of - If the parties were to adopt a property regime of
them. separation of properties in their marriage
settlement, what can they actually stipulate upon?
(6) Unless the owner had been indemnified
indemnifi from if you can remember on our discussion on
whatever source, the loss or deterioration of movables community
unity property, spouses can stipulate
used for the benefit of the family, belonging to either on what property shall remain to be
spouse, even due to fortuitous event, shall be paid to separate, that’s on top of the exemptions
said spouse from the conjugal funds, if any. provided by the law.

(7) The net remainder of the conjuga

conjugal partnership So on top of the exemptions, they can
properties shall constitute the profits, which shall be widen the exemptions by specifying that
divided equally between husband and wife, unless a these properties shall be separate. That Th
different proportion or division was agreed upon in same provision, the same stipulations for
the marriage settlements or unless there has been a additional exemptions on the community
voluntary waiver or forfeiture of such share as property can also be considered as
provided in this Code. stipulations for partial separation of
property. Why partial? Because by saying
- net remainder shall constitute the net profits. Take that these are separate, the rest of the
note on the difference of the treatment of net profits property shall be governed by the absolute
in the Absolute Community of Property
roperty. In Absolute community of property. Is that allowed?
Community of Property,, net assets and net profits are Yes that is allowed because the law allows
different. Net profits in Absolute Community of you to add on to the exemptions from the
Property constitutes the increase in the value of the community property under art. 92. So if
property. But in Conjugal Partnership
artnership of Gains, net you do that, it can also be said that you are
assets are considered the net profits. adopting partial separation of property
regime and that is allowed. But it will be
(8) The presumptive legitimes of the common children convenient for you to opt for a total
shall be delivered upon the partition in accordance separation of property.
with Article 51.

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- Now if that happens, what will be the rights and - But the thing is that is well and good between the
obligations of the spouses when they will be parties themselves, but what about third persons?
governed by the separation of property regime? Example: if the school were to allow their children to
When it comes to the ownership, it’s no enroll using a promissory note, and the school is to
different from the rights in the exercise collect on the note, can the spouse whose share is
over their separate property either under only limited to 1/3 insist that she is only liable for 1/3
the community property or under the of the amount?
conjugal partnership. They are the absolute No. so far as the creditors of the family is
owners of their properties. concerned, they are solidarily liable. It will
be up to them to collect from another.
en it comes to obligations, they shall be - Another mode of adopting the separation of
proportionately liable for the expenses of property regime: thru judicial action. We
the family. mentioned that this can be for cause or by
agreement but always with judicial intervention. So
If it’s their personal obligations, they alone upon what grounds can we ask for judicial
will be liable, the debtor spouse will be separation of property?
liable. But if its obligations pertaining to the - Art. 135.
family, then they shall hall be proportionately
liable. By agreement:

What do you mean by proportionate Note that if it’s for cause, the petition will only be filed by one
liability? of the spouses. And that spouse will have to prove the
It is the equitable mode of sharing. existence of the ground. Although grounds from 1 to 8, the
Because if you always say equal presentation of the final judgment will be sufficient. The
sharing, then that does not take other grounds must be proven like any other material fact.
into consideration the capacity of
the parties. One will be more Now, if it’s by agreement,
agreement it will be by joint petition. They
tated than the other in will simply ask the court to approve their agreement to
terms of material debt. If one is dissolve their property regime and adopt the property regime
earning (quite) as much as the of separation of property.
other would it be fare that he ( )
contributes 50% or if the other one So there is already an agreement prior to filing of the
earns half as much as the other, petition. So we may ask upon which date will the property
would it be fare that she be made regime of separation of property will take effect between the
to pay the same amount as the one spouses. Is it the date of the agreement or upon the judicial
who is earning much more? No. so decree approving the agreement?
proportionate, meaning to say, the It is upon judicial approval. Because as we’ve said
same proportion will be reflected earlier, judicial separation of property during the
in their shares in the obligations marriage can only take place by judicial order.
for the family. Ano ang magiging
share nyo nyan? Since the ratio is Why is this? Why do we involve the court?
2:1, that means one will have 2/3 Because
ause the proceedings require publicity. Publicity
the other will ill be liable for 1/3. that will enablee the creditors to be informed. There
Marereflect yung 2:1 ratio. will be liquidation of the property regime governing
them. Liquidation will entail notices to the creditors,
so that they can participate. It’s no different from
the settlement of an estate.

Can the parties after dissolving the property regime

and then moving on to the separation of property
regime, can they still change their minds and go back
to their former property regime?

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Do they need to file a new petition?

No. they just need to file a motion in the Co-ownership
ownership follows sex? Is that what the law contemplates?
same proceedings. No. There are certain facts that must be proved,
among them, sexual relations, spontaneous sexual
What do they need to prove to revive their property relation;
ion; establishment of a common household;
regime? some kind of common fund; then you can rightfully
Prove the grounds for revival of the property say that the only thing missing would be a marriage
regime. And the said grounds are actually the contract because it has all the parts of family living.
opposite of the grounds for dissolution. When you say family living, it is not required that
you have children, you may only be two but you can
What are the grounds? be considered as a family. If you feel obligated to
Art. 141 take care of one another.

Is there a limit as to the number of times that the When that is established, then you need to look at
spouses can ask for a separation of property? the capacity of the parties to marry each other. If
If it’s by agreement and then they revived they are otherwise meant to marry each other, then
the former regime that they had, they can art. 147 applies.
no longer ask for separation of properties
by agreement again. Otherwise, they will Remember that under 147, there is co-ownership
co of
be trifling with the court proceedings. the wages and income of the parties and that is not
However, if it’s for cause, they can still do found under art. 148. There is co-ownership
co of the
so, provided it is for a different ground. properties acquired during the cohabitation. Once
more, there is a presumption that the properties
acquired during their
t cohabitation are acquired thru
PROPERTY REGIMES FOR UNIONS WITHOUT MARRIAGE their joint contribution or efforts. You may not have
(ART. 147 & 148) contributed materially to the property, but if you
have contributed to the care and maintenance of the
What we should remember about 147 and 148 is that it is household,
ousehold, that will be taken as a contribution.
premised on co-ownership.
ownership. The parties are considered to be
owners. To what extent, will depend on the circumstances If the acquisition takes place before or after the
of their cohabitation. If they are cohabiting without the cohabitation, you do not speak of co-ownership
co at
ty of marriage or under a void marriage but they had all.
capacity to marry each other, then we apply 147. All other
cases not falling under 147 we apply 148. During the time the cohabitation exists or continues,
neither one can dispose of his share in the
th co-owned
Art. 147 (requirements) properties. This is an exception to the general rule.
• Live exclusively – there is a requirement of General Rule: A co-owner can already
exclusivity dispose his share

When is this applicable? When the cohabitation is terminated, co-ownership

If the parties are cohabiting because they are will still continue unless the parties themselves will
married and their marriage is void, we won’t have put an end to the co-ownership
co by partitioning the
any problems in determining where they will fall co-owned
owned property.
under 147 or if not 148. The real problem will come
in if they are cohabiting without the benefit of What is the effect of the termination of the
marriage at all.. Because we need to find out cohabitation?
whether their cohabitation is already one which can Termination of the cohabitation will w now
be classified as that done by people living together only the parties to dispose of their interests
as husband and wife. in the co
o-owned assets.

So what do we understand by that phrase “living

“ together as Co-ownership
ownership subsists even if the cohabitation has
husband and wife”? Haveave presented themselves as husband ended. And one of the effects is that the parties can
and wife? now dispose inter vivos of their share in the
They live exclusively with each other. common assets.
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we’ve just discussed also that the separation in fact

If one of the parties happens to be in bad faith there between the spouses shall not have any effect on
will be forfeiture of his share in the assets. Take the conjugal partnership or the community property.
note that what is forfeited here is the share in the
assets and not just net profits. So he may actually You will only speak of per share in the co-owned
co property as
end up with nothing. And the forfeiture will end up belonging to the conjugal
al partnership or community property
in favor of the common children, if none, as supposed to saying the property shall pertain to, if there
descendants, if none, to the innocent party. was actual contribution from the other spouse.

To what kind of void marriages

rriages do we apply 147? Example: if ms. Pizania is married to laure but cohabitating
o Absence of marriage license, with vicario, do not immediately say that there ther is co-
o psychological incapacity, ownership. It may happen that all the acquisition was due to
o lack of consent, her efforts alone, no contribution from vicario in which case,
o absence of the marriage ceremony, no co-ownership,
ownership, in which case the entire property belongs
o absence of the authority of the solemnizing officer. to the conjugal partnership. Because separation in fact
between the spouses, shall have no effect on the conjugal
What if the marriage is void because of non non-compliance with partnership. Now if it can be shown that vicario contributed,
le 40. Meaning to say there is a prior void marriage but then there can be co-ownership,
ownership, but her share will still
the subsequent marriage was contracted without having the pertain to the conjugal partnership or community property
prior marriage declared as null and void. So this will be taken with the husband.
as void under art. 40 in relation to art. 50. Do we apply 147 or
148? o Forfeitures.
res. Same as 147.
No wee do not. For this kind of void marriage, there
is a recognized conjugal partnership or community
property to have existed. Although there is a ruling CIVREV1_4A9
of the Sc, carino vs. carino, where it applied art. 148,
but we should be more faithful to what the law Chapter 2. The Family Home
clearly provides, besides there is also the ruling of
valdez vs. rtc. What is a Family Home? Is it simply dwelling place of the
family?? Is it the same with family residence?
When do we apply 148? No, it has a legal connation
In all other situations not falling under 147. The
parties are incapacitated to marry each other. What is the kind of legal right which attaches the Family
Example: If the parties are living together and one of A right to be exempted from execution and
em is already married; if they are married and the attachment. It is a REAL RIGHT and some kind of a
marriage is void because of their capacity to marry, guarantee given to the family that so long as there is
incestuous marriage, against public policy. a ‘beneficiary’ residing in the family home, it would
be exempt from attachment and execution.
What is the difference between 147 and 148?
o There is no co-ownership
ownership of wages or income; Who can constitute
stitute a family home? Who can transform a
o there is also no presumption regarding the residence into a family home?
contribution for the acquisition of properties made The husband and the wife or unmarried head of a
during the cohabitation, family
o basis of co-ownership
ownership has to be proved,
o the basis is no less than the actual contribution. Who does the law referred to when it says “unmarried head
o Actual contribution is limited to material of the family?”
contribution, He is an unmarried person upon whom the other
o the non-material
material contribution recognized in 147 is beneficiaries
iciaries may be dependent upon for support
not recognized in 148;
o if one of the parties happens to be married, the Example:
property that he accumulates alone during the Single mother, unmarried sibling who supports his
cohabitation shall pertain to the conjugal siblings
partnership. And this is consistent with the rule that
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Given a number of relationship that one person can have, a Family Code. But the law does not provide for its
person is simultaneously a child, sister/brother
/brother, or a parent, retroactive effect. There is constitution as of
grandparent. Given this is various relationships attach to one effectivity of the Family
F Code and the effect of the
person, does it also mean that it is possible for one person to constitution is prospective in character.
have or constitute more than one family home or be a
beneficiary of more than one family home? For how long does the family home exist?
No, if u are a brother and u are already living with ur From the time of its constitution and so long as any
ster, u are dependent upon ur sister, u are already of its beneficiaries actually resides therein
a beneficiary of that family home. U cannot be a
beneficiary of another family home constituted by Supposing that the person who constituted the family home
another sister, grandparent or parent. U are entitled has died, how will that affect the family home?
to just one. Art. 159. The family home shall continue despite the death of one
or both spouses or of the unmarried head h of the family for a
period of ten years or for as long as there is a minor beneficiary,
What may be constituted as a family home? and the heirs cannot partition the same unless the court finds
Both house and the land compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constit
constituted the family home.
It cannot be the house alone independent of the land?
No, It must be both the HOUSE and the LAND on Who are the beneficiaries of the family home?
Art. 154. The beneficiaries of a family home are:
which it is situated.
(1) The husband and wife, or an unmarried person who is
the head of a family; and
Do we consider the ‘Ownership’ of the property (house and (2) Their parents, ascendants, descendants, brothers and
land)? sisters,
s, whether the relationship be legitimate or
illegitimate, who are living in the family home and who
Yes. The law requires that the owne
ownership should be
depend upon the head of the family for legal support.
in the name of the one constituting the family home.
The said family home may belong to A Absolute There are important conditions that must be met:
Community of Property, Conjugal
onjugal Partnership of o Actual residence
Gains or the separate property of the husband and o Dependency for support from the head
he of
wife. the family or the spouses
Supposing there is co-ownership, the land
nd was owned in part What is the significance/importance of knowing who are the
of the husband and in part of another person, can these be beneficiaries of Family Home
constituted as family home if the husband should live that It is the existence/presence of the ‘beneficiary’ that
house with his family? determines whether or not the FFamily Home will
Yes, ownership of the third person will not ____ subsist or still subsist even that the law says that the
duration basically depends on the existence of a
How is the family home constituted? minor beneficiary who are still residing in the family
The familyily home is constituted upon ‘actual home.
occupancy’ of the dwelling place.
Will the constitution of a house and lot as a family home have
NOTE: Under the Civil Code, a family home may be any curtailing effect on the ownership over the property?
constituted JUDICIALLY or EXTRA EXTRA-JUDICIALLY. Yes. There is a limitation in a sense that there is a
However, upon the effectivity of the Family Code, a requirement for CONSENT of the person constituting
family home is constituted by the operative
opera act the Family Home, his spouse and of the majority of
through actual occupancy. the beneficiaries. (art. 158)
How are the existing family residences treated upon the Art. 158. The family home may be sold, alienated, donated,
effectivity of the Family Code? assigned or encumbered by the owner or owners thereof with the
It depends. If the said family residence has already written consent of the person constituting the same, the latter's
spouse, and a majority of the beneficiaries of legal age. In case of
been judicially or extra-judicially
judicially constituted as
conflict, the court shall decide.
family home under the provisions
ions of the Civil Code,
then there’s no effect. However, if the said family
residence has not been judicially or extra
constituted as family home, then the same, will
become a FAMILY HOME upon effectivity of the
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When do we apply that, given the requirement in the law is What should be the value of the FH?
that the property constituted as a family home should be Art. 157. Thee actual value of the family home shall not exceed, at
the time of its constitution, the amount of the three hundred
owned by the person constituting the same (belongs to the
thousand pesos in urban areas, and two hundred thousand pesos
conjugal partnership or community property or exclusive in rural areas, or such amounts as may hereafter be fixed by law.
property of the spouses) or property of the unmarried head of
the family. Basically the person constituting the same is the In any event,
nt, if the value of the currency changes after the
adoption of this Code, the value most favorable for the
owner, why would the owner need to secure his own consent
constitution of a family home shall be the basis of evaluation.
(Hypothetical question)
This provision will apply in a situation wherein the For purposes of this Article, urban areas are deemed to include
owner is different from the person constituting the chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are
Family Home.
deemed to be rural areas.

Examples: Urban areas- not more than 300k

o in conditional sale wherein the person who Rural areas- not more than 200k
will be constituting the Family Home is
being subjected to a condition for the The rationale behind the value is that the framers thought
ownership of the said property of its seller; that if the family is well off, they do not need any protection
o in case of death of either spouses or the from execution or attachment.
unmarried head of th the family who
constituted the Family Home wherein the Value at what time do we consider?
ownership passes to their heirs but the “at the time of the constitution of the Family Home.
latter cannot partition the said property
within the period of 10 years from the time If the value at the time of constitution is more than
of the death of the said person who 300k/200k, do we still consider it as a Family
F Home?
constituted the Family Home. Yes. The law itself is silent as to the consequence
that will take place should the value at the time of
How is the Family Home extinguished? the residence exceed 300k/200k at the time of the
Upon the DEATH of the person or persons who constitution of the same. But B if we take a look to
constituted the Family Home,, the same continues to Article 160, it can still be considered as a Family
be as such for as long as there is a MINOR Home but only to the extent of the maximum value
beneficiary ACTUALLY RESIDING therein. But if there fixed by law.
is no minor beneficiary, the Family Home
Ho continues
to be as such only for a period of 10 YEARS provided What happens if at the time of the constitution, the value
that a BENEFICIARY OF LEGAL AGE actually resides complied with the maximum set by law,
law then after the family
therein. move in, they introduced improvements
imp naturally the
property increased in value, how will that affect the character
Will the alienation of the property extinguished the family of the residence as the family home?
home? Under art. 160, the law singles out voluntary
Family Home is also extinguished if the same is SOLD improvements. So if the increase in value was
or DONATED subject to the requirements of Article brought about by the improvements, then we apply
158. the same rule, to proceed against the excess of the
value of 300k/200k. The excess will now be subject
Purpose of the law for family home:: guaranty the security to execution
that they will have a dwelling place
Art. 160. When a creditor whose claims is not among those
Will that purpose apply if ownership has been transferred mentioned in Article 155 obtains a judgment in his favor, and he
even if the buyer said that “this will continue to be ur has reasonable
asonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he
may apply to the court which rendered the judgment for an order
it is no longer technically a family home but a family directing the sale of the property under execution. The court shall
residence because they won’t enjoy the benefits by so order if it finds that the actual value of the family home
the mere fact that it was sold, meaning they have exceeds the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum
waived the benefits of the family home
allowed in Article 157 and results from subsequent voluntary
ents introduced by the person or persons constituting

76|P a g e

the family home, by the owner or owners of the property, or by WAIVER on the part of the persons constituting the
any of the beneficiaries, the same rule and procedure shall apply.
Family Home on the privilege of being exempt from
At the execution sale, no bid below the value allowed for a family execution and attachment
home shall be considered. The proceeds shall be applied first to
the amount mentioned in Article 157, and then to the liabilities What about debts due to laborers etc..?
under the judgment and the costs. The excess, if any, shall be
the debts under this article is considered by law as
delivered to the judgment debtor.
preferred credits;; they enjoy LIEN on the property.
General Rule: the family home is exempt from execution and
attachment If a claim is not among those enumerated under Article 155,
does it mean that all is lost if you are that
th creditor of the
Exceptions: Art. 155 person who constituted the FH?
No. The remedy is found in Article 160
Art. 155. The family home shall be exempt from execution, forced sale or
attachment except: What kind of creditor is involved in Art. 160?
(1) For nonpayment of taxes; He/she must be a Judgment Creditor
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured
ured by mortgages on the premises before or after
such constitution; and Why do we say that he must be a judgment creditor?
(4) For debts due to laborers, mechanics, architects, builders, A creditor can only enforce the rights under art 160
material men and others who have rendered service or furnished if he is a judgment creditor meaning to say he has
material for the construction of the building.
gone to court, the debt in his favor has been
recognized, the judgment has become final and he is
Why are taxes exempt? now entitled to a writ of execution
Lifeblood of the government
How is the proceeds of the execution sale under Article160
A be
For debts incurred prior to the constitution of the family applied?
home; why? Applied in this order:
the law does not want to provide for a vehicle by st
1 - to the maximum amount fixed by law
which the rights of prior creditors may be defeated for the protection/benefit of
FH(200k/300k), the reason being, the law
What if the indebtedness was incurred beforefore the effectivity still recognizes the benefit of the Family
of the family code, but the family residence was not judicially Home and for the consequent constitution
or extra-judicially
judicially constituted as a family home, then the of a new Family
F Home
family code took effect. The case brought by the creditor
against the debtor was not yet decided until 1989 and the nd
2 - claims or creditors falling under Article
judgment was in favor of the creditor. Can the family home be 155
proceeded against to satisfy the debt?
Since the debt was incurred prior to the family code, rd
3 – if there are excess, claims of judgment
this will be a prior debt. Debt prior to the creditor under Article 160 (those not falling
constitution of the residence as a family home, under 155)
which h will now fall under the exceptions (Gomez vs
___ 472 scra 25) Can the creditor outside the exceptions (Art 155) run after the
family home?
Why is it that if the premises have been mortgage, it will no Yes, if there
re is an excess in the value at the time of
longer be exempt from foreclosure or execution? the constitution and the increase in the value was
The law says that it does not matter whether the because of introduction of improvements
mortgage was executed before or after. If the
mortgage was executed before the constitution of Do we consider the reason of the increase in value?
the family home, then that means we have to look at Yes
it from the nature of the mortgage as a real right
the same is considered wherein it attaches to the If such increase in value is by result because of
property and follow the property wherever
wherev it goes introduction of improvements – the judgment
and may be enforced against it. creditors can run after
But if the mortgage is constituted after the
constitution of the Family Home, the reason is

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If such increase is for the reason of time, not What is punished is the potential introduction of a
covered as a remedy of judgment creditor outside child not belonging to the husband
Art 155
For the Artificial Insemination
nation to be availed of, is it required
TITLE VI that the husband be shown to be impotent or sterile?

Chapter 1. Legitimate Children Why does the law allow planting of sperm from a 3rd person
although assuming that the husband is not impotent or
Art. 163. The filiation of children may be by nature or by adoption. Natural sterile? (hypothetical question)
filiation may be legitimate or illegitimate.

Who are considered

onsidered to be illegitimate?
Who are considered legitimate children? Art. 165. Children conceived and born outside a valid
Children conceived OR born inside the valid marriage are illegitimate, unless otherwise provided
marriage. in this Code.
Notably, there is a different treatment between the Supposing that the child is born after the mother has
civil code and the treatment given by the family code contracted a subsequent marriage following the termination
to filiation. Under the civil code, it is a mere of a prior marriage, what will be the status of the child?
presumption, they are presumed to be legitimate, Art. 168. If the marriage is terminated and the mother contracted
but under the family code, those children conceived another marriage within three hundred days after such
of born within a valid marriage are already declared termination of the former marriage, these rules shall govern in
the absence of proof to the contrary:
to be legitimate.
(1) A child born before one hundred eighty days after the
The declaration proceeds from a valid marriage solemnization of the subsequent marriage is
because there is a assumption of sexual union inside considered to have been conceived during the former
marriage, provided it be born within three hundred
a marriage. So, if a person is married, then it is
days after the termi
termination of the former marriage;
assumed that he is having sexual union with his
spouse. Then if children are conceived or born (2) A child born after one hundred eighty days following
uring the existence of such marriage then it follows the celebration of the subsequent marriage is
considered to have been conceived during such
that the child is that of the spouses and therefore
marriage, even though it be born within the three
legitimate hundred days after the termin
termination of the former
Should conception always be by natural procedure?
No. The law considers conception through artificial What is the significance of the 300 days (10 months) and 180
insemination. Provided, however, that both the days (6 months)?
husband and wife have consented or authorized or It is the maximum gestation period but ordinarily,
ratified the AI. the regular gestation period is 9 months. While 6
months is the minimum gestation period.
Artificial insemination involves?
Planting of sperm from the husband or from a third If thee birth takes place within the period of 300 days,
person donor or both into the womb of the wife we can still justify it as having been conceived on the
provided that both the husband and the wife hav
have day that the prior marriage was terminated
consented or authorized or ratified the AI.
What is the significance of the 300 days (10 months) and 180
The consent must be prior to insemination. days (6 months)?
Ratification may come after the insemination It is the maximum gestation period but ordinarily,
the regular gestation period is 9 months. While 6
What happens if the wife undergoes the AI procedure without months is the minimum gestation period.
the consent of the husband? Is the wife guilty of adultery?
No criminal liability for adultery. Adultery is What are the rules (rebuttable presumptions) provided for
committed by any married woman who shall have under Article 168?
‘sexual intercourse’ with a man not her husband. 1 - The child is presumed to have been conceived
during the FORMER
MER MARRIAGE if it is born before

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180 days after the solemnization of the subsequent (a) the physical incapacity of the husband to have sexual
intercourse with his wife;
marriage, provided it be born within 300 days AFTER
(b) the fact that the husband and wife were living
the termination of the former marriage. separately in such a way that sexual
sexu intercourse was
not possible; or
nd (c) serious illness of the husband, which absolutely
2 - The child is presumed to have been conceived
prevented sexual intercourse;
during the SUBSEQUENT MARRIAGE AGE if it is born after
(2) That it is proved that for biological or other scientific reasons, the
180 days after the solemnization of the subsequent child could not have been that of the husband, except in the
marriage, even though it be born within 300 days instance provided in the second paragraph of Article 164; or
after the termination of the former marriage. (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
The law does not take into account the possibility influence.
that there has been sexual contact between the
parties to the subsequent marriage. The law is very That it was physically impossible for the husband to have
decent in assuming that the parties only had sexual sexual intercourse with his wife within the first 120 days of
intercourse after they were married, which may not the 300 days which immediately preceded the birth of the
be realistic at all because if a person get married child because of:
within a short time after the termin
termination of the prior (a) the physical incapacity of the husband to have sexual
marriage, less than 1 yr, that means that the intercourse
ntercourse with his wife;
relationship may have been going on before the (b) the fact that the husband and wife were living
contracting the subsequent marriage. If there is any separately in such a way that sexual intercourse was
doubt regarding paternity and the prior marriage not possible; or
was terminated by death, it will now be up to the illustration: the spouse was kidnapped
heirs of the husband to impugn the legitimacy. by the abu sayaff

What happens if the child is born after 300 days after the (c) serious illness of the husband, which absolutely
termination of the marriage in general? prevented
ented sexual intercourse;
Art. 169, the law was not willing to assign any illustration: when the husband is in comatose
filiation to the child and instead says that the burd
should be upon the any person who shall allege Take note: that physical impossibility is one of the
legitimacy or illegitimacy of the child grounds for impugning the legitimate relation. Also,
it is also limited as to the period of time it should
take place within the first 120 days of the 300 days
Can legitimacy be questioned? which immediately preceded the birth of the child
Yes What is the significance of the 1 120 days under this
Art. 166 provides for the ground to impugn the The law recognizes that the minimum
legitimacy of a child period of gestation is 180 days, then it
should follow that conception can
ca only take
The grounds are exclusive in nature and the right to place within the 1 120 days of the 300
impugn is very personal in nature. It is limited to the days preceding birth. So, if you chopped
husband or under special circumstance; it can down the possibility of intercourse within
extend to the heirs the 120 days, then there is no chance that
the child was fathered by the husband.
If there is no action is brought by the proper party
and within the provided period by law, then the The law speaks of physical incapacity,
incapaci what exactly
filiation of the child will become inc
incontrovertible. It does that mean?
can no longer be question, not even by the child This refers to IMPOTENCE of the husband
itself (H cannot have an erection!). The general
idea is “no erection, no sexual intercourse”.
Art. 166. Legitimacy of a child may be impugned only on the following
What about moral incapacity?
(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 No. The law is specific-
specific physical incapacity.
which immediately preceded the birth of the child because of:

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That it is proved that for biological or other scientific reasons,

the child could not have been that of the husband, except in If the birth has been concealed, we count the period
the instance provided in the second
ond paragraph of Article 164; from the knowledge of the birth (Art. 170)

the accepted proof at this time is DNA testing (99.9% The husband has a very small window of opportunity
accurate) to impugn. Remember, if he (husband) does not
impugn, then all is lost. Filiation can no longer be
That in case of children conceived through artificial questioned. Filiation can only be questioned in a
insemination, the written authorization or ratification of DIRECT proceeding.
either parent was obtained through mistake, fraud, violence,
intimidation, or undue influence. the periods for
or impugning does not apply or will not
apply if the ground for impugning filiation is
Supposing the mother says that the her spouse was not the centered on the premise that the child is not the
er, is there any weight to the testimony of the mother? biological child of the husband and the wife. You
None, Art. 167 only apply the limitations regarding the grounds and
the periods if you
ou want to show that the child is not
Art. 167. The child shall be considered legitimate although the the child of the husband but the child of the wife
mother may have declared against its legitimacy or may have
alone. Kahit papaano merong ‘biological tie’ with
been sentenced as an adulteress.
one of the spouses, specifically the wife. But if you
Rationale for this provision: First,, in a fit of anger, or are impugning the relation that you are not the
to arouse jealousy in the husband, th the wife may biological child
d of the husband and the wife, then
have made this declaration. Second,
Second the article is the person impugning will not suffer under the
established as a guaranty in favor of the children limitations of the grounds and of the periods.
whose condition should not be under the mercy of
Art. 168.. If the marriage is terminated and the mother contracted another
the passions of their parents. marriage within three hundred days after such termination
termi of the former
Supposing that the grounds for impugning legitimacy or marriage, these rules shall govern in the absence of proof to the contrary:
filiation are proven, what will be the consequence of such (1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during the former marriage
marriage, provided it be born
The child is considered an illegitimate child of the within three hundred days after the termination of the former
mother. The child is not of the husband. marriage;
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been
Who can impugn?
conceived during such marriage, even though
t it be born within the
General Rule: the husband three hundred days after the termination of the former marriage.
The heirs can impugn if husband dies before the
expiration of the period to impugn if the husband Art. 169.. The legitimacy or illegitimacy of a child born after three hundred
should die after bringing the action to impugn and if days following the termination of the marriage shall be proved by whoever
alleges such
ch legitimacy or illegitimacy.
the child should be born after the death of the
husband, in which case the rights go to the he
heirs of
Art. 170. The action to impugn the legitimacy of the child shall be brought
the husband. within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should
shou reside in
What will be the period for the action? the city or municipality where the birth took place or was recorded.
The period varies depending on the residence of the
If the husband or, in his default, all of his heirs do not reside at the place of
husband or the other proper party. If the husband is birth as defined in the first paragraph or where it was recorded, the period
residing within the same city or municipality where shall be two years if they should reside in the Philippines; and three years if
the child is born, the period is 1 year.
yea abroad. If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child o or of the fact of registration of said birth,
If outside the city or municipality but in the whichever is earlier.
Philippines – 2 years the husband has a very small window of opportunity
to impugn. Remember, if he (husband) does not
If outside the Philippines – 3 years impugn, then all is lost. Filiation can no longer be
questioned. Filiation can only be questioned
ques in a
The reckoning is from the time of birth or DIRECT proceeding.
registration of the birth

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the periods for impugning does not apply or will not Who are legitimated
d children?
apply if the ground for impugning filiation is Art. 177. Only children conceived and born outside of wedlock of
parents who, at the time of the conception of the former, were
centered on the premise that the child is not the
not disqualified by any impediment to marry each other may be
biological child of the husband and the wife. You legitimated.
only apply the limitations regarding the grounds and
the periods if you want to show that the child is not These are children who are given a legitimate
legit status
the child of the husband but the child of the wife following the subsequent marriage of their parents.
alone. Kahit papaano merong ‘biological tie’ with
one of the spouses, specifically the wife. But if you For them to be legitimated, it is required that there
are impugning the relation that you are not the should be no impediment to marry each other at the
biological chili of the husband and the wife, then the time of the conception
person impugning will not suffer under the
limitations of the grounds and of the periods. Note: R.A.9859 amended this provision, adding at
the last part:
rt: ‘or were so disqualified only because
Proof of Filiation? either or both of them were below 18 years of age.’
Art. 172. The filiation of legitimate children is establishe
established by any of the
Therefore, the impediments only pertains to Articles
(1) The record of birth appearing in the civil register or a final 37 and 38.
judgment; or
(2) An admission of legitimate filiation in a public document or a Supposing that the parents were not suffering any
private handwritten instrument and signed by the parent
impediments but they are both under 18 when the child is
conceived, can the child still be legitimated?
In the absence of the foregoing evidence, the legitimate filiation shall Pursuant to RA 9859
be proved by:
(1) The open and continuous possession of the status of a
What is the consequence of legitimation?
legitimate child; or
It retroacts to the birth of the child, that the child
(2) Any other means allowed by the Rules of Court and special
laws. will be deemed to acquire all the rights of a
legitimate child
Do we also use the same proof to establish illegitimate
filiation? Suppose death intervenes,
tervenes, the child died before the parent get
Yes, however if u are relying on the secondary married?
nd Art. 181. The legitimation of children who died before the
evidence (2 par of art. 172) u can only establish
celebration of the marriage shall benefit their descendants.
filiation thru this means during the lifetime of the
Illustration: it may happen that the marriage may
take place when the parents are a already very old.
Let’s say the parents married at the age of 80 and
What are the rights of legitimate child?
the child has died at the age of 60, and it’s possible
Art. 174. Legitimate children shall have
e the right:
(1) To bear the surnames of the father and the mother, in that the child already has descendants of his own.
conformity with the provisions of the Civil Code on The deceased child may still be legitimated despite
Surnames; the fact the he predeceased
predecease his parents. The
(2) To receive support from their parents, their
legitimation will benefit the child’s descendants.
ascendants, and in proper cases, their brothers and
sisters, in conformity with thee provisions of this Code
on Support; and What is required for legitimation to take place?
(3) To be entitled to the legitimate and other successional The operative act is a subsequent valid marriage
rights granted to them by the Civil Code.

Supposing that there is a voidable marriage, and

What are the rights of the illegitimate children?
subsequently the marriage is annulled what will happen?
The illegitimate child may use the surname of his
It will not affect the legitimation that has taken place
father provided that the father recognizes the child
Can the legitimation be impugn?
Why is it that is mother who is given parental authority over
Yes, if they can show that some of the requisites for
the illegitimate child?
legitimation are not present
The filiation with the mother is always certain. While
filiation with thee putative father is not really certain

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Who can impugn legitimation? Can you give me the description to the
th process that would
Any interested party. take place?

Is there a period to impugn? ition to adopt to be filed in the RTC and then.
A petition
5 years from the time the cause of action accrues
Would it be correct to say that there are two phases involve in
CIVREV1_4A10 the adoption?
Yes,, administrative phase and the judicial phase
there are two kinds of filiation What is the impact of RA 9522 and not 8552?
• The divine nature or in RA 9522, it dispenses with the t with the
• by adoption. requirement of the judiciary, it should be
administrative and judicially declared legally fit for
What is your understanding of adoption? adoption.
It is a juridical act, a proceeding in rem, which
eates between two persons a relationship that is It dispenses with the requirement?
similar to that which results from the legitimate That the child should be administrative and judicially
paternity and filiation. fit for adoption.

Would it be correct to say that it’s a relationship between two When do you say it dispenses
enses with that requirement? Paulo:
people of who otherwise would not be related? Is that correct, Maam because in RA 8552 the definition of a child came from
is it a requirement that adoption should between people not the ___ he or she should be administratively or judicially
related to one another? declared fit for adoption and it is this requirement was
Not necessarily, because you can adopt a relative by dispense with by RA 8552.
consanguinity, someone who is related to you.
Are you sure? Becauseause class, there are children who are
What law governs adoption in the Philippines? unfortunately are either, abandoned, neglected or
the law that governs adoption
doption in the Philippines is reclassified as foundlings, children that they do not know who
the domestic adoption act of 1993 or RA 8552. his parents or who their parents are
are, this are children you find
in the streets, the problem is you requ
required the consent of the
What about the family code? Does the family code has any parents for the adoption, but if their parents are not around
provisions on adoption? or cannot be located or unknown, whose consent do you
The last provision to the adoption was that the same secure?
but it has been repealed by the domestic ad adoption DSWD.
act so right now we adhere to the domestic adoption
act or 8552, The DSWD, because if u speak of agency or
institutions these are all very speculative institution,
when do we apply the domestic adoption act, when do we you might know a particular agency in mind, wala ng
apply the inter-country adoption act? agency na nagiikot ng kalye at nghahanap ng
The adoption is in the Philippines, of Filipino children nwwlang bata.
by persons who is either be Filipino
lipino or aliens so long
as they qualify under the law. if a child is abandoned, the child is brought to the
dswd, and the dswd will act as custodian of the child
When would an inter-country country adoption law would be and will give its consent.
Usually adoptions done took place outside of the Previously, there should be judicial proceeding to have the
Philippines and of course our concern would be if child declared to be abandoned or foundling. What happens
the person beingg adopted also happens
happen to be a then, they add another layer of red tape, before you can
Filipino that’s then we ask the country
c will be adopt you have to go to court for yet another proceeding,
involve. And the persons adopting would be either right. This new law dispenses with that, by allowing such a
Filipinos or aliens. declaration thru the mere execution of an affidavit, this
should be filed with dswd, this should make things easier for
So let’s focus on domestic adoption law first. prospective
ctive parents. U know how court proceedings go, it
would takes year, even for those who are summarily
summaril in
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nature, so this is meant to be short cut right .So now because country that he has capacity to adopt, third that his
of these we have two phases in the adoption process, we governmentt allow the adoptee to enter his country
have the administrative
ve phase and the judicial phase. as his adopted child and that he must maintains a
residency in the Philippines for a period of three
The administrative phase will end with the issuance of a years prior his filing of a petition for adoption, he
certification that the child is available for adoption and the must maintains such residence within the issuance
judicial process the one before the court that will end by the of the decree.
issuance of the adoption decree
Take note class that the last two requirements,
requirements residence and
For 9523, we only have to know the definition of child certification these are hurdles that are hard to overcome
because here the definition of a child is expanded to include when your dealing with a client
c who is an alien and wants to
even those covered by the age of 18 so long as they are not adopt.
capable of fully caring for themselves or protecting
themselves against abuse, neglect due to some in the past, If Imagine he has to maintain three years of continuous
you would recall under domestic adoption act, a child is residence prior to the filing of the petition and he has to
someone who is low medium.., .., the definition has been maintain continuous residence in the Philippines throughout
expanded, u also need to know the definition of neglected the proceedings right.
child and child has been voluntary committed.
Let’s say let’s give the final court three years to complete the
With regard to the neglected children,, know that there are adoption process you will requiring the alien to stay put in
two kinds of neglect: emotional negligence and physical the Philippines for a total of six years, so that is difficult and
negligence. the certification of the capacity to adopt and then allowance
of the adoptee to enter the country of the adopter that is
Let’s go now to the qualifications of the adopting parents also difficult, we’ ve tried that, and the embassies always tell
under 8552. who may adopt, does citizenship matter? us that this are matters to be decided if there actual cases
It does, in a sense that the qualifications will be before us, we cannot just say that this person has the
different depending on citizenship. capacity to adopt, we need to have h an actual case and pass
this qualifications and we also need an actual application for
If the adopting parents is a filipino? us to say that the adoptee can enter as an adopted child. So
Must be of legal age,, he must both civil capacity, these are problems. In fact the law seems to recognize this
must not have been convicted of a crime involving because these qualifications and these provisions are waived
moral turpitude, good moral character, his 16 years in case when?
older than the adoptee, except if he is the natural In case the adopter is a former Filipino citizen and he
parent of the adoptee or a spouse of the natural seeks to adopt a relative within the 4th civil degree
parent. of consanguinity and when the adopter is the spouse
and seeks to adopt the illegitimate child of a Filipino
Can you explain why the law imposes this requirement 16 spousese or where the adopter is the spouse of a
years difference? former Filipino citizen and seeks to adopt a relative
Because the difference of the number class in the within the fourth civil degree of affinity or
adoption, the law approximate the relationship of consanguinity of the Filipino spouse.
the parents and the child, the adopter acting as the
parents, that’s why the it imposes es this age gap on That’s why if we have a former Filipino citizen as a client and
the function that if the adopting parents is this much he will not fall under this exceptions what is usually done, the
older that the adoptee then we will be able to client is advised to obtain the benefits of dual citizenship law
approximate the demeanor of a person who is a to revert to his Filipino citizenship
cit and applies for adoption,
natural parent of a child but this is waived in case if so these qualifications will not be imposed upon him.
the adoptive parent happenspens to be is the natural Who else is allowed
owed to adopt?
parent of the adoptee or the spouse of the A guardian upon the termination of guardianship of
adoptee’s parents. a ward before the termination of the guardianship

For aliens same qualification with that of the Filipino Can single people adopt?
but in addition that his country has diplomatic Yes
ip with our country and second he must be
certified by the proper diplomatic agency in his
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How about married people? An exception would be is in case of a person of age who has
Yes, however husband and wife should jointly adopt. been treated as child of the adopting parents. Explain why the
law allows the person of age an exception?
Why? Because theory is, this person could have been
because adoption approximate
proximate parents-child
parents adopted during his minority but for one reason or
relationship, if the person adopting is married, then another, the parents who raised him as their own
naturally he is to be expected that the spouse joins never got around doing with this. Ordinary people,
the adoption, it must be a joint undertaking. people who are not no learned in the law they feel
intimidated by court proceeding, it’s understandable
What happens if one the spouse is not qualified to adopt, can that even though you would want to give to the
the other spousee still proceed with the adoption on her own? child everything
ything that they have, somehow they
let’s say we have an alien married to a Filipino and the alien is always hold in going to court to adopt him legally,
not qualified to adopt under our laws, they’re married, can that’s why the law allows belated adoption even if
the Filipino proceed with the adoption alone? the person is of age.
The law said that the husband and wi wife must jointly
or shall jointly adopt, this is mandatory, it is the adoption of an illegitimate child, to raise his status to that
mandatory provision of law it must be complied of a legitimate child. Because
ecause previously, before amendment
with, so if the other spouse cannot join the adoption of the law on legitimation, this was the only way by which a
because he is not qualified to join or do not want to child who was conceived at the time when impediment
join the adoption, then the petition will have to be existed which prevented his parents from marrying could be
dismissed because of the requirement of joint elevated to the status of a legitimate child.
petition by spouses.
Can a sister adopt her brother?
But are there instances when a married person may adopt on Yes,, it is not provided by the law
his own?
When the persons are legally separated or when the We have jurisprudence, rulings of SC to this effect,
person going to adopt is the illegitimate child of the the ruling based on the provision of the old code of
other spouse. When one of the spouses seeks to the Civil Code because under the C Civil Code there
adopt his illegitimate child with the consent of the was enumerations of that who maym not be adopted
spouse. and it’s so happened that brother or sisters is not
included in that enumeration of who cannot be
The law does required that spouses jointly adopt, it adopted. Now interestingly, the domestic adoption
shall after all what is involved here is the illegitimate law is silent on this point and only tells us on who
child of the other spouse, but she must consent, may adopted without telling us on who
wh may not be
after all the effect of the adoption will be to raise the adopted but if you would go over the qualifications
illegitimate child to the status of a legitimate child, of who may adopt, specifically with that regard to
there will be an impact or effect when you look to the exception for the residency and certification
the succession rights of the spouse and the requirement, its seems to be implied, Filipino citizen
legitimate child. who seeks to adopt a relative within
withi the fourth civil
degree by consanguinity or affinity and that would
The law also enumerates those who may be adopted? include brother or sister w/c is a relative in the 2
Persons below 18 years of age, the legitimate son or the degree.
relative of other spouse, a person of legal age who
considered as child by the spouses since minority ,a child What is the philosophy behind adoption?
whose adoption has been rescinded, or a child whose parents Before, the Philosophy is to give, to fulfill the gap in
have died provided that no proceeding for __ has been filed the homes without a chil
child or those who has loss a
within six months,, the adoption of an illegitimate child to child.
raise his status to that of a legitimate child.
But previously
usly from whose benefit?
As a general rule, only minors are may be adopted right, It’s for the benefits of the adopters. The child is
supposed to fill a void in their lives.

But that has been changed, because presently

adoption is viewed to be for the benefit of the child
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the person to be adopted, that’s in deciding petition not removed the child
ch from his biological parents.
for adoption, courts are uniformly guarded by what Unfortunately,
nfortunately, the law fixes a prescriptive period of
is for the best interest of the child. six months, basically the biological
biologic parents has a
period of six months to change their mind, beyond
Whose consent is required for the adoption? six month they cannot change their mind
min anymore.
• If the adoptee is 10 years or older, his consent is In the example that I gave, the mother can no longer
necessary, change her mind after the lapse of one year
• the legitimate and adopted children of the adopters following the agreement with the adopter.
• the illegitimate children of the adopters if living with
the adopters and fourth the latter’s spouse if any, Where do you file a petition for adoption?
then the two of the spouse if any of the persons In the family courts where the prospective adopting
adopting or the adopted. parents reside.

Supposing thatat a person of age is the subject of a petition for Can you walk us with the process? What happened after you
adoption, is the consent of his biological parent is required? file the petition?
Yes, only except that the person of age is abandoned After filing the petition and where it is found that is
by the biological parents. substantially
ntially complete. You have to comply with the
publication requirement, right, thereafter. DSWD
That’s another matter, right. But let’s say his not abandoned.
abando will conduct a child study report.
U know what usually happens, these families who are poor
will entrust their children to those who are more well off, and
this other family will raised that child (uncle
uncle and aunties) How is the DSWD conduct the study? Is it motu proprio or by
supposing that it happened to you and then you are now a the court order?
lawyer, and they are the parents who raised you since it is by a court order.
infanthood and they want to make things formal by adopting
you and then your biological parents do not want you to be What are the studies
es conducted by dswd?
adopted by them because of the benefit they get from you, A child study and home study.
do you need to get their consent? Does the law make a
distinction with regard to whether or not the person to be A child study would require a visit by the social
adopted is of age? worker assigned to the court with the child to be
Actually it does, it makes a distinction, if you pay adopted, the child will be interview and observe in
attention as to the wordings of the law, who is his environment and he also need to present
required to make consent? The biological parents of medical
cal certification with regard to the health of the
whom? What term is used by the law? Person or child.
child? – it is a “child” and child is a legal term
defined in the domestic adoption law which is below On the other hand a home study would require?
18 years of age and if you are a lawyer you can The report on with the prospective adoptive parents.
readily presumed that you are more than 18 years of
age. The home study would refer to the adopting
parents. The child study will also include a write-up
There are instances when people decided to adopt enter into on the biological parents, the family background of
an agreement with a mother even the child is still in the the child.
mother’s womb, is that a binding agreement?
No,, because as the law protects the child. In reality,, this is what really happens the social worker will
submit her reports. And in the reports she will make a
It’s not a binding agreement because it is expressly
exp recommendation. Basically it is the recommendation of the
so declared by law. No binding agreement can he social worker er which is followed. The judge will only see to it
make for the adoption of a child if it’s entered into if that the adopting parent complies with all the legal
the child is still in the mother’s womb. qualifications imposed under the law. That he has all the
qualifications and none of the disqualifications, that all the
Supposing the child has been born and the mother has agreed necessary consents have been obtained.
o So basically you
today, can she still change her mind a year
ear from now? need to make your case with the social worker because you
Under the domestic adoption act, repeatedly says, it will also be presented with the social worker of the witness
espouses the he policy that as much possible you do
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stand.. And she will testify whether or not the adoption will be since because the policy now of the adoption law is
granted. with regard to the best interest of the child, it is only
right that.
Now, supposing, all goes well and thee decree of adoption is
issued, what is the effect of the adoption? First, on the It is also tend to protect the child, after all if you’re
biological parents? were given up for adoption once then this will only
the parental ties with the biological parents will be mean a feeling of rejection, your parents rejected
severed. It would be severed except if the adopting you diba , what would be a worst fate than that diba,
parents happened to be the natural parents of tthe to have your adopting parents reject you again, you
adopted child. may no longer be able to recover diba, gaano ba ako
kasamang tao, that everyone comes into my life
What about the filiation, the filiation of the adoptive child? rejects me, right, which is a valid point, thats why
The adopted child shall acquire all the rights of the this option to rescind has reserved to the adopted
legitimate child. child.

So basically he is raised to the status of the But what will be the option, what is the remedy of the
legitimate child. And if you will recall the case of
o Cain adopting parent?
vs IAC in succession di ba, it is the first time that the The adopting parents can disinherit.
SC declared that if you omit an adopted child in the
will, that child is considered preterited and the It can just disinherit the adopted child, after all, sabi
institutions made in the will shall be annulled and nga natin an adopted child is situated to a legitimate
the reason given was that adoption rraises the status child.
of the adopted child to a legitimate child.
Now what are the grounds for rescinding the adoption?
Now, what about succession, what are the successional rights 1. The grounds are first
fi Maltreatment of.
between the adopted child and his biological parents and the
adopted child and his adoptive parents? In the enumeration you can see, it is implied that
Following the severance of the ties between the before you can rescind you must first undergo
biological parents and the adopted child, then there counseling,, so you do not go to court and rescind
will be no successional rights between them. They the adoption at the first instance of maltreatment,
ceased to be compulsory heirs with one another. there should be a need counseling first.
They ceased to be intestate heirs with one another.
However, if they so choose to, they can make each 2. attempt on the life on the adoptee; third, sexual __
other testamentary heirs. or violence
3. the incapacity to exercise parental authority over the
Now, as between the adopting parents and adopted child? adoptee.
the adoptee is entitled to successional rights without
restrictions to such legitimate filiation. Now, another feature of ra 8552 was the introduction of the
crime of simulation n of birth. What is that crime?
You might want to know class that under the original it is the fictitious registration of the birth of a child
provision of the Family Code on this matter, the adopted
child was allowed to redeem his successional rights to the This is with respect to address the practice of some
estate of his biological parents and relatives, but this has people to skip the judicial process for adoption by
been removed under the domestic adoption law. If you would simply simulating the birth of the child to be
recall on the enumeration on n who maybe adopted,
adopted it is said adopted as though it is their own. And how do they
that a child whose adoption has been rescinded may also be do this? By filingg up the birth certificate themselves
adopted, now who can rescind an adoption? and referring to themselves as the natural parents of
the right to the adopter to rescind has been revoked. the child. Because before the law was in a quandary,
is this a falsification of a private document, is it a
Previously that right to rescind under Family
amily Code has given falsification of a public document
documen right? Kasi pag
o the adopter but that has been changed under the domestic private document wala namang material damage,
adoption law. Why was it changed? Why is it removed? which is a requirement for __, pag public document
naman well the falsification was done before the
submission before to the civil registry, that is before
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it became a public document. Now wit with these Who are obliged to give support?
special law, penalizes the simulation of birth we now Art. 105. Subject to the provisions of the succeeding articles, the
following are obliged to support each other to the whole w extent set
have a specific crime, nagbigay naman ng grace
forth in the preceding article:
period yung batas , for all simulated births prior the (1) The spouses;
effectivity of ra 8552, they can rectify the simulation (2) Legitimate ascendants and descendants;
of birth without any criminal liability
liabil within the (3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
period of five years but that grace period has long
(4) Parents and their illegitimate children and the legitimate
last. Now if you simulate a birth, you may be and illegitimate children of the latter; and
criminally liable. (5) Legitimate brothers and sisters, whether of full or half-blood

Support what is the extent of life in support when it comes to, because
when you speak of support it is understood that it is full
What is support? support among the people
peopl enumerated but would that also
It is the duty of a person to give to another, to apply to bros and sisters because if you will compare class
provide for his basic sustenance. bros and sis are collateral relatives, the rest of the people
enumerated to give support are in the direct line, so would
support comprises Everything that is indispensible to that make any difference?
the sustenance of a person. with respect to o bros and sis, they are still entitled to
full support, however,
however the law also provides that
and this will include? when bros and sis are not legitimately related,
dwelling, food, clothing, transportation in keeping whether full blood or half blood or half blood, are
with financial condition of the family. bound to give support in the full extent except when
the need for
or support of the bro oro sis, being of age,
So right of you will see that there should be a balance is due to the cause imputable to the claimants fault
between need and capacity when it comes to support. So or negligence.
everything you need for sustenance but it should be in
keeping with financial condition of the family. If the bros or sis asking for the support is already of
age and his need for support is imputable to his own
Art. 194. Support comprises everything indispensable for sustenance, fault or negligence.
dwelling, clothing, medical attendance,
nce, education and transportation, in
keeping with the financial capacity of the family.
Art. 196. Brothers and sisters not legitimately related, whether of
The education of the person entitled to be supported referred to in the the full or half-blood,
blood, are likewise bound to support each other to
preceding paragraph shall include his schooling or training for some the full extent set forth in Article 194, except only when the need
profession, trade or vocation,tion, even beyond the age of majority. for support of the brother or sister, being of age, is due to a cause
Transportation shall include expenses in going to and from school, or to and imputable to the claimant's fault or negligence.
from place of work.
What properties are liable for the support of these people
Now Is it required for a person to be entitled to support from obligated to give support one another?
his parents that this person should be under age? With respect to the spouses and their legitimate
Under the Family code explicitly provides, with children, Absolute
bsolute Community of Property or the
respect to the education even those at the age of Conjugal Partnership
artnership of Gains.
majority, the parents may still.
For the others, the separate properties of the
Yes, it is implied from the provision allowing support persons obligated to give support.
for education __ given to people of age that age not
really material. Now if the person obligated to give support happens
to be married and his separate properties are not
n fact employment is not even a deterrent to sufficient, then it can be charged against
aga community
support. You may be employed but the salary that property/cpg but must be subject to the conditions
you are earning is not sufficient for your needs in imposed by law. The community property must be
which case you entitled to support. Case in point taken as an advance right. But as to Conjugal C
class, the provision that said transportation to and Partnership of Gains
ains, we must have to further show
from work, that says a lot, that even your working that all the other obligations of Conjugal
C Partnership
and but not earning you can still ask for support. of Gains have been satisfied.

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Art. 197. In case of legitimate ascendants; descendants, whether The right of support does es not arise from the mere fact of
legitimate or illegitimate; and brothers and sisters, whether
relationship, just because your parents and a child, there’s
legitimately or illegitimately related, only the separate property of
the person obliged to give support shall be answerable provided automatically support. You also need to show necessity right,
that in case the obligor has no separate property, the absolute because otherwise, diba every person is ultimately ultimatel
community or the conjugal partnership, if financially capable, shall responsible for himself, that‘s
that how life works, however, there
advance the support, which shall be deducted from the share of
are instances where you cannot provide for yourself like
the spouse obliged iged upon the liquidation of the absolute
community or of the conjugal partnership. when you are a minor that why you turn to your parents for
support. Butut the mere fact that you are a parent and child
Now you can have more than one ascendants and you can does not give rise the right to support unless there is a need
have more than one descendant, so what happens if your andd the thing is the law does not presume existence of
obligations to give support falls upon two or more people? necessity, you must have to make it known that you need
Art. 199. Whenever two or more persons are obliged to give the support. And how do you make it known? By judicial or
support, the liability shall devolve upon the following persons in extrajudicial demand. So basically when the law said it is
the order herein provided:
demandable upon the existence of the need, it means when
(1) The spouse;
(2) The descendants in the nearest degree; you have the need, you have the option to ask or not to ask
(3) The ascendants in the nearest degree; and for support. If you did not ask for support you did make a
(4) The brothers and sisters demand the law presumes that you can provide for what you
need, so it’s demandable, you have the option to askas for it,
Class we have to observe the same hierarchy when it but it is only payable if you make an actual demand judicially
comes to determining of who has the right to or extra judicially.
arrange for the funeral or the way by which the body
of the descendant where to be buried, ito yung So let’s take the case of a child. Let’s say the father of the
susundin nating hierarchy. child is married, so his not around when the child is born,
from the moment the child was born the child would needs
So, if there’s a clash between the mother of the decedent and support. And the father, as the parent of the child,
child would be
his spouse, whose wish shall prevail? obligated to give support to the child. But what if the mother
Based on this order, it should be the spouse. decides also to provide for the child herself, is she obligated
to give support to the child? Yes, obligado rin siya, so if she
Now when is support demandable? opts not to ask for support in behalf of the child decided to
It should be demandable from the time the person provide for herself, then that means the child did not need
who has a right to receive the same needs it for the support from the father. Because this is provided by other
maintenance but shall not be paid except from the person who is also obligated to give support this is the th
date of judicial or extrajudicial demand. mother.

Art. 203. The obligation to give support shall be demandable from

Now supposing after 10 years, the mother now goes to the
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 father and ask for support, is the father obligated to give
judicial or extra-judicial demand. support retroacting from the date the child was born?
Not anymore, because no support was ask in the
Support pendente lite may be claimed in accordance with the
interim period diba, so wat
w is the presumption of the
Rules of Court.
law, there was no need of support because it was
Payment shall be made within the first five days of each provided for by the mother.
corresponding month or when the recipient
recipien dies, his heirs shall
not be obliged to return what he has received in advance.
In what manner should support be given?
the person obliged to give support has two options:
What is the significance of that statement that it should be
• by delivering the allowance fixed, or
demandable on the moment that there’s a need but only
• by receiving and maintaining in the family
payable when there is demand. Is that supposed to mean
dwelling the person who has a right to receive
the support.
it is not always necessary that there is a judicial
order to give support because demand can be Art. 204. The person obliged to give support shall have the option
judicial or extrajudicial, and when there is voluntary to fulfill the obligation either by paying the allowance fixed, or by
payment upon extrajudicial demand there is no need receiving and maintaining in the family dwelling the person who
to go to court] has a right to receive support. The latter alternative cannot be
availed of in case there is a moral or legal obstacle thereto.

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Why is that option given? latter,

r, any third person may furnish support to the needy
individual, with right of reimbursement from the person obliged
because the other option might be more beneficial
to give support. This Article shall particularly apply when the
to the person. father or mother of a child under the age of majority unjustly
refuses to support
upport or fails to give support to the child when
Maam: No , your giving me the exception, urgently needed.

it is no different from your parent allowing you to PARENTAL AUTHORITY

live off campus in a dormitory and wants you still to
Art. 209. Pursuant to the natural right and duty of parents over the person
live at home and travel one hour each day going to
and property of their unemancipated children, parental authority and
and from , it’s cheaper iff you stay at home if you will
wi responsibility shall include
clude the caring for and rearing them for civic
stay at home because you don’t have to spent consciousness and efficiency and the development of their moral, mental
separately for lunch, lodging etc.... because all this and physical character and well-being.
expenses are provided for in the family expenses,
that its why it’s expensive to maintain you outside I think everyone of here is familiar with parental authority
the house, so it’s cheaper, you can have that option, and everyone of here becomes a child
chil of two parents.
otherwise, person obliged to give support would
have to spend all therein. That’s why you have that But what is parental authority? Because
Bec if we think of
option. But that’s option is not available to you if parental authority we invokes power, that your parents have
there are legal or moral obstacle like when spouses power over you. Is this correct? Is this the concept of parental
are estranged from each other, makakatipid ka nga authority?
pero impiyerno naman buhay mo araw araw, It involves the authority over the person and an
mghiwlay nlang kaya, kaya ur allowed to gave her property over their child that includes the rearing
instead an allowance. So there is a moral obstacle. and caring of the child.

Who may give support? We are trying to arrive

rive at the proper perspective in which we
It is the people who are obligated to give support, are to view parental authority.
uthority. Is it really power? Power over
ought to give support. the child?
It’s not just power , in fact it’s more of an obligation
But outsidee from these people, can there be support coming than power because even if your granted power or
from third person? authority over the child, take note of what the law
Yes says, authority over the child in directing the rearing
of a child or for his moral, physical, emotional, well
The law speaks of two instances: being and his civic consciousness.
cons So these are
• the first instance requires that the person objectives that must be met in his exercising his
who is obligated to give support should parental authority over the child.
have no knowledge that the support has
given by a third person and Can parental authority be renounced or transferred?
• the second instance is at least dispense with Parental authority cannot be transferred or
this lack of knowledge but requires that it renounced.
uld be justified by the urgency
urgenc of
Art. 210. Parental authority and responsibility
re may not be
necessity of the situation. renounced or transferred except in the cases authorized by law.

In both instances, the third person who gives Because this are usual cases class which could happen if the
support must be reimbursed, unless it appears tthat parents will marry early and they will break up, then what will
he has no intention to ask for reimbursement, in happen to the poor child born in that marriage,
marr it will be left
which case what he give would make it to be with whom?
donation or transfer of gratuitous title. With his grandparents. And then the parents will be
grown mature and one of them will come back for
Art. 206. When, without the knowledge of the person obliged to
give support, it is given by a stranger, the latter shall
s have a right
the child, would the grandparents who raised the
to claim the same from the former, unless it appears that he gave child have the authority to withhold the child from
it without intention of being reimbursed. his father who asking for the child,
Art. 207. When the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the

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can the grandparents withhold custody from the father?

No, Remember parental authority can only be But there can be an instance class where we have a child born
transferred or renounced in specific instances. outside a valid marriage to parents who simply do not want
to get married but live together as husband and wife, may
What are these instances? mga ganyan, in which case we cannot even say that there is
• Adoption, uncertainty with regard to the filiation of father. Ang kulang
• guardianship, lang sa kanila is kasal, but essentially
esse they are a family right.
• voluntary surrender or commitment tto the dswd or would it be correct for us to apply art 176 knowing its rational
orphanage such other institutions. in a situation where the parents are not married but living
gether exclusively as husband and wife?
Outside of this three, it cannot be said that there has No, because the rational about the uncertainty of
been transfer or renunciation of parental authority. filiation as to the father is inapplicable, so it’s at least
arguable that if two conditions are met:
met first filiation
So in that situation, what we have is what,what custody is of the father is certain and secondly they live
simply entrusted to the grandparents and an the father will together as husband and wife without the benefit of
still be entitled to recover the custody of the child. marriage or even under a void marriage.

For husband and wife, they exercise joint parental authority It is at least arguable that parental authority should
right, just like in the different aspect of their married life. diba be exercise jointly by the father and mother.
joint administration, join ownership and so on but in case of
disagreement it still the father who prevail, why? We leave as to art 176 to those situations where
because its keeping with our Filipino traditions that filiation of mother is certain, yung mga disgrasyada,
the father’s decision will prevail in the family. to further emphasize the situation there is no
certainty as to the father ok. But the ruling on the SC
So this a traditional rule, the law w adhere to the on this is not yet settled, i think the case was Briones
traditional,, kasi nga diba padre de fa
familia, which we vs Miguel, in that case SC would still adhere to art ar
return us back in the roman times with the concept 176, child goes to the mother. So if your confronted
of patria potestas, that the head of the family is the with this situation, you can provide the reasons we
only one represented in the society if you remember said, beginning from the rational of art 176 and how
in your roman law. it will not be applicable with a situation when there
is certainty as to the filiation of the fatherfa and
Art. 211. The father and the mother shall jointly exercise parental
pa husband and wife live together exclusively, but you
authority over the persons of their common children. In case of still mention how SC in this case of Briones v Miguel
disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
still adhere to art 176, its still unsettled.

Children shall always observe respect and reverence towards their Now what happens to joint parental authority in case one of
parents and are obliged
bliged to obey them as long as the children are the parents died?
under parental authority.
The surviving parent will exercise full parental
authority over the child.
This joint parental authority, we can easily say that it refers to
a situation where husband and wife are married and the child Art. 212. In case of absence or death of either parent, the parent
is legitimate, what happens if the child is illegitim
illegitimate? Who present shall continue exercising parental authority. The
shall exercise parental authority over him? remarriage of the surviving parent shall not affect the parental
Art. 176 , the mother. authority
thority over the children, unless the court appoints another
person to be the guardian of the person or property of the
Take not class that we are don’t even concern of the
age of the child, automatic yan, if your illegitimate, Now what happens of the surviving parent remarries?
your under the authority of your mother. What is the Parental authority over the child will still be
rational of the law to provide this rule? The rational exercised by the survivi
surviving parent, unless the court
is, when it comes to filiation of illegitimate children, deems it best to institute a guardian to exercise
it’s only the filiation of the mother which is certain, parental authority over the child.
that’s the rational, that’s why authority is given to
the mother, yun ang reason after the father is not Remarriage should have no effect to the parental
certain right. authority exercise by the surviving spouse but it also
90|P a g e

does not give his subsequent spouse aany parental mother as sufficient reason to deny custody of the
authority over the child because basically they are child. So what if give us what, parang mali yung
strangers to one another diba, no blood relationship, priorities nila. And how do they justify the
they are only relatives by affinity. adulterous and immorality of the mother by the fact
that the child is very young, too young to be
No what in case of separation, what if the spouse separate? corrupted diba, but those are in the past, if this law
the parental authority should be exercise
exerc by the will pass today, it would be different. Now following
person adjudge by the court. the rules of the SC, if there is neglect on the mother,
sabi lagi gabi umuuwi, puyat, di maalagaan ang anak,
so the court will designate who shall exercise that is not sufficient reason to deny her custody or
parental authority, even the fact that she is lesbian that is not sufficient
reason or adulterous relationship. So wat is
Art. 213. In case of separation of the parents, parental authority sufficient? We do not know. It must be really
shall be exercised by the parent designated by the Court. The
something bordering on what is extreme.
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. Supposed to be you have given the custody of the child and
the child was taken away from you. What is your remedy?
But is this choice of parental authority amount to the File a petition habeas corpus.
termination of the parental authority over the parent who is
not chosen? Will this also lie with respect to third person?
No, it will not be terminated, that does not amount Yes.
to termination, there still parental authority. For
peaceful co-existence,
existence, only one parent will exercise Supposing your daughter a minor eloped,
eloped can you file a
ntal authority over the child, what is awarded is petition for habeas corpus for the production of your child in
the exercise Parental Authority andnd that designation court?
does not amount to the termination of the parental Yes and this emanates from your right as parent to
authority of the parent who is not chosen. have custody of your child.

In making its choice, does the court consider the opinion of Since we are guided by the best interest of the child, then it
the children? also follows that any judgment with regard to custody
Yes,, when they are over 7 years old. arrangements will never attain finality. What does this
th mean?
the best interest of the child may vary from time to
Why do you make such distinction? time. It may vary from time to time and the court
Because the law provides that if the child is below 7 will not have its hand tied from its prior custody
years age, the custody will be given to the mother judgment because it is the best interest of the child
unless the court finds the mother unfit. is the overriding concern here.
here The court may set
aside the custody judgment
So this is a maternal preference rule. And what is the
justification of this preference given to the
he mother by children Do you know what is filial privilege?
who are below 7? No descendant may be compelled to testify in a
If you look on the justification given
gi by the code criminal case against his parents and grandparents
commission, thee emphasis was on the sorrow that except if such testimony is indispensible in a crime
mother would experience if the child would be taken against the descendant by b one parent or by one
away from her as such tender age. age And in fact the parent against the other. Filial privilege is a
code commission even go as far as saying that even prohibition against compulsion to testify, but it is not
if the mother committed adultery or live an immoral a prohibition against voluntary testifying, but if the
life that would not be a sufficient justification for the descendants wants to testify its fine. His parents and
child to bee taken away from the mother
mother. That is the ascendants cannot invoke that privilege against him
rule. But as whose expense? At the expense of the and what’s more, if it’s in a civil case we don’t speak
child right
ght kasi this is an old rule, this is an old rule of filial privilege, only in criminal case.
not a preference rule and going by the reason of the
code commission, iba pa yung thinking nila, they Art. 215. No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when
w such
focus on the mother. They also dismiss that
testimony is indispensable in a crime against the descendant or by
adulterous issue and immorality on the part of the one parent against the other.
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What is substitute parental authority as compared to special Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
parental authority?
It is the parental authority exercise by the people
peopl in
substitution of the parent. What would be nature of liability of people exercising this
Special Parental Authority??
so when this takes place? Under what conditions will this The liability would be principal and solidary. The
take? parents in this instance class will be subsidiary liable.
We have death, absence, and unsuitability, in which In case the principal obligors are not able to answer
case substitute parental authority shall be exercise for the damages, parents will be subsidiary liable.
1. grandparents, Art. 129. Those given the autho
authority and responsibility under the
2. eldest bros and sis over 21 years of preceding Article shall be principally and solidarily liable for
age unless he is unfit , or damages caused by the acts or omissions of the unemancipated
minor. The parents, judicial guardians or the persons exercising
3. the actual custodian over 21 years old
substitute parental authority over
o said minor shall be subsidiarily
or unless unfit. liable.

With regard to the last one, actual custodian, he The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
may or not be related to the child, and he will be
proper diligence required under the particular circumstances.
taking enormous responsibility over the child, his
substitute of the parents,, so if u take a child in your All other cases not covered by this and the preceding articles shall
care, your already of legal age , and when the child be governed by the provisions of the Civil Code on quasi-delicts.
kills someone, you incur liability, because you are If the liability takes place outside the school premises and in
responsible for him as a substitute of the parents unauthorized activities, who will be liable for the damages?
though you can post the defense of exercising The parents will be principally liable.
diligence of a good father,
ather, but you might still incur
liability as you qualify as actual custodian of the In the case of Tamargo vs CA, this involve a child
child. who is in the process of being adopted and he
committed the crime whilewh the adoption is pending
Art. 216. In default of parents or a judicially appointed guardian, and what happens, you understand that once the
the following person shall exercise substitute parental authority adoption is granted it retroacts
retroac from the time the
over the child in the order indicated:
petition is filed,, so by fiction of law it’s as if he will
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one
twenty years of already adopted, so its translate to a conclusion
conclus that
age, unless unfit or disqualified; and by fiction of law he is already the child of the
(3) The child's actual custodian, over twenty-one
twenty years of adoptive parents when he committed the crime,
age, unless unfit or disqualified.
there was an attempt to m make the adopting parents
Whenever the appointment or a judicial guardian over the liable for the damages that he cause. cause Was that
property of the child becomes necessary, the same order of sustained by SC?
preference shall be observed. It was not. No,
No since the adopting parents is
not in custody or exercising parental
What is the difference of special parental authority over authority over the child, the natural parents
substitute parental authority? is the one liable.
Parental authority exercisee by principals, teachers in
charge__. Parental authority
ity also affects the properties of the child.
How will it affect the properties of the child?
Teacher refers to class adviser. This Special Parental
P The person who exercising parental authority also
Authority is special in a sense that it is limited in exercises the authority to administer the property of
extent because it only exists for liabilities which the child.
takes place inside or outside the school premises but
authorized school activities. Would the parents have any authority over thet property over
their children?
Art. 218. The school, its administrators and teachers, or the
Yes, they are supposedly the inherent guardians
individual, entity or institution engaged in child are shall have
special parental authority and responsibility over the minor child both over the persons of their children and over the
while under their supervision,, instruction or custody. properties of the children.

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Do they have to be appointed by the court as guardians over Need to know the grounds,
rounds, its self explanatory.
their property?
They don’t have to. Emancipation
By virtue of RA 6809, there is only one way by which
Do they need to do anything or take steps to the guardianship a minor may be emancipated. Wala ng emancipation
over the property of their children? by marriage, emancipation
ancipation by agreement, it is only
If the property belonging to the child amounts to by reaching the age of majority
majori which was lowered
more than 50k, or if the child’s annual income to 18.
amounts to more than 50k, there is still no need for
the parents to be appointed as guardians kasi
inherent nga yan eh, but they will need to file a
petition in court in summary proceedings for the
approval of the bond.

And what is the bond supposed to answer for?

For the faithful administration of the property

The amount of the bond is to be fixed by the court.

You may encounter this situation in case one of the parent

dies and the child happens to be a beneficiary of the policy of
the parent, it would be a requirement of the insurance
company for the parents or by the parents to go to court first
to post a bond before the parents can be allowed to collect
from the proceed of the policy.

How do we treat the ownership of specific properties of the

child? Does it pertain to his ownership?

es the law limit the use for the parts of tthe property that
may be devoted?
The ownership of the property shall pertain to the
child and it shall be primarily answerable for his
needs/ support.

But with regards to the fruits and income of the

property, the family is allowed to benefit from the
fruits and income. This is a deviation from the old
rule, coz under the old rule usufruct over the
properties of the children is given to the parents, but
that has already been eliminated. Now, Now fruits and
income can
an still be use but it should be use for the
benefit of the child and for the family as a whole.

Parental authority can be terminated and suspended right.

Termination can be permanent or temporary. It is permanent
if upon the death of the child or the parent
ent and its temporary
in case of adoption, guardianship and if penalized with a civil

If there sexual violence committed against the child, is it a

ground for termination of the parental authority of the child?
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PROPERTY we can say that all matters in the world which

cannot be so apprehended, they t cannot be
CIVREV1_4A11 considered as property. If you would analyze,
everything will begin and end with the ability to
What do you mean by the term property? acquire ownership over it. Kasi from ownership you
Property – things which are capable of satisfying will have right of possession, right of disposition,
human wants and needs and are susceptible of right to enjoy, right to destroy. So accord
accor ownership
appropriation. will go all the other rights that will give rise to
transaction, which essentially would be akin to
o corporeal or tangible thing?
So these would refer to property. Ownership will ___ all the other rights
Yes. which you are allowed to bring it into a subject of
But is every single thing also considered to be property? Are
they one and the same? What about the planets, the sun, the stars? Is this possible?
As used in the Civil Code, the word “thing” is No. These are not considered to be property and
apparently synonymous with the word “property” therefore you cannot acquire ownership over them.

But in the traditional sense, are they one and the same? What if portions of the sun, the stars, etc? Like solar energy. Is
no there any property involved?
Yes. There is movable property.
pro It will be a force of
But which is broader: thing or property? nature brought under the control of science.
Thing will be broader.
Property is something which is appropriated or possessed. So
Why will it be broader? the key ingredient of property is appropriation and
Because it includes both appropriable and non-
non possession.
appropriable objects
Supposing that a property that is susceptible of appropriation
So things which would refer to simply is broad was previously possessed but now it is abandoned, does it
enough to include property. cease to be a property?
No. They remain to be property, they become res
Now must property be actually appropriated or possessed to nullius but they remain to be property nonetheless
be such? and they can still be acquired through occupation.
No. It is sufficient that it is susceptible of
Now for most people, the term property evokes images of
But what exactly is appropriation? corporeal thing, tangible objects. So now, could it mean that
Act of taking a thing for one’s own use. Act of taking, rights, which are intangible objects, are a bunch of juridical
act of apprehending, for the purpose of subjecting it relations. Can they be considered properties?
to one’s own use. Yes. So that means they can also be sold.

So can you say that since we speak of taking or acquisition, do So a right of consortium is a right, correct? Is it a property
we say that it is the same as occupation? Appropriation as which can be sold?
occupation? Occupation is viewed in the sense that it also No. It is inherently personal.
includes hunting or fishing. When you occupy by hunting or
fishing, you apprehend the animal and from that point on, Right to vote?
you acquire ownership over the animal. Is this the No.
appropriation that we speak of here?
Actually, the law does not define what appropriation Right to free speech/Right to freedom of the press?
is. But if we argue in the sense that property is No.
something which is susceptible of appropriation,
then we have to liken it to occupation. Say, fish can So what rights may be considered as properties and whic
be subjected to one’s ownership through may be the subject of transactions?
apprehension. Only such rights which pertain to property.

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What do you call these rights? mode of transferring ownership. If it is movable

Patrimonial rights. Those which pertain to property property, the mode is to deliv
deliver. If it is immovable, it
and which have pecuniary value. is also possible for you to resort to delivery by
executing a valid instrument. And so on and so
Example: Mortgage right, Credit - right to collect, rig
right to forth..
demand performance
Now how do we classify property into movable or immovable?
Patrimonial Rights can be either Real or Personal Right. What Article 415 enumerates the immovable properties.
is a Real right? What is a personal right?
• Personal right – there is a definite passive subject We can further subdivide the enumeration in Art. 415 which
• Real right – there is no definite passive subject, are immovable into immovable by nature, immovable by
because the passive subject is the entire world incorporation, by destination and by analogy.

There is always a passive subject, only it must be a definite With the properties enumerated, which are immovable by
passive subject. nature?
Actually this refers to Lands because by nature,
natur they
Example of real right: Right of Ownership are immovable. They were made that way, and also
Example of personal right: Credit or right to collect to the mines, quarries, to the waters, either running
or stagnant. They are immovable by nature.
Let’s say A and B entered into a contract of sale for a dog. The
buyer is A, the seller is B. But B sold the same dog to C. Now B By incorporation, this can include?
delivered the dog to C. A now wants to be given relief. What By incorporation, the immovable nature of the
is his remedy and against whom? property is determ
determined by its attachment. So this
A has a personal right over the dog so he has a right includes buildings because they are attached to the
to demand for damages. A has no action against C land, or trees because trees are attached to the land,
because his right over the dog is only personal in or statues, reliefs, paintings so long as there is
nature. intention to have them attached permanently or it
can also refer to
o everything that is incorporated into
What right exactly is that? an immovable such that it cannot be separated
The right to compel delivery of the dog which arises therefrom without destruction of the material of the
from the contract of sale which can only be enforced object.
against B, the seller. It would be diff
different if there
had been prior delivery of the dog to A. in which By destination. What makes it different from immovable by
case ownership will be transferred to A and he now incorporation is that they are made immovable because
becau of
has a real right. Should the dog be taken from him the purpose they are made to serve and this can include
and delivered to C he will have a right to go after C. machineries, receptacles, instruments or implements placed
Here he is no longer exercising thee personal right to by the owner of the tenement for an industry or work which
recover or to demand the delivery of the dog, but is may be carried out on the tenement. This can only include
exercising a real right to recover what belongs to the docks and otherr structures which, although floating, are
him. intended to stay in a fixed place. Those which their purpose
makes them immovable.
Now, property is classified into many kinds but the most
important classification is what? By analogy. This refers to contracts for public works and
By their mobility. Whether it is immovable or servitudes and other real rights over immovable property.
movable property.
(1) Land, buildings,
ildings, roads and constructions of all kinds
Why is thisa most important classification? adhered to the soil;
Because this classification of property gives rise to The first paragraph speaks of lands, buildings, roads, and
different legal consequences. If you would notice, if constructions of all kinds adhered to the soil. We all know
you need to determine the form of which as that it is possible that a building that is owned by one person
transaction as to be embodied,
ied, you look at whether standing
ng on land belonging to another. Would the difference
the subject is movable or immovable. When it comes in the ownership over the building and the land have any
computing acquisitive prescription,it also depends if effect on the immovable nature of the building?
the property is movable or immovable. Even the None.
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Why is this? (4) Statues, reliefs, paintings or other objects for use or
It becomes immaterial because after all we adhere ornamentation, placed in buildings or on lands by the owner
to the principle that ownership
rship of the accessory of the immovable in such a manner m that it reveals the
follows the ownership of the principal. So that in the intention to attach them permanently to the tenements;
end, whatever is built on the land will also belong to If you are to compare paragraph 3 and paragraph 4, in
the owner of the land subject to the right of the paragraph 3, class, it should be broad enough to include
parties that may be proper over the circumstances. paragraph 4. But then our lawmakers have ___ to provide for
But the thing is what you look at is that the fact that a specific
ecific provision relating reliefs, statues, paintings and so
the building is attached to the land and the law says on. So what distinguishes paragraph 3 from paragraph 4?
that whatever is attached to the land becomes In Paragraph 4, the ____ specify that removal cannot
immovable. be done without damage. So it implies that it may or
may not be removed without damage. damage Unlike in
(2) Trees, plants, and growing fruits, while they are attached paragraph 3, it specifies that removal cannot be
to the land or form an integral part of an immovable;
imm achieved without damage or destruction of the
The trees are attached to the soil and therefore, by material.
incorporation, they are immovable. What about the fruits?
How do we justify the fruits as being immovable? Another point of distinction is in paragraph 4, it
They are attached to the trees. So the tree is appears to be material who introduces the paintings,
attached to the land, the fruits are attached
atta to the or other objects into the premises.
premise It must be
tree. The tree,by virtue of its attachment, the land introduced by the owner himself. Paragraph 3, does
becomes immovable, and the fruits, while they are not impose such a condition.
still part of the tree, are considered to be an integral
part of an immovable and therefore they are also (5) Machinery, receptacles, instruments or implements
immovable. intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of
Would there be any qualification
lification to our characterization of land, and which tend directly to meet the needs of the said
growing fruits as immovable property? industry or works;
The Chattel Mortgage Law which says that growing The spoon and fork that are used at Max’s Restaurant, will
fruits, ungathered fruits are considered to be that be movable or immovable?
movable property but only for purposes of chattel They are immovable by destination under paragraph
mortgage. So general rule, they aare immovable, 5.
except if the chattel mortgage law is applicable.
What about the beds inside
nside a hotel?
(3) Everything attached to an immovable in a fixed manner, They are immovable.
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object; Why?
They are immovable because they are incorporated to an They are essential to the hotels.
immovable in such a manner that they cannot be separated
without damage or injury. Can you give me an example? What will you do in a hotel?
Toilet. You go to hotel for lodging, lodging should include
sleeping.It is not necessary that the beds are bolted
If you remove the toilet bowls, can you remove it without to the floor.
damaging the bowls?
No. Mababasag yung toilet. but you can just imagine These may be considered as machineries,
m receptacles,
because it is made of ceramics and the only way I instruments, or implements. They are immovable so long as
see it is that you have to break the bowl itself or the the industry is being carried out on the premises. It is
immediate surroundings so there will be damage. So important that it is the owner of the premises who introduces
it can be considered as immovable by incorporation them.
under paragraph 3. As we said if you remove it,
there can be a gaping hole in your bathroom. The Now beginning about two years ago, every time that we had
floor will be damaged. the deliberations for who would graduate or who stays
behind, the statue of the Virgin Mary at the lobby would be
the center of a congregation for the candidates for
graduation and they would pray the rosary. How would you
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classify the Virgin Mary

ary at the lobby, is this movable or So the test to determine whether the property is movable or
immovable? immovable, you have to apply these standards given to us by
It is immovable by incorporation under paragraph 4. article 416.
(1) First, those which cannot
canno be transferred from one
Why? place to another.
Because the administration had the intention to put (2) Second, those that fall under article 415.
it there permanently. (3) Third, if it is incorporated into an immovable
property and cannot be separated without damage
Why do you say that there is intention to place it there or destruction, and
permanently? (4) Fourth, is there an express provision of law like the
It should be based on the circumstances surrounding Chattel Mortgage Law which makes property,
the active or the situation of the statue. If you would otherwise immovable, personal property.
notice, it has its own house and it has a specially
designated area as though that area was specifically Then the list continues to article 417.
chosen for the statue. That should show the
ntention to place it there permanently. Article 417. The following are also considered as personal
Every December you have a visit from Santa Clause. You get
two figures: dancing Santa Clause figures. That will be likened (1) Obligations and actions which have for their
to a statue but will it be considered as immovable by object movables
ables or demandable sums; and
destination? (2) Shares of stock of agricultural, commercial and
No. Because there is no intention to make it a industrial entities, although they may have real
permanent fixture. estate

(6) Animal houses, pigeon-houses,

houses, beehives, fish ponds or So what does the law mean when it says that obligations and
breeding places of similar nature, in case their owner has actions which have for their subject movables or demandable
placed them or preserves them with the intention to have sums would be movable property?
them permanently attached to the land, and forming a This actually refers to credit. In credits, are those
permanent part of it; the animals in these places are rights to demand performance of an obligation given
included; in lieu of movable things or to pay a sum of money.
If you would note paragraph 6 refers to animal houses, fish
ponds, and other breeding places for animals. If you would be We now have another complication. The law says
technical about it, this would already fall under paragraph
parag 1, “demandable” Does it mean that when the credit is not yet
because there is also the requirement that they be demandable or has not matured yet, it is not personal
permanently attached to the premises. So what is really the property?
subject of incorporation here to make it immovable would be No. Whether or not the credit has matured, whether
the animals in the breeding places, the premises, not or not it is actually demandable, it is will still be
necessarily the fish ponds
nds or the animal houses themselves personal property. Because, we simply have no
because this was already taken care of by paragraph 1. alternative
lternative option. IF we would discriminate against
the credit simply because it is not demandable, it
What about movable properties? What comprises movable cannot be immovable property because it does not
properties? fall under article 415. So the most common thing to
Article 416. The following things are deemed to be personal property: do is to disregard the term “demandable” and treat
itt as movable property nonetheless.
(1) Those movables susceptible le of appropriation which are not
included in the preceding article;
(2) Real property which by any special provision of law is Now the law says shares of stocks of agricultural, commercial
considered as personalty; and industrial entities. Are we limited then to shares of stocks
(3) Forces of nature which are brought under control by
of corporations?
science; and
(4) In general, all things which can be transported
ansported from place to No, Even interests in partnerships will be considered
place without impairment of the real property to which they as movable properties.
are fixed.

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Movable properties on the other hand are also classified into Property in terms
erms of ownership is either of public dominion or
consumable and non-consumable.
consumable. What is a consumable of private ownership. Who may own properties of public
property? dominion?
Properties whose use according to their nature The State in its public capacity
would bring about the destruction of the substance
of the thing. IF you will use itt according to its nature, But can the State own properties in its private capacity?
you will destroy it. Yes.

Example: Bread. So what are the properties of public dominion?

Properties of public dominion are enumerated
Non-consumable, example: Book. Article 420.

Supposing that you found yourself in a very cold place with no Properties for public use, public service or for the
source of heat and you decided to burn your books beginning development of national wealth
with Civil Law books. Would that make
ake the book consumable?
No. If you would notice, local government units, like
municipalities and provinces will also have properties and
Why not when it is destroyed? their properties would also be divided into properties for
Because it was not use according to its nature. public use and patrimonial properties. What we have is
under the Civil Code would be properties for public service or
(Note: Consumable and Fungible objects are being confused properties for the development of national wealth.
because they are being used interchangeably. They are not
the same.) What is a property which
ich is devoted for public use?
Can be used indiscriminately by public
What are fungible objects?
Fungible objects are those which are susceptible of Example: Road
being substituted.
How about properties for public service? How is it different
Example: Table. from properties for public use?
The difference is that both properties are intended
Is this fungible? to benefit the public. In
I that sense, they are both for
Yes. public service. But properties for public use, this is
accessible by the public indiscriminately but
Is this consumable? properties for public service, these cannot be
No. accessed by just anyone.

Example: Eyeglasses. Example of property for public service: Police station


Fungible goods are susceptible of substitution. It could be What about patrimonial property of the State?
because of their nature
ture or could be because of the intention These are properties which the State owns in its
of the parties. Consumable goods, on the other hand, are private capacity. In other words, its ownership is no
where consumable in nature is dictated mostly by their different from the ownership of a private person.
nature. So it may happen that a thing is both consumable and
fungible. The more important question is this. Why do we need
ne to know
the classification of State property as either public dominion
For example: a sack of rice. or patrimonial in nature?
Because if it’s of public dominion, it is outside the
It is consumable and yet, at the same time, it is specifically commerce of man. It does not matter how long you
designated by its unit of measurement, a sack of rice, then it have in possession, or the person who sold you the
is taken to be fungible as well. It can be substituted by any property,
operty, it can be the Mayor, the fact remains that
rice corresponding to the same unit of measurement. it is outside the commerce of man. It cannot be
bought; it cannot be the subject of transactions.

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Can the Taal Volcano be sold? • Limitations inherent in the property.

What is the power of Eminent Domain?
Who owns the Taal Volcano? When you own property, it is a real right and you can
The State. enforce ownership as against the whole world. Now,
enforcing ones ownership does not really mean that
Why does the State own the Taal Volcano? you are going to do something against
again the rest of
Because under the Regalian Doctrine, anything that humanity. It means the rest of humanity including
is not owned by private individuals will belong to the the State must respect your ownership over the
State. This goes back to the olden times when property. This usually is the case, except that the
everything is made to belong to the King. Kaya nga State has reserve for itself the right to take your
Regalian Doctrine: Regal, Royal. property when there is a need for it, wh
when public use
requires. This is through Eminent Domain. But there
What happens
appens to property devoted to public use or public is provision on the payment of Just Compensation.
service if once they have ceased but they are still being used
for this purpose? What exactly is Just Compensation?
They will become patrimonial property. Essentially, it is the fair market value and to
conclude this as a sign of the taking, we do not
Does this take place automatically? Let’s say an abandoned considerr the potential increase in the property. For
fort or fortress owned by the national government, now instance, today it’s 10,000 per square meters, but
occupied by the municipal government, remember, a we are accepting that once the nearby walls are
municipal government has a personality separate from the completed, the price will shoot up to 25,000 per
national government, properties of the municipal square meters. Just compensation will still be 10,000
government are not properties of the national government. per square re meters because it is the prevailing market
Can the abandoned
doned fortress be occupied by prescription by value at the time of the taking.
the municipal government?
No. There should be a declaration on the part of the What about police power? How is it a limitation of ones
government, may it be the Congress or the Executive private ownership?
Department, declaring it to be no longer for public Police power is based on the general welfare clause
use or for public purpose. of the Constitution. So if the general welfare of o
public would require the destruction, the
What is ownership? confiscation of your property, then the State will do
When you say ownership, it means that you have the this and by way of distinction from Eminent Domain,
power to completely subject the property to your the owner is not entitled to any compensation.
will. Complete subjugation to your will. You can do
whatever you want with the property. You can use Example:
it, you can abuse it, you can destroy
des it, you can Dog with Rabies which the Baranggay will have to
dispose of it, and you can transform it. Subject only kill.
to certain limitations.
Taxation as a limitation to private ownership?
What are these limitations? Your pay slipthat will reflectyour income, and that is
We have a general limitation imposed by the State in your property. You might be expecting, for example,
the exercise of its inherent powers. 30,000 at the end of the month. Actually you are
getting 20 to 23,000. You do not get your property
What are these inherent powers? intact because the government has already
• (Power of) Taxation, deducted withheld taxes on your income.
• (Power of) Eminent Domain and
• Police Power. Can the government do this?
Yes, through the power of taxation.
What are other limitations?
• Limitations imposed by specific provisions of the law. Limitation imposed by law example:
• Limitations imposed by the transferor of the Easements
• Limitations imposed by the owner himself and
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Limitation imposed by the transferor: Take note that this is applicable not only in actual intrusion
Commercial property, there is a prohibition that you but also in threatened intrusion.
against erecting buildings for a certain height.
Example: Force employed by one person to prevent other
Limitation as imposed by the owner himself: persons from carnapping his vehicle.
Lease of a property by a third person since he has
not the use and enjoyment of the property. What exactly is reasonable means or reasonable force?
It depends upon the circumstances of the case.
Inherent limitation:
Co-ownership. If you are a co-owner,
owner, you exercise If it is a threatened dispossession, then it can begin and end
ownership over the entire property. But you cannot in trying to can repel the threatened dispossession.
enjoy the property in its entirety because you cannot
exclude a co-owner
owner from the same use or But if it is actual dispossession, you have to mind the facts of
enjoymentof the thing and that is the inherent in the time. Your efforts to recover through the principle of self-help
nature of the property that is co-owned
owned mustt be taken immediately after dispossession because
beyond a reasonable period, beyond the immediate period
What are the attributes of ownership? after dispossession, your recourse is to go to court.
• Right to dispose,
• Right to abuse, Self-help
help can be used not just by the owner but also by the
• Right to the fruits, lawful possessor.
• Right to use,
• Right to destroy, Can it also bee exercised by a third person who is neither a
• Right to recover possessor of the property nor the owner of the property? For
instance a neighbor would shot upon an intruder entering
Can the owner rid himself of all these attributes and still your premises.
remain owner? Yes.
Supposing that in the effort of your neighbor to prevent the
What remains in himself? intrusion,
n, he is shot at, are you liable for any indemnity to
The naked ownership. You use the term naked him?
owner because he is literally stripped off all his rights Yes.
of ownership. This emphasizes the principle of
elasticity of ownership because no matter how many What is the basis of your liability?
attributes you strip off from the owner, his There will be a quasi-contract
quasi which is negotiorum
ownership will still remain with him because his title gestio.
remains with him.
Situations involving the principle of Self-Help,
Self will not always
One important attribute of ownership is Jus Vindicandi or the be in a situation where the intrusion will be caused by a third
Right to Recover. Can you explain it? person directly. The danger or the intrusion can also be
You can have unlawful entry, forcible entry, accion caused by another property, property belonging to another
publiciana and accion reivindicatoria. But all these person. When this happens, it is likely that there is some
actions are constituted to be brought before the confusion between the Principle of Self-Help
Self on one hand,
courts, invoking the court’s intervention. and acts taken in a State of Necessity on the other.

But is there any instance where the owner can, so to speak, Now, it is important for us to know when to apply the
take the law into his own hands? Principle of Self-Help
Help and when to apply the Principle of State
We also recognize the Principle
ciple of Self
Self-Help. of Necessity.

What is the Principle of Self-help? For instance, if you have two adjoining lands and in one of
One which authorizes an owner or lawful possessor the property, there is a tree that is in danger of falling over on
of a property to use reasonable counter-force
counter to to the other premises. If you have crops in this other parcel of
prevent or stop another person from taking the land, then, if the tree will fall on this land, these crops will be
former’s property. destroyed. So there is danger and the owner of the parcel of

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land, and the owner of the crops, can he repel the danger were eating, the girl choked, but because she does not have a
posed by the tree? drink, she drank the boy