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GENERAL PRINCIPLES IGNORANCE OF THE LAW

GR: Everyone is conclusively presumed to know the law. Hence, ignorance of


“Unless it is otherwise provided” provision on effectivity of laws the law excuses no one from compliance therewith (NCC, Art. 3).
The clause "unless it is otherwise provided" refers to the date of effectivity
and not to the requirement of publication itself. This conclusive presumption presupposes that the law has been published.
Without such notice and publication, there would be no basis for the application
Publication requirement of the maxim ignoratia legis non excusat.
Publication is indispensable in every case, but the legislature may in its
discretion provide that the usual fifteen-day period shall be shortened or Non-applicability to foreign laws
extended. Ignorance of a foreign law is a mistake of fact. There is no presumption of
knowledge of foreign laws. It must be alleged and proved as a matter of fact;
Publication must be in full or it is no publication at all since its purpose is to otherwise, the doctrine of processual presumption will apply.
inform the public of the contents of the law.
Doctrine of Processual Presumption
Indispensability of publication In international law, the party who wants to have a foreign law applied to a
GR: All laws are required to be published in full. dispute or case has the burden of proving the foreign law.

XPNs to the Publication Requirement: O-R-L-I Retroactivity clause of the Family Code (2005, 2010 BAR)
1. Municipal Ordinances (governed by the Local Government Code); The Family Code shall have retroactive effect insofar as it does not prejudice or
2. Rules and regulations which are internal in nature; impair vested or acquired rights in accordance with the Civil Code or other laws
3. Letters of Instruction issued by administrative supervisors on internal rules (FC, Art. 256).
and guidelines;
4. Interpretative regulations regulating only the personnel of administrative UNWAIVABLE RIGHTS
agency.
1. Right to live and right to future support.
Include: 2. Right to personality and family rights.
1. An interpretative regulation; 3. Right to future inheritance.
2. A regulation that is merely internal in nature; and 4. Political rights.
3. A letter of instruction issued by an administrative agency concerning rules or
guidelines to be followed by subordinates in the performance of their duties. WAIVER OF RIGHTS
GR: Rights may be waived.
Where to publish
1. Official Gazette; or XPNs:
2. Newspaper of general circulation in the Philippines 1. If waiver is:
a. Contrary to law, public order, public policy, morals or good customs;
Newspaper of general circulation b. Prejudicial to a third person with a right recognized by law. (e.g. If A
For a newspaper to be considered of general circulation: owes B P10M, B can‘t waive the loan if B owes C and B has no other assets).
1. It must be published within the court’s jurisdiction; 2. If the right is:
2. It must be published at regular intervals for disseminating local news and a. A natural right, such as right to life;
general information; b. Inchoate, such as future inheritance
3. It has a bona fide subscription list of paying subscribers; and
4. It is not devoted to the interest or published for the entertainment of a
JUDICIAL DECISIONS
particular class, profession, trade, calling, race or religious denomination
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Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines (NCC, Art. 8). (1994 BAR) Lex Loci Celebrationis
The forms and solemnities of contracts, wills, and other public instruments shall
Doctrine of Stare Decisis be governed by the laws of the country in which they are executed (NCC, Article
It is adherence to judicial precedents. Once a question of law has been examined 17).
and decided, it should be deemed settled and closed to further argument.

DUTY TO RENDER JUDGMENT Ways of dealing with a conflicts case

No judge or court shall decline to render judgment by reason of the silence, A) Forum Non Conveniens
obscurity or insufficiency of the laws (NCC, Art. 9). (2003 BAR) The refusal to assume jurisdiction because it would prove inconvenient for the
forum.
However, in criminal prosecutions, the judge must dismiss the case if a person is
accused of a non-existent crime following the maxin “nullum crimen, nulla B) Doctrine of Processual Presumption of law
poena sine lege” (Rabuya, 2009). When the proper foreign law has not been properly proved, the court of the
forum may presume that said foreign law is the same as the law of the forum
PRESUMPTION AND APPLICABILITY OF CUSTOM
that said court can now apply. It applies when the foreign law is not alleged or if
Presumption in case of doubt in the interpretation of laws alleged, it is not proved.
In case of doubt in the interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail (NCC, Art. 10). (2003 C) Once the court has determined it has jurisdiction over the case, it will next
BAR) determine whether to apply the internal law of the forum or apply the proper
foreign law.
In case of silence, obscurity or insufficiency of the law with respect to a
particular controversy CITIZENSHIP
If the law is silent, or is obscure or insufficient with respect to a particular
controversy, the judge shall apply the custom of the place, and in default Theories of personal law
thereof, the general principles of law and justice. 1. The Nationality Theory or Personal Theory – the status and capacity of a
person is determined by the law of his nationality or national law (Sempio-Diy,
In criminal cases, customs cannot be applied because of the maxim nullum
2004).
crimen nulla poena sine lege(There is neither crime nor punishment, without a NOTE: The Philippines follows the Nationality Theory.
law).
2. Domiciliary Theory or Territorial Theory – the status and capacity of a
CONFLICT OF LAWS person is determined by the law of his domicile (Ibid.).

Nationality principle FAMILY LAW AND PERSONAL CAPACITY


Laws relating to family rights and duties or to the status, condition, and legal
capacity of persons are binding upon citizens of the Philippines, even though
living abroad (NCC, Article 15). 1. Laws relating to family rights and duties, or to the status, cond=ition, and
legal capacity of persons are binding upon citizens of the Philippines, even
Lex rei sitae though living abroad (NCC, Art. 15)
Real property as well as personal property is subject to the law of the country
where it is situated (NCC, Article 16).
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2. All marriages solemnized outside the Philippines in accordance with the laws
in force in the country where they were solemnized, and valid there as such, 2. The will of an alien who is abroad produces effect in the Philippines if made
shall also be valid in this country, except those prohibited under Articles 35(1), with the formalities prescribed by the law of the place in which he resides, or
(4), (5) and (6), 36, 37, and 38 (FC, Art. 26). according to the formalities observed in his country, or in conformity with those
which this Code prescribes (NCC, Art. 816).
Requirements for the application of par. 2 of Art. 26 of the Family Code
1. It must be a case of mixed marriage (one party is Filipino and the other is an 3. A will made in the Philippines by a citizen or subject of another country,
alien); which is executed in accordance with the law of the country of which he is a
2. The divorce must be obtained by the alien spouse and not by the Filipino citizen or
spouse; and 4. subject, and which might be proved and allowed by the law of his own
3. The divorce obtained by the alien spouse must capacitate him or her to country, shall have the same effect as if executed according to the laws of the
remarry ( Philippines (NCC, Art. 817)

Law that governs the validity of marriage in case of mixed marriages


RENVOI
Marriage between a Filipino and foreigner ABROAD Definition : It is a French word, which means “refer back” or “return”. It is a
If the marriage is valid under the law of one of the spouses while void under the procedure whereby a jural matter presented is referred by the conflict-of-laws
law of the other, the validity of the marriage should be upheld, unless the rules of the forum to a foreign State, the conflict-of-laws rules of which, in turn,
refer the matter back to the law of the forum or a third State.
marriage is universally incestuous or highly immoral (the same rule as to
When the reference is made back to the law of the forum, there is “remission”,
foreigners who get married abroad).
while reference to a third State is called “transmission”.
Marriage between a Filipino and a foreigner in the PHILIPPINES
Ways of Dealing with Renvoi
The national law of the Filipino – Philippine law should be followed – otherwise
the country’s public policy would be violated 1. Accept the renvoi and apply forum law.
2. Reject the renvoi and use the law of the other State, minus its conflict-of-laws
Alien woman who marries a Filipino husband rules (i.e., its internal law that would be applied to a domestic case that has no
Ipso facto becomes a Filipino citizen if she does not suffer under any conflict of laws complication).
disqualification for naturalization as a Filipino citizen. 3. By desistance or mutual disclaimer of jurisdiction. This has the same result as
Personal relations: National law of the husband shall govern (GR). acceptance of renvoi, but the process used by the court is to desist applying the
foreign law.
SUCCESSION 4. Use the “foreign court” theory. The forum court assumes the same position
the foreign court would have taken if the case is litigated in the jurisdiction of
1. Real property as well as personal property is subject to the law of the country the foreign court.
where it is stipulated.
REVOCATION OF WILLS
However, intestate and testamentary successions, both with respect to the 1. If revocation takes place in the Philippines, whether the testator is domiciled
order of succession and to the amount of successional rights and to the intrinsic in the Philippines or in some other country, it is valid if in accordance with
validity of testamentary provisions, shall be regulated by the national law of Philippine laws.
their person whose succession is under consideration, whatever may be the 2. If revocation takes place outside the Philippinesm by a testator domiciled in
nature of the property and regardless of the country wherein said property may the Philippines, it is valid when it is in accordance with the laws of the
be found (NCC, Art. 16). Philippines.

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3. Revocation done outside the Philippines, by a testator who does not have his A foreign judgment is a prima facie evidence of a right only because the
domicile in this country, is valid when it is done according to the: court can refuse its enforcement if there is evidence of a want of jurisdiction,
a. Law of the place where the will was made; or want of notice to the party, collusion, fraud, or clear mistake of law or fact.
b. Law of the place where the testator had his domicile at the time of
revocation.
PERSONS AND FAMILY RELATIONS
Rule if a person dies intestate
Follow lex nationali or the law of the nationality of the decedent. Juridical capacity v. Capacity to act
Fitness to be the subject of legal relations (Art. 37).
TORTS Power to do acts with legal effect (Art. 37).
GR: Lex loci delicti comissior the law of the place where the tort was committed
will govern. BIRTH
Reason: The state where the social disturbance occurred has the primary duty
to redress the wrong and determine the effects of the injury; to compensate the Determination of personality
victim for the damage or injury suffered.
GENERAL RULE:
Obligation Theory The Civil Code provides that birth determines personality, but the conceived
The tortuous act gives rise to an obligation, which is transitory and follows the child shall be considered born for all purposes that are favorable to it, provided
person committing the tortuous act and may be enforced wherever he may be it is born later with the conditions specified in Art. 41 (Art. 40).(1999, 2003,
found (Coquia, 2000). 2008 BAR)

This provision has been superseded by Art. 5 of P.D. No. 603 (The Child and
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Youth Welfare Code), which declares that the civil personality of the child shall
commence from the time of his conception, for all purposes favorable to him,
Enforcement vs. Recognition subject to the requirements of Art. 41.
In enforcement, the plaintiff or petitioner wants the court to carry out and make
effective the foreign judgment, while in recognition, the defendant or EXCEPTION:
respondent is only presenting the foreign judgment as a defense. Hence, it is “Born later in accordance with law” (1995, 1999, 2008 BAR)
usual that in enforcement, a separate action or proceeding needs to be filed to
make the foreign judgment effective, while in recognition, no action or A foetus with an intra-uterine life of:
proceeding need be filed, as it implies that an action or proceeding has already 1. Less than 7 months – Must survive for at least 24 hours after its complete
been filed against the defendant or respondent invoking the foreign judgment. delivery from the maternal womb.
2. At least 7 months – If born alive, it shall be considered born even if it dies
Reason for procedure for enforcement within 24 hours after complete delivery.
A foreign judgment cannot be automatically enforced because it has no effect Acquisition of personality through birth
beyond the territorial jurisdiction of the foreign court which issued it. Hence, an GR: Actual/Permanent Personality– Personality begins at birth, not at
action or proceeding needs to be filed to make it effective in the forum. conception.
XPN: Presumptive/Temporary – The law considers the conceived child as born
Effect of foreign judgment (Conceptus pro natohabetur)

Rights of the conceived child

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Since a conceived child has a provisional personality even while inside the An unborn child may be designated as the beneficiary in the insurance
mother’s womb, it is entitled to the following rights: (S-A-D) policy of the mother. An unborn child shall be considered a person for purposes
a. Right to Support favorable to it provided it is born later in accordance with the NCC. There is no
b. To receive Donations doubt that the designation of the unborn child as a beneficiary is favorable to
c. To be Acknowledged (Rabuya, 2009) the child.

Right to be acknowledged
A conceived child has the right to be acknowledged even if it is still conceived. A MARRIAGE UNDER FAMILY CODE
child, upon being conceived, becomes a bearer of legal rights and is capable of
being dealt with as a living person. The fact that it is yet unborn is no
impediment to the acquisition of rights provided it be born later in accordance A special contract of permanent union between a man and a woman entered
with law (De Jesus v. Syquia, G.R. No. L-39110, November 28, 1933). into in accordance with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social institution whose nature,
DEATH consequences, and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the
Rules to apply in case there is doubt as to who died first marriage within the limits provided by the Family Code (FC, Art. 1).

It depends on whether the parties are called to succeed each other.


I. VALID MARRIAGES
1. If successional rights are involved– Art. 43 of the NCC: Survivorship Rule,
As general rule, the nature of the marriage already celebrated cannot be
and Rule 131, Sec. 3(kk): Presumption of simultaneous deaths between persons
called to succeed each other, apply. changed by a subsequent amendment to the law.
2. If no successional rights are involved – Rule 131, Sec. 3 (jj) of the Rules of
Court applies (Presumption of survivorship). ESSENTIAL REQUISITES OF A VALID MARRIAGE
(1996, 2009 BAR)
SURVIVORSHIP RULE UNDER THE NEW CIVIL CODE
1. Legal capacity of the contracting parties who must be a male and a female;
If there is doubt as to who died first between 2 or more persons who are called 2. Consent freely given in the presence
to succeed each other, as to which of them died first:
Absence of the additional requirement of parental advice
1. Burden of Proof: Whoever alleges the death of one prior to the other has the It does not make the marriage void or voidable, it only affects the release of the
burden of proving such claim. marriage license to be postponed until (3) three months from the complete
2. Absent such proof: Presumption is they died at the same time. There shall be publication of the application (FC, Art. 15).
no transmission of successional rights [Sec. 3(kk), Rule 131, Rules of Court].
(1998, 1999, 2000, 2008, 2009 BAR) FORMAL REQUISITES OF A VALID MARRIAGE
(1996, 2009 BAR) C-A-L
EXCEPTION:
THE PRESUMPTION UNDER THE SURVIVORSHIP RULE under the 1. Marriage Ceremony
Rules of Court is that the survivorship shall be determined from the 2. Authority of the solemnizing officer
probabilities resulting from the strength and age of the sexes according to the 3. Valid marriage License, except in a marriage of exceptional character (FC, Art.
following rules: 3).

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Effect in the status of marriage (1995, 1996, 1999, 2008 BAR) The exception to the rule requiring authority of the solemnizing officer is when
Status of Marriage in case of: a marriage is contracted with either or both parties believing in good faith that
1. Absence of any of the essential requisites - Void ab initio (FC, Art. 4). the solemnizing officer had the authority to do so [FC, Art. 35 (2)].
2. Absence of any of the formal requisites – Void ab initio(FC, Art. 4).
3. MARRIAGE LICENSE
XPNs: Valid even in the absence of formal requisite:
a. Marriages exempt from license requirement
Validity of marriage license
b. Either or both parties believed in good faith that the solemnizing officer had
The license shall be valid in any part of the Philippines for a period of 120 days
the proper authority [FC, Art. 35 (2)].
from the date of issue, and shall be deemed automatically cancelled at the
3. Defect in essential requisites – Voidable (FC, Art. 4).
expiration of said period if the contracting parties have not made use of it (FC,
4. Irregularity in formal requisites - Valid, but the party responsible for such
Art. 20).
irregularity shall be civilly, criminally or administratively liable (FC, Art. 4).
If the parties contracted marriage after the lapse of 120 days from the issuance
1. MARRIAGE CEREMONY
of the marriage license, such marriage shall be considered void for lack of
1. Personal appearance of the contracting parties before the solemnizing marriage license.
officer;
2. Their personal declaration that they shall take each other as husband and Additional requirement for foreign national applicants
wife; and
3. In the presence of not less than 2 witnesses of legal age. When either or both of the contracting parties are citizens of a foreign country,
it shall be necessary for them to submit a certificate of legal capacity to contract
2. SOLEMNIZING AUTHORITY marriage, issued by their respective diplomatic or consular officials.

Duty of the solemnizing officer in a marriage in articulo mortis EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT
The solemnizing officer in a marriage in articulo mortis after solemnizing such
marriage shall state in an affidavit executed before the local civil registrar or 1. Marriages among Muslims or members of ethnic cultural communities –
any other person legally authorized to administer oaths, that the marriage was Provided they are solemnized in accordance with their customs, rites or
performed in articulo mortis and that he took the necessary steps to ascertain practices (FC, Art. 33);
the ages and relationship of the contracting parties and the absence of a legal
impediment to the marriage (FC, Art. 29). 2. Marriages in Articulo mortis
a. In case either or both of the contracting parties are at the point of death (FC,
Art. 27);
Effect of solemnizing officer’s failure to execute an affidavit
b. Solemnized by a ship captain or airplane pilot (FC, Art. 31);
It will have no effect as to the validity of the marriage. The marriage will still be
c. Within zones of military operation (FC, Art. 32).
valid.
3. Marriages in Remote places (FC, Art. 28)
A marriage solemnized by a judge outside of his jurisdiction is valid Remote Place - no means of transportation to enable the party to personally
If there is defect in such requirement, the same would not make the marriage appear before the local civil registrar (Rabuya, 2009).
void, but it merely subjects the officer to criminal, civil, or administrative
responsibility. 4. Marriages between parties Cohabiting for at least 5 years and without legal
impediment to marry each other (FC, Art. 34);
Exception to the rule requiring authority of the solemnizing officer

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5. Marriages solemnized Outside the Philippines where no marriage license is 6. Void due to Psychological incapacity;
required by the country where it was solemnized. 7. Void for reasons of Public policy.

REQUISITES FOR THE 5-YEAR COHABITATION AS AN EXCEPTION TO THE II. VOID MARRIAGES
MARRIAGE LICENSE REQUIREMENT (2002, 2008 BAR)
Marriages that are void ab initio(1993, 2004, 2005, 2006 BAR)
1. Living together as husband and wife at least 5 years before the marriage. 1. Solemnized without License, except those marriages that are exempt from the
The 5 year period must be characterized by: license requirement;
a. Exclusivity – the partners must live together exclusively, with no other 2. Absence of any of the essential or formal requisites of marriage;
partners, during the whole 5-year period. 3. Solemnized by any person not legally Authorized to perform marriages unless
b. Continuity– such cohabitation was unbroken. such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so;
2. No legal impediment to marry each other During the period of cohabitation. 4. Contracted through Mistake of one of the contracting parties as to the identity
NOTE: The five-year period of cohabitation must have been a period of legal of the other;
union had it not been for the absence of marriage.
1. ABSENCE OF ANY ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE
3. Fact of absence of legal impediment must be Present at the time of the
marriage. Marriage between Filipinos who are of the same sex is VOID
XPT:
4. Parties must execute an Affidavit that they are living together as husband and
Ex. Hermaphrodite, Congenital Adrenal Hyperplasia
wife for 5 years and that they do not have any impediment to marry.
Validity of the marriage if it is a mixed marriage where the Filipino is 18
5. Solemnizing officer must execute a Sworn statement that he had ascertained
years old but the foreigner is below 17 years of age
the qualifications of the parties and found no legal impediment to their
If the national law of the foreigner recognizes 17 year old persons to be
marriage (Manzano v. Sanchez, AM No. MTJ-00-1329, March 8, 2001).
capacitated to marry, then their marriage is valid, otherwise it is void.
MARRIAGES BETWEEN FILIPINOS SOLEMNIZED ABROAD IN ACCORDANCE
Effect of lack of authority of solemnizing officer
WITH THE LAW IN FORCE IN SAID COUNTRY
GR: The marriage is void ab initio.
XPNs:
GR: Marriages between Filipinos solemnized outside the Philippines in
1. Express- If either or both parties believed in good faith that the solemnizing
accordance with the law of the foreign country where it is celebrated, if valid
officer had the legal authority to do so (FC, Art. 35).
there, shall be valid here as such.
2.
XPNs: It shall be void, even if it is valid in the foreign country where the 3. Implied - Article 10 in relation to Article 26 of the Family Code. If the
marriage was celebrated, if any of the following circumstances are present: marriage between a foreigner and a Filipino citizen abroad solemnized by a
Philippine consul assigned in that country is recognized as valid in the host
1. Lack of legal capacity even with parental consent (e.g. party is below 18); country, such marriage shall be considered as valid in the Philippines (Sta.
2. Incestuous; Maria, 2010).
3. Contracted through Mistake of one party as to the identity of the other;
4. Contracted following the annulment or declaration of nullity of a previous 2. PSYCHOLOGICAL INCAPACITY
marriage but Before partition, etc.;
5. Bigamous or polygamous except as provided in Art. 41 FC on terminable 1. Burden of proof to show the nullity of the marriage belongs to the plaintiff;
bigamous marriages;
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2. The root cause of the psychological incapacity must be: (a) medically or a. Between ascendants and descendants of any degree;
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by b. Between brothers and sisters whether of the full or half-blood (FC, Art. 37).
experts and (d) clearly explained in the decision;
3. The incapacity must be proven to be existing at “the time of the celebration” Void marriages by reason of public policy (1999, 2007, 2008 BAR)
of the marriage;
4. Such incapacity must also be shown to be medically or clinically permanent Marriages between:
or incurable; 1. Collateral blood relatives (legitimate or Illegitimate) up to the 4th civil
5. Such illness must be grave enough to bring about the disability of the party to degree;
assume the essential obligations of marriage; 2. Step-parents & step-children;
6. The essential marital obligations must be those embraced by Arts. 68 up to 71 3. Parents-in-law & children-in-law;
of the FC as regards the husband and wife, as well as Arts. 220, 221 and 225 of 4. Adopting parent & the adopted child;
the same Code in regard to parents and their children. Such non-complied 5. Surviving spouse of the adopting parent & the adopted child;
marital obligation(s) must also be stated in the petition, proven by evidence and 6. Surviving spouse of the adopted child & the adopter;
included in the text of the decision; 7. Adopted child & legitimate child of the adopter;
7. Interpretations given by the National Appellate Matrimonial Tribunal of the 8. Adopted children of the same adopter;
Catholic Church in the Philippines, while not controlling or decisive, should be 9. Parties where one, with the intention to marry the other, kills the latter’s
given great respect by our courts; spouse, or his/her spouse (FC, Art. 38).
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed NOTE: The list is EXCLUSIVE. If not falling within this enumeration, the
marriage shall be valid. Such as marriages between:
INSTANCES WHERE ALLEGATIONS OF PSYCHOLOGICAL INCAPACITY WERE i. Adopted and Illegitimate child of the adopter;
NOT SUSTAINED ii. Step brother and step sister;
iii. Brother-in-law and sister-in-law;
1. Mere showing of irreconcilable differences and conflicting personalities iv. Parties who have been guilty of adultery or concubinage.
(Carating-Siayngco v. Siayngco, G.R. No. 158896, October 27, 2004).
2. Disagreements regarding money matters (Tongol v. Tongol, G.R. No. 157610, 4. SUBSEQUENT MARRIAGE
October 19, 2007) Void for being bigamous or polygamous, even if celebrated abroad and
3. Mere abandonment valid there as such.
4. Sexual infidelity (Republic v. Dagdag, G.R No. 109975, February 9, 2001)
5. Living an adulterous life when specific evidence was shown that promiscuity NOTE:
as a trait already existing at the inception of marriage (Baccay v. Baccay, G.R. No. If the first marriage is void and a party to that first marriage
173138, December 1, 2010) subsequently remarries without obtaining a judicial declaration of nullity of the
first marriage, the subsequent marriage is likewise void. It is void not because it
NOTE: (2002 BAR) is bigamous but because it failed to comply with the requirements under Article
The state of being of unsound mind, the concealment of drug addiction, 40 in relation to Articles 52 and 53 of the Family Code (Valdes v. RTC, G.R. No.
habitual alcoholism, lesbianism or homosexuality may be indicia of 122749, July 31, 1996).
psychological incapacity, depending on the degree of severity of the disorder.
However, the concealment of drug addiction, habitual alcoholism, lesbianism or A judicial declaration of nullity is required before a valid subsequent
homosexuality is a ground of annulment of marriage. marriage can be contracted; or else, what transpires is a bigamous marriage,
reprehensible and immoral
3. INCESTUOUS MARRIAGES
Requisites for validity of subsequent marriage under Art. 41 under the
Family Code (B-A-D)
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Before the celebration of the subsequent marriage: GR: (Children conceived and born outside a valid marriage or inside a void
1. The Absent spouse had been absent for 4 consecutive years (ordinary marriage are Illegitimate.)
absence) or 2 consecutive years (extra-ordinary absence);
2. The present spouse has a well-founded Belief that the absent spouse is XPNs:
already dead; i. Legitimate if the marriage is void:
3. There is judicial Declaration of presumptive death in a summary proceeding 1. On the ground of psychological incapacity of either or both parties;
in accordance with Article 253 of the Family Code. 2. Due to the non-compliance with the requirements set forth under
Article 52 of the Family Code
Termination of Subsequent Bigamous Marriage ii. Legitimate if the children were conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36 has become final
The recording of the affidavit of reappearance of the absent spouse in the civil and executory (FC, Art. 54, 1st sentence).
registry of the residence of the parties to the subsequent marriage shall iii. Legitimate if the children were conceived or born of the subsequent
automatically terminate the terminable bigamous marriage (subsequent marriage under Article 53 (FC, Art. 54, 2nd sentence).
marriage) unless there is a judgment annulling the previous marriage or
declaring it void ab initio (FC, Art. 42).
III. VOIDABLE MARRIAGES
NOTE: 2008 BAR: A declaration of presumptive death even if obtained will not
Fraud as a ground for annulment
make the marriage voidable because presumptive death will not prevail over
Fraud, as distinguished from fraud as a ground for annulment of contracts,
the fact of death.
refers to the non-disclosure or concealment of some facts deemed material to
the marital relations (Rabuya, 2009).
Prescriptive Period
The time for filing an action or defense for the declaration of absolute nullity of
CIRCUMSTANCES CONSTITUTING FRAUD UNDER ART. 45(3) (1996, 1997,
marriage, whether in a direct or collateral manner, does not prescribe (FC, Art.
2002, 2003, 2006 BAR)
39). (2002, 2006 BAR)
1. Non-disclosure of a previous conviction by final judgment of the other party
Petition for the declaration of nullity of marriage by the heirs of a
of a crime involving moral turpitude;
deceased person after his death
2. Concealment by the wife of the fact that at the time of marriage, she was
pregnant by a man other than her husband;
The heirs cannot file for declaration of nullity of marriage. The heirs
3. Concealment of sexually transmitted disease, regardless of nature, existing
can still protect their successional right, for, compulsory or intestate heirs can
at the time of marriage; or
still question the validity of the marriage of the spouses, not in a proceeding for
4. Concealment of drug addiction, habitual alcoholism, homosexuality and
declaration of nullity but upon the death of a spouse in a proceeding for the
lesbianism(FC, Art. 46).
settlement of the estate of the deceased spouse filed in the regular courts.
that the children have the personality to file the petition to declare the
INCLUDES:
nullity of marriage of their deceased father to their stepmother as it affects their
successional rights (De Dios Carlos v. Sandoval, G.R. No. 179922, December 16,
1.Marriage of a party 18 years of age or over but below 21 solemnized
2008).
without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order
EFFECTS OF JUDICIAL DECLARATION OF
Contracting party who failed to obtain parental consent: Through free
NULLITY OF MARRIAGE
cohabitation after attaining the age of 21.
1. Status of the Children(1990, 2010 BAR)
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2. Either party was of unsound mind If after 3 years of living together with her husband, the wife remained a
Insane spouse: Through free cohabitation after coming to reason. virgin, the husband is presumed to be impotent (Rabuya, 2009). The husband
will have to overcome this presumption.
3. Consent of either party was obtained by fraud Relative impotency may now be invoked as a ground for annulment.
Injured party: Through free cohabitation with full knowledge of the facts
constituting the fraud. REQUISITES OF AFFLICTION OF A SEXUALLY TRANSMITTED DISEASE
(STD) AS A GROUND FOR ANNULMENT
4.Vices of consent such as force, intimidation or undue influence
Injured party: Through free cohabitation after the vices have ceased or 1. One of the parties is afflicted with STD;
disappeared 2. STD must be:
a. Existing at the time the marriage is celebrated;
5. Impotence (impotencia copulandi) and afflicted with STD found to be b. Serious;
serious and appears to be incurable c. Apparently Incurable;
May not be ratified but action may be barred by prescription only, which is 5 3. The other spouse is not aware of the other’s affliction; and,
years after the marriage. 4. The injured party must be free from STD.

Drug addiction be a ground, if at all, for the declaration of nullity of LEGAL SEPARATION
marriage, annulment of marriage, and legal separation? (1997 BAR)
GROUNDS FOR LEGAL SEPARATION (FC,ART.55)
A: Declaration of Nullity of Marriage (1997, 2002, 2003, 2006, 2007 BAR)
a. The drug addiction must amount to psychological incapacity to comply with 1. Repeated physical violence or grossly abusive conduct against petitioner,
the essential obligations of marriage; common child, child of petitioner;
b. It must be antecedent (existing at the time of marriage), grave and incurable 2. Attempt to corrupt or induce petitioner, common child, child of petitioner to
(.) engage in prostitution, or connivance in such corruption or inducement;
Annulment of Marriage 3. Attempt by respondent against the life of petitioner;
a. The drug addiction must be concealed; 4. Final judgment sentencing respondent to imprisonment of more than 6 years,
b. It must exist at the time of marriage; even if pardoned;
c. There should be no cohabitation with full knowledge of the drug addiction; 5. Drug addiction or habitual alcoholism of respondent;
d. The case is filed within five (5) years from discovery. Legal Separation 6. Physical violence or moral pressure to compel petitioner to change religious
a. There should be no condonation or consent to the drug addiction; or political affiliation;
b. The action must be filed within five (5) years from the occurrence of the 7. Bigamous marriage subsequently contracted by respondent in the Philippines
cause. or abroad
8. Sexual infidelity or perversion;
IMPOTENCE OR PHYSICAL INCAPACITY 9. Lesbianism or homosexuality of respondent; and
Impotence (impotentia copulandi) refers to lack of power of copulation and not 10. Abandonment of petitioner by respondent without justifiable cause for more
to mere sterility (impotentia genrandi) which refers to ability to procreate. The than 1 year.
test is not the capacity to reproduce, but the capacity to copulate (Paras, 2008).
Although impotency carries with it sterility, a sterile person is not necessarily If a man commits several acts of sexual infidelity, particularly in 2002,
impotent 2003, 2004, 2005, does the prescriptive period to file for legal separation
run from 2002? (2007 BAR)
DOCTRINE TRIENNIAL COHABITATION

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A: The prescriptive period begins to run upon the commission of each act of RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
infidelity. Every act of sexual infidelity committed by the man is a ground for
legal separation.
1. Essential marital obligations (LOR) (FC, Art. 68):
GROUNDS FOR DENIAL OF PETITION FOR LEGAL SEPARATION(2006 BAR)
a. Live together which includes consortium (cohabitation) and copulation
1. Condonation of the act complained of;
(sexual intercourse),
2. Consent to the commission of the offense/act;
b. Observe mutual love, respect, fidelity, and
3. Connivance in the commission of the act;
c. Render mutual help and support
4. Collusion in the procurement of decree of LS;
5. Mutual Guilt;
2. Fix the family domicile (FC, Art. 69);
6. Prescription: 5 yrs from occurrence of cause;
NOTE: In case of disagreement the Court shall decide.
7. Death of either party during the pendency of the case (Lapuz-Sy v. Eufemio,
G.R. No. L-31429, January 31, 1972);
3. Jointly support the family (FC, Art. 70);
8. Reconciliation of the spouses during the pendency of the case (FC, Art. 56).
a. Expenses shall be paid from the community property,
b. In the absence thereof from the income or fruits of their separate properties,
Prescriptive period for filing a petition for legal separation
c. In the absence or insufficiency thereof from their separate properties
An action for legal separation shall be filed within five years from the time of the
occurrence of the cause (FC, Art. 57). An action filed beyond that period is
4. Manage the household (FC, Art. 71);
deemed prescribed.
5. Not to neglect duties, or commit acts which tend to bring danger, dishonor, or
injury to family (FC, Art. 72);
COOLING-OFF PERIOD
6. Either spouse may practice any legitimate profession/business, even without
the consent of the other.
An action for legal separation shall be in no case tried before 6 months has
elapsed since the filing of the petition, to enable the contending spouses to settle
differences. In other words, it is for possible reconciliation PROPERTY RELATIONS OF THE SPOUSES

RULE IN RENDERING A JUDGMENT OF LEGAL SEPARATION BASED UPON A COMMENCEMENT OF PROPERTY REGIME
STIPULATION OF FACTS OR CONFESSION OF JUDGMENT
A property regime commences at the precise moment of the celebration of the
The court shall order the prosecuting attorney or fiscal to take steps to marriage (i.e. actual time the marriage is celebrated on a certain date).
prevent collusion between the parties and to take care that the evidence is not
Any stipulation, express or implied, for the commencement of the community
fabricated or suppressed (FC, Art. 60).
regime at any other time shall be void. Property regime governing the
property relations of spouses in the absence of marriage settlement or
NOTE 2003 BAR:
when regime agreed upon is void (1992, 1995, 2005 BAR)
If the husband discovers after the marriage that his wife was a
prostitute before they got married, he has no remedy. No misrepresentation or
MARRIAGE SETTLEMENT
deceit as to character, health, rank, fortune or chastity shall constitute fraud as
legal ground for an action for the annulment of marriage (FC, Art. 46).
REQUISITES OF A VALID MARRIAGE SETTLEMENT (FC,ART. 77) (1991,
The wife may file an action for legal separation. The husband’s sexual
2005 BAR) (W-SER)
infidelity is a ground for legal separation (FC, Art. 55).
a. In Writing;

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b. Signed by the parties;
c. Executed before the celebration of marriage; GROUNDS FOR TRANSFER OF ADMINISTRATION OF THE EXCLUSIVE
d. Registration (to bind 3rd persons) PROPERTY OF EACH SPOUSE
When one spouses:
EFFECT ON THE ANTE-NUPTIAL AGREEMENT IN CASE THE MARRIAGE IS 1. Is sentenced to penalty with civil interdiction;
NOT CELEBRATED (FC, ART. 81) 2. Becomes fugitive from justice or is hiding as an accused in a criminal case;
GR: Everything stipulated in the settlements or contracts in consideration of the 3. Is judicially declared absent
marriage shall be rendered void. 4. Becomes guardian of another
XPN: Those stipulations not dependent upon, or are not made in consideration
of, the marriage, subsist. I. ABSOLUTE COMMUNITY OF PROPERTY (ACP)
Requisites for Donation Propter Nuptias A property regime wherein the spouses are considered co-owners of all
a. Made before celebration of marriage; property brought into the marriage, as well as those acquired during the
b. Made in consideration of the marriage; and
marriage, which are not otherwise excluded from the community either by the
c. Made in favor of one or both of the future spouses
provisions of the Family Code or by the marriage settlement (Rabuya, 2009).
RULE REGARDING DPN MADE BETWEEN SPOUSES
GR: Future spouses cannot donate to each other more than 1/5 of their present PROPERTIES INCLUDED IN THE ABSOLUTE COMMUNITY
1. All the property owned by the spouses:
property and any excess from which shall be considered void.
a. At the time of the celebration of the marriage; or
b. Acquired thereafter;
XPN: If they are governed by ACP, then each spouse can donate to each other in 2. Property acquired during the marriage by gratuitous title, if expressly made
their marriage settlements present property without limit, provided there is to form part of the community property by the donor, testator or grantor;
sufficient property left for their support and the legitimes are not impaired. 3. Jewelry or properties with monetary value;
4. Winnings in gambling.
DONATIONS THAT MAY BE REVOKED BY THE DONOR (FC, ART. 86)
A donation by reason of marriage may be revoked by the donor in the following Presumption of inclusion in the absolute community
cases: In absence of evidence, property acquired during the marriage is presumed to
1. GR: Marriage is not celebrated or is judicially declared void ab initio. belong to the community, unless proven otherwise by strong and convincing
evidence (FC, Art. 93).
XPN: donations made in the marriage settlements The sale or encumbrance of a conjugal property requires the consent of both the
2. Marriage takes place without the required consent of parents or guardians. husband and the wife.
3. Marriage is annulled and donee acted in bad faith.
4. Upon legal separation, the donee being the guilty spouse. CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY
5. If with a resolutory condition which was complied with. PROPERTY
6. Donee has committed an act of ingratitude. Charges upon the ACP
1. The support of
RULE REGARDING DONATIONS BETWEEN SPOUSES DURING THE a. The spouses
MARRIAGE (FC, ART. 87) b. Their common children
GR: Every donation or grant of gratuitous advantage, direct or indirect, between c. Legitimate children of either spouse;
spouses is considered void.
XPN: Moderate gifts on the occasion of any family rejoicing.
The aforementioned rules also apply to common law spouses
knprlyflrs | CIVIL LAW REVIEWER- PERSONS AND FAMILY RELATIONS 12
NOTE: Support of illegitimate children of either spouse is chargeable to
exclusive property of the illegitimate parent (FC, Art. 197). OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE
2. All debts and obligations contracted during the marriage by: ABSOLUTE COMMUNITY PROPERTY
a. the designated administrator-spouse for the benefit of the community Administration of Community Property
b. by both spouses
c. by one spouse with the consent of the other; GR: The administration of community property belongs to both spouses jointly.
XPN:
3. Debts and obligations contracted by either spouse without the consent of 1. Agreement that only one of the spouses shall administer the community
the other to the extent that the family may have been benefited; property;
4. All taxes, liens, charges and expenses, including major or minor repairs, 2. If one spouse is incapacitated or otherwise unable to participate in the
upon the community property; administration of the common properties – capacitated or able spouse may
5. All taxes and expenses for mere preservation made during marriage upon assume sole powers of administration without the need of court approval or
the separate property of either spouse used by the family; authorization;
6. Expenses to enable either spouse to commence or complete a professional 3. If a spouse without just cause abandons the other or fails to comply with his
or vocational course, or other activity for self-improvement; or her obligations to the family, the aggrieved spouse may petition the court for
7. Ante-nuptial debts of either spouse insofar as they have redounded to the sole administration;
benefit of the family; (2007 BAR) 4. During the pendency of the legal separation case, the court may designate
either of the spouses as sole administrator.
NOTE: For ante-nuptial debts, those contracted by one spouse without the
consent of the other during the marriage and those contracted by the NOTE: But such powers do not include:
administrator-spouse, the burden of proof that such debts were contracted for 1. Disposition;
the benefit of the community or of the family lies with the creditor-party litigant 2. Alienation; or
claiming as much (Rabuya, 2009). 3. Encumbrance of the conjugal or community property.
8. The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or Sale or Disposition of Community Property
completing a professional or vocational course or other activity for self- Alienation or encumbrance of community property must have the written
improvement; consent of the other spouse or the authority of the court without which the
9. Payment, in case of absence or insufficiency of the exclusive property of the disposition or encumbrance is VOID.
debtor-spouse, of:
a. Ante-nuptial debts of either spouse which did not redound to the benefit of Any sale or encumbrance made by one spouse without the consent of the other
the family; shall be void although it is considered as a continuing offer on the part of the
b. The support of illegitimate children of either spouse; consenting spouse upon authority of the court or written consent of the other
c. Liabilities incurred by either spouse by reason of a crime or quasi-delict; spouse. 2015 BAR

NOTE: The payment of which shall be considered as advances to be deducted Abandonment (1999, 2003 BAR)
from the share of the debtor-spouse upon liquidation of the community If a spouse without just cause abandons the other or fails to comply with his or
10. Expenses of litigation between the spouses. However, if suit is found to be her obligations to the family, the aggrieved spouse may petition the court for:
groundless, it cannot be charged against the ACP (FC, Art. 94). 1. Receivership;
2. Judicial separation of property;
NOTE: 2007 BAR: Ante-nuptial debts of either spouse shall be considered as the 3. Authority to be the sole administrator of the absolute community (FC, Art.
liability of the absolute community of property insofar as they have redounded 101).
to the benefit of the family.
DISSOLUTION OF ABSOLUTE COMMUNITY PROPERTY (2009 BAR)
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1. Death of either spouse; (b) Fruits and income of said properties shall be included the conjugal
2. Legal separation; partnership
3. Annulment; (c) Those included therein in the marriage settlement, subject to the 1/5
4. When the marriage is declared void under Art.40 of the Family Code; limitation under Article 84 and the rule in Article 92(3) of the Family Code
5. Judicial separation of property during marriage (FC, Art. 99). which apply by analogy

APPLICABLE PROCEDURE IN THE DISSOLUTION OF THE ACP IN CASE THE 2. Those acquired during the marriage by gratuitous title;
MARRIAGE IS TERMINATED BY DEATH
Community property shall be liquidated in the same proceeding for the NOTE:
settlement of the estate of the deceased. 1. Pensions will not form part of the conjugal partnership of gains when it is
If no judicial proceeding is instituted, the surviving spouse shall, judicially or given to him voluntarily and he is not entitled as a matter of right such as a fruit
extra-judicially, liquidate the community property within 1 year from the death of industry or labor.
of the deceased spouse (FC, Art. 103). 2. Proceeds of life insurance policy will not form part of the conjugal
partnership of gains when the beneficiary of the life insurance is the estate and
II. CONJUGAL PARTNERSHIP OF GAINS (CPG) the premiums are sourced from the separate property of the spouse.
3. Retirement Benefits will not form part of the conjugal partnership of gains
when it is given to him voluntarily and he is not entitled as a matter of right
It is the property relation formed by the husband and the wife by placing in a
such as a fruit of industry or labor.
common fund: (FC, Art. 106)
1. The proceeds, product, fruits and income of their separate properties; 3. Those acquired by right of redemption, barter or exchange with
2. Those acquired by either or both of them through:
exclusive property;
a. Effort;
b. Chance.
NOTE: In right of redemption, for it to form part of the exclusive property of the
spouse, the ownership over such property must still pertain to the said spouse.
Law that governs the conjugal partnership 4. That purchased with exclusive money of either spouse.
The rules on the contract of partnership in all that is not in conflict with what is
expressly determined in the FC and by the spouses in their marriage NOTE: The controlling factor is the source of the money used, or the money
settlements (FC, Art. 108).
promised to be paid.
Only inchoate right over conjugal property
The interest of the spouses in the conjugal properties is only inchoate or a mere OBLIGATIONS CHARGEABLE TO SEPARATE PROPERTY
1. Support of illegitimate children;
expectancy and does not ripen into title until it appears the dissolution and
2. Liabilities incurred by reason of a crime or quasi-delict;
liquidation of the partnership that there are net assets (Sempio-Diy, 1995).
3. Expenses of litigation between the spouses if found to be groundless;
4. Debts contracted during the marriage by the administrator-spouse which
EXCLUSIVE PROPERTY OF THE SPOUSES (FC ART. 109) does not benefit the community;
5. Debts contracted during the marriage without the consent of the other which
did not benefit the family;
1. Those brought into the marriage as his/her own; 6. Ante-nuptial debts by either spouse which did not benefit the family;
NOTE: 7. Taxes incurred on the separate property which is not used by the family;
(a) A property purchased before the marriage and fully paid during the 8. Expenses incurred during the marriage on a separate property if the property
marriage remains to be a separate property of either spouse (Lorenzo v. Nicolas, is not used by the family and not for its preservation.
G.R. No. L-4085, July 30, 1952).

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CONJUGAL PARTNERSHIP PROPERTY 7. Ante-nuptial debts to the extent the family has been benefited;

8. Value of what is donated or promised to common legitimate children for


COMPOSITION OF CPG (1995, 1998, 2004, 2005, 2008 BAR) (FC, ART. 117) professional, vocation or self- improvement courses;
1. Those acquired by onerous title during the marriage with conjugal funds;
9. Expenses of litigation between the spouses unless the suit is found to be
NOTE: Requisites: groundless (FC, Art. 121).
a. Acquisition is made during the marriage,
b. Thru onerous title,
c. At the expense of common fund; B. ADMINISTRATION OF THE CONJUGAL PARTNERSHIP OF GAINS (ART.
124)
2. Those obtained from labor, industry, work or profession of either or both GR: The right to administer the conjugal partnership belongs to both spouses
spouses; jointly.
3. Fruits of conjugal property due or received during the marriage and net fruits XPN:
of separate property; 1. If one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties – capacitated or able spouse may
NOTE: Net fruits refer to the remainder of the fruits after deducting the amount assume sole powers of administration.
necessary to cover the expenses of administration of said exclusive property. 2. If a spouse without just cause abandons the other or fails to comply with his
4. Share of either spouse in hidden treasure; or her obligations to the family, the aggrieved spouse may petition the court for
5. Those acquired through occupation such as hunting or fishing; sole administration.
6. Livestock in excess of what was brought to the marriage; 3. During the pendency of a legal separation case, the court may designate
7. Those acquired by chance such as winnings in gamblings and bettings (FC, either of the spouse as sole administrator.
Art. 117).
But such powers do not include:
A. CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP 1. Disposition;
OF GAINS (CPG) 2. Alienation; or
3. Encumbrance of the conjugal or community property.
1. Support of the spouses, their common children and the legitimate children of
either spouse; DISSOLUTION OF CONJUGAL PARTNERSHIP OF GAINS
Conjugal partnership is terminated by:
2. Debts and obligations contracted by one without the consent of the other to 1. Death of either spouse;
the extent that the family benefited;
2. Legal separation;
3. Debts and obligations contracted during the marriage by an administrator- 3. Annulment or Declaration of Nullity;
spouse, both spouses or one with the consent of the other; 4. Judicial separation of property during marriage (FC, Art. 126).

4. Taxes, liens, charges, expenses, including major or minor repairs upon COMPLETE SEPARATION OF PROPERTY
conjugal property;

5. Taxes and expenses for mere preservation made during the marriage of The system of complete separation of property will govern the property
separate property; relations between the spouses only in the following cases:

6. Expenses for professional, vocational or self-improvement courses of either 1. When it is expressly provided for in the marriage settlement
spouse; 2. When it is so decreed by a competent court

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3. Mandatory regime of complete separation of property NOTE: Article 147 of the Family Code cannot apply to Bert and Joe because the
4. By failure of the surviving spouse to liquidate the absolute community or law only applies to a man and a woman who are capacitated to marry each
conjugal partnership of gains of a previous marriage which has been terminated other who live together as husband and wife without the benefit of marriage or
by death within the one-year period required by law under a void marriage. In the case of Bert and Joe, they are both men so the law
does not apply.
SUFFICIENT CAUSES FOR JUDICIAL SEPARATION OF PROPERTY
1. Civil interdiction of the spouse of petitioner;
2. Judicial declaration of absence; THE FAMILY UNDER THE FAMILY CODE
3. Loss of parental authority as decreed by the court;
4. Abandonment or failure to comply with family obligation; (2003 BAR) THE FAMILY HOME
5. Administrator spouse has Abused authority; It is the dwelling house where the husband and wife and their family reside, and
6. Separation in fact for one year and reconciliation is highly improbable (FC, the land on which it is situated. It is constituted jointly by the husband and the
Art. 135). wife or by an unmarried head of a family (FC, Art. 152).

PROPERTY REGIME IN CASE THE MARRIAGE IS DECLARED NULL AND VOID Guidelines in the constitution of the Family Home
ON THE GROUND OF PSYCHOLOGICAL INCAPACITY 1. FH is deemed constituted from the time of actual occupation as a family
The property relation between the parties is governed by Art. 147 of the Family residence;
Code. Property acquired by both spouses through their work and industry shall 2. Only 1 FH may be constituted;
be governed by the rules on equal co-ownership. 3. Must be owned by the person constituting it;
4. Must be permanent;
NOTE 2014 BAR: Art. 50 of the Family Code, and Sec. 19 of the Rules on 5. Same rule applies to both valid and voidable marriages and even to common
Declaration of Nullity applies only to marriages which are declared void ab law spouses; (FC, Arts. 147 and 148)
initio or annulled by final judgement under Art. 40 and 45 of the Family Code. 6. It continues despite death of one, both spouses, or an unmarried head of the
Art. 50 does not apply to marriages which are declared void ab initio under Art. family for 10 years or as long as there is a minor beneficiary (FC, Art 159).
36 which should be declared void without waiting for the liquidation of the
properties of the parties. NOTE: The FH shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of 10 years or for as long as there is a
CO-OWNERSHIP UNDER ART. 147 minor beneficiary and the heirs cannot partition the same unless the court finds
When a man and a woman who are capacitated to marry each other, live compelling reasons therefor. This rule shall apply regardless of whoever owns
exclusively with each other as husband and wife without the benefit of marriage the property or constituted the FH (FC, Art. 159). (2010 BAR)
or under a void marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them through their work or GR: FH is exempt from execution, forced sale or attachment
industry shall be governed by the rules of co-ownership. XPN: Under Art. 155 of the Family Code:
1. Debts due to laborers, mechanics, architects, builders, material men and
others who rendered service or furnished materials for the constitution of the
CO-OWNERSHIP UNDER ART. 148
building;
Co-ownership may ensue in case of cohabitation where, for instance, one party
2. Non-payment of Taxes;
has a pre-existing valid marriage, provided that the parties prove their actual
3. Debts incurred Prior to its constitution;
joint contribution of money, property or industry and only to the extent of their 4. Debts secured by Mortgages on the premises before or after such
proportionate interest thereon (Francisco v. Master Iron Works Construction constitution.
Corp., G.R. No. 151967, February 16, 2005).

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PATERNITY AND FILIATION 3. To be entitled to the legitimate and other successional rights granted to them
by Art. 174 of the Family Code.
Classifications of filiation (2009 BAR)
I. Natural PRESUMPTION OF LEGITIMACY (2006, 2008, 2010 BAR)
Article 164 of the Family Code provides that the children conceived or born
a. Legitimate – conceived OR born within a valid marriage
during the marriage of the parents are legitimate.
b. Illegitimate – conceived AND born outside a valid marriage
NOTE: (2008 BAR)
Having been born during the marriage of Faye and Brad, she is
II. Judicial Act
presumed to be the legitimate child of Faye and Brad. This presumption had
a. Legitimated – conceived and born outside of wedlock of parents without
become conclusive because the period of time to impugn her filiation had
impediment to marry at the time of conception or were so disqualified only
already prescribed.
because either or both of them were below eighteen (18) years of age(FC, Art.
She cannot impugn her own filiation. The law does not allow a child to
177).
impugn his or her own filiation.
b. Adopted – a filiation created by law which vests between two persons a
relationship similar to that which results from legitimate paternity and filiation.
PERSON/S WHO MAY ATTACK THE LEGITIMACY OF THE CHILD
GR: Only the husband can contest the legitimacy of the child.
XPNs: Heirs of the husband may impugn the filiation of the child within the
A. LEGITIMATE CHILDREN period prescribed in Art. 170 of the Family Code only in the following cases:
1. If the husband should die before the expiration of the period fixed for
GR: One who is conceived OR born during the marriage of the parents (FC, Art. bringing his action;
164). 2. If he should die after the filing of the complaint, without having desisted
XPN: Born outside of a valid marriage (void marriages) but considered as therefrom; or
legitimate child: 3. If the child was born after the death of the husband (FC, Art. 171). (2008
1. Children of marriages which are declared void under Art. 36; and BAR)
2. Children of marriages which are declared void under Art. 53 (Rabuya, 2009).
PRESCRIPTIVE PERIOD FOR FILING ACTION IMPUGNING THE LEGITIMACY
REQUISITES FOR A CHILD CONCEIVED BY ARTIFICIAL INSEMINATION TO OF THE CHILD (2010 BAR)
BE CONSIDERED LEGITIMATE (FC, ART. 166 NO. 3) GR: The prescriptive period for filing action impugning the legitimacy of the
1. The artificial insemination is made on the wife, not on another woman; child shall be counted from the knowledge of birth or its recording in the civil
2. The artificial insemination on the wife is done with the sperm of the husband registry.
or of a donor, or both the husband and a donor;
3. The artificial insemination has been authorized or ratified by the spouse on a
written instrument executed and signed by them before the birth of the child; RULE ON STATUS OF CHILD WHERE THE MOTHER CONTRACTED
and ANOTHER MARRIAGE WITHIN 300 DAYS AFTER TERMINATION OF THE
4. The written instrument is recorded in the civil registry together with the FORMER (1999 BAR)
birth certificate of the child (FC, Art. 164). The child shall be considered as conceived during the:

RIGHTS OF LEGITIMATE CHILDREN (FC, ART. 174) 1. Former marriage– if child is born:
1. To bear the surname of the father and the mother; Before 180 days after the solemnization of the subsequent marriage, provided
2. To receive support from their parents, their ascendants, and in proper cases, it is born within300 days after termination of former marriage
their brothers and sisters;

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2. Subsequent marriage –if a child is born: 180 days after the celebration of 1. Child must have been conceived and born outside of wedlock;
the subsequent marriage, even though it be born within 300 days after the 2. Child’s parents, at the time of former’s conception, were not disqualified by
termination of the former marriage. any impediment to marry each other or were so disqualified only because either
or both of them were below eighteen (18) years of age;
3. The subsequent valid marriage of the parents.
B. ILLEGITIMATE CHILDREN (2005 2009 2010 BAR)
ACTION TO CLAIM FILIATION
1. Children conceived and born outside a valid marriage:
Paternity and filiation or the lack of the same is a relationship that must be
2. Children born of couples who are not legally married or of common law
judicially established and it is for the court to declare its existence or absence. It
marriages;
cannot be left to the will or agreement of the parties (De Asis v. CA, G.R. 127578,
3. Children born of incestuous marriage;
February 15, 1999).
4. Children born of bigamous marriage;
The manner of claiming filiation is the same for both legitimate and illegitimate
5. Children born of adulterous relations between parents;
children
6. Children born of marriages which are void for reasons of public policy under
Art. 38, Family Code;
PERSON/S WHO MAY FILE FOR CLAIM LEGITIMATE FILIATION (FC, ART.
7. Children born of couples below 18
173)
8. Children born of void marriages under art. 35, except where the marriage is
void for lack of authority on the part of the solemnizing officer, but the parties
GR: The right of claiming legitimacy belongs to the child
or either of them believed in good faith that the solemnizing officer had
XPN: The right is transferred to his heirs when the child dies:
authority, in which case the marriage will be considered valid and the children
1. During minority or
will be considered legitimate.
2. In a state of insanity.
3. After commencing the action for legitimacy
RIGHTS OF AN ILLEGITIMATE CHILD (1990, 2003, 2006, 2009, 2010 BAR)
1. They shall use the surname of the mother;
NOTE However, if the action for illegitimacy is based on open and continuous
2. They shall be under the parental authority of the mother;
possession of status of illegitimate filiation or any other means allowed by the
3. They shall be entitled to support in conformity with the FC, PROVIDED, only
Rules of Court and special laws, the action must be brought during the lifetime
as to the separate property of the parent
of the alleged parent.
4. They shall be entitled to a legitime which shall consist of ½ of the legitime of a
legitimate child (FC, Art. 176).
KINDS OF PROOF OF FILIATION (1995, 1999, 2010 BAR)
Proof of filiation has two kinds (FC, Art 172, 1st par):
1. Primary proof consists of the ff.:
A. LEGITIMATED CHILDREN a. Record of birth appearing in civil registrar or final judgment;
b. Admission of legitimate filiation in public document or private handwritten
Legitimated children are those who, because of the subsequent marriage of instrument signed by parent concerned.
their parents to each other, are by legal fiction considered legitimate. 2. Secondary consists of the ff. (FC, Art 172, 2nd par):
a. Open and continuous possession of legitimacy;
LEGITIMATION (2004, 2010 BAR) b. Any means allowed by the Rules of Court and special laws.
Legitimation is a remedy or process by means of which those who in fact not
born in wedlock and should therefore be ordinarily illegitimate, are by fiction, NOTE :
considered legitimate. A birth certificate, in order to be considered as validating proof of paternity and
as an instrument of recognition, must be signed by the father and mother
REQUISITES OF LEGITIMATION jointly, or by the mother alone if the father refuses.
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The local civil registrar in this case has no authority to record the paternity of 3. An illegitimate son/daughter by a qualified adopter to improve his/her status
an illegitimate child on the information of a third person. to that of legitimacy;
4. A person of legal age if, prior to the adoption, said person has been
ADOPTION consistently considered and treated by the adopter(s) as his/her own child
since minority;
5. A child whose adoption has been previously rescinded; or
I. DOMESTIC ADOPTION ACT (R.A. 8552) 6. A child whose biological or adoptive parent(s) has died: Provided, that no
proceedings shall be initiated within six (6) months from the time of death of
A. WHEN ALLOWED said parent(s) (Sec. 8, RA 8552).
Adoption need NOT be a last resort
NOTE: The written consent of the biological parents is indispensable for the
B. WHO CAN ADOPT validity of the decree of adoption.
1. Filipino citizens;
2. Aliens; WHO MAY FILE THE ACTION FOR RESCISSION OF DOMESTIC ADOPTION
3. Guardians with respect to their ward. The adoptee has the sole right to severe the legal ties created by adoption and
the one who will file the action for rescission. However, if the adoptee is still a
NOTE: A guardian may only adopt his ward after termination of guardianship minor or above 18 years of age but incapacitated, the Department of Social and
and clearance of his financial accountabilities. Welfare Development as the adoptee’s guardian or counsel may assist the
adoptee for rescinding the decree of adoption.
QUALIFICATIONS OF A FILIPINO WHO MAY ADOPT The adopter cannot seek the rescission of the adoption but he may disinherit
1. Must be of legal age; the adoptee.
2. In a position to support and care for his children;
3. Good moral character; GROUNDS UPON WHICH AN ADOPTEE MAY SEEK JUDICIAL RESCISSION OF
4. Full civil capacity and legal rights; THE ADOPTION (SARA)
5. Not been convicted of any crime involving moral turpitude; When the adopter has committed the following:
6. Emotionally and psychologically capable of caring for children; 1. Repeated physical and verbal maltreatment by the adopter despite having
7. GR: At least 16 years older than adoptee undergone counseling;
2. Attempt on the life of the adoptee;
XPN: It is not necessary that adopter be at least 16 years older: 3. Sexual assault or violence committed against the adoptee;
Adopter is the biological parent of the adoptee, 4. Abandonment and failure to comply with parental obligations
Adopter is the spouse of adoptee’s parent.
GROUNDS BY WHICH AN ADOPTER MAY DISINHERIT ADOPTEE
NOTE : (2014 BAR) The husband and wife must jointly adopt and there are a. Groundless accusation against the testator of a crime punishable by 6 years or
only three recognized exceptions to the joint adoption: 1) one spouse seeks to more imprisonment;
adopt the legitimate child of the other; 2) if one spouse seeks to adopt his or her b. Found guilty of attempt against the life of the testator, his/her spouse,
own illegitimate child; 3) if the spouses are legally separated. descendant or ascendant;
c. Causes the testator to make changes or changes a testator’s will through
C. ADOPTEE violence, intimidation, fraud or undue influence;
d. Maltreatment of the testator by word or deed;
1. Any person BELOW eighteen (18) years of age who has been administratively e. Conviction of a crime which carries a penalty of civil interdiction;
or judicially declared available for adoption; f. Adultery or concubinage with the testator’s wife;
2. The legitimate son/daughter of one spouse by the other spouse; g. Refusal without justifiable cause to support the parent or ascendant;
h. Leads a dishonorable or disgraceful life.
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NOTE: No child shall be matched to a foreign adoptive family unless it is
INTER COUNTRY ADOPTION ACT OF 1995(RA 8043) satisfactorily shown that the child cannot be adopted in the Philippines.
GR: There shall be no physical transfer of a voluntarily committed child earlier
Inter-Country Adoption than 6 months from the date of execution of Deed of Voluntary Commitment.
It is a socio-legal process of adopting a Filipino child by a foreigner or a Filipino
citizen permanently residing abroad where the petition is filed, the supervised SUPPORT
trial custody is undertaken, and the decree of adoption is issued outside the
Philippines (Sec. 3(a), RA 8043). It comprises everything indispensable for sustenance, dwelling, clothing,
A. WHEN ALLOWED medical attendance and transportation, in keeping with the financial capacity of
Adoption ONLY AS A LAST RESORT: No child shall be matched to a the family, including the education of the person entitled to be supported until
foreign adoptive family unless it is satisfactorily shown that the child cannot be he completes his education or training for some profession, trade or vocation,
adopted locally (Sec. 11). even beyond the age of majority (FC, Art. 194). (2010 BAR)

B. WHO MAY ADOPT PERSONS OBLIGED TO SUPPORT EACH OTHER (2008 BAR)
a. Any alien; 1. Spouses;
b. Filipino citizen, both permanently residing abroad. NOTE: The spouse must be the legitimate spouse in order to be entitled to
support
QUALIFICATIONS NEEDED FOR A FILIPINO OR ALIEN TO ADOPT (SEC. 9, RA 2. Legitimate ascendants & descendants;
8043) 3. Parents and their legitimate children, and the legitimate and illegitimate
a. At least 27 years old and 16 years older than the child to be adopted at the children of the latter;
time of the application unless: 4. Parents and their illegitimate children, and the legitimate and illegitimate
1. adopter is the parent by nature of the child; children of the latter;
2. adopter is the spouse of the parent by nature of the child to be adopted 5. Legitimate brothers and sisters whether full or half-blood (FC, Art. 195).
b. If married, his spouse must jointly file for adoption;
c. Has the capacity to act or assume all rights and responsibilities of parental LIABILITY TO SUPPORT (FC, ART. 199)
authority; The liability to support should be observed in the following order:
d. Not been convicted of a crime involving moral a. Spouse;
turpitude; b. Descendants in the nearest degree;
e. Eligible to adopt under his national law; c. Ascendants in the nearest degree;
f. In a position to provide for proper care and support and give necessary moral d. Brothers and sisters.
values;
g. Agrees to uphold the basic rights of the child mandated by the UN convention PARENTAL AUTHORITY
of rights of Child and the Philippine Laws;
h. Comes from a country with which the Philippines has diplomatic relations NOTE: Tender-Age Presumption
and adoption is allowed under his national law; No child under seven years of age shall be separated from the mother, unless
i. Possesses all the qualifications and none of the disqualifications under the law the court finds compelling reasons to order otherwise [FC, Art 213(2)]. (2006
or other applicable Philippine laws. BAR)

CHILD “COMPELLING REASONS”


A child is any person below 15 years old (Sec. 3, RA 8043). The so-called “tender-age presumption” under Article 213 of the Family Code
may be overcome only by compelling evidence of the mother’s unfitness. The

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mother has been declared unsuitable to have custody of her children in one or It is the parental authority granted by law to certain persons, entities or
more of the following instances: institutions in view of their special relation to children under their supervision
1. Insanity instruction or custody. It is denominated as special because it is limited and is
2. Abandonment present only when the child is under their supervision instruction or custody. It
3. Neglect can also co-exists with the parents’ parental authority.
4. Drug addiction
5. Affliction with a communicable disease SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
6. Maltreatment of the child
7. Immorality
8. Unemployment Grounds for Termination of Parental Authority
9. Habitual drunkenness 1. Permanently:
- to deprive the wife of custody, of her minor child, her moral lapses must have a. Death of parents;
an adverse effect on the welfare of the child or it must have distracted the b. Emancipation of the child;
offending spouse from exercising proper parental care c. Death of child (FC, Art. 228).

NOTE: The parent who has been deprived of the rightful custody of the child 2. Temporarily:– it may be revived
may resort to the remedy of habeas corpus (Salientes v. Abanilla, G.R. No. 162734, a. Adoption of the child;
August 29, 2006). b. Appointment of general guardian;
c. Judicial declaration of abandonment of the child in a case filed for the
SUBSTITUTE PARENTAL AUTHORITY (2004 BAR) purpose;
It is the parental authority which the persons designated by law may exercise d. Final judgment divesting parents of parental authority;
over the persons and property of unemancipated children in case of death, e. Incapacity of parent exercising parental authority;
absence or unsuitability of both parents or in default of a judicially appointed f. Judicial declaration of absence or incapacity of person exercising parental
guardian. authority (FC, Art. 229).

ORDER OF SUBSTITUTE PARENTAL AUTHORITY NOTE: In case of temporary termination of parental authority, parental
1. Surviving Grandparent; authority may be revived thru a court judgment (Rabuya, 2009).

NOTE: The law considers the natural love of a parent to outweigh that of the GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY
grandparents, such that only when the parent present is shown to be unfit or
unsuitable may the grandparents exercise substitute parental authority (Santos 1. Gives corrupting orders, counsel or example;
v. CA, G.R. No. 113054, March 16, 1995). 2. Treats child with excessive harshness and cruelty;
2. Oldest brother or sister, over 21 years unless unfit or disqualified; 3. Subjects/allows child be subjected to acts of lasciviousness (FC, Art. 231);
3. Actual Custodian over 21 year unless unfit or disqualified (FC, Art. 216); 4. Conviction of crime with penalty of civil interdiction (FC, Art. 230);
5. Culpable negligence of parent or person exercising parental authority;
4. In case of foundlings, abandoned, neglected or abused children similarly 6. Compels the child to beg.
situated, parental authority shall be entrusted in summary judicial proceedings
to heads of children’s homes, orphanages and similar institutions duly CHANGE OF NAME
accredited by the proper government agency (FC, Art. 217).
GROUNDS FOR CHANGE OF NAME WHICH HAVE BEEN HELD VALID
SPECIAL PARENTAL AUTHORITY (2003, 2004, 2005, 2010 BAR)

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1. One has Continuously used and been known since childhood by a Filipino 1. Person on board a vessel lost during a sea voyage, or an airplane which is
name and was unaware of alien parentage; missing, who has not been heard of for four (4) years since the loss of the vessel
2. The change results as a Legal consequence, as in legitimation; or airplane;
3. There is a sincere desire to adopt a Filipino name to erase signs of former 2. Person in the armed forces who has taken at in war, and has been missing for
alienage, all in good faith and without prejudicing anyone; four (4) years;
4. The change will avoid confusion; 3. Person who has been in danger of death under other circumstances and his
5. The new first name or surname has been habitually and continuously used by existence has not been known for four (4) years.
the petitioner and is publicly known by that first name or nickname (Pineda,
2010).
6. The name is:
a. Ridiculous,
b. Extremely difficult to write or pronounce,
c. Dishonorable.

ABSENCE

DECLARATION OF ABSESNCE
Requisites (NCC, Art. 384):
1. The absentee have disappeared from his domicile;
2. His whereabouts are not known; and
3. He has been absent without any news for 2 years, if nobody was left to
administer his property or 5 years if somebody was left to administer such
property

PRESUMPTION OF DEATH

RULES IN ORDINARY PRESUMPTION OF DEATH (NCC, ART. 390)


In case of:
1. Disappearance upon or before reaching the age of seventy five (75) years:
a. After an absence of seven (7) years -the absentee is presumed dead for all
purposes except, succession.
b. After an absence of ten (10) years - the absentee is presumed dead for all
purposes including succession.
2. Disappearance at the age of seventy six (76) years or older, after an absence
of five (5) years -the absentee is presume
.
PRESUMPTION OF DEATH FOR ALL PURPOSES
The following are presumed dead for all purposes including the division of
estate among heirs in case of extraordinary presumption of death (NCC, Art.
391):

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