Persons and Family Relations: Vitug

TABLE OF CONTENTS
INTRODUCTORY CHAPTER Civil Law and Common Law Distinguished ......................... Civil Code of the Philippines .................................................. The Family Code of the Philippines ...................................... 1 2 3
THE CIVIL CODE OF THE PHILIPPINES

PRELIMINARY TITLE Chapter 1 EFFECT AND APPLICATION OF LAWS Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 1 .................................................................................... 2 .................................................................................... 3 .................................................................................... 4 .................................................................................... 5 .................................................................................... 6 .................................................................................... 7 .................................................................................... 8 .................................................................................... 9 .................................................................................... 10 ................................................................................ 11 ................................................................................ 12 ................................................................................ 13 ................................................................................ 14 ................................................................................ 15 ................................................................................ 16 ................................................................................ 17 ................................................................................ 18 ................................................................................ Chapter 2 HUMAN RELATIONS Article Article Article Article Article 19 20 21 22 23 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
iii
4 4 4 4 4 4 4 5 5 5 5 5 5 5 5 5 6 6
28 28 28 28 29
Article Article Article Article Article Article Article Article Article Article Article Article Article
24 25 26 27 28 29 30 31 32 33 34 35 36
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
29 29 29 29 30 30 30 30 30 32 32 32 33
BOOK I PERSONS
TITLE I CIVIL PERSONALITY Chapter 1 GENERAL PROVISIONS Article 37 ................................................................................ Article 38 ................................................................................ Article 39 ................................................................................ Chapter 2 NATURAL PERSONS Article Article Article Article 40 41 42 43 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 JURIDICAL PERSONS Article Article Article Article 44 45 46 47 ................................................................................ ................................................................................ ................................................................................ ................................................................................ 53 54 54 54 53 53 53 53 52 52 52
TITLE II CITIZENSHIP AND DOMICILE Article Article Article Article 48 49 50 51 ................................................................................ ................................................................................ ................................................................................ ................................................................................ 61 61 61 61
iv
TITLE III MARRIAGE Chapter 1 REQUISITES OF MARRIAGE Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ 65 65 65 65 66 66 67 67 68 69 69 70 70 70 70 71 71 71 71 72
Chapter 2 MARRIAGES OF EXCEPTIONAL CHARACTER Article Article Article Article Article Article Article Article 72 73 74 75 76 77 78 79 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 VOID AND VOIDABLE MARRIAGES Article Article Article Article Article Article Article Article Article 80 81 82 83 84 85 86 87 88 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
v
78 78 78 79 79 79 79 80
82 83 83 83 84 84 85 85 86
Article 89 ................................................................................ Article 90 ................................................................................ Article 91 ................................................................................ Chapter 4 AUTHORITY TO SOLEMNIZE MARRIAGES Article Article Article Article Article 92 93 94 95 96 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE IV LEGAL SEPARATION Article Article Article Article Article Article Article Article Article Article Article Article 97 98 99 100 101 102 103 104 105 106 107 108 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
86 86 86
97 97 97 98 98
99 99 99 99 100 100 100 100 100 101 101 101
TITLE V RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Article Article Article Article Article Article Article Article Article 109 110 111 112 113 114 115 116 117 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE VI PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE Chapter 1 GENERAL PROVISIONS Article 118 ................................................................................ Article 119 ................................................................................ Article 120 ................................................................................
vi
106 106 106 106 106 107 107 107 108
112 112 112
Article Article Article Article Article
121 122 123 124 125
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 DONATIONS BY REASON OF MARRIAGE
113 113 113 113 113
Article Article Article Article Article Article Article Article Article
126 127 128 129 130 131 132 133 134
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
115 115 115 116 116 116 116 116 117
Chapter 3 PARAPHERNAL PROPERTY Article Article Article Article Article Article Article 135 136 137 138 139 140 141 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ 118 119 119 119 119 119 119
Chapter 4 CONJUGAL PARTNERSHIP OF GAINS Section 1 General Provisions Article Article Article Article Article Article 142 143 144 145 146 147 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 2 Exclusive Property of Each Spouse Article Article Article Article 148 149 150 151 ................................................................................ ................................................................................ ................................................................................ ................................................................................
vii
120 120 120 120 120 121
121 121 121 121
Article 152 ................................................................................ Section 3 Conjugal Partnership Property Article Article Article Article Article Article Article Article 153 154 155 156 157 158 159 160 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
121
122 122 122 122 122 123 123 123
Section 4 Charges Upon and Obligations of the Conjugal Partnership Article Article Article Article 161 162 163 164 ................................................................................ ................................................................................ ................................................................................ ................................................................................ 130 130 130 131
Section 5 Administration of the Conjugal Partnership Article Article Article Article Article Article Article Article Article Article 165 166 167 168 169 170 171 172 173 174 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 6 Dissolution of the Conjugal Partnership Article Article Article Article 175 176 177 178 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 7 Liquidation of the Conjugal Partnership Article 179 ................................................................................ Article 180 ................................................................................
viii
133 133 133 134 134 134 134 134 134 134
137 137 137 137
138 138
Article Article Article Article Article Article Article Article Article
181 182 183 184 185 186 187 188 189
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
138 138 138 139 139 139 139 139 139
Chapter 5 SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF PROPERTY BY THE WIFE DURING THE MARRIAGE Article Article Article Article Article Article Article Article 190 191 192 193 194 195 196 197 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 6 SYSTEM OF ABSOLUTE COMMUNITY Article Article Article Article Article Article Article Article Article Article Article Article Article Article 198 199 200 201 202 203 204 205 206 207 208 209 210 211 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 7 SYSTEM OF COMPLETE SEPARATION OF PROPERTY Article 212 ................................................................................ Article 213 ................................................................................ Article 214 ................................................................................
ix
141 142 142 143 143 143 144 144
145 145 146 146 146 146 146 146 147 147 147 147 147 147
149 149 149
Article 215 ................................................................................ TITLE VII THE FAMILY Chapter 1 THE FAMILY AS AN INSTITUTION Article Article Article Article Article Article Article 216 217 218 219 220 221 222 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 THE FAMILY HOME Section 1 General Provisions Article 223 ................................................................................ Article 224 ................................................................................ Section 2 Judicial Constitution of the Family Home Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 3 Extrajudicial Creation of the Family Home Article Article Article Article Article 240 241 242 243 244 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
x
149
151 151 151 151 151 152 152
155 155
155 155 156 156 156 156 156 156 157 157 157 157 157 158 158
158 158 158 158 159
Article Article Article Article Article Article Article
245 246 247 248 249 250 251
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 THE FAMILY COUNCIL
159 159 159 159 159 160 160
Article 252 ................................................................................ Article 253 ................................................................................ Article 254 ................................................................................
163 163 163
TITLE VIII PATERNITY AND FILIATION Chapter 1 LEGITIMATE CHILDREN Article Article Article Article Article Article Article Article Article Article 255 256 257 258 259 260 261 262 263 264 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 PROOF OF FILIATION OF LEGITIMATE CHILDREN Article Article Article Article 265 266 267 268 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 LEGITIMATED CHILDREN Article Article Article Article Article Article Article 269 270 271 272 273 274 275 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xi
164 165 165 165 165 166 166 166 167 167
170 170 170 171
172 172 172 172 172 172 172
Chapter 4 ILLEGITIMATE CHILDREN Section 1 Recognition of Natural Children Article Article Article Article Article Article Article Article Article Article Article 276 277 278 279 280 281 282 283 284 285 286 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 2 Other Illegitimate Children Article 287 ................................................................................ Article 288 ................................................................................ Article 289 ................................................................................ TITLE IX SUPPORT Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE X FUNERALS Article Article Article Article Article Article 305 306 307 308 309 310 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xii
175 175 175 175 175 175 176 176 176 176 177
177 177 177
186 186 187 187 187 187 188 188 188 188 188 188 189 189 189
194 194 194 194 194 194
TITLE XI PARENTAL AUTHORITY Chapter 1 GENERAL PROVISIONS Article Article Article Article Article 311 312 313 314 315 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN Article Article Article Article 316 317 318 319 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 EFFECT OF PARENTAL AUTHORITY ON THE PROPERTY OF THE CHILDREN Article Article Article Article Article Article Article 320 321 322 323 324 325 326 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 4 EXTINGUISHMENT OF PARENTAL AUTHORITY Article Article Article Article Article Article Article 327 328 329 330 331 332 333 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 5 ADOPTION Article Article Article Article 334 335 336 337 ................................................................................ ................................................................................ ................................................................................ ................................................................................
xiii
196 196 196 197 197
197 197 197 197
198 198 198 198 198 198 199
199 199 199 199 200 200 200
203 203 204 204
Article Article Article Article Article Article Article Article Article Article Article
338 339 340 341 342 343 344 345 346 347 348
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 6 SUBSTITUTE PARENTAL AUTHORITY
204 204 204 204 205 205 205 205 205 205 205
349 350 351 352 353 354 355
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XII CARE AND EDUCATION OF CHILDREN
212 212 212 212 212 212 213
Article Article Article Article Article Article Article Article
356 357 358 359 360 361 362 363
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XIII USE OF SURNAMES
214 214 214 215 215 215 215 216
Article Article Article Article Article Article Article Article Article Article Article Article
364 365 366 367 368 369 370 371 372 373 374 375
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xiv
218 218 218 218 218 216 218 218 219 219 219 219
376 377 378 379 380
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XIV ABSENCE
219 219 219 219 219
Chapter 1 PROVISIONAL MEASURES IN CASE OF ABSENCE Article 381 ................................................................................ Article 382 ................................................................................ Article 383 ................................................................................ Chapter 2 DECLARATION OF ABSENCE Article 384 ................................................................................ Article 385 ................................................................................ Article 386 ................................................................................ Chapter 3 ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE Article 387 ................................................................................ Article 388 ................................................................................ Article 389 ................................................................................ Chapter 4 PRESUMPTION OF DEATH Article 390 ................................................................................ Article 391 ................................................................................ Article 392 ................................................................................ Chapter 5 EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE Article Article Article Article 393 394 395 396 ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XV EMANCIPATION AND AGE OF MAJORITY Chapter 1 EMANCIPATION Article 397 ................................................................................
xv
224 224 224
224 225 225
225 225 225
226 226 226
226 227 227 227
231
Article Article Article Article
398 399 400 401
................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 AGE OF MAJORITY
231 231 231 231
402 403 404 405 406
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XVI CIVIL REGISTER
232 232 232 232 232
407 408 409 410 411 412 413
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
233 233 233 233 233 234 234
THE FAMILY CODE OF THE PHILIPPINES

TITLE I MARRIAGE Chapter 1 REQUISITES OF MARRIAGE Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xvi
239 241 241 241 243 244 244 245 247 247 247 248 249 250 250 251 252 253 253
20 21 22 23 24 25 26
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
253 253 254 254 255 255 256
27 28 29 30 31 32 33 34
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 VOID AND VOIDABLE MARRIAGES
258 258 258 259 259 259 259 259
Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article
35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE II LEGAL SEPARATION
261 261 261 262 267 267 275 275 275 276 278 279 282 283 283 284 284 285 285 285
Article 55 ................................................................................ Article 56 ................................................................................ Article 57 ................................................................................

xvii
288 290 291
Article Article Article Article Article Article Article Article Article Article
58 59 60 61 62 63 64 65 66 67
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
291 291 291 292 292 293 293 295 295 296
Article Article Article Article Article Article
68 69 70 71 72 73
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE IV PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE Chapter 1 GENERAL PROVISIONS
298 298 298 298 299 299
74 75 76 77 78 79 80 81
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 DONATIONS BY REASON OF MARRIAGE
302 302 302 303 303 303 303 303
82 83 84 85 86 87
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
307 307 307 307 308 310
Chapter 3 SYSTEM OF ABSOLUTE COMMUNITY Section 1 General Provisions Article 88 ................................................................................

xviii
311
Article 89 ................................................................................ Article 90 ................................................................................ Section 2 What Constitutes Community Property Article 91 ................................................................................ Article 92 ................................................................................ Article 93 ................................................................................ Section 3 Charges Upon and Obligations of the Absolute Community Article 94 ................................................................................ Article 95 ................................................................................ Section 4 Ownership, Administration, Enjoyment and Disposition of the Community Property Article 96 ................................................................................ Article 97 ................................................................................ Article 98 ................................................................................ Section 5 Dissolution of Absolute Community Regime Article 99 ................................................................................ Article 100 ................................................................................ Article 101 ................................................................................ Section 6 Liquidation of the Absolute Community Assets and Liabilities Article 102 ................................................................................ Article 103 ................................................................................ Article 104 ................................................................................ Chapter 4 CONJUGAL PARTNERSHIP OF GAINS Section 1 General Provisions Article Article Article Article 105 106 107 108 ................................................................................ ................................................................................ ................................................................................ ................................................................................
311 311
313 313 313
314 316
318 318 318
320 320 321
322 323 324
327 327 327 327
Section 2 Exclusive Property of Each Spouse Article 109 ................................................................................

xix
329
110 111 112 113 114 115
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Section 3 Conjugal Partnership Property
329 330 330 330 330 330
116 117 118 119 120
................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
331 331 332 332 332
Section 4 Charges Upon and Obligations of the Conjugal Partnership Article 121 ................................................................................ Article 122 ................................................................................ Article 123 ................................................................................ Section 5 Administration of the Conjugal Partnership Property Article 124 ................................................................................ Article 125 ................................................................................ Section 6 Dissolution of Conjugal Partnership Regime Article 126 ................................................................................ Article 127 ................................................................................ Article 128 ................................................................................ Section 7 Liquidation of the Conjugal Partnership Assets and Liabilities Article Article Article Article Article 129 130 131 132 133 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ 349 350 351 351 351 347 347 348 343 343 338 339 340
xx
Chapter 5 SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE MARRIAGE Article Article Article Article Article Article Article Article Article 134 135 136 137 138 139 140 141 142 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 6 REGIME OF SEPARATION OF PROPERTY Article Article Article Article 143 144 145 146 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 7 PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE Article 147 ................................................................................ Article 148 ................................................................................ TITLE V THE FAMILY Chapter 1 THE FAMILY AS AN INSTITUTION Article 149 ................................................................................ Article 150 ................................................................................ Article 151 ................................................................................ Chapter 2 THE FAMILY HOME Article Article Article Article Article Article Article Article 152 153 154 155 156 157 158 159 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xxi
353 353 354 354 354 354 354 355 355
357 357 357 358
359 359
364 364 364
367 367 367 368 368 368 369 369
Article 160 ................................................................................ Article 161 ................................................................................ Article 162 ................................................................................ TITLE VI PATERNITY AND FILIATION Chapter 1 LEGITIMATE CHILDREN Article Article Article Article Article Article Article Article Article 163 164 165 166 167 168 169 170 171 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 2 PROOF OF FILIATION Article 172 ................................................................................ Article 173 ................................................................................ Article 174 ................................................................................ Chapter 3 ILLEGITIMATE CHILDREN Article 175 ................................................................................ Article 176 ................................................................................ Chapter 4 LEGITIMATED CHILDREN Article Article Article Article Article Article 177 178 179 180 181 182 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE VII ADOPTION Article Article Article Article Article Article Article Article 183 184 185 186 187 188 189 190 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xxii
369 369 370
374 374 374 374 375 375 375 375 376
383 384 386
386 387
397 397 398 398 398 398
399 400 400 400 401 401 404 405
Article 191 ................................................................................ Article 192 ................................................................................ Article 193 ................................................................................ TITLE VIII SUPPORT Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE IX PARENTAL AUTHORITY Chapter 1 GENERAL PROVISIONS Article Article Article Article Article Article Article 209 210 211 212 213 214 215 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
409 409 409
418 418 419 419 419 419 420 421 421 421 422 422 422 422 422
425 425 425 425 425 426 426
Chapter 2 SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY Article Article Article Article 216 217 218 219 ................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN Article 220 ................................................................................ Article 221 ................................................................................
xxiii
429 429 429 430
436 437
Article 222 ................................................................................ Article 223 ................................................................................ Article 224 ................................................................................ Chapter 4 EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN Article 225 ................................................................................ Article 226 ................................................................................ Article 227 ................................................................................ Chapter 5 SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY Article Article Article Article Article Article 228 229 230 231 232 233 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE X EMANCIPATION AND AGE OF MAJORITY Article Article Article Article 234 235 236 237 ................................................................................ ................................................................................ ................................................................................ ................................................................................ TITLE XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Chapter 1 SCOPE OF APPLICATION Article 238 ................................................................................ Chapter 2 SEPARATION IN FACT BETWEEN HUSBAND AND WIFE Article Article Article Article Article Article 239 240 241 242 243 244 ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................ ................................................................................
xxiv
437 437 438
439 440 440
441 442 442 442 443 443
444 444 444 444
449
450 450 450 450 450 451
245 246 247 248
................................................................................ ................................................................................ ................................................................................ ................................................................................ Chapter 3 INCIDENTS INVOLVING PARENTAL AUTHORITY
451 451 451 451
249 250 251 252
................................................................................ ................................................................................ ................................................................................ ................................................................................
452 453 453 453
Chapter 4 OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS Article 253 ................................................................................ TITLE XII FINAL PROVISIONS Article Article Article Article 254 255 256 257 ................................................................................ ................................................................................ ................................................................................ ................................................................................ 456 456 456 456 453
APPENDICES
APPENDIX A REPUBLIC ACT NO. 8171 An Act Providing for the Repatriation of Filipino Women who have Lost their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos Section Section Section Section 1 2 3 4 ................................................................................ ................................................................................ ................................................................................ ................................................................................ 463 463 463 463
xxv
APPENDIX B REPUBLIC ACT NO. 9048 An Act Authorizing the City of Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register without Need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code of the Philippines Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname .......... Section 2. Definition of Terms ................................................ Section 3. Who may file the Petition and Where ................. Section 4. Grounds for Change of First Name or Nickname .................................................................... Section 5. Form and Contents of the Petition ...................... Section 6. Duties of the City or Municipal Civil Registrar or the Consul General .................................. Section 7. Duties and Powers of the Civil Registrar General ........................................................... Section 8. Payment of Fees ..................................................... Section 9. Penalty Clause ....................................................... Section 10. Implementing Rules and Regulations ................ Section 11. Retroactivity Clause ............................................ Section 12. Separability Clause .............................................. Section 13. Repealing Clause ................................................. Section 14. Effectivity Clause ................................................. APPENDIX C REPUBLIC ACT NO. 8552 (DOMESTIC ADOPTION ACT OF 1995) An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children and for Other Purposes ARTICLE I GENERAL PROVISIONS Section 1. Short title ................................................................ Section 2. Declaration of Policies ........................................... Section 3. Definition of Terms ................................................ ARTICLE II PRE-ADOPTION SERVICES Section 4. Counselling Services .............................................. Section 5. Location of Unknown Parent(s) ............................ Section 6. Support Services .................................................... 471 472 472 469 469 470
464 464 465 465 466 466 466 467 467 467 468 468 468 468
xxvi
ARTICLE III ELIGIBILITY Section 7. Who may adopt ...................................................... Section 8. Who may be adopted ............................................. Section 9. Whose consent is necessary to the adoption ...... ARTICLE IV PROCEDURE Section 10. Hurried decisions ................................................. Section 11. Case study ............................................................. Section 12. Supervised trial custody ...................................... Section 13. Degree of adoption ............................................... Section 14. Civil Registry Record ........................................... Section 15. Confidential Nature of Proceedings and Records ..................................................................... ARTICLE V EFFECTS OF ADOPTION Section 16. Parental Authority ............................................... Section 17. Legitimacy ............................................................ Section 18. Succession ............................................................. ARTICLE VI RESCISSION OF ADOPTION Section 19. Grounds for Rescission of Adoption ................... Section 20. Effects of Rescission ............................................ ARTICLE VII VIOLATIONS AND PENALTIES Section 21. Violations and Penalties ...................................... Section 22. Rectification of simulated births ........................ ARTICLE VIII FINAL PROVISIONS Section Section Section Section Section Section 23. Adoption resources and referral office ............... 24. Implementing rules and regulations .................. 25. Appropriations ...................................................... 26. Repealing clause .................................................. 27. Separability clause ............................................... 28. Effectivity clause .................................................. 478 478 478 478 479 479 476 478 476 476 475 475 476 474 474 474 475 475 475 472 473 473
xxvii
APPENDIX D REPUBLIC ACT NO. 8043 (INTER-COUNTRY ADOPTION ACT OF 1995) An Act Establishing the Rules to Govern Inter-Country Adoption of Filipino Children, and for Other Purposes ARTICLE I GENERAL PROVISIONS Section 1. Short title ................................................................ Section 2. Declaration of Policy .............................................. Section 3. Definition of Terms ................................................ ARTICLE II THE INTER-COUNTRY ADOPTION BOARD Section 4. The Inter-country Adoption Board ....................... Section 5. Composition of the Board ...................................... Section 6. Powers and Functions of the Board ..................... ARTICLE III PROCEDURE Section Section Section Section Section Section Section Section Section 7. Inter-country Adoption as the Last Resort ......... 8. Who may be adopted ............................................. 9. Who may adopt ...................................................... 10. Where to file application ..................................... 11. Family Selection/Matching .................................. 12. Pre-adoptive Placement Costs ............................ 13. Fees, Charges and Assessments ......................... 14. Supervision of Trial Custody .............................. 15. Executive Agreement ........................................... ARTICLE IV PENALTIES Section 16. Penalties ............................................................... Section 17. Public Officers as Offenders ............................... ARTICLE V FINAL PROVISIONS Section Section Section Section Section 18. Implementing Rules and Regulations ................ 19. Appropriations ...................................................... 20. Separability clause ............................................... 21. Repealing clause .................................................. 22. Effectivity clause .................................................. 487 487 487 487 487 486 487 483 483 483 484 485 485 485 485 486 481 482 482 480 480 480
xxviii
APPENDIX E PRESIDENTIAL DECREE NO. 1083 (MUSLIM CODE) A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws, and Providing for Its Administration and for Other Purposes
BOOK ONE GENERAL PROVISIONS

TITLE I TITLE AND PURPOSES OF CODE Article 1. Title .......................................................................... Article 2. Purposes of Code ..................................................... TITLE II CONSTRUCTION OF CODE AND DEFINITION OF TERMS Article Article Article Article Article 3. 4. 5. 6. 7. Conflict of provisions .............................................. Construction and interpretation ........................... Proof of Muslim law and ada ............................... Conflict in Islamic schools of law .......................... Definition of terms .................................................. 489 489 490 490 490 489 489
BOOK TWO PERSONS AND FAMILY RELATIONS

TITLE I CIVIL PERSONALITY (SHAKSHIYAH MADANIYA) Article Article Article Article Article 8. Legal capacity .......................................................... 9. Restrictions on capacity ......................................... 10. Personality, how acquired .................................... 11. Extinction of personality ...................................... 12. Simultaneous death .............................................. TITLE II MARRIAGE AND DIVORCE Chapter 1 APPLICABILITY CLAUSE Article 13. Application ............................................................. Chapter 2 MARRIAGE (NIKAH) Section 1 Requisites of Marriage Article 14. Nature ....................................................................
xxix
490 491 491 491 491
491
492
15. Essential requisites .............................................. 16. Capacity to contract marriage ............................. 17. Marriage ceremony ............................................... 18. Authority to solemnize marriage ......................... 19. Place of solemnization .......................................... 20. Specification of dower ........................................... 21. Payment of dower ................................................. 22. Breach of contract ................................................. Section 2 Prohibited Marriages
492 492 492 493 493 493 493 493
Article 23. Bases of prohibition .............................................. Article 24. Prohibition by consanguinity (tahrim-bin-nasab) ......................................................... Article 25. Prohibition by affinity (tahrim-bil-musahara) ................................................... Article 26. Prohibition due to fosterage (tahrim-bir-radaa) .......................................................... Section 3 Subsequent Marriages Article Article Article Article 27. 28. 29. 30. By a husband ......................................................... By widow ................................................................ By divorce .............................................................. Marriage after three talaq ................................... Section 4 Batil and Fasid Marriages Article 31. Batil marriages ..................................................... Article 32. Fasid marriages .................................................... Article 33. Validation by irregular marriages ....................... Section 5 Rights and Obligations Between Spouses Article 34. Mutual rights and obligations ............................. Article 35. Rights and obligations of the husband ............... Article 36. Rights and obligations of the wife ...................... Section 6 Property Relations Between Spouses Article Article Article Article Article Article 37. How governed ........................................................ 38. Regime of property regulations ........................... 39. Stipulations in the marriage settlements .......... 40. Ante-nuptial property ........................................... 41. Exclusive property of each spouse ...................... 42. Ownership and administration ...........................
xxx
493 494 494 494
494 494 494 495
495 495 495
496 496 496
497 497 497 497 497 498
Article 43. Household property .............................................. Article 44. Right to sue and be sued ..................................... Chapter 3 DIVORCE (TALAQ) Section 1 Nature and Form Article Article Article Article Article Article Article Article Article Article Article 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. Definition and Forms ........................................... Divorce by Talaq ................................................... Divorce by ila ........................................................ Divorce by zihar .................................................... Divorce by lian ..................................................... Divorce by khul .................................................... Divorce by Tafwid ................................................. Divorce by faskh ................................................... Faskh on the ground of unusual cruelty ............ Effects of irrevocable talaq or faskh ................... Effects of other kinds of divorce .......................... Section 2 Idda Article 56. Idda defined .......................................................... Article 57. Period ..................................................................... TITLE III PATERNITY AND FILIATION Article Article Article Article Article Article Article 58. Legitimacy, how established ................................ 59. Legitimate children .............................................. 60. Children of subsequent marriage ........................ 61. Pregnancy after dissolution ................................. 62. Rights of legitimate child ..................................... 63. Acknowledgment by father .................................. 64. Adoption ................................................................. TITLE IV SUPPORT (NAFAQA) Article 65. Support defined ..................................................... Article 66. Amount ................................................................... Article 67. Support for wife and infant ................................. Article 68. Support between ascendants and descendants ............................................................. Article 69. Payment ................................................................. Article 70. Extinguishment of support .................................. TITLE V PARENTAL AUTHORITY Chapter 1 NATURE AND EFFECTS Article 71. Who exercises ........................................................
xxxi
498 498
498 499 499 499 499 499 499 500 500 500 501
501 501
501 501 502 502 502 502 502
502 502 503 503 503 503
503
72. 73. 74. 75. 76. 77.
Duty to parents ..................................................... Duty to children .................................................... Effects upon person of children ........................... Effects upon property of children ........................ Parental authority non-transferable ................... Extinguishment of parental authority ................
504 504 504 504 504 504
Chapter 2 CUSTODY AND GUARDIANSHIP Article 78. Care and custody .................................................. Article 79. Guardian for marriage (wali) .............................. Article 80. Guardian of minors property .............................. TITLE VI CIVIL REGISTRY Chapter 1 REGISTRY OF MARRIAGE, DIVORCE AND CONVERSIONS Article Article Article Article Article Article Article 81. District Registrar .................................................. 82. Duties of District Registrar ................................. 83. Duties of Circuit Registrar .................................. 84. Cancellation or correction of entry ..................... 85. Registration of revocation of divorce .................. 86. Legal effects of Registration ................................ 87. Applicability of other civil registry law .............. Chapter 2 OTHER ACTS AFFECTING CIVIL STATUS Article 88. Where registered ................................................... 507 505 506 506 506 506 506 507 505 505 505
BOOK THREE SUCCESSION

TITLE I GENERAL PROVISIONS Article Article Article Article Article Article Article Article Article Article Article Article 89. Succession defined ................................................ 90. Successional rights, when vested ........................ 91. Requisites of succession ....................................... 92. Inheritance (Mirath) ............................................. 93. Disqualifications to succession ............................ 94. Succession from acknowledging person .............. 95. Succession by illegitimate child .......................... 96. Succession between divorced persons ................. 97. Succession by conceived child .............................. 98. Succession by absentee ......................................... 99. Order of succession ............................................... 100. Modes of succession ............................................
xxxii
507 507 507 507 507 508 508 508 508 508 508 509
TITLE II TESTAMENTARY SUCCESSION Chapter 1 WILLS Article Article Article Article Article Article Article Article Article 101. 102. 103. 104. 105. 106. 107. 108. 109. Will defined ......................................................... Formalities ........................................................... Proof of will ......................................................... Testamentary warf .............................................. Capacity to make a will ..................................... Disposable third .................................................. Bequest by operation of law .............................. Revocation of will ................................................ Partial invalidity of will ..................................... TITLE III LEGAL SUCCESSION Chapter 1 SHARERS Article Article Article Article Article Article Article Article Article Article Article Article Article Article 110. Who are sharers .................................................. 111. Share of surviving husband ............................... 112. Share of surviving wife ...................................... 113. Share of surviving father ................................... 114. Share of surviving mother ................................. 115. Share of paternal grandfather ........................... 116. Share of paternal grandmother ......................... 117. Share of surviving daughter .............................. 118. Share of sons daughter ...................................... 119. Share of full sister .............................................. 120. Share of consanguine sister ............................... 121. Share of uterine brother or sister ..................... 122. Participation of full brother ............................... 123. Exclusion among heirs ....................................... Chapter 2 RESIDUARY HEIRS Article Article Article Article Article Article Article 124. 125. 126. 127. 128. 129. 130. Residuaries .......................................................... Residuaries in their own right .......................... Residuaries in anothers right ........................... Residuaries together with another ................... Preference among residuaries ........................... Reduction of shares ............................................ Reversion of residue ........................................... Chapter 3 DISTANT KINDRED (DHAW-UL-ARHAM) Article 131. Relatives Included .............................................. Article 132. Extent and distribution of shares .....................
xxxiii
509 509 509 509 509 509 510 510 510
510 510 510 510 511 511 511 511 511 511 511 511 512 512
512 512 513 513 513 513 513
513 514
TITLE IV SETTLEMENT AND PARTITION OF ESTATE Article Article Article Article 133. Administration .................................................... 134. Governing school of law ..................................... 135. Order of preference of claims ............................ 136. Liability of heirs .................................................. 514 514 514 514
BOOK FOUR ADJUDICATION AND SETTLEMENT OF DISPUTES AND RENDITION OF LEGAL OPINIONS
TITLE I THE SHARIA COURTS Article 137. Creation ............................................................... Chapter 1 SHARIA DISTRICT COURTS Article Article Article Article Article Article Article Article Article Article Article Article 138. Sharia judicial districts ..................................... 139. Appointment of judges ........................................ 140. Qualifications ...................................................... 141. Tenure .................................................................. 142. Compensation ...................................................... 143. Original jurisdiction ........................................... 144. Appellate jurisdiction ......................................... 145. Finality of decisions ............................................ 146. Clerks and other subordinate employees ......... 147. Permanent stations; offices ................................ 148. Special procedure ................................................ 149. Applicability of other laws ................................. Chapter 2 SHARIA CIRCUIT COURTS Article Article Article Article Article Article Article Article Article Article 150. Where establish ................................................... 151. Appointment of judges ........................................ 152. Qualifications ...................................................... 153. Tenure .................................................................. 154. Compensation ...................................................... 155. Jurisdiction .......................................................... 156. Clerks and other subordinate employees ......... 157. Place of sessions; stations .................................. 158. Special Procedure ................................................ 159. Applicability of other laws ................................. TITLE II THE AGAMA ARBITRATION COUNCIL Article 160. Constitution .........................................................
xxxiv
515
515 515 515 515 516 516 516 517 517 517 517 517
517 518 518 518 518 518 519 519 519 519
519
Article 161. Divorce by talaq and tafwid ............................... Article 162. Subsequent marriages ........................................ Article 163. Offenses against customary law ........................ TITLE III JURISCONSULT IN ISLAMIC LAW Article Article Article Article Article 164. 165. 166. 167. 168. Creation of office and appointment ................... Qualifications ...................................................... Functions ............................................................. Compensation ...................................................... Office personnel ..................................................
519 520 520
520 520 520 521 521
BOOK FIVE MISCELLANEOUS AND TRANSITORY PROVISIONS

TITLE I MUSLIM HOLIDAYS Article 169. Official Muslim Holidays ................................... Article 170. Provinces and cities where officially observed ........................................................... Article 171. Dates of observance ............................................ Article 172. Observance of Muslim employees ..................... TITLE II COMMUNAL PROPERTY Article 173. What constitute ................................................... Article 174. Administration or disposition ............................ TITLE III CUSTOMARY CONTRACTS Article 175. How construed ..................................................... TITLE IV CONVERSIONS Article 176. Effect of registration of conversion to Islam ........................................................................... Article 177. Regulation on conversion ................................... Article 178. Effect of conversion to Islam on marriage ..................................................................... Article 179. Effect of change of religion ................................ TITLE V PENAL PROVISIONS Chapter 1 RULE ON BIGAMY Article 180. Law applicable ....................................................
xxxv
521 521 521 521
522 522
522
522 523 523 523
523
Chapter 2 SPECIFIC OFFENSES Article 181. Illegal solemnization of marriage ..................... Article 182. Marriage before expiration of Idda ................... Article 183. Offenses relative to subsequent marriage, divorce, and revocation of divorce ................................ Article 184. Failure to report for registration ...................... Article 185. Neglect of duty of registrars .............................. TITLE VI TRANSITORY AND FINAL PROVISIONS Article Article Article Article Article 186. Effect of Code on past acts ................................ 187. Applicability clause ............................................. 188. Separability clause ............................................. 189. Repealing clause ................................................. 190. Effectivity ............................................................ 524 524 524 524 524 523 523 523 524 524
APPENDIX F A.M. No. 02-11-10-SC

Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Section 1. Scope ...................................................................... Section 2. Petition for declaration of absolute nullity of void marriages ............................................................ Section 3. Petition for annulment of voidable marriages ... Section 4. Venue ...................................................................... Section 5. Contents and form of petition ............................. Section 6. Summons ............................................................... Section 7. Motion to dismiss .................................................. Section 8. Answer ................................................................... Section 9. Investigation report of public prosecutor ........... Section 10. Social worker ........................................................ Section 11. Pre-Trial ................................................................ Section 12. Contents of pre-trial brief ................................... Section 13. Effect of failure to appear at the pre-trial ........ Section 14. Pre-trial conference .............................................. Section 15. Pre-trial order ...................................................... Section 16. Prohibited compromise ........................................ Section 17. Trial ....................................................................... Section 18. Memoranda ........................................................... Section 19. Decision ................................................................. Section 20. Appeal .................................................................... Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes .......................
xxxvi
525 525 525 526 526 527 527 527 528 528 528 529 529 529 530 530 530 531 531 532
532
Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage ........... Section 23. Registration and publication of the decree; decree as best evidence .................................................. Section 24. Effect of death of a party; duty of the Family Court or Appellate Court ........................... Section 25. Effectivity ..............................................................
532 532 533 533
APPENDIX G A.M. No. 02-11-11-SC

Rule on Legal Separation Section 1. Scope ...................................................................... Section 2. Petition .................................................................. Section 3. Summons ............................................................... Section 4. Motion to Dismiss ................................................. Section 5. Answer ................................................................... Section 6. Investigation Report of Public Prosecutor ......... Section 7. Social Worker ........................................................ Section 8. Pre-Trial ................................................................. Section 9. Contents of pre-trial brief .................................... Section 10. Effect of failure to appear at the pre-trial ........ Section 11. Pre-Trial conference ............................................. Section 12. Pre-Trial order ...................................................... Section 13. Prohibited compromise ........................................ Section 14. Trial ....................................................................... Section 15. Memoranda ........................................................... Section 16. Decision ................................................................. Section 17. Appeal .................................................................... Section 18. Liquidation, partition and distribution, custody, and support of minor children ....................... Section 19. Issuance of Decree of Legal Separation ............. Section 20. Registration and publication of the Decree of Legal Separation; decree as best evidence .................................................. Section 21. Effect of death of a party; duty of the Family Court or Appellate Court ............................................... Section 22. Petition for revocation of donations ................... Section 23. Decree of Reconciliation ...................................... Section 24. Revival of property regime or adoption of another ................................................... Section 25. Effectivity .............................................................. 534 534 535 536 536 536 536 536 537 537 538 538 538 539 539 539 540 540 541
541 541 541 542 542 543
xxxvii
APPENDIX H A.M. No. 02-11-12-SC

Rule on Provisional Orders Section Section Section Section Section Section Section Section Section 1. When Issued ........................................................... 2. Spousal Support ..................................................... 3. Child Support ......................................................... 4. Child Custody ......................................................... 5. Visitation Rights .................................................... 6. Hold Departure Order ........................................... 7. Order of Protection ................................................ 8. Administration of Common Property ................... 9. Effectivity ................................................................ 544 544 545 545 546 546 547 547 547
xxxviii
CIVIL LAW
By
JOSE C. VITUG, LL.B., LL.M., M.N.S.A.

Senior Professor, Philippine Judicial Academy Formerly an Associate Justice of the Supreme Court of the Philippines
Volume I
Second Edition 2006
Published & Distributed by
856 Nicanor Reyes, Sr. St. Tel. Nos. 736-05-67 735-13-64 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 735-55-34 Manila, Philippines www.rexinteractive.com i
Philippine Copyright, 2006 by JOSE C. VITUG
ISBN 978-971-23-4553-1
No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same.
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CIVIL LAW INTRODUCTORY CHAPTER

In its generic sense, civil law is understood to be that branch of law governing the relationship of persons in respect of their personal and private interests. Civil law in the Philippine setting is closely identified with the Civil Code of the Philippines. Thus viewed, civil law may be defined as being that part of private law governing human and family relations; private property, ownership and its incidents; and contractual and non-contractual private obligations. Civil Law and Common Law Distinguished In theory at least, sharp distinctions may be said to exist between the Civil Law and Common Law systems. Civil law is often referred to as statutory law and common law as judge-made law. In point of fact, however, written laws have been known to exist in England and in the countries where the law of England is widely adopted even well before the start of codifications in most of continental Europe. Much of the Anglo-American law is, in reality, contained in statutes or in codes. Again, there is, supposedly, greater adherence by common law courts than civil law courts to judicial precedents that so evolve as law until the legislature deems it fit to change the norms set by the courts. Whereas, in civil law, courts officially are free to adjudge each legal issue regardless of how other courts have therefore resolved the application of the law; in practice, however, the role of stare decisis has discernibly been the
1
CIVIL LAW The Civil Code of the Philippines
same in both systems. Common law courts, on the one hand, have often deviated from an otherwise strict observance of judicial precedents by a rather expedient justification that no two cases are alike, and civil courts, on the other hand, have shown an inclination towards a respect for precedents for doctrinal consistence and stability. The real distinction, in actuality, seems to lie on how the systems would initially react or respond to a changing milieu. In common law countries, the traditional responsibility has for the most part been with the judges; in civil law countries, the task is primarily reposed on the lawmakers. Contemporary practices, however, indicate a trend towards centralizing that function to professional groups that may, indeed, see the gradual assimilation in time of both systems. The Philippine legal system is a mixture of civil law and common law. The strong influence of civil law brought about by the four centuries of Spanish domination is still reflected in the strict adherence to statute law. So, also, however, the extensive infusion of common law into the system has resulted in the recognition of common law powers to judges and a statutory mandate that their decisions form part of the law of the land (Article 8, Civil Code). Common law has thus been the expression, after the implantation of American sovereignty in the Islands, that Philippine courts are not only courts of law but also courts of equity (U.S. vs. Tamparong, 31 Phil. 321; Rustia vs. Franco, 41 Phil. 280; Asian vs. Jalandoni, 45 Phil. 296; Alonzo vs. Padua, 150 SCRA 259). Civil Code of the Philippines The Civil Code of the Philippines, which took effect on 30 August 1950 (Lara vs. del Rosario, 94 Phil. 778), was mostly patterned after and primarily based on the Civil Code of Spain, made effective in the country on 08 December 1889 (Mijares vs. Neri, 3 Phil. 195), which, in turn, was in many parts the Code Napoleon.
INTRODUCTORY CHAPTER
The Civil Code covers a preliminary title (Effect and Application of Laws and Human Relations) and four books, i.e., Book I Persons; Book II Property, Ownership, and its Modifications; Book III Different Modes of Acquiring Ownership and Book IV Obligations and Contracts, including titles on Extra-Contractual Obligations (basically, quasi-contracts and quasi-delict), Damages and Concurrence and Preference of Credits. The Family Code of the Philippines The Family Code of the Philippines (Executive Order No. 209, issued on 6 July 1987, as amended by Executive Order No. 227 of 17 July 1987), made effective on 3 August 1988, has introduced significant changes on the 1950 Civil Code provisions governing marriages, the personal and property relations of the spouses, paternity and filiation, adoption and, in general, the rights and duties appurtenant to family relations.
THE CIVIL CODE OF THE PHILIPPINES

PRELIMINARY TITLE
Chapter 1 Effect and Application of Laws Article 1. This Act shall be known as the Civil Code of the Philippines. (n) Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines unless it is otherwise provided. (As amended by E.O. 200) Art. 3. Ignorance of the law excuses no one from compliance therewith. (2) Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. (3) Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. (4a) 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 with a right recognized by law. (4a) Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
4
Arts. 8-16
PRELIMINARY TITLE
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a) Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (n) Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (n) Art. 11. Customs which are contrary to law, public order, or public policy shall not be countenanced. (n) Art. 12. A custom must be proved as a fact, according to the rules of evidence. (n) Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights, from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. (7a) Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a) Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the
Arts. 1-18
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (16a)
1.
Sources and Application of Laws
The sources of laws, in the following order of preponderant application, include: (a) the Constitution of the Philippines; (b) statutory enactments; (c) administrative or executive acts, orders and regulations; (d) judicial decisions; and (e) customs when proven and not contrary to law, public order or public policy (see Arts. 2-12, Civil Code; see also Chartered Bank Employees Association vs. Ople, 138 SCRA 273; Floresca vs. Philex Mining Corporation, 136 SCRA 141). In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly defined, the estab-
Arts. 1-18
PRELIMINARY TITLE
lished pattern, however, would show a leaning towards the dualist model. The Constitution exemplified by its incorporation clause. (Article II, Section 2), as well as statutes such as those found in some provisions of the Civil Code and of the Revised Penal Code, would exhibit a remarkable textual commitment towards internalizing international law. The Supreme Court itself has recognized that the principle of international law are deemed part of the law of the land as a condition and as a consequence of our admission in the society of nations. The principle being that treaties create rights and duties only for those who are parties thereto pacta tertiis nec nocre nec prodesse possunt it is considered necessary to transform a treaty into a national law in order to make it binding upon affected state organs, like the courts, and private individuals who could, otherwise, be seen as nonparties. The US-RP Extradition Treaty in particular undoubtedly affects not only state organs but also private individuals as well. It is said that, in treaties of this nature, it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon said subjects either by incorporation or transformation. Article 2, Section 2, of the 1987 Philippine Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a states treaty obligations. Pacta sunt servanda is the foundation of all coventional international law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential. Existing legislation contrary to the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into effect. The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of treaty law into municipal law.
Arts. 1-18
In preserving harmony between treaty law and municipal law, it is submitted 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda. As so observed by Fenwick: Legislation passed, or administrative action taken subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be declared so by the appropriate agency of national government. In like manner, in doubtful cases where the national legislation or administrative ruling is open to different interpretations, the courts of the state will give the benefit of the doubt to the provisions of the treaty. A treaty nevertheless, cannot override the Constitution: in case of conflict, the Constitution must prevail. When a controversy calls for a determination of the validity of a treaty in the light of the Constitution, there is no question but that the Constitution is given primary consideration. The deference to the interpretation of the national law by competent organs of a state, was exhibited by the Permanent Court of International Justice in the case of Serbian Loans where it held that the construction given by the Highest Court of France on French law should be followed. When a state, through its government, concludes a treaty with another state, the government of the latter has no reason and is not entitled to question the constitutionality of the act of the former. But this rule does not prevent the government of a state, after having concluded a treaty with another state, from declaring the treaty null and and void because it is made in violation of its constitution. Doctrine of Stare Decisis The doctrine of stare decisis, ordained in Article 8 of the Civil Code, expresses that judicial decisions apply-
Arts. 1-18
PRELIMINARY TITLE
ing or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim legis interpretado legis vim obtinet that the interpretation placed upon the written law by a competent court has the force of law. The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith under the familiar rule of lex prospicit, non respicit. (PESCA vs. PESCA, G.R. No. 136921, 17 April 2001, 356 SCRA 588). General Principles of Law; Role of Equity Under the 1889 Civil Code, courts have been mandated to apply, in the absence of statutes and customs, the general principles of law (Art. 6, Civil Code of 1889; Chu Jan vs. Bernas, 34 Phil. 631). The omission or deletion of that specific provision in the new code must not be deemed as reversing that rule. General principles of law after all are deduced from positive law (and in this sense, become mere applications of positive law) or by natural law and right. Equity is broadly defined as being justice according to natural law and right. Article 10 of the Civil Code expresses that in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail (see also Art. V, Sec. 2, Constitution; Floresca vs. Philex Mining Corporation, supra.). Aptly then, the real office of equity is to correct the deficiency of, and to supplement, positive law growing, as it so does, out of necessity; for the courts may not decline to render judgment by reason of the silence, obscurity, or insufficiency of the laws (Art. 9, Civil Code). The courts will not apply equity if equity would not serve
10
Arts. 1-18
the ends of justice. Neither can equity be invoked absent a legal duty such as when there is but a mere moral obligation that deserves no more than commiseration or sympathy (Rural Bank of Paraaque vs. Remolado, 135 SCRA 409). Supreme Court decisions, however, suggest a growing inclination in the application of equity. A quick glimpse on some illustrative cases may be in point. The Case Republic vs. Court of Appeals (G.R. 79732, 8 November 1993) The strict view considers a legislative enactment which is declared unconstitutional as being, for all legal intents and purposes, a total nullity, and it is deemed as if it had never existed. It is not always the case, however, that a law is constitutionally faulty per se. Thus, it may well be valid in its general import but invalid in its application to certain factual situations. To exemplify, an otherwise valid law may be held unconstitutional only insofar as it is allowed to operate retrospectively such as, in pertinent cases, when it vitiates contractually vested rights. To that extent, its retroactive application may be so declared invalid as impairing the obligations of contracts. A judicial declaration of invalidity, it is also true, may not necessarily obliterate all the effects and consequences of a void act occurring prior to such a declaration. Thus, in the decisions on the moratorium laws, the courts have been constrained to recognize the interim effects of said laws prior to their declaration of unconstitutionality, but there they have likewise been unable to ignore strong considerations of equity and fair play. So also, even as a practical matter, a situation that may aptly be described as fait accompli the Supreme Court added, may no longer be open for further inquiry, let alone to be unsettled by a subsequent declaration of nullity of a governing statute.
Arts. 1-18
PRELIMINARY TITLE
11
Observation Indeed, the trend is no different in Common Law. The Case Carbonell vs. Court of Appeals (69 SCRA 99) As a matter of equity, a possessor in bad faith is entitled to remove useful expenditures made by him, such as for the construction of a bungalow, underground drainage and walled fence, if the lawful possessor, on whose land the construction and installation are made, fails to refund the expenses therefor, applying by analogy the provisions of Article 549 of the Civil Code on luxury expenditures. Observation The ruling appears to have ignored Article 449 of the Code which explicitly states that he who builds, plants, or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity (see De Guzman vs. Rivera, 4 Phil. 620; Roman Catholic Church vs. Ilocos Sur, 10 Phil. 1; Felices vs. Iriola, 103 Phil. 125). In the case of luxury or ornamental (not useful) improvements, a right of removal is granted to the possessor in bad faith (Art. 549, Civil Code). The Case New Pacific Timber and Supply Co. vs. Seeris (101 SCRA 686) The object of certifying a check as regards the parties is to enable the holder to use it as money. When the holder procures the check to be certified, such certification operates as an assignment of funds to the creditor conformably with the proviso in Section 63 of the Central Bank Act to the effect that a check cleared and credited to the account of the creditor shall be equivalent to delivery in cash. Thus, there is no justification in the creditors refusing payment by a certified check (tendered by the judgment debtor) and in the lower courts proceeding with its levy on execution.
12
Arts. 1-18
Observation It would seem that Section 63, aforecited, merely refers to a situation where the payor and the payee both have accounts with the certifying bank that could permit an effectual transfer of funds (see also Sec. 188, Negotiable Instruments Law). In any other situation, Article 1249 of the Civil Code, in relation to Republic Act 529, as amended, would permit the discharge of a money obligation only by payment in legal tender, or in check or other mercantile documents, if accepted by the creditor, upon their being cashed or when through the fault of the creditor they are impaired (Cuaycong vs. Rius, 47 O.G. 6125). Subsequent decisions do reiterate that checks, whether cashier or ordinary, are not legal tender (see Roman Catholic Church vs. Court of Appeals, G.R. No. 72110, 16 November 1990; Fortunato vs. Court of Appeals, 196 SCRA 769). In Leticia Co. vs. Philippine National Bank (114 SCRA 842), the Court upheld a tender of a redemption price in a managers check, on the ground that the objection to the payment by check was waived when in its letter of rejection, the creditor bank did not invoke the objection. But the Supreme Court went beyond this justification saying that this Court had already sanctioned redemption by check citing Javellana vs. Mirasol (40 Phil. 761) without adverting that, in Mirasol, the same Court (op. cit., at p. 770) expressly conceded that it should go without saying that if he had seen it fit to do so, the officer could have required payment to be made in lawful money. The Case Overseas Bank vs. Court of Appeals (105 SCRA 49) It is utterly unfair to require a bank not allowed to operate by the Central Bank to pay stipulated interest on money deposited with it. Judicial notice may be taken of the fact that what enables a bank to pay such interest is its ability to generate funds from its authorized operations.
Arts. 1-18
PRELIMINARY TITLE
13
As a matter of equity, the situation can be denominated as force majeure. Observation Fortuitous event, by itself, is not to be normally or lightly taken as a mode of extinguishing an obligation but it may trigger off or cause a valid mode that ordinarily can excuse the obligor from an existing obligation. Thus, in an obligation to give, if the thing is lost, or in an obligation to do, if the act or service becomes impossible or so extremely difficult as to be beyond the contemplation of the parties, due to a fortuitous event, the obligors obligation may be extinguished. In the cited case, the obligation is one to pay the stipulated interest, and the object (money) of the obligation being generic, loss as a mode of extinguishing an obligation would be inapplicable under the principle genus nunquam perit (see Arts. 1262, 1263, 1266, 1267, 1173, 1174 of the Civil Code). In rather strong language, the Supreme Court in LTB vs. Manabat (58 SCRA 650) has declared that unforeseen difficulties are not grounds for reneging upon a contract. The Case Hermanos vs. Saldana (55 SCRA 342) In two separate contracts for the sale of two lots in a subdivision to the same buyer, who defaulted in both contracts but where the total payment could cover one lot, the seller was ordered to execute one absolute deed of sale to cover one lot. Observation Contracts have the force of law between the contracting parties, and they are bound not only to the fulfillment of what might have been stipulated but also to its consequences (Arts. 1159, 1315, Civil Code). A failure of due compliance by a party to a contract renders him liable for causes attributable to him; upon the other
14
Arts. 1-18
hand, if the non-fulfillment is brought about by circumstances beyond his control, then he may not be held responsible therefor (see Arts. 1170-1174, Civil Code). Certainly, courts may not substitute their own judgment for that of the parties, and neither may the courts modify the agreement of said parties without thereby violating, among other principles, the rule on consensuality of contracts. The Case Caram vs. Laureta (103 SCRA 7) In a double sale of the same registered land, the Supreme Court declared one as valid and the other as void (as a matter of practical justice and convenience) despite the absence of such declaration of complete nullity by either Article 1409 or Article 1544 of the Civil Code, in order, the Court said, to define once and for all the rights of all parties concerned and to cut off all rights under the contract declared void. Observation What then would be the remedy of the vendee under the void contract? If it were not declared void, the buyer of the defective sale would have had ample legal remedies against the seller. Some of the statutory provisions that could be invoked by said buyer include Article 1191 on resolution of contracts, articles 1545 and 1553-1556 on implied warranties in sales, and articles 1916-1917 on agency, of the Civil Code. But why should these legal remedies be cut-off? The Case J.M. Tuason vs. Court of Appeals (94 SCRA 413) One who purchases real property with knowledge of defect or lack of title of the vendor or of facts that should have put him to inquiry is not in good faith; and not being so, the vendee is not entitled to warranty against eviction nor to damages.
Arts. 1-18
PRELIMINARY TITLE
15
Observation Mere knowledge by the vendee of the defect of title of the vendor (who need not even have title at the time of perfection of the contract) does not render the vendors implied warranties to become ineffectual. Even a waiver of eviction does not totally exempt the vendor from liability and he would still have to account for the value of the thing at the time of eviction (Art. 1554, Civil Code). It is only a waiver with knowledge of the risk of eviction and assumption of its consequences (intencionada, as distinguished from consciente) that may altogether exempt the vendee from liability (Art. 1554, ibid.). Equity Follows the Law Early decisions of the Supreme Court closely adhered to the equity follows the law maxim (Severino vs. Severino, 44 Phil. 343; Labayan vs. Talisay Silay Milling Co., 52 Phil. 445). The correct rule seems to be that where conflict situations are well defined and capable of being resolved by the application of legal principles, the latter must not be permitted to be overridden by, or unsettled, in equity. It is in this context that Article 10 of the Civil Code should be understood when it expresses that in case of doubt in the interpretation and application of laws, it is to be presumed that the lawmaking body intended right and justice to prevail. Doubt in this article does not mean every uncertainty that may arise upon a first reading of a legal provision; rather, it is to be understood as an uncertainty that persists after thorough consideration not only of one principle but also of all the statutory rules and provisions taken together as parts of an organic system, and a doubt that remains after exhaustive resort to all accepted precepts of statutory construction and after careful inquiry into the legislative policy that the applicable laws seek to subserve. Hence, equitable principles must remain subordinate to positive law (Teodoro vs. Court of Appeals, G.R. No. 46955, 27 February 1989), and should not be allowed to subvert it,
16
Arts. 1-18
nor do they give to the Courts authority to make it possible for them to do so (see Am. Jur. 2d 645; Arsenal vs. Intermediate Appellate Court, 143 SCRA 40). Equity cannot supplant but may only supplement the law (see Aguila vs. Court of First Instance, 160 SCRA 352). It is the sworn duty of the judge to apply the law without fear or favor never to tamper with it according to the judges personal inclination (Llamado vs. Court of Appeals, G.R. No. 84850, 29 June 1989; Go vs. AntiChinese League, 84 Phil. 468), for the courts are duty bound to interpret and apply laws regardless of whether or not they are wise and salutary (Quinto vs. Lacson, 97 Phil. 290). But where there is a doubt on the proper application of the law, that which saves rather than destroys is to be preferred (Borromeo vs. Court of Appeals, 47 SCRA 65), and practical and substantial justice subordinates sophisticated tidisicalitus (Sarabia vs. Secretary of Agriculture, 103 Phil. 151; Potenciano vs. Court of Appeals, 104 Phil. 156). In what may be considered a landmark pronouncement is the following statement of the Supreme Court, speaking through Justice Isagani Cruz, in Alonzo vs. Padua, 150 SCRA 259, thus The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and of justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic. xxx More than twenty years ago, Justinian defined justice as the constant and perpetual wish to render every one his due. That wish continues to motivate this Court when it assesses the facts and the law in
Arts. 1-18
PRELIMINARY TITLE
17
every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrant, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this case. The ruling is reiterated in Pangan vs. Court of Appeals (166 SCRA 375). In another case (Agcaoili vs. Government Service Insurance System, 165 SCRA 1), the Court has said that it may, in the exercise of equity jurisdiction, adjust the rights of the parties in accordance with the circumstances obtaining upon the rendition of the judgment when the standing of the parties have so changed by the long pendency of their dispute that renders it inequitous to adhere to the rights and obligations of the parties accruing at the time of their generation. 2. Binding Effects of Laws
A) In General Laws take effect after fifteen days following the completion of their publication in the Official Gazette and apply prospectively thereafter (Development Bank of the Philippines vs. Court of Appeals, 116 SCRA 636), unless such laws provide the contrary (Arts. 2 and 4, Civil Code; Puzon vs. Abellera, 169 SCRA 789). In Taada vs. Tuvera (136 SCRA 27), the petitioners sought a writ of mandamus to compel respondent officials to publish and/or cause the publication in the Official Gazette of various presidential decrees, letters of instruction, general orders, proclamations, and other types of presidential issuance. The respondents contended that publication in the Official Gazette was not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. They submitted that, since the presidential issuance in question had contained special provisions as to the date they were to take effect, publication in the Official Gazette
18
Arts. 1-18
was not indispensable for their effectivity. They cited Article 2 of the Civil Code to the effect that: Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, x x x. The Supreme Court ruled: The interpretation given by respondents is in accord with this Courts construction of said article. In a long line of decisions, this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication but not when the law itself provides for the date when it goes into effect. Respondents argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. In its resolution on the motion for a reconsideration (Taada vs. Tavera, 146 SCRA 446), however, the Supreme Court ruled: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Admi-
Arts. 1-18
PRELIMINARY TITLE
19
nistrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to fill in the details of the Central Bank Act which that body is supposed to enforce. However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in the petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code. We agree that the publication must be in full x x x (and) the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., with Secretary Tuvera), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was published by the Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law. xxx
20
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WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code. Executive Order No. 200, dated 18 June 1987, provides for the publication of laws either in the Official Gazette or in a newspaper of general circulation in the Philippines as being a requirement for their effectivity; thus SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. SECTION 2. Article 2 of the Republic Act No. 386, otherwise known as the Civil Code of the Philippines, and all other laws inconsistent with this Executive Order are hereby repealed or modified accordingly. Unpublished Ministry Rules and Regulations, said the Court in Joint Ministry of Health and Ministry of Labor vs. Court of Appeals (196 SCRA 263), are inoperative (but see previous case of Manila Resource Development Corporation vs. National Labor Relations Commission, G.R. No. 80586, 03 May 1989). There is no law, however, requiring the publication of Supreme Court decisions before they can be binding. Neither is such publication required in the case of customs administrative orders to Bureau of Customs employees (De Roy vs. Court of Appeals, 157 SCRA 757; Yaokasin vs. Commissioner of Customs, G.R. No. 84111, 22 December 1989). Retroactivity would be unconstitutional if it amounts to an impairment of contract or an ex post facto law or bill
Arts. 1-18
PRELIMINARY TITLE
21
of attainder (Art. III, Constitution). Remedial law, being one that neither creates nor curtails vested rights but merely prescribes the procedure and method of enforcement or the redress of such rights, are not covered by the general rule against the retrospective operation of statutes (Castro vs. Sagales, 94 Phil. 208; Bustos vs. Lucero, 81 Phil. 640). Ignorance of the law does not excuse non-compliance with the law of the land (Art. 3, Civil Code), whether civil or penal and whether substantive or remedial (People vs. Balbar, 21 SCRA 1119). This policy is founded not only on expediency and public policy but also on necessity (see Zulueta vs. Zulueta, 1 Phil. 256); otherwise, a convenient shelter from the punitive effects of a disregard of the law would be made easily available. But an honest mistake upon doubtful or difficult questions of law may at times serve as basis for good faith (see Kasilag vs. Rodriguez, 69 Phil. 217). The Civil Code is suppletory to the unrepealed portions of the Code of Commerce and special laws (Art. 18, Civil Code). The Civil Code, being a law of general application, can be suppletory to special laws and certainly not preclusive of those that govern commercial transactions. Indeed, in its generic sense, civil law can rightly be said to encompass commercial law. Jus civile, in ancient Rome, was merely used to distinguish it from just gentium or the law common to all the nations within the empire and, at some time later, only in contrast to international law. In more recent times, civil law is so referred to as private law in distinction from public law and criminal law. Today, it may not be totally inaccurate to consider commercial law, among some other special laws, as being a branch of civil law. Prohibitive laws concerning persons, their acts or property, and laws which have for their object public order, public policy and good customs, are not rendered nugatory by laws or judgments promulgated, or by
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Arts. 1-18
determinations or conventions agreed upon in a foreign country (Art. 17, 3rd par., Civil Code). Hence, while an aliens capacity to act may be determined by the law of his country, a disqualification to act under Philippine law, being prohibitory in nature, shall apply even to such alien. Acts executed against the provisions of mandatory or prohibitory laws are void, not merely voidable, except when the law itself authorizes the validity thereof (Art. 5, Civil Code). Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law (Art. 6, Civil Code; Gatchalian vs. Delim, 203 SCRA 126). B) Conflict of Laws In a possible conflict of laws situation, the Code groups laws into various categories and establishes the applicable rules therefor. (1) Penal laws and laws of public security and safety. The territoriality rule governs, and it renders obligatory and applicable such laws upon all those who live or sojourn in the Philippines or who are within its territorial jurisdiction subject, however, to the principles of public international law and to treaty stipulations (Art. 14, Civil Code; Perkins vs. Dizon, 69 Phil. 186). (2) Laws relating to family rights and duties, or to the status, condition and legal capacity of persons. The nationality rule applies, and it renders such laws binding upon citizens of the Philippines regardless of their residence (Art. 15, Civil Code; Tenchavez vs. Escano, 15 SCRA 355). Reciprocally, an alien is governed on these matters by the law of his country (Recto vs. Harden, 100 Phil. 407). The domiciliary theory (law of domicile) supplants the nationality theory in the cases involving stateless persons (Koh vs. Court of Appeals, 70 SCRA 298).
Arts. 1-18
PRELIMINARY TITLE
23
Renvoi Doctrine Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the latter (law of the forum) shall apply. This rule has been adopted in the Philippines (Aznar vs. Garcia, 7 SCRA 95). The doctrine would be pertinent if a person is a national of one country but is domiciled in another. Thus, a resident alien under the Philippine nationality rule should be governed by the law of his own country, but if under the latter law the domiciliary theory prevails, then the laws of the Philippines where such alien is a resident of shall apply. If the foreign law refers to a third country, the laws of the said country shall govern; this situation is a variety of the renvoi doctrine, and it is a times referred to as the transmission theory. Doctrine of Processual Presumption The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such law shall be presumed to be exactly the same as the law of the forum (Collector vs. Fisher, 1 SCRA 93; Board Commissioners vs. De la Rosa, 197 SCRA 858). (3) Laws on property. The principle of lex rei sitae generally applies; hence, real property, as well as personal property, is subject to the law of the country where it is situated. In respect, however, to testamentary and intestate succession both as regards the order of succession, the amount of successional rights and intrinsic validity of last wills and testament, as well as capacity to succeed, the national law of the person whose succession is under consideration shall regulate such succession regardless of the nature of the property or the place wherein said property is found (Arts. 16 and 1039, Civil Code; Philippine Commercial and Industrial Bank vs. Escolin, 56 SCRA 266). A provision in an aliens will that successional rights to his estate shall be governed by the Philippine law has been held to be void (see Bellis vs. Bellis, 20 SCRA 358).
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The ancient maxim mobilia sequuntur personam yields to the established fact of legal ownership, actual presence and control over the property (see Wells Fargo Bank & Union Trust Co. vs. Collector, 70 Phil. 325). (4) Laws on forms and solemnities. The rule of lex loci celebrationis generally governs forms and solemnities of contracts, wills and other public instruments. When, however, said acts are executed before Philippine diplomatic or consular officials in a foreign country, the forms and solemnities established by the Philippine laws shall be observed (Art. 17, Civil Code; German & Co. vs. Donaldson, Sim & Co., 1 Phil. 63). Also, a stipulation by the parties to a contract providing for a different rule may be valid, such stipulation not essentially being, or to the extent that it is not, contrary to law, morals, good customs, public order and public policy. Article 17 of the Civil Code refers only to forms and solemnities; hence, on the performance of a contract, for instance, the lex loci solutionis (law of consummation) will instead apply. Gaining some popularity is the ecclectic theory that would dissect the juridical act or a series of juridical acts and thenceforth apply the lex situs principle to each of the elements thereof. The governing law, illustrated. To illustrate the foregoing rules, John, an American, while sojourning in the Philippines married Marsha, a Philippine citizen. A few hours after the wedding ceremony, the couple departed for the United States where they took residence. A few years later, John and Marsha were divorced upon the latters petition. John and Marsha, shortly thereafter, each married their respective new-found loves. Marsha and her new American husband Peter took residence in the Philippines. Marsha retained her Philippine citizenship until she died in the Philippines, leaving substantial property in the Philippines and abroad. She had no surviving relatives except Peter and/or John.
Arts. 1-18
PRELIMINARY TITLE
25
From a strictly legal standpoint, the governing or applicable law might be summarized, as follows. (1) Formalities of marriage. The laws of the country where the marriages are celebrated govern. (2) Validity of the divorce. Philippine law applies insofar as Marsha is concerned and U.S. law as regards John (see Pilapil vs. Judge Somera, G.R. No. 8016, 30 June 1989). Since Philippine law does not allow divorce, in its contemplation Marsha has remained married to John, but John has ceased to be married to Marsha. Marshas marriage to Peter is considered void under Philippine law but valid under U.S. law. The second paragraph of Article 26 of Family Code is inapplicable to Marsha since she herself has sought the divorce (see Article 26, Family Code, as amended by E.O. No. 277). In the case of a mixed marriage (between a Filipino citizen and a foreigner), the second paragraph (introduced by E.O. No. 227, dated 17 July 1987) of Article 26 of the Family Code states that if such marriage is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating said spouse to remarry, the Filipino spouse shall likewise have capacity to marry. Evidently, this amendatory provision is intended to avoid the absurdity of the Filipino still being married to an alien who, under the latters law, is no longer married to the Filipino spouse. Significantly, the amendment has been confined to a case where the alien, not the Filipino, spouse has sought the divorce. (3) Crime of bigamy. Being penal in nature, a charge for bigamy under the Revised Penal Code cannot be initiated since Marshas second marriage took place outside the Philippines. (4) Crime of adultery. Subject to available defenses and the rules on private crimes, Marsha could be subject to a possible charge of adultery by her openly living with Peter in the Philippines.
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(5) Successional rights. The matter of successional rights over the estate of Marsha shall be determined under Philippine law. John, not Peter, is technically the legal heir subject to his capacity to succeed as determined by the law of his country. In resolving the foregoing or like issues, however, one must not totally lose sight of what could, in fact, be apposite legal principles. Thus, in the above problem, one or both of the spouses who may have been guilty or responsible for seeking and obtaining the divorce, may not later be permitted to take a position opposed to their earlier action or representations. This principle could have well been the rationale of the Supreme Court decision in Alice Reyes Van Dorn vs. Hon. Manuel Romillo and Richard Upton (139 SCRA 139). In Van Dorn, the petitioner, a Filipino citizen, married the private respondent, a citizen of the United States, in Hong Kong in 1972. Thereafter, they established residence in the Philippines. The parties were divorced in Nevada in 1982. In 1983, respondent filed a suit against the petitioner in the Regional Trial Court of Pasay, stating that petitioners business in Ermita was conjugal property of the parties. Respondent asked for an accounting and that he be declared with right to manage the conjugal property. The petitioner moved to dismiss, which was denied. The petitioner went to the Supreme Court, which then ruled: The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush St., San Francisco, California, authorized his attorneys in the divorce case, Karp & Grade, Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. x x x
Arts. 1-18
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27
x x x In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. x x x Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. Enforcement of Foreign Judgments Generally, in the absence of a special compact, no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country; however, the rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. In this jurisdiction, a valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties and the underlying cause of action are concerned so long as it is convincingly shown that there has been an opportunity for a full and fair hearing before a court of competent jurisdiction; that trial upon regular proceedings has been conducted, following due citation or voluntary appearance of the defendant and under a system of jurisprudence likely to secure an impartial administration of justice; and that there is nothing to indicate either a prejudice in court and in the system of laws under which it is sitting or fraud in procuring the judgment. A foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of proceedings and the giving of due notice in the foreign forum. There is a principle of international comity that a court of another jurisdiction should refrain, as a matter
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Arts. 19-22
of propriety and fairness, from so assuming the power of passing judgment on the correctness of the application of law and the evaluation of the facts of the judgment issued by another tribunal. Fraud, to hinder the enforcement within this jurisdiction of a foreign judgment, must be extrinsic, i.e., fraud based on facts not controverted or resolved in the case where judgment is rendered, or that which would go to the jurisdiction of the court or would deprive the party against whom judgment is rendered a chance to defend the action to which he has a meritorious case or defense. In fine, intrinsic fraud, that is, fraud which goes to the very existence of the cause of action such as fraud in obtaining the consent to a contract is deemed already adjudged, and it, therefore, cannot militate against the recognition or enforcement of the foreign judgment. Courts do not function to relieve a party from the effects of an unwise or unfavorable contract freely entered into (Philippine Aluminum Wheels, Inc. vs. Fasgi Enterprises, Inc., G.R. No. 137378, 12 October 2000, 342 SCRA 722).
Chapter 2 Human Relations (n) Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damages. Art. 22. Every person who through an act of performance by another, or any other means, acquires or
Arts. 23-27
PRELIMINARY TITLE
29
comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 23. Even when an act or event causing damage to anothers property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. 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, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. 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, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) dence; Prying into the privacy of anothers resi-
(2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. 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
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Arts. 28-32
the latter, without prejudice to any disciplinary administrative action that may be taken. Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. Art. 29. When the accused in a criminal prosecution is acquitted on the 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 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. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. Art. 31. When the civil action is based on an obligation arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) (2) Freedom of religion; Freedom of speech;
Art. 32
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31
(3) Freedom to write for the press or to maintain a periodical publication; (4) (5) Freedom from arbitrary or illegal detention; Freedom of suffrage;
(6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws;
(9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf; (17) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;
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Arts. 33-35
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendants 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 for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. 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 statute. Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. 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, such peace officer shall be primarily liable for damages, and the city or 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. Art. 35. When a person, claiming to be injured by a criminal offense, charges 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
Arts. 19-36
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33
reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendants 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. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Art. 36. Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code.
1.
The Golden Rule in Law
The cardinal law on human conduct has been expressed in Article 19 of the Civil Code, thusly: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. This mandate has also made its mark in the 1973 (but was somehow lost in the 1987) Constitution in these words: Sec. 2. The rights of the individual impose upon him the correlative duty to exercise them responsibly and with due regard for the rights of others. (Art. V) The elements of abuse of right under Article 19 are: (1) the existence of a legal right or duty, (2) which is exercised in bad faith, and (3) for the sole intent of prejudicing or injuring another (ABS-CBN Broadcasting Corp. vs. Court of Appeals, 102 SCAD 459, 301 SCRA 572). While this article, in essence, may have been intended as
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a mere declaration of principle (Velayo vs. Shell Company, Ltd., 100 Phil. 186), accepted rules, nevertheless, have been derived therefrom: a. Where a person exercises his rights or perform his duties, observing the above legal mandate, but still causes damage to another (1) if the actor benefits thereby, possible liability, but not beyond such benefit and damage, might ensue on the basis of equity in the absence of any specific provision of law expressly governing the case (see discussion on Equity as a source of law, supra.). (2) if the actor does not benefit thereby, no liability is created and the case comes within the purview of the old maxim damnum absque injuria. b. Where a person exercises his rights but does so arbitrarily or unjustly or so performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability (see Sanchez vs. Rigos, 45 SCRA 368; Philippine National Bank vs. Court of Appeals, 83 SCRA 237). The principle is expressed in what may be termed as the abuse of right rule or suum jus summa injuria; to exemplify, while it is recognized that generally the principal may terminate an agency, the agent may, however, recover damages if the termination has been done whimsically (see Llorente vs. Sandiganbayan, 202 SCRA 309). The act of a creditor in refusing payment in installments and consequently filing a collection case against the debtor cannot be considered violative of the principles embodied in Article 19 and Article 21 of the Civil Code, where it is shown that the refusal has not been prompted by bad faith but by the need to preserve the creditors cash position in order for it to pay for its own obligations (Barons Marketing Corporation vs. Court of Appeals, 91 SCAD 509, 286 SCRA 96).
Arts. 19-36
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35
2.
Rule on Unjust Enrichment
Normally, the liability of a person for damages is created by his failure, fault or negligence. The principle of unjust enrichment is an exception, where only two conditions would generally need to concur in order that the rule could apply, viz.: (a) that a person is benefited without a valid basis or justification, and (b) that such benefit is derived at anothers expense or damage (see Arts. 22, 23, and 2142, Civil Code). There is no unjust enrichment where a person receiving the benefit has a legal right or entitlement thereto (Pascual vs. Court of Industrial Relations, 88 SCRA 645) or where there is no causal relation between the ones enrichment and the others impoverishment. The rules on unjust enrichment can apply equally well to the government (Republic vs. Court of Appeals, 31 May 1978). 3. Liability for Fault or Negligence
The provisions of articles 20 and 21 of the Civil Code illustrate possible liability of persons because of fault or negligence (see Manila Gas Corp. vs. Court of Appeals, 100 SCRA 60; Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778). There is no requirement under Article 20 that the act must be directed at a specific person, but it suffices that a person suffers damage as a consequence of a wrongful act of another in order that indemnity could be demanded from the wrongdoer (PETROPHIL Corp. vs. Court of Appeals, G.R. No. 122796, 10 December 2001). Article 21 can serve as a legal basis for the recovery of damages against a person guilty of fault or negligence absent an explicit provision of law or contractual stipulation on the matter. In a corporation, the by-laws, not Article 21 of the Civil Code, govern the relations of the members among themselves (Tavera vs. Phil. Tuberculosis Society, 12 SCRA 243).
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Article 21 of the Code, it should be observed, contemplates a conscious act to cause harm. Thus, even if we are to assume that the provision could properly relate to a breach of contract, its application can be warranted only when the defendants disregard of his contractual obligation is so deliberate as to approximate a degree of misconduct certainly no less worse than fraud or bad faith. Most importantly, Article 21 is a mere declaration of a general principle in human relations that clearly must, in any case, give way to the specific provision of Article 2220 of the Civil Code authorizing the grant of moral damages in culpa contractual solely when the breach is due to fraud or bad faith (Far East Bank and Trust Company vs. Court of Appeals, Luis A. Luna and Clarita S. Luna, G.R. No. 108164, 23 February 1995, 241 SCRA 671). In Manila Electric Co. vs. Court of Appeals (157 SCRA 243), however, the Supreme Court has held the possibility of a breach of contract as one that might amount to an independent tort and as allowing the application of Article 21 of the Code. There, Meralco, without giving a 48hour notice, disconnected its lines to private respondents house on the ground that respondents were in arrears. The respondents filed an action for moral damages which the court granted. The decision was affirmed by the Court of Appeals. The petitioners went to the Supreme Court, contending that failure to give notice might have been a breach of duty or breach of contract but it did not constitute bad faith so as to justify the award of moral and exemplary damages. The Court held that the petitioners act in disconnecting respondents gas service without prior notice constituted breach of contract amounting to an independent tort. The pre-maturity of the action was held indicative of an intent to cause additional mental and moral suffering to private respondent and a clear violation of Article 21 of the Civil Code. Intentional torts, like those envisioned in articles 21, 26, 28 and 32, can give rise to a cause of action for
Arts. 19-36
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37
damages but, following the principles on tort liability, the claimant must be able to establish that he has suffered personal damages or injury as a direct consequence of the wrongful conduct of the defendant. Civil actions referred to in Article 26 are based on tort liability under common law and require the plaintiff to establish that he has suffered personal damage or injury as a direct consequence of the defendants wrongful conduct. It must be shown that the act complained of is vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latters dignity and honor. Defined in simple terms, vexation is an act of annoyance or irritation that causes distress or agitation (Blacks Law Dictionary, 6th Ed., p. 1565). Early American cases have refused all remedy for mental injury, such as one caused by vexation, because of the difficulty of proof or of measurement of damages (Prosser and Keeton on Torts, 5th Ed., p. 55). In comparatively recent times, however, the infliction of mental distress as a basis for an independent tort action has been recognized. It is said that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress (Restatement [Second] of Torts, p. 46). Nevertheless, it has also been often held that petty insult or indignity lacks, from its very nature, any convincing assurance that the asserted emotional or mental distress is genuine, or that if genuine it is serious (Prosser and Keeton, supra., p. 59). Accordingly, it is generally declared that there can be no recovery for insults (Slocum vs. Food Fair Stores of Florida, Inc., Fla. 1958, 100 So. 2d 396), indignities or threats (Tafts vs. Taft, 1867, 40 Vt. 229) which are considered to amount to nothing more than mere annoyances or hurt (Wallace vs. Shoreham Hotel Corp., Mun. App. D.C. 1946, 49 A2d 81). At all events, it would be essential to prove that personal damage is directly suffered by the plaintiff on account of the wrongful act of the defendant.
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A kindred concept, albeit of greater degree of perversity, defamation, broadly defined, is an attack on the reputation of another, the unprivileged publication of false statements which naturally and proximately result in injury to another. It is that which tends to diminish the esteem, respect, goodwill or confidence in which a person is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him (Blacks Law Dictionary, 6th Ed., p. 417). Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff (Prosser and Keeton, supra., p. 771). The Revised Penal Code itself provides an instructive definition of libel as being a form of defamation expressed in writing, print, pictures, or signs (see Art. 355, Revised Penal Code), to wit: A libel is a public and malicious imputation of a crime, or vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead (Art. 353, Revised Penal Code). In order that defamatory words can be actionable in court, it is essential that they are personal to the party maligned, an ascertained or ascertainable individual (Borjal vs. Court of Appeals, 301 SCRA 1; Corpus vs. Cuaderno, Sr., 16 SCRA 807; Kunkle vs. Cablenews American, 42 Phil. 757). It is only then that plaintiff s emotions and/or reputation can be said to have been injured; thus, the plaintiff, to recover, must show that he or she is the person to whom the statements are directed (50 Am Jur 2d [1995], p. 674). Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the bill of rights (Sec. 4, Art. III, 1987 Constitution).
Arts. 19-36
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39
If an article, for instance, states that judges in the Philippines are corrupt, such a general condemnation cannot reasonably be interpreted to be pointing to each judge or to a certain judge in the Philippines. Thus, no particular magistrate can claim to have been disgraced or to have sustained an impaired reputation because of that article. If, on the other hand, the article proclaims that judges in Metro Manila are corrupt, such statement of derogatory conduct now refers to a relatively narrow group that might yet warrant its looking into in an appropriate suit. And if the article accuses the Justices of the Supreme Court of corruption, then there is a specific derogatory statement about a definite number of no more than fifteen persons. Jurisprudence would appear to suggest that in cases permitting recovery, the group generally has 25 or fewer members (Restatement [Second] of Torts 564A comment b [1977]). When statements concern groups with larger composition, the individual members of that group would be hardput to show that the statements are of and concerning them (50 Am Jur 2d, [1995], p. 675). Although no precise limits can be set as to the size of a group or class that would be sufficiently small, increasing size, at some point, would be seen to dilute the harm to individuals and any resulting injury would fall beneath the threshold for a viable lawsuit (Neil J. Rosini, The Practical Guide to Libel, citing Brady vs. Ottaway Newspapers, Inc., 84 A.D. 2d 229). This principle is said to embrace two important public policies: 1) where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and 2) the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases (50 Am Jur 2d, [1995], p. 675). Thus, no recovery was allowed where the remarks complained of had been made about correspondence
40
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schools, one school suing (189 F. 86, as cited by Ella Cooper Thomas in The Law of Libel and Slander [New York, 1973], p. 21); or where there was imputation of criminality to a union, one member suing (131 N.Y.S. 680, as cited in The Law of Libel and Slander, supra.); or where an attack was made on Catholic clergymen, one clergyman suing (81 N.E. 459, as cited in The Law of Libel and Slander, supra.). In Newsweek, Inc. vs. Intermediate Appellate Court (142 SCRA 171), the Supreme Court dismissed a class suit for scurrilous remarks filed by four incorporated associations of sugar planters in Negros Occidental in behalf of all sugar planters in that province, against Newsweek, Inc., on the ground, among other things, that the plaintiffs were not sufficiently ascribed to in the article published by the defendant. And so also it was in an older case (Uy Tioco vs. Yang Shu Wen, 32 Phil. 624), where the Court ratiocinated that an article directed at a class or group of persons in broad language would not be actionable by individuals composing the class or group unless the statements were sweeping but, even then, it would be highly probable, said the Court, that no action could lie where the body is composed of so large a number of persons that common sense would tell those to whom the publication was made that there was room for persons connected with the body to pursue an upright and law abiding course and that it would be unreasonable and absurd to condemn all because of the actions of a part. The possible liabilities of public officials in their personal capacity are expressed in articles 27, 32, 34, and 2189 of the Code. Under Article 27, the duty must be particularly owing to the plaintiff (43 Am. Jur. 84). Good faith, under Article 32, may not be a defense against recovery of damages for a violation thereof (Lim, et al. vs. Ponce de Leon, 66 SCRA 299). When two or more persons are responsible for the transgression, directly or indirectly, their liability is similar to that of joint tortfeasers
Arts. 19-36
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41
(see Aberca vs. Ver, 160 SCRA 590). The last paragraph of Article 32 would make a judge liable only if his acts in violation of said article would constitute a violation of a penal law. The liability under Article 2189 has been held to arise only if the public officials acted with malice and in bad faith, or beyond his authority or jurisdiction. Culpable neglect, inefficiency and gross indifference have been held insufficient to warrant that personal liability (Dumlao vs. Court of Appeals, 114 SCRA 247). The doctrine of immunity that shields public officials from personal liability for their official acts has its exceptions. A public officer by virtue of his office alone is not immune from damages in his personal capacity arising from illegal acts done in bad faith. A different rule would sanction the use of public office as a tool of oppression (Tabuena vs. Court of Appeals, 3 SCRA 413, cited in Rama vs. Court of Appeals, 148 SCRA 496). A public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefor like any private individual (Palma vs. Graciano, 99 Phil. 72; Carreon vs. Province of Pampanga, 99 Phil. 808). This principle of personal liability has been applied to cases where a public officer removes or discharges an employee wrongfully on the rationale that when a public officer does so, he would be deemed to be acting without any official mantle of authority (Stiles vs. Lowell, 233 Mass. 174, 123 NE 615, 4 ALR 1365, cited in 63 Am. Jur. 2d. 770, cited in Correa vs. Court of First Instance of Bulacan, 92 SCRA 312). An abolition of office, said the Supreme Court in one case, neither means removal nor separation, and is not thus covered by the constitutional clause on security of tenure, but it carries a caveat that the abolition is done in good faith (Ginson vs. Municipality of Murcia, 158 SCRA 1). The principle of immunity from suit cannot be invoked when the public official acts with malice or in bad faith or beyond the scope of his authority or jurisdiction (Shauf vs. Court of Appeals, G.R. No. 90314, 27 Novem-
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ber 1990; see also Farolan vs. Solmac Mktg. Corp., 195 SCRA 168). 4. Independent Civil Actions
An early established rule under our law is that an act or omission, extra-contractual in nature, causing damage to another, there being fault or negligence can create two separate civil liabilities on the part of the offender, i.e., civil liability ex delicto and civil liability ex quasi delicto. Either one of these two possible liabilities may be sought to be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages twice for the same act or omission or under both causes. Outside of this proscription, the two civil liabilities are distinct and independent of each other; thus, and conversely against the rule on double recovery, the failure of recovery in one will not necessarily preclude recovery in the other. Procedurally, the Revised Rules of Criminal Procedure, while reiterating that a civil action under the Civil Code may be brought separately from the criminal action, provides, nevertheless, that the right to bring it must be reserved. Rule 111 reads in full: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.
Arts. 19-36
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43
A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others. The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. In no case may the offended party recover damages twice for the same act or omission of the accused. When the offended party seeks to enforce civil liability against the accused by way of moral; nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages. In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. Sec. 2. Institution of separate civil action. Except in the cases provided for in Section 3 hereof, after the criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. (a) Whenever the offended party shall have instituted the civil action as provided for in the first paragraph of Section 1 hereof before the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before final judgment it may be found, until final judgment in the
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criminal action has been rendered. However, if no final judgment has been rendered by the trial court in the civil action, the same may be consolidated with the criminal action upon application with the court trying the criminal action. If the application is granted, the evidence presented and admitted in the civil action shall be deemed automatically reproduced in the criminal action, without prejudice to the admission of additional evidence that any party may wish to present. In case of consolidation, both the criminal and the civil actions shall be tried and decided jointly. (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. Sec. 3. When civil action may proceed independently. In the cases provided for in articles 32, 33, 34, and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. In the relatively recent case of San Ildefonso Lines, Inc. vs. Court of Appeals, et al., the Supreme Court has ruled that, notwithstanding the independent nature of civil actions falling under Articles 32, 33, 34 and 2176 of the Civil Code, the right to institute the action must still have to be reserved. In the stern words of the Court: The past pronouncements that view the reservation requirement as an unauthorized amendment to substantive law, i.e., the Civil Code, should no longer be controlling. Essentially, San Ildefonso merely fortifies the procedural rule that unless a reservation is made, the court trying the criminal case would not be precluded from taking cognizance of the civil aspect of the litigation and that, upon the other hand, the other court in the civil case
Arts. 19-36
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45
might, motu proprio or at the instance of a party, hold in abeyance the consideration thereof pending the outcome of the criminal case. In Maniago vs. Court of Appeals, the Court has said that the requirement of reservation is not incompatible with the distinct and separate character of independent civil actions. Indeed, there is no incongruence between allowing the trial of civil actions to proceed independently of the criminal prosecution and mandating that, before so proceeding, a reservation to do so should first be made. In fine a. The civil action is deemed instituted together with the criminal case unless the offended party waives action, reserves the right to institute it separately, or institutes it prior to the criminal action (Sec. 1, Rule 111, Revised Rules of Criminal Procedure; see also Art. 100, Revised Penal Code). The reservation should be made at the institution of the criminal case (Abellana vs. Morave, 87 SCRA 106) or later but before the prosecution starts its presentation of evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation (Rules 111, Revised Rules of Criminal Procedure). No such reservation is allowed in a criminal action for violation of B.P. Blg. 22 (Bouncing Checks Law); the criminal action shall be deemed to include the corresponding civil action. In independent civil actions; not being dependent on the criminal case, the reservation would be required, not for preserving the cause of action but in order to allow the civil case to proceed separately from the criminal action in the interest of good order and procedure. (see Reyes vs. Sempio-Diy, 141 SCRA 208; Jarantilla vs. Court of Appeals, 171 SCRA 429; Castillo vs. Court of Appeals, 176 SCRA 591). The reservation or waiver refers only to the civil action for the recovery of the civil liability arising from the offense charged but not the recovery of civil liability under articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission which may be
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prosecuted separately even without a reservation (DMPI Employees Credit Cooperative, Inc. vs. Judge Velez, G.R. No. 129282, 29 November 2001). When, however, no criminal proceedings are instituted, a separate civil action may be brought to demand the civil liability, and a preponderance of evidence is sufficient to warrant a favorable judgment therefor (Art. 30, Civil Code). The same rule applies if the information is dismissed upon motion of the fiscal (see Calauag vs. Intermediate Appellate Court, 194 SCRA 514). Independent civil actions already filed may still be consolidated in the criminal case before final judgment is rendered in the latter case (Cojuangco vs. Court of Appeals, 203 SCRA 619). b. The pendency of the criminal case suspends the civil action until final judgment is entered in the criminal case, except (1) In independent civil actions, such as those: (a) not arising from the act or omission complained of as a felony (e.g., culpa contractual under Art. 31, intentional torts under Articles 32 and 34 and culpa acquiliana under Article 2176 of the Civil Code); (b) where the injured party is granted a right to file an action independent of and separate from the criminal action (Art. 33, Civil Code); and (2) In the case of prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed (Art. 36, Civil Code) where the civil case may proceed apart from, and regardless of the outcome of, the criminal case. c. An acquittal in the criminal case may bar any further separate civil action, except (1) In independent civil actions, unless the complainant, not having reserved a separate action, has actively participated and intervened in the criminal case (Mendoza vs. Arrieta, 91 SCRA 113; see also Diong Bi Chu vs. Court of Appeals, 192 SCRA 554).
Arts. 19-36
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Such active participation and intervention can only be deemed to be an unequivocal election by the complainant to sue under ex delicto rather than on another cause of action (arising from the same act or omission complained of as ex delicto). If, however, the acquittal is predicated on the ground that guilt has not been proven beyond reasonable doubt, and not upon a finding that the fact from which the civil (action) might arise did not exist, an action for damages can still be instituted (Art. 29, Civil Code; see also Art. 31, Civil Code; Sec. 2, Rules 111, Revised Rules of Criminal Procedure; Gula vs. Dianala, 132 SCRA 245). An old rule was that an acquittal in the criminal case would render inappropriate any civil award by the criminal court (People vs. Javellana, 108 SCRA 601). In the case, however, of Roy Padilla vs. Court of Appeals (129 SCRA 558), the Supreme Court held otherwise. There, the petitioners, municipal mayor and policemen of Jose Panganiban, Camarines Norte, were charged in a criminal case after they allegedly forced open a market stall, demolished it, and carted away the articles found therein. After trial, the court found the accused guilty of grave coercion. The Court of Appeals, however, acquitted them on reasonable doubt but sentenced them to pay damages. The petitioners went to the Supreme Court, contending that where the civil liability included in the criminal action was that arising from the criminal act, an acquittal should negate an award of damages. Said the court: The petitioners were acquitted because these acts were denominated coercion when they properly constituted some other offense such as threat or malicious mischief. x x x More recently, we held that the acquittal of the defendant in the criminal case would not constitute an obstacle to the filing of a civil case based on the same acts which led to the criminal prosecution. xxx
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There appears to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted. (This ruling was reiterated in People vs. Maniego, 148 SCRA 30). Where the complainant reserves his right to proceed with the aspect of civil liability independently from the criminal case, or files a separate civil action prior to the institution of the criminal case (in these instances, the complainant is not permitted to actively participate or intervene in the criminal case), and he predicates his claim not on crime but on a different cause of action such as quasi-delict or ex-contractu, the claim will not be barred by the acquittal of the accused (Lanuzo vs. Sy and Mendoza, 100 SCRA 205; People vs. Castaneda, 122 SCRA 870). A civil action based on breach of obligation is separate and distinct from any criminal liability for misuse and/or misappropriation of goods or proceeds realized from the sale of goods, documents or instruments released under trust receipts, punishable under Section 13 of the Trust Receipts Law (P.D. 115) in relation to Article 315 of the Revised Penal Code, and may thus proceed independently of the criminal proceedings (Lorenzo Sarmiento, Jr. vs. Court of Appeals, G.R. No. 122502, 27 December 2002). (2) In dependent civil actions , where the acquittal is premised on a failure of proof beyond reasonable doubt (see Art. 29, Civil Code). Where acquittal is based on the fact that the crime did not exist or that the offender did not commit the crime, and not on mere quantum of proof, a civil action based on such ex delicto of which the accused is already acquitted would be improper (Sec. 2, Rule 111, Revised Rules of Criminal Procedure; People vs. Javellana, 108 SCRA 601). The records in the criminal case are admissible in evidence in the civil suit; in fact, the court in the
Arts. 19-36
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49
latter case may take judicial notice thereof (Marcia vs. Court of Appeals, 120 SCRA 193). Prejudicial Question A pre-judicial question, in the context of its use in the Civil Code, is an issue raised in a criminal case the final resolution of which in another case by another tribunal, which has the jurisdiction to try and decide that issue, would be determinative of the outcome of the criminal case (see Librado vs. Coscolluela, 116 SCRA 303; Jimenez vs. Averia, 22 SCRA 1380). The elements of a prejudicial question, consistently with Section 7, Rule 111 of the Revised Rules of Criminal Procedure, are (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. The provision is taken from the ruling of the Supreme Court in Prado vs. People (133 SCRA 602) that for a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal. Hence, in a criminal case for bigamy, an action for annulment of the second marriage allegedly because of force or intimidation employed on (not by) the accused may be pre-judicial on the latters guilt or innocence (Zapanta vs. Montesa, 4 SCRA 510; see Umali vs. Court of Appeals, 186 SCRA 680; Donato v. Luna, 160 SCRA 441). The pendency, however, of annulment proceedings of the first marriage will not constitute a prejudicial question even where the supposed innocent party thereto
50
is the accused since the latter should not be permitted to judge for himself, let alone assume, that the first marriage would be annulled. Neither may the guilty party in an annullable marriage plead its being a prejudicial question (People vs. Aragon, 94 Phil. 357). Should the prejudicial question rule apply if the first marriage is void ab initio and a civil case petitioning for such declaration is pending? Article 36 of the Code would be inapplicable since the complete nullity of the marriage may be raised as a defense in the criminal case for bigamy without necessitating any final resolution in the civil case. If acquittal is adjudged, the final result in the civil case would hardly pose any problem, and if, upon the other hand, a judgment of conviction is rendered and the court in the civil case declares the first marriage a complete nullity (which should be entitled to greater respect on the question of a persons civil status than that of the criminal court), a new trial can be in order. Strangely enough, in Mercado vs. Tan (G.R. No. 137170, 01 August 2000, 131 SCAD 128), the Court has enunciated that it is only a judicially decreed prior void marriage which can constitute a defense against a criminal charge for bigamy (see discussion on Art. 40 of the Family Code). While no prejudicial question under Article 36 arises where one is a civil case and the other is an administrative proceeding (see Ocampo vs. Buenaventura, 55 SCRA 267), it has been ruled, however, that where it would be impossible for ordinary courts to resolve an issue (for damages) without first determining a basic issue (legality of the election of labor union officials) within the exclusive jurisdiction of administrative bodies, the hearing in court should be suspended until the final determination of the prejudicial question is made (Guevara vs. Gopengco, 67 SCRA 236). But in La Chemise Lacoste vs. Fernandez and Lermandas (129 SCRA 373), the Supreme Court held that the proceedings pending before the Patent Office involving IPC No. 1658 do not partake of the
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PRELIMINARY TITLE
51
nature of a prejudicial question which must first be definitely resolved. While technically, there is no prejudicial question to really speak of when the cases are civil and administrative, it would be prudent for the court to await the final determination of the administrative case if it would be consequential to the proper resolution of the civil case (see Quiambao vs. Osorio, 158 SCRA 674). In cases involving specialized disputes, the courts, under the doctrine of primate jurisdiction, will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal to consider and resolve (see Saavedra vs. Securities and Exchange Commission, 159 SCRA 57). The rationale behind the principle of prejudicial question is to avoid two conflicting decision (Beltran vs. People, 334 SCRA 106; Spouses Yulienco vs. Court of Appeals, G.R. No. 141365, 27 November 2002) on the same subject matter.
52
BOOK I PERSONS
TITLE I. CIVIL PERSONALITY
Chapter 1 General Provisions Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. (n) Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. (32a) Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. 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 account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n)
52
Arts. 40-44
PERSONS Title I. Civil Personality
53
Chapter 2 Natural Persons Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a) Art. 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mothers womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a) Art. 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a) Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33) Chapter 3 Juridical Persons Art. 44. The following are juridical persons: (1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purposes, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (35a)
54
Arts. 37-47
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. (36 and 37a) Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. (38a) 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 creating them. If nothing has been specified on this point, the property and 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 derived the principal benefits from the same. (39a)
A person is a being, natural or juridical, capable of having rights and obligations. The term civil personality denotes the persons capacity (juridical capacity and capacity to act) for civil life. The State values the dignity of every human person and guarantees full respect for human rights (Art. II, Sec. 11, 1987 Constitution). 1. Juridical Capacity
Juridical capacity (referred to at times as juridical personality or simply as personality) is the fitness to be the subject of legal relations (Art. 37, Civil Code). Juridical capacity is inherent in every natural person, and it is lost only through death (Arts. 37 and 42, Civil Code). Certain rights inhere in or flow from personality (referred to as
Arts. 37-47
55
rights of personality) enjoyed by natural persons to maintain the integrity of his physical, intellectual, and moral attributes. Natural Persons Birth determines personality; a foetus is considered born if it is alive at the time it is completely delivered from the mothers womb. Under the Civil Code, life at birth is an absolute condition for vesting personality. Thus, in Geluz vs. Court of Appeals (112 Phil. 696; 2 SCRA 801): Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its prenatal death, since no transmission to anyone can take place from one that lacked juridical personality (or juridical capacity, as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: provided it be born later with the conditions specified in the following article. In the present case, there is no dispute that the child was dead when separated from its mothers womb. The prevailing American jurisprudence is to the same effect; and it is generally held that recovery cannot be had for the death of an unborn child (Stafford vs. Roadway Transity Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, [2d] 639).
56
Arts. 37-47
This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Art. 2217, Civil Code), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial Court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellees indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilites are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 as attorneys fees, an indemnity claim that, under the circumstances of record, was clearly exaggerated. A new provision of the 1987 Constitution to the effect that the State shall equally protect the life of the mother
Arts. 37-47
57
and the life of the unborn from conception (Art. II, Sec. 12, 1987 Constitution) should compel a statutory and jurisprudential re-examination of the strictissimi juris rule pronounced in Geluz. Provisional Personality The Civil Code presently states that a conceived child shall be considered born for all purposes that are favorable to it, provided that it be born alive or, if the foetus had an intra-uterine life of less than seven months, that it must live for twenty-four hours after its complete delivery from the maternal womb (Arts. 40-41, Civil Code). If the foetus dies within that period, irrespective of the cause whether natural, accidental or intentional, however unfortunate, it shall not be deemed to have attained legal personality (see Geluz vs. Court of Appeals, 2 SCRA 801). Juridical Persons In the case of juridical persons, juridical capacity is granted by law only upon their constitution or legal recognition. The Civil Code declares to be juridical persons the State and its political subdivisions; other corporations, institutions and entities for public interest or purpose, created by law, whose personality begins as soon as they have been constituted according to law; and corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member (Art. 44, Civil Code). Private corporations are granted juridical personality upon the issuance of the Certificate of Registration of the Articles of Incorporation (Sec. 19, Corporation Code). Partnerships, on the other hand, begin to have a personality separate and distinct from that of each of the partners from the time an agreement of partnership is reached by its members (see Art. 1768, Civil Code). It has been said that the estate of a deceased person is impressed with quasi-personality that enables it to
58
Arts. 37-47
acquire juridical capacity (see Limjuco vs. Estate of Flagrante, 45 O.G. [9th Supp.] 397; see also Arts. 46-47, Civil Code). 2. Capacity to Act
Capacity to act is the power to do acts with legal effects; it is acquired and it may be lost (Art. 37, Civil Code). In natural persons, capacity to act is normally enjoyed upon the attainment of majority age (18 years); exceptionally, prior to the enactment of Republic Act No. 6809 which reduced the age of majority from 21 years to 18 years, capacity to act was also granted to minors through emancipation by marriage and voluntary concession (Arts. 234-236, Family Code; see also Arts. 397-406, Civil Code). Once emancipated, the person may enter into juridical relations and sue or be sued without need of parental intervention (see Baliwag Transit, Inc. vs. Court of Appeals, 169 SCRA 849). Circumstances that may restrict capacity to act, besides minority, include insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction. These circumstances, including minority, are mere restrictions on capacity to act and do not necessarily exempt the incapacitated persons from certain obligations such as those arising from his acts or from property relations (Arts. 38, 39 and 1399, Civil Code). Thus, a minor may be estopped by his misrepresentation (Mercado vs. Espiritu, 37 Phil. 215). Where necessaries are sold and delivered to a minor or incapacitated, he must pay a reasonable price therefor (Art. 1489, Civil Code). An infant may be held liable for his tortious conduct, a rule that is preferable than to let the guiltless victim suffer the loss for the wrongful act (see Magtibay vs. Tiangco, 74 Phil. 576). Capacity to act is not limited on account of religious belief or political opinion (Art. 39, Civil Code). Under the Theory of General Capacities, which is applicable to natural persons, one has the ability to do all
Arts. 37-47
59
things with legal effects except only in those specific circumstances where the capacity to act is restrained. In the case of juridical persons, the applicable rule is the Theory of Special Capacities which limits the power of such persons only to those that are expressly conferred upon them or those which can be implied therefrom or are incidental thereto. Effects of Incapacity The lack of capacity to act should not be confused with lack of authority, such as by an agent who acts beyond the scope or in excess of the authority granted by the principal, or with disqualification that prohibits persons (who may have both capacity as well as authority) from acting or contracting on certain specified transactions such as the prohibition of spouses to donate (Art. 133, Civil Code) or to sell to each other (Art. 1490, Civil Code). Generally, incapacity would result in a voidable act (see Art 1390, Civil Code), except in a contract where both parties are incapacitated which renders the agreement unenforceable (Art. 1403, Civil Code); lack of authority would normally render the act unenforceable (Art. 1403, Civil Code) or occasionally void such as when the party with which the actor has transacted is aware of the latters lack of authority (Art. 1898, Civil Code) or when the contract is a sale of a piece of land or any interest therein (Art. 1874, Civil Code). Disqualifications, being prohibitory in nature, would render the act or contract executed by a disqualified person void unless the law itself declares otherwise (see Arts. 5 and 1409, Civil Code; Yuchengco vs. Velayo, 115 SCRA 307). 3. Cessation of Civil Personality
Civil personality is extinguished by death in the case of the natural person and by termination of its existence in the case of juridical persons.
60
Arts. 37-47
Presumption of Survivorship The Civil Code does not contain a presumption of survivorship; the Code, instead, provides that if there is a doubt, as between two or more natural persons who are called to succeed each other, as to who between or among them died first, whoever alleges the death of one prior to the other shall prove the same. In the absence of proof, it is presumed that they have died at the same time and there shall be no transmission of rights from one to the other (Art. 43, Civil Code). In respect to questions outside of successional rights, the Revised Rules of Court sanctions presumptions based on possibilities of relative strength, such as age and sex, in death due to calamities (see Rule 131, Sec. 5[jj], Rules of Court).
61
TITLE II. CITIZENSHIP AND DOMICILE

Art. 48. The following are citizens of the Philippines: (1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; (2) Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines; (3) Those whose fathers are citizens of the Philippines; (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; (5) law. (n) Those who are naturalized in accordance with
Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. (n) Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a) Art. 51. When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. (41a)
The provisions of Article 48 of the Civil Code on citizenship are now to be deemed modified by the following provisions of Article IV of the 1987 Constitution, viz.:
61
62
Arts. 48-51
Sec. 1. The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law. Sec. 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Sec. 3. Philippine citizenship may be lost or reacquired in the manner provided by law. Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. Sec. 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a precious heritage, as well as an inestimable acquisition that cannot be taken lightly by anyone either by those who enjoy it or by those who dispute it (Maria Jeanette C. Tecson, et al. vs. Commission on Elections, et al., G.R. No. 161434; Zoilp Antonio Velez vs. Ronald Kelley Poe, G.R. No. 161634; Victorino X. Fornier vs. Comelec, et al., G.R. No. 161824; 03 March 2004).
Arts. 48-51
PERSONS Title II. Citizenship and Domicile
63
The Philippines has continued to adopt the jus sanguinis rule. The principle of jus soli has never been extended to the Philippines (Sia Reyes vs. Deportation Board, 122 SCRA 478, overturning the statement earlier made in the case of Roa vs. Collector of Customs, 3 Phil. 313, and affirming the subsequent case of Tan Chiong vs. Secretary of Labor, 79 Phil. 240). An application for a foreign passport is a renunciation of Philippine citizenship (see Yu vs. Defensor-Santiago, 169 SCRA 364; Labo, Jr. vs. Commission on Elections, 176 SCRA 1). A woman married to a citizen of the Philippines, and who might herself be lawfully naturalized, shall be deemed a citizen of the Philippines (Section 15, C.A. 473, as amended), and no judicial action is warranted to establish such status (Burca vs. Republic, 51 SCRA 248; but see Rule 108, Revised Rules of Court). Administrative proceedings, such as by petition with the immigration authorities for the cancellation of the wifes Certificate of Alien Registration, may be initiated to confirm administratively that citizenship (Burca vs. Republic, supra). Judicial recourse would then be available in case of an adverse action by the Immigration Commission (Yung vs. Republic, 159 SCRA 593). The naturalization of the husband has also been held to have the effect of making the wife herself a citizen (Po Siok Pin vs. Vivo, 62 SCRA 363), provided she, too, has the qualifications and none of the disqualification to be a naturalized Filipino. Minor children born in the Philippines of persons naturalized shall also be considered Philippine citizens. Foreign-born minor children, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become Philippine citizens. Foreignborn minor children, who at the time of the naturalization of the parent are not in the Philippines, shall be deemed Philippine citizens only during their minority unless they begin to reside permanently in the Philip-
64
Arts. 48-51
pines when still minors in which case they shall continue to be Philippine citizens even after becoming of age (Section 15, C.A. 473, as amended; see also Ang vs. Galang, 67 SCRA 358). Alien children who are adopted by Philippine citizens, or by those who become naturalized citizens, do not themselves become Philippine citizens since citizenship is specifically conferred by law and our laws on adoption do not confer that status. Domicile The domicile of natural persons, for the exercise of civil rights and the fulfillment of civil obligations, is the place of their habitual residence (Art. 50, Civil Code). Domicile means the permanent home, and it connotes the place to which, whenever absent for business or pleasure no matter how long, a person intends to return (Ong Huan Tin vs. Republic, 19 SCRA 966). The term legal residence and domicile are often used interchangeably although residence has a broader connotation that may mean permanent (domicile), official (place where ones official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). In the case of juridical persons, their domicile is the place fixed in the law creating or recognizing them; in its absence, their domicile is understood to be the place where their legal representation is established or where they exercise their principal functions (Art. 51, Civil Code). In the case of private corporations, their domicile is the place where their principal office is located (see Clavecilla Radio System vs. Antillon, 19 SCRA 379). The domicile of partnerships is their place of business (see McDonald vs. National City Bank of New York, 99 Phil. 156).
65
TITLE III. MARRIAGE

Chapter 1 Requisites of Marriage Authors note: The provisions of the Civil Code in this title have been repealed by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof) which took effect on 3 August 1988. Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents are governed by law and not subject to stipulation, except that the marriage settlements may to a certain extent fix the property relations during the marriage. (n) Art. 53. No marriage shall be solemnized unless all these requisites are complied with: (1) (2) Legal capacity of the contracting parties; Their consent, freely given;
(3) Authority of the person performing the marriage; and (4) A marriage license, except in a marriage of exceptional character. (Sec.1a, Art. 3613). Art. 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years or upwards, not under any of the impediments mentioned in Articles 80 to 84, may contract marriage. (2) Art. 55. No particular form for the ceremony of marriage is required, but the parties with legal capacity to contract marriage must declare, in the presence of
65
66
Arts. 56-57
the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife. This declaration shall be set forth in an instrument in triplicate, signed by signature or mark by the contracting parties and said two witnesses and attested by the person solemnizing the marriage. In case of a marriage on the point of death, when the dying party, being physically unable, cannot sign the instrument by signature or mark, it shall be sufficient for one of the witnesses to the marriage to sign in his name, which fact shall be attested by the minister solemnizing the marriage. (3) Art. 56. Marriage may be solemnized by: (1) The Chief Justice and Associate Justices of the Supreme Court; (2) The Presiding Justice and the Justices of the Court of Appeals; (3) (4) (5) Judges of the Court of First Instance; Mayors of cities and municipalities; Municipal judges and justices of the peace;
(6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or sect, duly registered, as provided in Article 92; and (7) Ship captains, airplane chiefs, military commanders, and consuls and vice-consuls in special cases provided in Articles 74 and 75. (4a) Art. 57. The marriage shall be solemnized publicly in the office of the judge in open court or of the mayor, or in the church, chapel or temple, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 72 of this Code, or in case of marriage referred to in Article 76 or when one of the parents or the guardian of the female or the latter herself if over eighteen years of age request it in writing, in which cases the marriage may be solemnized at a house or place designated by said parent or guardian of the
Arts. 58-59
PERSONS Title III. Marriage
67
female or by the latter herself in a sworn statement to that effect. (5a) Art. 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title, but not those under Article 75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides. (7a) Art. 59. The local civil registrar shall issue the proper license if each of the contracting parties swears separately before him or before any public official authorized to administer oaths, to an application in writing setting forth that such party has the necessary qualifications for contracting marriage. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. Such application shall insofar as possible contain the following data: (1) (2) (3) Full name of the contracting party; Place of birth; Age, date of birth;
(4) Civil status (single, widow or widower, or divorced); (5) If divorced, how and when the previous marriage was dissolved; (6) (7) parties; (8) (9) Present residence; Degree of relationship of the contracting Full name of the father; Residence of the father;
(10) Full name of the mother; (11) Residence of the mother; (12) Full name and residence of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of
68
Art. 60
twenty years if a male, or eighteen years if a female. (7a) Art. 60. The local civil registrar, upon receiving such application, shall require the exhibition of the original baptismal or birth certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents required by this article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his baptismal or birth certificate or a certified copy of either because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person that such baptismal or birth certificate has not yet been received though the same has been requested of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his residence certificate for the current year or any previous years, to show the age stated in his application or, in the absence thereof, an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to solemnize marriage. Such instrument shall contain the sworn declaration of two witnesses, of lawful age, of either sex, setting forth the full name, profession, and residence of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, and in their default, persons well known in the province or the locality for their honesty and good repute. The exhibition of baptismal or birth certificates shall not be 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 application, or when the local civil registrar shall, by merely looking
Arts. 61-62
69
at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (8a) Art. 61. In case either of the contracting parties is a widowed or divorced person, the same shall be required to furnish, instead of the baptismal or birth certificate required in the last preceding article, the death certificate of the deceased spouse or the decree of the divorce court, as the case may be. In case the death certificate cannot be found, the party shall make an affidavit setting forth this circumstance and his or her actual status and the name and the date of the death of the deceased spouse. In case either or both of the contracting parties, being neither widowed nor divorced, are less than twenty years of age as regards the male and less eighteen years as regards the female, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage, of their father, mother or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be in writing, under oath taken with the appearance of the interested parties 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. (9a) Art. 62. Males above twenty but under twenty-five years of age, or females above eighteen but under twenty-three years of age, shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage shall take place till after three months following the completion of the publication of the application for marriage license. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall accompany the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn declaration. (n)
70
Arts. 63-66
Art. 63. The local civil registrar shall post during ten consecutive days at the main door of the building where he has his office a notice, the location of which shall not be changed once it has been placed, setting forth the full names and domiciles of the applicants for a marriage license and other information given in the application. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The license shall be issued after the completion of the publication, unless the local civil registrar receives information upon any alleged impediment to the marriage. (10a) Art. 64. Upon being advised of any alleged impediment to the marriage, the local registrar shall forthwith make an investigation, examining persons under oath. If he is convinced that there is an impediment to the marriage, it shall be his duty to withhold the marriage license, unless he is otherwise ordered by a competent court. (n) Art. 65. The local civil registrar shall demand the previous payment of fees required by law or regulations for each license issued. No other sum shall be collected, in the nature of a fee or tax of any kind, for the issuance of a marriage license. Marriage licenses shall be issued free of charge to indigent parties, when both male and female do not each own assessed real property in excess of five hundred pesos, a fact certified to, without cost, by the provincial treasurer, or in the absence thereof, by a statement duly sworn to by the contracting parties before the local civil registrar. The license shall be valid in any part of the Philippines; but it shall be good for no more than one hundred and twenty days from the date on which it is issued and shall be deemed cancelled at the expiration of said period if the interested parties have not made use of it. (11a) Art. 66. When either or both of the contracting parties are citizens or subjects of a foreign country, it shall be necessary, before a marriage license can be obtained, to provide themselves with a certificate of legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials. (13a)
Arts. 67-70
71
Art. 67. The marriage certificate in which the contracting parties shall state that they take each other as husband and wife, shall also contain: (1) The full names and domiciles of the contracting parties; (2) The age of each;
(3) A statement that the proper marriage license has been issued according to law and that the contracting parties have the consent of their parents in case the male is under twenty or the female under eighteen years of age; and (4) A statement that the guardian or parent has been informed of the marriage, if the male is between the ages of twenty and twenty-five years, and the female between eighteen and twenty-three years of age. (15a) Art. 68. It shall be the duty of the person solemnizing the marriage to furnish to either of the contracting parties one of the three copies of the marriages contract referred to in Article 55, and to send another copy of the document not later than fifteen days after the marriage took place to the local civil registrar concerned, whose duty it shall be to issue the proper receipt to any person sending a marriage contract solemnized by him, including marriages of an exceptional character. The official, priest, or minister solemnizing the marriages shall retain the third copy of the marriage contract, the marriage license and the affidavit of the interested party regarding the solemnization of the marriage in a place other than those mentioned in Article 57 if there be any such affidavit, in the files that he must keep. (16a) Art. 69. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from the documentary stamp tax. (17a) Art. 70. The local civil registrar concerned shall enter all applications for marriage licenses filed with
72
Arts. 52-71
him in a register book strictly in the order in which the same shall be received. He shall enter in said register the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (18a) Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages as determined by Philippine law. (19a)
Concept of Marriage The Civil Code defines marriage not as a mere contract but as an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulation, except that the marriage settlements may fix to a certain extent the property relations during the marriage (Art. 52, Civil Code). Marriage is the basis of human society and a relation that is imbued with public interest. Every intendment of the law leans towards legalizing matrimony (Alavado vs. City Government of Tacloban, 139 SCRA 230). In Calimlim-Canullas vs. Fortun (129 SCRA 675), Mercedes Calimlim-Canullas and Fernando Canullas were married in 1962. The couple built a house on the land owned by Fernandos father. After the fathers death, Fernando Canullas inherited the land. In 1978, Fernando abandoned his family and lived with Corazon Daguines. In 1980, he sold the house and lot to Corazon who thereafter filed a complaint against Mercedes for Quieting of Title. One issue raised before the Supreme Court was whether the sale of the house and lot to Corazon was valid. The Court ruled: x x x We find that the Contract of Sale was null and void for being contrary to morals and public policy. The sale was made by a husband in favor of a
Arts. 52-71
73
concubine after he had abandoned his family and left the conjugal home where his wife and children lived and from whence they derived their support. That sale was subversive of the stability of the family, a basic social institution which public policy cherishes and protects. Requisites of Marriage A valid marriage requires compliance with the following requisites: (1) Legal capacity of the contracting parties; (2) Their consent, freely given; (3) Authority of the person performing the marriage; and (4) A marriage license, except in certain marriages of exceptional character (Art. 53, Civil Code). Legal Capacity Any male of the age of sixteen years or upwards and any female of the age of fourteen years or upwards, not otherwise disqualified by law, may enter into a contract of marriage (Art. 54, Civil Code). In case either or both of the contracting parties, being neither widowed nor divorced, are less than twenty years of age as regards the male and less than eighteen years as regards the female, the written and sworn consent to their marriage of their father, mother or guardian, or persons having legal charge of them, in the order mentioned, is required (Art. 61, Civil Code). The marriage, in the absence of such consent, may be annulled by the party whose parent or guardian did not give consent within four years after attaining the age of twenty or eighteen years, as the case may be, or by the parent or guardian or person having legal charge at any time before such party has reached the age, respec-
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Arts. 52-71
tively, of twenty or eighteen years (Art. 85 and Art. 87, Civil Code). The right to annul the marriage is lost if after attaining the ages of twenty or eighteen years, as the case may be, the party to the marriage entitled to bring the action should have freely cohabited with the other and both lived together as husband and wife (Art. 85, Civil Code). There is a conflict of views on whether or not the voidable marriage is convalidated by parental consent being given after the marriage. The better view appears to be that the convalidation thereof or of any other voidable contract (not void contracts which are not convalidated) is legally feasible only under and within the means explicitly expressly sanctioned by law. In the case of voidable marriages, the only methods of convalidation expressed by law are by prescription and by cohabitation (see Art. 85 and Art. 87, Civil Code). Males above twenty but under twenty-five years of age, or females above eighteen but below twenty-three years of age shall be obliged to ask their parents or guardians for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage shall not take place until after three months following the completion of the publication of the application for marriage license (Art. 62, Civil Code). The failure to obtain such advice shall not, however, invalidate the marriage. The law recognizes only two cases of absolute disqualifications, viz.: (a) those below the age of consent to a marriage, i.e., males below sixteen and females below fourteen years of age (Art. 54 and Art. 80, Civil Code); and (b) those who are guilty of having killed his or her spouse (Art. 80, Civil Code). Relative disqualifications, such as those due to civil and natural relationship of the parties, may likewise negate the validity of a marriage (see Arts. 80-82, Civil Code, infra.).
Arts. 52-71
75
Consent of Parties Like any other contract, consent of the contracting parties should be free from vices of consent; unlike, however, in ordinary contracts, the vices of consent in marriage are more stringent than in such other contracts. The attendance of violence, intimidation, fraud or the state of being of unsound mind may vitiate consent that can render the contract voidable (Arts. 85- 86, Civil Code). A breach of promise to marry is neither enforceable nor, by itself, otherwise actionable, except that to the extent one has acted in a manner that is contrary to morals, good customs or policy, in which case, the person upon whom it is exercised may be compensated for the damage that may have been sustained (see Art. 19 and Art. 21, Civil Code; Hermosisima vs. Court of Appeals, et al., 109 Phil. 629). Authority of Solemnizing Officer A marriage may be solemnized by: (1) The Chief Justice and Associate Justices of the Supreme Court; (2) The Presiding Justice and the Justices of the Court of Appeals; (3) Judges of the Courts of First Instance; (4) Mayors of cities and municipalities (including acting mayors or vice-mayors acting as mayors [People vs. Bustamante, 105 Phil. 64]). (5) Municipal judges and Justices of the Peace; (6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or sect, duly registered, as provided in Article 92; and (7) Ship captains, airplane chiefs, military commanders, and consuls and vice-consuls in special cases provided in articles 74 and 75 (Art. 56, Civil Code).
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Arts. 52-71
Accordingly, the President of the Philippines may not solemnize a marriage except possibly during war when he, as the Commander-in-Chief of the Armed Forces of the Philippines and in the absence of a chaplain, celebrates a marriage in articulo mortis (see Art. 74, Civil Code). Similarly, the Presiding Justice and Associate Justices of the Sandiganbayan, not being specifically authorized by law, may not solemnize a marriage. The lack of authority of the solemnizing officer renders the contract void ab initio (Art. 80, Civil Code). No particular form for the ceremony is required; it is enough that the parties declare, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife (Art. 55, Civil Code). The law does not thus appear to authorize a partys representation by proxy. Marriage License A marriage license is a prerequisite to the marriage. The license is issued by the local civil registrar of the municipality where either contracting party habitually resides upon an application in writing of the contracting parties and the registrars being satisfied that no legal impediment to such marriage exists (Arts. 58-60, Civil Code; see also P.D. No. 965, requiring applicants for marriage license to receive instructions on family planning and responsible parenthood). A marriage license is valid in any part of the Philippines, but it shall be good for not more than 120 days from the date it is issued, and it shall be deemed cancelled by the expiration of said period if the interested parties have not made use of it (Art. 65, Civil Code). When either or both of the contracting parties are citizens or subjects of a foreign country, it shall be necessary before a marriage license can be obtained to provide themselves with a certificate of legal capacity to contract
Arts. 52-71
77
marriage, to be issued by their respective diplomatic or consular officials (Art. 66, Civil Code). A marriage without a validly issued license having first been obtained is void ab initio (see Art. 80, Civil Code); but the issuance of a marriage license in violation of Article 84 of the Civil Code (prohibiting its issuance to a widow until after 300 days following the death of the husband), while subjecting her to a possible penal liability, does not invalidate the marriage (see People vs. Rosal, 49 Phil. 509). Foreign Marriages Article 71 of the Civil Code provides: All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages as determined by Philippine law. Although quasi-incestuous marriages under Article 82 of the Code were not excepted along with bigamous and incestuous marriages, the third paragraph of Article 17 of the same Code providing that prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon, in a foreign country may still render such marriages of extremely doubtful validity. Presumption of Marriage A man and a woman deporting themselves as husband and wife are prima facie presumed to have entered into a lawful contract of marriage (Rule 131, Sec. 5[bb], Revised Rules of Court; Vda. De Labuca vs. Workmens Compensation Commission, 77 SCRA 331;
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Arts. 72-74
Alavado vs. City Government of Tacloban, supra.), but other attendant circumstances to the contrary may offset that presumption (see Fernandez vs. Puatu, et al., 102 Phil. 363).
Chapter 2 Marriages of Exceptional Character Art. 72. In case either of the contracting parties is on the point of death or the female has her habitual residence at a place more than fifteen kilometers distant from the municipal building and there is no communication by railroad or by provincial or local highways between the former and the latter, the marriage may be solemnized without necessity of a marriage license; but in such cases the official, priest, or minister solemnizing it shall state in an affidavit made before the local civil registrar or any person authorized by law to administer oaths that the marriage was performed in articulo mortis or at a place more than fifteen kilometers distant from the municipal building concerned, in which latter case he shall give the name of the barrio where the marriage was solemnized. The person who solemnized the marriage shall also state, in either case, that he took the necessary steps to ascertain the ages and relationship of the contracting parties and that there was in his opinion no legal impediment to the marriage at the time that it was solemnized. (20) Art. 73. The original of the affidavit required in the last preceding article, together with a copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. The local civil registrar shall, however, before, filing of the papers, require the payment into the municipal treasury of the legal fees required in Article 65. (21) Art. 74. A marriage in articulo mortis may also be solemnized by the captain of a ship or chief of an air-
Arts. 75-78
79
plane during a voyage, or by the commanding officer of a military unit, in the absence of a chaplain, during war. The duties mentioned in the two preceding articles shall be complied with by the ship captain, airplane chief or commanding officer. (n) Art. 75. Marriages between Filipino citizens abroad may be solemnized by consuls and vice-consuls of the Republic of the Philippines. The duties of the local civil registrar and of a judge or justice of the peace or mayor with regard to the celebration of marriage shall be performed by such consuls and vice-consuls. (n) Art. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. (n) Art. 77. In case two persons married in accordance with law desire to ratify their union in conformity with the regulations, rites, or practices of any church, sect, or religion, it shall no longer be necessary to comply with the requirements of Chapter 1 of this Title and any ratification so made shall merely be considered as a purely religious ceremony. (23) Art. 78. Marriages between Mohammedans or pagans who live in the non-Christian provinces may be performed in accordance with their customs, rites or practices. No marriage license or formal requisites shall be necessary. Nor shall the persons solemnizing these marriages be obliged to comply with Article 92. However, twenty years after the approval of this Code all marriages performed between Mohammedans or pagans shall be solemnized in accordance with the provisions of this Code. But the President of the
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Arts. 72-79
Philippines, upon recommendation of the Secretary of the Interior, may at any time before the expiration of said period, by proclamation, make any of said provisions applicable to the Mohammedan and nonChristian inhabitants of any of the non-Christian provinces. (25a) Art. 79. Mixed marriages between a Christian male and a Mohammedan or pagan female shall be governed by the general provisions of this Title and not by those of the last preceding article, but mixed marriages between a Mohammedan or pagan male and a Christian female may be performed under the provisions of the last preceding article if so desired by the contracting parties, subject, however, in the latter case to the provisions of the second paragraph of said article. (26)
Marriages of Exceptional Character Marriages of exceptional character, which can dispense with the marriage license or such formal requisites for its issuance as the birth or baptismal certificate, posting of notice or publication, or which can deviate to some extent from the strict adherence to the legal requirements of marriage, are the following: (a) In case either of the contracting parties is on the point of death or the female has her habitual residence at a place more than fifteen kilometers distant from the municipal building and there is no communication by railroad or by provincial or local highways between the former and the latter, the marriage may be solemnized without necessity of a marriage license; but in such cases the official, priest, or minister solemnizing shall state in an affidavit made before the local civil registrar or any person authorized by law to administer oaths that the marriage was performed in articulo mortis or at a place more than fifteen kilometers distant from the municipal building concerned, in which latter case he shall give the name of the barrio where the
Arts. 72-79
81
marriage was solemnized. The person who solemnized the marriage shall also state, in either case, that he took the necessary step to ascertain the ages and relationship of the contracting parties and that there was in his opinion no legal impediment to the marriage at the time it was solemnized (Art. 72, Civil Code). The original of the requisite affidavit, together with a copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within a period of thirty days after the performance of the marriage (Art. 73, Civil Code). (b) A marriage in articulo mortis may also be solemnized by the captain of a ship or chief of an airplane during a voyage, or by the commanding officer of a military unit, in the absence of a chaplain, during war. The duties mentioned in the preceding paragraph shall be complied with by the ship captain, airplane chief or commanding officer (Art. 74, Civil Code). (c) Marriages between Filipino citizens abroad may be solemnized by consuls and vice-consuls of the Republic of the Philippines. The duties of the local civil registrar and of a judge or justice of the peace or mayor with regard to the celebration of marriage shall be performed by such consuls and vice-consuls (Art. 75, Civil Code). (d) No marriage license shall be necessary when a man and a woman, who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he has
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Art. 80
taken steps to ascertain the ages and other qualifications of the contracting parties and that he has found no legal impediment to the marriage (Art. 76, Civil Code). (e) In case two persons married in accordance with law desire to ratify their union in conformity with the regulations, rites, or practices of any church, sect, or religion, it shall no longer be necessary to comply with the requirements of a valid marriage, and any ratification so made shall merely be considered as a purely religious ceremony (Art. 77, Civil Code). (f) Marriages between Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with the Muslim law or Code of Muslim Personal Laws of the Philippines, shall be governed by said Code. In case, however, of a marriage between a Muslim and a non-Muslim not solemnized in accordance with the Muslim law or Muslim Code, the Civil Code of the Philippines will apply (Sec. 13, Code of Muslim Personal Laws of the Philippines).
Chapter 3 Void and Voidable Marriages Art. 80. The following marriages shall be void from the beginning: (1) Those contracted under the ages of sixteen and fourteen years by the male and female respectively, even with the consent of the parents; (2) Those solemnized by any person not legally authorized to perform marriages; (3) Those solemnized without a marriage license, save marriages of exceptional character; (4) Bigamous or polygamous marriages not falling under Article 83, number 2;
Arts. 81-83
83
(5)
Incestuous marriages mentioned in Article 81;
(6) Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them; (7) Those between stepbrothers and stepsisters and other marriages specified in Article 82. (n) Art. 81. Marriages between the following are incestuous and void from their performance, whether the relationship between the parties be legitimate or illegitimate: (1) degree; Between ascendants and descendants of any
(2) Between brothers and sisters, whether of the full or half blood; (3) Between collateral relatives by blood within the fourth civil degree; (28a) Art. 82. The following marriages shall also be void from the beginning: (1) Between stepfathers and stepdaughters, and stepmothers and stepsons; (2) Between the adopting father or mother and the adopted, between the latter and the surviving spouse of the former, and between the former and the surviving spouse of the latter; (3) Between the legitimate children of the adopter and the adopted. (28a) Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the The first marriage was annulled or dissolved;
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Arts. 84-85
absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (29a) Art. 84. No marriage license shall be issued to a widow till after three hundred days following the death of her husband, unless in the meantime she has given birth to a child. (n) Art. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife; (2) In a subsequent marriage under Article 83, number 2, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was then in force; (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife; (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be; (5) That the consent of either party was obtained by force or intimidation, unless the violence or threat having disappeared, such party afterwards freely
Arts. 86-87
85
cohabited with the other as her husband or his wife, as the case may be; (6) That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable. (30a) Art. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (n) Art. 87. The action for annulment of marriage must be commenced by the parties and within the periods as follows: (1) For causes mentioned in number 1 of Article 85, by the party whose parent or guardian did not give his or her consent, within four years after attaining the age of twenty or eighteen years, as the case may be; or by the parent or guardian or person having legal charge, at any time before such party has arrived at the age of twenty or eighteen years; (2) For causes mentioned in number 2 of Article 85, by the spouse who has been absent, during his or her lifetime; or by either spouse of the subsequent marriage during the lifetime of the other; (3) For causes mentioned in number 3 of Article 85, by the sane spouse, who had no knowledge of the
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Arts. 88-91
others insanity; or by any relative or guardian of the party of unsound mind, at any time before the death of either party; (4) For causes mentioned in number 4, by the injured party, within four years after the discovery of the fraud; (5) For causes mentioned in number 5, by the injured party, within four years from the time the force or intimidation ceased; (6) For causes mentioned in number 6, by the injured party, within eight years after the marriage. (31a) Art. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the provisions of Article 101, paragraph 2, shall be observed. (n) Art. 89. Children conceived or born of marriages which are void from the beginning shall have the same status, rights and obligations as acknowledged natural children, and are called natural children by legal fiction. Children conceived of voidable marriages before the decree of annulment shall be considered as legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children, and are also called natural children by legal fiction. (n) Art. 90. When a marriage is annulled, the court shall award the custody of the children as it may deem best, and make provision for their education and support. Attorneys fees and expenses incurred in the litigation shall be charged to the conjugal partnership property, unless the action fails. (33a) Art. 91. Damages may be awarded in the following cases when the marriage is judicially annulled or declared void from the beginning: (1) If there has been fraud, force or intimidation in obtaining the consent of one of the contracting parties;
Arts. 80-91
87
(2) If either party was, at the time of the marriage, physically incapable of entering into the married state, and the other party was unaware thereof; (3) If the person solemnizing the marriage was not legally authorized to perform marriages, and that fact was known to one of the contracting parties, but he or she concealed it from the other; (4) If a bigamous or polygamous marriage was celebrated, and the impediment was concealed from the plaintiff by the party disqualified; (5) If in an incestuous marriage, or a marriage between a stepbrother and stepsister or other marriage prohibited by Article 82, the relationship was known to only one of the contracting parties but was not disclosed to the other; (6) If one party was insane and the other was aware thereof at the time of the marriage. (n)
Defective Marriages The defective marriages under the Code are either void or voidable. A. Void Marriages
Under Article 80 of the Civil Code, the following marriages have been declared void from the beginning: (1) Those contracted by the male and the female below the ages of sixteen and fourteen years, respectively, even with the consent of the parents; (2) Those solemnized by a person who is not legally authorized to perform marriages; (3) Those solemnized without a marriage license, except in certain marriages of exceptional character; (4) Bigamous or polygamous marriages not falling under Article 83, number 2, of the Code;
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Arts. 80-91
(5) Incestuous marriages mentioned in Article 81 of the same Code; (6) Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them; and (7) Those between stepbrothers and stepsisters and other quasi-incestuous marriages specified in Article 82 of the Code. Prohibited marriages between blood relatives are incestuous and void from their performance, whether the relationship between the parties be legitimate or illegitimate. These void marriages include those between (1) Ascendants and descendants of any degree; (2) Brothers and sisters, whether of the full or half-blood; and (3) Collateral relatives by blood within the fourth civil degree (see Art. 81, Civil Code). Commonly referred to as being quasi-incestuous, certain marriages are also declared void due to civil relationship, thusly: (1) Between stepfathers and stepdaughters, and stepmothers and stepsons; (2) Between stepbrothers and stepsisters; (3) Between the adopting father or mother and the adopted, between the latter and the surviving spouse of the former, and between the former and the surviving spouse of the latter; and (4) Between the legitimate children of the adopter and the adopted (see Art. 80, in relation to Art. 82, Civil Code). In respect of bigamous marriages, the Code holds to be illegal and void from its inception any marriage subsequently contracted by any person during the lifetime of the first spouse, unless
Arts. 80-91
89
(1) The first marriage is first annulled or dissolved; or (2) The first spouse has been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Article 390 and Article 391 of the Code. The marriage so contracted shall be valid in any of these instances until declared null and void by a competent court (see Art. 83, Civil Code). Void marriages are inexistent from the very beginning and no judicial decree is required to establish their nullity (Odayat vs. Amante, 77 SCRA 338; see also People vs. Aragon, 100 Phil. 1033). It has been held that a subsequent marriage of one of the spouses of the void marriage is itself void if it were contracted before a judicial declaration of nullity of the prior marriage (Wiegel vs. Judge Sempio-Dy, 143 SCRA 499). This pronouncement was subsequently abandoned in Yap vs. Court of Appeals (145 SCRA 229). Such void marriages, however, are not totally without legal effects; hence, children of void marriages are deemed to be natural children by legal fiction (Art. 89, Civil Code), and the property relationship of the spouses may, to a certain extent, be governed by the rules on co-ownership (Art. 144, Civil Code, infra.), but not if the parties thereto suffer from any legal impediment to marry (Juaniza vs. Jose, 89 SCRA 306; Maxey vs. Court of Appeals, 129 SCRA 187). B. Voidable Marriages
A voidable marriage is valid until it is judicially annulled. Such a marriage may be annulled for any cause existing at the time of the marriage, to wit:
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Arts. 80-91
(1) That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife; (2) In a subsequent marriage under Article 83, number 2 of the Code, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was still then in force; (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife; (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be; (5) That the consent of either party was obtained by force or intimidation, unless the violence or threat having disappeared, such party afterwards freely cohabited with the other as her husband or his wife, as the case may be; and (6) That either party was, at the time the marriage is celebrated, physically incapable of entering into the married state, and such incapacity continues and appears to be incurable (see Art. 85, Civil Code). Voidable Subsequent Marriage In order that the subsequent marriage referred to in paragraph (2) of Article 83 (supra.) may be considered
Arts. 80-91
91
valid, the spouse present (not the absentee spouse) contracting the later marriage must have done so in good faith. The good faith or bad faith of the other contracting party to the subsequent marriage is not really that consequential (Lapuz vs. Eufemio, 43 SCRA 177). A judicial declaration of absence of the absentee spouse, however, has been held not to be necessary (Jones vs. Hortiguela, 64 Phil. 179). Article 83 of the Civil Code requires either spouse that there be no news that the absentee is still alive, or the absentee is generally considered dead and believed to be so by the spouse present, or is presumed dead under Article 390 and Article 391 of the Civil Code. It is noteworthy that in imposing a stricter standard, Article 41 of the Family Code prescribes a well-founded belief that the absentee is already dead before declaration of presumptive death can be granted (Republic vs. Nolasco, 220 SCRA 20). Under the status quo rule, the second voidable marriage, prior to its annulment, should be respected more than the first marriage, the disturbance to the circumstances of the parties being brought about not by the celebration of the subsequent marriage but by the appearance of the absentee spouse. It would be superficial to hold that the first marriage should have preference over the second marriage, even before the latter is annulled, merely on the basis that, as against a voidable marriage, a valid marriage has greater strength than the other. Insanity Insanity, as a vice of consent in marriage, should exist at the time of marriage. To be of unsound mind, there must be a manifestation, in language or conduct, of disease or defect of the brain, or more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion,
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Arts. 80-91
inhibition, or disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition (Engle vs. Doe, 47 Phil. 753; see also Menciano vs. Neri San Jose, 89 Phil. 63). Impotency Impotency indicates a physical incapability of entering into the marriage state, as distinguished from sterility which is (not a ground for annulling a marriage) merely an inability to procreate (Menciano vs. San Jose, 89 Phil. 63). Force and Intimidation Force and intimidation, as vices of consent in marriage, have not been defined; it would be fair to assume that the codal definition of said terms under Article 1335 of the Civil Code (infra.) could be controlling. Fraud Fraud is confined to the following instances: (1) misrepresentation as to the identity of one of the contracting parties; (2) non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; and (3) concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband (Art. 86, Civil Code). No other misrepresentation or deceit as to character, rank, fortune or chastity would constitute such fraud as could give grounds for action for the annulment of marriage (Ibid.). The enumeration of the circumstances of fraud under Article 86 of the Code are exclusive (Anaya vs. Palaroan,
Arts. 80-91
93
36 SCRA 97) and restrictive. For instance, one could hardly seek for an annulment on the ground of concealment of pregnancy where the woman at the time of the marriage was in an advanced state of family way (Buccat vs. Buccat, 72 Phil. 19; Aquino vs. Delizo, 109 Phil. 21). Statute of Limitations The action for annulment must be commenced within the periods fixed by the Code. Thus (1) For causes mentioned in number 1 of Article 85, by the party whose parent or guardian did not give his or her consent, within four years after attaining the age of twenty or eighteen years, as the case may be; or by the parent or guardian or person having legal charge, at any time before such party has arrived at the age of twenty or eighteen years; (2) For causes mentioned in number 2 of Article 85, by the spouse who has been absent, during his or her lifetime; or by either spouse of the subsequent marriage during the lifetime of the other; (3) For causes mentioned in number 3 of Article 85, by the sane spouse, who had no knowledge of the others insanity; or by any relative or guardian of the party of unsound mind, at any time before the death of either party; (4) For causes mentioned in number 4, by the injured party, within four years after the discovery of the fraud; (5) For causes mentioned in number 5, by the injured party, within four years from the time the force or intimidation ceased; (6) For causes mentioned in number 6, by the injured party, within eight years after marriage (Art. 87, Civil Code).
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Arts. 80-91
No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Art. 88, Civil Code). In case of non-appearance of the defendant, the Court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists; if there is none, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated (Art. 88 in relation to Art. 101, Civil Code). A confession of judgment, however, may not necessarily result in the denial of an annulment as long as proof satisfactory to establish the grounds for annulment of the marriage are independently offered in evidence. Effects of Voidable Marriages a. On the children. Children conceived or born of voidable marriages before the decree of annulment are considered legitimate; children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children or natural children by legal fiction (Art. 89, Civil Code). The legislative intent of the pertinent provisions of the Civil Code on children in the book on persons and family relations is meant to enhance the childs interest and welfare. This intent finds exemplification in Article 89 of the Civil Code by explicitly providing that natural children by legal fiction (among them those conceived or born of void marriages because the parents suffer from an impediment to marry) shall have the same status, rights and obligations as acknowledged natural children. If then under Article 269, in relation to Article 270, of the Civil Code, acknowledged natural children are given the right to be legitimated by the subsequent marriage of the parents, the law, with all due respect to the opinion of the Court in De Santos vs. Angeles (210 SCRA 211), must, by virtue of Article 89 aforesaid, likewise extend unqualifiedly to natural children by legal fiction. It might be pointed
Arts. 80-91
95
out, not a single provision of the Code limits or circumscribes the scope and application of Article 89. The law should then be construed as to attain congruity, rather than a division, among its several provisions. The rule is expressed in the maxim interpretare et concordare legibus est optimus interpretendi upon the theory that the legislature is presumed not to have enacted conflicting provisions of law but that, on the contrary, it must have meant to give them such parity and consequence as a uniform jurisprudential system. Any conflict of view, however, is a thing of the past, for the Family Code, which became effective on 03 August 1988, has deleted any reference to natural children by legal fiction. The Family Code presently categorizes children of void marriages into two kinds the legitimates which include those conceived or born of void marriages under Article 36 and Article 52 of the Family Code before the judicial declaration of nullity of such void marriages and the illegitimates or children conceived or born of all other void marriages (but evidently maintaining, for legitimation purposes, the distinction between those whose parents, at the time of conception, were not disqualified to marry and those whose parents were disqualified). When the marriage is annulled, the Court shall award the custody of the children as it may be to the latters best interest and the Court shall make provision for their education and support (Art. 90 Civil Code; see Unson III vs. Navarro, 101 SCRA 183; Luna vs. Intermediate Appellate Court, 137 SCRA 7). b. On Support. During the proceedings for annulment, the spouses and children shall be supported from the conjugal partnership property but after the final judgment of annulment, unlike the rule in legal separation where the marriage tie is preserved, the obligation of mutual support between spouses ceases (Art. 292, Civil Code). The Court shall always make provision for the education and support of the children (Art. 90, Civil Code).
96
Arts. 80-91
c. On Property Relationship. The conjugal partnership of gains or the absolute community of property, as the case may be, shall be dissolved upon the decree of annulment (Art. 175 and Art. 208, Civil Code). The spouse who has acted in bad faith or gave cause for annulment (or legal separation) shall forfeit his or her share of the conjugal partnership profits (Art. 177, Civil Code). d. when: On Damages. Damages may be awarded
(1) there has been fraud, force or intimidation in obtaining the consent of one of the contracting parties; (2) either party was, at the time of the marriage, physically incapable of entering into the married state, and the other party was unaware thereof; (3) the person solemnizing the marriage was not legally authorized to perform marriages, and that fact was known to one of the contracting parties, but he or she concealed it from the other; (4) a bigamous or polygamous marriage was celebrated, and the impediment was concealed from the plaintiff by the party disqualified; (5) in an incestuous marriage, or a marriage between a stepbrother and a stepsister or other marriage prohibited by Article 82, the relationship was known to only one of the contracting parties but was not disclosed to the other; or (6) one party was insane and the other was aware thereof at the time of the marriage (see Art. 91, Civil Code). The above cases are also made applicable to court judgments declaring a marriage void from the beginning (see Art. 91, Civil Code).
Arts. 92-94
97
Chapter 4 Authority to Solemnize Marriages Art. 92. Every priest, or minister, or rabbi authorized by his denomination, church, sect, or religion to solemnize marriage shall send to the proper government office a sworn statement setting forth his full name and domicile, and that he is authorized by his denomination, church, sect, or religion to solemnize marriage, attaching to said statement a certified copy of his appointment. The director of the proper government office, upon receiving such sworn statement containing the information required, and being satisfied that the denomination, church, sect, or religion of the applicant operates in the Philippines, shall record the name of such priest or minister in a suitable register and issue to him an authorization to solemnize marriage. Said priest or minister or rabbi shall be obliged to exhibit his authorization to the contracting parties, to their parents, grandparents, guardians, or persons in charge demanding the same. No priest or minister not having the required authorization may solemnize marriage. (34a) Art. 93. Freedom of religion shall be observed by public officials in the issuance of authorization to solemnize marriages. Consequently, no public official shall attempt to inquire into the truth or validity of any religious doctrine held by the applicant or by his church. (n) Art. 94. The public official in charge of registrations of priests and ministers shall cancel the authorization issued to a bishop, head, priest, rabbi, pastor or minister of the gospel of any denomination, church, sect, or religion, on his own initiative or at the request of any interested party, upon showing that the church, sect or religion whose minister have been authorized to solemnize marriage is no longer in operation. The cancellation of the authorization granted to a priest, pastor, or minister shall likewise be ordered upon the request of the bishop, head, or lawful authorities of the denomination, church, sect or religion to which he belongs. (35a)
98
Arts. 92-96
Art. 95. The public official in charge of registration of priests and ministers, with the approval of the proper head of Department, is hereby authorized to prepare the necessary forms and to promulgate regulations for the purpose of enforcing the provisions of this Title. Said official may also by regulations fix and collect fees for the authorization of priests and ministers to solemnize marriages. (36a) Art. 96. The existing laws which punish acts or omissions concerning the marriage license, solemnization of marriage, authority to solemnize marriages, and other acts or omissions relative to the celebration of marriage shall remain and continue to be in force. (n)
The above administrative provisions are intended to safeguard the due solemnization of marriages by those to whom the law has given its authorization.
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TITLE IV. LEGAL SEPARATION

Authors note: The provisions of the Civil Code in this title have been repealed by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof) which took effect on 3 August 1988.
Art. 97. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or (2) An attempt by one spouse against the life of the other. (n) Art. 98. In every case the court must take steps, before granting the legal separation, toward the reconciliation of the spouses, and must be fully satisfied that such reconciliation is highly improbable. (n) Art. 99. No person shall be entitled to a legal separation who has not resided in the Philippines for one year prior to the filing of the petition, unless the cause for the legal separation has taken place within the territory of this Republic. (Sec. 2a, Act No. 2710) Art. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. (Sec. 3a, Act No. 2710)
99
100
Arts. 101-105
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. (n) Art. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. (Sec. 4a, Act No. 2710) Art. 103. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (Sec. 5a, Act No. 2710) Art. 104. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deem it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court. (Sec. 6, Act No. 2710) Art. 105. During the pendency of legal separation proceedings the court shall make provision for the care of the minor children in accordance with the circumstances and may order the conjugal partnership property or the income therefrom to be set aside for their support; and in default thereof said minor children shall be cared for in conformity with the provisions of this Code; but the Court shall abstain from making any order in this respect in case the parents have by mutual agreement, made provision for the care of said minor
Arts. 106-108
PERSONS Title IV. Legal Separation
101
children and these are, in the judgment of the court, well cared for. (Sec. 7a, Act No. 2710) Art. 106. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of Article 176; (3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian; (4) The offending spouses shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law. (n) Art. 107. The innocent spouse, after decree of legal separation has been granted, may revoke the donations by reason of marriage made by him or by her to the offending spouse. Alienations and mortgages made before the notation of the complaint for revocation in the Registry of Property shall be valid. This action lapses after four years following the date the decree became final. (n) Art. 108. Reconciliation stops the proceedings for legal separation and rescinds the decree of legal separation already rendered. The revival of the conjugal partnership of gains or of the absolute conjugal community of property shall be governed by Article 195. (Sec. 10a, Act No. 2710)
Legal separation or relative divorce (a mensa et thoro) entitles the spouses to live separately from each other
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Arts. 97-108
but, unlike absolute divorce (a vinculo matrimonii), the marriage bond is not severed (Art. 106, Civil Code; see also Tenchavez vs. Escao, 15 SCRA 355). Legal separation must be decreed by a court; an extrajudicial separation agreement has been held to be illegal and immoral and thus void ab initio (Panganiban vs. Borromeo, 58 Phil. 367). This rule is not to say that the spouses may be compelled, either by legal or court mandate, to live together against their will (Arroyo vs. Vasquez de Arroyo , 42 Phil. 54). In case, however, a spouse should without legal reason refuse to live with the other, the aggrieved party may be entitled to recover damages (Tenchavez vs. Escao, supra.). 1. Grounds and Defenses
A petition for legal separation may be filed only on two grounds (1) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or (2) An attempt by one spouse against the life of the other (Art. 97, Civil Code). The grounds for legal separation need not occur within the Philippines but where such causes have taken place outside the territory of the Republic, the petitioner must have resided in the Philippines for at least one year prior to the filing of the petition (Art. 99, Civil Code). This rule would appear to modify, and is to be considered as an exception to the requirement found in, Article 102 of the Code, providing that an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause (Art. 102, Civil Code). Any of the following circumstances may constitute a defense against a petition for legal separation: (a) condonation of or consent to the adultery or concubinage;
Arts. 97-108
103
(b) recrimination, or when both spouses are offenders; and (c) collusion between the parties to obtain legal separation (see Art. 100, Civil Code). 2. Procedure
The procedure, briefly, for legal separation may be stated thusly: (a) Filing of a petition for legal separation with the court of competent jurisdiction by the innocent party. If the ground for legal separation has occurred outside the Philippines, the complainant must have resided in the Philippines for at least one year prior to the filing of the petition; this residence requirement does not apply if the cause for the legal separation has taken place within the country (Art. 99, Civil Code). An action for legal separation should be filed within one year from and after the date on which the complainant became cognizant of the cause and within five years from and after the date when such cause had occurred (Art. 102, Civil Code). (b) Responsive pleading, if the petition is opposed, is filed. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exist. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated (Art. 101, Civil Code). (c) Hearing. The case shall in no case be tried within six (6) months from the filing of the petition (Art. 103, Civil Code) in order to afford the parties a coolingoff period. (d) Decision. A decision, either granting or denying a decree for legal separation, is rendered.
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Arts. 97-108
3.
Effects a. During the proceedings for legal separation. (1) After filing of the petition, the spouses shall be entitled to live separately from each other; (2) Each of the spouses shall manage their respective property, but the husband shall continue to manage the conjugal partnership property, unless the court deems it proper to appoint an administrator who shall have the same rights and duties as a guardian but shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court (Art. 104, Civil Code). (3) The court shall make provision for the care of the minor children in accordance with the circumstances, and it may order the conjugal partnership property or the income therefrom to be set aside for their support; in default thereof, said minor children shall be cared for in conformity with the provisions of the Code but the court shall abstain from making any order in this respect in case the parents have, by mutual agreement, made provision for the care of said minor children and these are, in the judgment of the court, well cared for (Art. 105, Civil Code). b. After the decree of legal separation. (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated; the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of Article 176 (infra.); (3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise
Arts. 97-108
105
directed by the court in the interest of said minors, for whom said court may appoint a guardian; (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession; provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law (Art. 106, Civil Code). (5) The innocent spouse may revoke the donations by reason of marriage made by him or by her to the offending spouse, but this action lapses four years after the date the decree becomes final (Art. 107, Civil Code). c. Reconciliation. Reconciliation stops the proceedings for legal separation and rescinds a decree of legal separation already rendered. The conjugal partnership of gains shall be revived in accordance with Article 195 (infra.) of the Code (Art. 108, Civil Code).
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TITLE V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 109. The husband and wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support. (56a) Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. (58a) Art. 111. The husband is responsible for the support of the wife and the rest of the family. These expenses shall be met first from the conjugal property, then from the husbands capital, and lastly from the wifes paraphernal property. In case there is a separation of property, by stipulation in the marriage settlements, the husband and wife shall contribute proportionately to the family expenses. (n) Art. 112. The husband is the administrator of the conjugal property, unless there is a stipulation in the marriage settlements conferring the administration upon the wife. She may also administer the conjugal partnership in other cases specified in this Code. (n) Art. 113. The husband must be joined in all suits by or against the wife, except: (1) When they are judicially separated;
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Arts. 114-116 PERSONS Title V. Rights and Obligations Between Husband and Wife
107
(2) If they have in fact been separated for at least one year; (3) When there is a separation of property agreed upon in the marriage settlements; (4) If the administration of all the property in the marriage has been transferred to her, in accordance with Articles 196 and 197; (5) When the litigation is between the husband and the wife; (6) If the suit concerns her paraphernal property; (7) When the action is upon the civil liability arising from a criminal offense; (8) If the litigation is incidental to the profession, occupation or business in which she is engaged; (9) 35; and In any civil action referred to in Articles 25 to
(10) In an action upon a quasi-delict. In the cases mentioned in Nos. 7 to 10, the husband must be joined as a party defendant if the third paragraph of Article 163 is applicable. (n) Art. 114. The wife cannot, without the husbands consent, acquire any property by gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. (n) Art. 115. The wife manages the affairs of the household. She may purchase things necessary for the support of the family, and the conjugal partnership shall be bound thereby. She may borrow money for this purpose, if the husband fails to deliver the proper sum. The purchase of jewelry and precious objects is voidable, unless the transaction has been expressly or tacitly approved by the husband, or unless the price paid is from her paraphernal property. (62a) Art. 116. When one of the spouses neglects his or her duties to the conjugal union or brings danger, dishonor or material injury upon the other, the injured party may apply to the court for relief.
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Arts. 109-117
The court may counsel the offender to comply with his or her duties, and take such measures as may be proper. (n) Art. 117. The wife may exercise any profession or occupation or engage in business. However, the husband may object, provided: (1) His income is sufficient for the family, according to its social standing; and (2) His opposition is founded on serious and valid grounds. In case of disagreement on this question, the parents and grandparents as well as the family council, if any, shall be consulted. If no agreement is still arrived at, the court will decide whatever may be proper and in the best interest of the family. (n)
The husband and wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support (Art. 109, Civil Code). Economic sanctions, such as award of damages, may be sought by an aggrieved spouse (see Tenchavez vs. Escao, 15 SCRA 355). When a spouse neglects his or her duties to the conjugal union or brings danger, dishonor or material injury upon the other, the injured party may apply to the court for relief, and the court may counsel the offender accordingly or take such measures as may be proper (Art. 106, Civil Code). Consortium by the spouses, however, may not be forced upon the spouses by legal or court mandate (Cuaderno vs. Cuaderno, 12 SCRA 505; Lacson vs. Lacson, 24 SCRA 837). The Husband a. The husband shall fix the residence of the family, but the court may exempt the wife from living with him if he should live abroad unless in the service of the Republic (Art. 109, Civil Code), or if he maltreats the wife (Arroyo vs. Arroyo, 42 Phil. 54), demands immoral practices (Goitia
109
vs. Campos Rueda, 35 Phil. 252), or commits repeated acts of infidelity (Villanueva vs. Villanueva, 54 Phil. 92). b. The husband is mainly responsible for the support of the wife and the rest of the family. These expenses shall be met first from the conjugal property, then from the husbands capital, and lastly, from the wifes paraphernal property. In case there is a separation of property, by stipulation in the marriage settlements, the husband and wife shall contribute proportionately to the family expenses (Art. 111, Civil Code). c. The husband is the administrator of the conjugal property, unless by a stipulation in the marriage settlement or other cases provided by law (infra.), the administration thereof is conferred upon the wife (Art. 112; see also Arts. 196-197, Civil Code). If he incurs debt in the legitimate pursuit of his career or profession or suffers losses in a legitimate business, the conjugal partnership should be made to equally bear the indebtedness and losses (G-Tractors, Inc. vs. Court of Appeals, 135 SCRA 192). Special Provisions Regarding the Wife a. The husband should be joined in all suits by or against the wife, except: (1) When they are judicially separated; (2) If they have, in fact, been separated for at least one year; (3) When there is a separation of property agreed upon in the marriage settlements; (4) If the administration of all the property in the marriage has been transferred to her, in accordance with articles 196 and 197; (5) When the litigation is between the husband and the wife;
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Arts. 109-117
(6) If the suit concerns her paraphernal property; (7) When the action is upon the civil liability arising from a criminal offense; (8) If the litigation is incidental to the profession, occupation or business in which she is engaged; (9) In any civil action referred to in articles 25 to 35; and (10) In an action upon a quasi-delict. In the cases mentioned in No. 7 to No. 10, the husband must be joined as a party defendant if the judgment would be enforceable against the conjugal partnership assets (Art. 113, in relation to Art. 163, Civil Code). In a suit against the husband to enforce an obligation either pertaining to him alone or one chargeable against the conjugal partnership, no law or rule appears to require the defendant husband to be joined by his wife (G-Tractors, Inc. vs. Court of Appeals, supra.). b. The wife cannot, without the husbands consent, acquire any property by gratuitous title, except from the ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree (Art. 114, Civil Code); otherwise, the donation is voidable (see Bautista vs. Montilla, L-6569, 18 April 1956; La Urbana vs. Villasor, 59 Phil. 644, stating that concurrence could be presumed). c. The wife manages the affairs of the household. She may purchase things necessary for the support of the family, and the conjugal partnership shall be bound thereby. She may borrow money for this purpose if the husband fails to deliver the proper sum. The purchase of jewelry and precious objects is voidable, unless the transaction has been expressly or tacitly approved by the husband or unless the price paid is from her paraphernal property (Art. 115, Civil Code; see La Urbana vs. Villasor, supra.).
111
d. The wife may exercise any profession or occupation or engage in business; the husband, however, may object if his income is sufficient for the family, according to its social standing, and his opposition is founded on serious and valid grounds. In case of disagreement on this question, the parents and grandparents as well as the family council, if any, shall be consulted. If no agreement is still arrived at, the court shall decide whatever may be proper and in the best interest of the family (Art. 117, Civil Code).
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TITLE VI. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 1 General Provisions Art. 118. The property relations between husband and wife shall be governed in the following order: (1) (2) (3) By contract executed before the marriage; By the provisions of this Code; and By custom. (1315a)
Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative community of property, or upon complete separation of property, or upon any other regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal partnership of gains as established in this Code, shall govern the property relations between husband and wife. (n) Art. 120. A minor who according to law may contract marriage, may also execute his or her marriage settlements; but they shall be valid only if the persons designated by law to give consent to the marriage of the minor take part in the ante-nuptial agreement. In the absence of the parents or of a guardian, the consent to
112
Arts. 121-125 PERSONS Title VI. Property Relations Between Husband and Wife
113
the marriage settlements will be given by the family council. (1318a) Art. 121. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Art. 191. (1319a) Art. 122. The marriage settlements and any modification thereof shall be governed by the Statute of Frauds, and executed before the celebration of the marriage. They shall not prejudice third persons unless they are recorded in the Registry of Property. (1321a) Art. 123. For the validity of marriage settlements executed by any person upon whom a sentence of civil interdiction has been pronounced, the presence and participation of the guardian shall be indispensable, who for this purpose shall be designated by a competent court, in accordance with the provisions of the Rules of Court. (1323a) Art. 124. If the marriage is between a citizen of the Philippines and a foreigner, whether celebrated in the Philippines or abroad, the following rules shall prevail: (1) If the husband is a citizen of the Philippines while the wife is a foreigner, the provisions of this Code shall govern their property relations; (2) If the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the husbands country shall be followed, without prejudice to the provisions of this Code with regard to immovable property. (1325a) Art. 125. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage shall be rendered void and without effect whatever, if the marriage should not take place. However, those stipulations that do not depend upon the celebration of the marriage shall be valid. (1326a)
The property relations between the husband and the wife are governed, in the following order, by
114
Arts. 118-125
(1) A marriage settlement or contract executed before the marriage; (2) The provisions of the Civil Code on conjugal partnership of gains; and (3) Custom (Art. 118, Civil Code). Where the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the husbands country shall be followed without prejudice to the provisions of the Civil Code with regard to immovable property (Art. 124, Civil Code). This proviso on immovable property relates to laws on property conformably with Article 16 of the Code (supra.); it does not necessarily mean, for instance, that the provisions on conjugal partnership (in the absence of property settlements) should only apply in respect of real property located in the Philippines. Marriage Settlements The spouses may agree upon the property regime that they may wish to govern during the marriage. The marriage settlements may provide for, but may not be limited to, an absolute or relative community, or upon a complete separation, of property. In the absence of such ante-nuptial agreement, the provisions of the Civil Code on relative community or conjugal partnership of gains shall govern their property relationship (Art. 119, Civil Code). A community of property regime, whether absolute or relative, remains in effect until the marriage is dissolved or a judicial separation of property is decreed by the courts (Art. 121 and Art. 191, Civil Code). In order to be valid, marriage settlements, or any modification or change thereof, must be executed before the celebration of the marriage. Marriage settlements executed during the marriage are void (Quintana vs. Lerma, 24 Phil. 285). The form of the marriage settlements is governed by the Statute of Frauds (to be in writing),
115
but in order to affect third person (insofar as real property is concerned), the marriage settlements must be in a public instrument (Art. 1358, Civil Code) and recorded in the Registry of Property (Art. 122, Civil Code). In the case of minors, the marriage settlements shall be valid only if the persons designated by law to give consent to the marriage take part in the ante-nuptial agreement; in their absence, the consent may be given by the family council (see Art. 120, Civil Code). Effect of Non-Celebration of Marriage The non-celebration of the marriage shall have the following effects on the property relation (1) The property regime is rendered null and void (Art. 125, Civil Code); (2) Donations propter nuptias are rendered revocable (Art. 132, Civil Code); (3) Other provisions in the marriage settlements that do not depend upon the celebration of the marriage shall continue to be binding (Art. 125, Civil Code).
Chapter 2 Donations by Reason of Marriage Art. 126. Donations by reasons of marriage are those which are made before its celebration, in consideration of the same and in favor of one or both of the future spouses. (1327) Art. 127. These donations are governed by the rules on ordinary donations established in Title III of Book III, except as to their form which shall be regulated by the Statute of Frauds; and insofar as they are not modified by the following articles. (1328a) Art. 128. Minors may make and receive donations in their ante-nuptial contract, provided they are
116
Arts. 129-133
authorized by the persons who are to give their consent to the marriage of said minors. (1329a) Art. 129. Express acceptance is not necessary for the validity of these donations. (1330) Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a) Art. 131. The donor by reason of marriage shall release the property donated from mortgages and all other encumbrances upon the same, with the exception of easements, unless in the marriage settlements or in the contracts the contrary has been stipulated. (1332a) Art. 132. A donation by reason of marriage is not revocable, save in the following cases: (1) If it is conditional and the condition is not complied with; (2) If the marriage is not celebrated;
(3) When the marriage takes place without the consent of the parents or guardian, as required by law; (4) When the marriage is annulled, and the donee acted in bad faith; (5) Upon legal separation, the donee being the guilty spouse; (6) When the donee has committed an act of ingratitude as specified by the provisions of this Code on donations in general. (1333a) Art. 133. Every donation between the spouses during the marriage shall be void. This prohibition does not apply when the donation takes effect after the death of the donor. Neither does this prohibition apply to moderate gifts which the spouses may give each other on the occasion of any family rejoicing. (1334a)
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Art. 134. Donations during the marriage by one of the spouses to the children whom the other spouse had by another marriage, or to persons of whom the other spouse is a presumptive heir at the time of the donation are voidable, at the instance of the donors heirs after his death. (1335a)
Donations by Reasons of Marriage Donations propter nuptias are made before the celebration of marriage, in consideration of the same, and in favor of one or both of the prospective spouses (Art. 126, Civil Code). Such donations are governed by the Statute of Frauds (Art. 127, Civil Code, overruling previous cases such as Camagay vs. Laguera, 7 Phil. 397 and Velasquez vs. Biala, 18 Phil. 231). For greater efficacy or in order to prejudice third persons, a donation involving real property must be in a public instrument (Art. 1358, Civil Code). The future spouses may give to each other in their marriage settlement up to one-fifth (1/5) of their present property and, with respect to future property, only in the event of death, to the extent that they are not inofficious (Art. 130, Civil Code; Mayor vs. Millan, 103 Phil. 132). Minors may make and receive donations in the antenuptial contract upon the authority of the persons who are required to give their consent to the marriage (Art. 128, Civil Code). Express acceptance is not necessary for the validity of these donations (Art. 129, Civil Code). Revocation of Donations Propter Nuptias A donation propter nuptias may be revoked only upon the following grounds: (1) If it is conditional, and the condition is not complied with; (2) If the marriage is not celebrated; (3) When the marriage takes place without the consent of the parents or guardian, as required by law;
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Art. 135
(4) When the marriage is annulled, and the donee acted in bad faith; (5) When legal separation is decreed, the donee being the guilty spouse; (6) When the donee has committed an act of ingratitude as so specified by the provisions of the Code (infra.) on donations in general (Art. 132, Civil Code). Donations During Marriage Except for moderate gifts which may be given on the occasion of any family rejoicing, the spouses may not donate to each other during marriage; any such prohibited donation shall be void (Art. 133, Civil Code; Aznar vs. Sucilla, 102 Phil. 902). This rule does not include a spouses being a beneficiary of an insurance contract over the life of the other (Gercio vs. Sunlife Assurance Co. of Canada, 48 Phil. 53). Likewise prohibited are donations during marriage by one of the spouses to the children whom the other spouse had by another marriage or to persons of whom the other spouse is a presumptive heir at the time of the donation. These donations, if made, are voidable at the instance of the donors heirs after his death (see Art. 134, Civil Code). The prohibition against donations between spouses apply to common-law relationships, the intendment and spirit of the law being equally applicable and pertinent to such cases (Matabuena vs. Cervantes, 38 SCRA 284).
Chapter 3 Paraphernal Property Art. 135. All property brought by the wife to the marriage, as well as all property she acquires during the marriage, in accordance with Article 148, is paraphernal. (1381a)
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Art. 136. The wife retains the ownership of the paraphernal property. (1382) Art. 137. The wife shall have the administration of the paraphernal property, unless she delivers the same to the husband by means of a public instrument empowering him to administer it. In this case, the public instrument shall be recorded in the Registry of Property. As for the movables, the husband shall give adequate security. (1384a) Art. 138. The fruits of the paraphernal property form part of the assets of the conjugal partnership, and shall be subject to the payment of the expenses of the marriage. The property itself shall also be subject to the daily expenses of the family, if the property of the conjugal partnership and the husbands capital are not sufficient therefor. (1385a) Art. 139. The personal obligations of the husband can not be enforced against the fruits of the paraphernal property, unless it be proved that they redounded to the benefit of the family. (1386) Art. 140. A married woman of age may mortgage, encumber, alienate or otherwise dispose of her paraphernal property, without the permission of the husband, and appear alone in court to litigate with regard to the same. (n) Art. 141. The alienation of any paraphernal property administered by the husband gives a right to the wife to require the constitution of a mortgage or any other security for the amount of the price which the husband may have received. (1390a)
The Paraphernal Property The paraphernal property refers to the exclusive property of the wife over which she retains ownership and exercises dominion and administration. She can dispose of the property in the manner she pleases, subject
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Arts. 142-146
to the daily expenses of the family when either the conjugal property or the husbands capital is insufficient to respond thereto. The fruits of the separate property of the spouses form part of the conjugal property. Systems of Property Relations Basically, the regimes of property relations specifically treated by the Civil Code include the conjugal partnership of gains, the system of absolute community, and the system of complete separation of property.
Chapter 4 Conjugal Partnership of Gains Section 1 General Provisions Art. 142. By means of the conjugal partnership of gains the husband and wife place in a common fund the fruits of their separate property and the income from their work or industry, and divide equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse during the marriage. (1392a) Art. 143. All property of the conjugal partnership of gains is owned in common by the husband and wife. (n) Art. 144. When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. (n) Art. 145. The conjugal partnership shall commence precisely on the date of the celebration of the marriage. Any stipulation to the contrary shall be void. (1393) Art. 146. Waiver of the gains or of the effects of this partnership during marriage cannot be made except in case of judicial separation.
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When the waiver takes place by reason of separation, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument, and the creditors shall have the right which Article 1052 grants them. (1394a) Art. 147. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter. (1395) Section 2 Exclusive Property of Each Spouse Art. 148. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires, during the marriage, by lucrative title; (3) That which is acquired by right of redemption or by exchange with other property belonging to only one of the spouses; (4) That which is purchased with exclusive money of the wife or of the husband. (1396) Art. 149. Whoever gives or promises capital to the husband shall not be subject to warranty against eviction, except in case of fraud. (1397) Art. 150. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the wife as paraphernal property, and to the husband as capital, in the proportion specified by the donor or testator, and in the absence of designation, share and share alike, without prejudice to what is provided in Article 753. (1398a) Art. 151. If the donations are onerous, the amount of the charges shall be deducted from the paraphernal property or from the husbands capital, whenever they have been borne by the conjugal partnership. (1399a) Art. 152. If some credit payable in a certain number of years, or a life pension, should pertain to one of the
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Arts. 153-157
spouses, the provisions of Articles 156 and 157 shall be observed to determine what constitutes the paraphernal property and what forms the capital of the husband. (1400a) Section 3 Conjugal Partnership Property Art. 153. The following are conjugal partnership property: (1) That which is acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) That which is obtained by the industry, or work, or as salary of the spouses, or of either of them; (3) The fruits, rents or interests received or due during the marriage, coming from the common property or from the exclusive property of each spouse. (1401) Art. 154. That share of the hidden treasure which the law awards to the finder or the proprietor belongs to the conjugal partnership. (n) Art. 155. Things acquired by occupation, such as fishing and hunting, pertain to the conjugal partnership of gains. (n) Art. 156. Whenever an amount or credit payable in a certain number of years belongs to one of the spouses, the sums which may be collected by installments due during the marriage shall not pertain to the conjugal partnership, but shall be considered capital of the husband or of the wife, as the credit may belong to one or the other spouse. (1402) Art. 157. The right to an annuity, whether perpetual or for life, and the right of usufruct, belonging to one of the spouses shall form a part of his or her separate property, but the fruits, pensions and interest due during the marriage shall belong to the partnership. The usufruct which the spouses have over the property of their children, though of another marriage, shall be included in this provision. (1403a)
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Art. 158. Improvements, whether for utility or adornment, made on the separate property of the spouses through advancements from the partnership or through the industry of either the husband or the wife, belong to the conjugal partnership. Buildings constructed, at the expense of the partnership, during the marriage on land belonging to one of the spouses, also pertain to the partnership, but the value of the land shall be reimbursed to the spouse who owns the same. (1404a) Art. 159. Whenever the paraphernal property or the husbands capital consists, in whole or in part, of livestock existing upon the dissolution of the partnership, the number of animals exceeding that brought to the marriage shall be deemed to be of the conjugal partnership. (1405a) Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. (1407)
Conjugal Partnership of Gains Regime Article 142 of the Civil Code states that by means of the conjugal partnership of gains the husband and wife place in a common fund the fruits of their separate property and the income from their work or industry, and divide equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse during the marriage. All such property shall be considered owned in common by the husband and the wife (Art. 143, Civil Code), and until the partnership is dissolved, the rights of the spouses have been described as inchoate (Madrigal vs. Rafferty, 38 Phil. 414) or as a mere expectancy (Jose vs. Jose, 41 Phil. 713). Unless valid marriage settlements are entered into before the marriage, setting forth a different property regime, the property relations between husband and wife
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Arts. 142-160
shall be governed by the system of relative community or conjugal partnership of gains (Art. 119, Civil Code) which shall commence precisely on the date the marriage is celebrated (Art. 145, Civil Code). Any waiver of the gains or effects of the partnership during marriage cannot be made except in case of judicial separation or unless the marriage itself is dissolved or annulled. The waiver must be in a public instrument and is valid to the extent that creditors are not prejudiced (Art. 146, in relation to Art. 1052, Civil Code). In determining whether a piece of property is conjugal or separate, a number of criteria might be used as a rule of thumb. Property Acquired Before the Marriage The property is separate property either as capital of the husband or as paraphernal property of the wife (Art. 135 and Art. 148, Civil Code). Pre-Title Acquired Prior to Marriage but Full Title is Vested During Marriage This property is exclusive, and if conjugal funds are used in obtaining full title, the partnership shall be reimbursed. Accordingly, where a contract of sale on installments is entered into before the marriage by one of the spouses and installment payments are continued during the marriage at which time title in fee simple is vested, the property shall be considered exclusive of the husband or paraphernal of the wife, as the case may be, but if conjugal funds are used in the installment payments, such amounts shall be reimbursed to the partnership (see Art. 148, in relation to Art. 153, Civil Code; see Ona vs. Regala, 58 Phil. 881; Lorenzo vs. Nicolas, 91 Phil. 686). In Delizo vs. Delizo (69 SCRA 216), the Supreme Court, on grounds of equity and justice, considered a homestead acquired (perfected) during the second
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marriage, but applied for and initial compliances done during the first marriage, as being conjugal property of both marriages. Property Acquired During the Marriage Any property acquired during the marriage shall be presumed conjugal (Art. 160, Civil Code; Talag vs. Tankengco, 92 Phil. 1066) even if the spouses live separately (Flores vs. Escudero, 92 Phil. 786) but there must be proof that it was acquired during marriage (see Jocson vs. Court of Appeals, 170 SCRA 333). More specifically, the conjugal property consists of (1) That which is acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership or for only one of the spouses; (2) That which is obtained by the industry, or work, or as salary of the spouses, or of either of them such as bonuses and pensions (see Mendoza vs. Dizon, 77 Phil. 533); (3) The fruits, rents or interests received or due during the marriage, coming from the common property or from the exclusive property of each spouse (Art. 153, Civil Code; see Vitug vs. Montemayor, 93 Phil. 939; Rosales vs. Echauz, 55 Phil. 527; Lesaca vs. Lesaca, 91 Phil. 135). In respect of other property (1) Property acquired by lucrative title (Osorio vs. Posadas, 56 Phil. 748; Torela vs. Torela, 93 SCRA 391); or by right of redemption or by exchange with other property belonging to only one of the spouses (Rosete vs. Provincial Sheriff, 95 Phil. 560); or purchased with exclusive money of the wife or of the husband (Mirasol vs. Lim, 59 Phil. 701) are exclusive (see also Art. 148, Arts. 150-152, Arts. 156-157, Civil Code).
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Arts. 142-160
(2) Depreciable property acquired partly utilizing exclusive property and partly conjugal funds is conjugal but reimbursement is due to the spouse whose exclusive property was partly used (Abella de Diaz vs. Erlanger & Galinger, 59 Phil. 326). If the property is non-depreciable in character, the property should be partly conjugal and partly separate in proportion to what had been used in acquiring such property (Castillo vs. Pasco, 11 SCRA 102). (3) Damages recovered by the spouses may either be separate or conjugal depending on the nature thereof. Actual damages (damnum emergens) are either exclusive or conjugal depending on who or which suffered such damages. Damages in the nature of unrealized earnings or profits (lucrum cessans) are conjugal. Moral damages are generally to be considered exclusive (Lilius vs. MRR, 62 Phil. 56). In the exceptional case, however, of Zulueta vs. Pan American (49 SCRA 1), the Supreme Court considered the moral damages recovered by the spouses as a result of the unjustifiable cancellation of their confirmed reservations in Pan-American Airways during their trip abroad as conjugal since the award was collectively adjudged in favor of the spouses premised on a breach of contract and conjugal funds were used in paying for the plane tickets. (4) Winnings in gambling are conjugal (see Art. 142, Civil Code), although the contrary view has been expressed that because losses in gambling are borne by the loser and are not chargeable to the conjugal partnership (Art. 164, Civil Code), the a contrario rule should make the winnings exclusive property of the spouse concerned. (5) Shares in hidden treasures due either to the finder or to the owner of the property where found, and things acquired by occupation, are conjugal (Arts. 154-155, Civil Code).
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(6) Proceeds of life insurance are either conjugal or exclusive, or proportionate, depending on the funds used to pay the premiums (see Bank of P.I. vs. Posadas, 56 Phil. 215). (7) The construction of a building on the separate property of the spouses renders the land conjugal property. Article 158 states that improvements, whether for utility or adornment, made on the separate property of the spouses through advancements from the partnership or through the industry of either the husband or the wife, belong to the conjugal partnership, and that buildings constructed at the expense of the partnership, during the marriage on land belonging to one of the spouses, also pertain to the partnership, but the value of the land shall be reimbursed to the spouse who owns the same. The court decisions on Article 158 have not all been that consistent. In the case of Vda. de Padilla vs. Paterno (96 Phil. 884), the Supreme Court has ruled that the conversion of the land from exclusive to conjugal property is subject to the suspensive condition that its value shall be reimbursed at the time of the liquidation of the conjugal partnership. Under this view, the loss of the building before such liquidation will not permit the conversion to take place (see also Coingco vs. Flores, 84 Phil. 284). In Maramba vs. Lozano (20 SCRA 474), the Supreme Court has held that prior to the liquidation and payment of the lot, the conjugal partnership may use the land and building, but it does, not as owner but as usufructuary since the ownership of the land is unchanged (no conversion) until the value thereof is paid which can only be demanded in the liquidation of the partnership. In Caltex vs. Felias (108 Phil. 873), the Supreme Court has also said that the building must have been constructed at the time when one of the spouses is the owner of the land and not when it is acquired after such construction. In Calimlim-Canullas vs. Judge Fortun and Daguines (129 SCRA 675), where the land was inherited by the
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Arts. 142-160
husband after the building was already constructed thereon, the Supreme Court held as follows: We hold that pursuant to the foregoing provisions (Art. 158, Civil Code), both the land and the building belong to the conjugal partnership but the conjugal partnership is indebted to the husband for the value of the land. The spouse owning the land becomes a creditor of the conjugal partnership for the value of the lot, which value would be reimbursed at the liquidation of the conjugal partnership. This later pronouncement appears to be in keeping not only with the spirit and intendment, but also with the literal meaning, of Article 158. By operation of law and the actual occupancy of the property (equivalent to delivery by the consenting spouse), which are both recognized modes of acquiring ownership (Art. 712, Civil Code), the land becomes conjugal upon the concurrence of the two conditions set by law, i.e., the construction of the building at the expense of the partnership and the ownership of the land by one of the spouses. The obligation to reimburse its value (determined as of such time) forthwith arises and, until paid, the previous owner-spouse becomes a creditor of the partnership. It is submitted, however, that payment could be made even during the marriage, and that it would be inequitable, and without sufficient legal basis, to require the deferment thereof until the liquidation of the partnership. In Common-Law Relationships The law establishes a special and limited coownership between a common-law husband and a common-law wife. Unlike that of the conjugal partnership of gains, the fruits of separate property of the commonlaw spouses remain exclusive and the co-ownership is confined merely to the income derived from their work or industry. Article 144 of the Civil Code provides: When a man and a woman live together as husband and wife, but they are not married, or their
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marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. The co-ownership results in the equal participation of the common-law spouses in the covered property. In Margaret Maxey vs. Court of Appeals (129 SCRA 187), the Supreme Court has held: Prior to the effectivity of the present Civil Code on August 30, 1950, the formation of an informal civil partnership between a man and wife not legally married and their corresponding right to an equal share in properties acquired through their joint efforts and industry during cohabitation was recognized through decision of the court. x x x With the enactment of the new Civil Code, Article 144 codified the law established through judicial precedents but with the modification that the property governed by the rules on co-ownership may be acquired by either or both of them through their work or industry. Even if it is only the man who works, the property acquired during the man and wife relationship belongs through a fifty-fifty sharing to the two of them. This rule established under Article 144 is inapplicable if either or both the common-law spouses suffer from an impediment to marry (Juaniza vs. Jose, 89 SCRA 306). In cases where such impediment exists, equity would dictate that property acquired by the common-law spouses through joint endeavor should be allocated to each of them in proportion to the extent of their respective efforts. The informal civil partnership between the spouses terminate upon their separation (Comporedondo vs. CruzAznar, 102 Phil. 1055).
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Arts. 161-163
Section 4 Charges Upon and Obligations of the Conjugal Partnership Art. 161. The conjugal partnership shall be liable for: (1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership; (2) Arrears or income due, during the marriage, from obligations which constitute a charge upon property of either spouse or of the partnership; (3) Minor repairs or for mere preservation made during the marriage upon the separate property of either the husband or the wife; major repairs shall not be charged to the partnership; (4) Major or minor repairs upon the conjugal partnership property; (5) The maintenance of the family and the education of the children of both husband and wife, and of legitimate children of one of the spouses; (6) Expenses to permit the spouses to complete a professional, vocational or other course. (1408a) Art. 162. The value of what is donated or promised to the common children by the husband, only for securing their future or the finishing of a career, or by both spouses through a common agreement shall also be charged to the conjugal partnership, when they have not stipulated that it is to be satisfied from the property of one of them, in whole or in part. (1409) Art. 163. The payment of debts contracted by the husband or the wife before the marriage shall not be charged to the conjugal partnership. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership. However, the payment of debts contracted by the husband or the wife before the marriage, and that of
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fines and indemnities imposed upon them, may be enforced against the partnership assets after the responsibilities enumerated in Article 161 have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership such spouse shall be charged for what has been paid for the purposes above-mentioned. (1410) Art. 164. Whatever may be lost during the marriage in any kind of gambling, betting or game, whether permitted or prohibited by law, shall be borne by the loser, and shall not be charged to the conjugal partnership. (1411a)
In general, the conjugal partnership property is liable for (1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership, such as for the daily expenses of the family (Art. 115, Civil Code), for moderate donations (Art. 174), when the husband consents to the incurrence of the debt or obligation (Art. 172, Civil Code), or when she is the administratrix of the conjugal partnership (Arts. 167168, Civil Code); (2) Arrears or income due during the marriage, from obligations which constitute a charge upon property of either spouse or of the partnership; (3) Minor repairs or for mere preservation made during the marriage upon the separate property of either the husband or the wife; major repairs shall not be charged to the partnership; (4) Major or minor repairs upon the conjugal partnership property; (5) The maintenance of the family and the education of the children of both husband and wife, and of legitimate children of one of the spouses;
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Arts. 161-164
(6) Expenses to permit the spouses to complete a professional, vocational or other course (see Art. 161, Civil Code); (7) The value of what is donated or promised to the common children by the husband, only for securing their future or the finishing of a career, or by both spouses through a common agreement when they have not stipulated that it is to be satisfied from the property of one of them, in whole or in part (Art. 162, Civil Code); and (8) Daily expenses of the family; if the property of the conjugal partnership and the husbands capital are not sufficient therefore then the paraphernal of the wife may be made to respond thereto (Art. 138, Civil Code). With the exception of moderate donations for charity, neither husband nor wife can donate any property of the conjugal partnership without the consent of the other (Art. 174, Civil Code), but the spouse may dispose by will of his or her half of the conjugal partnership (Art. 170, Civil Code). The payment of debts contracted by either spouse before the marriage, or fines and pecuniary indemnities imposed upon them, shall not be charged to the conjugal partnership. If, however, the spouse liable therefore has no sufficient exclusive property, said obligations may be enforced against the partnership assets after the responsibilities enumerated in Article 161, supra., would have been covered, but at the time of the liquidation of the partnership, the spouse shall be charged for such payment (Art. 163, Civil Code). The personal obligations of the husband cannot be enforced against the fruits of the paraphernal, unless it is proved that the obligations redounded to the benefit of the family (Art. 139; Fidelity & Surety Co. vs. Ansaldo, 66 Phil. 566; Laperal vs. Katigbak, 104 Phil. 999). Ordinarily, it is presumed that, as administrator of the conjugal partnership, the indebtedness he incurs or the losses he sustains in the exercise of his profession or calling or in
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the pursuit of legitimate business are for the benefit of the family and must thus be borne by the partnership, unless he deliberately acted to the prejudice of the family (see G. Tractors, Inc. vs. Court of Appeals, supra.; CobbPerez vs. Lantin, 25 SCRA 637). Other liabilities for which the conjugal partnership of gains may be held to respond include attorneys fees and expenses for litigation in suits for legal separation or annulment of marriage, unless the action fails (Art. 293, Civil Code), as well as the construction of a tombstone or mausoleum and other funeral expenses if the deceased is one of the spouses (Art. 310, Civil Code). The liability of conjugal partnership, being a single entity, may not be considered as the joint and several obligation of the spouses (Gelano vs. Court of Appeals, 103 SCRA 90).
Section 5 Administration of the Conjugal Partnership Art. 165. The husband is the administrator of the conjugal partnership. (1412a) Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wifes consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same. This article shall not apply to property acquired by the conjugal partnerships before the effective date of this Code. (1413a) Art. 167. In case of abuse of powers of administration of the conjugal partnership property by the husband, the courts, on petition of the wife, may provide for a receivership, or administration by the wife, or separation of property. (n)
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Arts. 165-174
Art. 168. The wife may, by express authority of the husband embodied in a public instrument, administer the conjugal partnership property. (n) Art. 169. The wife may also by express authority of the husband appearing in a public instrument, administer the latters estate. (n) Art. 170. The husband or the wife may dispose by will of his or her half of the conjugal partnership profits. (1414a) Art. 171. The husband may dispose of the conjugal partnership property for the purposes specified in Articles 161 and 162. (1415a) Art. 172. The wife cannot bind the conjugal partnership without the husbands consent, except in cases provided by law. (1416a) Art. 173. The wife may, during the marriage, and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband. (n) Art. 174. With the exception of moderate donations for charity, neither husband nor wife can donate any property of the conjugal partnership without the consent of the other. (n)
The husband is the administrator of the conjugal partnership of gains (Art. 165, Civil Code), but each of the spouses retains respective control over their exclusive property; and neither of the other spouse may bind such separate property (Cafure vs. Morales, 25 Phil. 342; Bank of P.I. vs. De Coster, 49 Phil. 574; Laperal vs. Katigbak, 90 Phil. 770) unless authorized by the owner-spouse (see Art. 137, Civil Code; Philippine Sugar Estates Development vs. Poizat, 48 Phil. 536).
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The husband cannot alienate or encumber any conjugal real property (acquired by the partnership after the effective date of the Civil Code) without the wifes consent, express or implied (Art. 166, Civil Code; Bautista vs. Lovina, 98 Phil. 1006); otherwise, said the Supreme Court in Garcia vs. Court of Appeals (130 SCRA 433), the disposition is void (although it would be preferable to consider it merely voidable (see Art. 173, infra.) except in the sale of land or interest therein which could be void under Art. 1874; see also Manotok Realty vs. Court of Appeals, 149 SCRA 372). If she refuses unreasonably to give such consent, the court may compel her to grant the same. The consent of the wife is not required if she has been declared a non compos mentis or a spendthrift or is under civil interdiction or is confined in a leprosarium (Art. 166, Civil Code), or if the conveyance is for the purpose of discharging any of the obligations of the conjugal partnership under articles 161 and 162 (supra., in relation to Art. 171; Tinitigan vs. Tinitigan, 100 SCRA 619). In cases where the wifes consent is required and such consent is not obtained, or, generally, when any act or contract by the husband tends to defraud her to impair her interest, the wife may, during marriage, and within 10 years from the questioned transaction, seek its annulment (see Roxas vs. Court of Appeals, 198 SCRA 541). If she fails to do so, she or her heirs, after the dissolution of the marriage, may demand the value of the property fraudulently alienated (Art. 173, Civil Code). Without the husbands consent, which can be implied (Bautista vs. Lovina, 98 Phil. 1006), the wife cannot bind the conjugal partnership except in cases provided by law (Art. 172, Civil Code). In Felipe vs. Aldon (100 SCRA 628), the Supreme Court, holding that the term invalid used by the then Intermediate Appellate Court was imprecise, declared voidable the unauthorized conveyance of conjugal real property by the wife. It would seem, however, that the issue being one of want of authority on
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Arts. 165-174
the part of the wife, the view that the contract is unenforceable appears to be the more accurate description of the agreement (see Art. 1403, Civil Code) unless the sale involves land or any interest therein that renders the contract void (Art. 1874, Civil Code). In the following cases the wife may bind the conjugal partnership: (1) When the husband consents (Art. 172, Civil Code); (2) For daily expenses of the family (Art. 115, Civil Code); (3) Moderate donations for charity (Art. 174, Civil Code); and (4) When the wife is the administratrix of the conjugal partnership of gains. The administration of the conjugal partnership of gains may be vested in the wife under the marriage settlement (Art. 190, Civil Code), or by express authority of the husband embodied in a public instrument (Art. 168, Civil Code), or by a court order (Art. 196, Civil Code). Upon petition of the wife, the administration of all classes of property in the marriage may be transferred to her by the courts (1) When she becomes the guardian of her husband; (2) When she asks for the declaration of his absence; (3) In case of civil interdiction of the husband; (4) If the husband should become a fugitive from justice or be in hiding as a defendant in a criminal case; (5) If, being absolutely unable to administer, he should have failed to provide for administration (Art. 196, Civil Code); or (6) If the husband abandons the wife without just cause for at least one year (Art. 178).
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In the last two cases, the conferment of administration by the courts may be held subject to such limitations as may be deemed advisable (Art. 196, in relation to Art. 178, Civil Code). When such administration is transferred to the wife, the latter shall have the same powers and responsibilities which the husband has when he is the administrator (Art. 197, Civil Code).
Section 6 Dissolution of the Conjugal Partnership Art. 175. The conjugal partnership of gains terminates: (1) (2) (3) Upon the death of either spouse; When there is a decree of legal separation; When the marriage is annulled;
(4) In case of judicial separation of property under Article 191. (1417a) Art. 176. In case of legal separation, the guilty spouse shall forfeit his or her share of the conjugal partnership profits, which shall be awarded to the children of both, and the children of the guilty spouse had by a prior marriage. However, if the conjugal partnership property came mostly or entirely from the work or industry, or from the wages and salaries, or from the fruits of the separate property of the guilty spouse, this forfeiture shall not apply. In case there are no children, the innocent spouse shall be entitled to all the net profits. (n) Art. 177. In case of annulment of the marriage, the spouse who acted in bad faith or grave cause for annulment shall forfeit his or her share of the conjugal partnership profits. The provisions of the preceding article shall govern. (n) Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that:
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Arts. 179-183
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have a right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be necessary; (3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property, or separation of property. (n) Section 7 Liquidation of the Conjugal Partnership Art. 179. Upon the dissolution of the conjugal partnership, an inventory shall be formed, but such inventory shall not be necessary: (1) If after the dissolution of the partnership, one of the spouses should have renounced its effects and consequences in due time; or (2) When separation of property has preceded the dissolution of the partnership. (1418a) Art. 180. The bed and bedding which the spouses ordinarily use shall not be included in the inventory. These effects, as well as the clothing for their ordinary use, shall be delivered to the surviving spouse. (1420) Art. 181. The inventory having been completed, the paraphernal property shall first be paid. Then, the debts and charges against the conjugal partnership shall be paid. (1422a) Art. 182. The debts, charges and obligations of the conjugal partnership having been paid, the capital of the husband shall be liquidated and paid to the amount of the property inventoried. (1423a) Art. 183. The deductions from the inventoried property having been made as provided in the two preceding articles, the remainder of said property shall constitute the credit of the conjugal partnership. (1424)
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Art. 184. The loss or deterioration of the movables belonging to either spouse, although through a fortuitous event, shall be paid from the conjugal partnership of gains, should there be any. Those suffered by real property shall not be reimbursable in any case, except those on paraphernal property administered by the husband, when the losses were due to his fault. He shall pay for the same. (1425a) Art. 185. The net remainder of the conjugal partnership of gains shall be divided equally between the husband and the wife or their respective heirs, unless a different basis of division was agreed upon in the marriage settlements. (1426a) Art. 186. The mourning apparel of the widow shall be paid for out of the estate of the deceased husband. (1427a) Art. 187. With regard to the formation of the inventory, rules for appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in the present Chapter, the Rules of Court on the administration of estates of deceased persons shall be observed. (1428a) Art. 188. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (1430) Art. 189. Whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time, in order to determine the capital of each partnership all kinds of proof in the absence of inventories shall be admitted; and in case of doubt, the partnership property shall be divided between the different partnerships in proportion to the duration of each and to the property belonging to the respective spouses. (1431)
140
Arts. 175-189
The conjugal partnership of gains terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled; or (4) In case of judicial separation of property (Art. 175, in relation to Arts. 144-145, and Art. 191, Civil Code). A partition without judicial approval is void (Luna vs. Linatoc, 74 Phil. 15; Art. 190, Civil Code). In case of legal separation, the guilty spouse, and in the case of annulment of marriage, the spouse who acted in bad faith or gave cause for annulment shall forfeit his or her share of the conjugal partnership profits, which shall be awarded to the children of both spouses and the children of the offending spouse had by a prior marriage; Provided, however, That if the conjugal partnership property had come mostly or entirely from the work or industry, or from wages, and salaries, or from the fruits of the separate property of such spouse, the forfeiture will not apply (Arts. 176-177, Civil Code). If both spouses have been offenders, the pari delicto rule would apply (Ricafuente vs. Ventura [C.A.], 53 O.G. 6117). The separation in fact between the spouses without judicial approval does not affect the conjugal partnership, except that (1) the spouse who leaves the conjugal home or refuses to live therein without just cause shall lose the right of support; (2) when the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be necessary; (3) if the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership or administration by her of the conjugal partnership property, or separation of property (Art. 178, Civil Code).
Art. 190
PERSONS Title VI. Property Relations Between Husband and Wife
141
Upon the dissolution of the conjugal partnership, the property shall be inventoried, liquidated and distributed in the following order: (1) Payment of the paraphernal property; (2) Payment of debt, charges and obligations of the conjugal partnership; (3) Payment of the capital of the husband; (4) Reimbursement of the loss or deterioration of movables belonging to either spouse. The net remainder shall be divided equally between the husband and the wife, or their respective heirs, unless a different basis of division had been agreed upon in the marriage settlements. When the paraphernal property is administered by the husband, any loss or deterioration due to his fault shall be paid for by him (see Arts. 179187, Civil Code). If the property is insufficient to pay for all the debts of the partnership, the spouses are jointly, not solidarily, liable (National Bank vs. Quintos, 46 Phil. 370). Whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time, all kinds of proof, in the absence of inventories, shall be admitted in order to determine the capital of each partnership. In case of doubt, the partnership property shall be divided between the partnership in proportion to the duration of each and to the property belonging to the respective spouse (Art. 189, Civil Code; see Dolar vs. Roman Catholic Bishop of Jaro, 68 Phil. 727).
Chapter 5 Separation of Property of the Spouses and Administration of Property by the Wife During the Marriage Art. 190. In the absence of an express declaration in the marriage settlements, the separation of property
142
Arts. 191-192
between spouses during the marriage shall not take place save in virtue of a judicial order. (1432a) Art. 191. The husband or the wife may ask for the separation of property, and it shall be decreed when the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction, or has been declared absent, or when legal separation has been granted. In case of abuse of powers of administration of the conjugal partnership property by the husband, or in case of abandonment by the husband, separation of property may also be ordered by the court, according to the provisions of Articles 167 and 178, No. 3. In all these cases, it is sufficient to present the final judgment which has been entered against the guilty or absent spouse. (1433a) The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. After dissolution of the conjugal partnership, the provisions of Articles 214 and 215 shall apply. The provisions of this Code concerning the effect of partition stated in Articles 498 to 501 shall be applicable. (1433a) Art. 192. Once the separation of property has been ordered, the conjugal partnership shall be dissolved, and its liquidation shall be made in conformity with what has been established by this Code. However, without prejudice to the provisions of Article 292, the husband and the wife shall be reciprocally liable for their support during the separation, and for
143
the support and education of their children; all in proportion to their respective property. The share of the spouse who is under civil interdiction or absent shall be administered in accordance with the Rules of Court. (1434a) Art. 193. The complaint for separation and the final judgment declaring the same, shall be noted and recorded in the proper registers of property, if the judgment should refer to immovable property. (1437) Art. 194. The separation of property shall not prejudice the rights previously acquired by creditors. (1438) Art. 195. The separation of property ceases: (1) Upon reconciliation of the spouses, in case of legal separation; (2) (3) When the civil interdiction terminates; When the absent spouse appears;
(4) When the court, at the instance of the wife, authorizes the husband to resume the administration of the conjugal partnership, the court being satisfied that the husband will not again abuse his powers as an administrator; (5) When the husband, who has abandoned the wife, rejoins her. In the above cases, the property relations between the spouses shall be governed by the same rules as before the separation, without prejudice to the acts and contracts legally executed during the separation. The spouses shall state, in a public document, all the property which they return to the marriage and which shall constitute the separate property of each. This public document shall be recorded in the Registry of Property. In the cases referred to in this article, all the property brought in shall be deemed to be newly contributed, even though all or some may be the same
144
Arts. 190-197
which existed before the liquidation effected by reason of the separation. (1439a) Art. 196. With the conjugal partnership subsisting, the administration of all classes of property in the marriage may be transferred by the courts to the wife: (1) When she becomes the guardian of her husband; (2) When she asks for the declaration of his absence; (3) In case of civil interdiction of the husband.
The courts may also confer the administration to the wife, with such limitations as they may deem advisable, if the husband should become a fugitive from justice or be in hiding as a defendant in a criminal case, or if, being absolutely unable to administer, he should have failed to provide for administration. (1441a) Art. 197. The wife to whom the administration of all the property of the marriage is transferred shall have, with respect to said property, the same powers and responsibility which the husband has when he is the administrator, but always subject to the provisions of the last paragraph of the preceding article. (1442a)
The husband or the wife may ask for the separation of property, which shall be decreed, when the other spouse has been sentenced to a penalty which carries with it civil interdiction, or has been declared absent (in a separate proceeding [Peyer vs. Martinez, 88 Phil. 72]), or by the wife in case of abuse of powers of administration by the husband of the conjugal partnership (Garcia vs. Manzano, 103 Phil. 798). The spouse may themselves agree upon the dissolution of the partnership during the marriage subject to judicial approval which shall provide for such measures as may be necessary to protect the creditors and other third persons (Art. 191, Civil Code). Without such court approval, the partition of the conjugal estate would be void (see Art. 190, Civil Code; Luna vs. Linatoc, 74 Phil. 15).
145
During the separation, the husband and the wife shall be reciprocally liable for support, as well as for the support and education of the children, in proportion to their respective property. The separation shall not prejudice the rights previously acquired by creditors (Arts. 193-194, Civil Code). The separation of property ceases: (1) upon the reconciliation of the spouses, in case of legal separation; (2) when the civil interdiction terminates; (3) when the absent spouse appears; (4) when the court, at the instance of the wife, authorizes the husband to resume the administration of the conjugal partnership, the court being satisfied that the husband will not again abuse his powers as an administrator; and (5) when the husband, who has abandoned the wife, rejoins her. In the foregoing cases, all the property brought in shall be deemed to be newly contributed, even though all or some may be the same which existed before the liquidation effected by reason of the separation (Art. 195, Civil Code). Suppletory Law to Conjugal Partnership of Gains In matters not provided for in all the foregoing rules governing the conjugal partnership, the law on the contract of partnership, if not inconsistent, will apply (Art. 147, Civil Code).
Chapter 6 System of Absolute Community Art. 198. In case the future spouses agree in the marriage settlements that the system of absolute community shall govern their property relations during marriage, the following provisions shall be of supplementary application. Art. 199. In the absence of stipulation to the contrary, the community shall consist of all present and future property of the spouses not excepted by law.
146
Arts. 200-205
Art. 200. Neither spouse may renounce any inheritance without the consent of the other. In case of conflict, the court shall decide the question, after consulting the family council, if there is any. Art. 201. The following shall be excluded from the community: (1) Property acquired by gratuitous title by either spouse, when it is provided by the donor or testator that it shall not become a part of the community; (2) Property inherited by either husband or wife through the death of a child by a former marriage, there being brothers or sisters of the full blood of the deceased child; (3) A portion of the property of either spouse equivalent to the presumptive legitime of the children by a former marriage; (4) Personal belongings of either spouse.
However, all the fruits and income of the foregoing classes of property shall be included in the community. Art. 202. Ante-nuptial debts of either spouse shall not be paid from the community, unless the same have redounded to the benefit of the family. Art. 203. Debts contracted by both spouses or by one of them with the consent of the other shall be paid from the community. If the common property is insufficient to cover common debts, the same may be enforced against the separate property of the spouses, who shall be equally liable. Art. 204. Debts contracted by either spouse without the consent of the other shall be chargeable against the community to the extent that the family may have been benefited thereby. Art. 205. Indemnities that must be paid by either spouse on account of a crime or of a quasi-delict shall be paid from the common assets, without any obligation to make reimbursement.
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Art. 206. The ownership, administration, possession and enjoyment of the common property belong to both spouses jointly. In case of disagreement, the courts shall settle the difficulty. Art. 207. Neither spouse may alienate or encumber any common property without the consent of the other. In case of unjustifiable refusal by the other spouse, the courts may grant the necessary consent. Art. 208. The absolute community of property shall be dissolved on any of the grounds specified in Article 175. Art. 209. When there is a separation in fact between husband and wife, without judicial approval, the provisions of Article 178 shall apply. Art. 210. Upon the dissolution and liquidation of the community, the net assets shall be divided equally between the husband and the wife or their heirs. In case of legal separation or annulment of marriage, the provisions of Articles 176 and 177 shall apply to the net profits acquired during the marriage. Art. 211. Liquidation of the absolute community shall be governed by the Rules of Court on the administration of the estate of deceased persons.
System of Absolute Community The future spouses may agree on a system of absolute community in a marriage settlement (Art. 198, Civil Code) and, unless otherwise stipulated, the community shall consist of all present and future property (Art. 199, Civil Code), except (1) Property acquired by gratuitous title by either spouse, when it is provided by the donor or testator that it shall not become a part of the community; (2) Property inherited by either husband or wife through the death of a child by a former marriage, there being brothers or sisters of the full blood of the deceased child;
148
Arts. 198-211
(3) A portion of the property of either spouse equivalent to the presumptive legitime of the children by a former marriage; and (4) Personal belongings of either spouse. The fruits and income of the above excluded property, however, shall be included in the community (Art. 201, Civil Code). The following rules are suppletory to the system of community of property (1) Neither spouse may renounce any inheritance without the consent of the other (Art. 200, Civil Code). (2) Ante-nuptial debts of either spouse shall not be paid from the community, unless the same have redounded to the benefit of the family (Art. 202, Civil Code). (3) Debts contracted by both spouses or by one of them with the consent of the other shall be paid from the community, and if the common property is insufficient, the debts may be enforced against the separate property of the spouses in equal portions (Art. 203, Civil Code). (4) Debts contracted by either spouse without the consent of the other shall be chargeable against the community only to the extent that the family may have been benefited (Art. 204, Civil Code). (5) Indemnities required to be paid by either spouse on account of a crime or of a quasi-delict shall be paid from the community without obligation to make reimbursements (Art. 205, Civil Code). (6) The ownership, administration, possession and enjoyment of the common property belong to the spouses jointly but in case of disagreement, the courts shall settle the question (Art. 206, Civil Code). (7) Neither spouse may alienate or encumber any common property without the consent of the other but in case of unjustifiable refusal to give that consent, the courts may grant relief (Art. 207, Civil Code).
149
(8) The community shall be dissolved for the same grounds that would dissolve the conjugal partnership of gains (Art. 208, in relation to Art. 175, Civil Code); when the husband and wife are separated in fact, the provisions on conjugal partnership of gains shall likewise be applicable (Art. 209, in relation to Art. 178, Civil Code). (9) Upon the dissolution and liquidation of the community, the net assets shall be divided equally between the spouses or among their heirs. In case of legal separation or annulment of marriage, the forfeiture provisions in the conjugal partnership of gains in respect of net profits shall likewise apply (Art. 210, in relation to Arts. 176-177, Civil Code).
Chapter 7 System of Complete Separation of Property (n) Art. 212. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be based upon the system of complete separation of property, the following provisions shall supplement the marriage settlements. Art. 213. Separation of property may refer to present or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the conjugal partnership of gains. Art. 214. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without the consent of the other. All earnings from any profession, business or industry shall likewise belong to each spouse. Art. 215. Each spouse shall proportionately bear the family expenses.
System of Complete Separation of Property The future spouses may agree on a system of complete separation of property in the marriage settlement.
150
Arts. 212-215
Such separation may refer to present or future property or both. In case of partial separation of property, that which is not agreed upon to be separate shall pertain to and be governed by the conjugal partnership of gains (Arts. 212-213, Civil Code). Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate without the consent of the other and both shall proportionately bear the family expenses (Arts. 214-215, Civil Code). Governing Rule on Mixed Marriages If the marriage is between a citizen of the Philippines and a foreigner, whether celebrated in the Philippines or abroad, the following rules shall prevail: (1) If the husband is a citizen of the Philippines while the wife is a foreigner, the foregoing rules on property relations of the spouses shall govern; (2) If the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the husbands country shall be followed, without prejudice to the provisions of the Civil Code with regard to immovable property (Art. 124, in relation to Art. 16, par. 2, Civil Code). As stated elsewhere before, the proviso on immovable property relates to laws on property (in consonance with Art. 16 of the Code); hence, said proviso should not be understood as conveying, for instance, that the provisions on conjugal partnership of gains (in the absence of property settlements) should necessarily apply in respect of real property located in the Philippines despite a specific governing law of the country of the husbands nationality.
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TITLE VII. THE FAMILY

Chapter 1 The Family as an Institution
Authors notes: The provisions of the Civil Code in this title have been repealed by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof) which took effect on 3 August 1988.
Art. 216. The family is a basic social institution which public policy cherishes and protects. Art. 217. Family relations shall include those: (1) (2) Between husband and wife; Between parent and child;
(3) Among other ascendants and their descendants; (4) Among brothers and sisters.
Art. 218. The law governs family relations. No custom, practice or agreement which is destructive of the family shall be recognized or given any effect. Art. 219. Mutual aid, both moral and material, shall be rendered among members of the same family. Judicial and administrative officials shall foster this mutual assistance. Art. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage,
151
152
Arts. 216-222
the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression. Art. 221. The following shall be void and of no effect: (1) Any contract for personal separation between husband and wife; (2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife; (3) Every collusion to obtain a decree of legal separation, or of annulment of marriage; (4) Any simulated alienation of property with intent to deprive the compulsory heirs of their legitime. Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035.
The Family as an Institution The family is a basic social institution which public policy cherishes and protects (Art. 216, Civil Code). No custom, practice or agreement which is destructive of the family shall be recognized or given any effect (Art. 218, Civil Code). In case of doubt, all presumptions favor the solidarity of the family. Accordingly, the intendment of the law leans towards the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of the children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression (Arts. 218-220, Civil Code). A man and a woman living together shall be presumed married (Sison vs. Amblada, 30 Phil. 118).
Arts. 216-222
PERSONS Title VII. The Family
153
The Constitution provides: In Article II thereof Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. In Article XV thereof Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Sec. 3. The State shall defend: (1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.
154
Arts. 216-222
Sec. 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. The family relations include those: (1) between husband and wife; (2) between parent and child; (3) among other ascendants and their descendants; (4) among brothers and sisters. The law governs these family relations and among them mutual aid, both moral and material, shall be rendered (Arts. 217-219, Civil Code). In keeping with public policy, the law considers to be void and of no effect the following: (1) Any contract for personal separation between husband and wife; (2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife; (3) Every collusion to obtain a decree of legal separation, or of annulment of marriage; (4) Any simulated alienation of property with intent to deprive the compulsory heirs of their legitimes (Art. 221, Civil Code). The law likewise mandates that no suit shall be filed or maintained by and among members of the family unless earnest efforts toward a compromise have been made, but that the same have failed (Art. 222, Civil Code, subject to the limitations in Art. 2035 [infra.]). This requirement is jurisdictional but is inapplicable if one or some of the parties are strangers (Magbaleta vs. Gonong, 76 Phil. 511). Every effort toward a compromise should be made before a litigation is allowed to breed hate and passion in the family. It is generally known that lawsuits between close relatives generate deeper bitterness than those involving strangers (Vda. De Manalo vs. Court of Appeals, G.R. No. 129242, 16 January 2001). Article 222 finds application only to ordinary civil actions (ibid.). A brotherin-law is not a member of the family of his wife and is
Arts. 223-226
155
outside the coverage of Article 222 of the Civil Code requiring efforts to bring about a compromise before the commencement of a litigation (Esquivias vs. Court of Appeals, 82 SCAD 927, 272 SCRA 803). The phrase between members of the same family should be construed in the light of Article 217 of the Civil Code under which family relations include only those: (a) between husband and wife, (b) between parent and child, (c) among other ascendants and their descendants, and (d) among brothers and sisters (ibid.).
Chapter 2 The Family Home Section 1 General Provisions Art. 223. The family home is the dwelling house where a person and his family reside, and the land on which it is situated. If constituted as herein provided, the family home shall be exempt from execution, forced sale or attachment, except as provided in Articles 232 and 243. Art. 224. The family home may be established judicially or extrajudicially. Section 2 Judicial Constitution of the Family Home Art. 225. The family home may be constituted by a verified petition to the Court of First Instance by the owner of the property, and by approval thereof by the court. Art. 226. The following shall be the beneficiaries of the family home: (1) (2) The person establishing the same; His or her spouse;
(3) His or her parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or otherwise, who are living in the family home and who depend upon him for support.
156
Arts. 227-232
Art. 227. The family home may also be set up by an unmarried person who is the head of a family or household. Art. 228. If the petitioner is married, the family home may be selected from the conjugal partnership or community property, or from the separate property of the husband, or, with the consent of the wife, from her paraphernal property. Art. 229. The petition shall contain the following particulars: (1) (2) Description of the property; An estimate of its actual value;
(3) A statement that the petitioner is actually residing in the premises; (4) The encumbrances thereon; (5) The names and addresses of all the creditors of the petitioner and of all mortgagees and other persons who have an interest in the property; (6) The names of the other beneficiaries specified in Article 226. Art. 230. Creditors, mortgagees and all other persons who have an interest in the estate shall be notified of the petition, and given an opportunity to present their objections thereto. The petition shall, moreover, be published once a week for three consecutive weeks in a newspaper of general circulation. Art. 231. If the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced, the petition shall be approved. Should any creditor whose claim is unsecured, oppose the establishment of the family home, the court shall grant the petition if the debtor gives sufficient security for the debt. Art. 232. The family home, after its creation by virtue of judicial approval, shall be exempt from execution, forced sale, or attachment, except: (1) For nonpayment of taxes; or
Arts. 233-237
157
(2) In satisfaction of a judgment on a debt secured by a mortgage constituted on the immovable before or after the establishment of the family home. In case of insolvency of the person constituting the family home, the property shall not be considered one of the assets to be taken possession of by the assignee for the benefit of creditors. Art. 233. The order of the court approving the establishment of the family home shall be recorded in the Registry of Property. Art. 234. When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home. Art. 235. The family home may be sold, alienated or encumbered by the person who has constituted the same, with the consent of his or her spouse, and with the approval of the court. However, the family home shall under no circumstances be donated as long as there are beneficiaries. In case of sale, the price or such portion thereof as may be determined by the court shall be used in acquiring property which shall be formed into a new family home. Any sum of money obtained through an encumbrance on the family home shall be used in the interest of the beneficiaries. The court shall take measures to implement the last two provisions. Art. 236. The family home may be dissolved upon the petition of the person who has constituted the same, with the written consent of his or her spouse and of at least one half of all the other beneficiaries who are eighteen years of age or over. The court may grant the petition if it is satisfactorily shown that the best interest of the family requires the dissolution of the family home. Art. 237. In case of legal separation or annulment of marriage, the family home shall be dissolved, and the property shall cease to be exempt from execution, forced sale or attachment.
158
Arts. 238-243
Art. 238. Upon the death of the person who has set up the family home, the same shall continue, unless he desired otherwise in his will. The heirs cannot ask for its partition during the first ten years following the death of the person constituting the same, unless the court finds powerful reasons therefor. Art. 239. The family home shall not be subject to payment of the debts of the deceased, unless in his will the contrary is stated. However, the claims mentioned in Article 232 shall not be adversely affected by the death of the person who has established the family home. Section 3 Extrajudicial Creation of the Family Home Art. 240. The family home may be extrajudicially constituted by recording in the Registry of Property a public instrument wherein a person declares that he thereby establishes a family home out of a dwelling place with the land on which it is situated. Art. 241. The declaration setting up the family home shall be under oath and shall contain: (1) A statement that the claimant is the owner of, and is actually residing in the premises; (2) (3) A description of the property; An estimate of its actual value; and
(4) The names of the claimants spouse and the other beneficiaries mentioned in Article 226. Art. 242. The recording in the Registry of Property of the declaration referred to in the two preceding articles is the operative act which creates the family home. Art. 243. The family home extrajudicially formed shall be exempt from execution, forced sale or attachment, except: (1) For nonpayment of taxes;
(2) For debts incurred before the declaration was recorded in the Registry of Property;
Arts. 244-249
159
(3) For debts secured by mortgages on the premises before or after such record of the declaration; (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. Art. 244. The provisions of Articles 226 to 228 and 235 to 238 are likewise applicable to family homes extrajudicially established. Art. 245. Upon the death of the person who has extrajudicially constituted the family home, the property shall not be liable for his debts other than those mentioned in Article 243. However, he may provide in his will that the family home shall be subject to payment of debts not specified in Article 243. Art. 246. No declaration for the extrajudicial establishment of the family home shall be recorded in the Registry of Property if the estimated actual value of the building and the land exceeds the amount stated in Article 231. Art. 247. When a creditor whose claim is not mentioned in Article 243 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home of the judgment debtor is worth more than the amount mentioned in Article 231, he may apply to the Court of First Instance for an order directing the sale of the property under execution. Art. 248. The hearing on the petition, appraisal of the value of the family home, the sale under execution and other matters relative to the proceedings shall be governed by such provisions in the Rules of Court as the Supreme Court shall promulgate on the subject, provided they are not inconsistent with this Code. Art. 249. At the sale under execution referred to in the two preceding articles, no bid shall be considered unless it exceeds the amount specified in Article 231. The proceeds of the sale shall be applied in the following order: (1) To the amount mentioned in Article 231;
160
Arts. 223-251
(2)
To the judgment and the costs.
The excess, if any, belongs to the person constituting the family home. Art. 250. The amount mentioned in Article 231 thus received by the person who has established the family home, or as much thereof as the court may determine, shall be invested in the constitution of a new family home. The court shall take measures to enforce this provision. Art. 251. In case of insolvency of the person creating the family home, the claims specified in Article 243 may be satisfied notwithstanding the insolvency proceedings. If the assignee has reasonable grounds to believe that the actual value of the family home exceeds the amount fixed in Article 231, he may take action under the provisions of Articles 247, 248 and 249.
The Family Home The family home is the dwelling house, not inclusive of the movables therein, where a person and his family resides, and the land on which it is situated. The family home may be established judicially or extrajudicially (Arts. 223-224, Civil Code). The family home may be constituted by the owner of the property; if married, the family home may be selected from the conjugal partnership or community property or from paraphernal property with the consent of the wife. The family home may be set up by an unmarried person who is the head of a family or household. It may also be constituted by the other spouse and a majority of those entitled to be supported by a person when there is a danger that the latter may lose his or her fortune because of mismanagement or on account of riotous living (see Arts. 225, 227, 228, 234, Civil Code). The judicial constitution of a family home is done by a verified petition with the Regional Trial Court and its
Arts. 223-251
161
approval thereof (Art. 225, Civil Code). Creditors, mortgagees, and all other persons who have an interest in the property shall be notified of the petition and given an opportunity to present their objections. The petition shall, moreover, be published once a week for three consecutive weeks in a newspaper of general circulation (Art. 230, Civil Code). The family home is constituted extrajudicially by the recording in the Registry of Property of a public instrument wherein a person declares that he thereby establishes a family home (Art. 240, Civil Code). The actual value of the family home must not exceed twenty thousand pesos (P20,000), or thirty thousand pesos (P30,000) in chartered cities (Art. 231, Civil Code). Once duly constituted, a family home shall be exempt from execution, forced sale or attachment (Art. 223, Civil Code) except a) In the case of judicially constituted family home: (i) For non-payment of taxes; or
(ii) In satisfaction of a judgment on a debt secured by a mortgage constituted on the property before or after the establishment of a family home (Art. 232, Civil Code). b) home: In the case of extrajudicially constituted family (i) For non-payment of taxes;
(ii) For debts incurred before the declaration was recorded in the Registry of Property; (iii) For debts secured by mortgages on the premises before or after such recording; and (iv) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or materials for the construction of the building (Art. 243, Civil Code).
162
Arts. 223-251
The family home shall inure to the benefit of: (a) the person establishing the same; (b) his or her spouse; and (c) his or her parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or otherwise, who are living in the family home and who depend upon him for support (Art. 226, Civil Code). The family home may not be sold, alienated or encumbered without the consent of the other spouse and the approval of the court. In case of sale, the price of such portion thereof as the court may determine shall be used in acquiring and constituting a family home. Any sum obtained through an encumbrance may only be used in the interest of the beneficiaries. Under no circumstances may the family home be donated as long as there are beneficiaries. (Art. 235, Civil Code). Dissolution of the Family Home The family home may be dissolved in the following cases: (1) Upon petition of the person who has constituted the same with the written consent of the other spouse and of at least one-half of all the other beneficiaries who are 18 years of age or over; the court may grant the petition if it is satisfied that such dissolution would be for the best interest of the family (Art. 236, Civil Code); (2) In case of legal separation or annulment of the marriage (Art. 237, Civil Code); (3) Upon the death of the person who has set up the family home if it is so desired in his will; otherwise, the heirs cannot ask for its partition during the first 10 years following the death of the person unless the court finds powerful reasons therefor (Art. 238, Civil Code); (4) In the case of extrajudicially (not judicially) constituted family home, if a creditor whose claim is not mentioned in Article 243 (supra.) obtains a judgment in his favor and he has reasonable grounds to believe that
Arts. 252-254
163
the family home of the judgment debtor is worth more than P20,000, or P30,000 in chartered cities at the time of the constitution thereof, the court may direct the sale of the property, the proceeds of which shall be applied in the following order (a) To the amount mentioned in Article 231 (supra.); (b) To the judgment and the costs, the excess, if any, belonging to the persons constituting the family home (Art. 249, Civil Code).
Chapter 3 The Family Council (n) Art. 252. The Court of First Instance may, upon application of any member of the family, a relative, or a friend, appoint a family council, whose duty it shall be to advise the court, the spouses, the parents, the guardians and the family on important family questions. Art. 253. The family council shall be composed of five members, who shall be relatives of the parties concerned. But the court may appoint one or two friends of the family. Art. 254. The family council shall elect its chairman, and shall meet at the call of the latter or upon order of the court.
The Family Council The family council may be appointed by a Regional Trial Court, upon application of any member of the family, a relative, or friend, which shall have the duty of advising the court, the spouses, the parents, guardians and the family on important family questions. It shall be composed of five members who shall be relatives of the parties concerned but the court may appoint one or two friends of the family (Arts. 252-253, Civil Code).
164
TITLE VIII. PATERNITY AND FILIATION

Authors note: The provisions of the Civil Code in this title have been repealed by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof) which took effect on 3 August 1988. Paternity is the civil status of a father with regard to the child, while filiation is the civil status of a child with regard to his parents. Children may either be legitimate, legitimated, adopted, natural or spurious. Legitimate children are those born of parents who are lawfully married. Legitimated children are those who are born natural children of, and acknowledged by, parents who subsequently marry. Adopted children are those who by legal and judicial process have so been decreed as adopted by the courts. Natural children are those born outside wedlock of parents who at the time of the conception of the former were not disqualified by any impediment to marry. Spurious children are children of parents who were unmarried but who could not have married because of an impediment at the time of the conception or birth of the child.
Chapter 1 Legitimate Children Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.
164
Arts. 255-259
PERSONS Title VIII. Paternity and Filiation
165
Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband;
(2) By the fact that the husband and wife were living separately, in such a way that access was not possible; (3) By the serious illness of the husband. (108a)
Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (109) Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in Article 255, the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purposes of this article, the wifes adultery need not be proved in a criminal case. (n) Art. 258. A child born within one hundred eighty days following the celebration of the marriage is prima facie presumed to be legitimate. Such a child is conclusively presumed to be legitimate in any of these cases: (1) If the husband, before the marriage, knew of the pregnancy of the wife; (2) If he consented, being present, to the putting of his surname on the record of birth of the child; (3) If he expressly or tacitly recognized the child as his own. (110a) Art. 259. If the marriage is dissolved by the death of the husband, and the mother contracted another
166
Arts. 260-262
marriage within three hundred days following such death, these rules shall govern: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is disputably presumed to have been conceived during the former marriage, provided it be born within three hundred days after the death of the former husband; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is prima facie presumed to have been conceived during such marriage, even though it be born within the three hundred days after the death of the former husband. (n) Art. 260. If after a judgment annulling a marriage, the former wife should believe herself to be pregnant by the former husband, she shall, within thirty days from the time she became aware of her pregnancy, notify the former husband or his heirs of that fact. He or his heirs may ask the court to take measures to prevent a simulation of birth. The same obligation shall devolve upon a widow who believes herself to have been left pregnant by the deceased husband, or upon the wife who believes herself to be pregnant by her husband from whom she has been legally separated. (n) Art. 261. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of such child must prove his allegation. (n) Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint, without having desisted from the same; (3) If the child was born after the death of the husband. (112)
Arts. 255-264
167
Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of the birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs. If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud. (113a) Art. 264. Legitimate children shall have the right: (1) To bear the surnames of the father and of the mother; (2) To receive support from them, from their ascendants, and in a proper case, from their brothers and sisters, in conformity with Article 291; (3) To the legitime and other successional rights which this Code recognizes in their favor. (114)
Legitimate Children The law, unlike the Family Code, does not declare, but merely establishes presumptions of, legitimacy (or illegitimacy), thus a. A child born within 180 days following the celebration of the marriage is prima facie presumed to be legitimate. Such a child is conclusively presumed to be legitimate (1) If the husband, before the marriage, knew of the pregnancy of the wife; (2) If he consented, being present, to the putting of his surname on the record of birth; (3) If he expressly recognizes the child as his own (Art. 258; Civil Code). b. A child born after 180 days following the celebration of the marriage, and before 300 days following its dissolution or the separation of the spouses is
168
Arts. 255-264
quasi-conclusively presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first 120 days (period of conception) of the 300 days which preceded the birth of the child (Macadangdang vs. Court of Appeals, 100 SCRA 73). This physical impossibility may be caused: (1) By the impotence (not sterility) of the husband; (2) By the fact of the husband and wife living separately in such a way that access was not possible; (3) By the serious illness of the husband (Art. 255, Civil Code; see Lumain vs. Paraguya, 150 SCRA 279). It has once been held that the mere fact that the husband is suffering from tuberculosis and that the wife has committed adultery during the period of conception would not be enough to rebut the quasiconclusive presumption (Andal vs. Macaraeg, 89 Phil. 165). The above presumptions of legitimacy shall apply although the mother may have declared against its legitimacy or may have been sentenced as an adulteress (Art. 256, Civil Code). c. Should the wife commit adultery (which need not be proved in a criminal case) at or about the time of the conception of the child (within 120 days of the 300 days preceding the birth of the child) but there has been no physical impossibility of access between her and her husband, the child shall be prima facie presumed to be illegitimate if it appears highly improbable for ethnic reasons that the child is that of the husband (Art. 257, Civil Code). The lack of physical resemblance (physiognomy) is not enough to apply the presumption of illegitimacy (Chun Chong vs. Collector, 38 Phil. 815), but racial dissimilarity coupled with the wifes adultery could be sufficient (Lee vs. Collector, 58 Phil. 147). d. If the marriage is dissolved by the death of the husband (or annulment of the marriage) and the mother
Arts. 255-264
169
contracts another marriage within 300 days following such death, the following rules shall govern: (1) A child born before 180 days after the solemnization of the subsequent marriage but within 300 days after the death of the former husband [or annulment of the marriage] is disputably presumed to have been conceived during the former marriage; (2) A child born after 180 days following the celebration of the subsequent marriage is prima facie presumed to have been conceived during such marriage, even though it be born within 300 days following the death of the former husband [or the annulment of the marriage] (see Art. 259, Civil Code). If after the death of the husband or a judgment annulling a marriage, the widow or the former wife should believe herself to be pregnant by the deceased or former husband, she shall within 30 days from the time she became aware of her pregnancy notify the heirs of the deceased husband or the former husband, as the case maybe, of that fact (Art. 260, Civil Code). There is no presumption of legitimacy or illegitimacy of a child born after 300 days following the dissolution of the marriage or the separation of the spouses (Art. 261, Civil Code). Action to Impugn Legitimacy The husband may impugn the legitimacy of the child by an action within one year from the recording of the birth if the husband should be in the same place; if he is absent, then the period shall be 18 months if he resides in the Philippines and 2 years if abroad. If the birth of the child has been concealed, the periods shall be counted from the discovery of the fraud (Art. 263, Civil Code). Article 263 of the Civil Code refers to an action to impugn the legitimacy of a child, to assert and prove that a person is not a mans child by his wife. It does not contemplate a situation where a child is allegedly not a child at
170
Arts. 265-267
all of a particular couple (Labagala vs. Santiago, G.R. No. 132305, 04 December 2001). The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing the action; (2) If he should die after the filing of the complaint, without having desisted therefrom; or (3) If the child is born after the death of the husband (Art. 262, Civil Code). Rights of Legitimate (and Legitimated) Children Legitimate children shall have the right: (1) To bear the surnames of the father and of the mother; (2) To receive support from them, from their ascendants, and, in a proper case, from their brothers and sisters, in conformity with Article 291; (3) To the legitime and other successional rights which this Code recognizes in their favor (Art. 264, Civil Code).
Chapter 2 Proof of Filiation of Legitimate Children Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. (115) Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. (116) Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. (117a)
Arts. 265-268
171
Art. 268. The action to claim his legitimacy may be brought by the child during all his lifetime, and shall be transmitted to his heirs if he should die during his minority or in a state of insanity. In these cases the heirs shall have a period of five years within which to institute the action. The action already commenced by the child is transmitted upon his death to the heirs, if the proceeding has not yet lapsed. (118)
Proof of Filiation of Legitimate Children The filiation of legitimate children is established or proved (1) By the record of the birth appearing in the civil register; (2) By an authentic document; (3) By a final judgment; (4) By the continuous possession of status of a legitimate child; and (5) By any other means allowed by the Rules of Court and special laws (Arts. 265-267, Civil Code; People vs. Giberson, 111 SCRA 532). Any of the first three enumerated cases itself constitutes an acknowledgment; the last two cases are merely grounds to compel recognition. The action to claim his legitimacy, such as in the instances stated in cases (4) and (5) above, may be brought by the child during all his lifetime and shall be transmitted to his heirs if he should die during his minority or in a state of insanity, in which cases the latter shall have a period of 5 years within which to institute the action. An action already commenced by the child is transmitted, if still pending upon his or her death, to the heirs (Art. 268, Civil Code).
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Arts. 269-275
Chapter 3 Legitimated Children Art. 269. Only natural children can be legitimated. Children born outside wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural. (119a) Art. 270. Legitimation shall take place by the subsequent marriage between the parents. (120a) Art. 271. Only natural children who have been recognized by the parents before or after the celebration of the marriage, or have been declared natural children by final judgment, may be considered legitimated by subsequent marriage. If a natural child is recognized or judicially declared as natural, such recognition or declaration shall extend to his or her brothers or sisters of the full blood: Provided, That the consent of the latter shall be implied if they do not impugn the recognition within four years from the time of such recognition, or in case they are minors, within four years following the attainment of majority. (121a) Art. 272. Children who are legitimated by subsequent marriage shall enjoy the same rights as legitimate children. (122) Art. 273. Legitimation shall take effect from the time of the childs birth. (123a) Art. 274. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (124) Art. 275. Legitimation may be impugned by those who are prejudiced in their rights, when it takes place in favor of those who do not have the legal condition of natural children or when the requisites laid down in this Chapter are not complied with. (128a)
Arts. 269-275
173
Legitimated Children Only natural children can be legitimated. Natural children are those born outside wedlock of parents who, at the time of conception of the former, were not disqualified by an impediment to marry each other (Art. 269, Civil Code). Legitimation takes place by the subsequent marriage between said parents (Art. 270, Civil Code). In order that such legitimation can take place, the natural children must have been recognized by both parents, or have been declared natural children by final judgment, before or after the celebration of the marriage. If a natural child is recognized, or judicially declared as natural, such recognition or declaration is extended to his or her brothers or sisters of the full blood. The consent of the latter shall be implied if they do not impugn the recognition during 4 years from the time of such recognition or, in case they are minors, within 4 years following their attainment of the age of majority (Art. 271, Civil Code). When legitimation occurs, its effects shall retroact to the childs birth (Art. 273, Civil Code). Legitimated children shall enjoy the same rights as legitimate children (Art. 272, Civil Code), including those who die before the celebration of the marriage, which benefits shall inure to their descendants (Art. 274, Civil Code). The provisions of Article 269 and Article 271 of the Civil Code, in a literal sense, appear to limit legitimation in favor of acknowledged natural children or those who by law have been declared natural children by final judgment. Considering, however, that natural children by legal fiction (such as those born of void marriages because the parents suffer from an impediment to marry) are expressly given the same status, rights and obligations as acknowledged natural children (Art. 89, Civil Code), and because all doubts should be resolved in favor of the child, it is submitted that the rules on legitimation should likewise extend to such children.
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Arts. 269-275
Illustrative instances A child is conceived by the common-law wife (CLW) of H while the latter is still married to W. A month before the child is born, H marries his common-law wife following the untimely death of W. Under such factual setting, the child would be conclusively presumed to be a legitimate child of the second marriage under the provisions of Article 258 of the Civil Code (supra.) since the child is born within 180 days from the marriage of H and CLW and H having been aware of the pregnancy of CLW at the time of marriage. If H instead married CLW after the birth of the child, the latter would be a spurious child and not being natural, he cannot be legitimated by the subsequent marriage of his parents. A natural child under Article 269 of the Civil Code is one conceived at a time when the parents are not suffering from an impediment to marry. If, however, the child is born say on the 200th day following the death of W and shortly after such death H marries CLW, the child, it is submitted, can be legitimated by the subsequent marriage of H and CLW considering that the last 20 days of the 120-day period of conception fall at a time when H has already become a widower and thus free to marry CLW. The child can then be said to have possibly been conceived when there would have no longer been an impediment to marry. In fine, that interpretation or application of the law which would favor the child must be held to control. It is noteworthy that Article 271 speaks really of recognition, not status, of the child. Accordingly, the benefit of legal acknowledgment extended to full blood brothers and sisters of an acknowledged natural child, it is believed, does not extend so far as to necessarily consider the former as candidates for legitimation if they themselves are not natural. To illustrate, the children of H and CLW born during the lifetime of W are not legitimated by the acknowledgment of their full-blood brothers and sisters who may be conceived after the death of W and who being thus natural children, are legitimated by the subsequent marriage of their parents H and CLW.
Arts. 276-281
175
Legitimated children enjoy the same rights as legitimate children (Art. 272, Civil Code), i.e., to bear the surnames of the parents, to receive support in accordance with Article 291, and to the legitime and other successional rights as legitimate children.
Chapter 4 Illegitimate Children Section 1 Recognition of Natural Children Art. 276. A natural child may be recognized by the father and mother jointly, or by only one of them. (129) Art. 277. In case the recognition is made by only one of the parents, it shall be presumed that the child is natural, if the parent recognizing it had legal capacity to contract marriage at the time of the conception. (130) Art. 278. Recognition shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. (131a) Art. 279. A minor who may not contract marriage without parental consent cannot acknowledge a natural child, unless the parent or guardian approves the acknowledgment, or unless the recognition is made in a will. (n) Art. 280. When the father or the mother makes the recognition separately, he or she shall not reveal the name of the persons with whom he or she had the child; neither shall he or she state any circumstance whereby the other parent may be identified. (132a) Art. 281. A child who is of age cannot be recognized without his consent. When the recognition of a minor does not take place in a record of birth or in a will, judicial approval shall be necessary. A minor can in any case impugn the recognition within four years following the attainment of his majority. (133a)
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Arts. 282-285
Art. 282. A recognized natural child has the right: (1) To bear the surname of the parent recognizing him; (2) To receive support from such parent, in conformity with Article 291; (3) To receive, in a proper case, the hereditary portion which is determined in this Code. (134) Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father. (n) Art. 284. The mother is obliged to recognize her natural child: (1) In any of the case referred to in the preceding article, as between the child and the mother; (2) When the birth and the identity of the child are clearly proved. (136a) Art. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; (2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child.
Arts. 276-289
177
In this case, the action must be commenced within four years from the finding of the document. (137a) Art. 286. The recognition made in favor of a child who does not possess all the conditions stated in Article 269, or in which the requirements of the law have not been fulfilled, may be impugned by those who are prejudiced by such recognition. (137) Section 2 Other Illegitimate Children Art. 287. Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this Code. (n) Art. 288. Minor children mentioned in the preceding article are under the parental authority of the mother. (n) Art. 289. Investigation of the paternity or maternity of children mentioned in the two preceding articles is permitted under the circumstance specified in Articles 283 and 284. (n)
Illegitimate Children Illegitimate children (or those born outside wedlock of the parents), other than natural children by legal fiction, do not have rights with regard to their parents unless they are acknowledged or recognized (Irene Reyes vs. Court of Appeals, 135 SCRA 439; the 1958 decision in Zuzuarregui vs. Zuzuarregui [103 Phil. 346] has since been overturned; see Divinagracia vs. Rovira, 72 SCRA 307). The father and the mother jointly, or only one of them, may recognize a natural child or a spurious child (Art. 276, Civil Code). In case only one parent should recognize the child, the latter is presumed to be natural if the recognizing parent had legal capacity to contract marriage at the time of conception (Art. 227, Civil Code). The acknowledgment or recognition of illegitimate children may be (a) voluntary, (b) legal, or (c) compulsory.
178
Arts. 276-289
Voluntary recognition must be express and it may be made in the record of birth, a will, a statement before a court of record, or in any authentic writing (Art. 278, Civil Code; Sy-Quia vs. Court of Appeals and Sy-Quia, 125 SCRA 835; Colorado vs. Court of Appeals, 135 SCRA 47). These are in themselves voluntary recognition and no further court action is required (See Divinagracia vs. Bellosillo, 143 SCRA 356). A mere baptismal certificate is insufficient (Vidaurrazaga vs. Court of Appeals, 48 O.G. No. 7, p. 2643) but it may constitute a piece of evidence in an appropriate case to prove paternity (but see Reyes vs. Court of Appeals, supra.). A will must be executed in accordance with the formalities prescribed in testamentary succession (see Arts. 804-810, Civil Code; Ongayo vs. Omila, 56 Phil. 720), but if the testators signature is genuine, it could qualify as an authentic writing. A statement, whether as a sworn testimony or declaration in a pleading before a court of record, recognizing an illegitimate child, must be a relevant issue in the case at bar; a mere statement incidentally revealing paternity will not suffice (see Javelona vs. Monteclaro, 74 Phil. 393; Donado vs. Donado, 55 Phil. 861), but might constitute evidence in an action to compel recognition. An authentic writing may be public or private as long as it can be established as one made by the acknowledging parent (see Madridejo vs. De Leon, 55 Phil. 1; De Jesus vs. Sy-Quia, 58 Phil. 866; Varela vs. Villanueva, 95 Phil. 248; Pareja vs. Pareja, 103 Phil. 324). The doctrine of incidental recognition, which would allow recognition as having taken place where the putative parent had made an incidental, rather than a direct, remark on the childs filiation, has been held to apply under the provisions of the Spanish Civil Code (Art. 131 vs. Art. 135 thereof) in cases of voluntary recognition expressed in a public document. Voluntary acknowledgment is also subject to the following rules:
Arts. 276-289
179
(1) A minor who may not contract marriage without parental consent cannot acknowledge a natural child, unless the parent or guardian approves the acknowledgment, or unless the recognition is made in a will (Art. 279, Civil Code); (2) When the father or the mother makes the recognition separately, he or she shall not reveal the name of the person with whom he or she had the child; neither shall he or she state any circumstance whereby the other parent may be identified (Art. 280, Civil Code); and (3) A child who is of age cannot be recognized without his consent. When the recognition of a minor does not take place in a record of birth or in a will, judicial approval shall be necessary. Judicial approval has likewise been held unnecessary when the purpose of the acknowledgment is to legitimate a natural child (Obispo vs. Obispo, 99 Phil. 960) or when it is made in a statement before a court of record (Garcia vs. Pongan, 89 Phil. 797). A minor can in any case impugn the recognition within four years following the attainment of his majority (Art. 281, Civil Code). In Banas vs. Banas (134 SCRA 260), the Supreme Court held that no provision of law is necessary to authorize a parent who has recognized an illegitimate child from rectifying that act as and when circumstances would justify it. The absence of judicial approval does not render the acknowledgment void, but merely voidable, and it may thus be substituted by the childs consent, express or implied, upon his reaching majority age. Such consent is made manifest, for instance, by the childs accepting that status and seeking participation as an heir to the parents estate (see Guarina vs. Guarina, 109 Phil. 1111). Legal acknowledgment takes place in favor of full blood brothers and sisters of an illegitimate child who is
180
Arts. 276-289
recognized or judicially declared as natural (see Art. 271, supra.). Compulsory acknowledgment may be demanded of the parents by an illegitimate child. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In case of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father (Art. 283, Civil Code). On the question of admissibility and conclusiveness of the result of blood grouping tests to prove non-paternity, the Supreme Court, in Janice Marie Jao vs. Court of Appeals (152 SCRA 359), has held: In this jurisdiction, the result of blood tests, among other evidence, to affirm paternity was dealt with in Co Tao vs. Court of Appeals, an action for declaration of filiation, support and damages. In said case, the NBI experts report of the blood tests stated that from their blood groups and types, the defendant Co Tao is a possible father of the child. From this statement, the defendant contended that the child must have been the child of another man. The Court noted: For obvious reason, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give his opinion that he is a possible father. This possibility, coupled with the other facts and circumstances brought out
Arts. 276-289
181
during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel. Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been much more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed parentage has already become an important legal procedure. There is now almost universal scientific agreement that blood grouping tests are conclusive as to nonpaternity, although inconclusive as to paternity that is, the fact that the blood type of the child is a possible product of the mother and alleged father does not conclusively prove that the child is born by such parents; but, if the blood type of the child is not the possible blood type when the blood of the mother and that of the alleged father are cross-matched, then the child cannot possibly be that of the alleged father. In jurisdiction like the United States, the admissibility of blood test results to prove non-paternity has already been passed upon in several cases. In Gilpin vs. Gilpin, the positive results of blood tests excluding paternity, in a case in which it was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the question of paternity. In Cuneo vs. Cuneo evidence of non-paternity consisting of the result of blood grouping tests was admitted despite a finding that the alleged father had cohabited with the mother within the period of gestation. The Court said that the competent medical testimony was overwhelming in favor of the plaintiff, and to reject such testimony would be tantamount to rejecting scientific fact. Courts, it was stated, should apply the results of science when competently obtained in aid of situations presented, since to reject such result was to deny progress. This ruling was also echoed in
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Arts. 276-289
Clark vs. Rysedorph, a filiation proceeding where an uncontradicted blood grouping test evidence, excluding paternity, was held conclusive. Legislation expressly recognizing the use of blood tests is also in force in several states. Tolentino, affirms this rule on blood tests as proof of non-paternity, thus Medical science has shown that there are four types of blood in man which can be transmitted through heredity. Although the presence of the same type of blood in two persons does not indicate that one was begotten by the other, yet the fact that they are of different types will indicate the impossibility of one being the child of the other. Hence, when the supposed father and the alleged child are not in the same blood group, they cannot be father and child by consanguinity. The Courts of Europe today regard a blood test conclusion as an unanswerable and indisputable proof of non-paternity. Moreover, The cohabitation between the mother and the supposed father cannot be a ground for compulsory recognition if such cohabitation could not have produced the conception of the child. This would be the case, for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by blood tests that the child and the supposed father belong to different blood groups, the cohabitation by itself cannot be a ground for recognition. A baptismal certificate, a statement in the marriage contract of the brides alleged father, school records or photographs, by themselves, have not been considered as reliable proof of recognition (see Reyes vs. Court of Appeals, 135 SCRA 439). The mother is obliged to recognize her natural child: (1) in any of the cases referred to in Article 283 of the
Arts. 276-289
183
Code, as between the child and the mother; (2) when the birth and the identity of the child are clearly proved (Art. 284, Civil Code). The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; (2) If after the death of the father or of the mother, a document should appear of which nothing had been heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document (Art. 285, Civil Code). Unlike an action to claim legitimacy which lasts during the lifetime of the child (Art. 268, Civil Code) and may exceptionally pass to the heirs of the child (such as when the latter dies a minor or during a state of insanity), an action to claim acknowledgment, however, may be brought only during the lifetime of the presumed parents, subject to the exceptions under Article 285 (supra.), and in no event does that right pass to the heirs of the child (Conde vs. Abaya, 13 Phil. 249; Banas vs. Banas, 134 SCRA 260; Clemea vs. Clemea, 24 SCRA 720). The requirement that the action be filed during the lifetime of the alleged parent is to prevent illegitimate children, on account of strong temptations to large estates left by dead persons, to claim part of the property without giving the alleged parent personal opportunity to be heard (Cenido vs. Apacionado, 115 SCAD 798, 318 SCRA 688). In compulsory recognition, as distinguished from the voluntary and legal acknowledgments, it may be essential, unless the presumed parents would ultimately agree to make the recognition under the provisions of Article 278
184
Arts. 276-289
of the Civil Code, for the institution of an action to compel such recognition or acknowledgment (see Paulino vs. Paulino, 3 SCRA 730; Cruz Vda. De Sy-Quia vs. Sy-Quia, 125 SCRA 835). In Tongoy vs. Court of Appeals (123 SCRA 9), however, the Supreme Court has held that while the continued possession of the status of a natural child by the clan of the presumed parents is not per se sufficient acknowledgment, from a liberal view, upon the other hand, the child should not be compelled to still file an action for acknowledgment (but see Noble vs. Noble, 18 SCRA 1104). In Jovita Quismundo, et al. vs. Workmens Compensation Commission and Atlantic Gulf and Pacific Company of Manila, Inc. (132 SCRA 590), the facts would reveal that after the death of Francisco Venta, the minors Paciencia and Virginia Venta, through their mother, Jovita Quismundo, filed with the Workmens Compensation Commission a claim for death benefits. They alleged that the deceased was their natural father. The Workmens Compensation Commission denied the claim on the ground that although the minors were dependent on the deceased, they failed to show that they had been acknowledged by him as his illegitimate children. Citing Article 278 of the Civil Code, the Commission held that the deceased had not recognized the claimants, absent recognition in a record of birth, in a will, a statement before a court of record, or in any authentic document. The minors went to the Supreme Court, relying on Article 283, which says in effect that when the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or his family, the father is obliged to recognize the child as his natural child. The Court ruled: The reliance of the petitioners on Article 283 of the Civil Code is misplaced. The provision contemplates compulsory recognition as distinguished from voluntary recognition provided in Article 278. The possession of status of a child does not in itself constitute an acknowledgment; it is only a ground for
Arts. 276-289
185
a child to compel recognition by his assumed parent. The provision provides the grounds for compulsory recognition in an action which may be brought by the child. Neither the proceedings before the Commission nor in this Court can be regarded as the appropriate action to compel recognition. The rules on the acknowledgment of natural children have been held to apply equally well to children who are non-natural (Divinagracia vs. Rovira, 72 SCRA 307; Paulino vs. Paulino, 113 Phil. 697). Rights of Illegitimate Children Recognized illegitimate children, including natural children by legal fiction, have the following rights: (1) To bear the surname of the parent recognizing a natural child; a natural child by legal fiction shall principally employ the surname of the father, but a recognized illegitimate child who is not natural shall bear the surname of the mother; (2) To receive support from such parents; (3) To receive, in proper cases, the hereditary portion as determined under the law on succession (Art. 282, in relation to Arts. 336-368, Civil Code).
186
TITLE IX. SUPPORT

Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical attendance, according to the social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. (142a) Art. 291. The following are obliged to support each other to the whole extent set forth in the preceding article: (1) (2) The spouses; Legitimate ascendants and descendants;
(3) Parents and acknowledged natural children and the legitimate and illegitimate descendants of the latter; (4) Parents and natural children by legal fiction and the legitimate and illegitimate descendants of the latter; (5) natural. Parents and illegitimate children who are not
Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half-blood, the necessaries for life, when by a
186
Arts. 292-295
PERSONS Title IX. Support
187
physical or mental defect, or any other causes not imputable to the recipients, the latter cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education and for professional or vocational training. (143a) Art. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. (n) Art. 293. In an action for legal separation or annulment of marriage, attorneys fees and expenses for litigation shall be charged to the conjugal partnership property, unless the action fails. (n) Art. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) (2) (3) gree; (4) From the spouse; From the descendants of the nearest degree; From the ascendants, also of the nearest deFrom the brothers and sisters.
Among descendants and ascendants the order in which they are called to the intestate succession of the person who has a right to claim support shall be observed. (144) Art. 295. When the obligation to give support falls upon two or more person, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally without prejudice
188
Arts. 296-301
to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, and the latter should not have sufficient means to satisfy all, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the latter shall be preferred. (145) Art. 296. The amount of support, in the cases referred to in the five numbers of Article 291, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (146a) Art. 297. Support in cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the needs of the recipient and the resources of the person obliged to furnish the same. (147) Art. 298. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date it is extrajudicially demanded. Payment shall be made monthly in advance, and when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (148a) Art. 299. The person obliged to give support may, at his option, fulfill his obligation either by paying the allowance fixed, or by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (149a) Art. 300. The obligation to furnish support ceases upon the death of the obligor, even if he may be bound to give it in compliance with a final judgment. (150) Art. 301. The right to receive support cannot be renounced; nor can it be transmitted to a third person.
Arts. 290-304
189
Neither can it be compensated with what the recipient owes the obligor. However, support in arrears may be compensated and renounced, and the right to demand the same may be transmitted by onerous or gratuitous title. (151) Art. 302. Neither the right to receive legal support nor any money or property obtained as such support or any pension or gratuity from the government is subject to attachment or execution. (n) Art. 303. The obligation to give support shall also cease: (1) Upon the death of the recipient;
(2) When the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own needs and those of his family; (3) When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune in such a way that he no longer needs the allowance for his subsistence; (4) When the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance; (5) When the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by the lack of application to work, so long as this cause subsists. (152a) Art. 304. The foregoing provisions shall be applicable to other cases where, in virtue of this Code or of any other law, by will, or by stipulation there is a right to receive support, save what is stipulated, ordered by the testator or provided by law for the special case. (153a)
Support is understood to be either civil or natural. Civil support includes everything that is indispensable for sustenance, dwelling, clothing and medical attend-
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Arts. 290-304
ance, according to the social position of the family. The term includes the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority (see Art. 290, Civil Code). The obligation of support is owing from and in favor of (1) the spouses; (2) legitimate ascendants and descendants; (3) parents and acknowledged natural children and the legitimate or illegitimate descendants of the latter; (4) parents and natural children by legal fiction and the legitimate and illegitimate descendants of the latter; (5) parents and illegitimate children who are not natural (the descendants of the latter are not mentioned in the law). Natural support is confined to basic necessities. Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the halfblood, the necessaries for life, when by a physical or mental defect, or any other cause not imputable to the recipients, the latter cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education and for professional or vocational training (see Art. 291, Civil Code; see also Arts. 2164 and 2166 thereof). The amount of support shall be in proportion to their resources or means of the giver and to the necessities of the recipient (Art. 296, Civil Code). The amount may be reduced or increased proportionately according to the reduction or increase of such resources and needs (Art. 297, Civil Code). The right to receive support cannot be renounced; nor can it be transmitted to a third person. Neither can it
Arts. 290-304
191
be compensated with what the recipient owes the obligor. Support in arrears, however, may be compensated and renounced, and the right to demand the same may be transmitted by onerous or gratuitous title (see Art. 301, Civil Code). Neither the right to receive legal support nor any money or property obtained as such support or any pension or gratuity from the government is subject to attachment or execution (Art. 302, Civil Code). A judgment for support is enforceable by a writ of execution despite the lapse of the five-year period (Sec. 6, Rule 39 of the Rules of Court) since such a judgment does not become dormant. Similarly, where support should be terminated or suspended, a mere motion therefor is enough to warrant such an order of termination or suspension (Canonizado vs. Benitez, 127 SCRA 610). 1. Concurrent Obligors and Obligees
The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) From the spouse; (2) From the descendants of the nearest degree; (3) From the ascendants, also of the nearest degree; (4) From the brothers and sisters. Among descendants and ascendants the order in which they are called to the intestate succession of the person who has a right to claim support shall be observed (Art. 294, Civil Code). When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. In case, however, of urgent need and by special circumstances, the judge may order only one of them to furnish
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Arts. 290-304
the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients claim at the same time support from one and the same person legally obliged to give it, and the latter should not have sufficient means to satisfy all, the order established in Article 294 (supra.) shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the latter shall be preferred (Art. 295, Civil Code). Support During Legal Separation or Annulment of Marriage Support includes litigation expenses incurred by the wife to defend herself against unjust prosecution (Peyer vs. Reyes, 77 Phil. 366), but conviction for adultery of the wife is a valid defense against an action for support (Magoma vs. Macadaeg, 90 Phil. 508). The spouses and children shall be supported from the conjugal partnership property during the proceedings for legal separation or for annulment of marriage. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. In case of legal separation, however, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order (Art. 292, Civil Code). 2. Cessation of Obligation to Give Support
The obligation to give support shall also cease: (1) upon the death of the recipient; (2) when the resources of the obligor have been reduced to the point where he cannot give support without neglecting his own needs and those of his family; (3) when the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune in such a way that he no longer needs the allowance for his subsistence; (4) when the
Arts. 290-304
193
recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance; or (5) when the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by the lack of application to work, so long as this cause subsists (Art. 303, Civil Code).
194
TITLE X. FUNERALS (N)

Art. 305. The duty and the right to make arrangements for the funeral or a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306. Every funeral shall be in keeping with the social position of the deceased. Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305. Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.
The expressed wishes of the deceased regarding his funeral shall be respected. However, in the absence of
194
Arts. 305-310
PERSONS Title X. Funerals
195
such expression, his religious beliefs and affiliations shall determine the funeral rites. Should there be doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family (Art. 307, Civil Code).
196
TITLE XI. PARENTAL AUTHORITY

Authors note: The provisions of the Civil Code in this title have been repealed by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof).
Chapter 1 General Provisions Art. 311. The father and mother jointly exercise parental authority over their legitimate children who are not emancipated. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. Children are obliged to obey their parents so long as they are under parental power, and to observe respect and reverence toward them always. Recognized natural and adopted children who are under the age of majority are under the parental authority of the father or mother recognizing or adopting them, and are under the same obligation stated in the preceding paragraph. Natural children by legal fiction are under the joint authority of the father and mother, as provided in the first paragraph of this article. (154a) Art. 312. Grandparents shall be consulted by all members of the family on all important family questions. (n) Art. 313. Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession. (n)
196
Arts. 314-319
PERSONS Title XI. Parental Authority
197
The courts may, in cases specified by law, deprive parents of their authority. (n) Art. 314. A foundling shall be under the parental authority of the person or institution that has reared the same. (n) Art. 315. No descendant can be compelled, in a criminal case, to testify against his parents and ascendants. (n) Chapter 2 Effect of Parental Authority Upon the Persons of the Children Art. 316. The father and the mother have, with respect to their unemancipated children: (1) The duty to support them, to have them in their company, educate and instruct them in keeping with their means, and to represent them in all actions which may redound to their benefit; (2) The power to correct them and to punish them moderately. (155) Art. 317. The courts may appoint a guardian of the childs property, or a guardian ad litem when the best interest of the child so requires. (n) Art. 318. Upon cause being shown by the parents, the local mayor may aid them in the exercise of their authority over the child. If the child is to be kept in a childrens home or similar institution for not more than one month, an order of the justice of the peace or municipal judge shall be necessary, after due hearing, where the child shall be heard. For his purpose, the court may appoint a guardian ad litem. (156a) Art. 319. The father and the mother shall satisfy the support for the detained child; but they shall not have any intervention in the regime of the institution where the child is detained. They may lift the detention when they deem it opportune, with the approval of the court. (158a)
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Arts. 320-325
Chapter 3 Effect of Parental Authority on the Property of the Children Art. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. (159a) Art. 321. The property which the unemancipated child has acquired or may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under parental authority and in whose company he lives; but if the child, with the parents consent, should live independently from them, he shall be considered as emancipated for all purposes relative to said property, and he shall have over it dominion, usufruct and administration. (160) Art. 322. A child who earns money or acquires property with his own work or industry shall be entitled to a reasonable allowance from his earnings, in addition to the expenses made by the parents for his support and education. (n) Art. 323. The fruits and interest of the childs property referred to in Article 321 shall be applied first to the expenses for the support and education of the child. After they have been fully met, the debts of the conjugal partnership which have redounded to the benefit of the family may be paid from said fruits and interest. (n) Art. 324. Whatever the child may acquire with the capital or property of the parents belongs to the latter in ownership and in usufruct. But if the parents should expressly grant him all or part of the profits that he may obtain, such profits shall not be charged against his legitime. (161) Art. 325. The property or income donated, bequeathed or devised to the unemancipated child for
Arts. 326-330
199
the expenses of his education and instruction shall pertain to him in ownership and usufruct; but the father or mother shall administer the same; if in the donation or testamentary provision the contrary has not been stated. (162) Art. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the childs property, subject to the duties and obligations of guardians under the Rules of Court. (n) Chapter 4 Extinguishment of Parental Authority Art. 327. Parental authority terminates: (1) (2) (3) (4) (167a) Upon the death of the parents of the child; Upon emancipation; Upon adoption of the child; Upon the appointment of a general guardian.
Art. 328. The mother who contracts a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such case she should keep and exercise parental authority over their children. The court may also appoint a guardian of the childs property in case the father should contract a subsequent marriage. (168a) Art. 329. When the mother of an illegitimate child marries a man other than its father, the court may appoint a guardian for the child. (n) Art. 330. The father and in a proper case the mother, shall lose authority over their children: (1) When by final judgment in a criminal case the penalty of deprivation of said authority is imposed upon him or her;
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Arts. 311-333
(2) When by a final judgment in legal separation proceedings such loss of authority is declared. (169a) Art. 331. Parental authority is suspended by the incapacity or absence of the father, or in a proper case of the mother, judicially declared, and also by civil interdiction. (170) Art. 332. The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should make them beg or abandon them. In these cases, the courts may also deprive the parents, in whole or in part, of the usufruct over the childs property, or adopt such measures as they may deem advisable in the interest of the child. (171a) Art. 333. If the widowed mother who has contracted a subsequent marriage should again become a widow, she shall recover from this moment her parental authority over all her unemancipated children. (172)
Parental authority is both a natural and legally conferred right, as well as a duty, of parents over their children. The father and the mother jointly exercise just and reasonable parental authority over their legitimate children and natural children by legal fiction who are not emancipated. The fathers decision shall prevail in case of disagreement, unless there is a judicial order to the contrary (Art. 311, Civil Code, as amended by P.D. No. 603). Recognized natural and adopted minor children are under the parental authority of the father or the mother recognizing or adopting them (ibid.). Minor illegitimate children, who are non-natural, are under the parental authority of the mother (Art. 288, Civil Code). A foundling is under the parental authority of the person or institution that has reared such foundling (Art. 314, Civil Code). Being itself a duty, parental authority cannot be renounced or transferred, except when allowed by law such as in cases of guardianship or adoption approved by the courts, or emancipation by concession. The courts may, in cases
Arts. 311-333
201
specified by law, deprive parents of their authority (Art. 313, Civil Code). Parental authority is exercised upon the person of the children and on their property, thus: (1) Upon the person of the children The father and the mother, with respect to their unemancipated children, have (a) The duty to support them, to have them in their company, to educate and instruct them in keeping with their means, and to represent them in all actions which may redound to their benefit; and (b) The power to correct them and to punish them moderately (Art. 316, Civil Code). (2) Over the property of the children The father, or in his absence, the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Regional Trial Court (Art. 320, Civil Code). As a measure of protecting the natural feelings that descendants have for their ascendants, the law provides that no descendant can be compelled to testify against his parents and ascendants in a criminal case (see Art. 315, Civil Code). Adventicios Ordinarios The property which the unemancipated child has acquired or may acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under parental authority and in whose company he lives; but if the child, with parents consent, should live independently from them, he shall be considered as emancipated for all purposes relative to said property, and he
202
Arts. 311-333
shall have dominion, usufruct and administration over it (Art. 321, Civil Code). A child who earns money or acquires property with his own work or industry shall be entitled to a reasonable allowance from his earnings, in addition to the expenses made by the parents for his support and education (Art. 322, Civil Code). The fruits and interest of the childs property referred to in Article 321 shall be applied first to the expenses for the support and education of the child. After they have been fully met, the debts of the conjugal partnership which have redounded to the benefit of the family may be paid from said fruits and interest (Art. 323, Civil Code). Profecticios Whatever the child may acquire with the capital or property of the parents belongs to the latter in ownership and in usufruct, but if the latter should expressly grant him all or part of the profits that he may obtain, such profits shall not be charged against his legitime (Art. 324, Civil Code). Adventicios Extraordinarios The property or income donated, bequeathed or devised to the unemancipated child for the expenses of his education and instruction shall pertain to him in ownership and usufruct; but the father or mother shall administer the same if in the donation or testamentary provision the contrary has not been stated (Art. 325, Civil Code). Extinguishment of Parental Authority Parental authority terminates: (1) upon the death of the parents; (2) upon emancipation; (3) upon adoption of the child; or (4) upon the appointment of a general guardian (Art. 327, Civil Code).
Arts. 334-335
203
The father, and in a proper case the mother, shall also lose authority over their children: (1) when the penalty of deprivation of said authority is imposed upon him or her by virtue of a final judgment in a criminal case; or (2) when such loss of authority is declared by a final judgment in legal separation proceedings (Art. 330, Civil Code). The mother or father who contracts a subsequent marriage does not lose the parental authority over their children unless the court for valid grounds appoints a guardian (Art. 328, Civil Code, as amended by P.D. No. 603). Suspension of Parental Authority Parental authority is suspended by the incapacity or absence of the father, or in a proper case of the mother, judicially declared, and also by civil interdiction (Art. 331, Civil Code).
Chapter 5 Adoption Art. 334. Every person of age, who is in full possession of his civil rights, may adopt. (173a) Art. 335. The following cannot adopt: (1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction; (2) The guardian, with respect to the ward, before the final approval of his accounts; (3) A married person, without the consent of the other spouse; (4) Non-resident aliens;
(5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;
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Arts. 336-341
(6) Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was six months imprisonment or more. (174a) Art. 336. The husband and wife may jointly adopt. Parental authority shall, in such case, be exercised as if the child were their own by nature. (n) Art. 337. Any person, even if of age, may be adopted, provided the adopter is sixteen years older. (173a) Art. 338. The following may be adopted: (1) mother; (2) mother; The natural child, by the natural father or Other illegitimate children, by the father or
(3) A step-child, by the step-father or stepmother. (n) Art. 339. The following cannot be adopted: (1) A married person, without the written consent of the other spouse; (2) An alien with whose government the Republic of the Philippines has broken diplomatic relations; (3) A person who has already been adopted. (n)
Art. 340. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or over; (2) The parents, guardian or person in charge of the person to be adopted. (n) Art. 341. The adoption shall: (1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter; (2) Dissolve the authority vested in the parents by nature;
Arts. 334-348
205
(3) Make the adopted person a legal heir of the adopter; (4) Entitle the adopted person to use the adopters surname. (n) Art. 342. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him. (177a) Art. 343. If the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child. (n) Art. 344. The adopter may donate property, by an act inter vivos or by will, to the adopted person, who shall acquire ownership thereof. (n) Art. 345. The proceedings for adoption shall be governed by the Rules of Court insofar as they are not in conflict with this Code. (n) Art. 346. The adoption shall be recorded in the local civil register. (179a) Art. 347. A minor or other incapacitated person may, through a guardian ad litem, ask for rescission of the adoption on the same grounds that cause the loss of parental authority. (n) Art. 348. The adopter may petition the court for revocation of the adoption in any of these cases: (1) If the adopted person has attempted against the life of the adopter; (2) When the adopted minor has abandoned the home of the adopter for more than three years; (3) When by other acts the adopted person has definitely repudiated the adoption. (n)
The provisions of the Civil Code on adoption from Article 334 up to Article 348, inclusive, have been repealed and replaced by Chapter 1, Section B, of the Child and Youth Welfare Code (Presidential Decree No. 603) which took effect on 10 December 1974. (Note: All said provi-
206
Arts. 334-348
sions were, in turn, repealed by the Family Code; see Addendum to Book I hereof). Who May Adopt Any person of age and in full possession of his civil rights may adopt so long as he is in a position to support and care for his legitimate, legitimated, acknowledged natural children, or natural children by legal fiction, or other illegitimate children, in keeping with the means, both material and otherwise, of the family (Art. 27, P.D. 603). An alien not permanently residing in the Philippines who seeks to adopt within the country must reside in the Philippines for at least one year immediately preceding the filing of the petition for adoption, must reside in the Philippines for the duration of the trial custody period, and must comply with such rules and regulations that have been or may be issued by the Council for the Welfare of Children. However, the residence and trial custody period may be reduced or dispensed with at the discretion of the court if the applicant/applicants and the child are related by blood or affinity (Sec. 27, P.D. 603, as amended by Executive Order No. 91, 17 December 1986). The husband and the wife may jointly adopt. In such case, parental authority shall be exercised as if the child were their own by nature (Art. 29, P.D. 603). If one of the spouses is an alien, both spouses shall jointly adopt; otherwise, the adoption shall not be allowed (as amended by E.O. 91, 17 December 1986). The following persons may not adopt: (1) A married person without the written consent of the spouse; (2) The guardian with respect to the ward prior to final approval of his accounts; (3) Any person who has been convicted of a crime involving moral turpitude;
Arts. 334-348
207
(4) An alien who is disqualified to adopt according to the laws of his own country or one with whose government the Republic of the Philippines has broken diplomatic relations (Art. 28, P.D. 603). (5) An alien whose government or place of residence abroad has no agency that can provide competent professional evaluation (homestudy) of the adoptive family and postplacement services to the child and the family (Art. 28, P.D. 603, as amended by Executive Order No. 91, 17 December 1986). The prospective adopter need not be a resident of the Philippines (see Nieto vs. Magat, 136 SCRA 533). Who May be Adopted As a rule, anyone who is fifteen years younger than the adopter (Art. 27, P.D. 603) may be adopted. The following may not, however, be adopted: (1) A married person, without the written consent of the spouse; (2) An alien with whose government the Republic of the Philippines has broken diplomatic relations; (3) A person who has already been adopted unless the adoption has been previously revoked or rescinded (Art. 30, P.D. 603). The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or over; (2) The natural parents of the child or his legal guardian after receiving counseling and appropriate social services from the Department of Social Services and Development or from a duly licensed child placement agency; (3) The Department of Social Services and Develop-
208
Arts. 334-348
ment or any duly licensed child-placement agency under whose care and legal custody the child may be; (4) The natural children, fourteen years and above, of the adopting parents (Art. 31, P.D. 603, as amended by E.O. 91, 17 December 1986). No petition for adoption shall be granted unless the Department of Social Services and Development has made a case study of the child to be adopted, his natural parents as well as the prospective adopting parents, and has submitted its report and recommendations on the matter to the court hearing such petition. The Department of Social Services and Development shall intervene on behalf of the child if it finds, after such case study, that the petition should be denied. (Art. 33, P.D. 603, as amended by E.O. 91, 17 December 1986). No petition for adoption shall be finally granted unless and until the adopting parents are given by the court a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the legal union. During the period of trial custody, parental authority shall be vested in the adopting parents. The court may, upon its own motion or on motion of the petitioner, reduce or dispense with the trial custody period if it finds that it is to the best interest of the child. In such case, the court shall state its reasons for reducing or dispensing with the said period. An alien not permanently residing in the Philippines but desires to adopt a Filipino child shall complete the supervised trial custody period to ensure the childs adjustment to a new family life and culture, save in those cases provided for in Article 27 of the law (supra., Art. 35, P.D. 603, as amended by E.O. 91, 17 December 1986; see Nieto vs. Magat, supra.). Decree of Adoption If the court is satisfied that the petitioner in adoption proceedings is qualified to maintain, care for, and educate the child, that the trial custody period has been
Arts. 334-348
209
completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective as of the date the original petition was filed. The decree shall state the name by which the child is thenceforth to be known (Art. 36, P.D. 603). Effects of Adoption (1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter, but the adopted does not acquire Philippine citizenship by virtue of such adoption; (2) Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent; (3) Entitle the adopted person to use the adopters surname; and (4) Make the adopted person a legal heir of the adopter; Provided, however, That if the adopter is survived by his legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or intestate (Art. 39, P.D. No. 603). Evidently, the adopted child does not, in the main, lose his rights and obligations as regards his natural relations. Reversion Adoptiva Any property received gratuitously by the adopted from the adopter shall revert to the adopter should the
210
Arts. 334-348
former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property. In case, however, the adopted leaves no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive one-fourth and latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code (Art. 39, P.D. No. 603). Clearly, the spirit and intendment of the law is to provide, upon the death of the adopted, his surviving illegitimate children with no less than one-fourth (1/4), and the surviving spouse with another one-fourth (1/4), of the value of the donated property. Accordingly, if property, other than the donated property, left by the adopted, is less in value than those shares, so much as may be required to fill up the difference should be deducted from the property to be reverted. Certainly, it is hardly conceivable that no property at all, however insignificant in value, would be left by the decedent that will otherwise disenfranchise his said heirs. The rules on reversion adoptiva do not apply to extrajudicial adoption, the Supreme Court holding that when the law is unequivocal, there is no room for construction so as to include the alleged contemplation, intendment and spirit of the law (Banawa vs. Mirano, 97 SCRA 517). Rescission and Revocation of Adoption (a) The adopted person or the Department of Social Services and Development or any duly licensed child placement agency, if the adopted is still a minor or otherwise incapacitated, may ask for the rescission of the adoption
Arts. 334-348
211
on the same grounds that cause the loss of parental authority under the Civil Code (Art. 40, P.D. No. 603); (b) The adopter may also petition the court for the revocation of the adoption in any of the following cases: (1) If the adopted person has attempted against the life of the adopter and/or his spouse; (2) When the adopted minor has abandoned the home of the adopter for more than three years and efforts have been exhausted to locate the minor within the stated period; (3) When by other acts the adopted person has definitely repudiated the adoption (Art. 41, P.D. No. 603). Effects of Rescission or Revocation When the adopted minor has not reached the age of majority at the time of the revocation or rescission, the court in the same proceeding shall determine whether he should be returned to the parental authority of his natural parents or remitted to the Department of Social Services and Development or any duly licensed child placement agency or whether a guardian over his person and property should be appointed. Where the adopted child has reached the age of majority, the revocation or rescission, if and when granted by the court, shall release him from all obligations to his adopting parents and shall extinguish all his rights against them, but if said adopted person is so physically or mentally handicapped as to need a guardian over his person or property, or both, the court may appoint a guardian. In all cases of revocation or rescission, the adopted shall lose the right to continue using the adopters surname, and the court shall order the amendment of the records in the Civil Register in accordance with its decision (Art. 42, P.D. No. 603).
212
Arts. 349-354
Chapter 6 Substitute Parental Authority Art. 349. The following persons shall exercise substitute parental authority: (1) (2) Guardians; Teachers and professors;
(3) Heads of childrens homes, orphanages, and similar institutions; (4) Directors of trade establishments, with regard to apprentices; (5) (6) Grandparents; The oldest brother or sister.
Art. 350. The persons named in the preceding article shall exercise reasonable supervision over the conduct of the child. Art. 351. A general guardian or a guardian over the person shall have the same authority over the wards person as the parents. With regard to the childs property, the Rules of Court on guardianship shall govern. Art. 352. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution. In no case shall corporal punishment be countenanced. The teacher or professor shall cultivate the best potentialities of the heart and mind of the pupil or student. Art. 353. Apprentices shall be treated humanely. No corporal punishment against the apprentice shall be permitted. Art. 354. Grandparents and in their default the oldest brother or sister shall exercise parental authority in case of death or absence of the childs parents. If the parents are living, or if the child is under guardianship, the grandparents may give advice and counsel to the child, to the parents or to the guardian.
Arts. 349-355
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Art. 355. Substitute parental authority shall be exercised by the grandparents in the following order: (1) (2) Paternal grandparents; Maternal grandparents.
Substitute Parental Authority The following persons shall exercise substitute parental authority: (1) guardians; (2) teachers and professors; (3) heads of childrens homes, orphanages, and similar institutions; (4) directors of trade establishments, with regard to apprentices; (5) grandparents; (6) the oldest brother or sister (Art. 349, Civil Code). The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution. The teacher or professor shall cultivate the best potentialities of the heart and mind of the pupil or student. In no case shall corporal punishment be countenanced (Art. 352, Civil Code). Unlike that, therefore, of the parental authority exercised by the parents, where moderate corporal punishment may be administered to the child, such punishment is not sanctioned in substitute parental authority.
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TITLE XII. CARE AND EDUCATION OF CHILDREN

Authors note: Some provisions of the Civil Code on this title have been merely modified by the Family Code (incorporated in this work, with annotations, as an Addendum to Book I hereof).
Art. 356. Every child: (1) (2) Is entitled to parental care; Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian; (4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development. Art. 357. Every child shall: (1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding substitute parental authority; (3) Exert his utmost for his education and training; (4) Cooperate with the family in all matters that make for the good of the same. Art. 358. Every parent and every person holding substitute parental authority shall see to it that the rights of the child are respected and his duties complied with, and shall particularly, by precept and example, imbue the child with highmindedness, love of country, veneration for the national heroes, fidelity to de214
Arts. 359-362
PERSONS Title XII. Care and Education of Children
215
mocracy as a way of life, and attachment to the ideal of permanent world peace. Art. 359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: (1) Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian; (2) (3) (4) Puericulture and similar centers; Councils for the Protection of Children; and Juvenile courts.
Art. 360. The Council for the Protection of Children shall look after the welfare of children in the municipality. It shall, among other functions: (1) Foster the education of every child in the municipality; (2) Encourage the cultivation of the duties of parents; (3) Protect and assist abandoned or mistreated children, and orphans; (4) (5) Take steps to prevent juvenile delinquency; Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds; (7) Coordinate the activities of organizations devoted to the welfare of children, and secure their cooperation. Art. 361. Juvenile courts will be established, as far as practicable, in every chartered city or large municipality. Art. 362. Whenever a child is found delinquent by any court, the father, mother, or guardian may in a proper case be judicially admonished.
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Arts. 356-363
Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.
The Constitution provides: Sec. 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civil affairs. (Art. II, Constitution) The law obligates both the parent and the child in the proper upbringing and education of the latter towards his full growth (see Arts. 356-363, Civil Code; Arts. 209 and 220, Family Code; Art. II, Sec. 4, and Art. XV, Sec. 8, Constitution). In all questions on the care, custody, education and property of the child, the latters welfare shall be paramount (Art. 363, Civil Code; Luna vs. International Appellate Court, 137 SCRA 7), but the court should consider the choice of the child over seven years of age (see Art. 213, Family Code). In Unson vs. Araneta (101 SCRA 183), the Supreme Court had said: The sole and foremost consideration in controversies regarding child custody is the physical, education, social and moral welfare of the child. Premises considered, the child, an eight-year old girl and who is thus in her formative and most impressionable stage in her life, should be freed from the unwholesome and immoral situation of a mother who openly lives with her brother-in-law. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure (Art. 363, Civil Code, as amended by Art. 213, Family Code). At this tender age, a child is yet unable to discern between what may be morally right
Arts. 356-363
PERSONS Title XII. Care and Education of Children
217
or wrong; hence, compelling reasons should refer to physical rather than moral well-being. The rule is necessary in order to avoid the tragedy and deep sorrow of a mother who otherwise would see her baby torn away from her (Hontiveros vs. International Appellate Court, 132 SCRA 745).
218
TITLE XIII. USE OF SURNAMES (N)

Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Art. 367. Natural children by legal fiction shall principally employ the surname of the father. Art. 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother. Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husbands surname, or (2) Her maiden first name and her husbands surname, or (3) Her husbands full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husbands surname, unless: (1) The court decrees otherwise, or
218
Arts. 364-380
PERSONS Title XIII. Use of Surnames
219
(2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husbands surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) or (2) Add the Roman numerals, II, III, and so on. Add a middle name or the mothers surname,
Art. 376. No person can change his name or surname without judicial authority. Art. 377. Usurpation of a name and surname may be the subject of an action for damages and other relief. Art. 378. The unauthorized or unlawful use of another persons surname gives a right of action to the latter. Art. 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. Art. 380. Except as provided in the preceding article, no person shall use different names and surnames.
Of children Legitimate and legitimated children shall principally use the surname of the father (Art. 364, Civil Code; see
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Arts. 364-380
also Art. 174, Family Code; Padilla vs. Republic, 113 SCRA 789). An adopted child shall bear the surname of the adopter (Art. 365, Civil Code; see Art. 189, Family Code). Under the Civil Code, a natural child acknowledged by both parents should principally use the surname of the father. If recognized by only one of the parents, a natural child should employ the surname of the recognizing parent (Art. 366, Civil Code). Natural children by legal fiction would principally employ the surname of the father (Art. 367, Civil Code). Illegitimate children, who were not natural, would bear the surname of the mother (Art. 368, Civil Code; Batbatan vs. Civil Register, 118 SCRA 745). The Family Code now provides that illegitimate children without distinction shall use the surname of the mother (Art. 176, Family Code). This is the rule regardless of whether the father admits or denies paternity (Mossesgeld vs. Court of Appeals, 101 SCAD 928, 300 SCRA 464). Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father (Art. 369, Civil Code). Of Married Women The accepted rule is that a person may only use his own name and surname. One exception involves a married woman. When a woman marries, the law mandates, in brief outline, thusly A. During the existence of the marriage, she may choose to use any of the following names: (1) Her maiden first name and surname and add her husbands surname, or (2) Her maiden first name and husbands surname, or (3) Her husbands full name but must prefix a word indicating that she is his wife (Art. 370, Civil Code).
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221
It is mandatory that the husbands surname should, in any of the above, be somehow used. Interestingly, in one of the deliberations of the Civil Code Revision Committee at the U.P. Law Center (participated in by Justice Jose B.L. Reyes, Justice Ricardo C. Puno, Justice Eduardo Caguioa, Justice Alicia Sempio-Diy, Atty. Ofelia CalcetesSantos, Dean Fortunato Gupit and Dean Jose C. Vitug), a proposal to allow a married woman to use her maiden name and surname (after noting the provision of Sec. 13, Art. II, of the Constitution expressing the fundamental equality before the law of women and men) was turned down by the Committee. In case of legal separation, the wife must continue using her name and surname employed before the decree of legal separation (Art. 372, Civil Code). This provision is mandatory, i.e., she may not at will revert to her maiden name and surname (Laperal vs. Republic, 6 SCRA 357). B. In the event of annulment of marriage (1) If the wife is adjudged to be the guilty party, she must resume her maiden name and surname, but (2) If the wife is the innocent party (i) She may resume her maiden name and surname, or
(ii) She may choose to continue using her husbands surname unless (a) The court decrees otherwise, or (b) She or he remarries (Art. 371, Civil Code). C. In case of death of the husband The widow may use her husbands surname as though he were still living (Art. 373, Civil Code), or
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Arts. 364-380
resume her maiden name and surname (pursuant to the general rule). D. In case of divorce The rule has been held to be akin to item C (death of husband), i.e., she may use her husbands surname (Tolentino vs. Court of Appeals, 162 SCRA 66) or resume her maiden name and surname (general rule). It would seem preferable, however, to have this situation governed instead by the rules on annulment where one could distinguish between a case where the wife gives cause for divorce (annulment) and the instance when she is the innocent party. E. In case of declaration of nullity of marriage No marriage having, or being deemed to have, technically existed, the general rule, i.e., that she may only use her own name and surname, should apply, but if she has, in fact theretofore used the husbands surname, she obviously should cease from such use upon finality of the decree of nullity. On the issue of whether or not a woman who has been legally divorced from her husband may be enjoined by the latters present wife from using the surname of the husband, the Court, in Tolentino vs. Court of Appeals (162 SCRA 66), has said: (The) Philippine law is understandably silent, we have no provisions for divorce in our laws and consequently, the use of surnames by a divorced wife is not provided for. xxx It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code states that the wife cannot claim an exclusive right to use the husbands surname. She cannot be prevented from using it; but neither can she restrain
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223
others from using it. (Tolentino, Civil Code, 1974, ed., p. 881) Art. 371 is not applicable to the case at bar because Art. 371 speaks of annulment while the case before us refers to absolute divorce where there is a severance of valid marriage ties. The effect of divorce is more, akin to the death of the spouse where the deceased woman continues to be referred to as the Mrs. of her husband even if the latter has remarried rather than to annulment since in the latter, it is as if there has been no marriage at all. No person shall change his name or surname without judicial authority (Art. 376, Civil Code) and only for justifiable reasons. A petition to resume the use of maiden name is not covered by the rules on change of name. The change of name contemplated by the law, and which requires judicial authority, is that which pertains to the true and real name of a person as given to him and so recorded in the civil register. Thus, when the marriage ties or vinculum no longer exists as in the case of death of the husband (or divorce as authorized by the Muslim Code), the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name, and the use of her former husbands name becomes optional and not obligatory (Yasin vs. Judge, Sharia District Court, 59 SCAD 191, 241 SCRA 606). Any usurpation of a name and surname may be the subject of an action for damages and other relief (Arts. 377-378, Civil Code). The use, however, of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons and, when so employed, pen names and stage names cannot be usurped (Art. 379, Civil Code).
224
TITLE XIV. ABSENCE

Chapter 1 Provisional Measures In Case of Absence Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a) Art. 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (182) Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a) Chapter 2 Declaration of Absence Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left
224
Arts. 385-389
PERSONS Title XIV. Absence
225
a person in charge of the administration of his property, his absence may be declared. (184) Art. 385. The following may ask for the declaration of absence: (1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185) Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (186a) Chapter 3 Administration of the Property of the Absentee Art. 387. An administrator of the absentees property shall be appointed in accordance with Article 383. (187a) Art. 388. The wife who is appointed as an administratrix of the husbands property cannot alienate or encumber the husbands property, or that of the conjugal partnership, without judicial authority. (188a) Art. 389. The administration shall cease in any of the following cases: (1) When the absentee appears personally or by means of an agent; (2) When the death of the absentee is proved and his testate or intestate heirs appear; (3) When a third person appears, showing by a proper document that he has acquired the absentees property by purchase or other title. In these cases, the administrator shall cease in the performance of his office, and the property shall be at
226
Arts. 390-393
the disposal of those who may have a right thereto. (190) Chapter 4 Presumption of Death Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventyfive years, absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under the other circumstances and his existence has not been known for four years. (n) Art. 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194) Chapter 5 Effect of Absence Upon the Contingent Rights of the Absentee Art. 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove
Arts. 381-396
227
that he was living at the time his existence was necessary in order to acquire said right. (195) Art. 394. Without prejudice to the provisions of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (196a) Art. 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the co-heirs, the circumstance of its being subject to the provisions of this article shall be stated. (197) Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (198)
Absence may either be provisional, declared or presumptive death. There is provisional absence when a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property or when the power conferred to an agent by the absentee has expired (Arts. 381-383, Civil Code). Two years having elapsed without any news about the absentee or since the receipt of the last news about the absentee, and five years in case the absentee has left a person in charge of the administration of his property, a declaration of absence may be asked by: (1) the spouse present; (2) the heirs instituted in a will, who may present an authentic copy of the same; (3) the relatives who may succeed by the law of intestacy; or (4) those who may
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Arts. 381-396
have over the property of the absentee some right subordinated to the condition of his death (Arts. 384-385, Civil Code). In Reyes vs. Alejandro (141 SCRA 65), the petitioner filed a petition in 1969 for the declaration of absence of her husband, alleging that he had been absent from their conjugal dwelling since 1962 and since then had not been heard from and that his whereabouts were unknown. The petition alleged that the husband had left no will, not any property in his name nor any debts, and that no property was acquired by the couple during the marriage. The petition invoked Rule 107 of the Rules of Court and Article 384 of the Civil Code. After hearing, the court dismissed the petition on the ground that since the husband had left no property, there was no need to declare him judicially an absentee. The petitioner went to the Supreme Court, which ruled: The need to have a person judicially declared an absentee is when he has properties which have to be taken care of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code); or his wife is asking the Court that the administration of all classes of property in the marriage be transferred to her (Article 196, Civil Code). The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings (Peyer vs. Martinez, 88 Phil. 72, 80). Upon such declaration, an administrator shall be appointed giving preference to the spouse present where there is no legal separation (Art. 387, in relation to Art. 383, Civil Code), but the administration shall cease: (1) when the absentee appears personally or by means of an agent; or (2) when the death of the absentee is proved, and his testate or intestate heirs appear; or (3) when a
Arts. 381-396
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third person appears, showing by a proper document that he has acquired the absentees property by purchase or other title. In the foregoing cases, the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto (Art. 389, Civil Code). After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession until after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened (Art. 390, Civil Code). When, however, the absentee should have disappeared under any of the following instances (qualified presumptive death), the absentee shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years (Art. 391, Civil Code). In ordinary presumptive death (Art. 390, Civil Code, supra.), the absentee shall be presumed to have died upon the expiry of the period stated. In qualified presumptive death, however, the absentee shall, after the four-year period has elapsed, be presumed to have died upon his disappearance. The presumed time of death obviously would be relevant on the successional rights of
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Arts. 381-396
both the absentee himself and his heirs (see Arts. 393394, Civil Code, and the Law on Succession, infra.). Eastern Shipping Lines, Inc. vs. Lucera (124 SCRA 425) has ruled that the presumption of death under Article 391 of the Civil Code must yield to the rule on preponderance of evidence. Accordingly, where there is an ample evidence to show that a vessel has encountered bad weather, that the master of said vessel has sent radio messages notifying the shipowner of the emergency and asking for assistance, and thereafter the vessel could not be found despite diligent search, the men on board who have disappeared with the vessel must be held to have died during the incident without having to await the four-year period under the law. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents meanwhile accruing (Art. 392, Civil Code). Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors-in-interest do not bring the proper actions (Art. 396, Civil Code).
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TITLE XV. EMANCIPATION AND AGE OF MAJORITY

Chapter 1 Emancipation Art. 397. Emancipation takes place: (1) (2) By the marriage of the minor; By the attainment of majority;
(3) By the concession of the father or of the mother who exercises parental authority. (314) Art. 398. Emancipation treated of in no. 3 of the preceding article shall be effected in a public instrument which shall be recorded in the Civil Register, and unless so recorded, it shall take no effect against third persons. (316a) Art. 399. Emancipation by marriage or by voluntary concession shall terminate parental authority over the childs person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. (317a) Art. 400. In order that emancipation by concession of the father or of the mother may take place, it is required that the minor be eighteen years of age, and that he give his consent thereto. (318) Art. 401. Emancipation is final and irrevocable. (319a)
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Arts. 397-406
Chapter 2 Age of Majority Art. 402. Majority commences upon the attainment of the age of twenty-one years. The person who has reached majority is qualified for all acts of civil life, save the exceptions established by this Code in special cases. (320a) Art. 403. Notwithstanding the provisions of the preceding article, a daughter above twenty-one but below twenty-three years of age cannot leave the parental home without the consent of the father or mother in whose company she lives, except to become a wife, or when she exercises a profession or calling, or when the father or mother has contracted a subsequent marriage. (321a) Art. 404. An orphan who is minor may, at the instance of any relative or other person, obtain emancipation by concession upon an order of the Court of First Instance. (322a) Art. 405. For the concession and approval referred to in the preceding article, it is necessary: (1) That the minor be eighteen years of age; (2) That he consent thereto; and (3) That the concession be deemed convenient for the minor. The concession shall be recorded in the Civil Register. (323a) Art. 406. The provisions of Article 399 are applicable to an orphan who has been emancipated according to Article 404. The court will give the necessary approval with respect to the contracts mentioned in Article 399. In litigations, a guardian ad litem for the minor shall be appointed by the court. (324a)
The foregoing provisions have been superseded by the Family Code, and the latter by Republic Act No. 6809. As it now stands, emancipation takes place only by the attainment of the age of majority of eighteen years from which there is no exception.
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TITLE XVI. CIVIL REGISTER

Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. (325a) Art. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. (326a) Art. 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city of municipality where the court is functioning. (n) Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (n) Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. (n)
233
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Arts. 407-413
Art. 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n) Art. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. (n)
All acts, events and judicial decrees concerning the civil status of persons shall be recorded in the Civil Register (Art. 407, Civil Code). No entry in a City Register shall be changed or corrected without judicial order (Art. 412, Civil Code). Since the case of Ty Kong Tin vs. Republic (94 Phil. 321), it has been a consistent ruling that substitutions or alterations such as those affecting the status and citizenship of a person in the civil register records cannot be ordered by the court unless such matters are first threshed out in an appropriate actions wherein all parties who may be affected by the entries are notified or represented. The judicial proceedings under Article 412 of the Civil Code, implemented by Rule 108 of the Rules of Court, had been held to only justify an order to correct innocuous or clerical errors such as misspellings and the like, errors which are visible to the eyes or obvious to the understanding (Republic vs. Bartolome, 138 SCRA 442; Vda. de Castro vs. Republic, 134 SCRA 12). A clerical error is one that could be apparent on the face of the record and capable of being corrected by mere reference to such record (Barretto vs. Civil Register, 74 SCRA 257). A petition for correction or alteration of entries in the civil register could not possibly be allowed if the purpose of the proceeding is to establish filiation by the simple expedient of changing the entries in the record of birth in the civil registry (Republic vs. Bartolome, 138 SCRA 442). The Supreme Court would appear to have deviated from the rule in the case of Republic vs. Macli-ing (135 SCRA 367). The entries sought to be corrected in this case were the name of respondents father, which the respondents wanted to change from Esteban Sy to Sy Piao on the claim that Esteban was only a nickname, and
Arts. 407-413
PERSONS Title XVI. Civil Register
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the name Joe Sy appearing in the birth record of one of the respondents to Jose Sy. The court granted the petition after a full-blown hearing. The government appealed, contending that Rule 108 of the Rules of Court on which the respondents anchored their petition was applicable only to clerical or innocuous errors or to corrections that were not controversial and could be supported by indubitable evidence. The Court ruled: It is true that the change from Esteban Sy to Sy Piao would necessarily affect the identity of the father. In that sense, it can be said to be substantial. However, we find indubitable evidence to support the correction prayed for. In the Alien Certificate of Registration of the father (Exhibit C), his name appears as Sy Piao. The same is true in his Immigrant Certificate of Residence (Exhibit C-3). x x x The school records of Oscar Sy both in high school and at St. Louis University in Baguio, recorded the name of his father as Sy Piao x x x. In the case of Ty Kong Tin vs. Republic, 94 Phil. 321 (1954), as well as subsequent cases predicated thereon, we forbade only the entering of material corrections in the record of birth by virtue of a judgment in a summary action. The proceedings below, although filed under Rule 108 of the Rules of Court, were not summary. x x x If the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one which is substantial and controverted, like a case involving nationality or citizenship, which is substantial and controverted, affirmative action cannot be granted in a proceeding summary in nature. The Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding (Republic vs. Valencia, G.R. No. L-32181, 5 March
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Arts. 407-413
1986; see Republic vs. Belmonte, 158 SCRA 173). The civil registrar and all persons, who have or claim any interest which would be affected by the cancellation or correction of an entry being sought, should be made parties to the proceeding. The civil registrar is an indispensable party to the said proceeding without which no final determination of the case can be made (Republic vs. Belmonte, supra.). The rules have been substantially modified with the enactment of Republic Act No. 9048, which authorizes the city or municipal civil registrar or the consul general to correct a clerical or typographical error in an entry and/or change a first name or nickname in the civil register without need of a judicial order (see Sec. 1, R.A. No. 9048). Clerical or typographical error pertains to a mistake carried out in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records. No correction, however, must involve the change of nationality, age, status, or sex of the petitioner (Sec. 2[3], ibid.). First name is a name or nickname given to a person which may consist of one or more names in addition to the middle and last names (Sec. 2[6], ibid.). Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country, and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil
Arts. 407-413
PERSONS Title XVI. Civil Register
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registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates (Sec. 3, ibid.). All petitions for the correction of clerical or typographical errors and/or change of first names or nicknames may be allowed: (1) when the petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) when the new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) when the change will avoid confusion (Sec. 4, ibid.). The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is incompetent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made. The petition shall be supported with: (1) a certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) at least two public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) other document which the petitioner or the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition (Sec. 5, ibid.). In case of change of first name or nickname, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circu-
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Arts. 407-413
lation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies: the first copy to be distributed to the concerned city or municipal civil registrar, or the consul general; the second copy to the Office of the Civil Registrar General; and the third copy to the petitioner (ibid.). The extrajudicial corrections or change in the entries in the civil register is not preclusive of judicial remedies that may still be applied for by an interested party.
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THE FAMILY CODE OF THE PHILIPPINES

(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987)
TITLE I. MARRIAGE
Chapter 1 Requisites of Marriage
Concept of Marriage
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a)
Marriage remains to be recognized as being an inviolable social institution that must be cherished and protected (Sec. 2, Art. XV, 1987 Constitution). Marriage is not just an adventure but it is a lifetime commitment so enshrined and in the Family Code as special contract of permanent union between a man and a woman. The Constitution is no less emphatic, viz: Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly,
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CIVIL LAW The Family Code of the Philippines
Art. 1
it shall strengthen its solidarity and actively promote its total development. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Article XV, 1987 Constitution). Marriage is the basis of human society and a relation that is imbued with public interest. Thus, every intendment of the law leans toward legalizing matrimony (Alavado vs. City Government of Tacloban, 139 SCRA 230) and helping it to endure. Absolute divorce is not recognized by the Family Code, although the concept of the Canon Law on void marriages has been adopted to a certain degree by the Code. Except for allowing the spouses to fix their property relation, marriage is purely governed by law.Marriage is the basis of human society and a relation that is imbued with public interest. Thus, every intendment of the law leans toward legalizing matrimony (Alavado vs. City Government of Tacloban, 139 SCRA 230) and helping it to endure. Absolute divorce is not recognized by the Family Code, although the concept of the Canon Law on void marriages has been adopted to a certain degree by the Code. Except for allowing the spouses to fix their property relation, marriage is purely governed by law. In Calimlim-Canullas vs. Fortun (129 SCRA 675), where the spouses Mercedes Calimlim-Canullas and Fernando Canullas, married in 1962, built a house on the land owned by Fernandos father and after his fathers death, Fernando (who inherited the land) sold the house and lot to his concubine, the Supreme Court held: x x x We find that the contract of sale was null and void for being contrary to morals and public policy. The sale was made by a husband in favor of a concubine after he had abandoned his family and left the conjugal home where his wife and children
Arts. 2-4
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lived and from whence they derived their support. That sale was subversive of the stability of the family, a basic social institution which public policy cherishes and protects.
Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)
The requisites for the validity of a marriage are classified by the Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer) and formal (authority of the solemnizing officer, marriage license, and a mar-
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Arts. 2-4
riage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer and in the presence of at least two witnesses). The absence of any of the essential and formal requisites renders the marriage void ab initio. While the authority of the solemnizing officer is a formal requisite the absence of which renders the marriage void ab initio under Article 4, the marriage, however, can still be considered valid if the parties or either of them has relied in good faith on the legal authority of the solemnizing officer (under Article 35, paragraph 2 of the Code). A defect in the essential requisites, such as the attendance of vices of consent, renders the marriage voidable but an irregularity in the formal requisites, such as an irregularity in the issuance of the marriage license, shall not affect the validity of the marriage, although the parties responsible therefor may be held civilly, criminally, or administratively liable. (Art. 4, Family Code). Doubts, to be sure, may arise on the meaning of absence, on the one hand, and of a defect or irregularity, on the other hand. Would a marriage, for instance, which is celebrated not in the presence of qualified witnesses render the marriage valid, voidable or void? Undoubtedly, there is an imperfection in the celebration of the marriage. While the essential requisites of a valid marriage (Art. 2, Family Code) does not specifically mention the need for witnesses, the formal requisites (Art. 3, Family Code), however, require a personal declaration by the prospective spouses that they so take each other as husband and wife in the presence of not less than two witnesses of legal age. In this and similar instances, it may be well to consider as primordial the essence of the legal requirements, the failure of which would result in the absence thereof. Where the failure, however, is merely in the due observance of, or in the manner of compliance with, the requirements prescribed by the law, the same should only be considered as either a defect or irregularity, as the case may be. Viewed in this light, the marriage
Art. 5
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in the above problem should be considered valid since the imperfection is but an irregularity in the formal requisites under the third paragraph of Article 3, the essence in that legal requirement being really the personal declaration of the parties of their agreement to marry.
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
The law recognizes only one case of absolute disqualification, i.e., those who are below the age of legal capacity (18 years) to a marriage. Relative disqualifications, such as those due to the civil or natural relation-ship of the parties, may likewise negate the validity of a marriage (see Arts. 37 and 38, Family Code, infra). The Family Code has established in marriage a uniform age of legal capacity of eighteen years and age of consent of twenty-one years for both the male and the female. This rule has not been changed by Republic Act No. 6809 reducing the majority age from twenty-one to eighteen years. A marriage contracted by any party below 18 years of age even with the consent of the parents or guardians is void ab initio under Article 35 of the Code. Parental consent is required of a party who marries between the ages of 18 and 21 (Republic Act No. 6809); without that parental consent, the marriage is voidable (Art. 45, Family Code). Consent Freely Given Like any other contract, consent of the contracting parties should be free from any vice of consent; unlike, however, in ordinary contracts, the vices of consent in marriage are generally more stringent than in other contracts. The attendance of violence, intimidation, fraud, undue influence or the state of being of unsound mind
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Arts. 6-7
may vitiate consent that can render the contract voidable (Arts. 45 and 46, Family Code). A breach of promise to marry is not enforceable nor, by itself, otherwise actionable, except that to the extent that one has acted in a manner that is contrary to morals, good customs or public policy, the person upon whom it is exercised may be compensated for the damage sustained (see Arts. 19 and 21, Civil Code; Hermosisima vs. Court of Appeals, et al., 109 Phil. 629).
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a)
The law does not prescribe any particular form for the ceremony; it is enough that the parties declare, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each as husband and wife. A party to the marriage may not thus be represented by a proxy, but an informality in conducting the marriage ceremony does not adversely affect the validity of the marriage.
Art. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction;
Arts. 7-8
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(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain and airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consulgeneral, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriage contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a)
Unlike the Civil Code of 1950, the judges of the Court of Tax Appeals and justices of the Sandiganbayan may now solemnize marriages. The authority, however, of mayors and ambassadors to solemnize marriages has been removed by the Family Code, although that of the city and municipal mayors has been reinstated by the Local Government Code of 1991 (see Secs. 444 and 455, Local Government Code). A priest, rabbi, imam, or minister of any church or religious sect may solemnize marriages, provided he is authorized and acts within the limits of the written authority granted him by his church or sect and such authority is registered with the Office of the Civil
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Arts. 7-8
Registrar General, and provided further that one of the contracting parties belongs to such solemnizing officers church or religious sect (Art. 7, par. 2, Family Code). The parties must state their religion in their marriage contract (Art. 22, par. 2, Family Code). A marriage between a Filipino citizen and a non-national cannot be celebrated by a consul. In the event such a marriage is performed nonetheless, it would appear to be more of a case of irregularity, than an absence of a formal requisite, that would not thus adversely affect the validity of the marriage (see Arts. 4, 7, 10 and 35, Family Code). The lack of authority of the solemnizing officer would render the contract void ab initio (Art. 4, Family Code) but where the parties to the marriage, or either of them, believed in good faith that the solemnizing had that authority, the marriage would still be valid (Art. 35, Family Code). The question might be posed as to whether or not the belief in good faith of the parties or either party relative to the authority of the solemnizing officer covers both mistake of fact and mistake of law. For instance, would an honest belief on the part of either or both contracting parties that a notary public can celebrate a marriage (a mistake of law) make such marriage solemnized by the notary public valid, or should the mistake refer solely to one of fact such as a case where a person solemnizing the marriage has represented himself to the contracting parties as a priest who can solemnize marriage but who is not so authorized? The law has not made any distinction and neither should we. What is more important is that the belief in good faith of one or both contracting parties is satisfactorily established and each case must be judged by its own merits. Thus, a well educated person may find it much more difficult to prove his or her good faith in any of such marriages than what it might take for an illiterate contracting party to do. So, also, good faith perhaps can easier be anchored on a mistake of fact than it can on a mistake of law. The phrase parties
Arts. 9-11
247
believing in good faith evidently pronounces a state of mind personal to the parties; hence, there is hardly room for the otherwise rigid application of the legal mandate that ignorance of the law does not excuse its non-compliance (Art. 3, Civil Code) or of the rule (in possession) that only doubtful or difficult questions of law may be the basis of good faith (Art. 527, Civil Code).
Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or viceconsul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) (2) (3) (4) Full name of the contracting party; Place of birth; Age and date of birth; Civil Status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) (7) parties; (8) father; Present residence and citizenship; Degree of relationship of the contracting Full name, residence and citizenship of the
(9) Full name, residence and citizenship of the mother; and
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Art. 12
(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a) Art. 12. The local civil registrar, upon receiving such applications, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the person having custody of the originals. These certificates or certified copies of the documents required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or less of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof 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 public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of the birth or baptismal certificate shall not be required if the parents of the con-
Arts. 9-13
249
tracting parties appear personally before the local civil registrar concerned and swear to the correction of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a) Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a)
A marriage license is a formal prerequisite to the marriage. The license is issued by the local civil registrar of the city or municipality where either contracting party habitually resides upon an application in writing of the contracting parties and the registrars being satisfied that no legal impediment to such marriage exists. A marriage license is valid in any part of the Philippines, but it shall be good for not more than 120 days from the date it is issued, and it shall be deemed cancelled by the expiration of said period if the interested parties have not made use of it (Art. 20, Family Code). When either or both of the contracting parties are citizens or subjects of a foreign country, it shall be necessary, before a marriage license can be obtained, to provide themselves with a certificate of legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials (Art. 21, Family Code). A marriage without a validly issued license having first been obtained is void ab initio (see Art. 35, Family
250
Arts. 14-15
Code), but an irregularity in its issuance does not affect the validity of the marriage (Art. 4, Family Code). In order to help ensure a successful marriage, another requisite for the issuance of a marriage license has been added by the Family Code, namely, a certificate from a priest or minister or an accredited marriage counselor that the contracting party at least 18 but below 25 years of age has undergone marriage counseling (Art. 16, Family Code). If there is no such certificate, the issuance of the license shall be suspended for three (3) months after complete publication of the application for license (similar to the lack of parental advice). In an apparent attempt to put a man and a woman in equal standing in marriage, the provision of the Civil Code (Art. 84) prohibiting the issuance of a marriage license to widow under 300 days following the death of her husband, unless in the meantime she has given birth to a child, has been eliminated.
Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twentyone, they shall, in addition to requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested 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 authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a) Art. 15. Any contracting party between the ages of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended
Art. 16
251
marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a) Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificate of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)
Any male or female of the age of 18 years or upwards, not otherwise disqualified by law, may enter into a contract of marriage. In case either or both of the contracting parties, not being emancipated by a precious marriage (which assumes that consent had theretofore been given to the prior marriage), are less than 21 years of age, the consent to their marriage of the father, mother or guardian, or persons having legal charge of them, in the order mentioned, is required. The marriage, in the
252
Art. 17
absence of such consent, is voidable and it may be annulled by the party whose parent or guardian did not give consent within 5 years after attaining the age of 21, or by the parent or guardian or person having legal charge at any time before such party has reached the age of 21 years (Art. 45, in relation to Art. 47, Family Code). The right to annul the marriage is lost if after attaining the age of 21 years, the party to the marriage entitled to bring the action should have freely cohabited with the other and both lived together as husband and wife (Art. 45, Family Code) or if the action to annul would have meanwhile prescribed (see Art. 47, infra, Family Code). The Family Code has not quite resolved the conflict of views on whether or not the voidable marriage is convalidated by parental consent being given after the marriage. The better view appears to be that the convalidation thereof or for that matter of any other voidable contract (not void contracts which are not generally convalidated) is legally feasible only under and within the means expressly sanctioned by law. In the case of voidable marriages, the only methods of convalidation expressed by law are by prescription and by cohabitation (see Arts. 45 and 47, Family Code). A party above 21 but under 25 years of age is obliged to ask the parent or guardian for advice upon the intended marriage. If such advice is not obtained, or if it be unfavorable, the marriage shall not take place until after three months following the completion of the publication of the application for marriage license (Art. 15, Family Code). The failure to obtain such advice shall not, however, invalidate the marriage.
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessi-
Arts. 18-21
253
ble to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a) 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 findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. (64a) Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or by their oath before the local civil registrar. (65a) Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a) Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity
254
Arts. 22-23
herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) The full name, sex and age of each contracting party; (2) dence; Their citizenship, religion and habitual resi-
(3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into a marriage settlement, if any, attaching a copy thereof. (67a) Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a)
Arts. 17-25
255
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n) Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n)
The failure of compliance with the foregoing administrative and other requirements of the law should not adversely affect the validity of the marriage itself (see Art. 4, Family Code), except in cases where certain other provisions could instead specifically govern such as the fatal effect of an expired license on the marriage (see Art. 20, in relation to Arts. 3 and 35, Family Code). In the case of stateless persons (see Art. 21, second paragraph, Family Code), the domiciliary theory or the law of domicile (see Koh vs. Court of Appeals, 70 SCRA 298), it is believed, may still apply since, unlike refugees from a foreign country, stateless persons are without nationality. Presumption of Marriage A man and a woman deporting themselves as husband and wife are prima facie presumed to have entered into a lawful contract of marriage (Rule 131, Sec. 3, Revised Rules of Court; Rivera vs. Intermediate Appellate Court, 182 SCRA 322; Vda. de Labuca vs. Workmens Compensation Commission, 77 SCRA 31; Alavado vs. City Government of Tacloban, 139 SCRA 230), but other attendant circumstances to the contrary may offset that presumption (see Fernandez vs. Puatu, et al., 102 Phil. 363).
256
Art. 26
Foreign Marriages and Divorce Decrees

Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by E.O. No. 227, dated July 17, 1987)
The provisions of Article 26 of the Family Code do not apply to a marriage between persons who are both non-nationals; instead, under the nationality theory, their marriage shall be fully governed by the laws of their own country (see Art. 15, Civil Code), and the exclusionary clause in the first paragraph of the article will not apply to the marriage. Where one or both parties to the marriage are citizens of the Philippines, the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of celebration. Such marriage, however, is not recognized (at least as regards the Filipino spouse) when the marriage is (a) contracted by a national who is below 18 years of age; (b) bigamous or polygamous (except as provided for in Article 41); (c) contracted through mistake of one party as to the identity of the other; (d) contracted following the annulment or declaration of nullity of a previous marriage but before the partition of the property of the spouses, the delivery of the presumptive legitimes of the children and the proper recording thereof;
Art. 26
257
(e) contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of the marriage; (f) incestuous; and (g) void for reasons of public policy (due to the relationship of the parties; see Art. 26, in relation to Arts. 3538, Family Code). In the case of a mixed marriage (between a Filipino citizen and a foreigner), the second paragraph (introduced by E.O. No. 227, dated 17 July 1987) provides that if such marriage is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating said spouse to remarry, the Filipino spouse shall then likewise have capacity to marry. The law, however, does not require the Filipino spouse to oppose the divorce. Evidently, this amendatory provisions is intended to avoid the absurdity of the Filipino still being married to an alien spouse who, under the latters law, is no longer married to the Filipino spouse. Unfortunately, the amendment is confined to the spouses capacity to remarry and does not explicitly ordain, albeit not unlikely intended, the dissolution of the marriage tie itself that would have likewise settled definitely other possible personal, property, and successional right issues between them. The doctrines laid down under the Civil Code regime might then yet apply when the Filipino spouse remains unmarried and ignores the divorce. The law is not clear as to whether or not the second paragraph of Article 26 would also apply to a marriage contracted by Filipino spouses, one of whom during such marriage acquires alien citizenship and who thereafter validly obtains abroad a divorce capacitating him or her to remarry. If the intention, as it might so appear (considering that it is more of an exception than of the general rule), were to limit the provision to marriages where one of the spouses thereto is a non-national at the time of the celebration of the marriage, the paragraph should have
258
Arts. 27-29
perhaps read, where a marriage is validly celebrated between a Filipino citizen and a foreigner x x x. As the provision stands, however, there is some ambiguity on the legislative intent as to whether the clause validly celebrated qualifies merely the marriage itself or likewise the parties thereto. Considering the basic intendment of the law, it would seem preferable to hold the clause as having been made in reference to the marriage more than to the parties thereto. Also left unresolved by the Family Code is a foreign marriage valid in the country of celebration between a Filipino citizen who is disqualified under Philippine Law to marry and an alien who is not similarly disqualified (such as where the spouses, although of different nationalities, are first degree cousins). The marriage could give rise to another possible situation where the alien this time could be married to a Filipino who, under Philippine law, is not married to the former.
Chapter 2 Marriages Exempt from License Requirement Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a marriage license. (72a) Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of
Arts. 27-34
259
transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. (72a) Art. 30. The original of the affidavit required in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (73a) Art. 31. A marriage in articulo mortis between passenger or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a) Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a) Art. 34. No license shall be necessary for the marriage of a man and woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (76a)
The marriages referred to in the above provisions of the Family Code do not require a marriage license; in fine, these marriages may be grouped into: (a) marriages
260
Arts. 27-34
in articulo mortis; (b) marriages between parties where both or either resides in a remote place inaccessible to transportation; (c) marriages between parties who are members of the ethnic cultural communities; and (d) marriages between common-law spouses who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. Although the sentence structure of the law appears to indicate that the absence of legal impediment refers to the life of cohabitation, the presumption of validity and regularity of marriage, among other things, could override this interpretation in favor of simply requiring the freedom from legal impediment at the time the marriage is celebrated which would be when the question becomes of real consequence. For the provision on legal ratification of marital cohabitation to apply, the following conditions must concur: (1) the man and woman must have been living together as husband and wife for at least five years before the marriage; (2) the parties must have no legal impediment to marry each other; (3) the fact of absence of legal impediment between the parties must be present at the time of marriage; (4) the parties must execute an affidavit stating that they have lived together for at least five years; and (5) the solemnizing officer must execute a sworn statement that he has ascertained the qualifications of the parties and that he has found no legal impediment to their marriage (Manzano vs. Judge Sanchez, A.M. No. MTJ-00-1329, 08 March 2001). The five-year common-law period expressed in Article 34 of the Family Code would have been a period of legal union, characterized by exclusivity and continuity, were it not for the absence of marriage. This 5-year period shall be the years immediately before the day of the marriage; otherwise, if that continuous 5-year cohabitation were computed without any distinction on whether or not the parties are capacitated to marry each other during the entire five years, then the law would be sanc-
Arts. 35-37
261
tioning immorality and common law relationships and placing them on the same footing with those who live faithfully with their lawful spouses. Thus, the subsistence of a first marriage, although there is actual severance of the filial companionship between the spouses, does not make the cohabitation by either spouse with any third party as being one of husband and wife relationship (Ninal vs. Bayadog, 123 SCAD 58, 328 SCRA 122).
Chapter 3 Void and Voidable Marriages Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without a license, except those covered by the preceding Chapter; (4) Those bigamous or polygamous marriages not falling under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. 227) Art. 37. Marriages between the following are incestuous and void from the beginning, whether the rela-
262
Arts. 35-38
tionship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half-blood. (81a) Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) (3) (4) child; Between step-parents and step-children; Between parents-in-law and children-in-law; Between the adopting parent and the adopted
(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) ter; and Between adopted children of the same adop-
(9) Between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse. (82a)
Void marriages under the Family Code may be grouped into: (a) those where there is an absence of the essential and formal requisites of marriage (under Arts. 2 and 3 of the Code); (b) bigamous and polygamous marriages; (c) those where a party to the marriage is psychologically incapacitated to marry at the time of its celebration; (d) incestuous marriages; (e) those contracted through mistake as to the identity (physical and not as regards character, rank or fortune) of the other party; and (f) those declared void because of public policy. Also declared void by the Code are subsequent marriages
Arts. 35-38
263
where, in the case of absentee spouses under Article 41, both spouses of the subsequent marriage have acted in bad faith (Art. 44, Family Code) and where, in the case of an annulment or of absolute nullity of a marriage, the spouses marry before the petition and distribution of the property (of the spouses of the prior marriage) as well as the delivery of the presumptive legitimes of the children and the recording thereof in the civil registry (Art. 53, in relation to Art. 52, Family Code). Among the changes (from the Civil Code of 1950) introduced by the Family Code are new proscriptions such as marriages: (a) between parents-in-law and children-in-law; and (b) between the adopted children of the same adopter. Upon the other hand, marriages between step-brothers and step-sisters (not step-parents and stepchildren) are now permitted. A significant innovation is the inclusion, among the void marriages, of one that is contracted by a party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage x x x even if such incapacity becomes manifest only after its solemnization. Children conceived of such void marriage (due to psychological incapacity) prior to the judicial declaration of nullity are deemed legitimate (Art. 54, Family Code). Thus, psychological incapacity does not necessarily envision an inability of the spouse to have sexual relation with the other. The phrase psychological incapacity has not been defined by the Code itself. In a literal sense, it can refer to any mental (not physical) incapacity that renders a party incapable of assuming and discharging the basic marital covenants. Surely, however, the intendment of the law must have been to confine the meaning of the term to the most serious cases of personality disorders clearly demonstrative of an utter failure of, and hopeless situation of, marriage. The degree, extent, and other conditions of that incapacity must thus be fully examined and properly evaluated in each case. The term psycho-
264
Arts. 35-38
logical incapacity has been taken from the Code of Canon Law; accordingly, the jurisprudence prevailing thereunder at the time of its adoption by the Code, although not controlling, can have strong influence in the application and interpretation of the codal provision. Psychological incapacity refers to a serious psychological illness, a grave and permanent malady to the point of depriving one of the awareness of the duties and responsibilities of the matrimonial bond about to be assumed. These marital obligations are those provided under articles 68 to 71, 220, 221 and 225 of the Family Code (Marcos vs. Marcos, 343 SCRA 755). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, psychological incapacity should refer to no less than a mental incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage (Santos vs. Court of Appeals, 58 SCAD 17, 240 SCRA 20). The Court, in Republic vs. Molina (268 SCRA 198), handed down guidelines in the interpretation and application of Article 36, to wit: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff; (2) the root cause of the psychological incapacity must be: (a) medically or clinically identified; (b) alleged in the complaint; (c) sufficiently proven by experts; and (d) clearly explained in the decision; (3) the incapacity must be proven to be existing at the time of the celebration of the marriage; (4) such incapacity must also be shown to be medically or clinically permanent or incurable; (5) such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage; (6) the essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards husband and wife as well Articles 220, 221 and 225 of the same Code in regard to parents and their children; (7) interpre-
Arts. 35-38
265
tations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts; and (8) the trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state (see also Art. 48, Family Code). The ruling is meant to give some guidelines; not all, however, must be understood as being immutable requirements. There is no requirement that the spouse sought to be declared psychologically incapacitated should be examined by a physician or a psychologist as a condition sine qua non for such declaration (Marcos vs. Marcos, 136 SCAD 713, 343 SCRA 755). Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for a finding of psychological incapacity within the contemplation of the Family Code. It must be shown that these acts are manifestations of a disordered personality which make the party completely unable to discharge the essential obligations of the marital state (Lucita Hernandez vs. Court of Appeals, 116 SCAD 815, 320 SCRA 76). Mere showing of irreconcilable difference and conflicting personalities is not reflective of psychological incapacity (Republic vs. Court of Appeals, 268 SCRA 198). In Pesca vs. Pesca (G.R. No. 136921, 17 April 2001, 147 SCAD 544), the Court has said that emotional immaturity and irresponsibility cannot be equated with psychological incapacity. But the prolonged refusal of a spouse to have sexual intercourse with his or her spouse can be considered a sign of psychological incapacity (Chi Ming Tsoi vs. Court of Appeals, 78 SCAD 57, 266 SCRA 324). Effect on Children Children conceived or born of void marriages are illegitimate; children, however, of void marriages under: (a) Article 36 (due to psychological incapacity) and (b) Article 53, in relation to Article 52 (due to failure of parti-
266
Arts. 35-38
tion, delivery of presumptive legitimes of children and recording thereof following the annulment or declaration of nullity of a prior marriage) conceived or born before the judicial declaration of nullity of such void marriages are deemed legitimate (Art. 54, Family Code). It is noteworthy that this exceptional grant of legitimate status to children of void marriages does not apply to those of void marriages under Article 44 (subsequent marriage by a spouse present where both contracting parties thereto acted in bad faith). The law is not explicit as regards children, or the legal effects in general, of a subsequent marriage entered into by a spouse of a prior void marriage before the latter is judicially declared an absolute nullity. Article 40 of the Family Code merely provides that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. The status, however, of the subsequent marriage is not itself defined, although Article 52, in relation to Article 53, would give the impression that the subsequent marriage is to be deemed void. Article 54, in relation to Article 53, that gives legitimate status to children of void marriage, does not apparently include those of subsequent marriages entered into by a spouse of a prior void marriage before the latter is declared a nullity and are, therefore, in strictissimi juris to still be considered illegitimate. Effect on Property Relations In a void marriage, the parties during cohabitation shall be governed in their property relations by the special co-ownership rules established in Article 147 and Article 148, infra, of the Family Code. The property regime between the parties in a marriage nullified under Article 36 will not thus be governed by Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, but by the co-ownership rules under Article 147 or
Arts. 39-40
267
Article 148 (Valdes vs. RTC, 260 SCRA 221). No specific provisions are expressed in said code in case the parties fail to live together as husband and wife. Neither Article 147 nor Article 148 can then find special application.
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by E.O. 227, dated July 17, 1987 and R.A. 8533). Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)
Void marriages are inexistent from the very beginning and no judicial decree is required to establish their nullity (Odayat vs. Amante, 77 SCRA 338; see also People vs. Aragon, 100 Phil. 1033). For purposes of remarriage, however, the law requires that the absolute nullity of the previous marriage may be invoked on the basis solely of a final judgment declaring such previous marriage void (Art. 40, Family Code). In Cario vs. Cario (351 SCRA 127), the Court has expressly declared that for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. Thus, for other purposes including, but not limited to, the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. Domingo vs. Court of Appeals (226 SCRA 572) has ruled that the filing of a case for collection of sum of money anchored on a marriage claimed to be valid does not necessitate a prior and separate judicial declaration of nullity of marriage. A party may just present testimonial or documentary evidence that would prove that the marriage from which his or her
268
Arts. 39-40
rights flow is in fact valid. Ninal vs. Bayadog (123 SCAD 58, 328 SCRA 499) is instructive: The Court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. x x x The burden of proof to show the nullity of the marriage rests upon the party who claims it to be. The policy adopted by the Constitution is to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. Any doubt should be resolved in favor of the validity of the marriage (Hernandez vs. Court of Appeals, 320 SCRA 76). Under the regime of the Civil Code of 1950, the Supreme Court, in Wiegel vs. Judge Sempio-Diy (143 SCRA 499), held that a subsequent marriage of one of the spouses of a prior void marriage is itself (the subsequent marriage) void if it is contracted before a judicial declaration of nullity of the previous marriage. This pronouncement, however, was abandoned in a later decision of the court in Yap vs. Court of Appeals (145 SCRA 229). The Family Code adopted the Wiegel rule. The phrase for purposes of remarriage is not at all insignificant. Void marriages, like void contracts, are inexistent from the very beginning. It is only by way of exception that the Family Code requires a judicial declaration of nullity of the previous marriage before a subsequent marriage is contracted; without such declaration, the validity and the full legal consequence of the subsequent marriage would itself be in similar jeopardy under Article 53, in relation to Article 52, of the Family Code. Indeed, the necessity of a judicial declaration of nullity of
Arts. 39-40
269
a void marriage for the purpose of remarriage should be held to refer merely to cases where it can be said that a marriage, at least ostensibly, has taken place. No such judicial declaration of nullity should still be deemed essential when the marriage for instance is between persons of the same sex or when either or both parties had not at all given consent to the marriage. It is reasonable to assume that Article 40 of the Family Code has been meant and intended to refer only to marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof. The action or defense for the declaration of absolute nullity of a marriage, like any other void contract, is imprescriptible. The previous exception from this rule, i.e., a marriage contracted before the effectivity of the Family Code (August 3, 1988) where at the time of its celebration a party thereto was psychologically incapacitated to comply with the essential marital obligations of marriage, in which case the action or defense for the declaration of nullity of the marriage would prescribe 10 years after the effectivity of the Family Code (Art. 39, in relation to Art. 26, Family Code, as amended by E.O. 227, 17 July 1987), has been deleted by Republic Act No. 8533. Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. Even when a marriage is patently void, there would still be a need to have a judicial declaration of such fact before any party may marry again; otherwise, the subsequent marriage would likewise be void (Marbella-Bopis vs. Bopis, 336 SCRA 747). Parties to a marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the determination of competent courts. The Court has counseled that he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy (Beltran vs. People, 128 SCAD 242, 344 SCRA 106; Landicho vs. Relova, 22 SCRA 731). The majority opinion
270
Arts. 39-40
in Mercado vs. Tan (G.R. No. 137170, August 1, 2000) makes that risk quite real. In Mercado vs. Tan (supra.), the Court enunciates that it is only a judicially decreed prior void marriage which can constitute a defense against the criminal charge. The ruling appears to be an expanded construction of Article 40 of the Family Code to the effect that absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Unlike a voidable marriage which legally exists until judicially annulled (and therefore not a defense in bigamy if the second marriage were contracted prior to the decree of annulment), the complete nullity, however, of a previously contracted marriage, being a total nullity and inexistent, should be capable of being independently raised by way of a defense in a criminal case for bigamy. There appears to be no incongruence between this rule under Article 349 of the Revised Penal Code, and each may be applied within the respective spheres of governance. In Tenebro vs. Court of Appeals, G.R. No. 150758, 18 February 2004, it would appear that Veronico Tenebro was charged with bigamy for contracting, while still being married to Hilda Villareyes, a second marriage with private complainant Leticia Ancajas. Tenebro argued that since his second marriage with Ancajas had ultimately been declared void ab initio on the ground of the latters psychological incapacity, he should be acquitted for the crime of bigamy. Would the absolute nullity of either the first or the second marriage, prior to its judicial declaration as being void, constitute a valid defense in a criminal action for bigamy? The offense of bigamy is committed when one contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. Bigamy presupposes a valid prior marriage and a subsequent
Arts. 39-40
271
marriage, contracted during the subsistence of the prior union, which would have been binding were it not for its being bigamous. Except for a void marriage on account of the psychological incapacity of a party or both parties to the marriage under Article 36 of the Family Code (as so hereinafter explained), the answer to the question posed must be in the affirmative. Void marriages are inexistent from the very beginning, and no judicial decree is required to establish their nullity. As early as the case of People vs. Aragon this Court has underscored the fact that the Revised Penal Code itself does not, unlike the rule then prevailing in Spain, require the judicial declaration of nullity of a prior void marriage before it can be raised by way of a defense in a criminal case for bigamy. Had the law contemplated otherwise, said the Court, an express provision to that effect would or should have been inserted in the law, (but that in) its absence, (the courts) are bound by (the) rule of strict interpretation of penal statutes. In contrast to a voidable marriage which legally exists until judicially annulled (and, therefore, not a defense in a bigamy charge if the second marriage were contracted prior to the decree of annulment) the complete nullity, however, of a previously contracted marriage, being void ab initio and legally inexistent, can outrightly be a defense in an indictment for bigamy. It has been held that, by virtue of Article 40 of the Family Code, a person may be convicted of bigamy although the first marriage is ultimately adjudged void ab initio if, at the time the second marriage is contracted, there has as yet been no judicial declaration of nullity of the prior marriage. There could be strong reservations to this ruling. Article 40 of the Family Code reads: Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
272
Arts. 39-40
It is only for purposes of remarriage that the law has expressed that the absolute nullity of the previous marriage may be invoked on the basis solely of a final judgment declaring such previous marriage void. It may not be amiss to state that under the regime of the Civil Code of 1950, the Supreme Court, in Wiegel vs. Judge Sempio-Diy, has held that a subsequent marriage of one of the spouses of a prior void marriage is itself (the subsequent marriage) void if it were contracted before a judicial declaration of nullity of the previous marriage. Although this pronouncement has been abandoned in a later decision of the court in Yap vs. Court of Appeals, the Family Code, however, has seen it fit to adopt the Wiegel rule but only for purposes of remarriage which is just to say that the subsequent marriage shall itself be considered void. There is no clear indication to conclude that the Family Code has amended or intended to amend the Revised Penal Code or to abandon the settled and prevailing jurisprudence on the matter. A void marriage under Article 36 of the Family Code is a class by itself. The provision has been taken from Canon law primarily to reconcile the grounds for nullity of marriage under civil law with those of church laws. The psychological incapacity to comply with the essential marital obligations of the spouses is completely distinct from other grounds for nullity which are confined to the essential or formal requisites of a marriage, such as lack of legal capacity or disqualification of the contracting parties, want of consent, absence of a marriage license, or the like. The effects of a marriage attended by psychological incapacity of a party or the parties thereto may be said to have the earmarks of a voidable, more than a void, marriage, remaining to be valid until it is judicially decreed to be a nullity. Thus, Article 54 of the Family Code considers children conceived or born of such a void marriage before its judicial declaration of nullity to be legitimate similar to the rule on a voidable marriage. It is expected,
Arts. 39-40
273
even as it may be safe to assume, that the spouses rights and obligations, property regime and successional rights would continue unaffected, as if it were a voidable marriage, unless and until the marriage is judicially declared void for basically two reasons: First, psychological incapacity, a newly-added ground for the nullity of a marriage under the Family Code, breaches neither the essential nor the formal requisites of a valid marriages; and second, unlike the other grounds for nullity of marriage (i.e., relationship, minority of the parties, lack of license, mistake in the identity of the parties) which are capable of relatively easy demonstration, psychological incapacity, however, being a mental state, may not so readily be as evidence. It would have been logical for the Family Code to consider such a marriage explicitly voidable rather than void if it were not for an apparent attempt to make it closely coincide with the Canon Law rules and nomenclature. Indeed, a void marriage due to psychological incapacity appears to merely differ from a voidable marriage in that, unlike the latter, it is not convalidated by either cohabitation or prescription. It might be recalled that prior to Republic Act No. 8533, further amending the Family Code, an action or defense of absolute nullity of marriages falling under Article 36, celebrated before the effectivity of the Code, could prescribe in ten years following the effectivity of the Family Code. The initial provisions of the ten-year period of prescription seems to betray a real consciousness by the framers that marriages falling under Article 36 are truly meant to be inexistent. Considerations, both logical and practical, would point to the fact that a void marriage due to psychological incapacity remains, for all intents and purposes, to be binding and efficacious until judicially declared otherwise. Without such marriage having first been declared a nullity (or otherwise dissolved), a subsequent marriage could constitute bigamy. Thus, a civil case questioning
274
Arts. 39-40
the validity of the first marriage would not be a prejudicial issue much in the same way that a civil case assailing a prior voidable marriage (being valid until annulled) would not be a prejudicial question to the prosecution of a criminal offense for bigamy. In cases where the second marriage is void on grounds other than the existence of the first marriage, this Court has declared in a line of cases that no crime of bigamy is committed. The Court has explained that for a person to be held guilty of bigamy, it must, even as it needs only, be shown that the subsequent marriage has all the essential elements of a valid marriage, were it not for the subsisting first union. Hence, where it is established that the second marriage has been contracted without the necessary license and thus void, or that the accused is merely forced to enter into the second (voidable) marriage, no criminal liability for the crime of bigamy can attach. In both and like instances, however, the lapse refers to the elements required for contracting a valid marriage. If, then, all the requisites for the perfection of the contract of marriage, freely and voluntarily entered into, are shown to be extant, the criminal liability for bigamy can unassailably arise. Since psychological incapacity, upon the other hand, does not relate to an infirmity in the elements, either essential or formal, in contacting a valid marriage, the declaration of nullity subsequent to the bigamous marriage due to that ground, without more, would be inconsequential in a criminal charge for bigamy. The judicial declaration of nullity of a bigamous marriage on the ground of psychological incapacity merely nullifies the effects of the marriage but it does not negate the fact of perfection of the bigamous marriage. Its subsequent declaration of nullity dissolves the relationship of the spouses but, being alien to the requisite conditions for the perfection of the marriage, the judgment of the court is no defense on the part of the offender who has entered into it.
Arts. 41-43
275
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted
276
Arts. 41-44
said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)
In order that a subsequent bigamous marriage may exceptionally be considered valid under the foregoing provisions, the following conditions are required to concur: viz.: (a) the prior spouse of the contracting party must have been absent for four consecutive years, or two years where there has been danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a wellfounded belief that the absent spouse is already dead; and (c) there is a judicial declaration of presumptive death of the absentee, and for this purpose the spouse present can institute a summary proceeding in court to ask for that declaration. Unlike the old rule that did not necessitate a judicial declaration of absence (see Jones vs. Hortiguela, 64 Phil. 179), the Family Code requires a judicial decla-
Arts. 41-44
277
ration of presumptive death (Armas vs. Calisterio, 330 SCRA 201). This condition is consistent and in consonance with the requirement of judicial intervention such as in other cases of subsequent marriages (see Art. 41, in relation to Art. 40, Family Code). The good faith or bad faith of the other contracting party to the subsequent marriage is not as primordially consequential as that of the spouse present (see Art. 41, Family Code; Lapuz vs. Eufemio, 43 SCRA 177) although where both parties have acted in bad faith, the subsequent marriage is, by law, albeit a superfluity, explicitly declared void (Art. 44, Family Code). Where both parties have acted in bad faith, not only is the marriage considered void ab initio but donations propter nuptias and testamentary dispositions theretofore made are deemed revoked by operation of law. (Art. 44, Family Code). A party who has acted in bad faith is disqualified to inherit by testate or intestate succession from the innocent spouse (Art. 43, Family Code). The subsequent bigamous marriage under Article 41 of the Code remains valid despite the reappearance of the absentee spouse unless and until such fact of reappearance is made in a sworn statement which must then be recorded in the civil registry of the residence of the parties to the subsequent marriage, at the instance of any interested person, with due notice to them. Thenceforth, the subsequent marriage is automatically terminated unless there is a previous judgment annulling or declaring the first marriage a nullity. The fact of reappearance of the absentee spouse may, however, be contested judicially (see Art. 42, Family Code). The law does not, in any event, consider as adversely affected the prior marriage; under the status quo rule, however, until a valid subsequent marriage is terminated, the former, not the latter, should be respected more than the prior marriage, the disturbance to the circumstances of the parties being brought about not by the celebration of the subsequent marriage but by the reappearance of the absentee spouse.
278
Art. 45
Effects of termination of Subsequent Marriage The termination of the subsequent marriage severs the vinculum juris and produces the following effects: 1. The children of the subsequent marriage conceived prior to its termination are considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding; 2. The absolute community of property or the conjugal partnership, as the case may be, is dissolved and liquidated but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; 3. Donations by reason of marriage remain valid but if the donee contracted the marriage in bad faith, such donations are deemed revoked by operation of law; 4. The innocent spouse may revoke the designation of the other spouse who has acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and 5. The spouse who has contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse both by testate and intestate succession. The termination of the subsequent marriage would qualify the single spouse to remarry without having to seek the declaration of nullity of the subsequent marriage.
Art. 45. The marriage may be annulled for any of the following causes, existing at the time of the marriage:
Arts. 45-46
279
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a) Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage; or
280
Arts. 45-46
(4) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)
In addition to the grounds for the annulment of marriage expressed by the 1950 Civil Code (absence of parental consent when required; vices of consent to the marriage such as fraud, force and intimidation; and physical incapacity of entering into the marriage), the Family Code has included the fact of affliction by either party with a sexually-transmitted disease which is serious and incurable. Fraud as a ground for annulment has been expanded to also embrace (besides non-disclosure of previous conviction of a crime involving moral turpitude [now regardless of the penalty imposed] and concealment by the wife of pregnancy by another man) the concealment of a sexually-transmitted disease, regardless of its nature, as well as the concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, by either party at the time of the marriage. The Family Code has deleted, within the meaning of fraud, misrepresentation as to the identity of a contracting party; instead, the law now considers as void a marriage that which is contracted through mistake of one contracting party as to the identity (e.g., look-alike) of the other (see Arts. 45 and 446, in relation to Art. 35, Family Code). Lack of Parental Consent Where parental consent is required but not given, the marriage is voidable. Parental consent obtained after the marriage does not convalidate the marriage. The only modes of convalidation recognized by law of voidable marriages are by prescription and by cohabitation (see discussions on Art. 14; also Arts. 45 and 47, Family Code).
Arts. 45-46
281
Marriage and its incidents, other than in allowing the parties to fix their property regime, are governed by law and not by the will of the parties or any of them. Insanity Insanity, as a vice of consent in marriage, should exist at the time of marriage. There must be, to be of unsound mind, a manifestation, in language or conduct, of disease or defect of the brain, or more or less permanently diseased or disordered condition of the mentality, functional or organic, characterized by perversion, inhibition, of disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition (see Engle vs. Doe, 47 Phil. 753; see also Menciano vs. Neri San Jose, 89 Phil. 63). If, however, the mental disorder is of such degree and permanence as to qualify it to one of psychological incapacity within the meaning of Article 36 of the Code, then the marriage would not merely be voidable but void ab initio. Impotency Impotency indicates a physical incapability of a party in consummating the marriage with the other as distinguished from sterility (not a ground for annulling a marriage) which is merely an inability to procreate (see Menciano vs. Neri San Jose, 89 Phil. 63). Force and Intimidation Force and intimidation, as vices of consent in marriage, have not been defined; accordingly, the codal definition of said terms under the Civil Code could still be controlling. There is violence, under the Civil Code concept, when in order to wrest consent, serious or irresistible force is employed. Intimidation exists when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his con-
282
Art. 47
sent. In determining the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. A threat, however, to enforce ones claim through competent authority, if the claim is just or legal, does not vitiate consent (Art. 1335, Civil Code). Fraud The enumeration of the circumstances of fraud under Article 46 are exclusive and restrictive (see Anaya vs. Palaroan, 36 SCRA 97). It has been held that one can hardly seek for an annulment on the ground of concealment of pregnancy where the woman at the time of the marriage is in an advanced state of family way (Buccat vs. Buccat, 72 Phil. 19; Aquino vs. Delizo, 109 Phil. 21). The concealment of a sexually-transmitted disease constitutes fraud regardless of its nature. If such fact is not concealed, the marriage can still be annulled under Article 45, paragraph (6), of the Family Code if the sexually-transmitted disease is found to be serious and appears to be incurable.
Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45, by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the sane spouse who had no knowledge of the others insanity; or by any relative, guardian or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;
Arts. 48-49
283
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)
The Family Code has modified the provisions of the Civil Code on the prescriptive periods in bringing an action for the annulment of voidable marriages. A voidable marriage has all the effects of a valid marriage until it is annulled. Unless such marriage is earlier convalidated by cohabitation in proper cases, an action for annulment can prosper only if it is commenced within the prescriptive periods prescribed by Article 47 of the Family Code.
Art. 48. In all cases of annulment or declarations of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n)
In order to ensure against improperly grounded judgments of annulment or declaration of nullity of marriages, the law (a) directs the court to require the prosecuting
284
Arts. 50-51
attorney or fiscal assigned to it to enter his appearance on behalf of the State and to take steps to prevent possible collusion between the parties and the fabrication or suppression of evidence and (b) prohibits judgments based on stipulation of facts or confession of judgments. The appearance of a counsel for the State, it may be observed, is not limited to cases of non-appearance of the defendant. A confession of judgment may not necessarily result in the denial of an annulment or declaration of nullity as long as proof satisfactory to establish the grounds for such decree is independently and properly adduced in evidence. The court shall issue orders to provide for support pendente lite of the spouses and the common children as well as for the latters custody and the parents visitation rights.
Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities,
Arts. 50-54
285
unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
The effects of annulment or declaration of nullity of a marriage are, by and large, the same as those that follow the termination of a subsequent marriage under Article 43 (supra.) of the Code. a. On the Children. Children conceived or born of voidable marriages before the decree of annulment are deemed legitimate; children conceived thereafter are considered illegitimate (see Art. 54, Family Code). The court, in its final judgment annulling the marriage, shall provide for the proper custody of the common
286
Arts. 50-54
children [even during the pendency of the case, the court must by then already address the question of interim child custody (Art. 49, Family Code)], and, in so doing, it shall consider the best interest of the child (see Unson III vs. Navarro, 101 SCRA 183; Luna vs. Intermediate Appellate Court, 137 SCRA 7) and give paramount consideration to his moral and material welfare (Art. 49, Family Code). The choice of the child over seven years of age shall be taken into account unless the parent chosen is unfit but a child of less than seven years shall not be separated from the mother unless the Court finds compelling reasons to order otherwise (Art. 213, Family Code). The decree of annulment shall also provide for the delivery in cash, property or sound securities of the presumptive legitimes of the common children computed as of the date of the final judgment, unless the parties, by mutual agreement judicially approved, have already provided therefor. The delivery of the presumptive legitime is without prejudice to the childrens ultimate successional rights upon the death of either or both parents but the value of what has thus already been delivered under the decree of annulment or absolute nullity shall be considered as advances on the actual legitime. b. On Support. During the proceeding for annulment, the court, in the absence of a written agreement between the spouses, shall provide for the support of the spouses and their children (Art. 49, Family Code), from the community property principally but after the final judgment of annulment, unlike in the case of legal separation where the marriage tie is preserved, the obligation of mutual support between spouses ceases (Art. 198, Family Code). The court shall, however, provide for the continued support of the common children (Art. 50, Family Code). c. On Property Relationship. The absolute community of property or the conjugal partnership of gains, as the case may be, shall be dissolved and liquidated upon the decree of annulment. The spouse who has con-
Arts. 50-54
287
tracted the marriage in bad faith shall be made to suffer thusly: (a) a forfeiture of his or her share of the community property or conjugal partnership profits in favor of the common children, or the children of the guilty spouse by a previous marriage or the innocent spouse, in that order; (b) revocation by operation of law of donations to said guilty spouse by reason of marriage (but see Art. 86, infra); (c) his or her designation as beneficiary in insurance, although stipulated to be irrevocable in the policy, may be revoked by the innocent spouse; and (d) disqualification of such guilty spouse from inheriting, whether by testate or intestate succession, from the innocent spouse (Art. 50, in relation to Art. 43, Family Code). If both spouses are guilty of bad faith, all donations by reason of marriage and testamentary dispositions (theretofore but not thereafter) made by one in favor of the other are revoked by operation of law (Art. 50, in relation to Art. 44, Family Code). d. On the Marriage Tie. The marriage tie is severed upon the finality of a judgment of annulment. Either of the former spouses, following a decree of annulment or absolute nullity, may again contract marriage after complying with the requirements of the partition and distribution of their property, including the delivery of the childrens presumptive legitimes and the recording thereof (to affect third persons) with the appropriate civil registries (Art. 53, in relation to Art. 52, Family Code). Non-compliance with these requirements renders the subsequent marriage void ab initio (Art. 53, Family Code) but children conceived or born of such marriage are considered legitimate (Art. 54, Family Code). The Family Code has deleted the provisions of Article 91 of the Civil Code that allow the award of damages in favor of the innocent spouse in certain instances when a marriage is judicially annulled or declared void. The apparent intendment of the law is to allow the laws and principles of general application to instead govern.
288
TITLE II. LEGAL SEPARATION

Art. 55. A petition for legal separation may be filed on any of the following grounds: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; 5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbiniasm or homosexuality of the respondent; 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner; or 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term child shall include a child by nature or by adoption. (97a)
288
Art. 55
PERSONS Title II. Legal Separation
289
During the Spanish regime, absolute divorce was not recognized; the Siete Partidas merely provided for relative divorce. Later, during the American regime, Act No. 2710 of the Philippine Legislature authorized absolute divorce solely on the ground of conviction for adultery on the part of the wife or concubinage on the part of the husband. During the Japanese occupation, Executive Order No. 141 was promulgated, liberalizing the grounds for absolute divorce, and it was in force until its repeal by General Douglas MacArthur upon the liberation of the Philippines that thereby reinstated Act No. 2710. This law, in turn, was implicitly repealed by the Civil Code of the Philippines which only recognized legal separation or relative divorce under articles 97-108, Title IV, thereof. The Family Code has retained the Civil Code system of legal separation but expanded the grounds therefor. Legal separation or relative divorce (a mensa et thoro) entitles the spouses to live separately from each other but, unlike absolute divorce, the marriage bond (a vinculo matrimonii) is not severed (Art. 106, Civil Code; see also Tenchavez vs. Escao, 15 SCRA 355). Legal separation must be decreed by a court; an extrajudicial separation agreement has been held to be illegal and immoral and thus void ab initio (Panganiban vs. Borromeo, 58 Phil. 367). This is not to say, however, that the spouses may be compelled, either by legal or court mandate, to live together against their will (Arroyo vs. Vasquez de Arroyo, 42 Phil. 54). In case a spouse should without legal reason refuse to live with the other, the aggrieved party may be entitled to such appropriate relief such as recovery of damages (Tenchavez vs. Escao, 15 SCRA 355) or a denial of support to the guilty party. Grounds The Civil Code confined the grounds for legal separation to only (1) adultery on the part of the wife or concubinage on the part the husband and (2) an attempt by one spouse against the life of the other (Art. 97, Civil
290
Art. 56
Code). The Family Code has introduced additional grounds and replaced adultery and concubinage with sexual infidelity on the part of either of the spouses. Drug addiction, habitual alcoholism, lesbianism and homo-sexuality, if existing and concealed at the time the marriage is contracted would constitute grounds for annulment; but if such circumstances should occur only during the marriage, the same are merely grounds for legal separation. Where such circumstances exist at the time of the marriage but not concealed to the other party, the latter may still seek legal separation, but not annulment, if the grounds still persist after the marriage.
Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain the decree of legal separation; or (6) (100a) Where the action is barred by prescription.
The defenses against a petition for legal separation include consent to the commission or condonation of the offense or act complained of by the aggrieved spouse; connivance between the spouses in the commission of the offense or act invoked as the ground for the petition; collusion on the part of said spouses in order to obtain the decree of legal separation; prescription caused by the petitioners failure to bring the action on time, and recrimination, i.e., where both parties are offenders.
Arts. 57-60
291
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102a) Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103) Art. 59. No legal separation may be decreed unless the court has taken steps towards the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)
The foregoing provisions are substantially the same as those found in the 1950 Civil Code except that the prescriptive period for the filing of the petition for legal separation has been confined to five (5) years from the time of the occurrence of the cause therefor (Art. 57, Family Code). Under the Civil Code, the action was required to be filed within one (1) year from the date the plaintiff became cognizant of the cause but not beyond five (5) years from the date the cause occurred (Art. 102, Civil Code). The procedure, briefly, for legal separation may be stated as follows: (a) Filing of a petition for legal separation with the court of competent jurisdiction. The action for legal separation is filed by the innocent spouse within the prescriptive period of five (5) years (Art. 57, Family Code). (b) Responsive pleading, if the petition is opposed, is filed. In case of non-appearance of the defendant, or where no opposition is made, the court shall require the
292
Arts. 61-62
prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and the suppression or fabrication of evidence (Art. 60, Family Code). (c) Hearing. The case shall not be tried before six (6) months shall have elapsed from the time the petition is filed in order to afford a cooling-off period. The court shall also take steps toward getting the parties to reconcile (Art. 59, Family Code). (d) Decision . A decision, either granting or denying a decree for legal separation, is rendered. No decree of legal separation shall be granted. (i) Unless the court is fully satisfied that reconciliation is highly improbable; and (ii) The evidence, independently of any stipulation of facts or a confession of judgment, amply supports and justifies that decree (Arts. 59 and 60, Family Code). A. During the proceedings for legal separation.
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a) Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)
After the filing of the petition for legal separation and during its pendency, the spouses shall be entitled to
Arts. 63-64
293
live separately from each other. The parties may provide in writing for the administration of the absolute community or conjugal partnership property by either of them or a third person. In the absence of such agreement, the court shall appoint an administrator (Art. 61, Family Code). The court shall also provide for the support and custody of the children in the same manner as it would during the pendency of proceedings in an annulment of marriage under Article 49, in relation to Article 62, of the Family Code (supra.). B. After the decree of legal separation.
Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a) Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of
294
Arts. 63-64
property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five (5) years from the time the decree of legal separation has become final. (107a)
The decree of legal separation does not break the marriage tie; thus, the spouses may not remarry but would merely be entitled to live separately. The custody of the minor children is awarded to the innocent spouse subject, however, to the provisions of Article 213 of the Family Code that mandates the court to consider the interest and welfare of the child, especially the latters own choice if over seven years of age unless the parent chosen is unfit. A child of less than seven years shall stay with the mother unless the court finds compelling reasons to order otherwise (Art. 63, in relation to Art. 213, Family Code). The property relationship is dissolved and liquidated in the same manner as it would be dissolved and liquidated upon the termination of marriage under Article 43 of the Code (supra.). The offending spouse is disqualified from becoming an intestate heir of the innocent spouse, and testamentary provisions theretofore made in the will of the latter in favor of the guilty spouse are deemed revoked by operation of law. The law appears not to prevent the innocent spouse from instituting after the decree of legal separation the offending spouse as a testate heir, unlike the rule in the declaration of nullity or annulment of marriage (see Art. 43, in relation to Art. 50, Family Code). Donations made prior to the decree of legal separation made to the offending spouse by the innocent spouse
Arts. 65-66
295
are revocable by the latter, without prejudice, however, to supervening rights of third persons which have been registered in good faith before the recording of the revocation in the proper registry of property. The action to revoke the donations prescribes five years after the finality of the decree of legal separation. To be sure, a judicial action to effect the revocation should be filed within the prescriptive period in the event of an opposition by the guilty spouse of the act of revocation by the innocent spouse. The designation by the innocent spouse of the offending spouse in an insurance policy, although stipulated to be irrevocable, may still be revoked by the former. The revocation takes effect upon the written notification thereof to the insured (Arts. 62 and 63, Family Code) and to the insurer in order to bind the latter. The court may order that the guilty spouse give support to the innocent spouse, unlike in the annulment of marriage (see Art. 198, Family Code) where the marriage tie is severed.
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n) Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The courts order containing the foregoing shall be recorded in the proper civil registries. (108a)
296
Arts. 65-67
Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such shall be recorded in the proper registries of property. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditors claim. (195a, 108a)
The then 1950 Civil Code states that reconciliation stops the proceedings for, or rescinds a decree of, legal separation and revives the conjugal partnership of gains (Art. 108 and Art. 195, Civil Code) which creates uncertainty, at least to the public, if, in fact, there has been such reconciliation and, in the affirmative, its efficacy as to third persons. The Family Code now requires the spouses to jointly sign a sworn manifestation of their reconciliation which shall be filed with the court in the same proceedings for legal separation (Art. 65, Family Code). The court then orders the legal separation proceedings terminated or the decree, if already issued, set aside. The separation of property and any forfeiture shall subsist unless the spouses agree to revive their former property regime (Art. 66, Family Code). The agreement to revive the property regime shall contain, under oath, the stipulations referred to in Article 67 (supra.) and be
Arts. 65-67
297
filed with the court with copies to the creditors. The court, after hearing, shall issue an order conformably with the agreement but providing for such safeguards as would protect the interest of creditors. The order of the court shall be recorded in the proper registries of property which will not, however, prejudice creditors not notified unless the spouse-debtor has sufficient separate property to satisfy their claims.
298
TITLE III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a)
The law expresses the fundamental covenants of marriage which the parties must uphold. The husband and the wife are obliged to live together, to remain faithful in their love and respect for each other, and to render mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties. (111a) Art. 71. The management of the household shall be the right and duty of both spouses. The expenses
298
Arts. 69-73 PERSONS Title III. Rights and Obligations Between Husband and Wife
299
for such management shall be paid in accordance with the provisions of Article 70. (115a) Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)
In carrying out the constitutional mandate that there should be equality before the law of women and men (Art. II, Sec. 14, 1987 Constitution), the Family Code provides that the husband and the wife jointly (a) fix the family domicile; (b) are responsible for the support of the family; and (c) manage the household; and either spouse may exercise any legitimate profession, occupation, business or activity, without the consent of the other, subject only to the legal provisos expressed in each of the above cases. In case of disagree-
300
Arts. 69-73
ment on those matters, the court shall be called upon to decide the controversy. In a case particularly involving the family domicile, the court, under the law, may exempt a spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption, unless such exemption is not compatible with the solidarity of the family (Art. 69, second paragraph, Family Code). Under the regime of the 1950 Civil Code, the court could exempt the wife from living with the husband (who then had the authority to fix the family domicile) if he should live abroad unless in the service of the Republic (Art. 109, Civil Code); or if he has maltreated the wife (Arroyo vs. Vasquez de Arroyo, 42 Phil. 54), demanded immoral practices (Goitia vs. Campos Rueda, 35 Phil. 252), or committed repeated acts of infidelity (Dadivas de Villanueva vs. Villanueva, 54 Phil. 92). These rules are not necessarily opposed to, but may, in fact, be illustrative applications of the provisions of the Family Code. The Family Code did not incorporate the provisions of Article 113 of the Civil Code requiring the husband to be joined as a party in suits filed by or against the wife. The matter is then left for determination in accordance with the applicable rules of procedure governing proper parties in interest in court litigations. There appears to be a clerical error in paragraph (2) of Article 73, for it would be more logical to assume that it is when one of the spouses contracted an obligation after (not prior to) the objection of the other spouse that such obligation should be enforced against the separate property of the contracting spouse. Economic sanctions, such as an award of damages or denial of support, may be sought by an aggrieved spouse (see Art. 100, Family Code; Tenchavez vs. Escao, 15 SCRA 355). Consortium by the spouses, however, may still not be forced upon by legal or court mandate on pains of contempt of court or criminal liability (see
Arts. 69-73 PERSONS Title III. Rights and Obligations Between Husband and Wife
301
Ramirez-Cuaderno vs. Cuaderno, 12 SCRA 505; Lacson vs. San Jose-Lacson, 24 SCRA 837). Marital rights including coverture and living in conjugal dwelling may not be enforced by the extraordinary writ of habeas corpus (Lusorio vs. Bildner, 126 SCAD 508, 332 SCRA 169).
302
TITLE IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 1 General Provisions Art. 74. The property relations between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) (3) By the provisions of this Code; and By the local customs. (118)
Marriage is imbued with public interest and of utmost concern to society and government; thus, its nature, consequences and incidents are governed by law rather than by the will of the parties. The law, however, grants, albeit with certain constraints, to the prospective spouses freedom in the choice of their property regime during the marriage.
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnerhip of gains, complete separation of property, or any other regime. In the absence of marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a) Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)
302
Arts. 77-81 PERSONS Title IV. Property Relations Between Husband and Wife
303
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third person unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. (122a) Art. 78. A minor who according to law may contract marriage may also enter into marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. (120a) Art. 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. (123a) Art. 80. In the absence of a contrary stipulation in the marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a) Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations
304
Arts. 75-81
between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid. (125a)
The spouses may agree upon the property regime that they may wish themselves to be governed by in their property relations during the marriage. The marriage settlement may provide for, but not limited to, an absolute or relative community, or upon a complete separation, of property. In the absence of a valid ante-nuptial agreement, the provisions of the Family Code on the system of absolute community of property shall govern their property relations (Art. 75, Family Code). A community property regime, whether absolute or relative, remains in force and effect except upon a decree of legal separation (Art. 63, Family Code) or until the marriage is dissolved or a judicial separation of property is approved by the courts (Arts. 99 and 126, Family Code). In order to be valid, a marriage settlement, or any modification or change thereof, must be executed before the celebration of the marriage. Marriage settlements executed during the marriage are void (see Quintana vs. Lerma, 24 Phil. 285). Article 78 of the Family Code provides that in the case of minors, marriage settlements shall be valid only if the persons designated by law (see Art. 14, Family Code) to give consent to the marriage are made parties to the ante-nuptial agreement. It would appear that this provision no longer holds with the enactment of Republic Act No. 6809 reducing the age of majority from twentyone (21) to eighteen (18) years and terminating parental authority over the person and property of the child. Article 236 of the Code, as thus amended, now reads: Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases.
305
Contracting marriage shall require parental consent until the age of twenty-one. Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. The exclusionary clauses in the above article do not include provisions of the Family Code to the contrary except in the case of contracting marriage by a party below twenty-one (21) years of age which still requires parental consent. In the case of a person undergoing the penalty of civil interdiction or suffering from any other disability (incapacity), it is indispensable that a court-appointed guardian be made a party to the agreement (see Art. 79, Family Code). The marriage settlement must be in writing and signed by the parties but in order to affect third persons, the same should be in a public instrument (insofar as real property is concerned under Art. 709, in relation to Art. 1358, of the Civil Code) and recorded in the local civil registry where the marriage contract is recorded as well as in the registries of property where real property is located (see Art. 77, Family Code). The non-celebration of the marriage shall have the following effects on the marriage settlement, viz.: (1) The property regime, donations propter nuptias, and other stipulation in consideration of the marriage are rendered void; but (2) Stipulations that do not depend on the celebration of marriage shall be valid. Donations by reason of marriage between the prospective spouses which are not contained in marriage settlements are only deemed revocable (Art. 86, Family Code; see discussions, supra., on Arts. 43 and 44, in rela-
306
Arts. 75-81
tion to Art. 50, Family Code, in case the marriage is celebrated but subsequently annulled or declared void). The rules on the property relations between the spouses above-expressed apply regardless, but subject to contrary provisions in the marriage settlement, of the place of the celebration of the marriage or of their residence, except (1) Where both spouses are aliens; (2) As regards the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) As regards the extrinsic validity of contracts entered into in the Philippines but affecting property located in a foreign country the laws of which prescribe different formalities for their extrinsic validity. The contrary stipulation referred to in Article 80 of the Family Code can include a foreign law governing the property relations (property regimes) of the spouses other than as may be so excepted under the provisions of the third paragraph of Article 17 of the Civil Code (relating to prohibitory laws) and to the extent that said parties are free to provide and cover matters in their marriage settlement. Article 80 of the Family Code should not, however, be so construed as to likewise permit the spouses to freely stipulate away the governing law, such as Book II of the Civil Code, on property, a matter that cannot be the proper subject matter of a marriage settlement. Under the doctrine of processual presumption, unless otherwise proven, the foreign law shall be deemed to be the same as the law of the forum. In the case of mixed marriages, regardless of whether the foreigner is the husband or the wife, the provisions of the Family Code on the property relations of the spouses, excepting the contrary stipulation dealt with above, shall govern the property relations of the spouses.
307
Chapter 2 Donations by Reason of Marriage Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126) Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)
Donations propter nuptias are made in consideration of the marriage in favor of one or both of the prospective spouses and executed before the marriage (Art. 82, Family Code). Donations of present property, on matters not covered by the foregoing provisions of the Family Code, are governed by the law on ordinary donations under Book III, Title III, of the Civil Code. Thus, the formalities of donations inter vivos prescribed in the Civil Code, other than when the donation is incorporated in a marriage settlement, will govern. Unless the parties agree upon a regime of absolute community, they cannot donate to each
308
Art. 86
other more than a fifth of their present property. Although Article 84 of the Family Code states that the spouses may not do so in their marriage settlement, the intendment appears to be that the prohibition applies even when the donation propter nuptias is made in an independent instrument. Any excess of one-fifth of present property that is donated is void (see Art. 84, Family Code). Donations of future property, whether incorporated in a marriage settlement or made in a separate instrument, are governed by the law on testamentary succession, both as to intrinsic (specifically the law on legitimes, i.e., the donation may be reduced to the extent that it is inofficious) and extrinsic (e.g., formalities) validity thereof (see Art. 84, Family Code). Being in consideration of marriage, it is believed that this donation propter nuptias are not subject to revocation at will by the donor spouse (Art. 828, Civil Code); Article 86 (infra.) should instead exclusively govern. The provision of Article 84 of the Family Code to the effect that donations of future property shall be governed by the formalities of wills casts doubts on whether such a donation can be validly documented in a marriage settlement which is not an individual but a joint act of the spouses (see Arts. 818-819, Civil Code).
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse;
Art. 86
PERSONS Title IV. Property Relations Between Husband and Wife
309
(5) If it is with a resolutory condition and the condition is complied with; or (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)
Where the marriage is not celebrated or is judicially declared void ab initio, a donation by reason of marriage between the spouses, if contained in the marriage settlement, is deemed void but when such a donation is executed independently of the marriage settlement, the same is merely considered revocable by the donor. Where the marriage takes place without parental consent when required, the donation is revocable even where the marriage is not annulled. In other cases of voidable marriages, it is only when the marriage is annulled and the donee has acted in bad faith that the donation becomes revocable. The donation is also revocable in cases of legal separation (the donee being the guilty spouse) and ingratitude on the part of the donee. Article 50 of the Family Code states that the effects provided for in paragraphs (2), (3), (4), and (5) of Article 43 and in Article 44 (effects of termination of subsequent marriage) shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. Among the effects of the termination of subsequent marriages is the revocation by operation of law of donation by reason of marriage to a donee in bad faith. Article 86 of the Family Code which merely declares such a donation revocable when the marriage is annulled and the donee acted in bad faith, being a later and specific provision on donation propter nuptias, controls over the general effects expressed in Article 50, in relation to articles 43 and 44, of the Code. The donation may be conditional, the compliance with which, in the case of a suspensive condition, will prevent the donation from acquiring an obligatory force or legal efficacy and, in the case of a resolutory condition,
310
Art. 87
can terminate the rights of the donee unless the terms of the donation will only make it subject to revocation in which light, it is believed, Article 86 of the Family Code should be understood.
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a)
Except for moderate gifts which may be given on the occasion of any family rejoicing, the spouses may not donate property to each other during the marriage; any such prohibited donation is void (Art. 87, Family Code; Aznar vs. Sucilla, 102 Phil. 902). This rule does not include a spouses being a beneficiary of an insurance contract over the life of the other (Gercio vs. Sun Life Assurance Co. of Canada, 48 Phil. 53). Likewise prohibited are donations between persons living together as husband and wife without a valid marriage (Art. 87, Family Code; see also Matabuena vs. Cervantes, 38 SCRA 284). Under the 1950 Civil Code, donations during marriage by one of the spouses in favor of children whom the other spouse had by another marriage or to persons of whom the other spouse is a presumptive heir at the time of the donation were voidable at the instance of the donors heirs after his death (Art. 134, Civil Code). The deletion of this provision in the Family Code may indicate the possibility that it may now be legally feasible to do so and to uphold the validity of the donation. The clause or grant of gratuitous advantage, direct or indirect, refers to the spouse of the donor that may only thus preclude said spouse from having such a direct or indirect benefit.
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Chapter 3 System of Absolute Community Section 1 General Provisions Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a) Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a) Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n)
The provisions of the Family Code on the absolute community of property regime apply to marriages contracted after the effectivity of said Code and not to those already existing at that time unless the absolute community system has theretofore been established by the spouses in their marriage settlement (see Art. 256, Family Code). Unless a valid marriage settlement is entered into before the marriage, setting forth a different property regime, the property relations between the husband and the wife shall be governed by the system of absolute community of property (Art. 75, Family Code). A marriage settlement which thus simply provides that the parties
312
Arts. 88-90
are not adopting the absolute community of property, without expressing any other property regime, will not preclude the application of the system of absolute community. Where a surviving spouse contracts a subsequent marriage without liquidating, either judicially or extrajudicially, within one year from the death of the deceased spouse the absolute community or conjugal property, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage (see Arts. 103 and 130, Family Code). The system of absolute community is governed primarily by the provisions of the Family Code pertinent to this property regime and suppletorily by the provisions of the Civil Code on co-ownership. The absolute community commences, any stipulation to the contrary notwithstanding, at the precise moment that the marriage is celebrated (Art. 88, Family Code), and it terminates upon the death of either spouse, a decree of legal separation, an annulment or declaration of nullity of the marriage or a judicial separation of property (see Art. 99, Family Code). While the absolute community subsists, there can be no waiver of rights, interests, shares and effects of the community. Before the marriage, a waiver is possible if contained in a marriage settlement or a donation in consideration of marriage subject to the limitations therein provided (see Arts. 82 to 86, Family Code). After the community is dissolved, such waiver may be made but must appear in a public instrument and recorded in the local civil registry where the marriage contract is recorded and in the proper registries of property; otherwise, the same shall not prejudice third persons (see Art. 89, in relation to Art. 77, Family Code). Creditors who may be prejudiced can petition the court to rescind the waiver to the extent of such prejudice (see Art. 89, Family Code).
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Section 2 What Constitutes Community Property Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (199) Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse; however, jewelry shall form part of the community property; and (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (201a) Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160a)
The community property, subject to the exceptions in Article 92 above, comprises both present and future property (Art. 91, Family Code). It is noteworthy, however, that, unlike the 1950 Civil Code (Art. 201), the fruits and income of excluded property are likewise excluded from the community property (Art. 92, Family Code). If, as in the case of a spouse who has legitimate descendants by a former marriage, no part of such spouses property is included in the community, it seems to be preferable and equitable to apply the conjugal partnership of gains regime to the spouses and to make the absolute community system only as a regime of choice.
314
Art. 94
The law presumes to be part of the community property that which is acquired during the marriage (Art. 93, Family Code). Since the absolute community includes practically all property which the spouses own at the time of the celebration of marriage (Art. 91, Family Code), it might have been thought unnecessary to still include in the presumption property acquired before the marriage which are still owned by either of the spouses at the time the marriage is contracted. The provision in the 1950 Civil Code disallowing either spouse to renounce any inheritance without the consent of the other (Art. 200, Civil Code) has not been adopted by the Family Code considering the exclusion thereof from the community property. The spouses retain respective control over their exclusive property, and neither of the other spouse may bind such property unless authorized by the owner-spouse (see Cafure vs. Morales and Morco, 25 Phil. 342; Bank of the Philippine Islands vs. De Coster, 49 Phil. 574; Laperal vs. Katigbak, 90 Phil. 770; Philippine Sugar Estates Development Co. vs. Poizat, 48 Phil. 536, applying the rules on exclusive property of spouses under the 1950 Civil Code regime). The court, under Article 142 of the Family Code (infra.), may transfer the administration of the exclusive property to the other spouse (see also Art. 100, Family Code).
Section 3 Charges Upon and Obligations of the Absolute Community Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse
Art. 94
315
for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouse in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a)
316
Arts. 94-95
Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a)
1. On support. The community is liable for the support of common children and the legitimate children of either spouse. The support of legitimate ascendants, legitimate or illegitimate descendants, as well as legitimate or illegitimate brothers and sisters, is to be sourced from the separate property of the spouse obligated to give that support but where there is no such separate property, or if the same is insufficient, the absolute community shall advance the support, deductible from the share of the spouse obliged thereto upon the liquidation of the community property (see Art. 94, in relation to Art. 197, Family Code). 2. On debts and obligations. The community is liable for (a) debts and obligations contracted during the marriage incurred for the benefit of the community by the designated administrator-spouse, or by both spouses, or by one spouse with the consent of the other, or by either spouse, even without the consent of the other, to the extent that the family may have benefited, and (b) for ante-nuptial debts of either spouse insofar as said debts have redounded to the benefit of the family. Ante-nuptial debts that have not redounded to the benefit of the family, as well as liabilities incurred by either spouse for a crime or quasi-delict, are chargeable against exclusive property but if there be none or the same is insufficient, the community shall advance the payment to be deducted from the debtor-spouses share upon the liquidation of the community (see Art. 94, Family Code). It may be noted from the language of paragraphs (2) and (3) of Article 94 of the Code that it is enough to consider a contractual debt made by an administrator
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spouse as a community obligation if incurred for the benefit of the community; an obligation, however, contracted by a spouse (not being an administrator), without the consent of the other, may be a charge upon the community only to the extent that the family may have been (actually) benefited. 3. On taxes, liens, charges and expenses. All items of expenses upon the community property are to be borne by the community. Similarly chargeable are taxes and preservation expenses on separate property used by the family; expenses to enable either spouse to take or complete a professional or vocational course or activities for self-improvements; and expenses of litigation between the spouses unless the suit is groundless (Art. 94, Family Code). 4. Donation to common legitimate children for education. The amount or value given to common legitimate children for the exclusive purpose of taking or completing a professional or vocation course or activities for self-improvement (Art. 94, Family Code). In case the community property is insufficient to cover the foregoing liabilities of the system, the spouses are held solidarily liable for the unpaid balance with their separate property. Excepted from this solidary liability are ante-nuptial debts that have not redounded to the benefit of the family; support other than that due to the spouses, their common children and legitimate children of either spouse; and liabilities of either spouse on account of a crime or quasi-delict (Art. 94, see also Art. 100 and Art. 102, Family Code). Article 95 of the Family Code is now explicit (compared to then Art. 142 and Art. 164, of the Civil Code) by providing that losses in any kind of gambling, including sweepstakes, whether permitted or prohibited by law, are borne by the loser exclusively but that winnings therefrom form part of the community property.
318
Arts. 96-98
Section 4 Ownership, Administration, Enjoyment and Disposition of the Community Property Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (206a) Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n) Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n)
In general and subject to valid stipulations in their marriage settlement (see Art. 135[5], Family Code), the spouses have equal right in ownership, administration, enjoyment and disposition on the community property. Each of the spouses may dispose of by will, subject to the rules on testamentary succession, their respective interest in the community property and neither may, without the consent of the other, donate any community prop-
319
erty except for moderate gifts to charity or donations on occasions of family rejoicing or family distress. In an attempt to resolve an impasse in the administration of the community property the law provides that (a) In case of disagreement in the administration and enjoyment (not covering disposition or encumbrance) thereof, the husbands decision shall prevail subject to recourse to the court by the wife for appropriate remedy within five years from the date of the contract implementing the same; and (b) In case of the inability of a spouse in the administration of the property, the other may assume the sole administration thereof (without need for court authorization) but excluding the power of disposition or encumbrance (see Art. 96, Family Code; see also Arts. 100 and 101, Family Code, authorizing the assumption of sole administration by a spouse in cases of abandonment by the other spouse). The alienation of community property must have the written consent of the other spouse or the authority of the court without which the disposition or encumbrance is void. The transaction, nonetheless, shall be construed as a continuing offer on the part of both the spouse who had acted and the third party which may be perfected upon acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. The foregoing rules are neither meant nor intended to unduly restrict all degrees of freedom for individual actions by the spouses, for what the law contemplates are not the insignificant or the inconsequential such as sale of used and empty containers (de minimis non curat lex) but those of real or major concerns affecting the community property. In these latter cases, where there is a disagreement between the spouses and where thus the husbands decision prevails, the proper remedy meant by the law is that which arises primarily between them. Thus, where the husband has abused his authority,
320
Arts. 99-100
recourse may be had under Article 19, et seq., of the Civil Code. The disagreement itself does not constitute per se a cause for setting aside, for instance, the contract entered into in the implementation of that decision, which the law, in effect, authorizes when it had provided that the husbands decision shall prevail. The contract, of course, may be annulled or rescinded but limited to grounds that, under the laws of general application, may render them either as voidable or as rescissible.
Section 5 Dissolution of Absolute Community Regime Art. 99. The absolute community terminates: (1) (2) (3) void; or Upon the death of either spouse; When there is a decree of legal separation; When the marriage is annulled or declared
(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use fruits or proceeds thereof to satisfy the latters share. (178a)
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Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a)
The enumeration in the law when the absolute community terminates is exclusive. An extrajudicial partition, therefore, solely between the parties and without judicial intervention is void (see Luna, et al. vs. Linatoc, 74 Phil. 15, applying Art. 190 of the 1950 Civil Code, now Art. 134 of the Family Code). The parties may, however, petition the court for voluntary dissolution of the property regime (see Art. 136, Family Code) which must be granted unless there are serious and valid grounds for refusing it. In case of legal separation or when the marriage is annulled or declared void, the spouse who gave ground therefor or the spouse who contracted the marriage in bad faith, as the case may be, is made to suffer the forfeiture of his or her share of the community property in favor of the common children, or, in their absence, the children of the guilty spouse by a previous marriage (see Arts. 50 and 63, in relation to Art. 44, Family Code). If both parties have been offenders, the pari delicto rule can apply (see Ricafrente vs. Ventura [CA], 53 O.G. 6117).
322
Art. 102
The separation in fact between the spouses without judicial approval does not affect the community regime. When the consent of one spouse is required in any transaction, the other spouse may obtain judicial authorization in a summary proceeding (Art. 100, Family Code). The law, in this case, does not discriminate between the spouse present and absentee spouse and the court would have ample discretion in deciding what it might consider to be in the best interest of the family. Where a spouse leaves the conjugal home or refuses to live therein without just cause a) His or her right of support is lost; and b) In the absence of community property to support the family, the spouse present may petition for judicial authority to administer or encumber (not dispose) any specific separate property of the absentee spouse and use the fruits or proceeds thereof to satisfy the latters liability therefor (see Art. 100, Family Code). If a spouse, without just cause, abandons the other, i.e., said spouse leaves the conjugal dwelling without any intention of returning (which the law prima facie presumes after a 3-month absence or failure for a like period to give information on his or her whereabouts) or does not comply with his or her obligations in the marital, parental or property relations, the aggrieved spouse may likewise petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the absolute community, and the court may grant the same subject to such safeguards as it may deem proper to impose (see Art. 101, Family Code).
Section 6 Liquidation of the Absolute Community Assets and Liabilities Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separa-
Art. 103
323
tely all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. (3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code. For purposes of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (n) Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
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Arts. 102-104
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the said period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between or among the different communities in proportion to the capital and duration of each. (189a)
Upon the termination of the absolute community of property, the assets and liabilities thereof are liquidated in the same judicial proceedings that decree legal separation, annulment or declaration of nullity of marriage, or judicial separation of property. In the case of death of either spouse, the liquidation shall be undertaken in the same proceedings for the settlement of the estate of the deceased spouse; if none is instituted, the surviving spouse shall liquidate the community property, either judicially or extrajudicially, within one year from such death. The failure in the latter case of the surviving spouse to do so within said period shall have the following effects: (a) Any disposition or encumbrance involving the community property of the terminated marriage shall be void; and
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(b) If the surviving spouse contracts a subsequent marriage, the property relations thereof shall be mandatorily governed by the regime of complete separation of property (see Arts. 102 and 103, in relation to Art. 99, Family Code). The law is not clear as to whether the one-year period merely refers to the commencement of the liquidation process or the completion thereof. The term liquidation is commonly understood as the determination and settlement of liabilities, and, in the context it is used in this part of the Family Code, the term includes the apportionment of the community property to those who may have entitlements thereover. The intendment of the law appears to be that after the lapse of one year and no liquidation has been undertaken by the surviving spouse, the effects mentioned in the preceding paragraph would result. Once, however, the liquidation is initiated, whether within or after the one-year period, and so long as it is being undertaken bona fide and without undue delays, then the effects of failure should be considered inapplicable or lifted, as the case may be. To say that the liquidation must in every case be undertaken or completed within one year can arise and create more problems than solutions that may defeat the very objective of the law to hasten the liquidation process. The payment of the community liabilities may necessitate the disposition or encumbrance of community property even after the oneyear period; certainly, the law could not have meant to thus prohibit such disposition of community assets that strikes at the liquidation process itself were it not either commenced or completed within the one-year period. In the liquidation of the community assets and liabilities, the following are paid or delivered in the order hereunder stated: (a) Debts and obligations are first satisfied. In case the community property is insufficient, the separate property of the spouses may be held solidarily liable thereto in accordance with the provisions of Article 94 (supra.) of
326
Arts. 102-104
the Family Code (see also Arts. 97, 100, and 102, Family Code; the solidary liability of the spouses has abandoned the Civil Code rule in National Bank vs. Quintos, 46 Phil. 370). (b) The exclusive property of the spouses, less any assumed community liability, shall be delivered to each of them. (c) The net assets of the community property, if any, shall be divided equally between the spouses, unless a different sharing has been agreed upon in the marriage settlement or there has been valid waiver (see Art. 89, in relation to Art. 77, Family Code) by any of the spouses, but subject to the forfeiture of the share of net profits on the part of a guilty spouse in case the regime is dissolved because of the termination of a subsequent marriage (Art. 43, Family Code), the annulment or the declaration of nullity of marriage (Art. 50, in relation to Art. 43, Family Code); or legal separation (Art. 63, Family Code). The term net profits is defined to mean the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution (Art. 102, Family Code). (d) In the annulment or declaration of nullity of a marriage, the presumptive legitimes of the common children shall also be delivered upon partition pursuant to Article 51, correlated to Article 59 of the Family Code (see also Arts. 50 and 52, in relation to Art. 102, Family Code). In the partition, the conjugal dwelling and the lot on which it stands shall be adjudicated, unless otherwise agreed upon by the parties, to the spouse with whom the majority of the common children choose to remain, failing in which the court shall decide the matter, taking into consideration the best interest of the children. Children below seven years of age shall be deemed to have chosen the mother unless the court decides otherwise (Art. 102, Family Code).
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Article 104 of the Family Code (supra.) is substantially a reproduction of Article 189 of the 1950 Civil Code governing the simultaneous liquidation of community property of two or more marriages, a distinct possibility if the marriages take place under the regime of the said Civil Code (see Art. 83, Civil Code; see also Dolar vs. Roman Catholic Bishop of Jaro, 68 Phil. 727), as well as under Article 41 (supra.) of the Family Code.
Chapter 4 Conjugal Partnership of Gains Section 1 General Provisions Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 255. (n) Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceed, products, fruits and income from their separate properties and those acquired by either or both 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 between them, unless otherwise agreed in the marriage settlements. (142a) Art. 107. The rules provided in Articles 88 and 89 shall also apply to the conjugal partnership of gains. (n) Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. (147a)
328
Arts. 105-108
The conjugal partnership of gains or relative community of property under the Family Code, unlike its predecessor in the Civil Code, is a property relations regime of the spouses only by choice. Spouses who marry after the effectivity of the Family Code are governed by the absolute community of property unless by a marriage settlement executed prior to the celebration of the marriage a different property system is adopted by the parties (Art. 75, Family Code). Where the spouses agree on the regime of conjugal partnership of gains, the provisions of the Family Code thereon are suppletory to that agreement. Where the marriage takes place before the effectivity of the Family Code and spouses did not execute a marriage settlement or, if they did, they had adopted the conjugal partnership of gains under the 1950 Civil Code, this Chapter of the Family Code shall also apply, without prejudice to vested rights already acquired under the Civil Code (see Art. 105, Family Code). Unlike Article 166 of the Civil Code which excluded real property acquired before the effectivity thereof from the new rules it set, the Family Code, however, has not provided for any similar exclusionary clause. Like the rules obtaining for the system of absolute community of property, the conjugal partnership of gains, when adopted by the prospective spouses, shall commence from the moment the marriage is celebrated; any stipulation to the contrary is void (Art. 88, in relation to Art. 107, Family Code). Similarly, while the conjugal partnership of gains subsists, there can be no waiver of rights, interests, shares and effects on the common fund (Art. 89, in relation to Art. 107, Family Code). The conjugal property is a common fund which, in general, includes (a) the net fruits of separate property and (b) the income from industry of the spouses (see Art. 106 and Art. 117, Family Code) and in which they have pro-indiviso interest until it is dissolved by the death of either spouse, the termination of a subsequent marriage, a decree of annulment or declaration of nullity of the
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marriage or a judicial separation of property during the marriage (see Art. 126, Family Code). Upon the dissolution of the property regime, the net gains or benefits shall be divided equally between them unless otherwise agreed in a marriage settlement and subject to the provisions of the Family Code on the forfeiture of the share of a guilty spouse in cases of the termination of a subsequent marriage (Art. 43, Family Code), the annulment or declaration of nullity of marriage (Art. 50, in relation to Art. 43, Family Code), and legal separation (Art. 63, Family Code). While the absolute community of property is also governed in all that is not inconsistent with the provisions of Family Code thereon, as well as of the spouses marriage settlement, by the rules on co-ownership, the suppletory rules, however, to conjugal partnership of gains are those found in the contract of partnership (Art. 108; see also Art. 90, Family Code).
Section 2 Exclusive Property of Each Spouse Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. (148a) Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to
330
Arts. 109-115
the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located. (137a, 168a, 169a) Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (n) Art. 112. The alienation of an exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n) Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her own exclusive property, and in the absence of designation, share and share alike without prejudice to the right of accretion when proper. (150a) Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by the conjugal partnership of gains. (151a) Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. (n)
The separate property of each spouse, generally comprising that which are brought into the marriage, as well as acquisitions during the marriage by gratuitous title or by exchange with their separate property, continue to be respectively and exclusively theirs in ownership. Although the fruits derived therefrom commencing from the marriage pertain to the conjugal partnership, the control and administration of such exclusive property remain with the owner-spouse, and the latter, without the consent of the other, may dispose or encumber said property or appear alone in court to litigate in respect thereof. Unless
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authorized, a spouse may not bind the separate property of the other (Cafure vs. Morales and Morco, 25 Phil. 342; Bank of the Philippine Islands vs. De Coster, 49 Phil. 574; Laperal vs. Katigbak, 90 Phil. 770; Philippine Sugar Estates Development Co. vs. Poizat, 48 Phil. 536, applying Art. 137, Civil Code). The owner-spouse may, however, transfer by means of a public instrument the administration of the exclusive property to the other spouse. The instrument shall be recorded in the registry of property where the property is located. The authority to administer said property terminates upon the alienation thereof. The court, under the provisions of Article 142 of the Family Code (infra.), may transfer the administration of exclusive property to the other spouse (see also Art. 127, Family Code). The phrase spouse of age in Article 111 should be interpreted to mean one who has the age of legal capacity to marry (now 18 years of age) and not necessarily the age of consent (21 years). This interpretation is consistent with Article 236 of Family Code which considers the emancipated child qualified and responsible for all acts of civil life. In any event, Republic Act No. 6809, reducing the majority age from 21 to 18 years, renders the matter now purely academic.
Section 3 Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a) Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;
332
Arts. 118-120
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, loses therefrom shall be borne exclusively by the loserspouse. (153a, 154, 155, 159) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n) Art. 119. Whenever an 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 installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a) Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses
333
shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said property shall be retained in ownership by the ownerspouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a)
The conjugal property is owned in common by the husband and the wife (Art. 106, Family Code) and, until the partnership is dissolved, the exclusive and respective rights of the spouses thereto have been vaguely described either as inchoate (see Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414) or as mere expectancy (Nable Jose vs. Nable Jose, 41 Phil. 713). As a rule of thumb, it may be so said that any property that is acquired, or the title on which is vested, during the marriage, except for property acquired by gratuitous title (see Ossorio vs. Posadas, 56 Phil. 748; Torela vs. Torela, 93 SCRA 391) or in exchange for exclusive property (Rosete vs. Provincial Sheriff of Zambales, et al., 95 Phil. 560; Mirasol vs. Lim, 59 Phil. 701) of any of the spouses, belongs to the common fund. Any property acquired or business established during such marriage, unless the contrary is proved, is presumed to be conjugal (see Jocson vs. Court of Appeals, 170 SCRA 333; BA Finance Corporation vs. Court of Appeals, 161 SCRA 608; Talag vs. Tankengco, 92 Phil. 1066) even when the spouses live separately (see Flores, et al. vs. Escudero, et al., 92 Phil. 786) and regardless of the fact that the acquisition ap-
334
Arts. 116-120
pears to have been made, contracted or registered in the name of only one or of both spouses (see Art. 116, in relation to Art. 106, Family Code). In general, the conjugal property consists of that which is obtained by the industry or work of either spouse and the fruits of their common or separate property (see Mendoza vs. Dizon, 77 Phil. 533; Vitug vs. Montemayor, 93 Phil. 539; Rosales de Echaus vs. Gan, 55 Phil. 527; Lesaca vs. Lesaca, 91 Phil. 135, applying Art. 142, in relation to 153, Civil Code) and/or that which is acquired in exchange therefor (Art. 106, in relation to Art. 116 and Art. 117, Family Code). Property acquired by the husband during the existence of a marriage, although said husband, at the time of the acquisition, is living with a paramour and has, in fact, authorized the transfer of the property to the latters name, still belongs to the conjugal partnership (Belcodero vs. Court of Appeals, 45 SCAD 400, 227 SCRA 303). In respect of other property, the following rules may be said to apply (a) Where the pre-title to property is acquired prior to the marriage but full title or ownership is vested during the marriage and the common fund, partly or fully, is used therefor, the property is conjugal (Art. 118, Family Code, reversing the rule in Ona vs. De Gala, 58 Phil. 881; Lorenzo, et al. vs. Nicolas, et al., 91 Phil. 686; Vda. de Delizo vs. Delizo, 69 SCRA 216; Castillo, Jr. vs. Pasco, 11 SCRA 102; but adopting the rule on depreciable property held in Abella de Diaz vs. Erlanger & Galinger, Inc., 59 Phil. 326; see Art. 148; in relation to Art. 153, Civil Code). Where full title or ownership had already vested before the marriage, although conjugal funds had been used, the property remain exclusive. In either of the above situations, an amount advanced by the partnership or either or both spouses, as the case may be, shall be reimbursed by the owner or owners upon liquidation of the partnership (see Art. 118, Family Code).
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(b) Amounts already owing to one of the spouses before the marriage but maturing or paid during the marriage belong as exclusive property of said spouse but interests falling due during such marriage pertain to the conjugal property (Art. 119, Family Code). (c) Article 115 of the Family Code provides that retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. Regardless of how such benefits are ascribed to by name, the primordial factor in the determination of whether it is gratuitous (exclusive property) or onerous (common property) is the real cause or consideration therefor. Thus, remuneratory grants such as bonuses to employees for services rendered or to excite their zeal and efficiency with consequent benefit to the employer do not constitute pure beneficience (see Philippine Long Distance Telephone Co. vs. Jeturian, et al., 97 Phil. 981) and therefore should form part of the conjugal property to the extent, at least in the case of remunerated past services, that said services have been rendered after the marriage had been contracted (see Mendoza vs. Dizon, 77 Phil. 533). The fruits and interests earned during the marriage of exclusive property acquired by gratuitous title pertain to the conjugal partnership (Art. 106, Family Code), unlike the rule established on the absolute community system (Art. 92, Family Code). (d) Damages recovered by the spouses may either be separate or conjugal depending on the nature thereof. Actual damages (damnum emergens) are either exclusive or conjugal depending on who or which suffered such damages. Damages in the nature of unrealized earnings or profits (lacrum cessans) are conjugal. Moral damages are generally to be considered exclusive (Lilius and Lilius vs. Manila Railroad Co., 62 Phil. 56). In the exceptional case, however, of Zulueta vs. Pan American (48 SCRA 1) the Supreme Court considered the moral damages recovered by the spouses as a result of the unjustifiable cancel-
336
Arts. 116-120
lation of their confirmed reservations in Pan-American Airways during their trip abroad as conjugal since the award was collectively adjudged in favor of the spouses premised on a breach of contract and conjugal funds were used to pay for the plane tickets. (e) Proceeds of life insurance, absent a qualified beneficiary, are either conjugal or exclusive, or proportionate, depending on the source of funds used to pay the premiums (see Bank of the Philippine Islands vs. Posadas, 56 Phil. 215). (f) Where an improvement, whether for utility or adornment, is made on an exclusive property, the latter continues to be separate property unless the value of the improvement, when made, exceeds the value at that time of said property, subject to reimbursement of the cost of the improvement. If the cost of improvement exceeds the value of the property, the latter becomes conjugal similarly subject to reimbursement of the value of the property. The vesting of ownership in either case is upon reimbursement, which shall be made at the time of the liquidation of the conjugal partnership (Art. 120, Family Code). Under the 1950 Civil Code, the rules on improvements made on the separate property of the spouses were contained in Article 158 thereof Improvements, whether for utility or adornment, made on the separate property of the spouse through advancements from the partnership or through the industry of either the husband or the wife, belong to the conjugal partnership. Building constructed, at the expense of the partnership during the marriage on land belonging to one of the spouses, also pertain to the partnership, but the value of the land shall be reimbursed to the spouse who owns the same. The Court decisions on Article 158 of the Civil Code had not all been that consistent. In the case of Vda. de
337
Padilla vs. Paterno (96 Phil. 884), it was ruled that the conversion of the land from exclusive to conjugal property was subject to the suspensive condition that its value would be reimbursed at the time of the liquidation of the conjugal partnership. Under this view, the loss of the building before such liquidation would not permit the conversion to take place (see also Coingco vs. Flores, 84 Phil. 284). In Maramba vs. Lozano (20 SCRA 474), the Supreme Court held that prior to the liquidation and payment of the lot, the conjugal partnership may use the land and building, but it does, not as owner but as usufructuary since the ownership of the land is unchanged (no conversion) until the value thereof is paid which can only be demanded in the liquidation of the partnership. In Caltex (Phil.), Inc. vs. Felias (108 Phil. 873), the Supreme Court ruled that the building must have been constructed at the time when one of the spouses is the owner of the land and not when it was acquired after such construction. In Calimlim-Canullas vs. Fortun (129 SCRA 675), where the land was inherited by the husband after the building was already constructed thereon, the Supreme Court said We hold that pursuant to the foregoing provisions (Art. 158, Civil Code), both the land and the building belong to the conjugal partnership but the conjugal partnership is indebted to the husband for the value of the land. The spouse owning the land becomes a creditor of the conjugal partnership for the value of the lot, which value would be reimbursed at the liquidation of the conjugal partnership. This later pronouncement would appear to be in keeping not only with the spirit and intendment, but also with the literal meaning, of then Article 158. By operation of law and the actual occupancy of the property (equivalent to delivery by the consenting spouse), both recognized modes of acquiring ownership (Art. 712, Civil Code), the land would become conjugal upon the concurrence of the two conditions set by law, i.e., the construction of the
338
Art. 121
building at the expense of the partnership and the ownership of the land by one of the spouses. The obligation to reimburse its value (determined as of such time) would forthwith arise and, until paid, the previous owner-spouse would become a creditor of the partnership. There appeared to be no legal constraint or impediment against effecting payment even during the marriage. The new provisions of Article 120 of the Family Code now specifies the vesting of title upon reimbursement which shall be made at the time of the liquidation of the conjugal partnership. The law on accession will not thus apply. Before the vesting of title in either case, there is no change in the ownership or nature of the property involved, and the respective rules on conjugal and exclusive properties, as the case may be, would apply, subject only to the limitation that neither property can be freely disposed of without the consent of both spouses in order to ensure the full efficacy of the provisions of Article 120 when the time of reimbursement comes. If the property involved comprises the family home, then the provisions under Title V, Chapter 2, of the Family Code shall likewise govern (see Arts. 152-162, Family Code, infra.).
Section 4 Charges Upon and Obligations of the Conjugal Partnership Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;
Art. 122
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(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a) Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after
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Arts. 121-123
the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient, but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. (163a) Art. 123. Whatever may be lost during the marriage in any game of chance, or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property. (164a)
The rules on the liability of the conjugal property, in many respects, are similar to those governing the absolute community property. Thus 1. On support. The conjugal property is liable for the support of the spouses, their common children and the legitimate children of either spouse. The support of illegitimate children, as well as legitimate ascendants, legitimate or illegitimate descendants, legitimate or illegitimate brothers and sisters, is chargeable against the separate property of the obligor-spouse but where there is no such property or if the same is insufficient, the conjugal property shall advance the support, deductible from the share of the obligor-spouse upon the liquidation of the conjugal partnership (Art. 121, in relation to Art. 147, Family Code). 2. On debts and obligations. The conjugal property is liable for (a) debts and obligations contracted during the marriage incurred for the benefit of the conjugal partnership of gains by the designated administratorspouse (Development Bank of the Philippines vs. Confessor, G.R. No. 48889, 11 May 1998), or by both spouses or by one spouse with the consent of the other, or by either spouse, even without the consent of the other, to the extent that the family may have been benefited (such benefit may be presumed when spouse is engaged in business or
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the exercise of profession [see G-Tractors, Inc. vs. Court of Appeals, 25 SCRA 637]), and (b) ante-nuptial debts of either spouse insofar as the same have redounded to the benefit of the family (see Fidelity & Surety Co. of the Phils. vs. Ansaldo, 66 Phil. 566 and Laperal, Jr. vs. Katigbak, 104 Phil. 999 on Article 139, Civil Code). Personal debts contracted by either spouse before the marriage, as well as fines and indemnities imposed upon them, are separate liabilities; however, if the separate property is insufficient or there is none, the liabilities may be enforced against the conjugal partnership after its own liabilities have been covered. The amounts so charged shall be considered advances against, and be deductible from, the debtor-spouses share upon liquidation of the conjugal property (see Art. 126, Family Code). Like Article 94, the law did not include personal debts contracted during the marriage. On the question of which debts and obligations contracted by one of the spouses fall under the term for the benefit of the conjugal partnership or those which redound to the benefit of the family in order to be chargeable against the conjugal property, the Court, in an attempt to reconcile previous cases, has made a good exemplification of the rule in Ayala Investment & Development Corporation vs. Court of Appeals (91 SCAD 663, 286 SCRA 272): (A) If the husband himself is the principal obligor in the contract, i.e., he directly receives the money and services to be used in or for his own business or his own profession, that contract falls within the term x x x obligations for the benefit of the conjugal partnership. It is enough that the benefit of the family is apparent at the time of the signing of the contract. x x x It is immaterial if, in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership. (B) If the money or services are given to another person or entity and the
342
Arts. 121-123
husband has acted only as a surety or guarantor, that contract cannot by itself be categorized as falling within the context of obligations for the benefit of the conjugal partnership. No presumption can be inferred that a contract of surety or accommodation entered into by the husband is for the benefit of the conjugal partnership; proof must be presented to establish that benefit has redounded to the conjugal partnership. 3. On taxes, liens, charges and expenses. All expenses incurred for the conjugal property are borne by the conjugal partnership. In addition, the partnership is liable for taxes and expenses for mere preservation on separate property of either spouse, expenses to enable either spouse to take or complete a professional, vocational or other activity for self-improvement, and expenses of litigation between the spouses unless the suit is found to be groundless (Art. 121, Family Code). 4. Donations to common legitimate children for education. The amount or value given to common legitimate children exclusively for taking or completing a professional or vocational course or activities for selfimprovement (Art. 121, Family Code). In the event the conjugal property is not enough to satisfy the liabilities of the partnership, the spouses shall be solidarily liable for the unpaid balance with their exclusive property (Art. 121, Family Code; abandoning the rule on the joint liability of the spouses held in Gelano vs. Hon. Court of Appeals, 103 SCRA 90). Although not as explicit as in Article 94 of the Family Code, the solidary rule should apply only to liabilities of the conjugal partnership not to those that are separate liabilities of the spouses although initially enforceable against the conjugal property. Losses in any kind of gambling, whether or not permitted by law, are borne by the loser and not chargeable against the partnership, but winnings therefrom are conjugal (see Art. 123, Family Code).
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Section 5 Administration of the Conjugal Partnership Property Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a) Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a)
A sale concluded before the Family Code took effect would be aptly governed by the then governing provisions of the Civil Code. Thereunder, the husband could not alienate or encumber any conjugal real property (acquired by the partnership after the effective date of the Civil Code) without the consent, express or implied, of the wife (Art. 166, Civil Code; Bautista vs. Lovina, 98 Phil. 1006, 1956); otherwise, said the Supreme Court in Garcia vs. Court of Appeals (130 SCRA 433, 1984), reiterating Tolentino vs. Cardenas (123 Phil. 517, 1966), the
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Arts. 124-125
disposition would be void. Such a contract, absent the wifes consent should be considered merely voidable consistently with Article 173 of the Civil Code under which provision, the wife could, during the marriage and within 10 years from the questioned transaction, seek its annulment (Felipe vs. Heirs of Maximo Aldon, 120 SCRA 628 [1983]; Reyes vs. De Leon, 20 SCRA 369 [1967]; see Roxas vs. CA, 198 SCRA 541, 1991 which applied Art. 173 to a lease contract). Failing to do so, she or her heirs, after the dissolution of the marriage, could demand the value of the property alienated (Art. 173, Civil Code). It might not be amiss to say that an unauthorized sale by the husband of conjugal real property, not being the administrator thereof, or of the exclusive paraphernal of the wife, not having obtained her prior consent thereto, could be void under the provisions of Article 1874 of the Civil Code. A sale or encumbrance of conjugal (or community) property concluded after the effectivity of the Family Code is governed by an entirely different rule that now treats such a disposition to be void if done without the conjoint consent of the spouses or, in case of a spouses inability, the authority of the court (see Art. 124, Family Code). The declaration that the disposition by just one of the spouses is void settles the apparent conflict in some of the rulings during the regime of the 1950 Civil Code, in construing the provisions of said code found in Articles 161, 162, 166, 171 and 173, in relation to Articles 1390, 7403 and 1874, thereof. The Family Code has abandoned the 1950 Civil Code rule of having the husband, in the absence of a contrary statement in a marriage settlement or a public instrument executed by the husband or an order of a court (Arts. 168, 190 and 196, Civil Code), as the statutory administrator of the conjugal partnership of gains (Art. 165, Civil Code) that permitted suits to bind the conjugal partnership even where the wife was not named as a party defendant along with the husband (Stasa Incorporated vs. Court of Appeals, 182 SCRA 879). Article 124 of the Fam-
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ily Code, like the rule established in the system of absolute community of property (see Arts. 96-98, Family Code), instead confers the administration and enjoyment of the conjugal property on both spouses jointly. The marriage settlement, however, the provisions of the Family Code on conjugal partnership of gain being merely suppletory thereto, may provide for the administration of the property by one of the spouses. Unlike an act of alienation or encumbrance where the consent of both spouses is required, joint management or administration does not require that the husband and the wife always act together. Each spouse may validly exercise full power of management alone, subject to the intervention of the court in proper cases as so provided under Article 124 of the Family Code. Thus, the husband alone, it has been ruled, could file the petition for certiorari and prohibition to contest the writs of demolition issued against the conjugal property (Spouses Danilo and Ursula Solangon vs. Jose Avelino Salazar, G.R. No. 125944, 29 June 2001, 150 SCAD 706; Docena vs. Judge Lapesura, G.R. No. 140153, 28 March 2001, 146 SCAD 848). The 1950 Civil Code permitted the transfer of administration during the marriage by the husband to the wife by means of a public instrument (Art. 168, Civil Code). Since no equivalent provision is found in the Family Code, any change in the system, which is not embodied in a marriage settlement, may only be done by a court order on the grounds and under the circumstances provided by said Code (e.g., Art. 128, Family Code). A spouse, however, may assume sole administration without the necessity of obtaining court authority, in case of inability of the other spouse (see Art. 124, Family Code). Court authorization under Article 124 is only resorted to in cases where the spouse who does not give consent is incapacitated (Thelma Manalo vs. Norma Camaisa, G.R. No. 147978, 23 January 2002). In case of disagreement in the joint administration and enjoyment of the partnership property, the husbands decision shall prevail but the wife may avail herself of
346
Arts. 124-125
the proper remedy in court within five years from the date of the contract implementing the decision. The terms administration and enjoyment do not evidently include the disposition or encumbrance of property which invariably requires the consent of both spouses or, in case of a spouses inability, the authority of the court (see Art. 124, 2nd par., Family Code). The declaration that the disposition or encumbrance by just one of the spouses is void settles the apparent conflict in various decisions during the regime of the 1950 Civil Code, either applying or misapplying its provisions in articles 161, 162, 166, 171 and 173, in relation to articles 1390, 7403 and 1874 thereof (see Bautista vs. Lovina, et al., 98 Phil. 1006; Garcia vs. Court of Appeals, 130 SCRA 433; Manotok Realty, Inc. vs. Court of Appeals, 149 SCRA 372; Felipe vs. Aldon, 100 SCRA 628; Tinitigan vs. Tinitigan, Sr., 100 SCRA 619). An unauthorized sale by the husband of conjugal real property, not being the administrator thereof, or of the exclusive paraphernal of the wife, not having obtained her prior consent thereto, could be void under the provisions of Article 1874 of the Civil Code. A sale or encumbrance of conjugal (or community) property concluded after the effectivity of the Family Code is governed by an entirely different rule that now treats such a disposition to be void if done without the conjoint consent of the spouses or, in case of a spouses inability, the authority of the court. In the administration and enjoyment of the partnership property, however, the husbands decision prevails over that of the wife unless judicially controverted (heirs of Christina Ayuste vs. Court of Appeals and Viena Malabonga, G.R. No. 118784, 02 September 1999, 313 SCRA 493, Concurring Opinion). In case of inability of one of the spouses in the administration of the conjugal property, the other spouse may assume the sole power of administration. This time, Article 124 expressly excludes the power of disposition or encumbrance which must have the authority of the court
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or the written consent of the other spouse; otherwise, such disposition or encumbrance is void. The transaction, however, shall be construed as a continuing offer by the transacting parties that may be perfected upon acceptance by the other spouse or upon authorization by the court before the offer is withdrawn by either or both the offerors (Art. 124, Family Code). As expressed earlier on a similar provision governing the absolute community of property regime, the above rules do not contemplate minor or insignificant matters that either of the spouses are better left alone to act or decide on (de minimis non curat lex). Neither spouse, under Article 125 thereof, may donate any conjugal property without the consent of the other, except for moderate gifts for charity or on occasions of family rejoicing or family distress.
Section 6 Dissolution of Conjugal Partnership Regime Art. 126. The conjugal partnership terminates: (1) (2) (3) void; or Upon the death of either spouse; When there is a decree of legal separation; When the marriage is annulled or declared
(4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;
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Arts. 126-128
(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share. (178a) Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations of the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabout shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (167a, 191a)
The conjugal partnership of gains terminates for the same causes as the dissolution of the absolute community of property. The enumeration in the law is exclusive; accordingly, a partition agreement made by the spouses of the conjugal property without judicial approval would be void (see Luna, et al. vs. Linatoc, 74 Phil. 15, applying Art. 190 of the 1950 Civil Code, now Art. 134, of the Family Code). The spouses may, however, jointly petition the court for the voluntary dissolution of the property (see Art. 136, Family Code). After the death of one of the spouses, the sale of any portion of the conjugal property in order to pay outstand-
Art. 129
349
ing obligations of the partnership must be made in the manner and with the formalities established by the rules of procedure for the sale of the property of deceased persons. Where a complaint is thus brought against the surviving spouse for the recovery of an indebtedness chargeable against the conjugal property, any judgment obtained thereby is void. The proper action should be in the form of a claim to be filed in the testate or intestate proceedings of the deceased spouse (Ventura vs. Militante, 113 SCAD 685, 316 SCRA 226). The effects of separation de facto between the spouses, as well as the abandonment without just cause by one of them, are, except for the regime, the same as those expressed in the case of the absolute community of property system (see discussions on Arts. 99-101, Family Code, supra.).
Section 7 Liquidation of the Conjugal Partnership Assets and Liabilities Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their
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Art. 130
separate properties, in accordance with the provisions of paragraph (2) of Article 121. (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner has been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation
351
is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriage contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a) Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a) Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)
The conjugal assets and liabilities are liquidated in the same proceedings that decree legal separation, annulment or declaration of nullity of marriage or separation of property, or a proceeding which settles the estate of the deceased spouse. In the latter case where no proceedings for the settlement of the estate of the decedent are instituted, the liquidation shall be undertaken, either judicially or extrajudicially, by the surviving spouse subject to the same period and sanctions for, or conse-
352
Arts. 129-133
quences of, failure as in the liquidation of the absolute community of property (see discussions on Art. 103, Family Code, supra.). Pending its liquidation, the conjugal partnership of gains is converted into an implied ordinary co-ownership among the surviving spouse and the other heirs of the deceased (Dael vs. Intermediate Appellate Court, 171 SCRA 524). In the liquidation of the conjugal assets and liabilities, the following procedure, in brief, is observed: (a) Determination of the conjugal and exclusive assets; amounts advanced by the conjugal partnership for personal obligations of the spouses are credited to the conjugal partnership and amounts reimbursable to either of the spouses are debited against the partnership; (b) Payments of conjugal partnership obligations out of the conjugal assets; if such assets are insufficient, the spouses are liable solidarily (reversing the joint liability rule in National Bank vs. Quintos and Ansaldo, 46 Phil. 370) for any balance with their separate property (pursuant to Article 21, Family Code); if the assets exceed the conjugal obligations, the loss or deterioration of movables belonging to either spouse used for the benefit of the family and not compensated for from any source shall be paid from such excess; (c) Distribution of the net remainder of the conjugal property equally between the husband and the wife unless a different sharing has been provided for in the marriage settlement (Art. 106, Family Code) or unless there has been a valid waiver (Art. 107, Family Code) or forfeiture of such share in cases of the termination of a subsequent marriage (Art. 43, Family Code), the annulment or declaration of nullity of marriage (Art. 50, Family Code) or legal separation (Art. 63, Family Code); and (d) Delivery of the presumptive legitimes of the common children in annulment or declaration of nullity of a marriage in accordance with Article 51, correlated to Article 50, of the Family Code (Art. 129, Family Code).
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The conjugal dwelling and the lot is allocated in the same way that it is done when the absolute community of property terminates (see Arts. 120 and 102, Family Code). During the pendency of the liquidation, support shall be provided the surviving spouse and the children from the mass of property chargeable from the fruits or income thereof pertaining to them and the excess from their respective shares (Art. 133; see also Art. 198, Family Code, infra.). The liquidation of two conjugal partnerships requires, absent proof, the total mass to be divided between the partnerships in proportion to the donation and exclusive property of the spouses (Dael vs. Intermediate Appellate Court, 171 SCRA 524, applying the then Art. 189, Civil Code).
Chapter 5 Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a) Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;
354
Arts. 136-140
(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a) Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (191a) Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a) Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (191a) Art. 139. The petition for separation of property and the initial judgment granting the same shall be recorded in the proper local civil registries and registries of property. (193a) Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194)
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Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances: (1) (2) When the civil interdiction terminates; When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration; (4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; (5) When parental authority is judicially restored to the spouse previously deprived thereof; (6) When the spouses who have been separated in fact for at least one year, reconcile and resume common life; or (7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. The revival of the former property regime shall be governed by Article 67. (195a) Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: (1) When one spouse becomes the guardian of the other; (2) When one spouse is judicially declared an absentee; (3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
356
Arts. 134-142
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (n)
The separation of property during marriage between the spouses, if not theretofore provided for in a marriage settlement, may not be made except by judicial approval, without which the partition would be void (see Luna, et al. vs. Linatoc, 74 Phil. 15, applying the then Art. 190 of the Civil Code). The judicial separation may either be (a) voluntary such as by the joint petition of the spouses, in which case such measures as may be necessary to protect creditors and other persons who may have pecuniary interest in the common property must be provided for, or (b) for cause such as any of these enumerated in Article 135 of the Code (supra.). The support of the spouses and their children during the pendency of the proceedings for separation of property shall be sourced from the absolute community or conjugal property (Art. 137, Family Code). The decree of separation of property, which shall be recorded in the local civil registries and registries of property, shall have the following effects: 1. The absolute community or the conjugal partnership of gains shall be liquidated (Art. 137, in relation to discussion on Arts. 102-104, 129-133, Family Code, supra.). 2. The property relations of the spouses shall thenceforth be governed by the provisions on complete separation of property (see Art. 138, in relation to Arts. 143-146, Family Code, infra.). 3. The previously acquired rights of creditors shall not be prejudiced (Art. 140, Family Code). The property regime that existed between the spouses before the decree of separation of property may be re-
357
vived upon motion filed by the spouses in the same proceedings where separation of property was decreed once the causes for the property separation cease. A voluntary separation of property, decreed by the court upon the joint petition of the spouses, may also be set aside and the previous property regime revived in the same manner as above, but thereafter no voluntary separation of property may again be granted (Art. 141, Family Code). The revival of the former regime is governed by the same rules on revival of the property system of spouses who reconcile after a decree of legal separation (see Art. 141, in relation to Art. 67, Family Code). Article 142 of the Family Code is a new provision and allows for the transfer by court order of the administration by a spouse of the exclusive property of the other on grounds expressed therein. It is noteworthy that for just causes, the court may designate another (a suitable) person, instead of the spouse, to be the administrator (Art. 142, Family Code).
Chapter 6 Regime of Separation of Property Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be of suppletory application. (212a) Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a) Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a)
358
Arts. 143-146
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liability of the spouses to creditors for family expenses shall, however, be solidary. (215a)
The spouses may provide in their marriage settlement for a complete separation of property, referring to either present or future property or both. In case the agreement does not comprise all property, that which is left out by the spouses shall pertain to, and be governed by the rules on, the regime of absolute community. As regards the separate property, the provisions of the Family Code on the regime of separation of property apply suppletorily to the marriage settlement (Arts. 143 and 144, Family Code). Subject to such agreement, each spouse has full title and beneficial interest, as well as control and administration, over his or her own separate property, without intervention by the other; if the agreement of separation of property covers future property, all income from work or industry, as well as from separate property, belong to each spouse earning the same (Art. 145, Family Code). The family expenses shall be borne by both spouses in proportion to their income and, in default thereof or where the income is insufficient, to the current market value of their separate property. The liability of the spouses to creditors for such family expenses, however, is solidary (Art. 146, Family Code, modifying Art. 215 of the Civil Code). The law provides for a mandatory regime of complete separation of property should a spouse contract a subsequent marriage without first complying with the requirement that the community or conjugal property be liquidated judicially or extrajudicially within one year from the death of the deceased spouse (see Arts. 103 and 130, Family Code, supra.).
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Chapter 7 Property Regime of Unions Without Marriage Art. 147. When a man and woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his of her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contri-
360
Arts. 147-148
butions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)
The Family Code continues to recognize a special kind of co-ownership in the property relations between a common-law husband and a common-law wife; thus (1) When a man and a woman: (a) do not suffer from any legal impediment to marry each other, (b) live exclusively with each other as husband and wife, and (c) do so without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained by their joint efforts and thereby also owned by them in equal shares. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said partys efforts consisted in the care and maintenance of the family household. (Art. 147, Family Code). Unlike that of the conjugal partnership of gains, the fruits of their separate property are not included in the co-ownership. Article 147 of the Family Code, in substance and to the above extent, has clarified and adopted Article 144 of
361
the Civil Code as applied and as interpreted heretofore by the Supreme Court (see Maxey vs. Court of Appeals, 129 SCRA 187; Juaniza vs. Jose, 89 SCRA 306; Aznar vs. Gabriel, 102 Phil. 1055). In addition, the law now expressly provides that (a) Neither party can dispose or encumber by act inter vivos his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and (b) In the case of a void marriage, any party in bad faith shall forfeit his share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation (Art. 147, Family Code) or declaration of nullity of the marriage (see Arts. 43, 50 and 51, Family Code). (2) When the common-law spouses suffer from legal impediment to marry or when they do not live exclusively with each other as husband and wife, only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if existing under the valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner expressed under paragraph (1). The rules on forfeiture, in any of the above cases, will apply even if both parties have acted in bad faith (Art. 148, Family Code). The provisions under Article 147 and Article 148 of the Family Code did not much deviate from the old rules
362
Arts. 147-148
(Josephine B. Belcodero vs. Court of Appeals, et al., G.R. No. 89667, 20 October 1993, 227 SCRA 303). The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42, of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriage (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the family home, i.e., the provisions found in Title V, Chapter 2, of the Family
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Code, remain in force and effect regardless of the property regime of the spouses (Antonio A.S. Valdes vs. Regional Trial Court, Branch 102, Quezon City, and Consuelo M. Gomez-Valdes, G.R. No. 122749, 31 July 1996, 260 SCRA 221). In Cario vs. Cario, 351 SCRA 127, the first marriage of the deceased soldier was void for lack of license. His second marriage was likewise void for non-compliance with Article 40. Hence, the Court ruled, the first marriage should be governed by Article 147; the second, by Article 148. The result was that all the monetary benefits from the government due the deceased soldier were awarded to the first marriage.
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TITLE V. THE FAMILY

Chapter 1 The Family as an Institution Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a) Art. 150. Family relations include those: (1) (2) (3) and (4) Among brothers and sisters, whether of the full or half-blood. (217a) Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a) Between husband and wife; Between parents and children; Among other ascendants and descendants;
In its declaration of state policies, Article II of the 1987 Constitution itself has expressed thusly: Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall
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Arts. 149-151
PERSONS Title V. The Family
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equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civil efficiency and the development of moral character shall receive the support of the Government. Article XV of the same fundamental law has further provided: Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Sec. 3. The State shall defend: (1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Sec. 4. The Family has the duty to care for its elderly members but the State may also do so through just programs of social security. Pursuant to the above mandates, the Family Code states that the family is the foundation of the nation and
366
Arts. 149-151
a basic social institution that public policy cherishes and protects. Accordingly, no customs, practice or agreement which is destructive of the family shall be given any effect. In case of doubt, all presumptions favor the solidarity of the family; thus, the intendment of the law leans towards the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of the children, the community of property during marriage, the validity of defense for any member of the family in case of unlawful aggression, and the presumption of marriage when a man and woman live together. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts towards a compromise have been made but the same have failed. The members of the family are enumerated in Article 150; thus, a suit between the husband and his sister-in-law is not covered by Article 151 (Gayon vs. Gayon, 36 SCRA 104). Collateral relatives, other than brothers and sisters, are not included in the term family relations (Mendez vs. Eugenia, 60 SCRA 82). It has also been held that a suit filed by a woman against her sister and the latters husband does not require earnest efforts at a compromise before filing because the sisters husband is not included within the term family relations under Article 150 (Hontiveros vs. Regional Trial Court, 309 SCRA 340). Interestingly, Article 151 has been ruled not to apply to a petition for habeas corpus involving the custody of a child of tender age which deserves immediate resolution to protect the childs welfare (Tribiana vs. Tribiana, G.R. 137359, 13 September 2004). When the law speaks of family relations, it must be deemed to refer, unless the contrary is there indicated or the context of the law otherwise clearly conveys, to both legitimate and illegitimate ties. The childs illegitimacy does not in any way affect the order of priority in the exercise of parental authority. Indeed, Article 176 of the Family Code states that an illegitimate child shall be
Arts. 152-154
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under the parental authority of the mother, who consequentially, should also be entitled to the custody of the child. In cases of annulment or declaration of nullity of marriages and legal separation, the court shall take such measures as would prevent collusions between the parties and the fabrication of evidence (see Arts. 48 and 60, Family Code). No suit shall be filed or maintained by and among members of the same family unless earnest efforts toward a compromise have been made, but that the same have failed (Art. 151, Family Code). The requirement of the law is jurisdictional but it is inapplicable when the subject matter of the suit cannot be compromised (Art. 2035, Civil Code) such as the status of a child (Baluyut vs. Baluyut, 186 SCRA 506). The inclusion of a stranger in a case involving family members takes the case out of the ambit of Article 151 of the Family Code (Hontiveros vs. RTC Branch 25, Iloilo City, 108 SCAD 262, 309 SCRA 340; see Gonzales vs. Lopez, 160 SCRA 346; Presco vs. Court of Appeals, 192 SCRA 232; Magbaleta vs. Gonong, 76 Phil. 511).
Chapter 2 The Family Home Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and
368
Arts. 155-157
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate who are living in the family home and who depend upon the head of the family for legal support. (226a) Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnish material for the construction of the building. (243a) Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities
Arts. 158-161
369
whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a) Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latters spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a) Art. 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable 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 directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 148a) Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a
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Arts. 152-162
person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)
The family home is the dwelling house, but not the movables found therein, and the lot on which it is situated where the husband and the wife or an unmarried head of a family and their family reside. Unlike the Civil Code provisions (Arts. 223-224), which required an extrajudicial (by registration) or judicial constitution, the Family Code deems the family home to be forthwith constituted once it is occupied as a family residence and while any of its beneficiaries actually reside therein. The beneficiaries of the family home, beside the spouses or the head of family, include the ascendants, descendants, brothers and sisters, whether the relationship is legitimate or illegitimate, living therein and dependent upon the spouses or the head of family for legal support (Arts. 152154, Family Code). The property must belong to the person constituting it as family home; in the case of the spouses, the family home must form part of the community or conjugal property or the exclusive property of one of them with his or her consent. Such property would qualify if it is purchased under a conditional sale on installments (or credit) where ownership is reserved by the seller pending the payment of the selling price (Art. 156, Family Code). The actual value of the property shall not exceed, at the time of its constitution, the sum of P300,000 in urban areas (chartered cities and municipalities whose annual income is at least that legally required for chartered cities) and of P200,000 in all other areas (Art. 157, Family Code). The family home is exempt from execution, forced sale or attachment except for (1) Unpaid taxes;
Arts. 152-162
371
(2) Debts incurred prior to its constitution; hence, family homes constituted for the first time under the Family Code are not exempt from execution for debts incurred prior to August 3, 1988 (Modequillo vs. Breva, 185 SCRA 766); (3) Debts secured by mortgage before or after such constitution; and (4) Debts due to laborers, mechanics, architects, builders, materialmen, and others who have rendered service or furnished material for the construction of the dwelling house. A judgment creditor whose claim does not fall under any of the above enumeration and who has reasonable grounds to believe that the family home of the judgment debtor is worth more than the P200,000 or P300,000 ceiling as of the time of its constitution or by the subsequent voluntary improvements introduced thereon by the persons constituting the family home or its beneficiaries, may apply to the court which rendered the judgment for the sale of the property. If the court finds merit in the application, it shall order the execution thereof but no bid below said ceiling shall be considered. In case of sale, the proceeds shall be applied in the following order (a) To the amount stated in Article 157 (supra.); (b) To the liabilities under the judgment and the costs; and (c) To the judgment debtor (Art. 160, Family Code). For purposes of the availment of benefits of a family home, a person may constitute, or be the beneficiary of, only one family home (Art. 161, Family Code). Dissolution of the Family Home The family home is dissolved under any of the following circumstances: (1) When no longer any of the beneficiaries actually reside therein (see Art. 153, Family Code);
372
Arts. 152-162
(2) When the court causes the sale thereof upon application of a judgment creditor under the provisions of Article 160 of the Family Code (supra.); (3) Upon the conveyance thereof by the owner or owners of the property with the written consent of the person constituting the family home, the latters spouse and a majority of the beneficiaries of legal age; in case of conflict, the court shall decide (Art. 158, Family Code); or (4) Ten years after the death of one or both spouses or of the unmarried head of family or for as long as there is a minor beneficiary; meantime, the heirs cannot partition the property unless the court finds compelling reasons therefor. This rule applies regardless of whoever owns the property or constituted the family home (Art. 159, Family Code). The 1950 Civil Code also has provided as causes of dissolution of the family home the annulment of marriage or legal separation and the death of the person who has set up the family home if so desired in his will (Arts. 237 and 238, Civil Code). Having been deleted in the Family Code, said grounds may no longer, by themselves, cause the dissolution of the family home. In the liquidation of the community or conjugal property, the family home shall be adjudicated in the manner provided for in Article 120 and Article 129 of the Family Code. The provisions of the Family Code on the family home shall also govern family residences already existing at the time of its adoption to the extent applicable (see Art. 162, Family Code). All existing family residences at the time the Family Code took effect are considered family homes and are prospectively entitled to the benefits accorded by it to a family home (Taneo, Jr. vs. Court of Appeals, 104 SCAD 264, 304 SCRA 308).
373
TITLE VI. PATERNITY AND FILIATION

Paternity is the civil status of a father (maternity for the mother) with regard to the child, while filiation is the civil status of a child with regard to his parents. Paternity and filiation cannot be left to the will or agreement of the parties. Paternity and filiation or the lack thereof is a relationship that must, in an appropriate manner, be judicially established, and it is for the court, not by stipulation, to declare its existence or non-existence (De Asis vs. Court of Appeals, 103 SCAD 422, 303 SCRA 176). The filiation of children is either by nature or by adoption. Natural filiation may be legitimate (conceived or born of parents who are lawfully married) or illegitimate (conceived or born of parents who are not lawfully married). Adopted children are those who by legal and judicial process have been decreed as such by the courts. The distinctions between natural children (those born outside wedlock of parents who at the time of conception were not disqualified by any impediment to marry) and non-natural or spurious children (those born of parents who were unmarried but who could not have married because of an impediment at the time of conception or birth of the child), under the 1950 Civil Code, have been attempted to be eliminated (see People vs. Rafanan, 182 SCRA 811), except for purposes of legitimation since only the former, even under the Family Code, may be legitimated (see Art. 177, Family Code). Affinity is the relation which one acquires with his or her spouses blood relations because of marriage; thus, the affines of the wife are not those of the husband nor are the affines of the husband those of the wife. Unlike relationship by blood, but similar to adoption, the rela373
374
Arts. 163-166
tionship by affinity ceases with the dissolution of the marriage that produces it, although the law or its context would at times indifferently indicate otherwise or only by way of nomenclature.
Chapter 1 Legitimate Children Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n) Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (255a, 258a) Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n) Art. 166. The legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that
Arts. 167-170
PERSONS Title VI. Paternity and Filiation
375
of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a) Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a) Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (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, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a) Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a) Art. 170. The action to impugn the legitimacy of the child shall be brought 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 reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be
376
Arts. 163-171
two years if they should reside in the Philippines; and three years if 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 or of the fact of registration of said birth, whichever is earlier. (263a) Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint, without having desisted therefrom; or (3) If the child was born after the death of the husband. (262a)
Unlike the 1950 Civil Code which merely provided for varying degrees of presumptions of legitimacy, i.e., disputable, quasi-conclusive and conclusive, the Family Code recognizes and declares generally as a matter of fact the status of legitimate children. Thus, children conceived or born during marriage of the parents are legitimate (Art. 164, Family Code). Nevertheless, the presumption that children born in wedlock are legitimate still holds. To destroy this presumption of legitimacy, the party against whom it operates must adduce sufficient and credible evidence to the contrary (Tison vs. Court of Appeals, 85 SCAD 341, 276 SCRA 582). The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother (William Liyaim, Jr. vs. Juanita Tanhoti-Liyao, G.R. No. 138961, 7 March 2002). Indeed, there is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of
Arts. 163-171
377
proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse. Quite remarkably, upon the expiration of the periods set forth in Article 170, and in proper cases Article 171, of the Family Code (which took effect on 03 August 1988), the action to impugn the legitimacy of a child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable. In the case of De Jesus vs. The Estate of Juan Dizon (G.R. No. 142877, 02 October 2001), the petitioners attempted to establish their legitimate filiation to the late Juan G. Dizon and, in effect, impugn their legitimate status as being children of Danilo and Carolina De Jesus. The Court said that the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latters heirs, can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected. The Family Code has introduced a new provision that also confers legitimate status to children conceived by the artificial insemination of the wife with the sperm not only of the husband but also that of a donor, or of both the husband and the donor, provided that both the husband and the wife authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child (Art. 164, Family Code). It is believed, the second paragraph of Article 164 notwith-
378
Arts. 163-171
standing, that where only the sperm of the husband is used in the artificial insemination of the wife, the child conceived thereby should be considered legitimate under the first paragraph of said article without the need of the formalities of authority or ratification for such artificial insemination. Likewise declared as legitimate children, elsewhere in the Family Code, are those of certain void marriages under Article 36 (due to psychological incapacity) conceived or born before the judicial declaration of nullity of the marriage (Art. 54, Family Code) and Article 53, in relation to Article 52 (due to failure of partition, delivery of presumptive legitimes and recording thereof following the annulment or declaration of nullity of a prior marriage) conceived or born before the judicial declaration of nullity of such void marriages (Art. 54, Family Code). Not included in these special declarations of legitimacy, however, are children of void marriages under Article 44 (subsequent marriage by a spouse present where both contracting parties thereto acted in bad faith). The Family Code is not explicit as regards children of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared as an absolute nullity. The law merely provides that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (Art. 40, Family Code). The status, however, of the subsequent marriage is not itself defined, although Article 52, in relation to Article 53, would give the impression that the marriage is void. Article 54, correlating it with Article 53, that grants legitimate status to children of certain void marriage, did not cover those of a subsequent marriage entered into by a spouse of a prior void marriage before the latter is judicially declared a nullity, and the children are thus, in strictissimi juris, to be considered illegitimate under the general provisions of Article 165 of the Family Code (supra.).
Arts. 163-171
379
If the marriage is terminated, such as by the death of the husband or annulment of marriage, and within 300 days thereafter the mother contracts a second marriage and bear within the same 300-day period a child, the latter, if born within 180 days from the celebration of the marriage, is deemed to have been conceived during the first marriage; otherwise (if born after 180 days from such celebration), the child shall be considered conceived of the second marriage. The law, however, states that the above rule governs in the absence of proof to the contrary (Art. 168, Family Code) that, in effect, made the provision a mere statement of prima facie presumption in either of the two cases. The child shall be considered legitimate in the cases provided for by law (Arts. 164, 36 and 53, in relation to Art. 52, Family Code) although the mother may have declared otherwise or may have been sentenced as an adulteress (Art. 167, Family Code). The husband, however, may impugn the legitimacy of the child but only on specified grounds; to wit: (1) Physical impossibility on the part of the husband to have sexual intercourse with the wife within the first 120 days of the 300 days preceding the birth of the child (period of conception) due to (a) Physical incapacity (impotency, not mere sterility) of the husband to have sexual intercourse; (b) The fact that the spouses are living separately such that sexual intercourse between them is not possible; or (c) Serious illness of the husband absolutely preventing sexual intercourse (such as when the husband suffers from paralysis in that part of the body). It has been held, applying similar provisions of the Civil Code, that the fact that the husband is suffering from tuberculosis and that the wife has committed adultery during the period of conception are not enough to impugn a childs legitimacy (see
380
Arts. 163-171
Andal vs. Macaraig, 89 Phil. 165; see also De Aparicio vs. Paraguya, 150 SCRA 279). (2) Biological or other scientific reasons which establish that the child could have not been that of the husband except as provided in Article 164 regarding children conceived as a result of artificial insemination of the wife. Under Article 257 of the 1950 Civil Code, the child was presumed illegitimate only if the wife committed adultery at or about the time of its conception and the child for ethnic reasons could not have been that of the husband. The lack of physical resemblance, following this provision (physiognomy), was not considered enough to apply the presumption of illegitimacy (Chun Chong vs. Collector, 338 Phil. 815), but racial dissimilarity coupled with the wifes adultery was held to be sufficient (Lee Sing vs. Collector of Customs, 59 Phil. 147). Under the Family Code, the stress has been shifted to solely scientific reasons. In this connection, blood-grouping tests may be conclusive as to non-paternity but inconclusive as to paternity (see Jao vs. Court of Appeals, 152 SCRA 359). Still to pass judicial recognition in this jurisdiction, but soon expected, is the application of the human lucosyte antigen test to paternity disputes. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using Short Tandem Repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child is analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to
Arts. 163-171
381
rule on the admissibility of DNA evidence. The Supreme Court, in Tijing vs. Court of Appeals (354 SCRA 17), has counseled that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Deoxyribonucleic acid or DNA is the fundamental building block of a persons entire genetic makeup. A persons DNA profile serves as his own DNA print that would determine his genetic identity (Forensic DNA Analysis in Criminal and Civil cases, Maria Corazon De Ungria, Ph. D). Where proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the lead dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals (354 SCRA 17), the Court has acknowledged the strong weight of DNA testing Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UPNSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said results is to deny progress. (Maria Jeanette C.
382
Arts. 163-171
Tecson, et al. vs. Commission on Elections, et al., G.R. No. 161434; Zoilp Antonio Velez vs. Ronald Kelley Poe, G.R. No. 161634; Victorino X. Fornier vs. Comelec, et al., G.R. No. 161824; 03 March 2004; see also In re petition of De Villa for habeas corpus, G.R. 158802, 17 Nov. 2004). (3) In the case of children conceived through artificial insemination, the vitiation of the written authorization or ratification of either spouse because of mistake, fraud, violence, intimidation, or undue influence (see Art. 166, Family Code). The action to impugn the legitimacy of the child must be brought (a) If the husband, or any of his heirs in cases where the right of action is transmitted to them (see Art. 171, Family Code), resides in the city or municipality where the birth took place or was recorded within one year from knowledge of the birth of the child or its recording in the civil register, whichever is earlier; (b) If the husband or, in his default, all of his heirs do not reside in the city or municipality of birth or recording within two years to be reckoned as above; or (c) If the husband or, in proper cases, his heirs reside abroad within three years to be similarly reckoned. In the foregoing cases, if the birth of the child is concealed from, and unknown to, the husband or the heirs, as the case may be, the applicable period shall be counted from the discovery or knowledge of the birth or the fact of registration of said birth, whichever is earlier (Art. 170, Family Code). The action to impugn the filiation of the child within the applicable prescriptive period is transmitted to the heirs of the husband only in the following cases:
Art. 172
383
(1) If, before the lapse of the applicable prescriptive period, the husband dies; (2) If, after the action to impugn is filed, the husband dies without having desisted therefrom; or (3) If the child is born after the death of the husband (Art. 171, Family Code). Upon the expiration of the periods set forth in Article 170, and in proper cases Article 171, the action to impugn the legitimacy of a child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable (De Jesus vs. Estate of Juan Dizon, supra.). Impugning the legitimacy of the child is a strictly personal right of the husband or, in exceptional cases, of his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interests involved (William Liyaim, Jr. vs. Juanita Tanhoti-Liyao, G.R. No. 138961, 7 March 2002). The periods in Article 171 apply only when the husband impugns the legitimacy of his wifes child; they do not apply when the child is alleged not to be his wifes child but of another woman (Babiera vs. Catotal, 333 SCRA 487). Legitimacy cannot be collaterally attacked but only directly by the mothers husband (De Jesus vs. Estate of Dizon, Oct. 2001, 366 SCRA 499).
Chapter 2 Proof of Filiation Art. 172. The filiation of legitime children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
384
Arts. 172-173
In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a)
When the childs legitimacy is expressed in: (a) a record of birth signed by the father (see Baluyut vs. Baluyut, 186 SCRA 506; Vda. de Alberto vs. Court of Appeals, 173 SCRA 436), (b) a final judgment, or (c) an admission in a public document or a private handwritten instrument and signed by the parent concerned, the fact of filiation is established, being in effect uncontroverted, and no further judicial action is required (albeit not prohibited). In the third mode, the admission, it is believed, must be direct and unambiguous to make it at par with, or at least comparable in form and substance to, either a record of birth or a final judgment. An incidental statement that does not convey a clear intent to establish the childs legitimacy should, at best, be just a piece of evidence that might be considered in proving that filiation by judicial action. A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Family Code for purposes of recognition and filiation; nevertheless, the birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence. Its evidentiary worth cannot be sustained where there exists strong, complete, and conclusive proof of its falsity or nullity
Arts. 172-173
385
(Sayson vs. Court of Appeals, 205 SCRA 321; Intestate Estate of Juan Locsin, Sr. vs. Juan Locsin, Jr., G.R. No. 146737, 10 December 2001). A certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of the certificate (Jison vs. Court of Appeals, 91 SCAD 849, 286 SCRA 495). The second paragraph of Article 172 of the Family Code, providing that the filiation may be proved by: (a) an open and continuous possession of the status of a legitimate child; or (b) any other means allowed by the Rules of Court and special laws, contemplates the necessity of judicial action in order to finally establish filiation (see Quismundo vs. Workmens Compensation Commission, 132 SCRA 590; revoking Tongoy vs. Court of Appeals, 123 SCRA 99, and reinstating Noble vs. Noble, 18 SCRA 1104; Paulino vs. Paulino, 3 SCRA 730; see also Vda. de Sy-Quia vs. Court of Appeals, 125 SCRA 835; Uyguangco vs. Court of Appeals, 178 SCRA 684; but see Castro vs. Court of Appeals, 173 SCRA 656). The continuous possession of the status of an illegitimate child must be of such nature that it reveals not only the conviction of paternity but also the apparent desire to have and treat the child as such in relation to society and in life, not accidentally but continuously (Baluyut vs. Baluyut, 186 SCRA 506). Continuous does not mean forever; it is enough that it is not intermittent while it lasts but it must be direct, spontaneous and public (Mendoza vs. Court of Appeals, 201 SCRA 675). Possession of status of a child does not in itself constitute an acknowledgment; it is only a ground for a child to compel recognition by his assumed parent (Rodolfo Fernandez vs. Romeo Fernandez, G.R. No. 143256, 28 August 2001, 153 SCAD 787). A baptismal certificate, a statement in the marriage contract of the brides alleged father, school records or
386
Arts. 174-175
photographs, by themselves, have not been independently considered as reliable proof (see Reyes vs. Court of Appeals, 135 SCRA 439). Blood-grouping tests may be conclusive as to non-paternity but inconclusive as to paternity (Jao vs. Court of Appeals, 152 SCRA 359). The action to claim his legitimacy may be brought by, and during the lifetime of, the child. The right is transmitted to the heirs should the child die during minority or in a state of insanity, in which case the heirs shall have a period of five years thereafter to institute the action. An action already commenced by the child is transmitted, if still pending, upon his or her death (see Art. 173, Family Code).
Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parent, their ascendants, in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)
Article 174 merely encapsulates the rights of legitimate children detailed and expressed in various provisions of the Civil Code and the Family Code.
Chapter 3 Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)
Arts. 175-176
387
Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (287a)
Illegitimate children are those conceived and born outside a valid marriage (Art. 165, Family Code), except those provided for in Article 36 (void marriages due to psychological incapacity) and Article 53, in relation to Article 52 (void marriages due to failure of partition, delivery of presumptive legitimes and recording thereof, following the annulment or declaration of nullity of a prior marriage) who are by said provisions of the Family Code specially considered legitimate despite the invalidity of the marriage. The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record of an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the childs acknowledgment. (see De Jesus vs. Dizon, G.R. No. 142877,
388
Arts. 175-176
2 October 2001; Gono-Javier vs. Court of Appeals, 239 SCRA 593). Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgement was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document. In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless from being an authoritative document of recognition. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. The proof of filiation of paternity for purposes of determining his citizenship status is independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions
Arts. 175-176
389
(Maria Jeanette C. Tecson, et al. vs. Commission on Elections, et al., G.R. No. 161434; Zoilp Antonio Velez vs. Ronald Kelley Poe, G.R. No. 161634; Victorino X. Fornier vs. Comelec, et al., G.R. No. 161824; 03 March 2004). Article 175 of the Family Code states that the filiation of illegitimate children is established in the same manner or proved on the same evidence as legitimate children as so provided for in Article 172 of the Family Code (supra.). Whereas an action to claim legitimacy under the second paragraph of said Article 172 (requiring judicial action) may be brought by the child during his or her lifetime, an action, however, to prove filiation of an illegitimate must be brought during the lifetime of the alleged parent (Art. 175, Family Code; Uyguangco vs. Court of Appeals, 178 SCRA 684; but see Castro vs. Court of Appeals, 173 SCRA 656). The requirement that the action be filed during the lifetime of the alleged parent is to prevent illegitimate children, on account of strong temptations to large estates left by dead persons, to claim part of the property without giving the alleged parent personal opportunity to be heard (Cenido vs. Apacionado, 115 SCAD 798, 318 SCRA 688). These provisions have retroactive effects so long as vested rights are not impaired (in relation to Art. 256, Family Code; Uyguangco vs. Castro, supra.). The success of an action to establish illegitimate filiation under the second paragraph of Article 172 of the Family Code hinges on a high standard of proof. There must be evidence of the manifestation of permanent intention by the supposed father to consider the child as his by continuous and clear manifestations of parental affection and care which cannot just be attributed to pure charity (Jison vs. Court of Appeals, 91 SCAD 849, 286 SCRA 495). In the matter of proving filiation, the Supreme Court continued to uphold what it believed to be the evident intent of the law to liberalize the rule on the investigation of paternity of an illegitimate child. In one case, it so allowed as proof of illegitimacy the mothers disclosure of
390
Arts. 175-176
the childs father (Rodriguez vs. Court of Appeals, 61 SCAD 896, 245 SCRA 150). In another, the fact of marriage and consequently that of filiation was proved despite the absence of marriage contract and petitioners birth certificate by the testimony of witnesses, consisting of their attendance to the parents wedding ceremony and the petitioners baptism, the deportment of the parents as being husband and wife, the baptismal certificate identifying the petitioners parents, and the petitioners continued and open use of the fathers name without any objection from the formers other relatives (Trinidad vs. Court of Appeals, 93 SCAD 610, 289 SCRA 188). When a putative father manifested openly through words and deeds his recognition of a child, the courts should do no less than confirm that acknowledgment (Lim vs. Court of Appeals, 80 SCAD 685, 270 SCRA 1). In Rodolfo Fernandez vs. Romeo Fernandez (G.R. No. 143256, 28 August 2001, 153 SCAD 787), however, the Court held that an application for recognition of back pay rights under Act No. 897, although a public document, was nonetheless an inconclusive proof of filiation between the applicant-alleged parent and the person seeking recognition. During the regime of the 1950 Civil Code, the right to claim recognition, unlike an action to claim legitimacy, in no event could pass to the heirs of the child (see Conde vs. Abaya, 13 Phil. 249; Vda. de Clemea vs. Clemea, 24 SCRA 720, Heirs of Raymundo C. Baas vs. Heirs of Bibiano Baas, 134 SCRA 260). Under Article 175 of the Family Code, while the law expresses that illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children and that the action may be brought within the same period specified in the Article 173, except when the action is based on the second paragraph of Article 172 in which case the action may be brought during the lifetime of the alleged parent, no mention has been made, however, on whether or not that right is transmitted to the heirs of said children. It is believed that the Family Code has neither intended nor conveyed a change in the old rule.
Arts. 175-176
391
In Bernabe vs. Alejo (G.R. No. 140500, 21 January 2002), the Court has resolved in the affirmative the issue of whether or not the right of an illegitimate child to bring an action for recognition, granted by Article 285 of the Civil Code, is already deemed vested prior to the enactment of the Family Code. The Court has emphasized that the right to seek recognition granted by the Civil Code to illegitimate children who are still minors at the time of effectivity of the Family Code could neither be impaired nor withdrawn. Thenceforth, the minors would have up to four years from attaining majority within which to file an action for recognition. Articles 276, 277, 278, 279, and 280 of the Civil Code have not been repealed by the Family Code which now allows the establishment of illegitimate filiation in the same way and on the same evidence as legitimate children (Rodriguez vs. Court of Appeals, 61 SCAD 896, 245 SCRA 150). The provisions of the 1950 Civil Code which either have substantially been modified or abandoned, for easy reference, are Art. 276. A natural child may be recognized by the father and mother jointly, or by only one of them. (129) Art. 277. In case the recognition is made by only one of the parents, it shall be presumed that the child is natural, if the parent recognizing it had legal capacity to contract marriage at the time of the conception. (130) Art. 278. Recognition shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. (131a) Art. 279. A minor who may not contract marriage without parental consent cannot acknowledge a natural child, unless the parent or guardian approves the acknowledgment, or unless the recognition is made in a will. (n)
392
Arts. 175-176
Art. 280. When the father or the mother makes the recognition separately, he or she shall not reveal the name of the person with whom he or she had the child; neither shall he or she state any circumstance whereby the other parent may be identified. (132a) Art. 281. A child who is of age cannot be recognized without his consent. When the recognition of a minor does not take place in a record of birth or in a will, judicial approval shall be necessary. A minor can in any case impugn the recognition within four years following the attainment of his majority. (133a) Art. 282. A recognized natural child has the right: (1) To bear the surname of the parent recognizing him; (2) To receive support from such parent, in conformity with Article 291; (3) To receive, in a proper case, the hereditary portion which is determined in this Code. (134) Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In case of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father. (n)
Arts. 175-176
393
Art. 284. The mother is obliged to recognize her natural child; (1) In any of the cases referred to in the preceding article, as between the child and the mother; (2) When the birth and the identity of the child are clearly proved. (136a) Art. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; (2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document. (137a) Art. 286. The recognition made in favor of a child who does not possess all the conditions stated in Article 269, or in which the requirements of the law have not been fulfilled, may be impugned by those who are prejudiced by such recognition. (137) Art. 287. Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this Code. (n) Art. 288. Minor children mentioned in the preceding article are under the parental authority of the mother. (n)
394
Arts. 175-176
Art. 289. Investigation of the paternity or maternity of children mentioned in the two preceding articles is permitted under the circumstances specified in Articles 283 and 284. (n) Under the 1950 Civil Code where voluntary recognition could take place in a record of birth, a will, a statement before a court of record, or in any authentic writing (Art. 178, Civil Code), a review of Supreme Court decisions can be helpful guides: (a) Voluntary recognition (the equivalent under the Family Code of filiation being deemed established) needs no further court action (see Divinagracia vs. Bellosillo, 143 SCRA 356). (b) Voluntary recognition must be express; a mere statement incidentally revealing paternity will not suffice (see Javelon vs. Monteclaro, 74 Phil. 793; Donado vs. Donado, 55 Phil. 861; see also Vda. de Sy-Quia vs. Court of Appeals, 125 SCRA 835; Colorado vs. Court of Appeals, 135 SCRA 47). The doctrine of incidental recognition, which would allow recognition as having taken place where the putative parent has made an incidental, rather than a direct, remark on the childs filiation has been held to apply under the provisions of the Spanish Civil Code (Art. 131 vs. Art. 135 thereof) in cases of voluntary recognition expressed in a public document (see Heirs of Raymundo C. Baas vs. Heirs of Bibiano Baas, 134 SCRA 260). (c) A mere baptismal certificate is not enough to establish recognition (Vidaurrazaga vs. Court of Appeals, 48 O.G. No. 7, p. 2643). (d) An authentic writing may be public or private as long as it can be established as one made by the acknowledging parent (see Madridejo vs. de Leon, 55 Phil. 1; De Jesus vs. Syquia, 58 Phil. 866; Varela vs. Villanueva, etc., et al., 95 Phil. 248; Pareja, et al. vs. Pareja, et al., 103 Phil. 324). Under Article 172 of the Family Code, the
Arts. 175-176
395
private document must be handwritten and signed by the parent concerned. Thus, filiation may likewise be established by holographic, as well as notarial, wills, except that they no longer need to be probated or to be strictly in conformity with the formalities thereof for purposes of establishing filiation. (e) A statement in a court of record must be made personally by the parent himself or herself. The voluntary recognition of a child by the brother of the alleged parent does not qualify as such (Cenido vs. Apacionado, 115 SCAD 798, 318 SCRA 688). (f) No provision of law is necessary to allow a person who recognizes filiation from rectifying that act as and when circumstances would justify it (Heirs of Raymundo C. Baas vs. Heirs of Bibiano Baas, 134 SCRA 260). The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the childs acknowledgment (Jinkie de Jesus vs. Estate of Juan Dizon, G.R. No. 142877, 02 October 2001). Illegitimate children, whose filiation has been either established or proved, are entitled to support and successional rights (see De La Puerta vs. Court of Appeals, 181 SCRA 861; Reyes vs. Court of Appeals, 135 SCRA 439). The legitime of each illegitimate child is one-half of that of a legitimate child, thereby increasing to that much the
396
Arts. 175-176
legitime of an illegitimate child begotten by parents who suffer from an impediment to marry (then called non-natural or spurious) who were under the 1950 Civil Code entitled to only two-fifths of the legitime of each legitimate child or four-fifths of the share of an illegitimate child who is natural. Since the ownership by heirs vests upon the death of the decedent, the new rights of illegitimate children legislated after such death cannot be asserted without impairing vested rights (Balais vs. Balais, 159 SCRA 37; Jimenez vs. Fernandez, 184 SCRA 190). The clear intendment of the law is to put illegitimate children as one class by themselves and to grant them equal rights among one another. Unfortunately, Article 176 of the Family Code has provided for the increase in successional rights of non-natural illegitimate children to the legitime and has failed to explicitly extend it to the rights in intestacy, where the then share of an illegitimate child who was non-natural was four-fifths the share of one who was natural, that may give rise to doubts on whether or not the amendatory rule should likewise apply to intestacy. It may well be, however, that since Article 983 of the Civil Code on intestacy states that the sharing among illegitimate children shall be in the proportions prescribed in Article 895 on legitimes, the change brought about by Article 176 of the Family Code on such legitimes can be said to now also dictate their shares in intestacy. In every case, the legitime of such illegitimate children, established in the Family Code should first be satisfied. Illegitimate children of any category shall use the surname and be under the parental authority of their mother (Art. 176, Family Code). Under the 1950 Civil Code, illegitimate children who were natural and acknowledged by the father were required to use the surname of their father (Art. 366, Civil Code), and parental authority was exercised by both parents jointly (Art. 311, Civil Code, as amended by P.D. 603).
Arts. 177-178
397
Republic Act No. 9255, entitled An Act Allowing Illegitimate Children to Use the Surname of their father, amending for the purpose Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines enacted on 24 February 2004, now provides: Section 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows: Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Section 2. Repealing Clause. All laws, presidential decrees, executive orders, proclamations, rules and regulations, which are inconsistent with the provisions of this Act are hereby repealed or modified accordingly.
Chapter 4 Legitimated Children Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a) Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)
398
Arts. 177-182
Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a) Art. 180. The effects of legitimation shall retroact to the time of the childs birth. (273a) Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (274) Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. (275a)
Illegitime children of parents, who at the time of conception of the former were not disqualified by any impediment to marry each other, are legitimated by the subsequent marriage of said parents. Thus, the child of parents, one or both of whom are below 18 years of age at the time of conception and birth of the child, is not legitimated by the subsequent valid marriage of the parents. The requirement of 18 years of age in marriage is not merely a declaration of capacity but one of disqualification if not met (Art. 35, Family Code) and, clearly then, an impediment within the meaning of Article 177 of the Code. It is believed that a child, although conceived at a time when an impediment to marry exists but born when that impediment ceases, can be legitimated being a reasonable deduction than can be derived from the use of the phrase conceived and born in Article 177. The annulment of the marriage (when voidable) shall not adversely affect the legitimation (Arts. 177-178, Family Code) of a child. Legitimated children enjoy the same rights of legitimate children, including those who die before the celebration of the marriage, which benefits inure to their descendants. The effects of legitimation retroact to the childs birth (see Arts. 179-181, Family Code).
399
TITLE VII. ADOPTION

The provisions of Article 334 up to Article 348 of the Civil Code on adoption were repealed by Chapter 1, Section B, of the Child and Youth Welfare Code (Presidential Decree No. 603), which, in turn, was replaced by the present provisions of the Family Code. The provisions on adoption are primarily intended to promote the well-being and security of the adopted child, as well as the enchancement of his opportunities for a useful and happy life (Daoang vs. Municipal Judge of San Nicolas, Ilocos Norte, 159 SCRA 369), and secondarily to provide for a legal process and sanction by which a person who may wish to do so may embrace as his own the child of another. The courts are then expected to consider not merely the legal aspects of the case but likewise, and paramount, the physical, moral, social and intellectual welfare of the child for whom the law on adoption has, in the first place, been designed. An alien qualified to adopt under the Child and Youth Welfare Code, who therefore acquires a vested right, cannot be affected by the subsequent enactment of a new law disqualifying him. The enactment of the Family Code will not impair the right of an alien to adopt a Filipino child under the Child and Youth Welfare Code, which right becomes vested at the time of the filing of the petition for adoption (Republic vs. Miller, 105 SCAD 809, 306 SCRA 183).
Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family.
399
400
Arts. 184-186
Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD 603) Art. 184. The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law. (28a, EO 91 and PD 603) Art. 185. Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. (29a, EO 91 and PD 603) Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, EO 91 and PD 603)
Arts. 183-188
PERSONS Title VII. Adoption
401
Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during minority; (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, EO 91 and PD 603) Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over; (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latters spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (31a, EO 91 and PD 603)
Any person of age and in full possession of civil rights may adopt so long as he is in a position to property provide, basically in terms of support and care, not only for the adopted but also for his own children, legitimate and illegitimate, in keeping with the means, both material and otherwise, of the family (see Art. 183, Family Code). An emancipated child, being qualified and responsible for all acts of civil life (Art. 236, Family Code), may adopt. The phrase person of age in Article 183 of the Family Code does not necessarily refer to one who has reached twenty-one years of age but that age where the person can exercise capacity to act. In any case, the re-
402
Arts. 183-188
duction of majority age from 21 years to 18 years renders the issue academic. The adopter must be at least sixteen years older than the adopted except when the adopter is the parent by nature of the adopted or is the spouse of the legitimate parent of the adopted (Art. 183, Family Code). In order to ensure harmony, at least between the spouses, the husband and the wife may not singly adopt (mere consent by the other does not suffice), except when the adopted is his own illegitimate child or the legitimate child of the other (in which case the latters consent is enough [Art. 185, in relation to Art. 188, Family Code]). The prospective adopter need not be a resident of the Philippines (see Nieto vs. Magat, 136 SCRA 533). The old law on adoption, Presidential Decree No. 603 (The Child and Youth Welfare Code), exactly adopted that found in then Article 336 of the Civil Code. Article 29, Section B, Chapter I, Title I, of the said decree provided: Art. 29. Husband and wife may jointly adopt. In such case, parental authority shall be exercised as if the child were their own by nature. Observe that the law then in force used the word may under which regime, a joint adoption by the spouses was apparently not made obligatory. The provision was later amended, however, by Executive Order No. 91, dated 17 December 1986, of President Corazon C. Aquino. The new Article 29 expressed, thus Art. 29. Husband and wife may jointly adopt. In such case, parental authority shall be exercised as if the child were their own by nature. If one of the spouses is an alien, both husband and wife shall jointly adopt. Otherwise, the adoption shall not be allowed. As amended by Executive Order 91, Presidential Decree No. 603, had thus made it mandatory for both the spouses to jointly adopt when one of them was an alien.
Arts. 183-188
403
The law was silent when both spouses were of the same nationality. The Family Code has resolved any possible uncertainty. Article 185 thereof now expresses the necessity for a joint adoption by the spouses except in only two instances (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. It is the foregoing cases when Article 186 of the Code, on the subject of parental authority, can aptly find governance. Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. Adoption creates a status that is closely assimilated to legitimate paternity and filiation with corresponding rights and duties that necessarily flow from adoption, such as, but not necessarily confined to, the exercise of parental authority, use of surname of the adopter by the adopted, as well as support and successional rights. These are matters that obviously cannot be considered inconsequential to the parties. (See Republic vs. Spouses Hughes, G.R. No. 100835, 26 October 1993, 227 SCRA 401). As a matter of public policy, the law does not allow an adoption by (1) A guardian as regards the ward pending the approval of the final accounting upon the termination of the guardianship; (2) A convict of a crime involving moral turpitude; or (3) An alien, except: (a) when he or she used to be a Filipino citizen who seeks to adopt a relative by consangui-
404
Art. 189
nity; (b) when he or she seeks to adopt a legitimate child of the Filipino spouse; (c) when he or she seeks to adopt, jointly with the Filipino spouse, the latters relative by consanguinity; or (d) in general, when allowed in accordance with the rules on inter-country adoption (Art. 184, Family Code). Only minors may be adopted except when the person to be adopted is a child by nature of the adopter or the latters spouse or had been consistently treated and considered by the adopter as his or her own child during the latters minority. A person who has already been adopted, unless the adoption has been revoked or rescinded, may no longer be adopted. It is believed, however, that the death of the adopter or of both of the adopting parents, as the case may be, would not disallow the adopted child from being adopted anew by others. An alien with whose government the Philippines has no diplomatic ties cannot be adopted (see Art. 183 and Art. 187, Family Code). An adoption requires the written consent of: (a) the person to be adopted if ten years of age or over; (b) the parents by nature of the adopted, the legal guardian, or the proper government instrumentality, in that order; (c) the legitimate and adopted children of the adopter if said children are ten years of age or over; (d) the illegitimate children of the adopter if said children are ten years of age or over and living with the adopter; and (e) the spouse, if any, of the person adopting or to be adopted (Art. 188, Family Code).
Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in
Arts. 189-190
405
the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39[1]a, [2]a, [3]a, PD 603) Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters; (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, onethird to be inherited by the illegitimate children, onethird by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39[4]a, PD 603)
The burden of proof in establishing adoption is upon the person claiming such relationship (Vda. de Jacob vs. Court of Appeals, 111 SCAD 137, 312 SCRA 772). The
406
Arts. 189-190
adoptive relationship is personal and solely between the adopter and the adopted. Between them, the adoption creates a status of legitimate paternity and filiation with corresponding rights and duties appurtenant thereto. Thus, the adopted may use the surname of the adopter, and the parental authority of the parents by nature terminates and instead vests in the adopter except that if the adopter is the spouse of the parent by nature of the adopted, then that authority shall be exercised jointly by the spouses (see Art. 189, Family Code). Adoption does not really sever the previous status of the adopted child with regard to his other blood relatives, let alone his parents by nature, nor adversely affect the legal implications of that relationship except only to the extent that the law expresses otherwise. In main, his rights and duties continue in respect to his natural relations. So also, the adopted does not acquire the Philippine citizenship of the adopter since this status is itself conferred by law. Relative to the effects of adoption on successional rights, the following rules may be said to govern: A. As regards the adopted child
(1) The adopted child remains to be an intestate heir of the parents by nature and other blood relatives (Art. 189, Family Code). In this context, the term intestate means the generic concept of succession by law which includes the adopted childs rights, for instance, to the legitime and to the reserva troncal. (2) The adopted person becomes an heir as a legitimate child of the adopter. The 1950 Civil Code (Art. 343) and the Child and Youth Welfare Code (Art. 34 on adoption) both contain a proviso to the effect that if the adopting parent is survived by his legitimate parents or ascendants (in the absence of legitimate children and descendants) and by an adopted child, the latter shall not have more successional rights than those that pertain to an illegitimate child. Said provisions have been deleted
Arts. 189-190
407
in the Family Code. Since the law on succession under the Civil Code states that an adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child (Art. 979, 2nd par., Civil Code), without any qualifying proviso, the presence of an adopted child would now preclude the legitimate parents and ascendants from succeeding as compulsory or intestate heirs (see Santos, et al. vs. Aranzanso, 16 SCRA 344) of the adopter. B. As regards the parents and ascendants
The successional rights established in Article 190 of the Family Code are inapplicable if the adopted is not survived by any adopting parent or if the adopted is survived by any legitimate child or descendant or by his own adopted child; instead, the ordinary rules on succession by law should apply. The presence of legitimate children and descendants, as well as adopted children, of a deceased adopted would exclude his parents and ascendants, as well as the adopting parents, from succeeding by operation of law (legal or forced succession). The presence of illegimate children, or their descendants by right of representation, would only exclude illegitimate parents, but not the legitimate parents and ascendants, or the adopting parents, from legal succession. When such parents and ascendants, or the adopting parents, are not thus excluded, in accordance with the above rules (see Arts. 887, 985 and 993, Civil Code), the evident intendment of the Family Code is to allow the parents (including the ascendants if the relationship is legitimate) by nature and the adopting parents to have equal rights to the adopted childs estate as might pertain to the ascending line. The Family Code does not contain any provision expressly excluding the parents or ascendants by nature when they concur with the surviving spouse and illegitimate children of the adopted. If there is among them only one surviving group either the ascending blood line or the parents by adop-
408
Arts. 189-190
tion then that group, would be entitled to the entire portion pertaining to said ascending group. Thus (1) In the absence of other possible concurring heirs, if the parents, legitimate or illegitimate, or the legitimate ascendants (in the absence of legitimate parents) of the adopted concur with the adopters, one-half of the estate shall pertain to said parents or ascendants and the other half to the adopting parents. If only the adopting parents survive the adopted, then the entire estate shall pertain to them. If, upon the other hand, no adopting parent survives the adopted, the special rules under Article 190 of the Family Code would no longer be applicable (since the adoptive relationship had theretofore ceased); instead, the adopted estate shall be governed by the ordinary rules on succession established by the Civil Code. (2) When the parents by nature (or ascendants when applicable) and by adoption concur with a surviving spouse, the estate shall be divided equally, one-half to be inherited by the surviving spouse and the other half by the parents (or ascendants), by nature and by adoption, the latter being entitled to their one-half share in the manner stated in paragraph (1). (3) When the legitimate parents or ascendants by nature and by adoption concur with illegitimate children (or their descendants by right of representation), the estate shall be divided equally, one-half to pertain to the illegitimate children and the other half to the parents (or ascendants) who shall inherit in the manner expressed in paragraph (1). It may be noted that illegitimate parents are excluded by illegitimate children (or their descendants by right of representation). (4) When the legitimate parents (or ascendants) by nature and by adoption concur with the surviving spouse of the adopted and the latters illegitimate children (or their descendants by right of representation), the estate shall be divided equally into three parts one-third to pertain to the surviving spouse, another one-third to the
Arts. 191-193
409
illegitimate children and the remaining one third to the above parents (or ascendants) to be allocated in accordance with paragraph (1). The Family Code must be deemed to have modified to the above extent the rules on legitimes and intestate succession (see Art. 190, Family Code, in relation to Arts. 887, 972, 984, 985, 987, 990, 991, 993, 997, Civil Code), otherwise certain incongruities become inevitable. It may be worthwhile to state, however, that the special rules on successional rights established in Article 190 of the Family Code can have occasion to apply only when adopting parents survive the adopted. The provisions on reversion adoptiva under Article 39 of the Child and Youth Welfare Code (P.D. 603) have been deleted by the Family Code.
Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumentality acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603) Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed an act constituting a ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, had definitely repudiated the adoption. (41a, PD 603) Art. 193. If the adopted minor has not reached the age of minority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature,
410
Arts. 191-193
unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property, of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his or her surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries. (42a, PD 603)
The rescission of adoption may only be effected judicially upon petition of: (a) any person authorized by the court or the proper governmental instrumentality on the same grounds prescribed by the Family Code (Title IX, infra.) for loss or suspension of parental authority; (b) the person adopted if at least eighteen years of age on the same grounds prescribed for disinheriting an ascendant (see Article 920, Civil Code); or (c) the adopters on the grounds expressed in Article 192 of the Family Code (supra.; see also Art. 919, Civil Code). The Domestic Adoption Act of 1998 (Republic Act No. 8552) no longer allows the rescission of adoption by the adopters. Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the five-year bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in statutory privileges. While adoption has often been referred to in the context of a right, the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created
Arts. 191-193
411
by statute. It is a privilege that is governed by the states determination on what it may deem to be for the best interest and welfare of the child. Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised (Adoption has also been characterized as a status created by the state acting as parens patriae, the sovereign parent) (Isabelita Lahom vs. Jose Melvin Sibulo, G.R. No. 143989, 14 July 2003). Judicial rescission has the effect of extinguishing forthwith the adoptive relationship; hence (1) The rights and obligations between the adopter and the adopted arising from the adoptive relationship cease; (2) The adopted losses the right to the use of the adopters surname and shall resume the use of his or her surname prior to the adoption. (3) Parental authority, in case the adopted is still a minor, shall re-vest in the parents by nature or, if disqualified or incapacitated, in a guardian appointed by the court in the same proceedings for rescission (see Art. 193, Family Code, supra.). Domestic Adoption Significantly, Philippine adoption is now also governed by Republic Act No. 8552 (Domestic Adoption Act of 1998) and Republic Act No. 8043 (Inter-Country Adoption Act of 1995). Under Domestic Adoption Act, the following may adopt: (a) any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family; (b) any alien possessing the same qualifications as pro-
412
Arts. 191-193
vided for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter; and (c) the guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities (Sec. 7, R.A. No. 8552). The requirement of sixteen (16) years difference between the age of the adopter and the adopted may be waived when the adopter is the biological parent of the adopted or is the spouse of the parent of the adopted (Ibid.). The residency requirement for alien and the certification to adopt in his/her country may be waived if: (a) he/she is a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (b) he/she is seeking to adopt the legitimate son/daughter of his/her Filipino spouse; or (c) he/she is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse (Ibid.). Husband and wife shall jointly adopt except if: (a) one spouse seeks to adopt the legitimate child of the other; or (b) if one spouse seeks to adopt his/her own illegitimate child, provided that the other spouse signifies his/ her consent thereto; or (c) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate child of the other, joint parental parental authority shall be exercised by the spouses (Ibid.).
Arts. 191-193
413
The following may be adopted: (a) any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) the legitimate son/daughter of one spouse by the other spouse; (c) an illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) a person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) a child whose adoption has been previously rescinded; or (f) 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 said parent(s) (Sec. 8, ibid.). The decree of adoption shall sever all legal ties between the biological parents and the adopted, save the cases where the biological parent is the spouse of the adopter; parental authority shall then be vested on the adopter (Sec. 16, ibid.). The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/ daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family (Sec. 17, ibid.). In legal and intestate succession, the adopter(s) and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. If, however, the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern (Sec. 18, ibid.). The laws enacted prior to the Domestic Adoption Act have consistently recognized the right of the adoptee and his biological parents to inherit from each other through legal and forced succession on the thesis that adoption does not sever the status of the adopted with regard to his other blood relatives, let alone his parents by nature, except only to the extent that the law otherwise provides. The decree of adoption does not dispossess the adopted of
414
Arts. 191-193
his status as an issue of his biological parents, and it does not divest the child of his legal right to inherit from his parents by nature, nor should such implication be drawn from the fact alone that the child, following his adoption, gains the status of a legal child of the adopter. A contrary view would be derogative of keeping the adopteds welfare and best interest, the paramount consideration of adoption laws. The right to inherit by intestate succession between and among the adopted and his biological parents is reciprocal in nature and obviously subsists, and there is nothing in the Domestic Adoption Act that would sufficiently indicate any legislative intent to dissolve all ties between the adopted and his biological parents, except that referred to in Section 16 of the law on the exercise of parental authority which shall vest on the adopter. The general repealing clause in Section 26 of the Domestic Adoption Act affects only laws, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to, or inconsistent with, its provisions. Although the provisions in Article 189(3) and Article 190(2) and (6) of the Family Code have not been reproduced in the Domestic Adoption Act, neither, however, are they inconsistent therewith. An implied repeal takes place only when an irreconcilable inconsistency and repugnancy in the terms of the new and old law exist. The adoption may be rescinded, upon petition of the adopted with the assistance of the Department of Social Welfare and Development, if still a minor or is otherwise incapacitated, should the adopter commit: (a) repeated physical and verbal maltreatment despite having undergone counseling; or (b) an attempt on the life of the adoptee; or (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations (Sec. 19, ibid.). Being in the interest of the child, adoption shall not be subject to rescission by the adopter, but the adopter
Arts. 191-193
415
may disinherit the adopted for causes provided in Article 919 of the Civil Code (Ibid.). The judicial rescission of adoption shall extinguish the reciprocal rights and obligations of the adopted and the adopter, and the parental authority of the biological parents, if known, of the adopted or the legal custody of the DSWD shall be forthwith restored (Sec. 20, ibid.). Accordingly, the court shall order the Civil Registrar to cancel the amended certificate of birth of the adopted and restore his/her original birth certificate. Successional rights shall revert to its status before the adoption, but only as of the date of judicial rescission. Vested rights which have been acquired prior to judicial rescission shall be respected. These effects shall be without prejudice to the penalties imposable under the Revised Penal Code if the criminal acts are properly proven (Ibid.). Inter-Country Adoption The Inter-Country Adoption Act of 1995 (Republic Act No. 8043) came into being pursuant to Article 184 of the Family Code that supports the adoption of rules on intercountry adoption. Under Republic Act No. 8043, only a legally-free child may be the subject of inter-country adoption (Sec. 8, R.A. No. 8043). The term legally-free child refers to a child who has been voluntarily or involuntarily committed to the Department of Social Welfare and Development or DSWD (Sec. 3[f], ibid.). Any alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption if the person seeking such adoption: (a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; (b) if married, his/her spouse jointly file for the adoption; (c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from the accredited counselor in
416
Arts. 191-193
his/her country; (d) has not been convicted of a crime involving moral turpitude; (e) is eligible to adopt under his/ her national law; (f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; (g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of the Inter-Country Adoption Act; (h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and (i) possesses all the qualifications and none of the disqualifications therein provided and in other applicable Philippine laws (Sec. 9, ibid.). The Inter-Country Adoption Board acts as the central authority in matters relating to inter-country adoption and the policy-making body for purposes of carrying out the provisions of the Inter-Country Adoption Act, in consultation and coordination with the DSWD, the different child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities (Sec. 4, ibid.). The application to adopt a Filipino child shall be filed either with the Regional Trial Court having jurisdiction over the child (see A.M. No. 02-06-02 SC RE: Rules on Adoption, which became effective on 22 August 2002), or with the Inter-country Adoption Board through an intermediate agency, whether governmental or an authorized and accredited agency in the country of the prospective parents. In case of adoption by judicial proceedings, the Rules of Court shall apply (Sec. 10, ibid.; see A.M. No. 02-06-02 SC RE: Rules on Adoption). The trial custody period shall be six (6) months from the time of placement, and it is only after the lapse of this period of trial custody shall a decree of adoption be issued (Sec. 14, ibid.).
Arts. 191-193
417
The Inter-country Adoption Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Inter-country adoption shall thus be regarded, it would seem, as being merely the last resort (see Sec. 7, ibid.).
418
TITLE VIII. SUPPORT

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a)
The above article has been taken from Article 290 of the Civil Code but added transportation among the items of support. The Family Code likewise modified the extent of support to be in keeping with the financial capacity of the family and has thus eliminated the distinction under the Civil Code between civil support (based on the social position of the family), applicable to the spouses, descendants and ascendants, and natural support (confined to the necessaries for life) in the case of brothers and sisters (see Arts. 290 and 291, Civil Code).
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) (2) The spouses; Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
418
Arts. 196-199
PERSONS Title VIII. Support
419
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of the full or half-blood. (291a) Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimants fault or negligence. (291a) Art. 197. For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal, partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n) Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a) Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) (2) (3) (4) The spouse; The descendants in the nearest degree; The ascendants in the nearest degree; and The brothers and sisters. (294a)
420
Arts. 195-200
Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a)
The obligation of mutual support is ordained by law among members of the family (see Art. 150, Family Code, supra.). In the case of legitimate relationship, support is ordained among ascendants and descendants ad infinitum. In the case of illegitimate relationship, support is likewise required among: (a) parents and their legitimate children and the latters legitimate or illegitimate children (not further descendants); (b) parent and their illegitimate children and the latters legitimate and illegitimate children (not further descendants); and (c) brothers and sisters, whether of the full or half-blood, legitimate or illegitimate, but in this latter case (illegitimate brothers and sisters) support may be denied if the need is due to a cause imputable to the claimants fault or negligence (see Art. 195, in relation to Arts. 196 and 197, Family Code). Support, when proper and where two or more persons are obliged to give it (concurrent obligors) or are entitled to receive it (concurrent obligees) but the obligor has no sufficient means to satisfy all, shall be made in the following order
Arts. 201-203
421
(1) The spouse; (2) The descendants of the nearest degree; (3) The ascendants of the nearest degree; and (4) The brothers and sisters except that if the concurrent obligees should be the spouse and a child still subject to parental authority, the latter shall be preferred (Arts. 199 and 200, Family Code). When the obligation to give support falls upon two or more persons, the same shall be divided among them in proportion to their financial resources although, in case of urgent need and when their financial capability warrants, one or some may be required to provisionally furnish support without prejudice to their right to seek reimbursement from the others (see Art. 200, Family Code). Among concurrent obligees related in equal degree to the obligor, the law is silent on any preference, thus leaving the matter to whatever may be just and proper in each particular case and circumstance (see Articles 201 and 202, Family Code, infra.).
Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a) Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendente lite may be claimed in accordance with the Rules of Court.
422
Arts. 201-208
Payments shall be made within the first five days of each corresponding months. When the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a) Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without an intention of being reimbursed. (2164a) Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with a right of reimbursement from the person obliged to give support. This Article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contracted support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties. (n)
In sum, the various other rules on support may be stated, thus
Arts. 201-208
423
(1) The amount of support shall be in proportion to the financial capability of the obligor and to the needs of the obligee and may thus vary from time to time in accordance therewith (Arts. 201-202, Family Code). Contractual support is subject to adjustment when circumstances so change as to be manifestly beyond the contemplation of the parties (Art. 208, Family Code). (2) Support is demandable as and when the need therefor arises, and the amount is payable upon demand and thereafter within the first five days of each corresponding month (Art. 203, Family Code), unless the obligator opts to receive and maintain the obligee in the family dwelling so long as there are no moral or legal obstacles thereto (Art. 204, Family Code). (3) The right to receive support and money or property thus received may not be attached or levied on execution except in case of contractual, or legacy of, support to the extent that there is an excess in amount beyond that required for legal support (see Art. 205, in relation to Art. 208, Family Code). (4) Where the support is given by a stranger, the latter may claim reimbursement from the obligor of support: (a) when it is made without the knowledge of the person obliged to give it unless the former gives it without any intention of being reimbursed; or (b) when the obligor unjustly refuses or fails to give that support (Arts. 206-207, Family Code). In all cases involving a child, his interest and welfare are always the paramount concerns. There may be instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the trial court attains finality while time continues to slip away (Gan vs. Pondevida, G.R. No. 145527, 28 May 2002). The money and property adjudged for support and education should and must be given presently and without delay because if it had to wait the final judgment, the children may in the meantime have suf-
424
Arts. 201-208
fered because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay the payment of such funds for support and education for the reason that if paid long afterwards, however much the accumulated amount, its payment cannot cure the evil and repair the damage caused (De Leon, et al. vs. Soriano, et al., 95 Phil. 806). A judgment for support is enforceable by a writ of execution despite the lapse of the five-year period under Section 6, Rule 39, of the Rules of Court since such judgment does not become dormant. Similarly, where support should be terminated or suspended, a mere motion therefor is enough to warrant an order of such termination or suspension (Canonizado vs. Benitez, 127 SCRA 610).
425
TITLE IX. PARENTAL AUTHORITY

Chapter 1 General Provisions Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civil consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n) Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a) Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence toward their parents and are obliged to obey them as long as the children are under parental authority. (17a, PD 603) Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children unless the court appoints another person to be the guardian of the person or property of the children. (17a, PD 603) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the
425
426
Arts. 209-215
child over seven years of age, unless the parent chosen is unfit. (n) No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. (355a) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other. (315a)
In its declaration of state policies, the 1987 Constitution expresses its recognition of the natural and primary right and duty of parents in the rearing of the youth for civil efficiency and the development of moral character (Art. II, Sec. 12, Constitution). Parental authority may not thus be unduly denied the parents; neither may it be renounced or transferred by them except in the cases authorized by law (Art. 210, Family Code). Parental authority is jointly exercised by the father and the mother over the person and property of their common children. In case of a disagreement, the fathers decision prevails unless there is a judicial order to the contrary (Arts. 211 and 225, Family Code). In case of absence or death of either parent, the other shall continue to exercise parental authority. The remarriage of the surviving parent does not affect this parental authority unless another is appointed as guardian over the person or property of the children (Art. 212, Family Code). In cases of annulment or declaration of absolute nullity of marriage or legal separation of parents, the court shall designate the parent who shall exer-
Arts. 209-215
PERSONS Title IX. Parental Authority
427
cise parental authority, taking into account all relevant considerations, especially the choice of the child over seven years of age (see Arts. 49, 63, and 213, Family Code). In Unson III vs. Navarro (101 SCRA 183), the Supreme Court has said: The sole and foremost consideration in controversies regarding child custody is the physical, educational, social and moral welfare of the child. Premises considered, the child, an eight-year old girl and who is thus in the formative and most impressionable stage in her life, should be freed from the unwholesome and immoral situation of a mother who openly lives with her brother-in-law. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise (Art. 213, 2nd par., Family Code). The rule is partly called for so as to avoid the tragedy and deep sorrow of a mother who otherwise would see her baby torn away from her (Hontiveros vs. Intermediate Appellate Court, 132 SCRA 745). At this tender age, a child, said the Court of Appeals in one instance, is yet considered unable to discern between what may be morally right or wrong; hence, compelling reasons should refer to physical rather than the moral well-being of the child (see Sy vs. Funa, CA-G.R. Nos. 122117-R, 16 February 1955). The Supreme Court appears to have taken a different view in Cervantes vs. Fajardo (G.R. No. 79955, 27 January 1984). While it is true that the determination of the right to custody of minor children is relevant in cases where the parents who are married to each other but for some reasons are separated from one another, it does not, however, follow that it cannot arise in any other situation. The Supreme Court, in David vs. Court of Appeals (65 SCAD 508, 250 SCRA 82), sustained the propriety of habeas corpus proceeding in behalf of an illegitimate child by a mother who, by law, is vested with custody of the
428
Arts. 209-215
child. The fact that the father of an illegitimate child has recognized the minor child may be a ground for ordering him to give support to the latter, but not necessarily for giving him custody of the child. Apparently, the law makes no distinction between a case of a mother separated from her husband and she who has borne an illegitimate child (Sabrina Bondagjy vs. Fouzi Ali Bondagjy, G.R. No. 140817, 07 December 2001). The writ of habeas corpus is proper to regain custody of a child (Tijing vs. Court of Appeals, G.R. No. 125901, 08 March 2001, 145 SCAD 391). There is, despite a dearth of specific legal provisions, enough recognition on the inherent right of parents over their children. Article 150 of the Family Code expresses that (f)amily relations included those x x x (2) (b)etween parents and children; x x x. Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parents and those exercising parental authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in terms of the natural and primary rights of parents in the rearing of the youth. There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate members of the family and so explicitly encompass illegitimate relationships as well. Then, too, and most importantly, in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children. (cited in Carlito E. Silva vs. Court of Appeals & Suzanne T. Gonzales, G.R. No. 114742, 17 July 1997, 275 SCRA 604). The children, in turn, owe respect, reverence and obedience to their parents while under parental authority. No descendant, the law provides, shall be compelled
Arts. 216-218
429
to testify against parents and ascendants except when the testimony is indispensable in a crime against the descendant or by one parent against the other (Arts. 2211, 2nd par. and Art. 215, Family Code). In Sabrina Bondagjy vs. Fouzi Ali Bondagjy (supra.), the Supreme Court has said that the Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent to have custody of her children following her divorce from her Muslim husband. What determines her capacity, observed the Court, is the standard laid down by the Family now that she is not a Muslim.
Chapter 2 Substitute and Special Parental Authority Art. 216. In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparents, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age; unless unfit or disqualified; and (3) The childs actual custodian, over twenty-one years of age, unless unfit or disqualified; Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a) Art. 217. In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of childrens homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) Art. 218. The school, its administrators, and teachers, or the individual, entity or institution engaged in
430
Arts. 216-219
child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omission of unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n)
There is in law and jurisprudence a recognition of the deep ties that bind parent and child. Parents are thus placed first in rank in matters of parental authority. Substitute parental authority may be exercised by the grandparents only in case the parents have died or are absent or declared unfit in proper proceedings for that purpose. Parental authority stands to include the right and duty to the custody of the child, excepting only, of course, what might otherwise be best for the childs welfare. In case of death, absence or unsuitability of the parents, or, in general, in their default or that of a judicially appointed guardian, substitute parental authority over the child is exercised in the following order: (1) The surviving grandparent; if several, the one designated by the court, taking into consideration the same factors in disputes over child custody between the parents;
Arts. 216-219
431
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The childs actual custodian over twenty-one years of age, unless unfit or disqualified (Art. 216, in relation to Arts. 213 and 215, Family Code). Parental authority over foundling, abandoned, neglected or abused children, as well as children who are similarly situated, is entrusted, in summary judicial proceedings, to heads of childrens homes, orphanages and similar institutions duly accredited by the proper government agency (Art. 217, Family Code). Special parental authority is exercised, and the responsibility therefor is assumed, by schools, administrators and teachers, or the individual, entity or institution engaged in child care while the minor child is under their supervision, instruction or custody, and in all authorized activities, whether inside or outside the premises of the school, entity or institution (St. Marys Academy vs. Carpitanos, G.R. No. 143363, 6 February 2002). In no case shall such persons exercising special parental authority inflict corporal punishment upon the child (Art. 233, Family Code). Those entrusted with this special parental authority and responsibility are held principally and solidarily liable for damages caused by acts or omission of the minor. The parents and judicial guardians or the persons exercising substitute parental authority thereover are subsidiarily liable. The liabilities herein discussed are not incurred if it is proved (by way of defense) that the persons so charged have exercised the proper diligence required under the circumstances. The provisions on and principles in quasi-delicts are applicable suppletorily (see Arts. 218 and 219, Family Code). Certain provisions of the Civil Code on quasi-delicts that may be pertinent include Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
432
Arts. 216-219
omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim.
Arts. 216-219
433
Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. xxx xxx xxx Art. 2193. The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same. Art. 2194. The responsibility of two or more persons who are liable for a quasi-delict is solidary. (n) The liability of a person exercising parental authority for the fault or negligence of the child subject to such authority is premised on the formers own presumed failure to exercise due diligence in discharging his responsibility of control and supervision. His vicarious liability is thus primary and direct, defensible only if he can show that there is, in fact, no fault or negligence on his part. Construing paragraph (6) of Article 2180 of the Civil Code, the Supreme Court, in Palisoc vs. Brillantes (41 SCRA 548), held that the liability of teachers or heads of establishments of arts and trade covers damages caused by their pupils and students or apprentices so long as they remain in their protective and supervisory custody, including recess time, and they need not be living and boarding in the school. On the question as to whether the law contemplated to include academic educational institutions, the same Court, in Exconde vs. Capuno (101 Phil. 843), answered in the negative, although the decision of the majority (four against three justices) in the Palisoc case (involving a school arts and trades) carried a footnote expressing agreement with Justice J.B.L. Reyes in his dissenting opinion in the Exconde case. Article 218, in relation to Article 219, of the Family Code, has adopted
434
Arts. 216-219
this dissenting view. In Pasco vs. Court of First Instance of Bulacan, Branch V (160 SCRA 784), by a majority vote of three justices, against the two justices who dissented, the Supreme Court ruled that Article 2180 refers only to teachers and heads of establishment of arts and trades and not to the school or the institution itself. In St. Marys Academy vs. Carpitanos (G.R. No. 143363, 6 February 2002), the Supreme Court absolved the petitioner school of any liability for damages arising from the vehicular accident that resulted in the death of one of its students who had joined the schools enrollment drive after it was shown that the immediate cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle. In Amadora vs. Court of Appeals (160 SCRA 315), decided by the Supreme Court en banc, the following summation was made: 1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics report for what should be important was his being there for a legitimate purpose. Even the mere savoring of the company of his friends in the premises of the school was a legitimate purpose that brought him in the custody of the school authorities. 2. The rector, the high school principal and the dean of boys could not be held liable because none of them was the teacher-in-charge, and each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties failed to disclose who the teacher-in-charge of the
Arts. 216-219
435
offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredos killer. 3. At any rate, assuming that the physics teacher was the teacher-in-charge, there was no showing that Dicon was negligent in enforcing discipline or that he had waived observance of the rules and regulations of the school or condoned their nonobservance. His absence when the tragedy happened should not be considered against him because he was not supposed or required to report to school on that day. And while it might be true that the offending student was still in the custody of the teacher-incharge even if the latter was physically absent when the tort was committed, it was not established that the incident was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents were able to prove that they had exercised due diligence, through the enforcement of the school regulations in maintaining that discipline. 4. In the absence of a teacher-in-charge, it would probably be the dean of boys who should be held liable, especially in view of the unrefuted evidence that he earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action on reporting the matter to higher authorities. While this was clearly negligence on his part, for which he would deserve sanction from the school, it could not, however, necessarily link him to the shooting of Amadora as it was not shown that the confiscated and returned pistol was the gun that killed Amadora. 5. Finally, the Colegio de San Jose-Recoletos could not be held directly liable under the article because only the teacher or the head of the school of
436
Art. 220
arts and trades might be made responsible for the damage caused by the student or apprentice. Neither could it be held to answer for the tort committed by any of the other private respondents for none of them was found to have been charged with the custody of the offending student or was remiss in the discharge of his duties in connection with such custody. In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Daffon on Alfredo Amadora that resulted in the latters death x x x. Under Article 218 and Article 219 of the Family Code, educational institutions, as well as those engaged in child care, are now expressly made principally and solidarily liable with administrators and teachers but the provisions still allow the defense of due diligence on the part of said persons exercising special parental authority. The parents and persons exercising substitute parental authority over the child are subsidiarily liable but they, too, may raise the defense of due diligence.
Chapter 3 Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-disci-
Arts. 221-223
437
pline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties and citizenship; (4) To enhance, protect, preserve and maintain their physical and mental health at all times; (5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (6) To represent them in all matters affecting their interests; (7) To demand from them respect and obedience; (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. (316a) Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180[2]a and [4]a) Art. 222. The court may appoint a guardian of the childs property, or a guardian ad litem when the best interests of the child so require. (317) Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the
438
Arts. 220-224
court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a) Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in childrens homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the case of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (319a)
The enumeration of the rights and duties that appertain to parental authority under Article 220 (supra.) of the Family Code are not exclusive; neither are they intended to unduly restrict the means by which the basic responsibility of parenthood entails in the good upbringing of children where potestative and individual judgment may at times be called for. Where problems arise that may work to the adverse interest of the child, the courts, upon petition, may be asked to provide judicial relief, such as for an appointment of a guardian, or for ordering disciplinary measure over the child, including his possible commitment in an institution engaged in child care, or for an order, in turn, suspending or depriving parental authority under the conditions set by law (see Arts. 222-224, Family Code). The civil liability of persons exercising parental authority for the harm done by children is primary and direct based on a presumed failure on their part to exercise due diligence in properly discharging their responsibility of control and supervision. Proof of due diligence in the exercise of parental authority is thus a defense against that liability. The parents are civilly liable for the torts of the child as long as the child is below 21 years old and is
Art. 225
439
living with the parents (Tamargo vs. CA, 209 SCRA 948; Libi vs. IAC, 214 SCRA 17). Under paragraph (1) of Article 2180 of the Civil Code, the liability of parents covers damages caused by the minor children who live in their company. In Elcano vs. Hill (77 SCRA 98), the Supreme Court held liable a father for a quasi-delict committed by his emancipated (by marriage) minor son since the latter was still living with and getting subsistence from the father, but the child being already emancipated, that liability was ruled to be merely subsidiary. It may be noted, however, that the accountability of parents for the culpable act or negligence of their children is predicated on the formers responsibility under a relationship of patria potestas (Article 221 of the Family Code). Republic Act No. 6809, reducing from 21 years to 18 years the age of majority, has nonetheless provided that such change shall not be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 (supra.) of the Civil Code.
Chapter 4 Effect of Parental Authority Upon the Property of the Children Art. 225. The father or, in his absence or incapacity, the mother, shall be the legal guardian of the property of the unemancipated child without the necessity of a court appointment. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child
440
Arts. 225-227
resides, or if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried in which case the ordinary rules on guardianship shall apply. (320a) Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latters support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the childs property shall be limited primarily to the childs support and secondarily to the collective daily needs of the family. (321a, 323a) Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the childs legitime. (322a)
The joint parental authority of the father and the mother over the property of their common minor children does not require a court appointment but where said property has a market value or an annual income in excess of P50,000, a bond in an amount equivalent to not less than ten percent of such value or income, judicially
Art. 228
441
approved in summary special proceedings, must be furnished by the parent concerned. Where the child is under substitute parental authority or the guardian is a stranger, or where the parent has remarried, the ordinary rules on guardianship would instead apply. Adventicios Property acquired by the minor child through work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively for his support and education, unless the title or transfer provides otherwise. The fruits and income derived from such property shall be used primarily for his support and secondarily for the collective daily needs of the family. The Civil Code provision allowing the parents to enjoy usufructuary rights over the property (Art. 321, Civil Code) has been removed by the Family Code. Profectios Under Article 324 of the Civil Code, the income that a minor child may acquire using the capital or property of the parents belong in ownership and in usufruct to the latter but if the parents should expressly grant the child all or part thereof, the same is not charged to his legitime. Under the Family Code, the child, unless he is granted the full proceeds, is to be given a reasonable monthly allowance equivalent to an amount not less than that which the owner would have paid had the management or administration of the property been given instead to a stranger. This, too, is not to be charged to his legitime. (Art. 227, Family Code).
Chapter 5 Suspension or Termination of Parental Authority Art. 228. Parental authority terminates permanently: (1) (2) Upon the death of the parents; Upon the death of the child; or
442
Arts. 229-231
(3)
Upon emancipation of the child. (327a)
Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) (2) Upon adoption of the child; Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a) Art. 231. The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same: (1) cruelty; Treats the child with excessive harshness or
(2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances.
Arts. 228-233
443
The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (332a) Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n) Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher or individual engaged in child care and exercising special parental authority, inflict corporal punishment upon the child. (n)
A child is permanently freed from parental authority upon a valid emancipation (Art. 228 and Art. 236, Family Code). A person exercising parental authority may lose that authority, besides by the childs reaching the age of majority or death, by judicial order terminating or suspending such a persons parental authority under the respective provisions of Article 229 and Article 230 of the Family Code. When parental authority terminates by adoption or by the appointment of a general guardian, the adopter or the guardian, as the case may be, assumes the parental authority. In other cases, the persons exercising substitute parental authority take over that authority unless or until a guardian or a guardian ad litem is appointed by the court. When parental authority is suspended upon a parents being sentenced for a crime that carries with it the penalty of civil interdiction, parental authority is reinstated upon service of the penalty or his pardon or amnesty. In either case of termination or suspension, parental authority may re-vest in proper cases to the person who loses it except when such person has subjected the child or allowed the latter to be subjected, to sexual abuse (Art. 232, Family Code).
444
TITLE X. EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By marriage of the minor; or
(2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a) Art. 235. The provisions governing emancipation by recorded agreement shall also apply to an orphaned minor and the person exercising parental authority but the agreement must be approved by the court before it is recorded. (404a, 405a, 406a) Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (399a) Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n)
Under Article 234 of the Family Code, a person is emancipated at the very moment following: (a) the stroke of 00:00 HOURS on the very first day he starts his 21st
444
Arts. 234-237
PERSONS Title X. Emancipation and Age of Majority
445
year from birth, (b) his marriage, (c) the recording of the public instrument containing the agreement executed by the parent exercising parental authority and the minor at least eighteen years of age, and (d) the recording of a judicially-approved agreement between the person exercising parental authority and an orphaned minor (also of at least eighteen years of age). The emancipation of the child is final and permanently extinguishes parental authority, except when the marriage or the agreements, referred to in items (b), (c) and (d) above, are annulled or declared a nullity in which cases parental authority is revived but shall not affect acts or transactions that may have taken place prior to the recording of the final judgment in the Civil Registrar (see Art. 234, 235 and 237, Family Code). Emancipation qualifies and holds responsible the child for all acts of civil life (Art. 236, Family Code), modifying Article 399 of the Civil Code which required an emancipated minor to still obtain parental consent in borrowing money or alienating or encumbering real property. The Family Code has also eliminated Article 403 of the Civil Code which provided that a daughter below twenty years of age could not leave the parental home, without the consent of the father or mother in whose company she lived, except to become a wife or when the parent would have contracted a subsequent marriage. The inclusion of the phrase or declaration of nullity of marriage appears to suggest that emancipation takes place in marriage even if the contract is void. A void contract is inexistent and without legal consequence ab initio except in those cases when the law itself explicitly provides otherwise such as, for instance, Article 40 and Article 54 of the Family Code (supra.). It is believed, therefore, that a minor is emancipated by marriage only when the contract is valid or voidable but not when it is void. The annulment of the marriage revives parental authority; the declaration of nullity confirms that such parental authority has never been lost.
446
Arts. 234-237
Title X, comprising Article 234 to Article 237, inclusive, of the Family Code, however, has been superseded by Republic Act No. 6809, entitled, AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES, the pertinent provisions of which read: SECTION 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows: ART. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years. SEC. 2. Articles 235 and 237 of the same Code are hereby repealed. SEC. 3. Articles 236 of the same Code is also hereby amended to read as follows: ART. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. Contracting marriage shall require parental consent until the age of twenty-one. Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. SEC. 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance poli-
Arts. 234-237
PERSONS Title X. Emancipation and Age of Majority
447
cies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. SEC. 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. As it now stands, emancipation takes place only by the attainment of the age of majority of eighteen years, thereby terminating parental authority and qualifying the person, as well as making him responsible, for all acts of civil life, save in the following cases: (a) Exceptions established by laws in special cases; (b) Parental consent to the marriage contracted by a person below twenty-one years of age; and (c) The duty and responsibility of parents and guardians under the provisions of Article 2180 (particularly second and third paragraphs) of the Civil Code. The age of majority of a person is now eighteen years from which there is no exception. The exclusionary clauses in the law (Art. 236, Family Code, as amended by R.A. 6809) merely relate to, and are modificatory of, the persons qualifications and responsibilities for all acts of civil life. Hence, the phrase save the exceptions established by existing laws in special cases found in the amendatory provisions should be understood as referring to those instances where circumstances, other than age of majority per se, may affect capacity to act. To illustrate, a person, before attaining the age of emancipation, may already be allowed to act with civil effects in certain cases (such as minor child maintaining a savings account with a banking institution) or, despite having attained such age, may yet be denied full capacity to act (such as by reason of incapacity). So also, while he may marry, he would still need parental consent if he does so before reaching the age of twenty-one years. Between those ages, the parents neither are completely absolved from possi-
448
Arts. 234-237
ble liability under Article 2180 of the Civil Code. These cases are not irreconcilably opposed to a persons having, or not having, attained the age of emancipation. The amendatory law apparently has retroactive effect, following the rule expressed in Article 256 of the Family Code, except that in respect to the instruments referred to in Section 4 of Republic Act 6809, any favorable reference to the minor shall not retroact to their prejudice.
449
TITLE XI. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1 Scope of Application Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner, without regard to technical rules. (n)
Unlike the Civil Code where basically there was a delineation of authority and responsibility that it vested and reposed on each of the spouses, the Family Code, upon the other hand, in an attempt to give the greatest value to the Constitutional mandate of equality between man and woman, generally now provides for joint actions and decisions on matters affecting them, their common property, and their family. Serious disagreements between the spouses on such matters can not, however, be discounted, and delays in their final resolutions may affect quite adversely the interest of the family. The Family Code, to properly address the problem, has prescribed the instances, such as the separation in fact of the spouses and incidents involving parental authority, and formulated the appropriate rules when the spouses can invoke summary court proceedings in settling such disputes without regard to the usual technical rules therefor. The provisions on Summary Judicial Proceedings apply to cases arising under articles 41, 51, 69, 73, 96, 124, 217, 223, 225, 235 and, as well as in relation to, articles 239 and 249 of the Family Code (see infra.).
449
450
Arts. 239-243
Chapter 2 Separation in Fact Between Husband and Wife Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n) Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n) Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the Regional Trial Court or its equivalent, sitting in the place where either of the spouses resides. (n) Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n) Art. 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conference and hearings. (n)
Arts. 239-248 PERSONS Title XI. Summary Judicial Proceedings in the Family Law
451
Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his or her failure to appear, and shall require such appearance, if possible. (n) Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n) Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n) Art. 247. The judgment of the court shall be immediately final and executory. (n) Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)
Briefly, the summary procedure for seeking judicial relief under the Family Code, in appropriate cases, include (1) The filing of a verified petition with the proper court authorized to hear family cases, if one exists, or in the Regional Trial Court or its equivalent, sitting in the place where either of the spouses resides. The petition shall: (a) recite the essential facts upon which the cause of action is based, (b) attach all deeds or documents that may be pertinent thereto, (c) state the reasons therefor, and (d) specify the relief sought; (2) The notice to the other spouse (at last known address) by the court, upon the filing of the petition, or-
452
Art. 249
dering said spouse to show cause why the petition should not be granted on or before the date set in the notice for the initial conference (the notice, which shall attach a copy of the petition, is enough to authorize the court to exercise jurisdiction over the case); (3) A preliminary conference which shall be conducted personally by the judge with the parties, initially without the assistance of their respective counsel and thereafter, if the court deems it useful, with such legal assistance; (4) A summary hearing, if the matter is not resolved at the preliminary conference level, where the court may receive affidavits and documentary evidence or, at the sound discretion of the court, oral testimonies of such witnesses on specific matters as the court may direct; and (5) The judgment which shall immediately be final and executory. In cases where the other spouse does not appear, the court shall inquire into the reasons therefor and take measures to require that appearance. If, despite such steps, the spouse fails to take part in the proceedings, the court may conduct the case ex parte and render judgment as the facts and circumstances so warrant but shall endeavor to protect the interest of the non-appearing spouse. The provision of Article 247 of the Family Code, to the effect that the judgment of the court shall be immediately final and executory, would not, however, deprive a party from questioning the same such as by, but not necessarily limited to, certiorari either by way of appeal or by special civil action as the law or the rules of procedure may provide (see Art. VIII, Sec. 5, Constitution).
Chapter 3 Incidents Involving Parental Authority Art. 249. Petitions filed under Articles 223, 225 and 239 of this Code involving parental authority shall be verified. (n)
Arts. 249-253 PERSONS Title XI. Summary Judicial Proceedings in the Family Law
453
Art. 250. Such petitions shall be filed in the proper court of the place where the child resides. (n) Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)
The summary procedure under Chapter 2 (supra.) likewise applies to incidents involving parental authority such as in petitions for disciplinary measures over the child (Art. 223, Family Code), and for approval of bonds in legal guardianship by a parent where the market value of the childs property or its annual income exceeds P50,000 (Art. 225, Family Code). In the above cases, the corresponding petition shall be filed with the proper court where the child resides, whereupon, the court shall notify the person or entity exercising parental authority over the child.
Chapter 4 Other Matters Subject to Summary Proceedings Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (n)
In resum, the cases when summary judicial proceedings govern include the following petitions 1. For the declaration of presumptive death of an absentee spouse for the purpose of allowing the spouse present to contract a subsequent marriage (Art. 41, Family Code). 2. For the approval of a partition agreement for the delivery of the presumptive legitimes of common chil-
454
Art. 253
dren following the annulment or declaration of nullity of the marriage of the parents (Art. 51, Family Code). 3. To resolve a dispute in fixing the family domicile or to exempt a spouse from living with the other for valid or justifiable grounds (Art. 69, Family Code). 4. To resolve a disagreement between spouses when one objects to the others exercise of profession, occupation, business or activity (Art. 73, Family Code). 5. To resolve a disagreement between spouses in the administration and enjoyment of community property or conjugal partnership property or to approve the disposition or encumbrance of such property by one spouse where the other is incapacitated or unable to participate in the administration thereof (Art. 96, and Art. 124, Family Code). 6. To entrust parental authority to heads of children homes, orphanages and similar institutions over foundlings, abandoned, neglected or abused children and other children similarly situated (Art. 217, Family Code). 7. For an order directing disciplinary measures over the child (Art. 223, Family Code). 8. To resolve a disagreement between the spouses on their exercise of legal guardianship over the property of a common minor child and/or for approval of bonds by a parent where the market value of the childs property or its annual income exceeds P50,000 (Art. 225, Family Code). 9. For approval in the emancipation by agreement of an orphaned minor (Art. 235, Family Code, but no longer allowed under Republic Act 6809). 10. For the approval of a transaction (normally requiring the consent of both spouses) by one spouse where the husband and wife are separated in fact or one has abandoned the other (Art. 239, Family Code).
Art. 253
PERSONS Title XI. Summary Judicial Proceedings in the Family Law
455
11. For judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family (Art. 248, Family Code). In the foregoing cases, claims for damages, except for the costs of the proceedings, by one spouse against the other may be litigated only in a separate action (Art. 240, Family Code).
456
TITLE XII. FINAL PROVISIONS

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of the Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations, rules and regulations or parts thereof, inconsistent herewith are hereby repealed. (n) Art. 255. If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid. (n) Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (n) Art. 257. This Code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President. Publication shall likewise be made in the Official Gazette. (n)
It would seem that the Family Code has repealed Titles III-IX, XI and XV, Book I, of the Civil Code (Republic Act No. 386), as well as articles 17-19 and 27-42 of the Child and Youth Welfare Code (Presidential Decree No. 603), as amended. The clause inconsistent herewith in Article 254 of the Family Code appears to merely refer to all other laws, decrees, executive orders, proclamations,
456
Arts. 254-257
PERSONS Title XII. Final Provisions
457
rules and regulations, or parts thereof and not to those specific provisions (of the Civil Code and the Child and Youth Welfare Code) particularly cited by the Family Code. The Family Code was signed into law on 06 July 1987 and took effect on 03 August 1988, exactly one year (1988 being a leap year) or three hundred sixty-five days (see People vs. Ramos, 83 SCRA 1; Art. 13, Civil Code) after the completion of its publication conformably with Article 257 thereof. The publication of the Family Code in Manila Chronicle, a newspaper of general circulation, was completed on August 4, 1987 (Memorandum Circular No. 85, Clarifying the Effectivity Date of the Family Code of the Philippines issued by the Office of President on November 7, 1988). The Code has retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws (Art. 256, Family Code). Accordingly, the new provisions on proof of filiation can apply to children born prior to the effectivity of the Family Code (Castro vs. Court of Appeals, 173 SCRA 656; Uyguangco vs. Court of Appeals, 178 SCRA 684). A vested right is one that is already established or fixed and free from further contingency, uncertainty or controversy (see Luque vs. Villegas, 30 SCRA 417). A vested right is absolute, complete and unconditional, to the exercise of which no obstacle exists (Reyes vs. Commission on Audit, 105 SCAD 290, 305 SCRA 512, cited in Bernabe vs. Alejo, G.R. No. 140500, 21 January 2002). It includes not only legal or equitable title to the enforcement of a demand, but also an exemption from a new obligation created after the right has vested (Republic vs. Miller, 105 SCAD 809, 306 SCRA 183). Rights that have vested lawfully (see Art. 256, Family Code, in relation to Art. 2254, Civil Code) when the Family Code took effect are not prejudiced by the changes it has introduced a consequence of the constitutional guaranty of due proc-
458
Arts. 254-257
ess but where no impairment results, the new provisions can be given retroactive effect. The law applicable to successional rights to the estate of a deceased person is that which governs at the time of his death (see Balais vs. Balais, 159 SCRA 47; Montilla vs. Montilla, 2 SCRA 695). No legal impediment can result in the retroactivity of adjective provisions of the Code (see Cabauatan vs. Court of First Instance of Isabela, 51 SCRA 171). There are other provisions of the Family Code specifically dealing on its retroactive governance. Thus, Article 39 implicitly allows, within the 10-year prescriptive period, an action to declare null and void on the ground of psychological incapacity a marriage celebrated prior to the effectivity of the Family Code. Without this provision, it would be doubtful to assume, despite Article 256 of the Family Code providing for its retroactivity, that the law had intended to hold as void any marriage validly contracted under the Civil Code regime. Hence, by way of illustration, marriages contracted prior to 03 August 1988 between parents-in-law and children-in-law (now prohibited by the Family Code) must still be considered valid. Article 105 mandates the application of the provisions of the Family Code on conjugal partnership of gains to those already established between spouses before the said codes effectivity. The administration, therefore, of common property no longer lies as a rule alone with the husband but would now be exercised jointly by the spouses. Unlike Article 166 of the Civil Code which excluded real property acquired before the effectivity thereof from the requirement of the wifes consent in the alienation or encumbrance of such property by the husband, the Family Code, however, did not provide for any similar exclusionary clause. Article 162 of the Family Code states that its pertinent provisions on the family home also govern existing family residences. Conformably with Article 256 of the same Code, this retroactive effect may not impair or prejudice vested or acquired rights.
Arts. 254-257
PERSONS Title XII. Final Provisions
459
It would be interesting to watch further developments in our jurisprudence on other areas affected by the Family Code. For instance, would the grounds for annulment of marriages and for legal separation apply to marriages contracted prior to the effectivity of the Family Code? There would be little doubts but to allow such grounds if they still persist (in annulment) or they arise (in legal separation) after the Code had taken effect, for such is the essence of retroactivity. One might expect, to be sure, a possible divergence of views on the applicability of those grounds had they arisen before the effectivity of the Family Code, but did not persist thereafter. To illustrate, would sexual infidelity (not in such degree as to constitute concubinage) by the husband committed prior to the effectivity of the Family Code, but who since such effectivity has remained faithful to his spouse, be a ground for a petition for legal separation by the wife? It is submitted that the retroactive effect of the Family Code does not go so far back as to govern a situation occurring before its effectivity and which has theretofore been an uncontroverted matter or that which should aptly be described as fait accompli. Thus, also, the continuing full validity of a marriage entered into between a parent-inlaw and a son-in-law prior to the effectivity of the Family Code cannot even now be seriously doubted. It may be additionally noted that the Family Code has neither provided for nor adopted the transitional provisions of the Civil Code except in the determination of vested or acquired rights under said Code or other laws.
460
CIVIL LAW
461
APPENDICES
462
CIVIL LAW
463
APPENDIX A
REPUBLIC ACT NO. 8171
AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL-BORN FILIPINOS. SECTION 1. Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is not a: (1) Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; (2) Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; (3) (4) diseases. Person convicted of crimes involving moral turpitude; or Person suffering from mental alienation or incurable contagious
SEC. 2. Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. SEC. 3. All laws, decrees, orders, rules and regulations, or parts thereof inconsistent with this Act are hereby repealed or amended accordingly. SEC. 4. This Act shall take effect thirty (30) days after its publication in a newspaper of general circulation. Approved, lapsed into law on October 23, 1995, without the signature of the President, in accordance with Article VI, Section 27(1) of the Constitution.
463
464
CIVIL LAW
APPENDIX B
AN ACT AUTHORIZING THE CITY OF MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Sec. 2. Definition of Terms. As used in this Act, the following terms shall mean: (1) City or municipal civil registrar refers to the head of the local civil registry office of the city or municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordance with the provisions of existing laws. (2) Petitioner refers to a natural person filing the petition and who has direct and personal interest in the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil register. (3) Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided,
464
Secs. 3-4
APPENDIX B Republic Act No. 9048
465
however, That no correction must involve the change of nationality, age, status, or sex of the petitioner. (4) Civil register refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil RegistrarGeneral. (5) Civil Registrar General refers to the administrator of the National Statistics Office which is the agency mandated to carry out and administer the provision of laws on civil registration. (6) First Name refers to a name or a nickname given to a person which may consist of one or more names in addition to the middle and last names. Sec. 3. Who May File the Petition and Where. Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. All petitions for the correction of clerical or typographical errors and/or change of first names or nicknames may be for only once. Sec. 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nicknames in the community; or
466
CIVIL LAW
Secs. 5-7
(3)
The change will avoid confusion.
Sec. 5. Form and Contents of the Petition. The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) Other document which the petitioner or the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition. In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and the third copy to the petitioner. Sec. 6. Duties of the City or Municipal Civil Registrar or the Consul General. The city or municipal civil registrar or the consul general to whom the petition is presented shall examine the petition and its supporting documents. He shall post the petition in a conspicuous place provided for that purpose for ten (10) consecutive days after he finds the petition and its supporting documents sufficient in form and substance. The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision not later than five (5) working days after the completion of the posting and/or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within five (5) working days from the date of the decision. Sec. 7. Duties and Powers of the Civil Registrar General. The civil registrar general shall within ten (10) working days from receipt of the
Secs. 8-10
APPENDIX B Republic Act No. 9048
467
decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds: (1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or (3) The basis used in changing the first name or nickname of a person does not fall under Section 4. The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within the period prescribed herein, such decision shall become final and executory. Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. Sec. 8. Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee. Sec. 9. Penalty Clause. A person who violates any of the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of not less than Ten thousand pesos (P10,000.00) but not more than One hundred thousand pesos (P100,000.00), or both at the discretion of the court. In addition, if the offender is a government official or employee he shall suffer the penalties provided under civil service laws, rules, and regulations. Sec. 10. Implementing Rules and Regulations. The civil registrar general shall, in consultation with the Department of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator, the University of the Philippines Law Center and the Philippine Association of Civil Registrars, issue the necessary rules and regulations for the effective implementation of this Act not later than three (3) months from the effectivity of this law.
468
CIVIL LAW
Secs. 11-14
Sec. 11. Retroactivity Clause. This Act shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code and other laws. Sec. 12. Separability Clause. If any portion or provision of this Act is declared void or unconstitutional, the remaining portions or provisions thereof shall not be affected by such declaration. Sec. 13. Repealing Clause. All laws, decrees, orders, rules and regulations, other issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Sec. 14. Effectivity Clause. This Act shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation.
469
APPENDIX C
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES. ARTICLE I GENERAL PROVISIONS SECTION 1. Short Title. This Act shall be known as the Domestic Adoption Act of 1998. SEC. 2. Declaration of Policies. (a) It is hereby declared the policy of the State to ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the childs extended family is available shall adoption by an unrelated person be considered. (b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child. UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. Toward this end, the State shall provide alternative protection and assistance through foster care or adoption for every child who is neglected, orphaned, or abandoned; (c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her parental authority over his/her child;
469
470
CIVIL LAW
Sec. 3
(ii) Prevent the child from unnecessary separation from his/ her biological parent(s); (iii) Protect adoptive parent(s) from attempts to disturb his/ her parental authority and custody over his/her adopted child. Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his/her custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child; (iv) Conduct public information and educational campaigns to promote a positive environment for adoption; (v) Ensure that sufficient capacity exists within government and private sector agencies to handle adoption inquiries, process domestic adoption applications, and offer adoption-related services including, but not limited to, parent preparation and post-adoption education and counseling; and (vi) Encourage domestic adoption so as to preserve the childs identity and culture in his/her native land, and only when this is not available shall inter-country adoption be considered as a last resort. SEC. 3. Definition of Terms. For purposes of this Act, the following terms shall be defined as: (a) Child is a person below eighteen (18) years of age.
(b) A child legally available for adoption refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption. (c) Voluntarily committed child is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. (d) Involuntarily committed child is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. (e) Abandoned child refers to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) continuous months and has been judicially declared as such. (f) Supervised trial custody is a period of time within which a
Sec. 4
APPENDIX C Republic Act No. 8552
471
social worker oversees the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their filial relationship. (g) Department refers to the Department of Social Welfare and Development. (h) Child-placing agency is a duly licensed and accredited agency by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing the adoption home study. (i) Child-caring agency is a duly licensed and accredited agency by the Department that provides twenty-four (24) hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children. (j) Simulation of birth is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/ her true identity and status. ARTICLE II PRE-ADOPTION SERVICES SEC. 4. Counselling Services. The Department shall provide the services of licensed social workers to the following: (a) Biological Parent(s) Counseling shall be provided to the parent(s) before and after the birth of his/her child. No binding commitment to an adoption plan shall be permitted before the birth of his/her child. A period of six (6) months shall be allowed for the biological parent(s) to reconsider any decision to relinquish his/her child for adoption before the decision becomes irrevocable. Counseling and rehabilitation services shall also be offered to the biological parent(s) after he/she has relinquished his/her child for adoption. Steps shall be taken by the Department to ensure that no hurried decisions are made and all alternatives for the childs future and the implications of each alternative have been provided. (b) Prospective Adoptive Parent(s) Counseling sessions, adoption fora and seminars, among others, shall be provided to prospective adoptive parent(s) to resolve possible adoption issues and to prepare him/her for effective parenting. (c) Prospective Adoptee Counseling sessions shall be provided to ensure that he/she understands the nature and effects of adoption and is able to express his/her views on adoption in accordance with his/her age and level of maturity.
472
CIVIL LAW
Secs. 5-7
SEC. 5. Location of Unknown Parent(s). It shall be the duty of the Department or the child-placing or child-caring agency which has custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned. SEC. 6. Support Services. The Department shall develop a preadoption program which shall include, among others, the above-mentioned services. ARTICLE III ELIGIBILITY SEC. 7. Who May Adopt. The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year-difference between the age of the adopter and the adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/ daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
Secs. 8-9
473
(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities; Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/ daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. SEC. 8. Who May Be Adopted. The following may be adopted: (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or
(f) 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 said parent(s). SEC. 9. Whose Consent is Necessary to the Adoption. After being properly counseled and informed of his/her right to give or withhold his/ her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latters spouse, if any; and (e) The spouse, if any, of the person adopting or to be adopted.
474
CIVIL LAW
Secs. 10-12
ARTICLE IV PROCEDURE SEC. 10. Hurried Decisions. In all proceedings for adoption, the court shall require proof that the biological parent(s) has been properly counseled to prevent him/her from making hurried decisions caused by strain or anxiety to give up the child, and to sustain that all measures to strengthen the family have been exhausted and that any prolonged stay of the child in his/her home will be inimical to his/her welfare and interest. SEC. 11. Case Study. No petition for adoption shall be set for hearing unless a licensed social worker of the Department, the social service office of the local government unit, or any child-placing or childcaring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendations on the matter to the court hearing such petition. At the time of preparation of the adoptees case study, the concerned social worker shall confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered. The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of the child. The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department. SEC. 12. Supervised Trial Custody. No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s). The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7(b) (i) (ii) (iii). If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits
Secs. 13-17
475
to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s). SEC. 13. Degree of Adoption. If, after the publication of the order of hearing has been complied with, and no opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the adopter(s), trial custody report and evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known. SEC. 14. Civil Registry Record. An amended certificate of birth shall be issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname. The original certificate of birth shall be stamped cancelled with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. SEC. 15. Confidential Nature of Proceedings and Records. All hearings in adoption cases shall be confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used. ARTICLE V EFFECTS OF ADOPTION SEC. 16. Parental Authority. Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17 . Legitimacy . The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any
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CIVIL LAW
Secs. 18-21
kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. ARTICLE VI RESCISSION OF ADOPTION SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. SEC. 20. Effects of Rescission. If the petition is granted, the parental authority of the adoptees biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. All the foregoing effects of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven. ARTICLE VII VIOLATIONS AND PENALTIES SEC. 21. Violations and Penalties. (a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand
Sec. 21
477
pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts: (i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts; (ii) non-compliance with the procedures and safeguards provided by the law for adoption; or (iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation. (b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00). Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of the abovementioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification. Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents, and communications of adoption applications, cases, and processes shall suffer the penalty of imprisonment, ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00) at the discretion of the court. A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this Article, when committed by a syndicate or where it involves two (2) or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua. Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations. When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded from entry to the country.
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Secs. 22-26
Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer suspension until the resolution of the case. SEC. 22. Rectification of Simulated Births. A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further , That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department. ARTICLE VIII FINAL PROVISIONS SEC. 23. Adoption Resources and Referral Office. There shall be established an Adoption Resources and Referral Office under the Department with the following functions: (a) monitor the existence, number, and flow of children legally available for adoption and prospective adopter(s) so as to facilitate their matching; (b) maintain a nationwide information and educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d) generate resources to help child-caring and child-placing agencies and foster homes maintain viability; and (e) do policy research in collaboration with the Inter-country Adoption Board and other concerned agencies. The office shall be manned by adoption experts from the public and private sectors. SEC. 24. Implementing Rules and Regulations. Within six (6) months from the promulgation of this Act, the Department, with the Council for the Welfare of Children, the Office of Civil Registry General, the Department of Justice, Office of the Solicitor General, and two (2) private individuals representing child-placing and child-caring agencies shall formulate the necessary guidelines to make the provisions of this Act operative. SEC. 25. Appropriations. Such sum as may be necessary for the implementation of the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law and thereafter. SEC. 26. Repealing Clause. Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule,
Secs. 27-28
479
or regulation contrary to, or inconsistent with the provisions of this Act is hereby repealed, modified, or amended accordingly. SEC. 27. Separability Clause. If any provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain valid and subsisting. SEC. 28. Effectivity Clause. This Act shall take effect fifteen (15) days following its complete publication in any newspaper of general circulation or in the Official Gazette. Approved: February 25, 1998.
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APPENDIX D
AN ACT ESTABLISHING THE RULES TO GOVERN INTERCOUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES. ARTICLE I. General Provisions SECTION 1. Short Title. This Act shall be known as the InterCountry Adoption Act of 1995. SEC. 2. Declaration of Policy. It is hereby declared the policy of the State to provide every neglected and abandoned child with a family that will provide such child with love and care as well as opportunities for growth and development. Towards this end, efforts shall be exerted to place the child with an adoptive family in the Philippines. However, recognizing that inter-country adoption may be considered as allowing aliens, not presently allowed by law to adopt Filipino if such children cannot be adopted by qualified Filipino if such citizens or aliens, the State shall take measures to ensure that inter-country adoptions are allowed when the same shall prove beneficial to the childs best interests, and shall serve and protect his/her fundamental rights. SEC. 3. Definition of Terms. As used in this Act, the term: a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. b) Child means a person below fifteen (15) years of age unless sooner emancipated by law. c) Department refers to the Department of Social Welfare and Development of the Republic of the Philippines. d) Secretary refers to the Secretary of the Department of Social Welfare and Development. e) Authorized and accredited agency refers to the State welfare
480
Sec. 4
APPENDIX D Republic Act No. 8043
481
agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department. f) Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code. g) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship. h) Board refers to the Inter-Country Adoption Board. ARTICLE II. The Inter-Country Adoption Board SEC. 4. The Inter-Country Adoption Board. There is hereby created the Inter-Country Adoption Board, hereinafter referred to as the Board, to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for purposes of carrying out the provisions of this Act, in consultation and coordination with the Department, the different child-care and placement agencies, adoptive agencies as well as non-governmental organizations engaged in child-care and placement activities. As such, it shall: a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child; b) Collect, maintain, and preserve confidential information about the child and the adoptive parents; c) Monitor, follow up, and facilitate completion of adoption of the child through authorized and accredited agency; d) Prevent improper financial or other gain in connection with an adoption and deter improper practices contrary to this Act; e) Promote the development of adoption services including postlegal adoption; f) License and accredit child-caring/placement agencies and collaborate with them in the placement of Filipino children; g) Accredit and authorize foreign adoption agency in the placement of Filipino children in their own country; and h) Cancel the license to operate and blacklist the child-caring and placement agency or adoptive agency involved from the accreditation list of the Board upon a finding of violation of any provision under this Act.
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Secs. 5-6
SEC. 5. Composition of the Board. The Board shall be composed of the Secretary of the Department as ex officio Chairman, and six (6) other members to be appointed by the President for a nonrenewable term of six (6) years: Provided, That there shall be appointed one (1) psychiatrist or psychologist, two (2) lawyers who shall have at least the qualifications of a regional trial court judge, one (1) registered social worker and two (2) representatives from non-governmental organizations engaged in childcaring and placement activities. The members of the Board shall receive a per diem allowance of One thousand five hundred pesos (P1,500) for each meeting attended by them: Provided, further, That no compensation shall be paid for more than four (4) meetings a month. SEC. 6. Powers and Functions of the Board. The Board shall have the following powers and functions: a) to prescribe rules and regulations as it may deem reasonably necessary to carry out the provisions of this Act, after consultation and upon favorable recommendation of the different agencies concerned with child-caring, placement, and adoption; b) to set the guidelines for the convening of an Inter-Country Adoption Placement Committee which shall be under the direct supervision of the Board; c) to set the guidelines for the manner by which selection/ matching of prospective adoptive parents and adoptive child can be made; d) to determine a reasonable schedule of fees and charges to be exacted in connection with the application for adoption; e) to determine the form and contents of the application for intercountry adoption; f) to formulate and develop policies, programs and services that will protect the Filipino child from abuse, exploitation, trafficking and other adoption practice that is harmful, detrimental and prejudicial to the best interest of the child; g) to institute system and procedures to prevent improper financial gain in connection with adoption and deter improper practices which are contrary to this Act; h) to promote the development of adoption services, including post-legal adoption services; i) to accredit and authorize foreign private adoption agencies which have demonstrated professionalism, competence and have consistently pursued non-profit objectives to engage in the placement of Filipino children in their own country: Provided, That such foreign private agencies are duly authorized and accredited by their own government to conduct inter-country adoption: Provided, however, That the total number
Secs. 7-9
483
of authorized and accredited foreign private adoption agencies shall not exceed one hundred (100) a year; j) to take appropriate measures to ensure confidentiality of the records of the child, the natural parents and the adoptive parents at all times; k) to prepare, review or modify, and thereafter, recommend to the Department of Foreign Affairs, Memoranda of Agreement respecting inter-country adoption consistent with the implementation of this Act and its stated goals, entered into, between and among foreign governments, international organizations and recognized international non-governmental organizations; l) to assist other concerned agencies and the courts in the implementation of this Act, particularly as regards coordination with foreign persons, agencies and other entities involved in the process of adoption and the physical transfer of the child; and m) to perform such other functions on matters relating to intercountry adoptions as may be determined by the President. ARTICLE III. Procedure SEC. 7. Inter-Country Adoption as the Last Resort. The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years. SEC. 8. Who May be Adopted. Only a legally free child may be the subject of inter-country adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board: a) b) c) certificate d) e) f) Child study; Birth certificate/foundling certificate; Deed of voluntary commitment/decree of abandonment/death of parents; Medical evaluation/history; Psychological evaluation, as necessary; and Recent photo of the child.
SEC. 9. Who May Adopt . Any alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she:
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Sec. 10
a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; b) if married, his/her spouse must jointly file for the adoption; c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; d) e) has not been convicted of a crime involving moral turpitude; is eligible to adopt under his/her national law;
f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and i) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. SEC. 10. Where to File Application. An application to adopt a Filipino child shall be filed either with the Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, which application shall be in accordance with the requirements as set forth in the implementing rules and regulations to be promulgated by the Board. The application shall be supported by the following documents written and officially translated in English: a) b) Birth certificate of applicant(s); Marriage contract, if married, and divorce decree, if applicable;
c) Written consent of their biological or adopted children above ten (10) years of age, in the form of sworn statement; d) Physical, medical and psychological evaluation by a duly licensed physician and psychologist; e) Income tax returns or any document showing the financial capability of the applicant(s);
Secs. 11-14
485
f)
Police clearance of applicant(s);
g) Character reference from the local church/minister, the applicants employer and a member of the immediate community who have known the applicant(s) for at least five (5) years; and h) Recent postcard-size pictures of the applicant(s) and his immediate family. The Rules of Court shall apply in case of adoption by judicial proceedings. SEC. 11. Family Selection/Matching. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When the Board is ready to transmit the Placement Authority to the authorized and accredited inter-country adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch the child in the Philippines. SEC. 12. Pre-adoptive Placement Costs. The applicant(s) shall bear the following costs incidental to the placement of the child; a) The cost of bringing the child from the Philippines to the residence of the applicant(s) abroad, including all travel expenses within the Philippines and abroad; and b) The cost of passport, visa, medical examination and psychological evaluation required, and other related expenses. SEC. 13. Fees, Charges and Assessments. Fees, charges, and assessments collected by the Board in the exercise of its functions shall be used solely to process applications for inter-country adoption and to support the activities of the Board. SEC. 14. Supervision of Trial Custody. The governmental agency or the authorized and accredited agency in the country of the adoptive parents which filed the application for inter-country adoption shall be responsible for the trial custody and the care of the child. It shall also provide family counseling and other related services. The trial custody shall be for a period of six (6) months from the time of placement. Only after the lapse of the period of trial custody shall the decree of adoption be issued in the said country, a copy of which shall be sent to the Board to form part of the records of the child. During the trial custody, the adopting parent(s) shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy of the Board, a progress report of the childs adjustment. The progress report shall be taken into consideration in deciding whether or not to issue the decree of adoption.
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Secs. 15-16
The Department of Foreign Affairs shall set-up a system by which Filipino children sent abroad for trial custody are monitored and checked as reported by the authorized and accredited inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not been approved. SEC. 15. Executive Agreement. The Department of Foreign Affairs, upon representation of the Board, shall cause the preparation of Executive Agreements with countries of the foreign adoption agencies to ensure the legitimate concurrence of said countries in upholding the safeguards provided by this Act. ARTICLE IV. Penalties SEC. 16. Penalties. a) Any person who shall knowingly participate in the conduct of or carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred thousand pesos (P200,000), at the discretion of the court. For purposes of this Act, an adoption is illegal if it is effected in any manner contrary to the provisions of this Act or established State policies, its implementing rules and regulations, executive agreements, and other laws pertaining to adoption. Illegality may be presumed from the following acts: 1) consent for an adoption was acquired through, or attended by coercion, fraud, improper material inducement; 2) there is no authority from the Board to effect adoption; 3) the procedures and safeguards placed under the laws for adoption were not complied with; and 4) the child to be adopted is subjected to, or exposed to danger, abuse and exploitation. b) Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents and communications of adoption applications, cases and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or fine of not less than Five thousand pesos (P5,000), but not more than Ten thousand pesos (P10,000), at the discretion of the court. A penalty lower by two (2) degrees than that prescribed for the consummated felony under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this Article, when committed by a syndicate or where it involves two or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua.
Secs. 17-22
487
Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations. SEC. 17. Public Officers as Offenders. Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employer or functionary concerned shall automatically suffer suspension until the resolution of the case. ARTICLE V. Final Provisions SEC. 18. Implementing Rules and Regulations. The Inter-Country Adoption Board, in coordination with the Council for the Welfare of Children, the Department of Foreign Affairs, and the Department of Justice, after due consultation with agencies involved in child-care and placement, shall promulgate the necessary rules and regulations to implement the provisions of this Act within six (6) months after its effectivity. SEC. 19. Appropriations. The amount of Five million pesos (P5,000,000) is hereby appropriated from the proceeds of the Lotto for initial operations of the Board and subsequently the appropriations of the same shall be included in the General Appropriations Act for the year following its enactment. SEC. 20. Separability Clause. If any provision, or part hereof, is held invalid or unconstitutional, the remainder of the law or the provision not otherwise affected, shall remain valid and subsisting. SEC. 21. Repealing Clause. Any law, decree, executive order, administrative order or rules and regulations contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly. SEC. 22. Effectivity Clause. This Act shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation. (91 OG 32, Aug. 7, 1995.) Approved: June 7, 1995.
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APPENDIX E
MALACAANG MANILA PRESIDENTIAL DECREE NO. 1083
(The Code of Muslim Personal Laws of the Philippines, effective Feb. 4, 1977)
THE MUSLIM CODE

A DECREE TO ORDAIN AND PROMULGATE A CODE RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS, CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS ADMINISTRATION AND FOR OTHER PURPOSES. WHEREAS, pursuant to the spirit of the provision of the Constitution of the Philippines that, in order to promote the advancement and effective participation of the National Cultural Communities in the building of the New Society, the State shall consider their customs, traditions, beliefs and interests in the formulation and implementation of its policies; WHEREAS, Islamic law and its principles of equity and justice, to which the Filipino Muslim communities adhere, provide an essential basis for the fuller development of said communities in relation to the search for harmonious relations of all segments of the Filipino nation to enhance national unity; WHEREAS, the enforcement, with the full sanction of the State, of the legal system of the Filipino Muslims shall redound to the attainment of a more ordered life amongst them; WHEREAS, it is the intense desire of the New Society to strengthen all the ethnolinguistic communities in the Philippines within the context of their respective ways of life in order to bring about a cumulative result satisfying the requirements of national solidarity and social justice; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, by virtue of the powers vested in me by the
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Arts. 1-4
APPENDIX E Presidential Decree No. 1083
489
Constitution of the Philippines, do hereby ordain and promulgate the Code of Muslim Personal Laws of the Philippines as part of the law of the land and hereby decree:
BOOK ONE GENERAL PROVISIONS

TITLE I. TITLE AND PURPOSES OF CODE ARTICLE 1. Title. This decree shall be known as the Code of Muslim Personal Laws of the Philippines. ART. 2. Purposes of Code. Pursuant to Section 11 of the Article XV of the Constitution of the Philippines, which provides that the State shall consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of state policies, this Code: (a) Recognizes the legal system of the Muslims in the Philippines as part of the law of the land and seeks to make Islamic institutions more effective; (b) Codifies Muslim personal laws; and
(c) Provides for an effective administration and enforcement of Muslim personal laws among Muslims. TITLE II. CONSTRUCTION OF CODE AND DEFINITION OF TERMS ART. 3. Conflict of provisions. (1) In case of conflict between any provision of this Code and laws of general application, the former shall prevail. (2) Should the conflict be between any provision of this Code and special laws or laws of local application, the latter shall be liberally construed in order to carry out the former. (3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non-Muslim. ART. 4. Construction and interpretation. (1) In the construction and interpretation of this Code and other Muslim laws, the court shall take into consideration the primary sources of Muslim law. (2) Standard treaties and works on Muslim law and jurisprudence shall be given persuasive weight in the interpretation of Muslim law.
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Arts. 5-8
ART. 5. Proof of Muslim law and ada. Muslim law and ada not embodied in this Code shall be proven in evidence as a fact. No ada which is contrary to the Constitution of the Philippines, this Code, Muslim law, public order, public policy or public interest shall be given any legal effect. ART. 6. Conflict in Islamic schools of law. (1) Should there be any conflict among the orthodox (Sunni) Muslim schools of law (Madhahib), that which is in consonance with the Constitution of the Philippines, this Code, public order, public policy and public interest shall be given effect. (2) The Muslim school of law shall, for purposes of this Code, be the Hanafi, the Hanbali, the Maliki and the Safii. ART. 7. Definition of terms. Unless the context otherwise provides: (a) Agama Arbitration Council means a body composed of the Chairman and a representative of each of the parties to constitute a council to take all necessary steps for resolving conflicts between them. (b) Ada means customary law. (c) General Register means the General Register of marriages, divorces, revocation of divorces, conversions and such other deeds or instruments kept by the Register under this Code. (d) Ihram signifies the state of ritual consecration of a person while on pilgrimage to Mecca. (e) Madhhab (plural, Madhahib) means any of the four orthodox (Sunni) schools of Muslim law. (f) Month means a period of thirty days. (g) Muslim is a person who testifies to the oneness of God and the Prophethood of Muhammad and professes Islam. (h) Muslim Law (Sharia) refers to all the ordinances and regulations governing Muslims as found principally in the Quran and the Hadith. (i) Muslim Personal Law includes all laws relating to personal status, marriage and divorce, matrimonial and family relations, succession and inheritance, and property relations between spouses as provided for in this Code.
BOOK TWO PERSONS AND FAMILY RELATIONS

TITLE I. CIVIL PERSONALITY (SHAKSHIYAH MADANIYA) ART. 8. Legal capacity. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and
Arts. 9-13
491
is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. ART. 9. Restrictions on capacity. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, the condition of death-illness (marad-ulmaut), penalty, prodigality, absence, family relations, alienage, insolvency, and trusteeship. The consequences of these circumstances are governed by this Code and other Islamic laws and, in a suppletory manner, by other laws. ART. 10. Personality, how acquired. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born alive, however briefly, at the time it is completely delivered from the mothers womb. ART. 11. Extinction of personality. (1) Civil personality is extinguished by death. The effect of death upon the rights and obligations of a deceased person is determined by this Code, by contract, and by will. (2) After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead. ART. 12. Simultaneous death. If, as between two or more persons who are called to succeed each other, there is a doubt as to which of them died first, whoever alleges the death of one prior to the other shall prove the same; in the absence of such proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. However, the successional rights of their respective heirs shall not be affected. TITLE II. MARRIAGE AND DIVORCE Chapter One APPLICABILITY CLAUSE ART. 13. Application. (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. (3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of
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Arts. 14-17
contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and the property relations between husband and wife shall be governed by this Code and other applicable Muslim laws.
Chapter Two MARRIAGE (NIKAH) SECTION 1. Requisites of Marriage

ART. 14. Nature. Marriage is not only a civil contract but a social institution. Its nature, consequences and incidents are governed by this Code and the Sharia and not subject to stipulation, except that the marriage settlement may to a certain extent fix the property relations of the spouses. ART. 15. Essential requisites. No marriage contract shall be perfected unless the following essential requisites are complied with: (a) (b) Legal capacity of the contracting parties; Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (gabul) duly witnessed by at least two competent persons after the proper guardian in marriage (wali) has given his consent; and (d) Stipulation of customary dower (mahr) duly witnessed by two competent persons. ART. 16. Capacity to contract marriage. (1) Any Muslim male at least fifteeen years of age and any Muslim female of the age of puberty or upwards and not suffering from any impediment under the provisions of this Code may contract marriage. A female is presumed to have attained puberty upon reaching the age of fifteen. (2) However, the Sharia District Court may, upon petition of a proper wali, order the solemnization of the marriage of a female who though less than fifteen but not below twelve years of age, has attained puberty. (3) Marriage through a wali by a minor below the prescribed ages shall be regarded as betrothal and may be annulled upon the petition of either party within four years after attaining the age of puberty, provided no voluntary cohabitation has taken place and the wali who contracted the marriage was other than the father or paternal grandfather. ART. 17. Marriage ceremony. No particular form of marriage ceremony is required but the ijab and the gabul in marriage shall be declared publicly in the presence of the person solemnizing the marriage
Arts. 18-23
493
and two competent witnesses. This declaration shall be set forth in an instrument in triplicate, signed or marked by the contracting parties and said witnesses, and attested by the person solemnizing the marriage. One copy shall be given to the contracting parties and another sent to the Circuit Registrar by the solemnizing officer who shall keep the third. ART. 18. Authority to solemnize marriage. Marriage may be solemnized: (a) By the proper wali of the woman to be wedded;
(b) Upon authority of the proper wali, by any person who is competent under Muslim law to solemnize marriage; or (c) By the judge of the Sharia District of Sharia Circuit Court or any person designated by the judge, should the proper wali, refuse without justifiable reason, to authorize the solemnization. ART. 19. Place of solemnization. Marriage shall be solemnized publicly in any mosque, office of the Sharia judge, office of the District or Circuit Registrar, residence of the bride or her wali, or at any other suitable place agreed upon by the parties. ART. 20. Specification of dower. The amount or value of dower may be fixed by the contracting parties (mahr-musamma) before, during or after the celebration of the marriage. If the amount or the value thereof has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of the wife, be determined by the court according to the social standing of the parties. ART. 21. Payment of dower. Subject to the stipulation of the parties, the dower may be fully or partially paid before, during, or after the marriage. The property or estate of the husband shall be liable for the unpaid dower, or any part thereof. ART. 22. Breach of contract. Any person who has entered into a contract to marry but subsequently refuses without reasonable ground to marry the other party who is willing to perform the same shall pay the latter the expenses incurred for the preparation of the marriage and such damages as may be granted by the court. SECTION 2. Prohibited Marriages ART. 23. Bases of prohibition. No marriage may be contracted by parties within the prohibited degrees: (a) (b) (c) Of consanguinity; Of affinity; and Of fosterage.
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Arts. 24-29
ART. 24. Prohibition by consanguinity (tahrim-bin-nasab). No marriage shall be contracted between: (a) (b) and (c) Brothers or sisters and their descendants within the third civil degree. ART. 25. Prohibition by affinity (tahrim-bil-musahara). (1) No marriage shall be contracted between: (a) Any of the spouses and their respective affinal relatives in the ascending line and in the collateral line within the third degree; (b) Stepfather and stepdaughter when the marriage between the former and the mother of the latter has been consummated; (c) Stepmother and stepson when the marriage between the former and the father of the latter has been consummated; and (d) Stepson or stepdaughter and the widow, widower or divorcee of their respective ascendants. (2) The prohibition under this article applies even after the dissolution of the marriage creating the affinal relationship. ART. 26. Prohibition due to fosterage (tahrim-bir-radaa). (1) No person may validly contract marriage with any woman who breastfed him for at least five times within two years after his birth. (2) The prohibition on marriage by reason of consanguinity shall likewise apply to persons related by fosterage within the same degrees, subject to exceptions recognized by Muslim law. SECTION 3. Subsequent Marriages ART. 27. By a husband. Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases. ART. 28. By widow. No widow shall contract a subsequent marriage unless she has observed an idda of four months and ten days counted from the date of the death of her husband. If at that time the widow is pregnant, she may remarry within a reasonable time after delivery. In such case, she shall produce the corresponding death certificate. ART. 29. By divorce. (1) No woman shall contract a subsequent marriage unless she has observed an idda of three monthly courses Ascendants and descendants of any degree; Brothers and sisters, whether germane, consanguine or uterine;
Arts. 30-33
495
counted from the date of divorce. However, if she is pregnant at the time of the divorce, she may remarry only after delivery. (2) Should a repudiated woman and her husband reconcile during her idda, he shall have a better right to take her back without need of a new marriage contract. (3) Where it is indubitable that the marriage has not been consummated when the divorce was effected, no idda shall be required. ART. 30. Marriage after three talaq. (1) Where a wife has been thrice repudiated (talaq bain kubra) on three different occasions by her husband, he cannot remarry her unless she shall have married another person who divorces her after consummation of the intervening marriage and the expiration of the idda. (2) No solemnizing officer shall perform the subsequent marriage mentioned in the preceding paragraph unless he has ascertained that there was no collusion among the parties. SECTION 4. Batil and Fasid Marriages ART. 31. Batil marriages. The following marriages shall be void (batil) from the beginning: (a) Those contracted contrary to Articles 23, 24, 25 and 26;
(b) Those contracted in contravention of the prohibition against unlawful conjunction; and (c) Those contracted by parties one or both of whom have been found guilty of having killed the spouse of either of them. ART. 32. Fasid marriages. The following marriages shall be irregular (fasid) from their performance: (a) (b) Those contracted with a female observing idda; Those contracted contrary to Article 30;
(c) Those wherein the consent of either party is vitiated by violence, intimidation, fraud, deceit or misrepresentation; (d) Those contracted by a party in a condition of death-illness (marad-ul-maut) without the same being consummated; (e) (f) Those contracted by a party in a state of ihram; and Mixed marriages not allowed under Islamic law.
ART. 33. Validation of irregular marriages. (1) Irregular marriages may be made regular by a new marriage contract in the following cases: (a) Those referred to in Article 32(a), after the impediment has been removed;
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Arts. 34-36
(b) Those referred to in Article 32(b), upon compliance with the requirement of Article 30; (c) Those referred to in Article 32(c), after the causes vitiating consent have ceased; (d) recovers; Those referred to in Article 32(d), in case the party
(e) Those referred to in Article 32(e), when the party is no longer in a state of ihram; and (f) Those referred to in Article 32(f), after conversion to a faith that could have made the marriage valid. (2) The effects of the new marriage under the first paragraph shall retroact to the date of the celebration of the irregular marriage. SECTION 5. Rights and Obligations Between Spouses ART. 34. Mutual rights and obligations. (1) The husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support in accordance with this Code. (2) When one of the spouses neglects his or her duties to the conjugal union or brings danger, dishonor or material injury upon the other, the injured party may petition the court for relief. The court may counsel the offender to comply with his or her duties, and take such measures as may be proper. (3) The husband and the wife shall inherit from each other in accordance with this Code. (4) The husband and the wife shall have the right to divorce in accordance with this Code. ART. 35. Rights and obligations of the husband. The husband shall fix the residence of the family. The court may exempt the wife from living with her husband on any of the following grounds: (a) or (b) The conjugal dwelling is not in keeping with her social standing or is, for any reason, not safe for the members of the family or her property. ART. 36. Rights and obligations of the wife. (1) The wife shall dutifully manage the affairs of the household. She may purchase things necessary for the maintenance of the family, and the husband shall be bound to reimburse the expenses, if he has not delivered the proper sum. Her dower is not satisfied in accordance with the stipulations;
Arts. 37-41
497
(2) The wife cannot, without the husbands consent, acquire any property by gratuitous title, except from her relatives who are within the prohibited degrees in marriage. (3) The wife may, with her husbands consent, exercise any profession or occupation or engage in lawful business which is in keeping with Islamic modesty and virtue. However, if the husband refuses to give his consent on the ground that his income is sufficient for the family according to its social standing or his opposition is based on serious and valid grounds, the matter shall be referred to the Agama Arbitration Council. (4) mahr. The wife shall have the right to demand the satisfaction of her
(5) Unless otherwise stipulated in the marriage settlements, the wife retains ownership and administration of her exclusive property. (6) The wife shall be entitled to an equal and just treatment by the husband. SECTION 6. Property Relations Between Spouses ART. 37. How governed. The property relations between husband and wife shall be governed in the following order: (a) (b) (c) By contract before or at the time of the celebration of marriage; By the provisions of this Code; and By custom.
ART. 38. Regime of property regulations. The property relations between the spouses, in the absence of any stipulation to the contrary in the marriage settlements or any other contract, shall be governed by the regime of complete separation of property in accordance with this Code and, in a suppletory manner, by the general principles of Islamic law and the Civil Code of the Philippines. ART. 39. Stipulation in the marriage settlements. Every stipulation in the marriage settlements or contract referred to in the preceding article shall be void and without effect whatsoever, should the marriage not take place. However, stipulations that do not depend upon the contract of marriage shall be valid. ART. 40. Ante-nuptial property. The wife shall not lose ownership and administration of all properties brought by her to the marriage in the absence of any written agreement to the contrary, and she may dispose of the same by deed or otherwise even without the consent of her husband. ART. 41. Exclusive property of each spouse. The following shall be the exclusive property of either spouse:
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Arts. 42-45
(a) wife;
Properties brought to the marriage by the husband or the
(b) All income derived by either spouse from any employment, occupation or trade; (c) Any money or property acquired by either spouse during marriage by lucrative title; (d) The dower (mahr) of the wife and nuptial gifts to each spouse;
(e) Properties acquired by right of redemption, purchase or exchange of the exclusive property of either; and (f) All fruits of properties mentioned in the foregoing paragraphs.
ART. 42. Ownership and administration. Each spouse shall own, possess, administer, enjoy and dispose of his or her own exclusive estate even without the consent of the other. However, the court may, upon petition of either spouse, grant to the other the administration of such property. ART. 43. Household property. Household property which customarily pertains to or is used by either spouse shall be prima facie presumed to be the property of said spouse. ART. 44. Right to sue and be sued. The wife may, independently of the husband, sue or be sued in the following cases: (a) (b) (c) business; When the litigation is between husband and wife; If the suit concerns her exclusive property; If the litigation is incidental to her profession, occupation or
(d) If the litigation concerns the exclusive property of the husband, the administration of which has been transferred to her; or (e) Such other appropriate cases as may be allowed by the general principles of Islamic law and other laws. Chapter Three DIVORCE (TALAQ) SECTION 1. Nature and Form ART. 45. Definition and forms. Divorce is the formal dissolution of the marriage bond in accordance with this Code to be granted only after the exhaustion of all possible means of reconciliation between the spouses. It may be effected by: (a) Repudiation of the wife by the husband (talaq);
Arts. 46-51
499
(b) (c) (d) (e) (f) or (g)
Vow of abstinence by the husband (ila); Injurious assimilation of the wife by the husband (zihar); Acts of imprecation (lian); Redemption by the wife (khul); Exercise by the wife of the delegated right to repudiate (tafwid); Judicial decree (faskh).
ART. 46. Divorce by talaq. (1) A divorce by talaq may be effected by the husband in a single repudiation of his wife during her nonmenstrual period (tuhr) within which he has totally abstained from carnal relation with her. Any number of repudiations made during one tuhr shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed idda. (2) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back (ruju) within the prescribed idda by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable (talaq bain sugra). ART. 47. Divorce by ila. Where a husband makes a vow to abstain from any carnal relation (ila) with his wife and keeps such ila for a period of not less than four months, she may be granted a decree of divorce by the court after due notice and hearing. ART. 48. Divorce by zihar. Where the husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriages, they shall mutually refrain from having carnal relation until he shall have performed the prescribed expiation. The wife may ask the court to require her husband to perform the expiation or to pronounce a regular talaq should he fail or refuse to do so, without prejudice to her right of seeking other appropriate remedies. ART. 49. Divorce by lian. Where the husband accuses his wife in court of adultery, a decree of perpetual divorce may be granted by the court after due hearing and after the parties shall have performed the prescribed acts of imprecation (lian). ART. 50. Divorce by khul. The wife may, after having offered to return or renounce her dower to pay any other lawful consideration for her release (khul) from the marriage bond, petition the court for divorce. The court shall, in meritorious cases and after fixing consideration, issue the corresponding decree. ART. 51. Divorce by tafwid. If the husband has delegated (tafwid) to the wife the right to effect a talaq at the time of the celebration of the marriage or thereafter, she may repudiate the marriage and the
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Arts. 52-54
repudiation would have the same effect as if it were pronounced by the husband himself. ART. 52. Divorce by faskh. The court may, upon petition of the wife, decree a divorce by faskh on any of the following grounds: (a) Neglect or failure of the husband to provide support for the family for at least six consecutive months; (b) Conviction of the husband by final judgment sentencing him to imprisonment for at least one year; (c) Failure of the husband to perform for six months without reasonable cause his marital obligation in accordance with this Code; (d) Impotency of the husband; (e) Insanity or affliction of the husband with an incurable disease which would make the continuance of the marriage relationship injurious to the family; (f) Unusual cruelty of the husband as defined under the next succeeding article; or (g) Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper wali. ART. 53. Faskh on the ground of unusual cruelty. A decree of faskh on the ground of unusual cruelty may be granted by the court upon petition of the wife if the husband: (a) Habitually assaults her or makes her life miserable by cruel conduct even if this does not result in physical injury; (b) Associates with persons of ill-repute or leads an infamous life or attempts to force the wife to live an immoral life; (c) Compels her to dispose of her exclusive property or prevents her from exercing her legal rights over it; (d) (e) law. ART. 54. Effects of irrevocable talaq or faskh. A talaq or faskh, as soon as it becomes irrevocable, shall have the following effects: (a) The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code; (b) The spouses shall lose their mutual rights of inheritance; Obstructs her in the observance of her religious practices; or Does not treat her justly and equitably as enjoined by Islamic
(c) The custody of children shall be determined in accordance with Article 78 of this Code;
Arts. 55-59
501
(d) The wife shall be entitled to recover from the husband her whole dower in case the talaq has been effected after the consummation of the marriage, or one-half thereof if effected before its consummation; (e) The husband shall not be discharged from his obligation to give support in accordance with Article 67; and (f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated. ART. 55. Effects of other kinds of divorce. The provisions of the article immediately preceding shall apply to the dissolution, or marriage by ila, zihar, lian and khul, subject to the effects of compliance with the requirements of the Islamic law relative to such divorces. SECTION 2. Idda ART. 56. Idda defined. Idda the period of waiting prescribed for a woman whose marriage has been dissolved by death or by divorce the completion of which shall enable her to contract a new marriage. ART. 57. Period. (1) Every wife shall be obliged to observe idda as follows: (a) In case of dissolution of marriage by death, four months and ten days counted from the death of her husband; (b) In case of termination of marriage by divorce, for three monthly courses; or (c) In case of a pregnant woman, for a period extending until her delivery. (2) Should the husband die while the wife is observing idda for divorce, another idda for death shall be observed in accordance with paragraph 1(a). TITLE III. PATERNITY AND FILIATION ART. 58. Legitimacy, how established. Legitimacy of filiation is established by evidence of valid marriage between the father and the mother at the time of the conception of the child. ART. 59. Legitimate children. (1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever claims illegitimacy of or impugns such filiation must prove his allegation. (2) Children born after six months following the consummation of marriage or within two years after the dissolution of the marriage shall be presumed to be legitimate. Against this presumption no evidence shall
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CIVIL LAW
Arts. 60-66
be admitted other than that of the physical impossibility of access between the parents at or about the time of the conception of the child. ART. 60. Children of subsequent marriage. Should the marriage be dissolved and the wife contracts another marriage after the expiration of her idda, the child born within six months from the dissolution of the prior marriage shall be presumed to have been conceived during the former marriage, and if born thereafter, during the latter. ART. 61. Pregnancy after dissolution. If, after the dissolution of marriage, the wife believes that she is pregnant by her former husband, she shall, within thirty days from the time she became aware of her pregnancy, notify the former husband or his heirs of that fact. The husband or his heirs may ask the court to take measures to prevent a simulation of birth. ART. 62. Rights of legitimate child. A legitimate child shall have the right: (a) To bear the surnames of the father and of the mother;
(b) To receive support from the father or, in his default, from his heirs in accordance with Articles 65 and 68; and (c) To share in the legitime (furud) and other successional rights which this Code recognizes in his favor. ART. 63. Acknowledgment by father. Acknowledgment (igrar) of a child by the father shall establish paternity and confer upon each the right to inherit from the other exclusively in accordance with Article 94, provided the following conditions are complied with: (a) The acknowledgment is manifested by the fathers acceptance in public that he is the father of the child who does not impugn it; and (b) in age. The relation does not appear impossible by reason of disparity
ART. 64. Adoption. No adoption in any form shall confer upon any person the status and rights of a legitimate child under Muslim law, except that said person may receive a gift (hiba). TITLE IV. SUPPORT (NAFAQA) ART. 65. Support defined. Support (nafaqa) includes everything that is indispensable for sustenance, dwelling, clothing and medical attendance according to the social standing of the person obliged to give it, and the education of the person entitled to the support until he complete his education, training or vocation even beyond the age of majority. ART. 66. Amount. The amount of support shall be in proportion to the resources of the giver and to the needs of the recipient.
Arts. 67-71
503
ART. 67. Support for wife and infant. (1) The wife shall be entitled to support during the marriage. In cases of divorce (talaq), her right shall be extended up to the expiration of idda. However, in case the wife is pregnant at the time of the separation, she shall be entitled to support until delivery. (2) Any divorced nursing mother who continues to breastfed her child for two years shall be entitled to support until the time of weaning. ART. 68. Support between ascendants and descendants. The ascendants and descendants shall be obliged to support each other in the order in which they are called to succeed by intestacy the person who has a right to claim support. ART. 69. Payment. (1) The obligation to support shall be demandable from the time the recipient needs it for maintenance, but it shall not be paid except from the date it is extrajudicially demanded. (2) Payment shall be made daily, weekly or monthly in advance, and when the recipient dies, his heirs shall not be obliged to return what he had received in advance. (3) If the recipient is the wife, the rule established in the foregoing paragraph shall apply even though the marriage is dissolved. ART. 70. Extinguishment of support. The obligation to support shall cease: (a) Upon the death of the recipient;
(b) When the resources of the obligor have been so reduced that he cannot give the support without neglecting his own needs and those of his family, except that in the case of the spouses, the husband, though needy, is obliged to support the wife; or (c) When the recipient commits any act which would give rise to disqualification to inherit or denial of support under Muslim law. TITLE V. PARENTAL AUTHORITY Chapter One NATURE AND EFFECTS ART. 71. Who exercises. (1) The father and the mother shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate and acknowledged children. In case of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary. (2) The mother shall exercise parental authority over her children
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CIVIL LAW
Arts. 72-77
born out of wedlock, but the court may, when the best interests of the children so require, appoint a general guardian. ART. 72. Duty to parents. (1) Children shall respect, revere, and obey their parents always unless the latter cast them into disbelief. (2) Grandparents are likewise entitled to respect and reverence, and shall be consulted whenever practicable by all members of the family on all important questions. ART. 73. Duty to children. Every parent and every person exercising parental authority shall see to it that the rights of the children are respected, and their duties complied with, and shall particularly by precept and example, imbue them with religious and civic consciousness, love of country, veneration of the national heroes and attachment to the ideal of permanent world peace. ART. 74. Effects upon person of children. The parents have, with respect to their unemancipated children: (a) The duty to support them, have them in their company, educate and instruct them in keeping with their means and represent them in all actions which shall redound to their benefits; and (b) The power to correct, discipline, and punish them moderately.
ART. 75. Effects upon property of children. (1) The father, or in his absence the mother, shall be the legal administrator of the property of the child under parental authority. If the property is worth more than five thousand pesos, the father or the mother shall give a bond to be approved by the court. (2) The court may appoint a guardian (wali) in the absence of one who is natural or testamentary. ART. 76. Parental authority non-transferable. Parental authority can neither be renounced nor transferred except as otherwise provided in this Code and the general principles of Islamic law. ART. 77. Extinguishment of parental authority. (1) Parental authority terminates upon the death of the parents or the child, or upon emancipation. (2) Subject to Article 78, the widowed mother who contracts a subsequent marriage shall lose parental authority and custody over all children by the deceased husband, unless the second husband is related to them within the prohibited degrees of consanguinity. (3) The court may deprive a person of parental authority or suspend the exercise thereof if he treats his children with excessive harshness, gives them corrupting or immoral orders and counsel, or abandons them.
Arts. 78-81
505
Chapter Two CUSTODY AND GUARDIANSHIP ART. 78. Care and custody. (1) The care and custody of children below seven years of age whose parents are divorced shall belong to the mother or, in her absence, to the maternal grandmother, the paternal grandmother, the sister and aunts. In their default, it shall devolve upon the father and the nearest paternal relatives. The minor above seven years of age but below the age of puberty may choose the parent with whom he wants to stay. (2) The unmarried daughter who has reached the age of puberty shall stay with the father, the son, under the same circumstances, shall stay with the mother. ART. 79. Guardian for marriage (wali). The following persons shall have authority to act as guardian for marriage (wali) in the order of precedence: (a) (b) (c) (d) (e) Father; Paternal grandfather; Brother and other paternal relatives; Paternal grandfathers executor or nominee; or The court.
ART. 80. Guardian of minors property. The following persons shall exercise guardianship over the property of minors in the order of precedence: (a) (b) (c) (d) (e) Father; Fathers executor or nominee; Paternal grandfather; Paternal grandfathers nominee; or The court. TITLE VI. CIVIL REGISTRY Chapter One REGISTRY OF MARRIAGE, DIVORCE AND CONVERSIONS ART. 81. District Registrar. The Clerk of Court of the Sharia District Court shall, in addition to his regular functions, act as District Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversions within the territorial jurisdiction of said court. The Clerk of
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Arts. 82-86
Court of the Sharia Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversions within his jurisdiction. ART. 82. Duties of District Registrar. Every District Registrar shall exercise supervision over Circuit Registrars in every Sharia District. He shall, in addition to an entry book, keep and bind copies of certificates of Marriage, Divorce, Revocation of Divorce, and Conversion sent to him by the Circuit Registrars in separate general registers. He shall send copies in accordance with Act No. 3753, as amended, to the office of the Civil Registrar-General. ART. 83. Duties of Circuit Registrar. Every Circuit Registrar shall: (a) File every certificate of marriage (which shall specify the nature and amount of the dower agreed upon), divorce or revocation of divorce and conversion and such other documents presented to him for registration; (b) Compile said certificates monthly, prepare and send any information required of him by the District Registrar; (c) Register conversions involving Islam; (d) Issue certified transcripts or copies of any certificate or document registered upon payment of the required fees; (e) Send to the District Registrar during the first ten days of each month a copy of the entries made during the previous month; (f) Index the same for easy reference and identification in case any information is required; and (g) Administer oaths, free of charge, for civil registry purposes.
ART. 84. Cancellation or Correction of Entry. Any entry in the District or Circuit Register may, upon verified petition of any interested party, be corrected upon order of the Sharia District Court, subject to the provisions of the Rules of Court. Every Registrar shall be civilly responsible for any unauthorized alteration made in the registry to any person suffering damage thereby. However, the Registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. ART. 85. Registration of revocation of divorce. Within seven days after the revocation of a divorce by ruju, the husband shall, with the wifes written consent, file a statement thereof with the Circuit Registrar in whose records the divorce was previously entered. ART. 86. Legal effects of registration. The books making up the registry of marriage, divorce, revocation of divorce, conversion, and all other documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. However,
Arts. 87-93
507
nothing herein provided shall affect the intrinsic validity or invalidity of the acts registered. ART. 87. Applicability of other civil registry law. To the extent not inconsistent with the provisions of this Code, the provisions of other registry laws govern in other civil registrars shall be observed by district or circuit registrars. Chapter Two OTHER ACTS AFFECTING CIVIL STATUS ART. 88. Where registered. All other acts, events, or judicial decrees affecting civil status not mentioned in Chapter One of this Title shall be recorded in the existing civil registry of the city or municipality in accordance with special laws.
BOOK THREE SUCCESSION

TITLE I. GENERAL PROVISIONS ART. 89. Succession defined. Succession is a mode of acquisition by virtue of which the estate of a person is transmitted to his heirs or others in accordance with this Code. ART. 90. Successional rights, when vested. The rights to succession are transmitted from the moment of the death of the decedent. The right to succession of an heir who predeceases the decedent shall not be transmitted by right of representation to his own heirs. ART. 91. Requisites of succession. No settlement of the estate of a deceased person shall be effected unless: (a) (b) and; (c) The successor is not disqualified to inherit. The death of the decedent is ascertained; The successor is alive at the time of the death of the decedent,
ART. 92. Inheritance (Mirath). The inheritance of a person includes all properties of any kind, movable or immovable, whether ancestral or acquired either onerous or gratuitous title, as well as all transmissible rights and obligations at the time of his death and those that accrue thereto before partition. ART. 93. Disqualifications to succession. The following shall be disqualified to succeed:
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Arts. 94-99
(a) Those who have intentionally caused directly or indirectly the death of the decedent; (b) Those who have committed any other act which constitutes a ground for disqualification to inherit under Islamic law; and (c) Those who are so situated that they cannot inherit under Islamic law. ART. 94. Succession from acknowledging person. Without prejudice to the order of succession of heirs, mutual rights of inheritance shall obtain: (a) and (b) Between the kinsman acknowledged through another person and acknowledger. ART. 95. Succession by illegitimate child. A child who was the cause of the mothers having been divorced by lian shall have mutual rights of succession only with the mother and her relatives. ART. 96. Succession between divorced persons. (1) The husband who divorces his wife shall have mutual rights of inheritance with her while she is observing her idda. After the expiration of the idda, there shall be no mutual rights of succession between them. (2) The husband who, while in a condition of death-illness, divorces his wife shall not inherit from her, but she shall have the right to succeed him even after the expiration of her idda. ART. 97. Succession by conceived child. A child conceived at the time of the death of the decedent shall be considered an heir provided it be born later in accordance with Article 10; its corresponding share shall be reserved before the estate is distributed. ART. 98. Succession by absentee. The share of an heir who is missing or otherwise absent at the time of the death of the decedent shall be reserved: (a) (b) Until he reappears and claims it; Until he is proven dead; or Between the acknowledging father and the acknowledged child;
(c) Until the lapse of ten years after which he shall be presumed dead by decree of the court. ART. 99. Order of succession. The heirs of a decedent shall inherit in the following order: (a) (b) Sharers (ashab-ul-furud) shall be entitled to fixed shares; Residuaries (ashab-ul-mirath) shall be entitled to the residue;
Arts. 100-106
509
(c) In the absence of the foregoing, the distant kindred (dhaw-ularham) who are blood relatives but are neither sharers nor residuaries; and (d) In default of the above, the acknowledged kinsman, universal legatee, or the public treasury (bait-ul-mal), in that order. ART. 100. Modes of Succession. Succession may be: (a) (b) (c) By will (wasiya); By operation of this Code; or By combination of both. TITLE II. TESTAMENTARY SUCCESSION Chapter One WILLS ART. 101. Will defined. A will (wasiya) is a declaration whereby a person is permitted, with formalities prescribed by law, to control the disposition after his death of not more than one-third of his estate, if there are heirs, or the whole of it, if there are no heirs or distant kindred. ART. 102. Formalities. (1) The making of a will is strictly a personal act; it cannot be left in whole or in part to the discretion of a third person or accomplished through the instrumentality of an agent. (2) A will may be declared orally or in writing in a manner that shows clearly the intention of the testator to execute it in the presence of at least two competent, credible and disinterested witnesses. ART. 103. Proof of will. (1) No nuncupative will shall pass any property of the decedent unless it is proved and allowed in accordance with a solemn oath of affirmation of all the witnesses who attested to its declaration. (2) No will of any other kind, holographic or formal, shall pass any property unless it is proved and allowed in accordance with this Code. ART. 104. Testamentary warf. An endowment for Islamic purposes to take effect after the death of the donor (wagf-bil-waiya) partakes of the nature of a testamentary disposition. ART. 105. Capacity to make a will. Any person of sound and disposing mind and who is not expressly prohibited by Islamic law may make a will. Persons of either sex under the age of puberty cannot make a will. ART. 106. Disposable third. (1) The testator, in his will, cannot dispose of more than one-third of his estate. Any bequest in excess thereof shall not be given effect unless ratified by the heirs.
510
CIVIL LAW
Arts. 107-113
In any case, the bequest must be accepted by the legatee. (2) A bequest to any sharer or residuary shall not be valid unless ratified by the testators heirs existing at the time of his death. ART. 107. Bequest by operation of law. Should the testator dies without having made a bequest in favor of any child of his son who predeceased him, or who simultaneously dies with him, such child shall be entitled to one-third of the share that would have pertained to the father if he were alive. The parent or spouse, who is otherwise disqualified to inherit in view of Article 93(c), shall be entitled to one-third of what he or she would have received without such disqualification. ART. 108. Revocation of will. A will may be expressly or impliedly revoked by the testator at any time before his death. Any waiver or restriction of this right shall be void. ART. 109. Partial invalidity of will. The invalidity of one of several provisions of a will shall not result in the invalidity of the others, unless it is to be presumed that the testator would not have made such other provisions if the first invalid provision had not been made. TITLE III. LEGAL SUCCESSION Chapter One SHARERS ART. 110. Who are sharers. The following persons shall be entitled to the inheritance as sharers to the extent set forth in the succeeding articles: (a) (b) (c) The husband, the wife; The father, the mother, the grandfather, the grandmother; The daughter and the sons daughter in the direct line;
(d) The full sister, the consanguine sister, the uterine sister and the uterine brother. ART. 111. Share of surviving husband. The husband surviving together with a legitimate child or a child of the decedents son shall be entitled to one-fourth of the hereditary estate; should there be no such descendants, he shall inherit one-half of the estate. ART. 112. Share of surviving wife. The wife surviving together with a legitimate child or a child of the decedents son shall be entitled to one-fourth of the hereditary estate; in the absence of such descendants, she shall inherit one-fourth of the estate. ART. 113. Share of surviving father. The father succeeding together with the legitimate son of the decedent or a son of the decedents son
Arts. 114-121
511
shall be entitled, as sharer, to one-sixth of the hereditary estate. The father who succeeds together with a legitimate daughter of the decedent or a daughter of the decedents son shall inherit, as sharer, one-sixth of the inheritance without prejudice to his share as residuary. ART. 114. Share of surviving mother. The mother succeeding as sharer together with a child or a child of the decedents son, or with two or more brothers or sisters of the decedent, shall be entitled to one-sixth of the hereditary estate. Should she survive without any such descendant or with only one brother or sister, she shall inherit one-third of the estate. ART. 115. Share of paternal grandfather. The paternal grandfather succeeding together with the child of the decedent or, in default thereof, with his descendants in the direct male line however distant, shall be entitled to one-sixth of the hereditary estate. Should he survive with any sharer other than the brothers or sisters of the decedent, he shall be entitled to one sixth without prejudice to his right as a residuary. ART. 116. Share of paternal grandmother. The paternal grandmother succeeding in default of the mother, father, or intermediate grandfather of the decedent shall be entitled, as sharer, to one-sixth of the hereditary estate. ART. 117. Share of surviving daughter. (1) If the decedent leaves no son but one daughter, the latter shall be entitled to inherit, as sharer, one-half of the hereditary estate. Two or more daughters shall share equally two-thirds thereof. Should one or more daughters survive with one or more sons of the decedent, the latter shall be entitled to double the share of the former. (2) Should a lone daughter of the decedent survive together with his sons daughter, the two-thirds share shall be divided between them one-half thereof to pertain to the former and one-sixth to the latter. ART. 118. Share of sons daughter. The sons daughter shall, in the absence of any child of the decedent, be entitled to one-half of the hereditary estate. Two or more daughters of the decedents son shall share the two-thirds of the estate per capita. ART. 119. Share of full sister. Should the decedent leave neither descendant, father, nor full brother, the full sister shall be entitled as sharer to the extent of one-half of the hereditary estate. Two or more full sisters shall inherit two-thirds of the estate per capita. ART. 120. Share of consanguine sister. Should the decedent leave neither descendant, father, full brother, nor full sister, the consanguine sister shall be entitled to one-half of the hereditary estate. Two or more consanguine sisters shall inherit two-thirds of the estate per capita. ART. 121. Share of uterine brother or sister. The share of a uterine brother or sister shall be one-sixth of the hereditary estate should there
512
CIVIL LAW
Arts. 122-125
be no surviving descendant, father, paternal grandfather, or full brother and sister of the decedent. Two or more uterine brothers or sisters shall inherit one-third of the estate per capita. ART. 122. Participation of full brother. (1) One or more full brothers and sisters surviving together, or one or more consanguine brothers or sisters surviving together, shall participate in the hereditary estate, a brother to inherit double the share of a sister. (2) The provision of the next succeeding article notwithstanding the full brother shall, if nothing is left for him after the distribution of shares and he survives with uterine brothers, participate with the latter in the one-third of the hereditary estate per capita. ART. 123. Exclusion among heirs. The exclusion of heirs from the inheritance shall be governed by the following rules: (a) In the same line, the relative nearest in degree excludes the more remote. (b) Full-blood relatives exclude the consanguine and the uterine.
(c) Whoever is related to the decedent through any person shall not inherit while the latter is living, except in the case of another concurring with her children. (d) Heirs who, in a particular case, do not succeed by reason of disqualification on any ground shall not exclude others. Chapter Two RESIDUARY HEIRS ART. 124. Residuaries. Any residue left after the distribution of the shares shall be partitioned among the residuaries in accordance with the following articles. An heir may succeed as residuary in his own right (asababin-nafs), in anothers right (asaba-bil-ghair), or together with another (asaba-maal-ghair). ART. 125. Residuaries in their own right. The following persons are residuaries in their own right: (a) Male descendants of the decedent in the direct line, however distant in degree; (b) Male ascendants of the decedent in the direct line, however distant in degree; (c) Full-blood or consanguine brothers of the decedent and their male descendants, however distant in degree; and (d) Full-blood or consanguine paternal uncles of the decedent and their male descendants, however distant in degree.
Arts. 126-131
513
ART. 126. Residuaries in anothers right. The following persons shall succeed as residuaries in anothers right: (a) (b) (c) (d) Daughters surviving with the son of the decedent; Sons daughters surviving with their own brothers; Full sisters surviving with their full brothers; and Consanguine sisters surviving with their consanguine brothers.
ART. 127. Residuaries together with another. Full-blood or consanguine sisters surviving with daughters of the decedent or with the sons daughters, however distant in degree from the decedent, are residuaries together with another. ART. 128. Preference among residuaries. Preference among residuaries shall be governed by the following rules: (a) The residuary nearer in degree shall be preferred to the more remote of the same class. (b) The residuary with full-blood relationship shall be preferred to those of the half-blood of the same degree of relationship in the same class. (c) The residuaries of the same class, degree and blood relationship shall share equally, subject to the rule of the male having a share double that of the female in proper cases. ART. 129. Reduction of shares. If the totality of all the shares assigned to each of the shares exceeds the whole inheritance, the shares shall be reduced proportionately. ART. 130. Reversion of residue. If, after distributing the portions of the sharers, a residue is left in the inheritance and there is no surviving residuary heir, the same shall revert in its entirety to the lone sharer or to all the sharers in proportion to their respective shares. However, the husband or the wife shall not be entitled to any part of the reverted portion as long as there are other sharers or distant kindred. Chapter Three DISTANT KINDRED (DHAW-UL-ARHAM) ART. 131. Relatives included. Distant kindred includes the following: (a) The daughters children and the children of the sons daughter and their descendants;
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Arts. 132-136
(b)
The excluded grandfather and the excluded grandmother;
(c) The sisters children, and the brothers daughters, the sons of the uterine brother, and their descendants; and (d) The paternal aunts, the uterine uncles and the maternal aunts and uncles. ART. 132. Extent and distribution of shares. In default of all sharers and residuaries, the distant kindred shall inherit the entire hereditary estate, the same to be distributed among them in accordance with Articles 124 and 128. TITLE IV. SETTLEMENT AND PARTITION OF ESTATE ART. 133. Administration. The administration of the estate of a decedent shall, for purposes of settlement, vest at the time of his death in the executor appointed in the will or, in the absence thereof, in his heir or administrator to whom the court has granted letters of administration. ART. 134. Governing school of law. (1) In every petition for probate of will or for the settlement of the estate of a decedent all matters relating to the appointment of administrator, powers and duties of administrators or executor, the court shall take into consideration the school of law (madhhab) of the decedent. (2) If the decedents madhhab is not known, the Shafii school of law may be given preference together with the special rules of procedure adopted pursuant to this Code. ART. 135. Order of preference of claims. The estate of a decedent shall be applied to claims and charges in the following order: (a) (b) unpaid taxes; reasonable funeral expenses;
(c) the expenses for probate, administration and other judicial expenses; (d) (e) (f) (g) the debts of the decedent; the legacies to the extent of the disposable one-third; the distribution of shares among heirs; and unpaid dower.
ART. 136. Liability of heirs. The liability of the heirs of a decedent for the payment of the latters debts shall not exceed the hereditary estate. Each heir shall be liable only for the payment of the decedents debt in proportion to his share.
Arts. 137-141
515
BOOK FOUR ADJUDICATION AND SETTLEMENT OF DISPUTES AND RENDITION OF LEGAL OPINIONS
TITLE I. THE SHARIA COURTS ART. 137. Creation. There are hereby created, as part of the judicial system, courts of limited jurisdiction, to be known respectively as Sharia District Courts and Sharia Circuit Courts, which shall exercise powers and functions in accordance with this Title. Sharia courts and the personnel thereof shall be subject to the administrative supervision of the Supreme Court. Chapter One SHARIA DISTRICT COURTS ART. 138. Sharia judicial districts. Five special judicial districts, each have one Sharia District Court presided over by one judge, are constituted as follows: (a) (b) The First Sharia District shall comprise the Province of Sulu; The Second Sharia District, the Province of Tawi-Tawi;
(c) The Third Sharia District, the Province of Basilan, Zamboanga del Norte, Zamboanga del Sur, and the Cities of Dipolog, Pagadian and Zamboanga; (d) The Fourth Sharia District, the provinces of Lanao del Norte and Lanao del Sur, and the Cities of Iligan and Marawi; and (e) The Fifth Sharia District, the Provinces of Maguindanao, North Cotabato and Sultan Kudarat, and the City of Cotabato. ART. 139. Appointment of judges. The judicial function in the Sharia District Courts shall be vested in Sharia District judges to be appointed by the President of the Philippines. ART. 140. Qualifications. No person shall be appointed Sharia District judge unless, in addition to the qualifications for judges of Courts of First Instance fixed in the Judiciary Law, he is learned in Islamic law and jurisprudence. ART. 141. Tenure. Sharia District judges shall be appointed to serve during good behavior until they reach the age of sixty-five years, or become incapacitated to discharge the duties of their office, unless sooner removed for the same causes and the same manner, provided by law for judges of Courts of First Instance.
516
CIVIL LAW
Arts. 142-144
ART. 142. Compensation. Sharia District judges shall receive the same compensation and enjoy the same privileges as the judges of Courts of First Instance. ART. 143. Original jurisdiction. (1) The Sharia District Court shall have exclusive original jurisdiction over: (a) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under this Code; (b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property; (c) Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of this Code; (d) All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and (e) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. (2) Concurrently with existing civil courts, the Sharia District Court shall have original jurisdiction over: (a) Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an asylum; (b) All other personal and real actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court; and (c) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. ART. 144. Appellate jurisdiction. (1) Sharia District Courts shall have appellate jurisdiction over all cases tried in the Sharia Circuit Courts within their territorial jurisdiction. (2) The Sharia District Court shall decide every case appealed to it on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit.
Arts. 145-150
517
ART. 145. Finality of decisions. The decisions of the Sharia District Courts whether on appeal from the Sharia Circuit Court or not shall be final. Nothing herein contained shall affect the original and appellate jurisdiction of the Supreme Court as provided in the Constitution. ART. 146. Clerks and other subordinate employees. Sharia District Courts shall have the same officers and other personnel as those provided by law for Courts of First Instance. The pertinent provisions of the Judiciary Law regarding the number, qualifications, appointment, compensation, functions, duties and other matters relative to the personnel of the Courts of First Instance shall apply to those of the Sharia District Courts. ART. 147. Permanent stations; offices. (1) The Sharia District Courts shall have their respective permanent stations in the following places: (a) (b) (c) (d) (e) First Sharia District, Jolo, Sulu; Second Sharia District, Bongao, Tawi-Tawi; Third Sharia District, Zamboanga City; Fourth Sharia District, Marawi City; Fifth Sharia District, Cotabato City;
(2) The Sharia District Courts may hold sessions anywhere within their respective districts. (3) The provinces, cities or municipalities concerned shall provide such court with adequate court office, supplies and equipment in accordance with the provision of the Judiciary Law. ART. 148. Special procedure. The Sharia District Courts shall be governed by such special rules of procedure as the Supreme Court may promulgate. ART. 149. Applicability of other laws. The provisions of all laws relative to the Court of First Instance shall, insofar as they are not inconsistent with this Code, applicable to Sharia District Courts. Chapter Two SHARIA CIRCUIT COURTS ART. 150. Where establish. (1) Sharia Circuit Courts shall be established as follows: (a) (b) Six such courts in the Province of Sulu; Eight in the Province of Tawi-Tawi;
518
CIVIL LAW
Arts. 151-155
(c) Ten in and for the Provinces of Basilan, Zamboanga del Norte and Zamboanga del Sur, and the Cities of Dipolog, Pagadian, and Zamboanga; (d) Twelve in and for the Provinces of Lanao del Norte and Lanao del Sur and the Cities of Iligan and Marawi; (e) Fifteen in and for the Provinces of Maguindanao, North Cotabato and Sultan Kudarat and the City of Cotabato. (2) The territorial jurisdiction of each of the Sharia Circuit Courts shall be fixed by the Supreme Court on the basis of geographical contiguity of the municipalities and cities concerned and their Muslim population. ART. 151. Appointment of judges. Each Sharia Circuit Court shall be presided over by a Sharia Circuit Judge to be appointed by the President of the Philippines. ART. 152. Qualifications. No person shall be appointed judge of the Sharia Circuit Court unless he is a natural-born citizen of the Philippines at least twenty-five years of age, and has passed an examination in the Sharia and Islamic jurisprudence (fiqh) to be given by the Supreme Court for admission to special membership in the Philippine Bar to practice in the Sharia Courts. ART. 153. Tenure. Sharia Circuit judges shall be appointed to serve during good behavior until they reach the age of sixty-five years or become incapacitated to discharge the duties of their office, unless sooner removed for the same causes and in the same manner provided by law for judges of Municipal Circuit Courts. ART. 154. Compensation. Sharia Circuit judges shall receive the same compensation and enjoy the same privileges as judges of Municipal Circuit Courts. ART. 155. Jurisdiction. The Sharia Circuit Courts shall have exclusive original jurisdiction over: (1) Code. (2) All civil actions and proceedings between parties who are Muslim or have been married in acccordance with Article 13 involving disputes relating to: (a) (b) (c) (d) (e) Marriage; Divorce recognized under this Code; Betrothal or breach of contract to marriage; Customary dower (mahr); Disposition and distribution of property upon divorce; All cases involving offenses defined and punished under this
Arts. 156-161
519
(f) and (g) (3)
Maintenance and support, and consolatory gilts (muta); Restitution of marital rights.
All cases involving disputes relative to communal properties.
ART. 156. Clerks and other subordinate employees. (1) Sharia Circuit Courts shall have the same officers and other personnel as those provided by law for Municipal Circuit Courts. (2) The pertinent provisions of the Judiciary Law regarding the number, qualifications, appointment, compensation, functions, duties and other matters relative to the personnel of the Municipal Circuit Courts shall apply to those of the Sharia Circuit Courts. ART. 157. Place of sessions; stations. Sharia Circuit Court may hold sessions anywhere within their respective circuits, but each shall have a principal station to be fixed by the Supreme Court. ART. 158. Special Procedure. The Sharia Circuit Courts shall be governed by such special rules and procedures as the Supreme Court may promulgate. ART. 159. Applicability of other laws. The provisions of all laws relative to Municipal Circuit Courts shall, to the extent that they are not inconsistent with this Code, be applicable to the Sharia Circuit Courts. TITLE II. THE AGAMA ARBITRATION COUNCIL ART. 160. Constitution. The Sharia District Court or the Sharia Circuit Court may, in appropriate cases, constitute an Agama Arbitration Council in the manner specified in this Title. ART. 161. Divorce by talaq and tafwid. (1) Any Muslim male who has pronounced a talaq shall, without delay, file with the Clerk of Court of the Sharia Circuit Court of the place where his family resides a written notice of such fact and the circumstances attended thereto, after having served a copy thereof to the wife concerned. The talaq pronounced shall not become irrevocable until after the expiration of the prescribed idda. The notice filed shall be conclusive evidence that talaq has been pronounced. (2) Within seven days from receipt of notice, the Clerk of Court shall require each of the parties to nominate a representative. The representatives shall be appointed by the Court to constitute, together with the Clerk of Court as Chairman, an Agama Arbitration Council. The Agama Arbitration Council shall submit to the Court a report on the result of the arbitration, on the basis of which and such other evidence as may be allowed, the Court shall issue the corresponding order.
520
CIVIL LAW
Arts. 162-166
(3) The provisions of this article shall be observed should the wife exercise tafwid. ART. 162. Subsequent marriages. Any Muslim husband desiring to contract a subsequent marriage shall, before so doing, file a written notice thereof with the Clerk of Court of the Sharia Circuit Court of the place where his family resides. Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or wives. Should any of them object, an Agama Arbitration Council shall be constituted in accordance with the provisions of paragraph (2) of the preceding article. If the Agama Arbitration Council fails to obtain the wifes consent to the proposed marriage, the Court shall subject to Article 27, decide whether or not to sustain her objection. ART. 163. Offenses against customary law. The Sharia Circuit Court, in cases involving offenses against customary law which can be settled without formal trial may, at its discretion, direct the Sharia Clerk of Court to constitute a council of not less than two nor more than four members, with him as chairman, to settle the case amicably. TITLE III. JURISCONSULT IN ISLAMIC LAW ART. 164. Creation of office and appointment. (1) There shall be a Jurisconsult in Islamic Law, who shall be appointed by the President of the Philippines and hold office for a term of seven years, without prejudice to re-appointment, unless sooner removed for cause or incapacitated to discharge the duties of his office. (2) The Office of the Jurisconsult shall be under the administrative supervision of the Supreme Court of the Philippines which shall also fix its permanent station, preferably in the City of Zamboanga. ART. 165. Qualifications. No person shall be appointed Jurisconsult in Islamic Law unless he is a citizen of the Philippines, at least forty years of age, of good moral character and proven integrity, and an eminent scholar in the Quran and Hadith and in Islamic jurisprudence as well as proficient in Arabic. ART. 166. Functions. (1) The Jurisconsult shall, on the written request of any interested party, have the authority to render legal opinions, based on recognized authorities, regarding any question relating to Muslim Law. For this purpose, he may, if he deems it necessary, consult or ask for a consensus of the ulama. (2) The Jurisconsult shall consider and act on every such request unless, in his opinion and for good reason, the question need not be answered. (3) The Office of the Jurisconsult shall keep a compilation and cause the publication of all his legal opinions.
Arts. 167-172
521
ART. 167. Compensation. Until otherwise provided by law, the Jurisconsult shall receive an annual compensation of forty-eight thousand pesos which shall not be diminished during his term of office. ART. 168. Office personnel. The Jurisconsult may, in accordance with the Civil Service Law and subject to the approval of the Supreme Court, appoint and fix the compensation of such personnel as may be necessary for the performance of his functions.
BOOK FIVE MISCELLANEOUS AND TRANSITORY PROVISIONS

TITLE I. MUSLIM HOLIDAYS ART. 169. Official Muslim holidays. The following are hereby recognized as legal Muslim holidays: (a) Amun Jadid (New Year), which falls on the first day of the first lunar month of Muharram; (b) Maulid-um-Nabi (Birthday of the Prophet Muhammad), which falls on the twelfth day of the third lunar month of Rabi-ul-Awwal; (c) Lailatul Isra Wal Miraj (Nocturnal Journey and Ascension of the Prophet Muhammad), which falls on the twenty-seventh day of the seventh lunar month of Rajab; (d) Id-ul-Fitr (Hari Raya Puasa), which falls on the first day of the tenth lunar month of Shawwal, commemorating the end of the fasting season; and (e) Id-ul-Adha (Hari Raya Haji), which falls on the tenth day of the twelfth lunar month of Dhu l-Hijja. ART. 170. Provinces and cities where officially observed. (1) Muslim holidays shall be officially observed in the Provinces of Basilan, Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte and Zamboanga del Sur, and in the Cities of Cotabato, Iligan, Marawi, Pagadian, and Zamboanga and in such other Muslim provinces and cities as may hereafter be created. (2) Upon proclamation by the President of the Philippines, Muslim holidays may also be officially observed in other provinces and cities. ART. 171. Dates of observance. The dates of Muslim holidays shall be determined by the Office of the President of the Philippines in accordance with the Muslim Lunar Calendar (Hijra). ART. 172. Observance of Muslim employees. (1) All Muslim government officials and employees in places other than those enumerated
522
CIVIL LAW
Arts. 173-176
under Article 170 shall also be excused from reporting to office in order that they may be able to observe Muslim holidays. (2) The President of the Philippines may, by proclamation, require private offices, agencies or establishments to excuse their Muslim employees from reporting for work during a Muslim holiday without reduction in their usual compensation. TITLE II. COMMUNAL PROPERTY ART. 173. What constitute. The following are communal properties: (a) Customary heirloom, which shall include artifacts and ancestral implements or things of cultural value handed down from a common ancestor; (b) Ancestral property, which shall comprehend hallowed ancestral plot, ancestral shrine, royal court, and similar properties; and (c) Charitable trust property.
ART. 174. Administration or disposition. (1) Except as otherwise provided in this Code, communal property shall be administered or disposed of in accordance with Muslim law, ada, and special provisions of law. (2) Any provision of existing law to the contrary notwithstanding, the trustee of any communal property shall be the person who is in lawful possession thereof, either personally or through an agent. (3) The Sharia Circuit Court may appoint a trustee of a communal property when there is a dispute as to its custody, possession, or administration. TITLE III. CUSTOMARY CONTRACTS ART. 175. How construed. Any transaction whereby one person delivers to another any real estate, plantation, orchard or any fruit-bearing property by virtue of sanda, sanla, arindao, or similar customary contract, shall be construed as a mortgage (rihan) in accordance with Muslim law. TITLE IV. CONVERSIONS ART. 176. Effect of registration of conversion to Islam. (1) Registration of a persons conversion to Islam shall constitute a prima facie proof that he professes Islam. (2) Whoever disputes the profession or renunciation of Islam by any person shall have the burden of proving the contrary.
Arts. 177-183
523
ART. 177. Regulation on conversion. No conversion of a minor below the age of eighteen years shall be registered by the District or Circuit Registrar without the written consent or permission of the parents or guardian, except when such minor has been emancipated from parental authority in accordance with law. ART. 178. Effect of conversion to Islam on marriage. The conversion of non-Muslim spouses to Islam shall have the legal effect of ratifying their marriage as if the same had been performed in accordance with the provisions of this Code or Muslim law, provided that there is no legal impediment to the marriage under Muslim law. ART. 179. Effect of change of religion. The change of religion by a Muslim shall not have the effect of extinguishing any obligation or liability whatsoever incurred prior to said change. TITLE V. PENAL PROVISIONS Chapter One RULE ON BIGAMY ART. 180. Law applicable. The provision of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married in accordance with the provisions of this Code or, before its effectivity, under Muslim law. Chapter Two SPECIFIC OFFENSES ART. 181. Illegal solemnization of marriage. Any person who shall, without authority, solemnize any marriage purportedly under this Code, or shall do so in a manner contrary to the provisions thereof, shall be punished by imprisonment of not less than two months but not more than two years, or a fine of not less than two hundred pesos but not more than two thousand pesos, or both, in the discretion of the court. ART. 182. Marriage before expiration of Idda. Any widow or divorced woman who, having been married under Muslim law or under this Code, contracts another marriage before the expiration of the prescribed idda shall suffer the penalty of a fine not exceeding five hundred pesos. ART. 183. Offenses relative to subsequent marriage, divorce, and revocation of divorce. A person who fails to comply with the requirements of Articles 86, 161, and 162 of this Code shall be penalized by arresto mayor or a fine of not less than two hundred pesos but not more than two thousand pesos, or both, in the discretion of the court.
524
CIVIL LAW
Arts. 184-190
ART. 184. Failure to report for registration. Except as provided in the article immediately preceding, a person who knowingly fails to perform his duty under this Code to report for registration any fact concerning the civil status of persons shall be punished by a fine of not less than one hundred pesos but not more than one thousand pesos. ART. 185. Neglect of duty of registrars. Any district registrar or circuit registrar who fails to perform properly his duties in accordance with this Code shall be penalized in accordance with Section 18 of Article 3753. TITLE VI. TRANSITORY AND FINAL PROVISIONS ART. 186. Effect of Code on past acts. (1) Acts executed prior to the effectivity of this Code shall be governed by the laws in force at the time of their execution, and nothing herein except as otherwise specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby. (2) A marriage contracted by a Muslim male prior to the effectivity of this Code in accordance with non-Muslim law shall be considered as one contracted under Muslim law provided the spouses register their mutual desire to this effect. ART. 187. Applicability clause. The Civil Code of the Philippines, the Rules of Court and other existing laws, insofar as they are not inconsistent with the provisions of this Code, shall be applied suppletorily. ART. 188. Separability clause. If, for any reason, any article or provision of this Code is held to be invalid, the same shall not affect the other articles or provisions hereof. ART. 189. Repealing clause. All laws, proclamations, executive orders, rules and regulations, or any part thereof, inconsistent with the provisions of this Code are hereby correspondingly modified or repealed. ART. 190. Effectivity. This Code shall take effect immediately. Done in the City of Manila, this 4th day of February, in the year of Our Lord nineteen hundred and seventy-seven. (SGD.) FERDINAND E. MARCOS President of the Philippines
By the President: (SGD.) JUAN C. TUVERA Presidential Assistant
525
APPENDIX F
A.M. No. 02-11-10-SC RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
Section 1. Scope. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Sec. 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (b) Court. Where to file. The petition shall be filed in the Family
(c) Imprescriptibility of action or defense. An action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Sec. 3. Petition for annulment of voidable marriages. (a) Who may file. The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated:
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Secs. 4-5
(1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the others insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Court. Where to file. The petition shall be filed in the Family
Sec. 4. Venue. The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. Sec. 5. Contents and form of petition. (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.
Secs. 6-8
APPENDIX F Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
527
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action. (3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Sec. 6. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. Sec. 7. Motion to dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; Provided, however, That any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Sec. 8. Answer. (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The
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Secs. 9-11
answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 9. Investigation report of public prosecutor. (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 10. Social worker. The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 11. Pre-trial. (1) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties. (2) Notice of pre-trial. (a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; and
(2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial. (b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the
Secs. 12-14
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respondent failed to file his answer, notice of pre-trail shall be sent to respondent at his last known address. Sec. 12. Contents of pre-trial brief. The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (e) The number and names of the witnesses and their respective affidavits; and (f) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs. Sec. 13. Effect of failure to appear at the pre-trial. (a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Sec. 14. Pre-trial conference. At the pre-trial conference, the court: (a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition.
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Secs. 15-17
Sec. 15. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pretrial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule; (2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence.
(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (d) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. (e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. Sec. 16. Prohibited compromise . The court shall not allow compromise on prohibited matters, such as the following: (a) (b) (c) (d) (e) (f) The civil status of persons; The validity of a marriage or of a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; and Future legitime.
Sec. 17. Trial. (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a
Secs. 18-19
531
commissioner shall be allowed except as to matters involving property relations of the spouses. (2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. (4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have no properties, the court shall observe the procedure prescribed in Section 21 of this Rule.
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Secs. 20-23
The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located. Sec. 20. Appeal. (1) Pre-condition. No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (2) Notice of appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. (a) The court shall issue the Decree after: (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and (3) The delivery of the childrens presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Sec. 23. Registration and publication of the decree; decree as best evidence. (a) The prevailing party shall cause the registration of the
Secs. 24-25
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Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.
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APPENDIX G
A.M. No. 02-11-11-SC RULE ON LEGAL SEPARATION
Section 1. Scope. This Rule shall govern petitions for legal separation under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Sec. 2. Petition. (a) Who may and when to file. (1) A petition for legal separation may be filed only by the husband or the wife, as the case may be, within five years from the time of the occurrence of any of the following causes: (a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (e) (f) Drug addiction or habitual alcoholism of the respondent; Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines; (h) (i) Sexual infidelity or perversion of the respondent; Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.
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Sec. 3
APPENDIX G Rule on Legal Separation
535
(b)
Contents and form. The petition for legal separation shall: (1) Allege the complete facts constituting the cause of action.
(2) State the names of ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action. (3) Be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period. Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition. (c) Venue. The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or in the case of a nonresident respondent, where he may be found in the Philippines, at the election of the petitioner. Sec. 3. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient. (b) The summons to be published shall be contained in an order of the court with the following data: (1) title of the case; (2) docket number;
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Secs. 4-8
(3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for; and (5) a directive for respondent to answer within thirty days from the last issue of publication. Sec. 4. Motion to Dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; Provided, however, That any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Sec. 5. Answer. (a) The respondent shall file his answer within fifteen days from receipt of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. (b) If the respondent fails to file an answer, the court shall not declare him in default. (c) Where no answer is filed, or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 6. Investigation Report of Public Prosecutor. (a) Within one month after receipt of the court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any. (b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall dismiss the petition. (c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 7. Social Worker. The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 8. Pre-trial. (a) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition.
Secs. 9-10
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(b)
Notice of Pre-trial. (1) The notice of pre-trial shall contain: (a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of the pre-trial. (2) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 9. Contents of pre-trial brief. The pre-trial brief shall contain the following: (1) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (2) A concise statement of their respective claims together with the applicable laws and authorities; (3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (5) The number and names of the witnesses and their respective affidavits; and (6) Such other matters as the court may require.
Failure to file the pre-trial or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding section. Sec. 10. Effect of failure to appear at the pre-trial. (1) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.
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CIVIL LAW
Secs. 11-13
Sec. 11. Pre-trial conference. At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition. Sec. 12. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pretrial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule; (2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent manifest injustice. (d) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. Sec. 13. Prohibited compromise . The court shall not allow compromise on prohibited matters, such as the following:
Secs. 14-16
539
(1) (2) (3) (4) (5) (6)
The civil status of persons; The validity of a marriage or of a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; and Future legitime.
Sec. 14. Trial. (a) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the partys right to privacy; or would be offensive to decency or public morals. (d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Sec. 15. Memoranda. The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 16. Decision. (a) The court shall deny the petition on any of the following grounds: (1) The aggrieved party had condoned the offense or act complained of or has consented to the commission of the offense or act complained of; (2) There is connivance in the commission of the offense or act constituting the ground for legal separation; (3) Both parties have given ground for legal separation;
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Secs. 17-18
(4) There is collusion between the parties to obtain the decree of legal separation; or (5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is located. (c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each other but the marriage bond is not severed; (2) The obligation of mutual support between the spouses ceases; and (3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law. (d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation. Sec. 17. Appeal. (a) Pre-condition. No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (b) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the adverse parties. Sec. 18. Liquidation, partition and distribution, custody, and support of minor children. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless such matters had been adjudicated in previous judicial proceedings.
Secs. 19-22
541
Sec. 19. Issuance of Decree of Legal Separation. (a) The court shall issue the Decree of Legal Separation after: (1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and (2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Sec. 20. Registration and publication of the Decree of Legal Separation; decree as best evidence. (a) Registration of decree. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) Publication of decree. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) Best evidence. The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent. Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Sec. 22. Petition for revocation of donations. (a) Within five (5) years from the date the decision granting the petition for legal separation has become final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse.
542
CIVIL LAW
Secs. 23-24
(b) The revocation of the donations shall be recorded in the Register of Deeds in the places where the properties are located. (c) Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property shall be respected. (d) After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer. Sec. 23. Decree of Reconciliation. (a) If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same proceeding for legal separation. (b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall immediately issue an order terminating the proceeding. (c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or choose a new regime. The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside and specifying the regime of property relations under which the spouse shall be covered. (d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime. (e) In case paragraphs (b), (c) and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof. (f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been registered. Sec. 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property relations or the adoption of another regime of property relations in the same proceeding for legal separation attaching the said motion their agreement for the approval of the court.
Sec. 25
543
(b) The agreement which shall be verified shall specify the following: (1) regime; The properties to be contributed to the restored or new
(2) Those to be retained as separate properties of each spouse; and (3) The names of all their known creditors, their addresses, and the amounts owing to each. (c) The creditors shall be furnished with copies of the motion and the agreement. (d) The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a newspaper of general circulation. (e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.
544
CIVIL LAW
APPENDIX H
A.M. No. 02-11-12-SC RULE ON PROVISIONAL ORDERS
SECTION 1. When Issued. Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary. SECTION 2. Spousal Support. In determining support for the spouses, the court may be guided by the following rules: (a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. (b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. (c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouses future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouses earning capacity, earned and unearned income, assets, and
544
Secs. 3-4
APPENDIX H Rule on Provisional Orders
545
standard of living; and (10) any other factor the court may deem just and equitable. (d) The Family Court may direct the deduction of the provisional support from the salary of the spouse. SECTION 3. Child Support. The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support from the salary of the parent. SECTION 4. Child Custody. In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration of the material and moral welfare of the child. The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the childs health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. The court may award provisional custody in the following order of preference; (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or
546
CIVIL LAW
Secs. 5-6
disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the childs actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. SECTION 5. Visitation Rights. Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court. SECTION 6. Hold Departure Order. Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court. The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The hold-departure order shall contain the following information: (a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined; (b) the complete title and docket number of the case in which the hold departure was issued; (c) (d) the specific nature of the case; and the date of the hold-departure order.
If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included. The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.
Secs. 7-9
APPENDIX H Rule on Provisional Orders
547
SECTION 7. Order of Protection. The court may issue an Order of Protection requiring any person: (a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; (b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; (c) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; (d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (e) to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; (f) to comply with such other orders as are necessary for the protection of the child. SECTION 8. Administration of Common Property. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. SECTION 9. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

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TABLE OF CONTENTS

THE CIVIL CODE OF THE PHILIPPINES

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THE FAMILY CODE OF THE PHILIPPINES

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