Civil Law 1 Reviewer

Family Code
Q. What Department of the Government Makes
Laws?
A. The legislative department or the legislature
although at one time the executive was doing it
during martial law. However, following the
Constitution, and following the rule of law, it is the
legislature that should make laws.
But again, there was a time that the executive
was doing it, and this was during martial law. In fact
some of these laws are still in effect. One of them is
the Presidential Decree on Trust Receipts. Not all
Presidential Decrees were invalidated by the
Supreme Court. Many of them are ineffective.
Q. When does a law take effect?
A. A law takes effect on what is provided in the law,
but before any law becomes effective there must
have been a complete publication of that law in the
Official Gazette or in a newspaper of general
circulation.
According to the Civil Code, laws take effect
after 15 days. You need to finish the publication
first, and then count the 15 days before the law
becomes effective. After 15 days the law becomes
effective.
Q. Suppose the law says, This law shall take
effect upon the signing of the President and
the President signed it on August 1, 2016. Is
that law now in effect?
A. Not yet. There is no publication yet.
Q. Lets say the publication was completed on
August 3, 2016, When was the end of the 15 day
period?
A. 18, you should know how to count.
Q. Was it already effective on August 18, 2016?
A. No, because the law says after 15 days, so it
becomes effective on August 19, 2016.
Q. However, the law says, This law shall take
effect upon the signing of the President, and
the President signed it on August 1. When is it
effective? August 1 or August 19?
A. August 1. There will be a retroactive effect.
Remember, there is no absolute prohibition on the
retroactivity of the law. Retroactivity is only

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Persons and Family Relations

prohibited when it is (1) penal in nature, unless the

law is favorable to the accused, except if the
accused is a habitual delinquent and (2) when there
is impairment of obligations and contracts.
Q. Why is there a need for publication of the
law?
A. Laws must be published so that there will be
constructive notice of the existence of the law to the
whole world and that constructive notice is
necessary because Art. 3 of the Civil Code provides
that ignorance of the law excuses no one from
compliance therewith.
Q. Where should publication be made?
A. Publication can be made either in the Official
Gazette, or in a newspaper of general circulation.
Q. What is the Official Gazette?
A. It is the official publication of the government.
Laws are published in the Official Gazette, as well
as notices of hearing, and some others.
Q. But the law says complete publication in the
Official Gazette or newspaper of general
circulation. Why is that?
A. Because the Official Gazette comes in regular
number of pages per issue. There is no new issue
of the Official Gazette everyday, there is only a new
issue every week. The weekly issue comes in
regular number of pages. For instance, lets say
200, every issue there will always be 200 pages.
So if the law would be published in one issue, the
many pages of the law cannot be published in its
entirety, so the continuation would be in the next
issue. That is why the law requires complete
publication. Only when the entire law has been
published in its entirety can there be complete
publication. Considering that the OG has limited
number of pages, there will be complications as to
how it will be published completely. That is why the
law was amended in order that the publication of
the law can also be made in a newspaper of
general circulation.
Q. What is a newspaper of general circulation?
A. The Supreme Court made a pronouncement that
a newspaper of general circulation is not
necessarily the one with the most number of copies
printed. It is not necessarily the one with the most

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subscribers. In fact, you will learn that there are

plenty of newspapers of general circulation that in
your lifetime you have never seen. In Metro Manila
there is Tabloid, Metropolitan Mail, The Guardian.
If you want to find out the newspapers of
general circulation in one area, you must ask the
Office of the Clerk of Court because the Office of
the Clerk of Court accredits newspapers of general
circulation. So if you have to have anything printed
in that area you better have it printed on what is
accredited by the court. If it is not accredited, you
have no reason to say that it is a newspaper of
general circulation. But if it is accredited, even if it
only publishes a few copies, it will still be
considered a newspaper of general circulation.
These accredited newspapers of general
circulation, they are the ones with the least number
of copies in circulation. If there are 8 publishers,
most likely, they will only print 10. They also do not
have any worthy news. They only have local news,
but after all the local news, there would be plenty of
judicial notices following them.
Q. Art. 3 says, ignorance of the law excuses no
one from compliance therewith, so if you did
not know that there was a law, and you had
committed an act covered by that law are you
excused? For instance, it is unlawful to deface
a note, you were looking for paper, but all you
have to write on is a 20-peso bill. If you write on
it, you will go to jail. Can you say that you dont
know it is illegal?
A. No, because ignorance of the law excuses no
one from compliance therewith.
Ignorance of a Fact may excuse a person from
liability.
To illustrate: There is a provincial man. He decided
to try his luck in Manila. He was hardworking, tall,
dark and handsome. While walking around, he met
a woman. A relationship was developed between
them. Later on, the woman became pregnant. One
day while they were walking, the woman met a man
who confronted her. The man said You are
pregnant! Who did this? The woman pointed at the
provincial man. He later found out that the man was
her husband after a case of adultery was filed
against him.

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Persons and Family Relations

Q. If you were the lawyer of the provincial man,

what will be your defense?
A. The defense would be, he had no knowledge
that the woman had a husband. That is ignorance
of the fact.
Q. Now if he knew that the woman was married,
can he raise that in his province it is
understood that when spouses have been
separated for 7 years, it is fine that a single
person have a relationship with either spouse?
A. No. Even if it is the custom of that province, the
law is clear, ignorance of the law excuses no one
from compliance therewith.
Q. If are to become a judge and you are to
render a judgment, but when you were looking
for a law you cannot find a law that is
applicable. What do you do?
A. You look for jurisprudence. The Civil Code says
that rulings of the court forms part of our legal
system. So if you are asked what are the
components of the legal system? Law + Rulings
interpreting the law = Legal System.
Supreme Court has also ruled that only its
rulings become part of the law of the land. Rulings
of other courts even the CA do not form part of the
law of the land.
Q. We have a faculty member before, one time
we asked him, what if there was a case and
there is no proper law or jurisprudence, what do
you do? He answered, Oh thats easy, I will
simply make an order stating that the counsel is
given 15 days to file a memorandum. So the
counsel will be the one in charge of finding the
appropriate jurisprudence. But what if there
was no proper jurisprudence or case cited?
A. You decide based on equity if it is a civil case. If
there is a law, you must apply the law. If there is an
applicable law, no matter how harsh that law might
be, you must render a decision based on that law.
Otherwise, you will be sanctioned for it. So it is not
true that the courts decide based on law and equity.
Because if there is a law, you apply the law, if there
is no law, then you apply equity.
Q. What is equity?
A. Equity is an ordinary mans sense of justice.

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Persons and Family Relations

Q. If in the same situation occurs in a criminal

case, what should you do?
A. You must acquit. The law provides that if there is
no law defining and penalizing the act, it is not a
crime.

law. If the special government office created an IRR

that oversteps the law, it cannot be enforced
because IRRS must be in conformity with the law
that permitted the IRRS. Local ordinances are the
same.

Q. How many days are there in a year?

A. 365, except a leap year when the year has 366
days. How do you know that it is a leap year
without looking at the calendar? When the year is
exactly divisible by 4.

Example: The ordinance that prohibited the aerial

spraying of chemicals in banana plantations was
recently declared by the Supreme Court as
unconstitutional.

Q. How many days in a month?

A. If the month is identified by name, then the usual
number of days for that month. If the month is not
identified by name that is equivalent of only 30
days.
Q. Is 12 months the same as 1 year?
A. No, while there are 12 months in a year, 12
months is not the same as 1 year, 12 months is
only equivalent to 360 days.
Q. Is 52 weeks the same as 1 year?
A. No, because 52 x 7 = 364.
Q. How long is a day?
A. Sunrise to sunset. Remember daytime and
nighttime. Daytime is sunrise to sunset. Nighttime is
sunset to sunrise.
Q. How do you count a period?
A. First day excluded, last day included.
Q. Jaywalking is an offense in your locality, but
it is not observed. If one day the mayor told
officers to arrest persons jaywalking, can you
argue that it is not observed?
A. No, because laws are only repealed by
subsequent ones. If the law still exists, practices to
the contrary do not repeal a law.
Note: If the basic law is the Constitution, below it
are acts of legislature and presidential decrees.
Under the acts of legislature there are IRRs and
local ordinances. Most laws provide that
government agencies will be the one to draft
implementing rules and regulations. Unlike the laws
of the past, when it is passed, it is already
complete. The IRR must be in conformity with the

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Hence, the ordinance must follow the act of

legislature, and the act of legislature must conform
with the constitution.
Q. What if the act of legislature is contrary with
the Constitution, should it still be observed?
A. Yes, until the Supreme Court declares its
unconstitutionality. If there is a law which is
unconstitutional or illegal, question the law; but as
long as it has not yet been set aside by the
Supreme Court follow the law.
Q. What are the kinds of persons?
A. Persons are either natural or juridical. Juridical
persons include the state and its political
subdivisions, also partnerships and corporations.
Q. What is juridical personality?
A. It is the fitness to be the subject of legal
relations.
Q. How is juridical personality acquired?
A. By birth or creation. If a natural person is born,
he has juridical personality, but when he dies,
juridical personality is extinguished or lost. Birth
determines, death terminates.
The law states that a fetus that had an intrauterine
life of less than 7 months shall be considered to
have acquired juridical personality if born alive and
has survived for at least 24 hrs.
Q. For instance there was a pregnant woman
who suddenly slipped and hit her bum on the
pavement, the fetus went out and cried. Is the
fetus
considered
as
having
juridical
personality?
A. Not yet. He must survive for at least 24 hrs. If he
dies before that, under the law, he is not considered

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Persons and Family Relations

as a person to be the subject of legal relations.

However, if the baby already had an intrauterine life
of more than 7 months, even if it only lives for 1
minute, it has already acquired juridical personality.

interdiction. You are already 40 years old, you have

a mind of a genius, but you are sentenced to serve
reclusion perpetua. You do not have capacity to act.

General rule is birth determines personality, the

exception is a fetus that had an intrauterine life of
less than 7 months, because the law requires that it
must survives within 24 hrs upon birth.

Marriage

As to the existence of juridical personality, follow

the provisions of the appropriate law. If it is a
partnership, follow the law on partnership. If it is a
corporation, you follow the Corporation Code. Now
if it is a government owned and controlled
corporation or municipal corporation, it must be
created by a special law and it will only exist upon
complete publication of the law in the Official
Gazette or newspaper of general circulation.
Q. What is capacity to act?
A. It is not the same as juridical personality. As long
as there is life, there is juridical personality, but
being alive does not necessarily indicate capacity
to act. For instance, a baby has juridical capacity,
but has no capacity to act.
Q. When does one acquire capacity to act?
A. Capacity to act is acquired when a person
reaches the age of majority which now is 18 years
old.
Q. If a person reaches the age of majority, does
that person certainly have the capacity to act
with legal effects?
A. No, not all who reaches the age of majority can
perform with legal effects. For example those who
are insane or demented persons, deaf-mutes who
do not know how to read and write. Persons who
cannot give valid consent to a contract do not have
a capacity to act. However, there is an exception.
Q. For instance if you are a minor, and you were
given a check, can you effectively negotiate that
check?
A. Yes, because the law allows it. In the law there is
a provision regarding the endorsement by an infant.
Capacity to act is adversely affected by insanity, or
certain mental or physical conditions and also civil

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Marriage is a special contract of permanent

union between a man and 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. [Art. 1, Family
Code]
Two Aspects of Marriage
1. Special contract; and
2. Status, relation or an institution
Marriage as a Status or Union
Union of one man with one woman for the
reciprocal blessings of domestic home life, and for
the birth, rearing, and education of children.
New relation in the maintenance of which the
general public is interested
Marriage as a ceremony or the wedding ends when
the marriage as a status begins
Marriage
Contracts

Distinguished

from

Ordinary

Marriage
Ordinary Contract
1. Contract and social 1. Merely a contract
institution
2. Stipulations
are 2. Stipulations are
generally fixed by
generally fixed by the
law except marriage
parties
settlements
3. Dissolved only by
3. Can be ended by
death or annulment,
mutual
agreement
not by mutual
and by other legal
agreement
causes

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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 female; and
(2) Consent freely given in the presence of a a
solemnizing officer.
Essential Requisites of Marriage
1. Legal Capacity
2. Consent freely given
Legal Capacity
The parties must have the necessary age or the
necessary consent of parents in certain cases.
There must be no impediment caused by a prior
existing marriage or by certain relationships by
affinity or consanguinity.
Consent Freely Given
Required because marriage is a contract and a
voluntary act.

Persons and Family Relations

3. Marriage ceremony
Authority of the Solemnizing Officer
Authorized or not, the marriage would be valid if
either or both parties believed in good faith in his
authority to solemnize the marriage.
Marriage License
Marriage license is not a marriage certificate; the
latter is a formal requisite, thus an oral
solemnization is valid and may be proved by oral
evidence.
[Note: In Bartolome vs. Bartolome, the SC ruled
that cohabitation between a man and a woman for
many years creates a presumption of marriage
even if there is no record that a marriage between
them took place in the office of the Manila Civil
Registry by reason that lack of marriage record in
Manila does not rebut the presumption of marriage,
for the marriage could have been celebrated
elsewhere.]
Marriage Ceremony

A vitiated consent makes the marriage voidable

valid until annulled.

Must be made in the presence of not less than two

witnesses of legal age.

If there is absolutely no consent, the marriage is

void.

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).

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.
Formal Requisites
1. Authority of the solemnizing officer;
2. Marriage license; and

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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.
Absence of Essential or Formal Requisites
One may file a petition for judicial declaration of
nullity of marriage.
Defect in the Essential Requisites
The marriage is voidable.

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File a petition for annulment of marriage.

Irregularity in Formal Requisites
Generally, irregularity will not affect the validity of
the marriage BUT it will subject the party
responsible to civil, criminal and administrative
liabilities.
Art. 5 Any male or female of the age of 18 years
or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract
marriage.
Marriage Impediments
1. Article 37 [Incestuous Marriages]
a. Ascendants and descendants; and
b. Brothers and sisters whether full or half blood
2. Article 38 [Void Marriages by Reason of Public
Policy]
a. Collateral blood relatives, whether legitimate or
illegitimate, up to the 4th civil degree;
b. Step-parents and step-children;
c. Parents-in-law and children-in-law;
d. Surviving spouse of the adopting parent and the
adopted child;
e. Surviving spouse of the adopted child and the
adopter;
f. Adopted child and a legitimate child of the
adopter;
g. Adopted children of the same adopter; and
h. Parties where one, with the intention to marry
the other, killed that other persons spouse, or
his or her own spouse.
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.

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Persons and Family Relations

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.
Marriage Ceremony
No particular form is needed and need not be
written; signs would be sufficient.
[Note: In People vs. Opena, the SC held that when
a man and a woman cohabitate, deporting
themselves as husband and wife, the mere denial
of one does not rebut the presumption of a valid
and legal marriage.]
Semper Praesumitur Matrimonio
Presumption is always in favor of the validity of the
marriage; burden of proof is placed on the person
who seeks to impugn it.
Marriage by Proxy
a. If performed in the Philippines VOID because
physical presence of both parties is required under
Art. 6
b. if performed abroad Valid if valid in the place
where celebrated whether between Filipinos or
foreigners or mixed.
Art. 7 Marriage may be solemnized by:
(1) Any incumbent member of the judiciary
within the courts jurisdiction;
(2) Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect and registered with the
civil registrar genera, 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 or airplane chief only in
cases mentioned in Article 31;

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(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.
Ship Captain or Airplane Chief
Marriage in articulo mortis between passengers or
crew members may be solemnized not only while
the ship is at sea or the plane is in flight but also
during stopovers at ports of call.
Military Commander

Persons and Family Relations

No authority under the Family Code but under the

Local Government Code.
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 consul-general, consul or vice-consul, as
the case may be, and not elsewhere, except in
cases of marriages 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.

Must be a commissioned officer; authorized to

solemnize marriages in articulo mortis between
persons within the zone of military operation,
whether members of the armed forces or civilians.

Public Marriages

Consular Official

Instances Where Public Solemnization is Not

Needed

Issuance of the marriage license and the duties of

the local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be
performed by said consular official.
Governors, Mayors and Ambassadors

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A requirement as the state takes active interest in

the marriage.

(a) Marriages in chambers of the Justice or Judge;

(b) Marriages in articulo mortis;
(c) Marriages in a remote place; and
(d) When both of the parties request in writing for
solemnization in some other place. Place must
be designated in a sworn statement