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CIVIL CODE OF THE PHILIPPINES: Preliminary Title

Chapter 1: Effect and Application of Laws
Codal Provision Doctrine Cases
ART 1.  Prepared by the Roxas Code Commission
 (Created by the EO 48 by Pres. Manuel Quezon)
This Act shall be known as the  Chairperson: Dr. Jorge C. Bocobo
Civil Code of the Philippines.  Members: Judge Guillermo Guevarra, Dean Pedro Ylagan,
Francisco Capistrano, Dr. Carmelino Alvendia
 January 26, 1949 - the Senate and House of
Representatives passed RA 386 (An Act to Ordain and
Institute the Civil Code of the Philippines)
ART 2. EFFECTIVITY OF THE CIVIL CODE Amendment by E.O 200 by President Corazon
 The Civil Code took effect on August 30, 1950 Aquino
Laws shall take effect fifteen  Completion of publication date: August 30 1949 Periodicals are more easily available, have a wide
days following the completion (Publication shall take effect one year after publication) circulation, and come out regularly
of their publication in Official
Gazette, unless it is otherwise EXECUTIVE NUMBER 200 Tanada v Tuvera 146 SCRA 446
provided. This Code shall take  “… either in Official Gazette or in a newspaper of general Effectivity of a law as soon as it is signed (without its
effect one year after circulation” publication) would cause prejudice with citizens becuase
publication.  LAWS refers to all statues, including local and private laws they would not know that such a law existed

Amendment by E.O 200 by EFFECTIVITY OF LAWS

President Corazon Aquino  It shall have effect only after the expiration of the fifteen-
Section 1. Laws shall take day period following the completion of publication so
effect after fifteen days people can be familiar with the statute
following completion of  Publication must be in full or it is not publication at all
publication in Official Gazette because purpose is to inform (Tanada v Tuvera 146 SCRA
or newspaper of general 446)
circulation, unless it is
 Covered by this rule: presidential decrees and executive
otherwise provided.
orders, administrative rules and regulations if purpose is to
enforce or implement, all presidential decrees (including
those naming a public place after a favored individual or
exempting him from certain prohibitions or requirements),
circulars by Monetary Board (only if they are to "fill in the
details" of a Central Bank act)
 Not covered: Interpretative regulations and those internal in
nature (not public), letters of instructions, instructions of the
Minister of Social Welfare municipal government (Tanada v
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Tuvera 146 SCRA 446)

"UNLESS IT IS OTHERWISE PROVIDED"

 only refers to the fifteen day period and NOT the
requirement of the publication
 Publication is an indispensable requisite; otherwise, law
would be ineffective
 If the law provides for a different period shorter or longer
than the 15-day period, the period stated by the law will
prevail. If it mentions that it shall take effect immediately,
it means it will take effect right after publication is
completed.
ART 3. REASON Tanada v Tuvera
 Founded not only on expediency and policy but also on It would not be just if we punish or burden a citizen for a
Ignorance of the law excuses necessity breaking a law where he had no notice whatsoever.
no one from compliance  Every person knows the law is a conclusive presumption.
therewith.  Applies only to mandatory and prohibitory laws
 This article is a necessary consequence of the mandatory
provision that all laws must be published - "ignorantia
legis non excusat"
ART 4. NON- RETROACTIVITY OF LAWS
 Laws look into the future therefore, unless the legislature
Laws shall have no retroactive may have given that effect to some legal provisions, then
effect, unless the contrary is statues are to be construed as having only prospective
provided. operation.
 Laws shall have no retroactive effect unless purpose is
expressly declared or necessarily implied. If there is doubt,
then article 4 holds.

RETROACTIVE APPLICATION
 Statutes are not to be construed as intended to have a
retroactive effect so as to affect pending proceedings,
unless such intent is expressly declared or clearly and
necessary implied from the language of enactment.
(Espiritu v Cipriano, 55 SCRA 533)

The following may be given retroactive effect:

 curative or remedial
o Curative laws are not within constitutional inhibitions;
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necessarily retrospective Development Bank of the Philippines v. Court of

o RULE: if the thing omitted or failed to be done, and Appeals
which constitutes the defect sought to be removed, is Statues are forms of "retrospective legislation which
something the legislature might have dispensed with reach back on past events to correct errors of
by previous statutes, it may do so by subsequent irregularities and to render valid and effective attempted
ones acts which would otherwise be ineffective for the
 expressly provides for retroactivity purpose the parties intended
o The Family Code (August 3, 1988) shall have
retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with
Civil Code or other laws"
 procedural
o When a statute deals with procedure only (those
which have accrued or pending and future actions)
o changes in substantive law or SC judicial doctrines
may NOT be applied retroactively
 penal in character and favorable to the accused
o Article 22 of the Revised Penal Code (RPC) : laws
shall have retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual
criminal but it if a final sentence has been
pronounced and the convict is serving the same
o habitual delinquent - if within the period of 10 years
from the date of hs release or last conviction of the
crime of serious or less serious physical injuries, he
is found guilty of any said crimes a third time or
oftener)
o subject to constitutional provisions
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ART 5. MANDATORY AND PROHIBITORY LAWS

Acts executed against the
provisions of mandatory or
prohibitory laws shall be void,
except when the law itself
authorizes their validity.
 Mandatory Law - when the omission of which renders
the proceeding or acts to which it relates generally illegal
or void.
 Prescriptive periods are mandatory in character (ex: the
husband, in order to question the legitimacy of the child,
must file a case within one year from the knowledge of
the birth if the child or recording in the civil register if in
the same municipality where he lives); if the case is filed
beyond a year, the case will be dismissed
 Prohibitory Laws - those which contain positive
prohibitions are couched in the negative terms importing
that the act required shall not be done otherwise than
designated; Acts committed in violation of prohibitory laws
are void unless the law expressly provides for its validity.

ART 6. WAIVER Consunji v. Court of Appeals

Rights may be waived, unless
the waiver is contrary to law,
public policy, morals or good
customs, or prejudicial to a
third person with a right
recognized by law.
 an intentional relinquishment of a known right; not
presumed but must be clearly and convincingly shown
either by express stipulation or acts admitting no other
reasonable explanation
 A right must be in in existence at the time of waiver and
must be exercised by a duly capacitated person
possessing the right to make the waiver.
Ignorance of martial fact negates waiver, and waiver
cannot be established by a consent given. A person
makes a knowing and intelligent waiver when that
person knows that a right exists and has adequate
knowledge upon which to make an intelligent decision.
This waiver must be illustrated on the record or by
evidence.

PROHIBITION AGAINST WAIVER Gongon v. Court of Appeals

 Waivers cannot be made if they are contrary to law, Preferential rights of tenants under Commonwealth Act
public order, public policy, morals or good customs, or No. 539 to purchase a public land cannot be validly
prejudicial to a third person with a right recognized by waived because it is against public policy
law. (ex. minimum wage)
 Signing by a disabled employee of a satisfaction Juat v. Land Tenure Administration
receipt does not constitute a waiver (to receive less Alleged waiver of his right made by the petitioner shall
compensation than worker is entitled to) be considered null and void.
 Rights, protections, and advantages conferred by
statues may be generally waived however, the object
of a statue is to promote great public interests, liberty
and morals, it cannot be defeated by any private
stipulation
Art 7. REPEAL Iloilo Palay and Corn Planters Association, Inc. v.
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 The repeal of the law is a legislative act of abrogating Feliciano

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
govern.
Administrative or executive
acts, orders and regulations
shall be valid only when they
are not contrary to the laws or
the Consitution
UNCONSTITUTIONAL STATUES
through a subsequent law the effects of a previous
statue or portions thereof.
 Two kinds of repeal: express or implied
 Implied repeal: when a new law contains provisons
inconsistent with those of former without expressly
repealing them. Repeals and amendments by
implications are not favored.
 Express repeal: literally declared by a new law, either
in specific terms, as where particular laws and
provisions are named and identified and declared to
be repealed, or generally, where a provision in a new
law declares all laws and parts of laws inconsistent
therewith to be repealed.
 In Statutory Construction: a special statue is not
repealed by a subsequent statue unless the intent to
repeal is manifest although the terms are broad enough
to include the cases embraced in the special law
 Statutes should be given a meaning that will not bring
them in conflict with the Constitution
 The constitutionality or unconstitutionality of a stature
depends upon factors other than those existing at the
time of the enactment thereof, unaffected by the act or
omissions of law enforcing agencies
The phrase "All laws and parts thereof inconsistent with
the provisions of this Act are hereby repealed or
modified accordingly" is not an express repealing clause
because it fails to identify the act or acts that are
intended to be repealed.
Victorias Milling Company v. Social Security
Commission
The details and the manner of carrying out the law are
oftentimes left to the administrative agency entrusted
with its enforcement (due delegation of legislative power.
A rule is binding on the courts so long as the procedure
fixed for its promulgation is followed, and its scope is
within the statutory authority granted by the legislate
United States V. Tupasi
The regulations adopted under legislative authority by a
particular department must be in harmony with the
provisions of the law ; with a sole purpose of carrying
into effect its general provision

PARTIAL UNCONSTITUTIONALITY
 Where a portion of a statue is rendered
unconstitutional and the remainder valid, the parts will
be separated.
 The valid portion must be so far independent of the
invalid portion must be so far independent of the
invalid portion that it is fair to presume that the
Legislature would have enacted by itself

ART 8. JUDICIAL CONSTRUCTION AND INTERPRETATION People v. Jabinal

 Interpreting and construing vague provisions of law When a doctrine of Court is overruled and a different
Judicial decisions applying or relative to a particular dispute view is adopted, the new doctrine should apply
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interpreting the laws or the
Constitution shall form part of
the legal system of the
Philippines
 Construction, verily, is the art or process of discovering
the law with respect to its application to a given case.
EFFECT OF JUDICIAL DECISION
 Judicial decisions, assume the same authority as the
statue itself and, until abandoned, they become the
criteria which must control the actuations of those
called upon and those duty bound to enforce them
 legis interpretation legis vim obtinet - the
interpretation places upon the written law by a
competent court has the force of law
 Judicial decisions of the Supreme Corut are
authoritative and precedent-setting
Decisions of the lower courts are merely persuasive
WHEN JUDICIAL DECISIONS DEEMED PART OF THE LAW
 Applications and interpretations of the laws are part as
per the date of enactment
prospectively and does not apply to parties who relied
on old doctrines and acted on faith thereof. This is
especially true in construction and application of
Criminal laws.
People v Licera
Where a new doctrine abrogates an old rule, the new
doctrine should operate prospectively only and should
not adversely affect those favored by the old rule.
Apiag v Cantero
Administrative liability for immorality for entering into a
subsequent marriage without having first void marriage
judicially declared a nullity will depend on the prevailing
jurisprudence at the time of the second marriage.

ART 9. DUTY OF JUDGES Corpus v. Cabalina

No judge or court shall decline
to render judgment by reason
of the silence, obscurity or
insufficiency of the laws.
JUDICIAL LEGISLATION
 Judges are tasked with the dispensation of justice in Where the conclusions of a judge in his decisions are
accordance with the constitution not without logic or reason, he cannot be said to have
 Judges must not evade performance of this been incompetent
responsibility just because of a non-existence of law or
regardless of if the law is vague or inadequate. In Re: Padilla
 Judges must be guided by equity, fairness, and a According to Roman Law, when statues are silent of
sense of justice ambiguous, courts should arrive at a solution that would
respond to the vehement urge of conscience.
 Government is divided into three great departments -
executive, legislative, and judiciary. Each department
cannot encroach into the jurisdiction of the other.
 Article 9 of the New Civil Code debunks the concept
that courts cannot engage in judicial legislation. It
states, "no judge or court shall decline to render
judgment by reason of the silence, obscurity, or
insufficiency of the laws"

ART 10. DOUBFUL STATUTES


In case of doubt in the
interpretation and application
of laws, it is presumed that the
lawmaking body intended right
and justice to prevail
ART 11.
Customs which are contrary to
law, public order or public
policy shall not be
countenanced.
ART 12.
A custom must be proved as a
fact, according to the rules of
evidence
ART 13.
When the law speaks 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
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 Laws must not be added and subtracted by the
judiciary, especially when it is clear and unambiguous.
 If there is ambiguity in the law, it is up to the legislative
to interpret the law. The interpretation should not be at
war with the end sought to be attained.
 A literal interpretation is to be rejected if it would be
unjust or lead to absurd results.
CUSTOMS
 rules of conduct formed by repetition of acts, uniformly
observed and practices as a social rule, legally binding
and obligatory
 Customs muse be proved as a fact according to the
rules of evidence, they are sources of rights and
cannot be considered by a court of justice unless each
custom is established by competent evidence.
 Juridical customs must be differentiated from social
customs; the former can supplement statutory law or
applied in absence of such statute; customs prevail
over statutory or legal rules
COMPUTATION OF LEGAL PERIOD National Marketing Corporation v. Tecson
Impliedly repealed by EO 292 or the Administrative Code of Year is equivalent to 365 days regardless of whether it is
1987 a regular year or a leap year
 Year = twelve calendar months (EO 292)
 Month (not specified) = 30 days CIR v. Primetown Property Group, G.R. No. 162155
 Month (specified) = no. of days in that specific or EO 292
month Art 13 of the Civil Code of the Philippines was impliedly
 Day = 24 hours repealed by EO 292 or the Administrative Code of 1987
 Night = sunset to sunrise by its repealing clause under Section 27. Under EO 292,
 Period = First day shall be excluded and the last the number of days in computing for a year is irrelevant.
day, included.
 Leap year = 366 days BUT THIS CONTRAVENES Garvida v. Sales, 83 SCAD 188, 271 SCRA 767
Art. 13 definition of the year. One year EXPLICITLY "Not more than than 21 years old" is not equivalent to
ordained in the Civil Code is 365 days "less than 22 years old"

first day shall be excluded,
and the last day included.
ART 14.
Penal laws are obligatory upon
all who live or sojourn in
Philippine territory
ART 15.
Laws about family rights and
duties& status, condition and
legal capacity of persons are
binding upon citizens of the
Philippines even though living
abroad.
ART 16.
Real property as well as
personal property is subject
to the law of the country
were it is situated.
However, intestate and
testamentary successions,
both with respect to the
order of succession and to
amount of successional
rights and to the intrinsic
validity of testamentary
provisions, shall be
regulated by the national
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OBLIGATORY FORCE OF PENAL LAWS 1961 Vienna Convention on Diplomatic Relations
 Citizens and foreigners are subject to penal laws and  Provides that a diplomatic agent shall be inviolable
all other laws. Liability for any violation will attach and shall not be liable to any form of arrest of
regardless of whether a person is merely sojourning. detention (Article 29)
 Territoriality rule  Diplomatic Agent – head of the mission or a
member of the diplomatic staff of the mission.
EXCEPTION  All heads of state visiting the Philippines are
 Although foreigners may be liable for committing immune from Philippine criminal jurisdiction
offenses, they cannot be criminally prosecuted in the
Philippines in cases where the Phil. has waived
criminal jurisdiction over them (based on principles of
public international law)
NATIONALITY RULE
 Regardless where a citizen of the Philippines may be,
he/she will be governed by Philippine laws.
 Filipino (initiates a petition abroad to obtain absolute
divorce, Filipino or foreign) and is successful =
Philippines will not recognize such absolute divorce
(Article 26 par 2 Family Code)
 The only allowable absolute divorce is when the
foreigner files the petition to be divorced to a
Philippine citizen and is successful. (Tenchavez v.
Escaño, 15 SCRA 355)
LAWS GOVERNING REAL PROPERTIES Article 16, par.2 & Article 1039 of Civil Code
 Law of the country where real properly is situated shall ● National law of decedent applicable with regard to:
be the governing law over such real property o Order of Succession
 Regardless of location, when it comes to intestate or o Amount of successional rights
testamentary succession, the nationality of the o Intrinsic validity of Provisions of Will
deceased shall be followed o Capacity to succeed
Miciano v Brimo
A provision in a foreigner’s will to the effect that his
properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and
void.
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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.
ART 17. EXTRINSIC VALIDITY
 Solemnities of public instruments, wills, and contracts
The forms and solemnities of shall be governed by the laws of the country where
contracts, wills, and other they are executed
public instruments shall be ACTS BEFORE DIPLOMATIC AND CONSULAR OFFICIALS
governed by the laws of the  Acts or contracts made in a foreign country before
country in which they are diplomatic and consular officials must conform to the
executed. solemnities under Philippine Law
When the acts referred to are PROHIBITIVE LAWS
executed before the  Shall not be rendered ineffective by laws or judgments
diplomatic or consular promulgated or agreed upon by other countries.
officials of the Republic of the  laws concerning property, persons, their acts and
Philippines in a foreign those meant for public order, public policy, or good
country, the solemnities customs will continue to be in effect even if the person
established by Philippine is in a different country with different laws
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.
ART 18. SUPPLEMENTARY NATURE Insular v. Sun Life, 41 Phil. 269
 In matters governed by the Code of Commerce or by Insurance act deals with life insurance, it is silent to the
In matters which are governed special laws, deficiencies shall be supplied by the methods to be followed in order that there may be a
by the Code of Commerce and provisions of the Civil Code contract of Insurance.
special laws, their deficiency  However, one must check the kind of transaction on at

shall be supplied by the
provisions of this Code.
Chapter Two: Human Relations
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, willfully or negligently
causes damage to another,
shall indemnify the latter for
the same.
ART 21.
Any person who willfully
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
damage.
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hand and whether the civil code provision is applicable
Articles 19, 20, and 21 enunciate the “abuse of right”
doctrine.
ARTICLE 19
 provides rule of conduct consistent with orderly and
harmonious relationship
 known as Principle of Abuse of Rights – sets
standards for exercising of rights and performance of
duties
o Standards are: to act with justice; to give
everyone his due; observe honesty and good
faith
 Elements of an abuse of right under Article 19:
o There is a legal right or duty
o Which is exercised in bad faith
o For the sole intent of prejudicing or injuring
another
ARTICLE 20
 Designed to fill in the “countless gaps in the statues,
which leave so many victions of moral wrongs
helpless”
ARTICLE 21
 Deals with acts contra bonus mores. Has ff elements:
MIDTERMS REVIEWER
In a previous case, the Carriage of Goods by Sea Act
there is a one year prescription for making a claim for
loss or damage and the plaintiff believed that he could
extend the prescriptive period by giving a written demand
pursuant to Art. 1155 of the civil code, especially since
the civil code is meant to be supplementary according to
Art. 18. However the Supreme Court ruled that it was not
applicable because when it comes to matters of goods in
transport it is desirable that it be resolved at once taking
into consideration the nature of the goods.
Development Bank of the Philippines v. Court of
Appeals
● Good faith – the state of the mind which is
manifested by the acts of the individual concerned;
intention to abstain from taking an unconscionable
and unscrupulous advantage of another
● Bad faith – does not simply connote bad judgment or
simple negligence, dishonest purpose or some moral
obliquity and conscious doing of a wrong (Malice –
connotes ill-will or spite and speaks not in response
to duty)
Albenson Enterprises Corp v. Court of Appeals
The provisions provide sanctions for all other provisions
of law which do not especially provide their own sanction
1947 Code Commission
● ‘A’ seduces ‘X’ (19 years old) and promise of
marriage was not made (or cannot be proved). X
gets pregnant. Civil action for breach of promise of
marriage can be filed.
● Under Article 20, X and her parents will have right of
action.
● What about the boundary line between morality and

ART 22.
Every person who through an
act or performance by another,
or any other means, acquires
or comes into possession of
something at the expense of
the latter without just or legal
ground, shall return the same
to him.
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o There is an act which is legal
o But is contrary to morals, good customs,
public order, or public policy
o Done with intent to injure
Articles 19, 20, and 21 are related to each other because
under these, acts that cause injury to another may be made
the basis for an award of damages. Articles 19 and 21 (act
must be intentional) while Article 20 does not distinguish and
may be done “willfully” or “negligently”.
UNJUST ENRICHMENT
● No person can claim what is not validly and legally his
or hers
● This article prevents the concept of unjust enrichment
● Nemo cum alterious detriment locupletari potest : a
person shall not be allowed to profit or enrich himself
at another's expense
MIDTERMS REVIEWER
law? Every good law draws its breadth from morals
Philippine National Bank v. Court of Appeals
In failing to observe the reasonable degree of care &
vigilance which the surrounding circumstances
reasonably impose, petitioner is consequently liable for
damages caused on private respondents
People's Bank v. Dahican Lumber Company
Any third person who induces another to violate his
contract shall be liable for damages to the other
contracting party
Driver's group claiming to protect the interest of all
drivers of a particular transportation company
The manner by which constitutional right is to be
exercised should not undermine public peace and order
nor should it violate the legal rights of other person
Gashem Shookat Baksh v. Court of Appeals
A breach of marriage is not actionable
Wassmer V. Velez
To formally set a wedding, and go through and spend for
all the wedding preparations and publicity, only to walk
out of it is a different matter (given that a breach or
promise is usually not actionable but there is proximate
cause for fraud and deceit

Pacific Merchandising Corporation v. Consolacion
Insurance & Surety Co.
In a case where the receiver of certain properties,
without approval of the Court that appointed him as
receiver, entered in an indemnity agreement and bound
himself liable ; the owner-receiver should reimburse the
creditor of the cost of improvements
Perez v. Pomar
Where one has rendered services to another, and these
services are accepted by the latter, it is just that he
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should pay a reasonable remuneration because “it is

well-known principle of law, that no one should be
permitted to enrich himself to the damage of another”

Republic v. Ballocanog
The prohibition against unjust enrichment like wise
applies to the government
ART 23. COWS AND CROPS
Without A’s knowledge, flood drives cattle to the
Even when an act or event CULTIVATED HIGHLAND of B. A’s cattle are saved,
causing damage to another’s but B’s crops destroyed, A was not at fault, but he was
property was not due to the benefited. He should indemnify B.
fault or negligence of the
defendant, the latter shall be
liable for indemnity if through
the act or event he was
benefited.
ART 24. COURT VIGILANCE De Lima v. Laguna Tayabas Company
● The courts muse render justice and therefore, they Pleadings as well as remedial laws should be construed
In all contractual, property or must be very vigilant in protecting the right of the liberally in order that the pauper litigants may have
other relations, when one of disadvantaged with the end in view that any decision ample opportunity to pursue their respective claims.
the parties is at a disadvantage will be in consonance with what is right and legal
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. EXTRAVAGANCE DURING EMERGENCY
 prevent inconsiderate and ostentatious activities
Thoughtless extravagance in during times of emergency
expenses for pleasure or  except for: government or private charitable institution
display during a period of
acute public want or
emergency may be stopped by
order of the courts at the
instance of any gov't or private
charitable institution.
ART 26. PROTECTION OF HUMAN DIGNITY RCPI v. Verchez
 If human personality is not properly exalted, then the The SC awarded damages on the basis of Art. 26 (2) of

Every person shall respect the
dignity, personality, privacy
and peace of mind of his
neighbors and other person.
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) Prying into the privacy of
another's residence
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 of 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 the latter,
without prejudice to any
disciplinary administrative
action that may be taken.
ART 28.
Unfair competition in
agricultural, commercial or
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laws are indeed defective the Civil Code considering that the act or omission of the
 Privacy of one's home is an inviolable right telegraph company disturbed the peace of mind of the
 Acts referred to in No. 2 are multifarious, and yet many family
of them are not within the purview of the laws in force
o alienation of the affection of another's wife Hing v. Choachuy
o meddling of so-called friends who poison the Businesses offices are included in Art. 26 where the
mind of one or more members owner "has the right to exclude the public or deny
 Penal laws against defamation and unjust vexation are access"
glaringly inadequate.
o religious freedom does not authorize anyone
to heap disrepute upon another by reason of
the latter's religion
o many rich people treat the poor with contempt
because of the latter's lowly station in life
o place of birth, birth defects and other personal
conditions are too often the pretext of
humiliation cast upon persons
RELIEF AGAINST PUBLIC OFFICIALS Ledesma v. Court of Appeals
 a public official is supposed to be an agent or at least Defendant (Ledesma) being a public officer should have
a representation of the government acted with circumspection and due regard to the rights of
 the law exacts on him or her, an obligation to be very Ms Delmo
vigilant and just so that the public can be assured that
the government is truly effective in servicing their Correa v. CFI of Bulacan
needs A public officer who commits a tort or other wrongful act
 any person suffering is entitled to damages done in excess or beyond the scope of his duty is not
protected by his office & is personally liable therefore
unlike any private individual
UNFAIR COMPETITION
 Necessary in a system of free enterprise
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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. CIVIL ACTION Philippine National Bank v. Catipon
 If the guilt of the accused is not proven beyond Judgment of acquittal does not constitute a bar to a
When the accused in criminal reasonable doubt, a civil action to prove the civil subsequent civil action involving the same subject
prosecution is acquitted on the liability can still be files where only preponderance of matter, civil action brought against the defendant by the
ground that his guilt has not evidence is needed. State
been proved beyond  Proof beyond reasonable doubt - amount of proof
reasonable doubt, a civil action which forms an abiding moral certainty that accused Mendoza v. Alcala
for damages for the same act committed the crime charged The accused was acquitted of estafa after a civil case
or omission may be instituted.  Preponderance of evidence - as a whole, the evidence was filed against the accused was acquitted of estafa
Such action requires only a adduced by one side outweighs the adverse party. after a civil case was filed against the accused arising
preponderance of evidence. from the same transaction for purposes of the civil
Upon motion of the defendant, liability, the SC overruled the decision of the trial court
the court may require the dismissing the civil complaint
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. CIVIL OBLIGATION ARISING FROM A CRIMINAL
OFFENSE
When a separate civil action is  The required quantum of evidence in a civil suit to
brought to demand civil claim such civil obligation is not proof beyond
liability arising from a criminal reasonable doubt but merely preponderance of

offense and no criminal
proceedings are instituted
during the pendency of the
civil case, a preponderance of
evidence shall likewise be
sufficient
ART 31.
When the civil action is based
on an obligation not arising
from the act or omission
complained of as felony, such
civil action may proceed
independently of the criminal
proceedings and regardless of
the results 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 personal
shall be liable to the latter for
damages:
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evidence
CIVIL OBLIGATION NOT ARISING FROM FELONY Due to the reckless imprudence of the drive of a bus
 certain injuries which do not arise from a crime company, the bus being driven fell off resulting in the
 seeks to give an aggrieved party a remedy and a death of and injuries to certain passengers
cause of action in this kind of situation - driver was acquitted in the consequent criminal case
 Quasi-delict : such fault or negligence, if there is no for double homicide thru reckless imprudence because
pre-existing contractual relation between the parties his guilt was not proven beyond reasonable doubt
 When the civil action is based on an obligation not - the aggrieved parties later on filed a civil case against
arising from the act or omission complained of as a the bus company for failure of the company to carry the
felony, such civil action may proceed independently of passengers safely to their destination
the criminal proceedings and regardless of the result - a civil action based on contractual liability of a common
of the latter. carries is distinct from the criminal action instituted
 quasi-delict is cupla aquilana and is separate and against the carrier or its employee based on the latter's
distinct from criminal negligence (which is a delict) criminal negligence
 an accusation of criminal negligence, whether on
reasonable roubt or not, shall not be a bar to
subsequent civil action, not for civil liability arising from
criminal negligence, but fro damages due to a quasi-
delict
 plaintiff cannot recover damages twice for the same
act or ommission of the defendant
 civil action is based upon an obligation not arising from
the act or omission complained of a felony, such civil
PARTICULAR WRONG OR INJURY
 Two Kinds of Duties exercised by public officers
o Of Duties to the Public
 duty is owing primarily to the public
collectively
 who act for the public at large
 who are ordinarily paid out of the
public treasury
 an individual cannot have a cause of
action for damages against the public

(Read the list of constitutional
freedom and rights in the codal
:) )
In any of the cases referred to
in this article, whether or not
the defendant's act or
omission constitute 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 or omission
constitutes a violation of the
Penal Code or other penal
statute.
SEPARATE AND INDEPENDENT CIVIL ACTION FOR THE
VIOLATION OF CIVIL LIBERTIES
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officer (political remedy)
 exception:
complaining individual suffers a
particular or special injury on account
of the public officer's improper
performance or non-performance of
his public duty
o Of Duties to Individuals
 by reason of their employmnet by a
particular individual to do some acts
for him in an official capacity
 In determining whether a public officer is liable for an
improper performance or non-performance of a duty, it
must first be determined which of the two classes of
duties is involved.
 An individual can hold a public officer personally liable
for damages on account of an act or omission that
violates a constitutional right only if it results in a
particular wrong or injury to the former
 There must be a cause of action - act or omission by
which a party violates a right of another; ff. elements
must be present:
o right in favor of the plaintiff by whatever means
and under whatever law it arises or is created
o an obligation on the part of the named
defendant to respect or not to violate such
right
o an act or omission on the part of such Aberca V. Ver
defendant violative of the right of the plaintiff Certain basic rights and liberties are immutable & cannot
or constituting a breach of the obligation of be sacrificed; in carrying out this task, constitutional and
defendant to plaintiff legal safeguards must be observed
Lim V. Ponce De Leon
It is enough there was a violation of the constitutional
 essential to the effective maintenance of democracy rights of the plaintiff, and it is not required that
for the ff. reasons: defendants should have acted with malice or bad faith
o threat to freedom originates from abuses of
power of government officials and peace
officers.

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 of
municipality shall be
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o the requirement of proof beyond reasonable
doubt often prevented the appropriate
punishment
o the frequency of subtle, clever and indirect
ways which do not come within the pale of
penal law
 It is not the actor alone who must answer for damages,
the person indirectly responsible has also to answer
for the damages or injury caused to the aggrieved
party
 Judges cannot be subjected to liability so long as they
act in good faith - to hold otherwise would render the
judicial office untenable (Ang v. Quilala)
RATIONALE Corpus V. Paje
 allow the citizen to enforce his rights in a private Homicide through reckless imprudence or criminal
action brought by him negligence comes under the general rule that the
 while the State is the complainant in the criminal case, acquittal of the defendant in the criminal action is a bar
the injured individual is the one most concerned to his civil liability based upon the same criminal act; it is
because it is he who has suffered directly not one of the three crimes so there is no independent
civil action for damages that may be instituted in
DEFAMATION, FRAUD AND PHYSICAL VIOLENCE connection with the same offences
 defamation, fraud and physical injuries must be
understood in their ordinary sense
 criminal negligence : the law penalizes thus the
negligent act or careless act, not the result thereof
MEMBERS OF POLICE FORCE
 should a citizen go to them to seek assistance, their
failure or refusal to render the needed assistance to
maintain lawful order can be basis for claiming
damages against them.

subsidiary 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
reasonable ground 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 shall be
supported by preponderance
of evidence. Upon the
defendant's motion, the court
may require the plaintiff to file
a bond to indemnify the
defendant in case of 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
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RESERVATION OF CIVIL ACTIONS
Rule 111 of the Rules of Court
Sec. 1
 criminal action is instituted, the civil action for the
recovery of civil liability 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
 shall be made before the prosecution starts presenting
evidence & under circumstances affording the
offended party a reasonable opportunity to make such
reservation
 filing fees shall constitute a first lien on the judgment
awarding such damage
 the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court (except
as otherwise provided in these Rules, no filing fees
shall be required for actual damages)
 no counterclaim, cross-claim, or third party complaint
may be filed by the accused in the criminal case, but
any cause of action which should have been the
subject thereof, may be litigated in a separate civil
action
Sec. 2
 the separate civil action arising therefrom cannot be
instituted until final judgment has been entered in the
criminal action
 in cases of consolidation:
o the evidence already adduced in the civil
action shall be deemed automatically
reproduced in the criminal action w/o prejudice
o shall be tried and decided jointly
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termination of the criminal o the running of the period of prescription of the

proceedings. civil action has been suspended shall be toiled
 the civil action based on delict may be extinguished if
there is finding in a final judgment in the criminal action
that the act or omission from which the civil liability
may arise did not exist

Sec. 3
 In no case, however, may the offended party recover
damages twice for the same act or omission charged
in the criminal action

Sec. 4
 The death of the accused after arraignment and during
the pendency of the criminal action shall extinguish the
civil liability arising from the delict
 the independent civil action instituted to enforce
liability arising from other sources of obligation may be
continued against the estate or legal representative of
the accused after proper substitution or against said
estate
 if the accused dies before arraignment, the case shall
be dismissed without prejudice to any civil action to
any civil action the offended party may file against the
estate of the deceased

Sec. 5
 final judgment rendered in a civil action is not a bar to
a criminal action against the defendant for the same
act or omission subject of the civil action

ART 36. PRECEDENCE Fortich - Celdran V. Celdran

Prejudicial questions, which
must be decided before any
criminal prosecution may be
instituted or may proceed,
shall be governed by the rules
of court which the Supreme
Court shall promulgate and
 criminal case takes precedence
 Exceptions:
o if there exist prejudicial questions which
should be resolved first
o the law provides that both civil and criminal
case can be instituted simultaneously
PREJUDICIAL QUESTION
SC held that the resolution in the civil case of whether
the motion is authentic or not "will in a sense be
determinative of the guilt or innocence of the accused in
the criminal suit pending in another tribunal.
Jimenez V. Averia
No prejudicial question because it is not determinative of
the guilt or innocence of the parties charged with estafa

which shall not be in conflict
with the provisions of this
Code.
ART 29-36 SUMMARY
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 arises in a case and the resolution of which is logical
antecedent of the issue involved therein
 cognizance of which pertains to another tribunal
 criminal case is always suspended
 civil action involves an issue similar or intimately
related to the issue raised in the criminal action,
resolution of such issue determines whether or not the
criminal action may proceed
MIDTERMS REVIEWER
BIGAMY:
SC ruled that the existence of the civil suit does not
constitute a prejudicial question to warrant the
suspension of the criminal case for bigamy because
prior to the annulment of the first marriage, the same
cannot be considered to as without effect, and therefore
shall presumed to be validly exisitng
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State- criminal liability

("People v. ")

General Rule: If damages arise from the criminal case,

PARTIES WHO MAY FILE a civil case should be filed separately.
THE CASE
CRIMINAL
CASE
EXCEPTIONS:
Private offended party - civil  The right to claim damages is waived
case for damages deemed  Reserves the right to file the civil case separately
instituted with criminal action
SEPARATE CIVIL ACTION
o AFTER THE CRIMINAL CASE
 Art 29 - There is already a judgment (the accused is
acquitted because guilt has not been proved beyond
INDEPENDENT CIVIL ACTION - may be simultaneously with criminal case reasonable doubt) so the offended party files a
separate civil case for damages for the act
 Art. 32 - violation of constitutional freedoms  Art 30- a preponderance of evidence is sufficient to
 Art. 33 - defamation, fraud physical injuries prove the act complained of
 Art. 34 - public officers who refuses to give aid or protection o BEFORE THE CRIMINAL CASE
 Art 31 - Torts/ quasi-delicts (obligation not arising from the act or  General Rule: the separate civil case is suspended,
omission complained of as felony) once the proceedings for the criminal case already
starts or
 The evidence and proceedings for the criminal case
and civil case are consolidated, without division
o DURING THE PRELIMINARY INVESTIGATION
**Art. 36 - "prejudicial questions"  Art 35 - The justice of peace or the prosecuting
- must be decided before any criminal prosecutions may be
attorney finds no reasonable grounds nor institute
instituted or may proceed
criminal proceedings, the offended party may bring a
civil action for damages.
 But, if during the pendency of the civil action,
prosecutor finds probable cause and files the
criminal case: the civil action shall be
suspended until the termination of the
criminal proceedings.

CHAPTER 3: CIVIL PERSONALITY
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.
ART 38. (MIIDPC)
Minority, insanity or
imbecility, the state of being
a deaf-mute, prodigality and
civil interdiction are mere
restrictions on the 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.
ART 39. (AII DPP FAAIT)
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.
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JURIDICAL CAPACITY AND CAPACITY TO ACT
 Juridical capacity - acquired upon birth
o inherent right to be recognized as a person
o Even if a child is still unborn and merely
inside the womb of the mother, such child is
already given a provisional personality
o Terminated only upon death
 Capacity to act – not intrinsic in a person. It is
attained or conferred and it can be lost not only by
death of the person but by any valid cause provided
by law.
o acts with legal effect
o maybe modified or limited
 Minority – when one is under the age of majority
(18)
 Insanity – any mental disorder severe enough that it
prevents a person from having legal capacity
 Prodigality – (Prodigal) A person whose affairs are
managed by a curator because of the person’s
wasteful spending or other bad conduct.
 Interdiction – The act of depriving a person of the
right to handle his or her own affairs
 Easement – An interest in land owned by another
person consisting in the right to use control the land
or an area above or below it.
SIGNIFICANCE of 38 and 39
 The former restricts the capacity to act, while 39 is
broader in scope but it enumerates situations which
merely modify the capacity to act.
 give people not adept in the technicalities of law an
immediate sense that there are certain situations
which may effectively, juridically, and legally affect
such relationships.
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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.

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.
Art. 41
For civil purposes, the fetus
is considered born if it is
alive at the time it is
completely delivered from
the mother’s womb. However,
if the fetus 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.
COMMENCEMENT OF CIVIL PERSONALITY Quimiging v. Icao
 Child and Youth Welfare Code amended article A conceived child, although as yet unborn, is given by
40. It thus provided that the civil personality of law a provisional personality of its own for all purposes
the child shall commence from the time of his favorable to it. The unborn child has a right to support
conception for all purposes favorable to him, from its progenitors, even if the said child is only "en
subject to the requirements of article 41. ventre de sa mere" (just as conceived)
BIRTH CERTIFICATE Geluz v. Court of Appeals
 provides prima facie evidence of the facts contained A parent cannot invoke the concept of "provisional
therein. These facts may however be rebutted by personality" of a conceived child to obtain damages for
competent evidences such as testimonies of the and on behalf of an aborted child considering that the
conditions set in Art. 40 and 41 were not met.
attending physician or the midwife
 the declaration of the physician or midwife, in
attendance at the birth, the declaration of either
parent of the newborn child, shall be sufficient for
the registration of a birth in the civil register not later
than 30 days after the birth.
 In cases of an exposed child, the person who found
the child shall report to the local civil registrar the
place, date and time of finding and other attendant
circumstances.
 In cases of illegitimate children, the birth certificate

Art 42.
Civil personality
extinguished by death.
The effect of death upon the
rights and obligations of the
deceased is determined by
law, by contract and by will.
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shall be signed and sworn jointly by the parents of
the infant or only by the mother if the father refuses.
In this case it is not permissible to state or reveal in
the document the name of the father who refuses to
acknowledge paternity.
CONFIDENTIALITY OF BIRTH RECORDS
 strictly confidential and the contents therein cannot
be revealed except in the cases provided by law
 maintain their nature as public documents because
the following the proper legal procedure, they can
be obtained by those interested therein
DEATH Butte v. Manuel Uy & Sons, Inc.
 puts an end to civil personality Heir-co-owners of the testator's 1/6 share became, in
is turn, co-owners of the other persons relative to the
DEATH CERTIFICATE whole property which such other persons or co-owned
 The office of the local civil registrar of a municipality with the testator such that, when such other persons
or city must also have in its custody of the death sold their share in the co-ownership to a corporation the
certificates of persons who dies in its locality heir co-owners shall have the right of redemption, as to
 no human body shall be buried unless the proper the portion sold not by virtue of their being heirs of the
death certificate has been presented and recorded testator but by virtue of their personal rights as co-
in the local civil registry owners of the whole property
 mandatory function of the physician or the health
officer to issue the death certificate and shall order
the same to be recorded
 During epidemic, bodies may buried, provided that
the proper death certificates have been secured,
which shall be registered not later than five days
after the burial of the body
CONTRACT, WILL AND THE LAW
 rights and obligations of a dead person can still be
regulated by contract, will or the law
 creditors are given the right to claim from the estate of
the deceased any obligation due them before the
estate can finally be partitioned in favor of the heirs
 testators though an express provision in a will may
disinherit any of his or her heirs under any of the valid
grounds provided by law, thereby in effect, controlling
the disposition of his properties even after death

ART 43.
If there is 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 o transmission of rights
from one to the other.
JURIDICAL PERSONS
ART 44.
The following are juridical
persons:
 The State and its
political subdivisions;
 Other
corporations,
institutions and
entities for public
interest or purpose
created by law; their
personality begins as
soon as they have
been constituted
according to law;
Corporations, partnerships
and associations for private
interest or purpose to which
the law grants a juridical
personality, separate and
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 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
PROOF OF DEATH Joaquin v. Navarro
 applies only to persons who are called to succeed The opposite theory is deduced from established facts
each other which, weighed by common experience, engender the
 must be established by positive evidence. inference as a very strong probability. Gauged by the
 it can likewise be established by circumstantial doctrine of preponderance of evidence by which civil
evidence derived from facts. If ever an inference is case are decided, this inference is ought to prevail.
to be made it must be derived from an existing fact.
 can never be established from mere interference
arising from another inference or from presumptions
and assumptions.
JURIDICAL PERSON
 legal existence susceptible of rights and obligations,
being subject of juridical relations
STATE Philrock v. Board of Liquidators
 sovereign persons with people composing it Government funds and properties may not be seized
viewed as an organized corporate society under a under writ of execution or garnishment to satisfy such
government with the legal competence to exact judgments; public funds must be covered by a
obedience of its commands corresponding appropriation passed by the legislature
 political organization of a society legally supreme
within and independent of legal contract from
without
 The state cannot be sued without its consent.
Express consent may be embodied in a genera
law or special law. Consent is implied when the
government enters into business contracts and
when a State files a complaint, thereby opening
itself to a counterclaim.
 Suability V. Liability
o Suability depends on the consent of the
state to be sued.

distinct from that of each
shareholder, partner or
member.
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.
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
organizations. Juridical
person – a being of legal
existence susceptible of
rights and obligations, or
of being the subject of
juridical relations
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o Liability depends on the applicable law and
the established facts. When a state is
suable it does not necessarily mean that it
is also liable. On the other hand if it cannot
be sued it can never be held liable.
POLITICAL SUBDIVISIONS
 Municipal corporations, provinces, cities and Municipality of San Fernando v. Judge Firme
municipalities Municipal corporation are agencies of the State when
 Dual capacity they are engaged in governmental functions and
o exercise the right springing from therefore should enjoy the sovereign immunity from suit
sovereignty; acts are political and
governmental, public service Torio v. Fontanilla
o private, proprietary, corporate right - arising The distinction of power becomes important for
from their existence as legal persons; act in purposes of determining the liability of municipality for
behalf of the municipalities in their the acts of its agents which result in injury to third
corporate or individual capacity, and not for persons
the state of sovereign power
 Suable because their charters grant tem
 generally not liable for torts committed by them in
the discharge of governmental functions and can
be held answerable only if it can be shown that they
were acting in a proprietary capacity
 State merely gives the claimant the right to show
that the defendant was not acting in its
governmental capacity when the injury was
committed or that the case comes under the
exceptions provided by law
CORPORATION
 governed by BP 68 or the Corporation Code
 Gov't corporation are created by their special
charters passed by the legislature
 having the right of succession and the powers,
attributes and properties expressly authorized
by law or incident to its existence
 These are creatures of the law and can only
come into existence in the manner prescribed
by law.
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Cease, et al v. Court of Appeals

PARTNERSHIP
 Two or more people bind themselves to
contribute money, property, or industry to a
common fund with the intention of dividing the
profits among themselves.
 Two or more people may also form a
partnership in the exercise of a profession
Doctrine of disregarding or piercing the veil of corporate
fiction - separation and distinct personality is merely a
fiction created by law for convenience and to promote
the ends of justice and it may not be used or invoke for
ends subversive of the policy and purpose behind its
creation (defeat public purpose, justify wrong, protect
fraud, defend crime, deception)

DISTINCT PERSONALITY
 The obligation of the corporation is not the
obligation of stockholders and vice versa.
ART 47. DISSOLUTION
 The dissolution of private corporation is governed
Upon the dissolution of by Title IV of the Corporation Code.
corporations, institutions and  Corporation for pub interest: dissolution shall be
other entities for public governed in accordance with the provisions of their
interest or purpose respective charters and in the absence of any such
mentioned in No. 2 of Article provision, by the provision of the Corporation Code
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.
Chapter 4: Citizenship and Domicile

ART 48.
The following are citizens of
the Philippines:
 Those who were citizens
of the Philippines at the
time of the adoption of
the Constitution
 Those born in the
Philippines of foreign
parents who, before the
adoption of said
constitution, had been
elected to public office
in the Philippines;
 Those whose fathers are
citizens of the
Philippines;
 Those whose mothers are
citizens of the
Philippines and, upon
reaching the age of
majority, elect Philippine
Citizenship;
 Those who are naturalized
in accordance with law.
ART 49.
Naturalization and the loss
and reacquisition of
citizenship of the Philippines
are governed by special laws.
ART 50.
For the exercise of civil rights
and the fulfillment of civil
obligations, the domicile of
natural persons is the place
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DOMICILE
 denotes a fixed permanent residence to which,
when absent, one has the intention of returning.
 Residence is used to indicate a place of abode,
whether permanent or temporary.
 Domicile is residence coupled with the intention to
remain for an unlimited time. No length of residence
without intention of remaining will constitute
domicile. A person may have multiple residences
but he may only have one domicile.
 Domicile of minors - Minors follow the domicile of
their parents
 Change in Domicile
o 1) an actual removal or an actual change of
domicile
o 2) a bona fide intention of abandoning the
former place of residence establishing a
new one
o 3) acts which correspond with the purpose
o Fixing Domicile - The husband and the wife
shall fix the family domicile. In case of
conflict the court shall decide (Art. 69 of
Family Code)
CITIZENSHIP - Art. IV of the 1987 Philippine Constitution
JUS SANGUINIS - citizenship by blood
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of their habitual residence.

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.

THE FAMILY CODE OF THE PHILIPPINES
 Executive Order No. 209 of Pres. Cory Aquino
 Justice Reyes, Justice Caguioa, Justice Puno
 August 3, 1988
 December 18, 1989
Chapter 1: Requisites of Marriage
ART 1.
Marriage is a special contract of
permanent union between man and
woman entered into accordance with
the law for the establishment of
conjugal and family life. It is the
foundation of family and an inviolable Marriage as a Status
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.
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Nature & Importance of Marriage Zulueta v. CA
● One of the “basic civil rights of man,” fundamental to our existence & The SC ruled that the wife cannot use
survival the said documents & letters as
● One of the vital personal rights essential to the orderly pursuit of evidence because they were obtained
happiness by free men in violation of the husband’s
● It is more than a mere contract; it is a social relation vested w/ public constitutional right to privacy. While a
interest lawful marriage seeks to create a
permanent union between man &
● Marriage creates a social status or relation between the contracting woman, it does not shed the spouses’
parties in w/c not only they but the State as well are interested integrity or their privacy as individuals.
● Marriage is one of the cases of double status, in that the status therein
involves & affects 2 persons. One is married, never in abstract or a Phil. Telegraph & Telephone
vacuum, but always to somebody else. Company v. NLRC
● No privately imposed conditions could alter the marital status. A company’s policy disqualified from
Marriage in International Law (UDHR, ICCPR, ICESCR) work any woman worker who
● Men & women of full age, w/o any limitation due to race, nationality or contracts marriage. The SC
religion, have the right to marry and to found a family invalidated such policy as it not only
● The family is the natural & fundamental group unit of society & is runs afoul of the constitutional
entitled to protection by society & the State provision on equal protection, but also
Constitutional Protection on the fundamental policy of the State
● Art. 2, Sec. 2 – The State recognizes the sanctity of family life & shall toward marriage. Marriage as a
protect & strengthen the family as a basic social institution. special contract cannot be restricted
● Art. 15, Sec. 1 – The State recognizes the Filipino family as the by discriminatory policies of private
foundation of the nation. Accordingly, it shall strengthen its solidarity & individuals or corps.
actively promote its total development.
● Art. 15, Sec. 2 – Marriage, as an inviolable social institution, is the Duncan v. Glaxo
foundation of the family & shall be protected by the State. An employment contract requiring an
● The right to enter into a marriage has been regarded as w/in the ambit employee to disclose to management
of the constitutional right of association. And once married, a couple has any existing/future relationship by
a right to privacy w/c is protected against all undue & unwarranted consanguinity/affinity w/ co-employees
government intrusion. or employees of competing drug
Note: The constitutional provisions on marriage do not imply that the companies & requiring such employee
legislature cannot enact a law allowing absolute divorce. to resign should management find that
such relationship poses a possible
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conflict of interest was not held to be

in violation of the equal protection
Mail Order Bride (RA 6955) – It shall be unlawful: clause considering that the stipulation
A. For any person, natural or juridical, association, club or entity to commit, is reasonable under the
directly/indirectly, any of the ff. acts: circumstances because such
1. To establish or carry on a business w/c has for its purpose the relationship might compromise the
matching of Filipino women for marriage to foreign nationals either interest of the company & the
on a mail-order basis or through personal introduction; requirement was shown to be aimed
2. To advertise, publish, print or distribute or cause the advertisement, against the possibility that a
publication, printing or distribution of any brochure, flier, or any competitor company will gain access
propaganda material calculated to promote the prohibited acts in the to its secrets & procedures. The SC
preceding subparagraph; said that the provision does not
3. To solicit, enlist or in any manner attract or induce any Filipino impose an absolute ban against
woman to become a member in any club or association whose relations between the company’s
objective is to match women for marriage to foreign nationals either employees & those of competitor
on a mail-order basis or through personal introduction for a fee; company.
4. To use the postal service to promote the prohibited acts in
subparagraph 1 Star Paper Corporation v. Simbol
B. For the manager or officer-in-charge or advertising manager of any A company policy provided that, in
newspaper, magazine, television or radio station, or other media, or of case 2 of their employees decide to
an advertising agency, printing company or other similar entities, to get married to each other, 1 of them
knowingly allow, or consent to, the acts prohibited in the preceding should resign from the company. The
paragraph. SC held that the act of the company in
Anti-Trafficking in Persons (RA 9208) – It shall be unlawful for any person, enforcing such policy is illegal as it
natural or juridical, to commit any of the ff. acts: failed to prove a legitimate business
(b) To introduce or match for money, profit, or material, economic or concern in imposing the questioned
other consideration, any person or, as provided for under Republic Act policy esp. so when the asserted
No. 6955, any Filipino woman to a foreign national, for marriage for the policy is premised in the mere fear
purpose of acquiring, buying, offering, selling or trading him/her to that the employees married to each
engage in prostitution, pornography, sexual exploitation, forced labor, other will be less efficient.
slavery, involuntary servitude or debt bondage;
(c) To offer or contract marriage, real or simulated, for the purpose of
acquiring, buying, offering, selling, or trading them to engage in
prostitution, pornography, sexual exploitation, forced labor or slavery,
involuntary servitude or debt bondage;
Revised Penal Code – penalizes bigamy & contracting a marriage knowing
that one of the requirements of law have not been complied with or that the
marriage is in disregard of a legal impediment
Marriage Between Rapist & Rape Victim
● A subsequent valid marriage of the offender & the offended party in the
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crime of rape extinguishes the criminal action or the penalty imposed for
rape
● In case the victim is already married & it is the legal husband who is the
offender, the subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or penalty, provided that the crime
shall not be extinguished or the penalty shall not be abated if the
marriage is void ab initio
Legislative Control of Marriage
● The legislature, through the Family Code, defines marriage & the family,
spells out the corresponding legal effects, imposes the limitations that
affect married & family life, as well as prescribes the grounds for
declaration of nullity & those for legal separation.
● In a real sense, there are 3 parties to every civil marriage: 2 willing
spouses & an approving State.
● By legislation, marriage can be made a statutory basis for limiting one’s
capacity to act or for affecting one’s right to acquire property:
1. Art. 823, NCC – The fact of marriage of the witness in a will to the
devisee or legatee shall render void the gratuitous disposition,
unless there are 3 other witnesses.
2. Art. 874, NCC – An absolute condition not to contract a 1st or
subsequent marriage made in a last will & testament on an instituted
voluntary heir, legatee or devisee shall be considered as not written,
unless such condition has been imposed on the widow/er by the
deceased spouse, or the latter’s ascendants or descendants.
Law Governing Validity of Marriage
● In determining the validity of marriage, it is to be tested by the law in
force at the time the marriage was contracted.

GENERAL RULE: The nature, consequence & incidents of marriage as a

social institution are governed by law & not subject to stipulations.

Exception: Property relations w/c may be fixed in a marriage settlement

executed prior to the marriage ceremony. However, such marriage
settlements must not contravene the mandatory provisions of the Family
Code.

GENERAL RULE: The nature of the marriage already celebrated cannot be

changed by a subsequent amendment to the law. Examples:
1. Under the OCC, a marriage bet. stepbrother & stepsister was void.
Such a marriage it not anymore prohibited under the FC. However,

ART 2.
No marriage shall be void, unless
these essential requisites are
present:
1. Legal Capacity of
contracting parties who
must be male and female
2. Consent freely given in the
presence of the solemnizing
officer
ART 3.
The formal requisites of a marriage
are:
1. Authority of 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
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the effectivity of the FC does not affect the void nature of the
marriage bet. the stepbrother & stepsister solemnized during the
effectivity of the OCC. It remains void.
2. Under the OCC, mistake in identity was a ground to make a
marriage annullable. Under the FC, such is a ground to declare the
marriage void ab initio. The effectivity of the FC does not affect the
annullable nature of those marriages contracted prior to the FC
Exception: Under the OCC, a marriage could not be declared void on the
ground of psychological incapacity. Such a ground came into existence w/
the effectivity of the FC. Here, a spouse who, prior to the effectivity of the
FC, got married to an individual who is psychologically incapacitated under
Art. 36, may file a case to declare the marriage void despite the fact that
such ground did not exist as a legal basis for nullity of marriage at the time
his/her marriage was celebrated. (At first, the prescriptive period was 10
years from the effectivity of the FC. This was amended and it is now
imprescriptible.)
Legal Capacity Silverio v. Republic
1. Both parties must be at least 18 years of age Petitioner had a biological sex change
2. The parties must be male & female from male to female through sex-
3. The marriage must not be incestuous under Art. 37 reassignment surgery & where he
4. The marriage must not be void for reasons of public policy under sought the amendment of his birth
Art. 38 certificate to reflect the change in sex
5. The marriage must not be bigamous, except if it is a “valid as a preliminary step to get married to
bigamous marriage” under Art. 41 his partner. The SC rejected the
Effect of Sex Change – A man or woman should be considered as such at petition & ruled that the sex
the time of the marriage when the parties themselves assert their own determined by visually looking at the
gender identities. genitals of the baby at the time of the
birth is immutable & that there is no
Consent law legally recognizing sex
● Connotes that the contracting parties willingly & deliberately entered into reassignment.
the marriage
● Signifies that at the time of the marriage ceremony, they were capable Republic v. Cagandahan
of intelligently understanding the nature & consequences of the act Respondent was found to have
● Need not be expressed in any special manner or particular form, so long Congenital Adrenal Hyperplasia
as there is a manifestation that the contracting parties take each other as (CAH) w/c is a condition where the
H&W person afflicted has both male &
Requirements of Consent: female characteristics & organs.
1. Freely given Through expert evidence, it was
2. Must be made in the presence of the solemnizing officer shown that respondent, though

appearance of the
contracting parties before a
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.
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 or
formal 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.
Article 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.
ART 6.
No prescribed form or religious rite
for the solemnization of 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
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Effect of Defect in Consent: genetically a female, secreted male
1. Total absence of consent – void ab initio hormones & not female hormones,
2. Consent obtained thru fraud, force, intimidation, undue influence – had no breast, & did not have any
annullable monthly menstrual period, & the
Authority of Solemnizing Officer respondent, in his mind & emotion, felt
● It is NOT the presence/absence of the solemnizing officer w/c constitutes like a male person & did not want to
the formal requirement, but it is the presence/absence of the have surgery. The SC considered the
AUTHORITY of such solemnizing officer person as an “intersex individual” &
● The authority of the officer/clergyman will be presumed in the absence of granted the preference of the person
any showing to the contrary to be considered as a male person,
thereby allowing the amendment of
GENERAL RULE: The solemnizing officer is NOT duty bound to investigate the birth certificate of the person from
w/n a marriage license (ML) has been duly & regularly issued by the local female to male.
civil registrar (LCR).
Exceptions:
1. Under Art. 29 where the contracting parties are legally excused
from obtaining a ML because 1 of them is in the point of death or
there is no means of transportation to the LCR as their places of
residences are far, the solemnizing officer must undertake the
necessary steps to ascertain the ages & relationship of the
contracting parties & the absence of legal impediment to marry
2. Under Art. 34, persons living together as H&W for at least 5 ears
w/o the benefit of marriage may contract a valid marriage even in the
absence of a ML. The solemnizing officer here is duty bound to
ascertain the qualifications of the contracting parties.
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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 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.
ART 7. AUTHORITY REQUISITES Navarro v Domagtoy: a judge
solemnizing a marriage outside
Marriage may be solemnized by: Judge Within their court’s jurisdiction jurisdiction merely an irregularity
(1) Any incumbent member of the Must be incumbent and not retired (BUT, book says this is erroneous
judiciary within the court's because there is an absence of
jurisdiction; note: National Scope - SC, CA, CTA, SB authority and law clearly states
(2) Any priest, rabbi, imam, or authority is only within court’s
Priest, Rabbi, Imam, or Duly authorized by his/her church or religious
minister of any church or religious jurisdiction
Minister sect;
sect duly authorized by his church
Must act within the limits of the written
or religious sect and registered with
authority granted to him/her;
the civil registrar general, acting
Must be registered with the civil registrar
within the limits of the written
general;
authority granted by his church or
At least one of the contracting parties belongs
religious sect and provided that at
to his/her church or religious sect
least one of the contracting parties
belongs to the solemnizing officer's Ship Captain or Airplane Marriage in articulo mortis;
church or religious sect; Chief Between passengers or crew members;
(3) Any ship captain or airplane Ship must be at sea or plane in flight, or during
chief only in the case mentioned in stopovers or at ports of call
Article 31;
(4) Any military commander of a * Assistant pilot has no authority to solemnize
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;
(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
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Military Commander Military commander of a unit;
Commissioned officer;
Chaplain assigned to such unit;
Marriage in articulo mortis;
Within the zone of military operation
Consul-General, Consul, Contracting parties must both be Filipino
or Vice-Consul citizens;
Solemnities established by Philippine laws
shall be observed in their execution;
Must be abroad in their office, and NOT within
Philippine territory;
If the contracting parties desire to have their
marriage solemnized in a place other than the
office of the consul- general, consul, or vice-
consul, they shall request the said official in
writing in which case the marriage may be
solemnized a place designated by them in a
sworn statement
Mayor When the mayor is temporarily incapacitated to
perform his duties for physical or legal
reasons, the vice mayor or the highest ranking
sangguniang bayan member shall
automatically exercise the powers & perform
the duties of the mayor, & thus the latter has
authority to solemnize marriages
Good Faith of Parties:
If the marriage was solemnized by a person not legally authorized to
solemnize a marriage & either of the contracting parties believed in GF that
such solemnizing officer (under Art. 35(2)) had such authority, then the
marriage shall be considered valid
SOLEMNIZING AUTHORITY VENUE
Judge Chambers of the Judge or in Open
Court
Priest, Rabbi, Imam, Minister Church, Chapel, Temple
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office the consul-general, consul or Consul-General, Consul, Vice-Consul Office

vice-consul, as the case may be,
and not elsewhere, except in cases Marriage in articulo mortis, remote In such place
of marriages contracted on the place, special request of both parties
point of death or in remote places
in accordance with Article 29 of this Venue
Code, or where both of the parties  Non-observance will not invalidate a marriage, but can subject the
request the solemnizing officer in person(s) who cause the violation to civil, criminal, or administrative
writing in which case the marriage liability
may be solemnized at a house or
place designated by them in a Exceptions
sworn statement to that effect. (57a)  Marriage in Articulo Mortis
 Remote place (ART 29)
Both of the parties request a solemnizing officer in writing, in which case the
marriage may be solemnized at a house or place designated by the parties
in a sworn statement to that effect
ART 9. GENERAL RULE: Place of Issue – the contracting parties should get a ML
from the LCR of the city/municipality where either of them resides
A marriage license shall be issued Effect of Non-Compliance – mere irregularity & will NOT render the marriage
by the local civil registrar of the city void
or municipality where either Exception: When ML not required
contracting party habitually resides,
except in marriages where no
license is required in accordance
with Chapter 2 of this Title. (58a)
ART. 10 Consular Officials
Marriages between Filipino citizens The duties of the LCR and solemnizing officer are performed by the consular
abroad may be solemnized by a officials abroad
consul-general, consul or vice-
consul of the Republic of the
Philippines. The 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. (75a)
ART 11. Purpose of Documentary Requirements
● Proper documents must be maintained to serve as proof for the
Where a marriage license is existence of the marriage
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required, each of the contracting ● To discourage deception and seduction

parties shall file separately a sworn ● To prevent illicit intercourse under the guise of matrimony
application for such license with ● To relieve from doubt the status of parties who live together as man &
the proper local civil registrar which wife, by providing competent evidence of the marriage
shall specify the following: ● Evidence of the status & legitimacy of the offspring of the marriage
(1) Full name of the contracting ● The task of seeing to it that these documentary proofs are accomplished
party; is addressed to the LCR to secure publicity and to require a record to be
(2) Place of birth; made of marriages contracted
(3) Age and date of birth;
(4) Civil status; Marriage Application & Ministerial Duty of LCR
(5) If previously married, how, when ● When a marriage application signed & sworn to by parties & thereafter
and where the previous marriage filed, the LCR has not choice but to accept the application & process the
was dissolved or annulled; same up to the time of the issuance of the ML
(6) Present residence and GENERAL RULE: If the LCR has knowledge of some legal impediment, s/he
citizenship; cannot discontinue processing the application, but must only NOTE DOWN
(7) Degree of relationship of the the legal impediments in the application & thereafter issue the ML
contracting parties;
(8) Full name, residence and Exception: the LCR is stopped by the courts
citizenship of the father;
(9) Full name, residence and
citizenship of the mother; and
(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 application, 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 persons having custody of the originals.
These certificates or certified copies of the documents by this Article need
not be sworn to and shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the certificate shall be
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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 loss 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 birth or baptismal certificate 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 at the applicants upon their personally appearing before him,
be convinced that either or both of them have the required age. (60a)

Parental consent
● If any of the contracting parties are at least 18 but below 21, the consent
of the:
1. Father
If no consent of the father, no consent anymore (no "forum-shopping")
● Non-compliance does NOT make the marriage void, but merely
annullable
● If any of the contracting parties are below 18, the marriage is void
regardless of the existence or non-existence of the consent of the
parents

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)
ART. 14
ART. 15
ART. 16
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In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, 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, 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)
. Any contracting party between the age of twenty-one and twenty-five
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 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)
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

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 accessible to the
general public. This notice shall
request all persons having
knowledge of any impediment to
the marriage to advise the local civil
registrar thereof. The marriage
license shall be issued after the
completion of the period of
publication. (63a)
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accredited by the proper government agency to the effect that the
contracting parties have undergone marriage counseling. Failure to attach
said certificates 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)
Duty of the Local Civil Registrar
● To post a notice to inform everybody of the impending marriage
● The notice shall be posted for 10 consecutive days on a bulletin board
outside the office of the LCR located in a conspicuous place w/in the
building & accessible to the general public
● The notice shall request all persons having knowledge of any
impediment to the marriage to advice the LCR thereof
GENERAL RULE: the ML shall be issued after the completion of the period
of publication
Exceptions:
1. if the contracting parties between the ages of 21 & 25, do not obtain
the advice of the parents or if such advice is unfavorable, the LCR
shall not issue the ML till after 3 months following the completion of
the publication of the application thereof
2. if the contracting parties who are at least 18 but below 21 failed to
attach to the marriage application a certification that they have
undergone marriage counseling, the issuance of the ML shall be
suspended for 3 months from the completion of the publication of the
application
Note: Issuance of the ML w/in the prohibited period shall subject the issuing
officer to administrative sanctions, but shall not affect the validity of the
marriage.

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 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
interest party. No filing fee shall be
charged for the petition nor a
corresponding bond required for
the issuances 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 canceled at the
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INVESTIGATIVE POWER OF LCR & COURT INTERVENTION
 In case of impediment, LCR shall merely note down the particulars
thereof and his findings thereon in the application for a marriage
license
 He is still duty bound to issue said marriage license after the
payment of necessary fees, unless exempted due to indigence, after
the completion of the period of publication
 Purpose: “To eliminate any opportunity for extortion” – Giving much
leeway to the LCR “could by a source of graft” (CC Committee)
 Exemptions for LCR not to issue ML:
- Injunction order from the court directing the non-issuance of the
marriage license. Court action may be brought by the LCR
himself or by any interested party (contracting parties, parents,
siblings, existing spouse, or those which may be prejudiced by
the marriage)
CRIMINAL LIABILITY OF LCR:
 Marriage Law of 1929
 [SEC 37] Direct or indirect attempt to influence any contracting party
to marry or refrain from marrying in a church, sect, or religion or
before any civil authority
 [SEC 38] Unlawful issuance or malicious refusal to issue a license to
a person entitled thereto, or fails to issue the same within 24 hours
after the time when, according to law, it was proper to issue the
same
Marriage License
● Valid ONLY in the Philippines & NOT abroad
● Valid for 20 days from the date of issue
● Date of issue = date of singing of the LCR of the ML
● From the date of issue, it should be claimed by the parties

expiration of the 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 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;
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● If it is not claimed & therefore not used w/in 120 days, it shall
automatically become ineffective
Certificate or Affidavit of Legal Capacity
● Foreigners may contract marriage in the Philippines, but they need to
secure a ML in the Philippines. Before such ML is issued, they have to
submit a certificate of legal capacity.
● A certificate of legal capacity is necessary because the Philippines,
insofar as marriage is concerned, adheres to the national law of the
contracting parties w/ respect to their legal capacity to contract marriage.
(e.g. if a 16 year old US citizen is legally capacitated to marry in the US
& wants to marry here, he can do so by obtaining a certificate of legal
capacity stating that in the US, persons 16 years of age can be validly
married)
GENERAL RULE: If the foreigner fails to obtain the certification of legal
capacity, the LCR will not issue the ML. The law clearly provides that as to
the foreigner, this is a necessary requisite before he/she can obtain a ML.
(Note: If w/o the certificate of legal capacity, the ML was nevertheless
issued, the marriage will still be considered valid as this is merely an
irregularity in complying w/ a formal requirement of the law in procuring a
ML.)
Exception: if the contracting parties are BOTH foreigners who desire to
have their marriage solemnized by their country’s consul-general officially
assigned here in the Phil., they can get married before such consul-general
w/o procuring a ML here if their country’s laws allow the same. Such
marriage shall be recognized here in the Phil.
Stateless persons or Refugees – required to file an affidavit stating the
circumstances showing such capacity to contract marriage in lieu of the
certificate of legal capacity
Presumption of Marriage Delgado Vda. Dela Rosa v. Heirs of
● That a man & a woman deporting themselves as H&W have entered into Mariciana Rustia Vda. De Damian
a lawful contract of marriage is a presumption w/c is considered The absence of a record of the
satisfactory if contradicted, but may be contradicted & overcome by contested marriage was asserted to
evidence. assail the existence of the marriage.
● Public policy should aid acts intended to validate marriages & should The SC, after reviewing the evidence,

(2) Their citizenship, religion and
habitual residence;
(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 marriage 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
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
copy of the marriage certificate, the
original of the marriage license and, in
proper cases, the affidavit of the
contracting party regarding the
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retard acts intended to invalidate marriages. rejected such assertion. The absence
Proof of Marriage of a marriage contract is not always
● When the question as to w/n a marriage has been contracted arises in proof that no marriage in fact took
litigation, said marriage may proved by evidence of any kind. place. Other evidence may be
● Best/primary evidence of a marriage - the MARRIAGE CONTRACT. presented to support such fact. The
● Good evidences of marriage – baptismal certificate, judicial decisions, evidence need not necessarily or
family bible in w/c the names of the spouses have been entered as directly establish the marriage but
married must at least be enough to strengthen
● A marriage may be proved by parol evidence. Testimony by 1 of the the presumption of marriage.
parties or witnesses to the marriage, or by the person who solemnized
the same, is admissible & competent to prove marriage. The testimonies Perido v. Perido
themselves must be credible & must proceed from a witness who is The statement of the civil status of a
likewise credible. person in a CERTIFICATE OF TITLE
● A solemn statement in the will of the deceased as to the fact of his issued to him is not conclusive to
marriage is also admissible proof of such marriage. show that he is not actually married to
● Public & open cohabitation as H&W after the alleged marriage, birth & another. It is weak & insufficient to
baptismal certificates of children borne by the alleged spouses, & a rebut the presumption that persons
statement of such marriage in subsequent documents are competent living together as H&W are married to
evidence to prove the fact of marriage. each other.
● A certificate of marriage made many years after the marriage is
inadmissible, especially where there was no register of the marriage in Republic v. CA
official records. An official certification of the Office of
● Failure to present a marriage certificate is not fatal in a case where a the LCR of a municipality, where a
marriage is in dispute, as the parties can still rely on the presumption of particular ML has been issued as
marriage. indicated in the marriage contract,
stating that, after EARNEST EFFORT
GENERAL RULE: A mere photostat copy of marriage certificate is a to locate & verify the existence of the
worthless piece of paper. particular ML, the said office has no
record of the ML, or is issued to
another couple, or is spurious &
Exceptions: fabricated, is a convincing evidence to
1. If such photostat copy emanated from the Office of the Local Civil destroy the validity of marriage on the
Registrar & duly certified by the LCR as an authentic copy of the ground of absence of a valid ML.
records in his office, such certified Photostat copy is admissible as
evidence. Nicdao Carino v. Carino
2. If the photostat copies, though not certified by the office of the LCR, It was shown that the marriage
are presented in court w/o objection from the opposing parties & contract did not indicate the ML, &
consequently admitted by the court, the said Photostat copies are there was a certification from the
deemed sufficient proof of the facts contained therein & can be proof pertinent LCR stating that, after
of marriage. EARNEST EFFORTS to look for the

solemnization of the marriage in place
other than those mentioned in Article
8. (68a)
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ML, the said office had no record of
Note: Mere cohabitation is not direct proof of marriage. The conduct of the the ML of the parties & therefore, it
parties, in order to constitute evidence of marital consent, must be something cannot issue a true copy of the same.
more than more living together; it must be an association, consciously & The SC said that such certification
openly, as H&W. was adequate to prove the non-
issuance of a ML, and absent any
Proof to Attack Validity of Marriage suspicion, it enjoyed probative value
● Anyone assailing the validity of a marriage is required to make plain, considering that the LCR was the
against the constant pressure of presumption of legality, the truth of law officer charged under the law to keep
& fact that the marriage was not legal. a record of all data relative to the
● The evidence to repel that presumption must be strong, distinct & issuance of a ML.
satisfactory.
Sevilla v. Cardenas
The LCR certified that there was no
ML despite the exertion of all efforts
but w/ admission that, due to the work
load of the said office, it cannot give
full force in locating the ML
compounded by the fact that the
custodian already retired. The SC did
not allow the nullity of the marriage on
the ground of absence of a ML
considering that the circumstances &
the certification do not categorically &
w/ absolute certainty show & state that
the ML cannot be found & that there
were earnest efforts to look for the
same.
Fernandez v. Puatu
Any presumption of marriage from the
fact that there was cohabitation
between a man & a woman many
years ago may be considered offset
by the fact that, for the last 35 years of
their lives, they lived separately &
several thousands of miles away from
each other.
Republic v. Obrecido

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)
ART. 26
All marriages solemnized outside the
Philippines, in accordance with the
laws in force in the country where
they are solemnized, and valid there public policy and justice demand the recognition of such laws
as such, shall also be valid in this
country, except those prohibited
under Articles 35 (1), (4), (5) and (6),
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The legal status of a person to marry,
his/her rights & duties are governed
by law or contract & thus can be a
subject of a petition for declaratory
relief.
Marriage Register
● The LCR keeps a marriage register of all persons married in its locality
● In the marriage register, there shall be entered:
1. Full names, address & age of contracting parties
2. Date & place of solemnization of the marriage
3. Full names & address of the witnesses & their relation w/ the
contracting parties
4. Full name, title & address of the person who solemnized the
marriage
Lex Loci Celebrationis rule COMMON LAW MARRIAGES
Valid marriages solemnized abroad are recognized in the PH In Re: Veta’s Case: Persons of UTAH
may not go into another state to
A Matter of International Comity contract a common law marriage to
Legal effect given to a marriage solemnized abroad is because of comity OR have such marriage recognized as
valid, when the statutes applicable in
- Marriages without license, proxy marriages are valid in PH if in the said state clearly uses the word
accordance with laws of place of solemnization solemnization.

36, 37 and 38.
Where a marriage between a
Filipino citizen and a foreigner
obtained abroad by the alien
spouse capacitating him or her to
remarry, the Filipino spouse shall
likewise have capacity to remarry
under Philippine Law. (n) (As
amended by Executive Order
Number 227, July 17, 1987)
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Exceptions Enriquez v Enriquez: Philippines
Marriage below 18 years old is OK in other countries, and either or both never recognized common law
parties are Filipino -> NOT VALID in the PH marriages, even in Spanish rule.
- No legal capacity in the Philippines
- Article 35 of Civil Code binds Filipinos abroad on legal capacity PROOF OF FOREIGN MARRIAGE
- Not applicable for Filipino-foreigner marriage where foreigner is Wong Woo Yin v Vivo: a Chinese
below 18, due to Art 35(1) nationality law woman alleged that she was married
Bigamous and Polygamous marriage not VALID, even if VALID abroad to a Filipino and that their marriage in
- bigamy: person contracts another marriage before former was China was solemnized by a village
legally dissolved or before spouse was declared presumptively dead leader BUT failed to show proof of
- polygamy: act or state of a person who knowing that he/she has 2 or China marriage laws; HELD: SC
more wives/husbands, marries another presumed marriage laws in china to
- Exception to the exception under Art 41: bigamous marriage MAY be same as that of PH, and thus
BE recognized when before celebration of marriage, one of the marriage cannot be recognized
spouses was absent for 4 consecutive years or 2 consecutive years
in cases where there is danger of death. There must be a well- Yao Kee v Sy Gonzales: burden of
founded belief and a judicial declaration of presumptive death. proof is upon the one who asserts the
Subsequent marriage valid without prejudice to reappearance of validity
absentee spouse
- Subsequent marriages contracted abroad makes person CIVILLY Board of Commissioners (CID) v
bigamous only Dela Rosa(1991): shifted burden of
Mistake of identity of other contracting party is not recognized proof to the assailing it; dissent by
- even if foreigner spouse were the one mistaken Felciano states that foreign marriage
When a marriage was annulled or declared null and void but failed to record must first be shown as factual matters
judicial decree with local civil registrar, to partition and distribute properties before declaring them valid in the PH
and to deliver presumptive legitime, any subsequent marriage is void.
- Article 52 and 53 of Family Code ABSOLUTE DIVORCE
A marriage of a Filipino to a person psychologically incapacitated to perform Tenchavez v Escano: If a Filipina
essential marital obligations, even if valid abroad, shall not be valid here married to a foreigner initiated a
Incestuous marriages divorce elsewhere, and such was
- Descendants and ascendants of any degree granted and she subsequently married
- Brothers and sisters (full or half blood) another person, she is technically
Marriages against public policy (exclusively enumerated in Art 38 of Family committing adultery
Code) Van Dorn v Romillo: establishes
doctrine that Filipino can marry again
Common Law Marriages are not valid in the PH if foreigner divorces Filipino spouse
- Article 26 clearly uses the world solemnizes, a process which Republic v Orbecido III: both parties
common low marriages do not undergo were Filipinos at time of marriage ->
- 2nd paragraph uses celebrated, connoting a ceremonial marriage one of the spouses obtains citizenship
where solemnization is inherent of another country and files for divorce
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-> Filipino spouse can marry again

Same Sex Marriage of Filipinos abroad invalid Recio v Garcia: 2 Filipinos marry ->
- Public policy of PH mandates only a man and woman can marry one becomes naturalized and obtains
each other absolute divorce decree abroad ->
foreigner allowed to remarry when he
Proof of Foreign Marriage goes back to PH under national law of
To establish the validity of marriage pursuant to comity, it is necessary to alien spouse
prove the celebration of marriage through convicting evidence (question of Republic v Iyoy: Filipino obtains
fact) (Wong Woo Yin v Vivo) foreign absolute divorce -> Not
Prior to 1991, burden of proof is to the one assailing validity, but shifted to recognized here
the one assailing the validity (Yao Kee Sy v Gonzales; Board of
Commissioners v Dela Rosa) PROVING FOREIGN DIVORCE
Bayot v CA: SC affirmed dismissal of
Absolute Divorce a case for declaration of nullity on
Generally not recognized in the PH, 2 Filipinos who are married in the PH or ground that petitioner already
anywhere in the world, their status as married will follow them anywhere in obtained a divorce in another country
the world and can be recognized in the PH
- Against public policy Recio v Garcia: foreign divorce can
State recognizes divorces of aliens obtained abroad, provided that they are be recognized here provided divorce
valid according to their national law (Nationality Law) decree proven as fact and as valid
PH recognizes absolute divorce obtained in another country allowing the RP v Orbecido: twin elements of
divorced Filipino to remarry applicability
- Determinative point is time of divorce not marriage due to nationality
principle FOREIGNER FILING PETITION
- Filipino spouse must be Filipino at time of issuance of divorce Corpus v Sto Tomas:
degree for Art 26 to be applicable If the Court finds that the decree
- HOWEVER, still recognized here if recognized in place of capacitated the alien spouse to
citizenship, due to Nationality Principle, and will not be changed if he remarry, the courts can declare that
or she reacquires PH citizenship the Filipino spouse is likewise
Must be filed by foreigner spouse, otherwise if filed by Filipino spouse, capacitated to marry. However, no
divorce will not be recognized here court in this jurisdiction can make a
- However, insofar as the foreigner, divorce will be recognized here in similar declaration for the alien
adherence to Nationality Principle spouse. However, this unavailability to
- He cannot claim interest on property acquired by the Filipino on the aliens does not necessarily strip him
ground that under PH law his marriage to Filipino is not terminated of legal interest to petition the RTC for
- Foreigner cannot file for adultery because he is not considered recognition of his decree.
married to her/him
Before Family Code, second paragraph of Art 26 did not apply: In case of
divorce, Filipino NOT allowed to marry but the foreigner spouse can

ART 27.
In case either or both of the
contracting parties are at the point of
death, the marriage may be
solemnized without necessity of a
marriage license and shall remain
valid even if the ailing party
subsequently survives.
ART 28.
If the residence of either party is so
located that there is no means of
transportation to enable such party There must be no means of transportation to enable such party to appear
to appear personally before the local personally before the local civil registrar
civil registrar, the marriage may be
solemnized without necessity of a
marriage license.
ART 29.
In the cases provided for in the two
preceding articles, the solemnizing
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Proving Foreign Divorce (Bayot v CA)
VALIDITY: Foreign decree must be duly authenticated by foreign court
issuing said decree, and the law must also be authenticated by the legislator
or the source of divorce law
LEGAL EFFECTS: marital bond is severed, both are free to remarry after
completing legal requirements -> no more obligations
TWIN ELEMENTS FOR APPLICABILITY OF ART 26(2): valid marriage
celebrated by a Filipino and foreign spouse and a valid divorced obtained by
alien spouse capacitating him or her to remarry
NO CAUSE OF ACTION IN PETITION FOR NULLITY OF MARRIAGE: A
cause of action is an act or omission of one party in violation of the legal right
of another
- exists when: right in favor of petitioner, obligation on defendant to
not violate such right; act/omission on part of such defendant;
violative of right of plaintiff/breach of obligation
- Rebecca (Bayot v CA) lacks cause of action
Exemption from Marriage License
Situations where contracting parties don’t need to obtain ML before getting
married:
- Articulo Mortis (27)
- No means of transportation (28)
- Performed by ship captain or Articulo Mortis while in flight or
stopover (31)
- By military commander of a unit within a military zone (32)
- Muslims or members of ethnic communities (33)
- Man and woman who cohabited for 5 years (34)
Reasons for exceptions mainly anchored on necessity and practicality
(articulo mortis, respect for customs, policy of legitimizing illicit cohabitation)
Far Areas
Solemnizing Officers Under Article 7 and the Mayor
 Can act as solemnizer if either or both of contracting parties are at
point of death
 Judges are limited to their jurisdiction
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officer shall state in an affidavit Rabbi, Imam and Minister must comply with Article 7 (2)
executed before the local civil  Consul and Consul General abroad can only solemnize marriages if
registrar or any other person legally parties are both Filipinos as provided in Article 7(5)
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 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.

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.
ART 31. Chief Pilot and Ship Captains
 Only chief pilot/captain, articulo mortis, while in flight, at sea, or in
A marriage in articulo mortis stopover; and among passengers and crew members
between passengers or crew
members may also be solemnized by Military Commander
a ship captain or by an airplane pilot  Must be: a commissioned officer (rank should be above second
not only while the ship is at sea or lieutenant), commander of a unit (at least a battalion)
the plane is in flight, but also during  Only in articulo mortis and in the absence of a chaplain assigned
stopovers or at ports of call. and within the zone of military operation
 Parties can be members of armed forces and/or civilians
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.
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.
ART 34.
No license shall be necessary for the to publication of applicants names for marriage license (De Castro v Assidao
marriage of a man and woman who
have lived together as husband and Must meet two distinct conditions
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.
Directory Requirements
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Muslim and Ethnic Groups
 In Civil Code, marriage of ethnic groups, pagans, Muslims performed
in accordance with customs, rites practices valid without ML
 only for 20 years after Civil Code took effect, after 20 years they
must comply with mandates if no separate law was made
 Code of Muslim Law: effective Feb 4, 1977
 separate laws on persons and family relations of Muslims
 Exempted by Family Code from procuring ML provided that marriage
is done according to customs
 RA 6766 or Organic Act of CAR
Cohabitation for Five Years Office of the Court Administration v
Aim: to avoid exposing parties to humiliation, shame and embarassment due Necessario: administrative ruling
against judges who irregularly
De Castro) solemnized marriages from 2003 to
2007 made an erroneous statement
- Must live as husband and wife for at least five years with that no legal impediment exists during
EXCLUSIVITY and CONTINUITY that is unbroken (RP v Dayot) 5 year cohabitation
- Must be without any legal impediment to marry each other (Ninal v Ninal v Bayandog: basis used by
Bayandog) during actual marriage celebration (Manzano v Sanchez) Supreme Court in Office of Court
- Thus, may have legal impediments during cohabitation Administration v Necessario, who
The following shall happen: erroneously used old Article 76 of Civil
- Contracting parties shall state the fact of their cohabitation for at Code as reference
least five years and absence of legal impediments to marry IN AN
AFFIDAVIT Cosca v Palaypayon: a judge
- Solemnizing officer shall state under oath that he ascertained the solemnized a marriage involving a
qualifications of parties and found no legal impediment party only 18 years of age on basis of
- Failure of investigation will not invalidate marriage affidavit that they have lived together
for six years; marriage not void - judge
just failed to investigate qualification of
- Articles 29 to 30 discuss directory requirement relative to duties of parties
S.O. with respect to the affidavit he/she has to execute
- Non observance will render marriage void or annullable De Castro v Assidao-De Castro:

Article 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 guardian
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 preceding Chapter;
4. Those bigamous or
polygamous marriages not
falling under Article 41;
5. Those contracted through
mistake of one contracting
party as to identity of the other;
Those subsequent marriages that are
void under Article 53
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Marriage Law of 129 punishes SO who fails to comply with said
requirements if marriage in articulo mortis or other exceptional character
VOID AND VOIDABLE MARRIAGES
Void Marriages: that w/c is not valid from its inception
 Absence of any of the essential or formal requisites makes a
marriage void
o Art 35, 36, 37, 38, 40, 41, 44, 45, 53 in relation to 52
 
 Exceptions:
o Marriages exempt from license requirements for a void
marriage
o Solemnizing officer was not legally authorized to perform
marriage, but either or both of the parties believed in good
faith that the solemnizing officer had legal authority to do so
 Note: Only marriages declared void by the legislature should be
treated as such. There can be no other void marriages outside of
those specifically provided by law.
o MAY MARRY: Guardian and ward; Stepbrother and
stepsister
 Grounds for a void marriage may co-exist in one case 

o A petition for declaration of nullity, without any other
incidental prayers like support, deals with only 1 cause of
action, which is the invalidity of the marriage from the
beginning
o There can be multiple grounds, but only 1 cause of action
 .
(Mallion v Alcantara)
Void & Voidable Marriages
VOID MARRAIGES VOIDABLE
MARRIAGES
Falsity of an affidavit to procure a
marriage given that there was never
cohabitation between the parties
cannot be considered a mere
irregularity because five year period is
a substantial requirement of the law to
be exempted from obtaining a
marriage license
(Chi Ming Tsoi v. Court of Appeals)
That the party who is accused of being
psychologically incapacitated is the
one who files the case is immaterial;
good faith or bad faith does not serve
to change the status of a void marriage

 Facts: Chi Ming Tsoi has a 3-inch
penis & his wife believes he is
incapable of sex or that he might be
gay, as he has refused to sleep with
her for a number of months already.
Chi Ming Tsoi, on the other hand, says
it is his wife that is psychologically
incapacitated, & that he is willing to
make the marriage work.
Held: Marriage is VOID. The refusal to
have sex points towards a
psychological issue, & at this point, it is
immaterial whether or not the wife or
the husband is the reason why this is
the case; the bottom line is, this
marriage ain’t working.
(De Castro v. Assidao-De Castro)
In cases of child support, the validity or
voidness of a marriage can be
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STATUS OF Considered as having Valid until otherwise collaterally attacked.
 Facts: Petitioner
MARRIAGE never taken place & cannot declared by court filed a complaint for support against
be the source of rights her husband to compel the latter to
support their child. The husband
RATIFICATION No ratification Generally ratifiable by interposed an affirmative degree
free cohabitation or claiming he & petitioner were not
prescription married. Did the husband need to file a
separate case to declare his marriage
void?
 Held: NO. In a case of child
TYPE OF Can be assailed Cannot be assailed support, there is no need to file a
ATTACK THAT collaterally, but not directly collaterally, but only in a separate case for the JDNOM.
IS ALLOWED by any other person other direct proceeding
than the spouses  3 cases when a direct attack
(not a collateral attack) on the
PRESCRIPTIVE For direct proceeding - only Only during the lifetime nullity of a marriage must be
PERIOD during the lifetime of the of the parties first undertaken
parties
1) The absolute nullity of a
For collateral attack – no previous marriage may be
prescription invoked for purposes of
remarriage on the basis solely
WHO CAN Any interested parties Only parties of marriage of a final judgment declaring
ASSSAIL can assail such marriage void (Art. 40) 


LEGITIMACY Generally, children Children are legiti ate 2) For other purposes, such
OF CHILDREN conceived & born inside a as but not limited to heirship,
void marriage are legitimacy or illegitimacy of a
illegitimate child, settlement, etc., the
court may pass upon the
Except: 
 Art. 54 – in validity of a marriage even in a
relation to psychological suit not directly related to it;
incapacity, Art. 53 (failure but this is without prejudice to
to record judicial any issue that may arise in the
declaration, partition & case, making the JDNOM
distribute) necessary (Niñal v. Bayadog)


*NOTE: If a person in a
void marriage fails to get a 3) Revocation of a donation
JDNOM & remarries, the propter nuptias given to one or
child is illegitimate (Art. 40) both of the parties on the
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1 ground that the marriage is

void; a JDNOM must first be
PROPERTY Co-ownership(Art. 147/148) Conjugal partnership of obtained by the parties. (Art.
REGIME gains (or absolute 50 in relation to Art. 43(3) &
Except:
 Art. 40 – community) Art. 86(1)) 
 *The existence of
marriages that are void due a valid JDNOM will give the
to failure to obtain a donor the cause of action to
JDNOM for the 1st revoke the donation (Art.
marriage of one of the 86(1)) or to consider the
spouses donation revoked by operation
of law (Art. 50 in relation to Art.
*BUT NOTE: If only Art. 40 43(#)), as the case may be. 

is complied with, without
Art. 52, regime is co-
ownership 2

 If a contracting party states under oath in his application that he is 21

years of age when he is actually 16, & the marriage was solemnized
when he was a minor, the marriage is still void & can still be judicially
declared void.
 If the parties state that they have been cohabiting for 5 years already
when they have only cohabited for 2, the marriage is void.

Bad Faith or Good Faith in Void Marriages

 Generally, good faith or bad faith is immaterial in void marriages
 o A

person who marries her long-lost brother without knowing he was her

1 If a man marries a 2nd woman after failing to obtain a JDNOM for his 1st marriage, his children with the woman will be illegitimate. But if he obtained a JDNOM, & merely
failed to record the JDNOM & distribute & partition his properties, his children with the 2nd woman are legitimate.


2If a spouse fails to get a JDNOM for his 1st marriage & remarries another woman, his property regime will still be ACP/CPG when he dissolves his marriage with 2nd woman.
But if the same spouse obtains a JDNOM, but fails to record it, distribute & partition, the regime of his marriage with the 2 nd woman will be co-ownership.
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long-lost brother still entered a void marriage
 o Same applies if

person marries without a marriage license
 Exceptions, when the party:
o Has well founded belief that his or her spouse is dead
o Procures a juridical declaration of presumptive death
o Good faith at the time of the subsequent marriage ceremony

*In the last 2 cases, the good faith of even one of the contracting parties shall
make the marriage valid.

There is no injured party in a void marriage, unlike in an annullable marriage

or those with legal separation.

Bad Faith Affecting Property Distribution

 In the disposition of properties in a void marriage, good faith & bad

faith of one of the parties at the time of marriage is material (Art. 147,
148 of CC) 

 GENERAL RULE in void marriages: property regime is co-ownership


o When one of the parties is in bad faith, the share of said
party in the co-ownership shall be forfeited in favor of their
common children
 In case of default or of waiver by any or all of the
common 
 children or their descendants, share shall
belong to the 
 innocent party 

 Shall take place upon the termination of cohabitation


 Applies to all marriages except to a subsequent void marriage due to
the failure of a party to get a prior JDNOM of the previous void
marriage pursuant to Art. 40 of the Family Code.
 ACP or CPG

 The party that contracted under bad faith will also be forfeit his share
pursuant to Art. 43 (2).

Collateral & Direct Attack


 Collateral attack: nullity of marriage can be asserted even if it is not

the main or principal issue of a case

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o No previous JDNOM is required by law with respect to any

other matter where the issue of the voidness of a marriage is
pertinent or material, either directly or indirectly
 Direct attack: the JDNOM is the principal issue

 Inheritance case: any proof can be showing that makes a child
illegitimate due to the void marriage of decedent with their mother 

o It does not need to be shown that either one of the spouses
filed a civil case precisely & mainly for the purpose of
judicially declaring the marriage void), other evidence
enough

Below 18 Years of Age

 Subsequent parental consent cannot ratify such a void marriage

Non-Authority of Solemnizer

 The Philippines exclusively recognizes ceremonial marriages

Mistake of Fact Mistake in Identity Mistake in Law

 If a person is not enumerated in Art. 7 of FC or by LGC, he has no

authority to 
 solemnize a marriage 


Good Faith Marriage

 Good faith belief of either or both of the contracting parties in the

authority of the solemnizing officer can still make the marriage valid
 “Putative marriage” – applied to a matrimonial union which has been
solemnized in due form & good faith on the part of one or both of the
parties but which by reason of some legal infirmity, is either void or
voidable. The essential requisite is the belief that it is valid.
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Notary public was

SO misrepresented Wrong physical identity;
believed to be a
himself as judge wrong family name, etc.
legitimate SO; not good
not included.
faith (good faith means
Art. 35(2) can be
due diligence);
invoked Ground for nullity.
Art 35 (2) cannot be
invoked

 NO OTHER essential or formal requisite can be “cured” by good faith

 
 Good faith is a question of fact which must be determined by the
trial court, but good faith is always presumed until the contrary is
proven
o Requires the exercise of due diligence, & this means a
certain awareness of the questions of law
o Person in good faith cannot close his ears to information or
his eyes to suspicious circumstances; must not act blindly or
without reasonable precautions
 When a woman’s belief in the validity of the authority of the
solemnizing officer stems from a question of fact (he acts more like
the judge than the judge himself) rather than a question of law (not
knowing which solemnizing officer has authority), her belief is
considered in good faith.
o From Family Code Senate Committee Discussions – many
people these days are good at pretending they have the
authority to solemnize marriages

No Marriage License

 Marriage license is a formal requisite, with exceptions provided in Art.

27, 28, 29, 30, 31, 32, 33 & 34 of the FC.

Bigamous & Polygamous Marriages

 Exceptions:

o Code of Muslim Personal Laws
o Art. 41 (Presumptive Death)
 A validly married man or a woman are prohibited from contracting
another bond of union as long as the consort is alive

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o Example: A subsequent marriage contracted by a wife during

the life of a former husband is illegal & void from the
beginning

o Example: A subsequent marriage contracted in HK by a
husband who had secured a void Nevada divorce is
bigamous & void

 st
If the 1 marriage is void, there is no bigamy when the man or
woman contracts a 2nd marriage
o SC ruled in Nicdao Cariño v. Cariño, however, that a
marriage under Art. 40 would in fact be bigamous (to be
clear: the first marriage is void, and without getting a
JDNOM, one of the spouses enters into a second VALID
marriage).
 BUT when the 1st marriage is void, & one of the parties contracts a
2nd marriage, the 2nd marriage is likewise void if the parties did not
obtain a JDNOM & recorded with the LCR before any subsequent
marriage (Art. 40, 52, 53)

Mistake in Identity

 One of the parties marries the twin of the other, believing that such
twin is his or her lover
o The contracting party ABSOLUTELY did not intend to marry
the other, as the same is not the person he actually knew
before the marriage
 Does not include mistake in the name, character of the person, his or
her attributes, his or her age, religion, social standing, pedigree,
pecuniary means, temperaments, acquirements, condition of live or
previous habits
o DOES NOT APPLY when a man is led to believe that he is
marrying a virtuous woman, when in fact she had previously
led an immoral life

Void Under Art. 53

 For persons whose marriages have been annulled or declared null &
void to be able to validly marry again, they must:
o Register JDNOM or JDAOM in the local civil registry where
marriage was solemnized

Article 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 EO
227 dated July 17, 1987)
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o Undertake the liquidation, partition & distribution of their
properties, IF ANY
o ONLY in the proper cases, the delivery of the children’s
presumptive legitimes
o Non-compliance with these requirements will make the
subsequent marriage void
Psychological Incapacity (Santos v. Court of Appeals)
 Determination is on a case-to-case basis, according to the facts of Absence for a long period of time does
the case not necessarily prove psychological
 Not to be equated with insanity or total mental inability to function in incapacity.
all aspects of human life

 Restricted to psychological incapacity “to comply with all the marital Facts: Wife goes abroad to work in the
obligations.”
 U.S. & does not contact her husband
 Malady or mental disposition must seriously & effectively prevent at all; only calls him up 7 months later
them from having a functional & normal marital life clearly conducive to say she is coming home, but she
to bringing up a healthy personal inter-marital relationship within the never does. She only begins to reply
family which is necessary for its growth when he files for JDNOM due to
 Afflicting party even BEFORE celebration of marriage
 psychological incapacity, for her failure
 Senseless, protracted, constant refusal to comply with all the to communicate with him for over 5
essential marital obligations by one or both of the parties although years.
he, she or they are physically capable of performing such obligations
 Some examples from jurisprudence:
 Held: NO psychological incapacity;
o While a person may be truly efficient & mentally capable in there is no showing that the wife fails
his professional life, he can still be considered completely to understand the obligations &
irresponsible vis-à-vis his married life if he spends the whole consequences of marriage.
day working & not minding his or her family
o Despite him saying that he truly loves his wife & kids, he is
so absolutely indifferent with respect to his or her duties as a
father & husband
 Capacity is limited to his failure or disregard to comply with essential
marital obligations, although physically capable of doing so
o Not mere stubborn refusal; attributable to psychological
issues
 NOT related to insanity or lack of consent, but with obligations
attendant to the 
 marriage
 CANNOT be cured by cohabitation, considering that ratification does
not apply 
 to void marriages; even the bearing of children does not
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necessarily cure 
 psychological incapacity

 There is such a thing as SELECTIVE IMPOTENCY—when a person
may be 
 psychologically impotent with one person, but not with
another; this can be 
 considered psychological incapacity
 Psychological incapacity must be incurable as a disorder, but a
psychologically incapacitated person is not barred from marrying
again (relative)
 Decisions of church tribunals are not binding on civil courts but have

 persuasive effect, since the provision is taken from Canon Law
 Children born in marriages under psychological incapacity are
LEGITIMATE

Proving Psychological Incapacity 


 Can only be proven by indicators & external manifestations of the

person claimed to be psychologically incapacitated 

 It is important to see if the spouse observes their duties as required
in Art. 68 of the Family Code 

 Procreation is considered an essential obligation – constant non-
fulfillment of this obligation will finally destroy the integrity or
wholeness of the marriage 

 Art. 220, 221 & 225 of FC – duties of parents in relation to their
children; failure to do this is a good indicator of psychological
incapacity 

o Art 35, 36, 37, 38, 40, 41, 44, 45, 53 in relation to 52
o Example: fear of a wife, who is afraid of children, to engage
in sexual relations is an indicator of psychological incapacity
(senseless & protracted refusal) 

o Example: unreasonable attachment of spouse to his friends,
so much so that his devotion to his family is subordinated to
said attachment 

 Total breakdown of family life is a good indicator, but separation &
abandonment alone are not conclusive proof of psychological
incapacitate
 Mere isolated idiosyncracies are not enough; so mere refusal or
neglect to comply is not enough too—it must be downright incapacity
to perform
o There must be gross irresponsibility & utter disregard
o Should NOT be attributed to pure physical illness

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 Psychological evidence (expert testimony) is not necessarily

conclusive, but can be considered decisive evidence if it is thorough
& specific to the case of the incapacitated spouse
o Personality disorders suffered by both parties is included

o BUT a person need not be declared psychologically
incapacitated by a physician, as courts can consider totality
of evidence

o Expert testimony must be thorough & in-depth assessment
 Some accepted disorders of psychological incapacity:

o Dependent personality disorder
o Anti-social & narcissistic personality disorder – with lack of
loyalty to persons or sense of moral values

o Hyperesthesia – no real freedom of sexual choice
o Schizophrenia

o Nymphomaniacs

o Inadequate personality disorder

Expert Testimony

 Extremely helpful
 Personal medical or psychological examination is not a requirement
for the declaration of psychological incapacity, & the presence of
expert testimony does not also immediately mean the decree will be
granted
 Decision must be based on totality of evidence
o Thus, sometimes, when the report from the psychiatrist
seems faulty or too general, it is not considered by the courts
o But sometimes, when the psychiatrist does not personally
examine the incapacitated person but is able to get the
pertinent data, the testimony is admitted as evidence
 In one case, the husband was going to introduce the confidential
psychiatric evaluation report made by a psychiatrist with respect to
his wife
o Court admitted this as evidence even if it was supposed to
be confidential, as it was the husband, not the psychiatrist,
who would be making the testimony

Lifted from Canon Law

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 Decisions of church tribunals are also considered persuasive, but not

necessarily conclusive 

o Art 35, 36, 37, 38, 40, 41, 44, 45, 53 in relation to 52
o Example: Woman who submits herself to sex because she is
obliged to do so; this is indicative of a psychological problem


 Fr. Dacanay – psychological incapacity as the inability to posit the
object of consent, rather than the inability to posit consent
o They understand marriage, however they find it difficult to
deliver the object of their consent

Jurisprudential Guidelines (Republic v. CA & Molina) Guidelines for

invoking & proving psychological incapacity:

1. The burden of proof to show nullity of marriage belongs to the one

who claims the psychological incapacity; any doubt should be
resolved in favor of marriage 

2. Root cause must be: clinically or medically identified 
 , alleged in the
complaint 
 , sufficiently proven by experts 
 , clearly explained in the
decision. Moreover, it must be psychological, but manifestation may
be physical
3. Incapacity proven to be existing at the time of the celebration of the
marriage 

4. Must be shown to be medically or clinically incurable – may be
relative 
 only in regard to the other spouse 

5. Such illness must be grave enough to bring about inability to assume
the 
 essential obligations of marriage 

6. The essential obligations must be those embraced by Art. 68-71 of
the 
 Family Code 

7. Interpretations given by National Appellate Matrimonial Tribunal of
the 
 Catholic Church of the Philippines should be given great
respect by our 
 courts 


Despite Molina, each case of psychological incapacity must be treated


 differently

Damages 

No damages allowed at all in psychological incapacity; non-cognizance of
one’s essential marital obligation at the time of the marriage ceremony
negates bad faith, which is an essential element in awarding moral damages
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in contracting the marriage

Article 37. Reasons for Prohibition (Carungcong v. People, Sato)

Marriages between the following are  Immoral 
 Upon the death of one spouse,
incestuous and void from the  Recessive abnormality (biological) 
 relations by affinity do not terminate
beginning, whether the relationship  Social & psychological issues regardless of the existence of issues
between the parties be legitimate or for all intents & purposes favorable to
illegitimate: them
1. Between ascendants and
descendants of any degree;
and
2. Between brothers and sisters,
whether of full or half blood
Article 38. Reasons for the Prohibition of Void Marriages
1. Policy of the state to foster a normal, peaceful, and
The following marriages shall be void wholesome integral nuclear family unit which would
from the beginning for reasons of constitute the very foundation of society
public policy: 2. Enumeration in Art. 38 is exclusive -> guardian/ward &
principal/agent can marry each other; provided they do not
1. Between collateral blood suffer from any other impediment in the Family Code
relatives, whether legitimate or
illegitimate, up to the fourth Collateral Blood Relatives by Consanguinity
civil degree  May likely result, though not of the same gravity, in the dangers and
2. Between step-parents and confusion attendant in incestuous marriages under Art. 37
step-children;
  The coefficient of inbreeding (0.125 for uncle-niece, 0.0625 for first
3. Between parents-in-law and cousins, 0.0156 among second cousins) is a risk to much allow
children-in-law;
 citizens, law must be enacted accordingly
4. Between the adopting parent  Relationship by consanguinity is in itself not capable of dissolution ->
and the adopted child; a death of a common ascendant does not sever the blood
5. Between the surviving spouse relationship of first cousins MARRIAGES BETWEEN HALF-
of the adopting spouse
 BLOOD RELATIVES
6. Between the surviving spouse In determining whether two persons are relatives of each other up to the 4th Audley v. Audley : prohibition
of the adopted child and the civil degree: consider their nearest and immediate common ascendant -> extended to relatives of the half-blood;
adopter
 count the number of relatives from one of them to the common ascendant -> it is the not the percentage of blood
7. Between an adopted child and from the common ascendant to the other one relationship, but rather how the
a legitimate child of the relationship is generally known and
adopter Collateral Half-Blood Relatives by Consanguinity understood
8. Between the adopted children  law does not provide that marriages between collateral blood
of the same adopter relatives by the half-blood are prohibited In Re: Simms Estate: marriage
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9. 
 Between parties where one,
with the intention to marry the
other, killed that other
person'’s spouse or his or her
own spouse.
between uncle and niece by the half-
Relationship by Affinity blood is not incestuous and void; the
 marriage makes husband and wife one : the husband has the legislature could have explicitly said so
relation, by affinity, to his wife's blood relatives and vice versa
 prohibited : step-parents & step-children; parents-in-law & children-in-
law Marriage Termination's Effect to
 destroys the peacefulness of family relations and also cause Relationship by Affinity
disturbances within the family circle Back v. Back : marriage between a
 keeping in tradition of extended families deceased husband and the daughter
 step-brothers and step-sister can marry each other (not stated in law) of his former wife by another man of a
previous marriage is valid
Effect of Termination of Marriage on the "Affinity Prohibition"
 when the marriage is annulled or nullified accordance with law, there
can be no question that the relationship by affinity is terminated ->
allowed now to legally marry each other
 Civil law : conflicting views on whether they can marry each other;
Criminal law: affinity relation subsists even after death

Adoptive Relationship
Who they cannot marry

Adopter
The adopted
The surviving spouse of the adopted
(Envisions that the marriage was
terminated due to death. But if the
marriage was terminated after the
finality of a nullity or annulment
decree then they can get married)
Adopted
The adopter
The surviving spouse of adopter
(Envisions that the marriage was
terminated due to death. But if the
marriage was terminated after the
finality of a nullity or annulment
decree then they can get married)
Legitimate children of adopter
Other adopted children of the
adopter

Who they can marry


Article 39.
The action or defense for the
declaration of absolute nullity of a
marriage shall not prescribe.
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 marriage between the surviving spouse has been terminated by
Adopter Adopted
Children of adopted Parents of adopter
Natural parent Illegitimate child of the adopter
Other relatives Other relatives
Spouse of adopted if alive and not Spouse of adopter if alive and not
married to adopted married to adopter
death
 if the marriage of the adopter has been judicially nullified/annulled &
barring any other ground to make the marriage void, the adopted can
validly marry the previous spouse of the adopter -> not a separate
spouse but a former spouse
Intentional Killing of Spouse
 grave moral turpitude
 must be animated by the intention to marry another person
 no prior criminal conviction needed, mere preponderance of evidence
is required
 applies to a person who kills the spouse of another to marry the latter
Prescriptive Period Prescriptive Period
 Time within which to file an action for the declaration of nullity of Ninal v. Bayadog : children of the
marriage or to invoke such nullity as a defense deceased contracting party can file for
 Judicial decree merely declares or confirms the voidness, non- the declaration of nullity
existence or incipient invalidity of a marriage - in a SC En Banc resolution : only the
wife/husband can file the case
Parties
 Any of the parties in a void marriage can file a nullity case even Fujiki v. Marinay : only the spouses
though such party is the wrongdoer in the subsisting first marriage can file
 What is also sought to be protected is the interest and public policy of a case for declaration of nullity of a
the State subsequent bigamous marriage
 Wrongdoer may be held liable for damages by way of counter claim
of the contracting party Perez v. Court of Appeals : SC
 A void marriage can still be collaterally attacked by any interested denied the petition of the second wife
party in any proceeding where the determination of the validity of for intervention in the declaration of
marriage is necessary to give rise to certain rights or to negate nullity of marriage filed by her husband
certain rights in his previous marriage ; no legal
standing

Article 40.
The absolute nullity of a previous
marriage may be invoked for the
purposes of remarriage on the basis
solely of a final judgment declaring
such previous marriage void.
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Judicial Declaration of Nullity Jarillo v. People : Art. 40 can be
 a subsequent marriage without such judicial declaration of nullity of applied retroactively
the previous marriage is in itself void ab initio in accordance w/ Art. Atienza v. Brilliantes: even if the first
40, 52 and 53 marriage was celebrated before the
effectivity of the Family Code, but the
Art. 52: The judgment of annulment or of absolute nullity of the marriage, subsequent marriage occurred after
the partition and distribution of the properties of the spouses and the the said effectivity, Art. 40 will apply
delivery of the children's presumptive legitimes shall be recorded in the retroactively in so far as making the
appropriate civil registry and registries of property; otherwise, the same first marriage the reckoning point
shall not affect third persons.
Art. 53: Either of the former spouses may marry again after compliance with Domingo v. Court of Appeals : sole
the requirements of the immediately preceding Article; otherwise, the basis acceptable in law for said
subsequent marriage shall be null and void. protected marriage to be from legal
infirmity is a final judgement declaring
 The sake of good order of society and for the peace of mind for all the previous marriage void
persons concerned
 An opportunity should be given, when the evidence is obtainable and De Castro v. Assidao - De Castro : a
the parties living, to have the proof of invalidity of such marriage lower court can declare a marriage
presented in the form of a judicial record void even without prior judicial
 As a consequence of changing rules, the status of a subsequent declaration of nullity of a void marriage
marriage depends upon the time of the solemnization of the said filed in a separate action; validity of a
subsequent marriage marriage can be collaterally attacked
Minutes of the 152nd Joint Meeting of the Civil Code and Family Code
Committee:
 Justice Caguioa: one cannot determine for himself w/n his marriage
is valid and that a court action is needed
 Prof. Bautista: there are actions which are brought on the assumption
that the marriage is valid; it will not be a unilateral declaration that it is
a void marriage
 Justice Caguioa: limit the provision to remarriage
 For the protection of the spouse so that when he remarries again, he
Valdes v. RTC : if the first marriage is
will not be charged with bigamy
void and a party to that first marriage
 Final judgment declaring the previous marriage void need not be
subsequently remarries w/o obtaining
obtained only for the purposes of remarriage, there are other
a judicial declaration of nullity for the
instances where a party might well invoke the absolute nullity
first marriage, the subsequent
 In the essence of marriage as inviolable social institution, marriage is void - failed to comply with
subsequent marriages cannot be purely based on perception - a the requirements under Art. 40
court declaration is the only way to satisfy the exacting norm of
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society Mercado v. Mercado : criminal

offense of bigamy is committed for as
Historical Background for Need of JDNOM long as a subsequent marriage was
Prevailing Jurisprudence: if the subsequent marriage was made before the contracted by a person without him or
declaration of nullity is contracted -> VOID her obtaining a judicial declaration of
nullity of his/her first marriage pursuant
to Art. 40 of this Family Code
Valid w/out Void w/out - Vitug, dissenting opinion : must
Case
JDNOM JDNOM contemplate a marriage that was at
least annullable but not void; void
Sept. 28, 1954 Mendoza X marriage is a defense in a criminal
bigamy case regardless of w/n a
Feb. 28, 1957 Aragon X judicial declaration of nullity has been
obtained
June 30, 1970 Gomez X
People v. Cobar : elements of a
Jan. 30, 1971 Conseguera X criminal bigamy - 1) offender has been
legally married 2) marriage has not
June 21, 1977 Odayat X been legally dissolved or in case his or
her spouse is absent (could not yet be
May 30, 1983 Tolentino X presumed dead) 3) offender contracts
a second or subsequent marriage 4)
Aug. 19, 1986 Wiegel X the second or subsequent marriage
has all the essential requisites for
Oct. 28, 1986 Yap X validity
Aug. 3, 1988 Family Code X

Art. 40 & Bigamy

 If 1st marriage is VOID and 2nd marriage is contracted without getting
the JDNOM, liquidating, distributing properties, etc., the 2 nd marrage
is VOID because of failure to comply with requirements under Art 40
and NOT because of Bigamy. (Valdez v RTC)
 SC decided in Nicdao-Carino v Carino that 2nd marriage is bigamous
because though 1st marriage is void, no JDNOM was taken so still
valid. (Wrong decision according to Sta Maria)

Art. 40 and Criminal Bigamy

 Crime of bigamy by a person who contracts a subsequent marriage
before the former marriage has been legally dissolved or before the

Article 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
has 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 Art. 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 for in this
Code for the declaration of
presumptive death of the absentee,
without prejudice to the effect of the
reappearance of the absent spouse.
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absent spouse has been declared presumptively dead
 Good faith in contracting the second marriage is a defense in the
crime of bigamy
 Elements of bigamy:
1. Offender has been legally married (may be valid or voidable)
2. Marriage has not been legally dissolved or spouse is not presumed
dead
3. Offender contracts a second or subsequent marriage
4. Second or subsequent marriage has all the essential and formal
requisites for validity
Bigamous marriage Fujiki v. Marinay : first Japanese
 A marriage contracted during the lifetime of the first spouse is null husband had personality to file the said
and void petition in the Phil -> bigamy is also
 If the first marriage is annullable or voidable, any subsequent against the public policy in the
marriage is bigamous and void ab initio Philippines
Recognition of the foreign judgment
EXCEPTION: VALID BIGAMOUS MARRIAGE nullifying a bigamous marriage is a
 The present spouse obtains a judicial declaration of presumptive subsequent event that establishes a
death via a summary proceeding in a court of competent jurisdiction new status, right and fact that needs to
 Declared presumption is only prima facie be reflected in the civil registry
o Four year absence or 2 year absence if there is a well-
founded belief that the spouse is dead
o Danger of death: missing airplane/vessel, armed forces
Termination of the subsequent marriage
 Obtained by the recording of the affidavit of reappearance of the
absent spouse in the civil registry of the residence of the parties to
the subsequent marriage pursuant to Article 42 (only instance that
marriage is terminated extra-judicially)
 No affidavit or sworn statement with the civil register: valid bigamous
marriage
Liquidation of the Properties of the First Marriage
 After the issuance of a judicial declaration of presumptive death, the
properties of the first marriage should be liquidated
 If there is no liquidation and the present spouse immediately
remarries, the property regime that will apply in the subsequent
marriage will be the complete separation of property

Article 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 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
an 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.
Article 43.
The termination of the subsequent
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 If there were a liquidation: the parties may agree in settlement as to
what type of property regime will govern the marital relationship
 Absent marriage settlement or latter is void: governed by the
absolute community of property regime
 Void marriage: co-ownership and the properties will be liquidated in
accordance with the said rules
Well - Founded Belief of Death RP v Nolasco: a Filipino seaman
 Depends on the circumstances of the case wanted to get a judicial declaration of
 Result of proper and honest to goodness inquiries and efforts to presumptive death from the court to his
ascertain the whereabouts of the absent spouse and whether the missing English spouse: failed to
absent spouse is still alive conduct a search for the missing wife
with such diligence
Art. 390 & 391
 After an absence of 7 years, it being unknown whether the absentee Republic v. Court of Appeals: did not
still lives, he shall be presumed dead for all purposes present the alleged persons from
 Except for those of successions, absence of 10 years whom he allegedly made inquiries
 Shortened for five years if he disappears after the age of 75
Sworn Statement of Reappearance
 Terminates the subsequent marriage Social Security System v. Jarque
 Sworn statement or affidavit of the fact and circumstance of such Vda. De Bailon : no step is taken to
reappearance and recording the same with due notice to the spouse terminate the subsequent marriage ->
of the subsequent marriage will not terminate such marriage
 Any interested party may file this sworn statement: parents, children,
present spouse, subsequent spouse
 The mere fact of reappearances does not invalidate the subsequent
marriage
 Must undergo questioning: if impostor, the termination will be
rendered ineffectual
If no sworn statement was filed:
 Protects the second marriage
 Reappearing spouse cannot enter into a contract of marriage w/
another person
 Must file a nullity or annulment case if there are valid grounds; if
there are no ground, will live forever as a married person
STATUS OF CHILDREN: Children conceived during the subsequent marriage
contemplated in Art. 41 are legitimate even if one of the contracting parties is
in bad faith.
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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 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
EFFECT OF TERMINATION ON THE PROPERTY REGIME: The property
regime shall be dissolved and liquidated. After the payment of all debts, the
spouses shall divide the net profits of the property equally or in accordance
with the stipulated sharing. If a spouse acted in bad faith, the guilty spouse
shall not get his share in the net profits (his/her share will be forfeited in favor
of the common children, if none the children of the guilty spouse by a previous
marriage, if none to the innocent spouse.
DONATIONS BY REASON OF MARRIAGE: If both parties are in good faith,
the donation shall be valid. If the donee acted in bad faith in contracting the
marriage, the donation by reason of marriage is terminated byoperation of
law. If both are in bad faith neither can recover what they have given.
DESIGNATION AS BENEFICIARY IN INSURANCE POLICY: The innocent
spouse has the choice of revoking the beneficiary in an insurance policy even
if the policy is irrevocable. (Should inform the insurance company)
DISQUALIFICATION AS TO INHERITANCE: The spouse who acted in bad
faith shall be disqualified to inherit from the innocent spouse. If both spouses
are in bad faith according to Article 44 the marriage is void and the parties
cannot inherit.

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 shall be
disqualified to inherit from the innocent
spouse by testate and intestate
succession

Article 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 disposition made by one
in favor of the other are revoked by
operation of law.
Article 45.
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 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 and both lived together as
husband and wife;
3. 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 has husband
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Marriage contracted in bad faith
 If the subsequent marriages in cases under Art. 41 were contracted
where only one of the parties, whether the present spouse/new
spouse - VALID
 If both spouses are in bad faith - VOUD
 Good faith of the present spouse must be present up to the time of
celebration of the subsequent marriage
General Rules
 Dissolution is only allowed under such restrictions or limitations as
the legislature may deem best for the public welfare
 Clear and undeniable proofs are necessary
 Exclusivity of the ground of annulment - only those prescribed by law
 Once ratified the marriage will be valid and no longer annullable even if
the insanity comes back.
No parental consent
 The parents of the child can annul the marriage at any time prior to
the time the child reaches the age of 21
 Opportunity to annul the marriage so that the probability of a
troublesome, Illl-advised or stormy marriage relationship due to
unpreparedness of the contracting parties financially, emotionally
and psychologically to enter into such relationship can be
terminated or prevented Larson v. Larson : plaintiff has not
satisfied the burden of proving, clearly
Unsound mind and definitely, that the defendant was
 Must be clear that illness is serious that cannot understand an "insane person" at the particular
marriage contract at the time of the marriage. time of this marriage
 Burden of proof rest upon him who alleges insanity - preponderance
of evidence
 Lucid interval is in its nature temporary and uncertain in its duration,
and there is no legal presumption of continuance
 If the spouse knew that the spouse was insane prior to the
celebration of the marriage she cannot annul the marriage.
Fraud
 Refers to the non-disclosure or concealment of certain circumstances

and wife;
4. That the consent of either party was
obtained by force, intimidation, and
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.
Article 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 of 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 sexually
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which materially affect the essence of marriage
 No other misrepresentations will be acceptable to constitute fraud to
annul a marriage (any act of fraud not included in Art. 46 cannot be
invoked to annual a marriage)
 Accidental matters are not going into the essence of the marriage
and not affecting the free consent of the injured party thereto since it
is the duty of the parties to inform themselves of such matters before
entering into a contract of such importance to themselves and to
society
PREVIOUS CONVICTION: No need for investigation on the part of the party
but there must be a final judgment.
CONCEALMENT OF PREGNANCY:
Concealment must be done in bad faith. Thus, if the woman truly believed
she was not pregnant when she was the marriage cannot be annulled.
- Misrepresentation that she was pregnant to induce the man to
marryher when she was in fact not pregnant is not considered for
annulment.
- Exceptions : If the woman was unchaste and the man knew of Aquino v. Delizo : the mere fact that
her unchaste character & If woman did not inform the man but the woman at the time of the marriage
pregnancy was apparent. is four months pregnant cannot be
conclusive as to the app
“”””””arency of such pregnancy so as to
CONCEALMENT OF STD: Nature or gravity is irrelevant; the fact that it
was concealed was enough. bar the man from invoking this
particular ground
CONCEALMENT OF ADDICTIONS: No exact meaning but has been defined
Foss v. Foss : a man who knew the
as persistenthabit of becoming intoxicated, irresistible habit.
*Does not need to get drunk all the time, the habit of becoming periodically unchaste character of a woman and
drunk and beingunable to resist when the opportunity arises. who subsequently married such
woman who at the time of the marriage
CONCEALMENT OF GENDER PREFERENCE: considers the effect on the was pregnant and who assured him
injured spouse in performing his/her marital duties. Mental fitness, health, etc. that it was his child, when in fact it
Does not nurture a natural and wholesome family could not have been his child ->
cannot be annulled
Vitiated Consent
 Consent of both parties, must be freely given
 Intimidation: 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
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transmissible disease, regardless of its
nature, existing at the time of the
marriage; or
4. Concealment of drug addiction,
habitual alcoholism, or 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.
spouse, descendants or ascendants to give his consent
 Must be proven by preponderance of evidence
 Criminal liability attaches on anyone who uses violence,
intimidation and fraud in contracting a marriage
Ratification: Cohabitation after the cause of the vitiated consent ceases.
Party to file the suit: Injured party within 5 years from the time the force,
intimidation or undue influence disappeared or ceased.
Incapacity to Consummate:
 Permanent inability on the part of one of the spouses to perform the Villanueva v. Court of Appeals :
complete act of sexual intercourse (must be incurable). appellant's apprehension of danger to
 Can originate from a psychological problem, which affects the his person is so overwhelming as to
physical. deprive him of the will to enter
 Must exist at the time of the marriage. voluntarily
 May be caused both by husband and wife.
 Burden of proof : whoever alleges; preponderance of evidence
 Family Code adheres to the relative/selective nature of the incapacity
to consummate
 Exception: Sterility is not considered impotency because he can still
engage in sexual coition. Organs for conception not necessary
becausethere is still passion.
 If venereal disease were obtained after the marriage ceremony, it
cannot be ground for annulment; but can be grounds for sexual
infidelity
 Rule of triennial cohabitation: presumption of impotence arises when
wife remains a virgin after 3 years from the time of marriage.

Article 47. GROUND PARTY TO FILE PRESCRIPTION RATIFICATION Siman v Leus: Plaintiff-parent must
SUIT PERIOD show that cause of action exists in
The action for annulment of marriage 1. No a. a. Anytime before After non-consent favor of himself; After 21 years of age,
must be filed by the following persons parental Parent/Guardian "non-consent" party cohabits child does not need a guardian in order
and within the periods indicated herein: consent having Legal party reaches age with the spouse to bring order a suit
(1) For causes mentioned in number 1 Charge of "No- of 21 after reaching 21
of Article 45 by the party whose parent Consent Party" years of age
or guardian did not give his or her b. W/in 5 years
consent, within five years after b. "No-Consent" after attaining 21
attaining the age of twenty-one, or by Party years
the parent or guardian or person
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having legal charge of the minor, at *extended to 18

any time before such party has years of age by
reached the age of twenty-one; RA 6109.
(2) For causes mentioned in number 2
of Article 45, by the same spouse, who
had no knowledge of the other's 2. Insanity a. Sane spouse a. at any time Through
insanity; or by any relative or guardian w/o knowledge of before death of cohabitation by
or person having legal charge of the insanity either party the person with
insane, at any time before the death of the unsound mind
either party, or by the insane spouse b. Relative, b. at any time after he has come
during a lucid interval or after regaining guardian or before death of to reason
sanity; person or having either party
(3) For causes mentioned in number 3 legal charge of
of Articles 45, by the injured party, insane
within five years after the discovery of c. during lucid
the fraud; c. Insane spouse interval or after
(4) For causes mentioned in number 4 regaining sanity
of Article 45, by the injured party, 3. Fraud Injured Party W/in 5 years after Cohabitation after
within five years from the time the discovery of fraud the innocent
force, intimidation or undue influence spouse has full
disappeared or ceased; - starts from the knowledge of the
(5) For causes mentioned in number 5 discovery of the facts constituting
and 6 of Article 45, by the injured fraud the fraud
party, within five years after the 4. Vitiated Injured Party W/in 5 years from Cohabitation after
marriage. (87a) Consent time force, disappearance of
intimidation or force, intimidation
undue influence or undue
disappeared or influence
ceased

- counted from the

time of the
disappearance of
the force,
intimidation or
undue influence
5. Injured Party W/in 5 years after No ratification
Incapability the marriage because ground
to ceremony is not based on
Consummat defective consent

Article 48.
In all cases of annulment or declaration
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.
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e/STD - from the time of
marriage
ceremony
Nature of Annulment Case
 “actions in rem,” they concern the status of the parties, and status
affects or bind the whole world.
 Jurisdiction over the same by the proper RTC depends upon the
nationality or domicile of the parties, not the place of the celebration
of the marriage, or the locus celebrationis.
The law clearly provides the person or persons who can file a case for
annulment depending on the grounds involved
 Parents, guardians or persons having legal charge of the child can
never file an annulment case on a ground other than those provided
in Art 45(1) and (2) even if he/she alleges a cause of action for and
on behalf of the child
 Must show that the cause of action exists in favor of himself/herself
 No other person can file the case for the injured party: aggrieved
spouse, not the parents
Incapacity to consummate and STD: cannot be ratified because these
grounds are not based on defective consent, but are based on the fact that
both are incurable
Action to annul marriage filed with the said 5 years will not succeed if it is
shown that at anytime during the said 5-year period, he or she freely
cohabited with the other as husband and wife.
Procedure in Annulment and in Declaration of Nullity Cases Tolentino v. Villanueva
1. After a complaint has been filed, defendant has 15 days from receipt Not wanting to reveal evidence
of the summons and a copy of the complaint within which to file an prematurely may lead to dismissal of
answer. In the event that the defendant fails to file an answer, he annulment case.
cannot be declared in default.
2. If, erroneously, the court renders a default judgment in an annulment Brown v. Yambao
case, this would not prevent the decree from having legal effect. (De The inquiry of the fiscal can focus on
La Cruz v. Ejercito any relevant matter whether the
3. In all cases: proceedings for annulment are fully
 A full-blown hearing must be undertaken justified or not
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 Summary proceedings are not allowed - prove of grounds through

In the cases referred to in the preceding  preponderance of evidence Mendoza v. CA
paragraph, no judgment shall be based  material facts alleged in the complaint shall always be proved Annulment suit cannot be terminated
upon a stipulation of facts or confession  expressly prohibit an annulment of marriages without actual trial by way of a compromise agreement
of judgment
Role of Fiscal and Solicitor General Roque v. Encarnacion
 Must be present Counter-claim seeking to annul
 Appear on behalf of the State to make sure that there is no defendant's marriage to petitioner,
collusion o the evidence is not fabricated although not denied or resisted by the
 Can also be required to submit a memorandum latter, cannot be decided by summary
judgement proceeding
 Duty is not only to defend a valid marriage but to expose an invalid
one
Mendoza v.CA
 OSG, thought not specifically mentioned, can intervene -> issue of
Office of Solicitor General may
the validity of marriage is vested with public interest
intervene in annulment proceedings
and may appear “as counsel for the
Collusion
State in the capacity of defensor
 Parties come up with an agreement making it appear that the vincula or defender of the marital bond.
marriage is defective; but in reality ground DOES NOT exist
 Collusion does not exist if the ground for annulment or nullity Sin v. Sin
ACTUALLY exists Even if the judge of lower court already
 Proof that defendant desires divorce and makes no defense, is not by denied the petition for nullity, SC
itself collusion remanded the case for further
 A judge who does not order an investigation for collusion when proceeding because the fiscal merely
needed, can be subject to 
 administrative sanction filed a manifestation that there was no
collusion and he merely entered his
Stipulation of Facts or Confession of Judgment appearance at certain hearings but
An annulment cannot be issued on the SOLE basis of a stipulation of facts or was not heard of anymore.
confession of judgment.
 Stipulation of Facts: admission by both parties made in court Maquilan v. Maquilan
agreeing to the existence of the act constituting the ground for A partial voluntary separation of
annulment property agreed upon by the parties
 Confession of Judgment: admission made in court by the respondent via a compromise agreement duly
or defendant admitting fault approved by the Court prior to the
 Stresses the fact the marriage is more than a mere contract between judicial declaration of nullity of
parties marriage is valid. No need for
 Law enjoins the Court officer to intervene for the State in order to participation of prosecuting attorney.
preserve the integrity and sanctity of the marital bonds (Tolentino v.
Villanueva) Tuason v. CA
 However, if sufficiently supported or corroborated by other If the declaration for nullity was
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independent substantial evidence to support the main ground relied strongly opposed by the defendant,
upon, may warrant an annulment of a marriage non-intervention of the fiscal or
prosecuting attorney to assure lack of
collusion is not fatal to the validity of
the proceeding in court.

Aquino v. Delizo
Failure to answer, deliberately or not,
cannot be taken as conclusive
evidence of collusion

Ocampo v. Florenciano
Willingness to separate of both parties
does not automatically imply collusion

Republic v. CA
Acceptance of wife of P500 as her
share in the conjugal property in a
nullity case does not prove collusion

Cardenas v. Cardenas and Rinen

Stipulation of facts by the parties on an
annulment case of a subsequent
bigamous marriage and the attached
marriage certificates were sufficient to
declare as null and void the second
marriage

Article 49. SC Rule on Provisional Orders Yu v. Reyes- Carpio

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
 May be ordered by the court at any time during the proceeding of an
absolute nullity, annulment or legal separation decree
 May be issued with or without a hearing and are enforced
immediately
 Motu proprio or upon application under oath of any of the properties,
guardian or designated custodian
 Under terms and conditions the court deems necessary
1. Spousal support
 From absolute community or conjugal properties in the absence of
adequate provisions in a written agreement
In annulment and nullity cases,
reception of evidence on custody,
support and property relations after the
trial courts render a decision granting
the petition, or upon entry of judgment
granting the petition, and even before
the decree is issued, is allowed.
Silva v. CA
Parents have the natural right, as well
as the moral and legal duty to care for

remain as provided to in Title IX. It shall
also provide for appropriate visitation
rights of the other parent.
2. Child support
3. Child custody
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 May award support to either spouse in such amount for a period of their children. Authority and
time as the court may deem just and reasonable based on standard responsibility may not be unduly
of living during marriage denied to the parents; neither it may be
 Court may consider the following factors: custody of child, time renounced by them. The case merely
necessary to enable spouse to find employment, duration of concerns the visitation rights of a
marriage, comparative financial resources, needs and obligations of parent over his children. There was
each spouse, contribution to marriage, age and health, physical and nothing conclusive to indicate that
emotional conditions, ability to give support, any other factor the these provisions are meant to solely
court may deem equitable address themselves to legitimate
 May be deducted from salary of the spouse relationships. The allegations against
the character of petitioner cannot be
taken as sufficient basis to render
 Supported from ACP or CPG petitioner an unfit father.
 Either parent may be ordered to give amount necessary for support,
maintenance and education of the child
 Factors to be considered: financial resources of both parents,
physical and emotional health of child, standard of living child is
accustomed to, non-monetary contributions
 May direct deduction from salary of parent
 Considers best interests of child and paramount consideration to
material and moral welfare of the child
 Factors to be considered: agreement of parties, desire and ability to
foster a loving relationship with child, child’s health, safety and
welfare, history of child or spousal abuse or who has had a filial
relationship, nature and frequency of contact, habitual use of
alcohol or drugs, marital misconduct, most suitable environment,
and preference of the child
 May award provisional custody in the following order:
o Both parents jointly
o To either parent taking into account all relevant
considerations
o Surviving grandparent or grandparent of child’s choice
o Eldest brother or sister above 21 years of age
o Child’s actual custodian over 21 years of age
o Any other person deemed by the court suitable to provide
proper care and guidance for child
 Custodian shall give court 5 days notice of any plan to change

Article 50.
The effects provided for by
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residence or take him out of residence for more than 3 days
*Article 213 of Family Code: No child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise.
4. Visitation rights
 Appropriate visitation rights shall be provided to the parent who is
not awarded provisional custody unless disqualified by court
5. Hold Departure Order
 No child of the parties shall be brought out of the country without
prior order from the court, pending resolution of the petition.
6. Order of Protection
 To stay away from places where the child frequents or any other
place designated by court
 To refrain from harassing, intimidating, or threatening such child or
person to whom custody is awarded
 To refrain from acts of commission or omission that creates
unreasonable risk to the health, safety or welfare of the child
 To permit a parent or a person entitled to visitation to visit child
 To permit a designated party to enter the residence during a
specified period of time to take personal belongings not contested in
a proceeding
 To comply with such other orders as are necessary for the
protection of the child
7. Administration of Common Property
 If the spouse abandons without just cause the other or fails to
comply with his or her obligations, court may appoint the applicant
or a third person as sole administrator of common property subject
to such precautionary conditions
Effect of Nullity or Annulment on Provisional Orders
 Void ab initio: spouse entitled to support should return it with legal
interest since such person was not entitled to support
 Annulment: support need not be reimbursed unless there are other
reasons later proven to show non-entitlement
Article 43: effects of termination of subsequent marriage Lam v. Chua
 ACP or CGP shall be dissolved or liquidated. If either spouse Even if the judgment is void but was
contracted marriage in bad faith, his share shall be forfeited in favor not assailed ina motion for

paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall
also apply in the proper cases to
marriages which are declared 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 third
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 partnershipshall 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.
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of common children. If none, children of guilty spouse in previous reconsideration and therefore not
marriage or in default, innocent spouse. made an issue on appeal; judgment
 Donations by reason of marriage shall remain valid, except if done continues to be effective
contracted marriage in bad faith -> donations revoked by law
 Innocent spouse may revoke designation of other spouse as a Tuason v. Court of Appeals
beneficiary in any insurance policy Finding of the trial court is binding on
 Guilty spouse shall be disqualified to inherit from testae and the SC unless it can be sufficiency
intestate succession shown that the factual findings are
Article 44: Both spouses of the subsequent marriage are in bad faith the clearly and manifestly erroneous.
marriage shall be void and all donations by reason of marriage and
testamentary dispositions made by one in favor of the other revoked Domingo v. Court of Appeals
Article 40: Final judgment declaring a marriage was void for a subsequent Separation of property is one of the
marriage effects of a declaration of nullity of
Article 45: Grounds for annulment marriage, and no separate civil action
need to be executed
Judgment of Annulment or Nullity of Marriage
 Shall state the factual and legal basis for its dispositive conclusion Valdes v. RTC
 A court cannot grant any relief which is not based on the allegation of the In all other cases of a void marriage
petition unless issues related to the main case were presented without other than the void subsequent
objection from any party marriage that occurs as a result of the
 Coram-non-judic: court renders a judgment which is not in conformity non-observance of Article 40, the
with the allegations in a pleading or which grants a relief which is not property regime shall be governed by
based on the pleadings, the judgment is void the rule on co-ownership.
 The liquidation, partition and distribution shall be provided for in the said
judgment unless such matters had been adjudicated in previous judicial
proceedings or the parties had agreed in their marriage settlement that
the regime of separation of property governed their marriage
 Applied exclusively to void marriages under Article 40 (subsequent
void marriage). For other reasons for nullity of marriage, property
regime shall be governed by rule on co-ownership in the absence of
evidence that it is exclusive property of only one property
Partition of the conjugal dwelling and the lot on which it is situation:
 Unless otherwise agreed upon by the parties, it shall be adjudicated
to the spouse with whom the majority of the common children choose
to remain. In case there is no majority, court shall decide 
 taking into
consideration the best interest of the children (Art. 102(6) ACP and
129(9) CPG).
 ACP and CPG shall apply in case the marriage is annulled under Art.

Article 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, unless the parties,
by mutual agreement judicially
approved, had already provided for
such matters.
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45 or void subsequent 
 marriage as a result of non-observance of
Art.40.
 In other cases of a void marriage (not Art. 40 in relation to 52 and
53), co-ownership will apply 
 and in case of liquidation, the dwelling
can be sold and the proceeds be divided equally or if shown that
such is legally owned only by one party. Not necessary to liquidate in
the same proceeding as declaration of nullity of marriage. Partition
may be made in agreement.
Creditors:
All creditors of the spouses shall be notified of the liquidation proceeding
If in the dissolution and partition, one of the parties decides to waive his or
her rights, share or 
 interest in the community or conjugal property in favor of
the other party or any other person, the creditors of the one who makes the
waiver can seek the rescission of the waiver to the extent of the amount
sufficient to cover the amount of credit (Art. 89 & 107)
Entry for Judgment and Decree of Nullity for Annulment
Unless there is a: Motion for Reconsideration or Appeal made after decision
Decision becomes FINAL upon expiration of 15 days from receipt, which
upon finality:
 Issuance of ENTRY OF JUDGMENT (registered in proper local civil
registries)
 Approved PARTITION and DISTRIBUTION of properties in the
property registry of deeds)
 Delivery of presumptive legitime
After compliance of above requirements, shall render issuance of DECREE,
the best evidence of nullity or annulment of marriage.
Presumptive Legitime Nicdao Carino v Carino VS Valdez v
 Part of the testator’s property, which he cannot dispose because the RTC
law has reserve it for the 
 compulsory heirs (Art. 886), regardless of Valdez: Liquidation of a void
the will. This is to protect the legitime of the children 
 against the subsequent marriage under Article 40
result of subsequent marriages contracted after annulment or void will follow rules on ACP and CGP, and
marriage. is therefore required to deliver
 The presumptive legitime of the common children shall be delivered presumptive legitimes
in cash, property, or sound 
 securities, unless parties by mutual Carino: a subsequent marriage
agreement judicially approved, had already provided for such matter. celebrated in violation of Article 40 is
It is not the actual legitime, which is present at the time of death. It void for being bigamouse and thus
shall be computed as of the date of the final judgment of the trial must follow rules on co-ownership
court. (which does not require delivery)

The children or their guardian or the
trustee of their property may ask for
the enforcement ofthe 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 of 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.
Article 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 children’s presumptive
legitimes shall be recorded in the
appropriate civil registry and registries
of property; otherwise, the same shall
not affect third persons.
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 The law also provides that the delivery of presumptive legitime will no
way prejudice the ultimate successional rights of the children; value Republic v. Olaybar
of properties already received under the decree of annulment or Entries in a marriage certificate that
absolute nullity shall be considered as advances on their legitime are false (forged signature, woman
 Value of the properties already received shall be considered as had no idea she was married to this
advances on the legitime. certain man) shall be corrected by
 ANNULLED: presumptive legitime of common children delivered to Petition for Correction of Entries not a
them Petition for the Declaration of Nullity of
 VOID: delivery of presumptive legitime, generally, not required except Marriage
void subsequent marriage in 
 relation to Art. 40
 Delivery can be done by filing a summary court proceeding praying
for such delivery (Art. 253)
Hearing on the Family Code in the Senate Committee on Women and
Family Relations
 Justice Reyes : protect the legitime of the children against the result
of subsequent marriages that might be contracted after an annulment
or its declaration as void
 Mr Puno : actual legitime is present at the time of death since parties
are still alive -> presumptive : properties of the persons involved at
the time of his particular situation arises would be the same as when
he dies is not a fact; properties may increase/decrease or they may
disappear
 The law looks forward : possible that there have been children from a
former marriage & if you do not exclude the presumptive legitime
then the children of the first marriage will be at a disadvantage since
they would have to share
Liquidation and Partition of Properties
 In case of nullity of marriage, properties shall be liquidated by co-
ownership.

 In voidable marriage, properties liquidated in accordance with ACP
and CPG.

 If in a pre-nuptial agreement, provides for separation of property
regime, there is no need for liquidation and partition.
RECORDING IN CIVIL REGISTRY AND REGISTRY OF PROPERTY:
 Necessary for the parties to be able to validly contract a subsequent
marriage
 Non-compliance with the liquidation and partition requirements as

Article 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.
Article 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.
TITLE II: LEGAL SEPARATION
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well as delivery of 
 presumptive legitime = non issuance of DECREE
 If a surviving spouse (other spouse dies) subsequently remarries
without liquidating the community or conjugal properties of the first
marriage, the mandatory regime of complete separation of property
shall govern the subsequent marriage.
APPROPRIATE CIVIL REGISTRY AND REGISTRIES OF PROPERTY:
 Local Civil Registry of city or municipality: Where the court issued the
decision or Where the marriage was solemnized 

 Duty of the successful petitioner to send the copy of the final decree
of the court to the proper local civil registrars.

 Duty of the clerk of court which issued the decree, to ascertain that
the decree has been registered, and if not, to send a copy to the civil
registry (Art. 409)
 Registries of Property: Where the properties are located
 or if there
are many, registration must be made in each of the registries of the
properties
Status of Children
Generally, children born inside a void marriage: illegitimate
 Exceptions: those born INSIDE a void marriage because of
psychological incapacity or a subsequent marriage for lack of
JDNOM
 Children born PRIOR to void marriage under Art 36 or 53 is
illegitimate.
Generally, children born outside a valid marriage: illegitimate
 Includes those born inside an annullable marriage, because the
marriage existed until it was annulled
 Subsequent marriage of parents will legitimate the child (Art 178)

Article 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 the 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) Lesbianism 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
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LEGAL SEPARATION
 Does not affect the marital status and involves nothing more than a
bed and board separation of the spouses
 A relative divorce
o Divorce: a dissolution of bond of matrimony based on theory
of a valid marriage for some cause arising after the marriage;
Annulment: maintained upon the theory that for some cause
existing at the time of the marriage ceremony, the marriage
is terminable
EXCLUSIVITY OF GROUNDS FOR LEGAL SEPARATION
 No other grounds aside from those mentioned in Article 55 can be
invoked by any party in furtherance of the policy of the State to foster
unity and to preserve the marital relation (as is essential to public
welfare)
 Usually occur after the celebration of the marriage
REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT
 Repeated Physical Violence towards the petitioner, a common child,
or a child of the petitioner
 does not include child of respondent/guilty spouse for lack of cause
of action
 Determinative factor: frequency of the act and not the severity of the
act
 Must be inflicted with bad faith and malice
 GROSSLY ABUSIVE CONDUCT has no exact definition and
determined on a case to case basis, e.g.:
• a singular but serious act of “squeezing neck, pulling of hair,
without intent to kill
• continued manifestation of indifference or aversion to the other
coupled with persistent neglect of duties incident to marital
relations (HOWEVER if existing during time of marriage
ceremony, grave and incurable -> nullity)
• use of offensive language towards spouse, calling of vile and
opprobrious names
COMPULSION BY PHYSICAL VIOLENCE OR MORAL PRESSURE TO
CHANGE RELIGIOUS OR POLITICAL AFFILIATION
 One attempt or incident of physical violence or moral pressure to
compel the change in religious or political affiliation is ground for LS
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“child” shall include a child by nature
or adoption.
 Justice Puno on suggestion to remove political ideas;
1. They equated political ideas with religious conviction so that one
attempt can be a ground
2. Political ideas are probably quite as important as religious ideas for
the importance of unity within family
3. Nuance is not important because if repeated -> ground for LS
4. No cutting of marital ties involved and thus reconciliation still possible

CORRUPTION OR INDUCEMENT TO ENGAGE IN PROSTITUTION

 If a spouse induces the petitioner, common child, or child of petitioner
to engage in prostitution OR if such spouse connives in such
corruption or inducement, a valid legal separation may decree
 To prevent the guilty spouse from exercising such morally depraved
acts detrimental to the growth of the children and family as a whole
 Children may or may not be emancipated
 Prostitution ONLY to prevent undue stretching of article
 A mere “attempt” is enough to be a ground for legal separation

FINAL JUDGMENT INVOLVING MORE THAN 6 YEARS OF

IMPRISONMENT
 Offense need not be against other spouse, common children, or
petitioner’s children
 Can be invoked even if convicted party is pardoned
• idea is on stigma created for being sentenced
• Judgment must be final, hence no legal separation case can be filed
if decisions has not yet been final
Tenchavez v Escano
A Filipina who obtains an absolute
DRUG ADDICTION, HABITUAL ALCOHOLISM, LESBIANISM AND
divorce abroad and subsequently
HOMOSEXUALITY
marries a foreigner and cohabits with
• Same extent and nature as those in annulment cases, but grounds
the same has technically committed
can exist after marriage ceremony, as apposed to annulment
“intercourse with a person other than her
• In cases where spouses who engaged in homosexual activities
husband”
despite repeated demands from other spouse to desist from them,
American courts usually granted a divorce decree within the statutory
Prather v Prather:
ground of “cruelty” -> creating serious mental anguish on part of
Court ruled that for wife to continue
innocent spouse
living with erring spouse can seriously
• Law should not have lumped drug addiction, habitual alcoholism with
impair wife’s life and health thus divorce
lesbianism and homosexuality for the latter are NOT afflictions, they
justified
don’t affect mental state of a person
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BIGAMY
• act of illegally contracting a marriage despite full knowledge that first
marriage is still validly existing OR without obtaining the needed Flagrante delicto: “In blazing offense”
judicial declaration of presumptive death of first spouse who was
absent for four years or two years with danger of death (Art 41)
• Place of solemnization of subsequent marriage irrelevant except for
criminal liability
Ong v Ong
SEXUAL INFIDELITY OR PERVERSION Wife left conjugal abode because she
• Adultery, concubinage, and other acts committed by one spouse that was being battered -> cannot be a
would constitute a clear betrayal of the trust of his or her spouse by ground because act was for a justifiable
having intimate love affairs with other persons cause
• a single act of sexual intercourse is enough
• A drastic departure from requirements under Civil Code where he Dela Cruz v Dela Cruz: defendant
must have committed concubinage (done through maintaining a never ceased to give support and thus
mistress in conjugal dwelling OR sexual intercourse under scandalous negates intent to not return to conjugal
circumstances OR cohabiting with her in any other place) abode and resume duties
• Sexual perversion include engaging in such behavior with third
persons OR the spouse
• except when one condones it, for one is estopped from raising it
because condonation -> consent Nunn v Nunn: a husband used
reasonable remonstrance and has
ATTEMPT ON LIFE endeavored without avail to persuade
• A criminal attempt to kill a spouse is clearly an act of moral depravity his wife not to leave him, but submitted
which warrants a decree of legal separation to inevitable and rendered her some
• Must proceed from evil design and not any justifiable cause (self assistance in going -> NOT construed to
defense or caught in flagrante delicto having carnal knowledge with imply consent to separation
another man or woman)
• Proven by a preponderance of evidence in civil case
• Criminal conviction can disinherit guilty spouse even w/o legal
separation
- children can disinherit guilty spouse UNLESS there is reconciliation
- innocent spouse’s previous provisions in a will in favor of guilty spouse are
revoked after a legal separation decree

UNJUSTIFIED ABANDONMENT
• Must be willful (there is design to forsake the other spouse
intentionally or without cause therefore breaking the marital union;
deliberate intent to cease living with spouse; abnegation of all duties of

Article 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;
(6) Where the action is barred by
prescription.
Article 57.
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relations not to return)
• Must exist a wrongful intent to desert for the whole statutory period
• Insane person cannot be said to have maintained such, thus time of
insanity cannot be included in computing for time
• Must be without justifiable cause -> no reasonable excuse for the one
who separated
• Physical cessation alone is not sufficient, there must be absolute
cessation of marital relations, duties, and rights, and a total
renunciation of duties
• Must be for more than one year to warrant a decree
• A spouse is deemed to have abandoned the other when he or she has
left the conjugal dwelling WITHOUT intention of returning.
A spouse who left the 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
CONDONATION Ocampo v Florenciano
• The act of forgiving the offense after the commission. failure of husband to look actively for his
• Implies a condition of future good behavior; where subsequent offense adulterous wife after she left the
revokes or nullifies the condonation and revives the original offense conjugal home does not constitute
• Does not require sexual intercourse and may be express or condonation or consent of wife’s
implied (Almacen v Baltazar) adulterous acts; it was wife’s obligation
to return
CONSENT
• Either of spouses agreed to or did not object despite full Almacen v Baltazar
knowledge to the act giving rise to a ground, before such act was act of giving money to an erring wife and
committed fact that no action was taken against her
• May be deduced from acts of spouse before courts of justice are sufficient to
establish forgiveness amounting to
CONNIVANCE (A CORRUPT CONSENTING) condonation
• Denotes direction, influence, personal exertion, or other action
with knowledge and belief that such action would produce certain People v Schneckenburger
results which are produced An agreement to live separately and not
(Greene v Greene) to object to other’s sexual infidelity is an
expression of clear consent to
RECRIMINATION OR EQUAL GUILT commission, but still marriage was
• Lies in equitable maxim that he who comes in equity comes with declared void
clean hands
• Two persons acting in bad faith -> good faith (in pari delicta) People v Sensano
Husband aware of his wife living with his
COLLUSION (A CORRUPT AGREEMENT) paramour did nothing to interfere with

An action for legal separation shall be
filed within five years from the time of
the occurrence of the cause.
Article 58.
An action for legal separation shall
in no case be tried before six
months shall have elapsed since
the filing of petition.
Article 59.
No legal separation may be decreed
unless the court has taken steps
toward the re-conciliation of the
spouses and is fully satisfied,
despite such efforts, that
reconciliation is highly improbable.
Article 60.
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• There must be an agreement between husband and wife looking relations and left for Hawaii for seven
to the procuring of a divorce years -> acts constituted consent and
• Collusion in divorce or legal separation means the agreement cannot file such a case
between husband and wife to commit or appear to commit a
matrimonial offense, or to suppress the evidence of a valid Witherspoon v Witherspoon
defense for purpose of enabling the other to obtain a divorce A husband employed agents to induce,
• May be implied from acts, grounds for denying divorce persuade and coerce his wife in
participating in illicit sexual activities ->
PRESCRIPTION connivance
• An action for legal separation must be filed within five years from
occurrence of the cause Ong v Ong
• Time of discovery of ground for legal separation is not material A husband subjected his wife to
physical beatings sought dismissal of
case for legal separation on ground that
wife abandoned him -> no equal guilt
involved
Ocampo v Florenciano:
offense of adultery had really taken
place, and collusion may not be inferred
from the mere fact that the guilty party
confesses to the offense
PROCEDURE (SC Resolution En Banc AM 00-11-01-SC) GARCIA v. DRILON
1. Plaintiff files complaint of legal separation Women are more likely than men to be
2. Defendant shall be required to answer within 15 days from receipt of victims of violence due to widespread
summons and a copy of petition gender bias -> real differences that
 If petitioner fails to answer, cannot be defaulted and Court shall order justify classification under the law
prosecuting attorney to investigate collusion or if not, then evidence VAWC includes, but is not limited to
submitted is not fabricated physical violence, sexual violence,
 If petitioner answers, fiscal is still mandated to be present during the psychological violence, economic abuse
trial to make sure there is no collusion or evidence fabrication (check pp. 386-387)
 If case were vehemently opposed -> no holds barred -> not collusion
-> non intervention of prosecuting-attorney to assure lack of collusion
is not fatal to validity of proceedings PACETE v. CARIAGA
3. No hearing on the merits (WITH RESPECT TO VALIDITY OR Cooling off period was a mandatory
INVALIDITY OF GROUNDS ON LEGAL SEPARATION) shall be set requirement -> decision by RTC infirm
by courts for six months (cooling off period)
 Designed to give parties enough time to further contemplate their GANDIOCO v. PENARADA
positions with the end in view of attaining reconciliation Civil action may proceed ahead or
 CAN BE DISPENSED IF: ground involves violence against woman or simultaneously with a criminal action

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 take steps to prevent
collusion between the parties and
to take care that the evidence is not
fabricated or suppressed.
Article 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 party. The
administrator appointed by the
court shall have the same powers
and duties as those of a guardian
under the Rules of Court.
Article 62.
During the pendency of the action
for legal separation, the provisions
of Article 49 shall likewise apply to
the support of the souses and the
custody and support of the
common children.
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child due to Anti Violence Against Women and Children Law -> all
grounds under Art 55 except 4, 5, 6 Ocampo v Florenciano
 Failure to observe six month cooling off period is a ground to set - Upon discovery of adultery, husband
aside decision granting legal separation (Pacete v Carriaga) expresses wish of legal separation
 What may be heard during cooling off period: determination of and wife agrees – IS IT A
custody of children, alimony, support pendent lite, motion to dismiss CONFESSION OF JUDGMENT?
(with grounds to do so) - Confession of judgment: defendant
4. Court must take steps toward reconciliation during six month period. appears in court and confesses right
of plaintiff to judgment or files a
QUANTUM OF EVIDENCE pleading expressly agreeing to
 Proof by preponderance of evidence is required to substantiate the demand
ground. - What the law prohibits is a judgment
based exclusively or mainly on
NO PREJUDICIAL QUESTION AND NO SUSPENSION OF CRIMINAL defendants confession
CASE - In said case, there was evidence of
 Civil action for legal separation may proceed ahead or actual adultery
simultaneously with a criminal action for same ground (e.g.
concubinage) Sabalones v CA
 Said civil action not one to enforce the liability arising from the offense Provisional remedy of injunction:
even under same offense purpose is to preserve status quo of
 Civil action intention: right to live separately with legal things subject to action or relations
consequences thereof (such as dissolution of absolute community between parties and thus protect rights
or conjugal partnership of gains, child custody, support and of plaintiff respecting these matters
disqualification from inheriting) during pendency of suit
JUDGMENT
 After case had been submitted for decision, judgment shall be issued Lapuz v Eufemio
by the judge, either granting or denying legal separation - Carmen Lapuz Sy, Eufemio Eufemio
- Wife filed LS against husband for
 Cannot be based on confession of judgment or stipulation of facts
abandonment -> depriving husband of
 IF PETITION DENIED -> cannot compel parties to live together
share in conjugal partnership profits
because it is a purely personal act
- No child, acquired properties during
 IF ISSUED -> Article 63 and 64 marriage
- Wife found husband cohabiting with
MANAGEMENT OF PROPERTIES DURING SUIT another woman in Manila
 The court shall designate either of them or a third person to - Husband answered with a petition for
administer the absolute community or conjugal partnership property declarion of nullity ab initio on ground
(in the absence of a written agreement) of prior marriage to another woman
 Administrator appointed -> same powers and duties as those of a under Chinese law
guardian under Rules of Court (Sabalones v CA) - Issues were joined, trial proceeded,

Article 63.
The decree of a legal separation
shall have the following effects:
(1) The spouses shall be entitled
to live separately from each
other, but the marriage bond
shall not be severed;
(2) The absolute community or
conjugal partnership shall be
dissolved and liquidated but
the offending spouse shall
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but before it could be completed ->
DEATH TERMINATES LEGAL SEPARATION CASE CARMEN DIES due to car accident
 Does death of plaintiff before final decree of LS abate the action? - Eufemio moved to dismiss LS for
o An action for legal separation is purely PERSONAL -> death being filed beyond one year period
of one party causes the death of the action itself AND for death abating the motion
 Death has settled the question of separation beyond all controversy - Legal counsel of Carmen moved to
and deprived court of jurisdiction substitute deceased by her father
 Heirs cannot even continue the suit - Court dismissed the case because
 If it does, will abatement also apply if the action involves property Carmen’s cause of action DID NOT
rights? SURVIVE
o PROPERTY RELATIONS: Resulting changes are solely the
effect of legal separation -> Cannot survive death of plaintiff if
it occurs prior to decree
 All rights and disabilities that are vested EXCLUSIVELY in the person
of the spouses (Civil Code’s effects on LS, Right to dissolution of
CPG, loss of right by offending spouse to any share of profits earned
by partnership or community, disqualification to inherit by intestacy
from innocent spouse, revocation of testamentary provisions in favor
of offending spouse made by innocent ones) -> the claim to these are
not assignable or transmissible -> therefore claim EXTINGUISHED
upon death
o Party’s death -> no extinguishment of claim -> therefore
Section 17, Rule 3 Rules of Court: warrant continuation of
action through a substitute of deceased
o Further reason: without LS, rights sourced from LS decree,
without decree no rights -> merely in expectation; if death
supervenes -> no decree -> no expected consequential
rights and claims
EFFECTS OF A DECREE OF LEGAL SEPARATION Macadangdang v CA
 Clearly set out by law - Filomena Gaviana Macadangdang,
 Finality of separation is complete after the lapse of the period to Antonio Macadangdang
appeal the decision to a higher court even if the effects, such as - Got married after living together for 2
liquidation of property, have not yet been commenced nor terminated years
- Business grew from sari sari store to
MARRIAGE BOND MAINTAINED trucking, transportation, real estate,
 Entitled only to live separate, but marriage bond not severed etc
 Living apart does not exempt from criminal liability for bigamy, - Six children (3 minors 3 of majority
concubinage or adultery age at time of initiation)
- Economic aspect of married life OK
but physical and spiritual aspects

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;
(4) The offending spouse shall be
disqualified from inheriting
from the innocent spouse by
intestate succession.
Moreover, provisions in favor
of the offending spouse in the
will of the innocent spouse
shall be revoked by operation
of law.
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
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
property in the places where the
properties are located. Alienations,
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LIQUIDATION OF PROPERTY became shaky -> Accused each other
 Absolute community of property or conjugal partnership shall be of extramarital relations -> married life
liquidated intolerable -> separated -> wife
 Offending spouse shall have no right to any share of net profits discovered illicit affairs -> took initial
earned by ACP or CPG -> in favor of common child -> children of action for LS
guilty spouse -> innocent spouse - Wife also filed for petition of
 Net profits: increase in value between market value of community appointment of administrator to
property at time of celebration of marriage and market value at time administer the estate of conjugal
of dissolution partnership
- Jan 4, 1973: trial court acted on
CUSTODY OF MINOR CHILDREN appointment of administration to
 Innocent spouse awarded custody Filomena
- Dec 1973: Antonio filed for motions to
 Standard: paramount interest of child
 May be awarded to third party if Court believes spouses not fit dismiss, but CA rules that trial courts
decision has become final
INTESTATE AND TESTATE DISQUALIFICATION - 1979: Andrei Macadangdang dies
 Fending spouse disqualified from inheriting - Filomena: lower court resolved only
issue of LS and reserved for
 Provisions in favor of offending spouse shall be revoked, but will be
supplemental decision of division of
ineffectual upon manifestation of reconciliation
conjugal properties -> incomplete?
 Art 921(4) of Civil Code: a person can disinherit his or her spouse in
- COURT: no, decision is final and
awill if latter has given cause for legal separation even if he or she
executor since law is clear for
has not yet beet found guilty, but still ineffectual upon mutual
dissolution and liquidation
reconciliation
DONATIONS AND BENEFICIARY IN INSURANCE
• acts of liberality : the law gives the option to the innocent party whether he
or she will revoke the donation or the designation as beneficiary of the
guilty party in an insurance
• The action for revocation must be filed within 5 years from the time the
decree of legal separation has become final.
• Art. 87: if the donation is void, the right to bring an action to declare the
nullity of the donation does not prescribe
• There is a discrepancy between the final version of the provision
deliberated and the one signed by the President
o final version : notification to the insurer
o signed by President : notification to the insured
• Notification to the insurer:
- more practical because the insurer is liable for the insurance
- when the insurer has no knowledge of the revocation, they might pay the

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 years from the time the
decree of legal separation become
final.
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.
ART 66.
The reconciliation referred to in the
preceding Articles 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
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proceeds of the insurance to the former beneficiary (offending spouse)
- an inconvenience in seeking the return of the proceeds unduly given
 However, the law must be applied as written up to such time the
provision is effectively amended according to the intent of the framers
REVIVAL AND ADOPTION
Reconciling spouses can revive their original property regime
SC En Banc Resolution: allows parties to adopt another regime of property
different from that which they had prior to the filing of the petition for legal
separation (Sec. 23(e) and 24)
*Art 88 and Art 107
- any stipulation express or implied, for the commencement of either the
absolute community of property regime of the conjugal partnership property
at any other time other than at the precise moment that the marriage is
celebrated shall be void
Conflicting views:
1. ADOPTION OF A NEW REGIME IS PROHIBITED
Art. 66 & 67 - restrictive
- provisions refer only to the revival of the former property regime
- adoption of new property regime is not a revival
- omission of adoption of new regime -> intent of framers to not include
- no provision that provides for the procedure for the adoption of new regime
- in case of conflict, the substantive law, the Family Code, shall prevail
2. SWITCHING FROM ABSOLUTE COMMUNITY TO CONJUGAL

revive their former property regime.
The court's order containing the
foregoing shall be recorded in the
proper civil registries.
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 measure to protect the interest
of creditors and such order shall be
recorded in the proper registries of
properties.
The recording of the ordering in the
registries of property shall not prejudice
any creditor not listed or not notified,
unless the debtor-spouse has sufficient
separate propertiesto satisfy the
creditor's claim.
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PARTNERSHIP & VICE VERSA IS PROHIBITED
- Art 66(2) refers to revival only; it does not expressly provide that a different
property regime cannot be applied for by the parties (they can allow what
they do not disallow)
- the new rule can allow only a change to a different property regime other
than the absolute community or the conjugal partnership (marriage bond is
still intact and never cut)
- they can adopt a different kind of property regime that parties devise
themselves
- SC is allowed to fill in the procedural gaps since there is nothing in the
Family Code providing for the procedure on how the adoption regime can be
made
3. ADOPTION OF A NEW REGIME IS ALLOWED
- as long as there is court approval
- does not take into consideration of Art 87 and Art 107
INHERITANCE
Disinherited guilty spouse = subsequent reconciliation renders ineffectual any
disinheritance made
BUT innocent spouse has the option of again reinstituting the provisions in a
will that was revoked to the guilty spouse
- there is nothing in the Family Code which provides for the
revival of the revoked provisions in a will originally made in
favor of the offending spouse as a result of the legal separation
decree
- in harmony with the provision that parties are given by the law
the power to decide which properties they want to main as their
own separate property
RECORDING OF THE ORDER OF REVIVAL
 Effect on the creditor’s claim:
o Recording of the order
o Listing or non-listing of creditors in order
o Notification of creditors
*Recording of order of revival – prejudice the creditors listed
*Not listed – not prejudiced
*Creditors not listed or not notified – prejudiced IF debtor-spouse has
sufficient separate properties
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*No claims filed though listed or notified – prejudiced

The Court can set aside certain separate properties of each spouse -> paying
off or protecting the interests of each of the spouses' respective creditors

Example:
A & B - obtained the order of reconciliation and revival of conjugal partnership
X - creditor of A

Court ordered A to pay X before the revival

X could only execute on A's house for the satisfaction of the judgment debt
Another court issued the legal separation decree and revived the spouse's
conjugal partnership -> included the house of A

*In case he was notified of the motion of revival/revival - order or listed in the
revival-order as creditor -> X WILL BE LEGALLY PREJUDICED
-X cannot, upon default of A to pay, execute on the house anymore since A &
B became co-owners
-X should have filed opposition or claim in the Court -> can make provisions
to protect his interest

*In case he was not notified of the proceedings nor listed as creditor -> X
CAN STILL FORECLOSE ON THE HOUSE
- the house, even if included in the revived conjugal property, is still separate
property of A

* A has separate properties, not included in the revived conjugal partnership,

and are enough to pay X -> X WILL BE PREJUDICED even if he was not
notified nor listed
- X will not be able to execute on the house or any other assets which have
become part of the conjugal partnership properties of A & B

Chapter 3 : Rights and Obligations Between Husband and Wife

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ART 68. DUTIES AND OBLIGATIONS Lacson v. San Jose- Lacson

• Husband and Wife are obliged to : People understand that they must live
The husband and wife are obliged to 1. Live together, together -> learn to soften by mutual
live together, observe mutual love, 2. Observe mutual love, respect, and fidelity, accommodation that yoke which they
respect and fidelity, and render mutual 3. Render mutual help and support, know they cannot shake off
help and support.
Chi Ming Tsoi v. CA
NO COMPULSION Procreation is also an essential marital
• Except for support, a court cannot validly issue a decision compelling obligation springing from the universal
the spouses to live together, observe mutual love, respect and fidelity. principle that procreation of children
• Only the moral obligation of the spouses constitutes the motivating through sexual cooperation is the basic
factor for making them observe the said duties and obligations which end of marriage
are highly personal
Arroyo V. Arroyo
Wife's domestic assistance and
DAMAGES FOR FAILURE TO COMPLY WITH OBLIGATIONS conjugal companionship are purely
There can be no action for damages merely because of a breach of marital personal and voluntary acts which
obligation neither the spouses may be compelled
to render; she is not entitled for support
• Other Remedies (Abuse of Right Doctrine - ART 19, 20, 21):
• If a spouse in bad faith refuses to comply with the above
Ty v. CA
obligations, and if the property regime is separation of property
Our laws do not comprehend an action
• Any person who deprives a spouse of the consortium or services
for damages between husband and wife
of the other spouse can be liable for damages. But this merely because of breach of a marital
deprivation must be fully proven. obligation

Tenchavez v. Escano
CAN A HUSBAND COMMIT RAPE AGAINST HIS WIFE? YES The desertion and securing of an invalid
divorce decree of one consort entitles
• Under Philippine law, a husband can be held criminally liable for raping the other to recover damages and
his wife (RA 8353) attorney’s fees
• However, in case it is the legal husband who is the offender, the
subsequent forgiveness of the wife as the offended party shall Lilius v. Manila Railroad Company
extinguish the criminal action or the penalty Any person who likewise deprives a
• If the marriage is void ab initio, the crime shall not be spouse of the consortium or services of
extinguished nor shall the penalty be abated. the other spouse can be held liable for
damages -> deprivation must be fully
proved

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.
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.
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State of New Jersey v. Albert Smith
If repeated refusals are a breach of the
marriage contract, his remedy is in a
matrimonial court, not in violent and
forceful self-help
DOMICILE
• Domicile of natural persons is the place of their habitual residence
• Spouses can only have one domicile but many residences
• Place where the parties intend to have their permanent residence with
the intention of always returning even if they have left it for some time
• A minor follows the domicile of his/her parents
• Fixing of the Family Domicile - Agreement between husband and wife
• Departure from the repealed ART 100 of the Civil Code where
the husband has the sole power to decide where the family
domicile will be
• New provision in the Family Code “Recognizes revolutionary
changes in concept of women’s rights in the intervening years
by making the choice of domicile a product of mutual
agreement between the spouses” (Romualdez-Marcos v.
COMELEC)
• Disagreement between the husband and wife? The courts shall
decide (ART 253 FC)
• A spouse can validly live away or separately from the other only if the
latter should live abroad or there are other valid and compelling
reasons for the exception
• “Other valid and compelling reasons” - Spouse has to work in
the mines in the Mountain Province and the like
Ayala Investment v. Court of Appeals
An isolated transaction of spouse such as being a
EXPENSES FOR SUPPORT AND HOUSEHOLD MANAGEMENT guarantor for a third person’s debt is not per se
• [ART 70] Spouses shall be jointly liable for the support of the considered as redounding to the benefit of the
family family
• [70 & 71] In the absence of the community property, the to hold the absolute community or the conjugal
expenses for support and other conjugal obligations shall be partnership property liable for any loss resulting
taken from the income or fruits of their separate properties. from such isolated activity, proofs showing a direct
• Insufficiency/absence of said income/fruits? Satisfied benefit to the family must be presented

In case of insufficiency or absence of
said income or fruits, such
obligations shall be satisfied from the
separate properties.
ART 71.
The management of the household
shall be the right and the duty of both
spouses. The expenses for such
management shall be paid in
accordance with the provisions of
Article 70.
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.
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 occurred to the
family prior to the objection or
thereafter. If the benefit accrued
prior to the objection, the
resulting obligation shall be
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from their separate properties
Go v. CA
SC ruled that the husband cannot be held
MANAGEMENT AND RELIEF solidarily liable with the wife for the damages
• [ART 71] Management of the household shall be the right resulting from the breach, because under the
and duty of both spouses, regardless of the property regime law, any of the spouses may exercise any
involved in the marriage legitimate activity without the consent of the
• Ex. If the family house is separately owned by one of other spouse. However, if the wife is really
the spouses, the other spouse still has the right and engaged in the business of video filiming or it is
duty relative to the management of the household her profession or occupation, such undertaking
• [ART 72] Relief may take on many forms: shall be considered as redounding to the benefit
• Filing a case for legal separation, of the family, any loss shall be shouldered by the
• Nullifying the marriage, absolute community of property of the conjugal
• Petitioning the court for receivership, judicial partnership of gains
separation of property, authority to be the sole
administrator of the community property or the
conjugal partnership subject to such precautionary
conditions as the court may impose.
LEGITIMATE PROFESSION
• The husband and wife can engage in any lawful enterprise
or profession
• The law does not require that a spouse has to get the prior
consent of the other before entering into any legitimate
profession, occupation, business or activity
• In case of disagreement, the objection must be
anchored only on valid, serious, and moral grounds
• If the court finds that it is objectionable, the exercise
of the business can be judicially stopped
• RA 9262 (Anti-Violence Against Women and their Children
Law) - The following are considered acts of violence against
women, which is punishable:
• If the husband compels the wife to desist from
pursuing a profession or any other conduct which
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enforced against the separate the wife as a right to engage in,

property of the spouse who has
not obtained consent.
The foregoing provisions shall not
prejudice the rights of creditors who
acted in good faith.
• If the husband prevents the wife from engaging in
any legitimate profession, occupation, business or
activity with the purpose or effect of controlling or
restricting her movement or conduct

SEPARATE PROPERTY LIABILITY

• General Rule: The following are chargeable to Conjugal
Partnership of Gains or Absolute Community Property:
a. Exercise by a spouse of a legitimate profession,
occupation, business or activity is always considered
to redound to the benefit of the family
• Exception: Isolated transaction of a spouse,
proof showing a direct benefit to the family
must be present
b. Debts and Obligations, whatever the nature,
regardless of when it was incurred, whether before or
after the marriage ceremony, and redounding to the
benefit of the family
c. Obligations incurred as a result of a spouse’s exercise
of his/her legitimate profession/occupation or as a
result of the spouse’s undertaking of his/her legitimate
business
• Exception to GR: Professions which are seriously invalid and
immoral, the separate property of the erring spouse shall be
liable, even if benefits actually accrued in favor of the family.
• For the exception to apply, innocent spouse must
have no knowledge of the other spouse’s
engagement in an immoral activity such that he could
not have interposed any objection.