SAN BEDA UNIVERSITY J) COLLEGE OF LAW Centralized Bar Operations Political and International taw Labor Law and Social Legislation cals Taxation Law A Reviewer-based.on. the 2019 Supreme Court Bar Exam Syllab CLT a Sat)CIVIL LAW MA. CRISTINA D. ARROYO Subject Chair MARY CHERWYN L. CASTRO Assistant Subject Chair JAYSON P. HIQULANA Subject Electronic Data Processi SUBJECT HEADS , Conflict of Laws Persons and Family Relations Property and Land Titles and Deeds Wills and Succession Obligations and Contracts Sales and Lease and Agency Transactions Torts and Damuges MARIA ANGELICA R. LOVERIA SOPHIA VICTORIA E. MINA JOANNA ELIZABETH KAMLA C. MALCONTENTO: KEVIN CHRISTIAN A. PASION JAMIL P. DALIDIG KEIRVIN ANTHONY B. VIADO KORINA CES M. CUEVA MARIA ANA ANGELA T. SIMPAO. GIZELLE KARINA D.C. MONTERO SUBJECT MEMBERS ELLAIN G. PEPITO MERRYL KRISTIE M. FRANCIA CHARMIE ROSE DYNE 8. ROMANO JANINE CAMFLLE T. GASCON Ma, CHERIE JANE G. LABANGCO MARIELA MAE B. MAMARIT. JEMMA Z. OYALES BENISE D. MADAMBA DONNA KRIS. B. GOMEZ. JASON JEREMIAH G, RUNES GERARD CEASAR S. BAGUIO CAMILLE C. CELZO MORRIS MEDEL F. SOLANO JOSE MAURICE ROMEO V. SALVACION LOIS RENEE R, TUBON CZESKA JOHANN G. CO JEANNE PAULINE F. RESURRECCION MARIA EMILIA A. SIBAL JERRIC B. CRISTOBAL ADVISERS Dean ED VINCENT S. ALBANO Atty. MANUEL P. CASIN Atty. DANTE 0, DELA CRU: Aity. ROWELL D. ILAGAN Atty. JOSEPH FERDINAND M. DECHAVEZ Atty. THERESA GENEVIEVE NUEVE-COa aie eel 4 CIVIL LAW |. GENERAL PRINCIPLES A. EFFECT AND APPLICATION CF LAWS Q: When do laws take effect? ANS: Laws shall take effect after fifteen (15) days following the completion of their publication either in the Cificial Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (CIVIL CODE, Art. 2). : What does the phrase “unless it is otherwise provided” as stated in Article 2 of the Civil Code, mean? ANS: The phrase “unless otherwise provided" refers to a different effectivity date other than alter fifteen days followitg the completion of the law's publication in the Official Gazelle. It does not imply. that the requirement of publication may be dispensed with, Fubiication is an indispensable requisite, as a condition for their effectivity (Tanada v. Tuvera, G.R. No, L-63915, December 29, 1986). Q: What is a newspaper of general circulation? ANS: A newspaper of general citculaticn is one which: (BIL) 1. Has a Bona fide subscription tist of paying subscribers: 2. _ Is published at regular intervals; and 13 published for the dissemination of i,ccal news and general information (Basa v. Mercaco,.G:R. No, L-42226, July 26/ 1935). ' ’ Q: What does it mean when the law provides that it shall “fake effect immediately"? - ANS: It means that it shall take effect immediately after publication with the fifteen-cay period being dispensed with (STA. MARIA, Persons and Family Relations Law (2015), 2p 4) {hereinafter STA, MARIA” Persons}. However, the immediate effectivity clause does not preclude the requirement of publication since the clear object of the faw is to give the general public adequate’ notice of the’ various laws Which are to regulate their actions and conduct as citizens. It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law Of which he had no notice whatsoever, nol even @ constructive one (Tafiada v. Tuvera, G.R. No, L-63915, April 24, 1985). Q: What is the reason for the rule that, “ignorance of the law excuses no one from compliance therewith”? > ANS: It is a principle founded not only on expediency and policy bul on necessity, that ignorance of the law does not excuse from compliance therewith (Zuluela v. Zulueta, GR No. 428, April 30, 1902)-To allow: a party to set up as a valid defense the fact that he has no actual knowledge of a lav which he has violated is to foment disorder in sociely (STA. MARIA, Persons, supra at 5). The application of Articie 3 is limited to mandatery and prohibitory laws (D.M. Consunji, Inc. v. GA. GR. No. 137873, April 20, 2001) Q: What is the difference between ignorance of the law and ignorance of the fact? ANS: While ignorance of the law is no excuse for not complying with the law. ignorance of the fact eliminates criminal intent as long as there is no negligence (1 PARAS, Civil Code of the Philippines Annotated (2016), p. 23) {hereinafter 1 PARAS, Persons]. Mistake on a doubtful or difficult questions of law may be the basis of good faith (CIVIL CODE, Art. 526), Mistake of fact may, furthermore, viiate consent in a contract and make it voidable (Ax. 1390, id.) (1 PARAS, Persons, supra at 25). 374BEDAN RED BOOK 2018 Q: Do laws have retroactive effect? ANS: No. As a general rule, laws shall have no retroactive effect (CIVIL CODE, Art. 4). The exceptions therein are: (OFTEN-PIC) 1. When the law Othenvise provides (CIVIL CODE, Art. 4): 2. Penal iaws Favorable to the accused (REVISED PENAL CODE, Art 22): 3. Tax laws, when the same is expressly declared or when it is clearly the legislative intent. (Cebu Portland Cement Co. v. Collector of internal Revenue, GR. No. L-20563, October 29, 1968); Emergency laws (1 PARAS, Persons, supra at 33); Laws creating New rights (Bona v. Briones, G.R. No. L-10806, July 6, 1978}; Procedural or remedial laws (1 PARAS, Persons, supra at 34); An administrative rule Interpretive of a statute, which is not declarative of certain rights and corresponding obligations (Commissioner of Internat Revenue v. Reyes, G.R. No. 159694, January 27, 2906); and 8 Curative laws (1 PARAS, Persons, supra at 34). NOS Q: Whatis the nature of an act that is contrary to mandatory or prohibitory laws? ANS: Acts contrary lo mandatory and prohibitory laws are void, as a general rule (C/VIL CODE, Art. 5). ‘The exceptions are: (V-MAN) - oF 4. Where the law merely makes the act voidable es marriage celebrated through violence); 2. When the law Makes the act valid, but punishes the violator (e.g. marriage solemnized by person without legal authority); * 3. When the law itself Authorizes its validity (e.g. lofto and sweepstakes): and 4, Where the law déclares the act Null and void but recognizes the legal eifects arising: from it (@.¢. void marriage under Art."36 and 53,‘children conceived thereunder are considered legitimate (RABU YA; Person’ and’ Family Relations (2917), p, 19) (Rereinattér RABUYA, Persons]. Q: Can rights be waived? ANS: Yes. The general rule is that rights can be waived (CIVIL CODE, Art. 6). Waivers are not presumed, but must be clearly-and convincingly shown, either by express stipulation or acts admitting no other reasonable explanation (STA. MARIA, supra at 9) The exceptions are: = 1. If the waiver is contrary to law, public order, public policy, morals or good customs (CIVIL CODE, Art. 6): 2. If the waiver is prejudicial to a third party with a right recognized by law (CIVIL CODE, Art. 6); 3. Alleged rights which really do not yet exist, as in the case of future inheritance (id at 41); and 4, WF the right is a natural right, such as right to life (1 PARAS, Persons, supra at 40) Q: What are the requisites in order for the waiver of rights to be valid? ANS: The requisites in order for the waiver of rights to be valid are: (KIKACIe-FoNONo 1. That waiver is made Knowingly and Intelligently must 9¢ illustrated on the record or by evidence (Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001); The person waiving must be Capacitated to make the waiver: The person waiving must Actually have the right which he is renouncing, othenwise, he will not be renouncing anything; en 375, FS VOL 1! BEDAN RED BOOK : 3015 4. The waiver must be made Clearly, but not necessarily expressed; 5. In certain instances, the waiver, as in the express remission of a debt owed in favor of the waiver, must comply with the Formalities of donation; 6. Waiver must Not be contrary to law, morals, public policy, public order or good customs; and 7, The waiver must Not prejudice others with a right recognized by law (1 PARAS, Persons, supra at 39). Q: How are laws repealed? ANS: Laws are repealed either: 1. Expressly; or 2. Implied'y, insofar as there are inconsistencies between a prior and a subsequent law (7 PARAS, Persons, supra at pp. 45-46). Note: Implied repeals are disfavored, as a rule in statutory construction (Javier v. Commission on Elections, G.R. No. 215847, January 12, 2016). There are two categories of repeal by implication. The first is, where provisions in the two acts on the same subject matter are in en iméconcilable conflict-The later act to the extent of the confiict constitutes an implied repea! of the earlier one. The second is if the later act covers the whole subject of the earlier one and is clearly intended as a substitute. it will operate to repeal the earlier jaw. Implied repeal by irreconcable inconsistency takes place when the two statutes cover'the same subject malter; they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot.be given effect, that is, that one !aw cannot [be] enforced without nullifying the other (Commissioner of internal Revenue v. Semirara Mining Corp., GR. No, 202534, December 5, 2018). Q: What are the requisites of cn implied repeal? ANS: The following are the fequisites of an implied repeal: 1, The laws cover the same subject matter; and . 2. The latter is inconsistent with the former (Agujetas v. CA, G.R. No. 106560, August 23, 1996). . Q: In case of conflict between a general and a special law, which should prevail? ANS: Il depends: 1 if the general law was enacted prior to the special law, the latter is considered the exception to the general law. Therefore, the general law remains good law, and there is no repeal (Lichauco v. Apostol, G.R. No. L- 19628, December 4, 1922). 2. If the general law was enacted after the special Jaw, the special law remains untess: (ICE) a. The subsequent general law covers the whole subject and is clearly Intended to replace the special iaw on the maller {in Re: Guzman, G.R. No. 47790, June 30, 1941; Joaquin v. Navarro, G.R, No. L-576. August 4, 1948); b. There is a clear, necessary and irreconcilable Conflict: or ¢, There is an Express declaration to the contrary (Compania General de Tabacos v. insular Collector of Customs, G.R. No. L-21241, April 7. 1924). Q: What is the effect if the repealing law is itself repealed? ANS: When the repealing law which provides for an express repeat of the prior statute, is itself repealed, such subsequent repeal will not revive the original law, unless expressly provided. But if the prior law is impliedly repealed, the repeal of the repealing taw will revive the prior law, untess the language of the last law provides otherwise (7 PARAS, Perscns, supra at 49). 376BEDAN RED BOOK yehe Q: Are judicial decisions considered laws? ANS: No. Decisions of the Supreme Court are not laws pursuant to the Doctrine of Separation of Powers (Philippine Long Distance Telephone Company v. Alvarez, G.R. No. 179408, March 5, 2014}. Decisions of the Supreme Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Cade, “Judicial decisions applying or interpreting the laws or the Constilulion shall form part of the legal system." The interpretation upon a law by this Court constitutes, in a way. @ part of the law as of the date thal the law was originally passed, since this Cour’s construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate (Columbia Pictures, Inc. v. C.A., G.R. No. 110318, August 28, 1996). Q: What is the doctrine of Stare Decisis? ANS: Stare decisis, or “adherence to precedents,” means that once a case has been decided in one way, then another case, involving exactly the same point at issue, should be decided in the same manner (f PARAS, Persons, suzra at pp. 67-68). Note: The principle of stare decisis does not mean blind adherence to preceaents. The doctrine or rule Iaid down, which has been followed for yzars, no matter how sound it may be, if found to be contrary to law, must be abandoned. The principle of stare uecisis Goes nol and should not apply when there is coniiici between the precedent and the law. The duty of the Supreme Court is to forsake and abandon any doctrine or rule found to be in violation of the law in force (Tan Chong v.. Secretary of Labor, G.R. No. 47616, September 16, 1947). “ Q: How may judicial decisions be abrogated? ANS: Judicial decisions may be abrogated by either az 4. Contrary ruling by the Supreme Court. Provided, that no doctrine or principle of taw laid down by ihe court in a déclsion rendered en banc or in division may be modified or reversed except by the court sitting en banc. (CONST, Art. Vill, Sec, 4, par. : 2. Corrective legislative acts of Conzress. . Note: Congress cannot, however, alter a Supreme Court interpretation of a conslitutiona! provision, for this would be an unwarranted assumption of judicial power (1 PARAS, Persons, supra at 68-69; Endencia v. David, G.R. Mos. L-6255-58, August 31, 1983). Q: What will be the effect in case the Supreme Court should adopt a ruling contrary to a doctrine it has previously laid down? ANS: When a doctrine of the Supreme Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively ancl should not apply to parties who relied on the old doctrine and acted in good faith (Philippine International Trading Corp. v. Commission on Audit, GR. No. 205837, November 21, 2017) Q: If the law applicable to the case is silent, obscure, or insufficient, what should the judge do in deciding a case? ANS: The judge may apply any rule as long as the rule chosen is in harmony with genaral interest, order, mcrals, and public policy. Among these are: 1. Customs which are not contrary to taw, public order, and public policy (CIVIL CODE, Ar. 11): Decisions of foreign and local courts on similar cases; Opinions of highly qualified writers and professors: Rules of statutory construction; Principles laid down in analogous instances; General principles of the natural moral law, human law and equity, end Respect for human dignity and personality (7 PARAS, Persons, supra at pp.82-84), OMRON 377VOL 1. 2019 BEDAN RED BOOK Q: What is a custom? ANS: A custom is a ‘ule of human action established by repeated acts, and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding (1 PARAS, Persons, supra at 92). What are the requisites before the courts can consider the customs of the place in deciding a case? ANS: The following are the requisites:(PRUNIL) A custom must be Proved as a fact, according io the rules of evidence; There must be a number of Repeated acts; The repeated acts must have been Uniformly performed; It must Not be contrary to lav!, public order, or public policy; There must be a juridical Intention to make a rule of social conduct; and There must be a sufficient Lapse of time (la. at 92). PR aeNa Q: What are the rules in the computation of periods? ANS: When the laws speak’of years, montis, 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. lf months are designated by their name, they shall be computed by’the-numbef“of “days. which” they ‘Tespectively have. In computing a period, the first day shall be excluded, and the last'day included (CIVIL CODE, Art. 13) vs Q: in computatidii-of periods @6 8 Calendar years, Wwhichrile bstween Art. 13 of id-the Administrative Code prevail?! ANS: Both Al Zac of the ‘Civil Gode and Section/31, Chaoter-Vjil, Book | of the Administrative Code of 1987 deal witl: the same subject maifer — the computation of legal periods. Under Year 1S. equivalent to 365 days whether it be a regular year or'a'léap year. Under, the Administrative Code of 1987, howaver. a year is composed of 12-calendar monins. Needless to,state; under. the Administrative Code of 1987, the number of dayS:is irrelevant’ There-dbviously exists a manifest incompatibility in the manner of computing-legal pericds-under:the Civil Code and the Administrative Code of 1987. Section 31, Chapter Vill, Book | of the Administrative Code of 1987, being the more recentlaw, gdverris the-computation. of.legal periods. Lex posteriori derogat priori (Commissioner of intemal Revenue. Vou Aichi Forging Co. of Asia, Inc., G.R. No, 184823, October 6, 2010). : What is preterition of holiday? ANS: It depends: 1. la an ordinary contract, the general rule is that an act is due even if the last. day is a Sunday or a legal holiday. There are some exceptions, among them are the maturity date of a negotiable instrument; or 2, When the time refers to a period prescribed or allowed by the Rules of Court, by an order of the court, or by any other applicable statute, if the last day is a ‘Sunday or a legat holiday, it is understood that the last day shou'd really be the next vay, provided ihat the said day is neither a Sunday nor a iegal holiday (7 PARAS, Persons, supra at pp. 96-97). Note: Where the sixtieth and last day to file an information falls on a Sunday or legat holiday, the sixty-day period cannot be extended up to the next working day. Prescription has automatically set in. The remedy is for the fiscal or prosecution to file the information on the last working day before the criminal offense prescribes (Yapdiangco v. Buencamino, G.R. No L-28841, June 24, 1983). 378Q: What is the Principle of Territoriality? ANS: The principle of territoriality implies that any offense committed within our territory offends the state; therefore, any person, whether citizen or alien, can be punished for committing a crime here (1 PARAS, Persons, supra at 99). Q: What are the instances wherein the State cannot prosecute crimes committed wit! jurisdiction? ANS: The exceptions are: 1. Trealy stipurations (e.g, Visiting Forces Agreement), Laws of preferential apolication (e.g. prohibition of issuance of warrant of arrest against ambassador); and 3. Principles of public internaticnal law (e.g. Universality Principle) (RABUYA, Persons, supra at 40-41). 8. CONFLICT OF LAWS (PRIVATE INTERNATIONAL LAW) Q: Define Conflict of Laws. ANS: Conflict of laws (or Private Internatignal Law) is that part of the municipal iaw of a state which directs its courts and administrative agencies, when confronted with a legal problem involving foreign element, whether they should apply 2 foreign law or local law (PARAS, Philippine Conflict of Laws (1996), p. 2) (hereinafter, PARAS, Conflict. Q: Distinguish Public International Law from Private international Law. ANS: The following are the distinctions: Public International Law Private (nternatiénal Law Coa Based on __international__conventions, | Based on domestic and municipal imernational custom, the general principles of | laws, which includes the law recognized by civilized nations and | constitution and statutes adopted judicial decisions and the teachings of most | by individual countries. highly qualified publicists of various nations. Ste Sovereign states. and international | Private individuals organizations. corporations. S RC Rue Recognizes transactions in which sovereign | Assumes control over transactions states are interested. which are stricily private in nature. it oe) In case of violation of international law, the Resort to municipal tribunats Slate may resort to peaceful or forcitle ¢ | means. Peaceful means: diplomatic protest, negotiation, arbitration or adjudication by filing cases before international tribunals. Forcible remedies: severance of diplomatic relations, reprisals, embargo, boycott, or war. (PARAS, Conilict. supra at 10- 11) 379VOL, 2079 ON 1019) 4 Q: What are the three alternatives open to the court or administrative agency in disposing a conflicts case, one involving a foreign element, brought before it? ANS: The following are the three alternatives: 1. Dismiss the case, either because of lack of jurisdiction or refusal to assume jusisdiction over the case: 2, Assume jurisdiction over the case and apply the internal law of the forum: or 3, Assume jurisdiction over the case and take into account or apply the law of some other State or States (Hasegawa and Nippon Engineering Consultants Co., Lid.v. Kitamura, G.R. No. 149177, November 23, 2007). Q: What is the principle of Forum Non Conveniens? ANS: Literally means “the forum is inconvenient’. This doctrine means that even if the court assumes jurisdiction over the parties and the subject matter, it may decline to try the case on the ground that the controversy may be more suitably tried elsewhere (COQUIA& AGUILING-PALANGANAN, Conflict of Laws: Cases, Materials and Comments (2000), p.36) [hereinafier, COQUIA, Conflict, Q: Even if the applicable law is.a foreign law, a.court in the Philippines may be constrained to apply Philippine law under what circumstances? ANS: Though a court has jurisdiction over 2 case, it may decline to exercise it, in view of any of the following reasons: (BF-COINED) ~ 1, Belief thatthe matter can be better tried and decided in another jurisdiction, either because of the main aspects of the: case Yanspifed there or the material witnesses; haye thelr residence there; oF a i 4 2. To curb‘the evils of Forum shopping: Cour dockets of thel forum may already be Clogged and peéinitting additional cases wouldhamper speedy administration of justice: Other courts’ ‘are open, and the case may be better tried in sald courts; tnadequacy ofthe local judicial machinery for-effectuaing the right sought to be maintained!: Forum has No particular interest i in thé case; Evidence and witness mey.not be readily, available in the fore; and Difficuty of ascertaining the foreign’ taw applicable (SEMPIO-DIY, Handbook ‘on Conflict of Lawes (2004), p.1) hereinafter, SEMPIO-DIY, Confiict of Laws}. ay Nee Q: What are the three consecutive phases involved in judicial resolution of Conflict of Laws problems? ANS: The three consecutive phases are: Jurisdiction, Choice of Law, and Recognition and Enforceme.: of Judgments (Raytheon international, inc. v. Rouzie, G.R. No. 162894, February 26, 2008). Q: What is a Long-arm Statute? ANS: Itis a law that allows a plaintiff to make a claim against defendant whe ie a non- domiciliary of a state, provided there are minimum contacts with the forum to justify jutisdiction over him, These statutes specify the kinds of contacts Loon which jurisdiction will be asserted, such as the commission of a tortious act within tne state, the celebration of a contract there or presence of property owned by the defendant (COQUIA, Confict, supra at 36.). meant by the Minimum Contacts Test and Fundamental Fairness Test? : Minimum Contacts Test provides that personal jurisdiction is constitutionally permissible when a defendant has minimum contacts with the state where a lawsuit is brought such that notions of fair play and substantial justice would not be offended (International Shoe Co. v. Washington, 326 U.S. 310, December 31, 1945). Such, 380contact, ties or relations may be evidenced by its doing or transacting business or activities in the forum state. It protects the defendant against the burdens of litigating in a distant or inconvenient forum (World-Wide Volkswagen Corp. v. Woadson, 444 U.S. 286, January 21, 1980}. Fundamental Fairness Test serves to protect citizens generally against unjust and arbitrary governmerital action, and specifically against governmental procedures thal tend to operate arbitrarily. It serves as an augmentation of existing constitutional protections or as an independent source of protection against state action (Doe v, Poritz, 142 NJ. 1,108, July 25, 1995). Q: Define Choice of Law. ANS: Choice of law is an issue in conflict of laws case which seeks to answer the following important questions: 1. What legal system should control a given situation where some of the significant facts occurred in two or more states; and 2. To what extent should the chosen legal system regulate the situation (Continental Micronesia, inc, v, Basso, G.R. Nos. 178382-A3, September 23, 2015). Q: What should be considered in evaluating the propriety of contracting parties’ choice of forum and its incidents? : ANS: The following should be considered:" 2 1, The availability and adequacy of recourse to'a foreign tribunal, and 2. The question of where, as between the forum’ court and foreign court, the balance of interests inhering in ajdispute weighs more, heavily (Seudi Arabian Airlines v. Rebesencio, et al., G.R, No. 198587, January, 14, 2015). Q: What is Scrivener’s Error? 4 ay ANS: Surivener’s Error means failure of the agreement'to express. the intention of the parties due to Wrong tarminology, missing terminology, ‘or. clerical efror. Because there is failure to express the true intent of the parties, the agreement ls: interpreted according ic its plain or obvious meaning (PE BENITO; Conflict of Laws, (2076), p. 82} {hereinafter PE BENITO, Confict}. : Q: What are Conflict Rules? ANS: Conflict Rules are provisions found-in-our-own’ law which governs a factual situation possessed of a foreign. element. It is usually expressed in the form of an abstract proposition thal a given iegal quest!on is governed by the law of a particular country 10 be ascertained in the manner indicated in the provision (SEMPIO-DIY, Conflict of Laws, supra at 22), Q: What are the two kinds of conflicts rules? Give examples for each. ANS: The two kinds of conffic's rule are: One-sided rule — indicates when Philippine iaw will apply, e.g. Art, 18 and Art. 818 of the Civil Code only apply to Filipinos; ard 2. Alksided or multilateral rule - indicates whether to apply the local law or the proper foreign law, e.g. Article 1Spar. 1 and Article 17 par. 1. Arts. 1763 and 1039 of the Civil Cade (SEMPIO-DIY, Conflict of Laws, supra at 23). Q: What is Characterization in reference to Conflict of Laws? ANS: Characterization in Conflict of Laws is the process of assigning a disputed question to its corcect legal category such as torts, contracts, family law, of property. Itis also known as “classification” or “qualification (SALONGA, Private international Law, (1995) p.140) [hereinafter SALONGA, Private International Law}. 381BEDAN RED BOOK 3345 Q: What are the rules on characterization of procedural and substantive rules? ANS: If the issue in the case is substantive, apply foreign law. If it is procedural, apply the forum law or lex fori, Note: The following are guidelines in determining as to whether the matter pertains to substantive law or procedure! law: 4. Questions of evidence — procedural matters governed by forum law; 2, _Prescriotion of action and Statute of frauds — consider what the parties had in mind at the time the transaction took place and proceed to apply the intended law in its totality. An exception is if the subject-matter is property located in the Philippines, in which case Philippine law, being the lex situs, applies (SEMPIO-DIY, Conflict of Laws, supra at 27). Q: What is a borrowing statute? Give an example of a borrowing statute under Philippine law, ANS: A borrowing statule is a legislative exception to the conflict-of-laws rule holding that a forum state must apoiy its own statute.ci limitations; it specifies the circumstances in which a forum state will apply another state's statute of limitation (Black's Law Dictionary, éth ed.,2004)..One form of borrowing statute provides that an action barred by the laws of the place where it accrued, will not be enforced in the forum even though tne local statute has not run.against it. Section 48 of our Code of Civil Procedure is of this kind (LIV Constnietion Corporation v. Dupo; G.R. No. 172342, July 13, 2009) Q: What is Dépegage? ANS: From the French word “deceper” meaning “to dissect’. The diferent aspects of the case involving’ 4 fordign eléfient may bé goverried by differenti systems of law (LIPSTEIN, Genéral Principles of Private International Law, (1972) p.-214) {hereinafter _ HPSTEIN, Private Intemational Law}. i fowl Q: What is the, Renvoj Doctrine? : ANS: Renvoi Docttire'js a procedure whereby a jural matter presented is referred by the conflict of laws rules'of the forum to a foreign’state, the conflict of laws rule of which in turn refers the matter back to the law of the forum or a third siate (COQUIA, Confict, supra at 102), : dace) Transmission . = Reference is made back fReferencés ig made io a to the law of forum: | third state: involves 3 involves 2 laws; laws; Pee That which occurs when the local court, in adopting the _ foreign court theary, discovers that the foreign court accepts the —_renvoi (SEMPIO-DIY, Confiict of Laws, supra at 62). Q: What Is the effect of the Renvoj Doctrine? ANS: Since the conflict rule in the foreign country refers the maiter back to the Philippines (the place of domicile), our courls have no alternative but to accept the referring back lo us. If our courts will do otherwise and throwback the matter to the foreign country, the problem wil be tossed back and forlh between states concemed, resulting in “international football” (In the Matter of Testate Estate of the Deceased Edward E. Christensen, G.R. No, L-16749, January 37, 1963). 382Q: What is the Desistment Theory? ANS: Also known as the Mutual Disclaimer of Jurisdiction Theory, it states that the forum court upon reference to another state's law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for appli of the territory, H: the lecal court will apply local law. This has the same result as the acceptance of the renvoi doctrine but the process used by the foruin court is to desist applying the foreign law (PARAS, Conflict, supra at 216) Q: What is Processual Presumption of Law or Presumed Identity Approach? ANS: Processual Presumption of Law or Presumed Identity Approach means that if the foreign law is not properly pleaded or proved, the presumption of identity or similarity of the foreign taw to cur own !aws, otherwise known as processual presumption, applies (Continental Micronesia, inc. v. Basso, G.R. Nos. 178382-83, September 23, 2015). Q: What are the exceptions to the requirement that foreign laws must be pleaded and proved before they can be considered by the court? ANS: The exceptions are: (FUL) 1. Pre sigh-licensed attorney who will testify in open concerning hisfher knowledge of the law in question; 2. Recognition of existence of a Universally known law; and 3. Lack of objection to improper presentation by one party (PE BENITO, Contlict, ‘Supra at 80). - Hon of a For Q: What is Personal Law? 7 ANS: The law which attaches to a person wherever he may go and generally governs his status, capacily, condition, family relations and the, consequences of his actuations. IL allows courts to exercise jurisdiction or determine the governing choice-of-law rule on a specific situation or transaction involving a person,. Wherever. he ‘may be (SEMPIQ- DIY, Conilicts of Law, supra at 36; COQUIA, Conflict, supra at 88).The personal lew of an individual is his national law. Q: Di status. ANS: Legislative jurisdiction over one's status is the power of his personal iaw to govern his status wherever he goes, while judicial jurisdiction is the power of the courts to decide questions or controversies conceming one’s status (SEMPIO-DIY, Conflict of Laws, supra at 73). guish legis: ction from judicial jurisdiction over 2 person's Q: Distinguish Domiciliary Theory, Nationality Theory and Situs Theory on how the Personal Law of an individual is determined. ANS: They may be distinguished as follows: ao meas Dea) ean | + 2 Situs Theory Siates that status end | The stows and capacity capacily of a person is | of an individual are determined by the law of | determined by the law of | transaction Is generally his domicite his nationality or national | jas" contoling law law (CIVIL CODE, Att. | (sepIO-DIY, Confit of 18) i Laws, supra at 30). The particular place or silus of an event or Note: The Philippines follows the Nationality Theory (SEMPIO-DIY, Conilict of Laws, supra at 31) 3832B Q: What is the thzory of effective nationality? ANS: Within a third state, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in personal matters and of any conventions in force, a third state shall apply the etionalties which any such ly in its the nationality of the country in which he, is rebitally and principally a resicent, or the nationality of the country with which in the circumstances he appears to be in fact mostly connected (Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art. 5). Q: Whats derivative naturalization? ANS: Itis Philippine citizenship conferred on: 1. The wife of a naturalized husband; 2. The minor chifdren of a naturalized father, and 3. The alien wife of 2 natural-born or naturalized citizen, the marriage having taken place after the husband's naturalization (SEMPIO-DIY, Conflict of Laws, supra at 45). - 4, Minar child of those who reacquire Philippine citlzenship after August 29, 2003 {R.4 No, 9225. otherwise, known: as’ the Citizenship Retention unt Rew “Acquistion Act of 2003; Sec. 8). . Q: What are the rules on the domicile oft (1) minors; (2),married women; (3) mentally disabled persons; (4) people kept under compulsion; and (5) public officials? ANS: The tules on dorhicile ara 2s follow 1. Minors= A minor follows the domicile of pis parents. As domicile, once acquired..is} retained until a new. one is; gained? (Romualdez-Me-sos v. Commissiari.on Elections, G.R. No. 119976, September 18, 1995). 2. Married women-,.The presumption that the wife, automatically gains the husband's domicile by operation of law upon marriage cannot Ye inferred froin the use of the:term “residence” in Article 110 of the Civil Code (Romualdez- Marcos v. Commission on Elections, G.R. No. 119976, September 18, 1995,). ally’ disabled persons— It is presumed that 3 person with mental disability cannot acquire a domicile of choice because of his inherent inability to decide where 16 make his home. However, if it.is show that a person with mental disabilty'is capable of understanding his.act and its consequences, he may be able lo acquire a domicile of choice (COQUIA, Conflict, supra at 231). 4, People kept under physical or legal compulsion (e.g, military personnel, prisoners, and persons with disabilities confined in institutions)-A person who is under compulsion is in that place not as a result of his volition. tf he intends to remain even after the compulsion has been removed, such as separation from service of a soldier or release from imprisonment of a convict, then such person will be able to acquire a domicile of choice (COQUIA, Conflict, supra at 232-233). 5. Public officials~Mere fiting of certificate of candidacy does not constitute a waiver of stalls 48 a permanent resident or immigrant of the United States. The waiver should be manifested by some act or acts independent of and done prior to fing his candidacy for elective office in this country (Casi v. Court of Appeals, G.R. No. 88631, November 8, 1990). 384BEDAN RED BOOK Q: What law shall govern marriage as a contract? ANS: 1. In determining the extrinsic validity of a marriage celebrated abroad, the following are the rules: a. Between Filipinos, lex loci celebrationis shall apply without prejudice to the exceptions under Articles 26, 35 (1), (4) and (6), 36, 37 and 38 of the Family Code (bigamous, polygamous and incestuous marriages), and consular marriages. b. Between foreigners, lex foci celebrationis shall apply except if the marriage is: (1} highly immoral (like bigamous and polygamous marriages); or (2) universally considered incestuous, ie. between brothers ard sisters (whole or haif-blood, whether the relationship is legitimate or legitimate}, and between ascendants and descendants; and c. Mixed. Apply the rules on (2) to uphold the vatidity of the marriage. 2. In determining the intrinsic validity of marriage celebrated abroad, the intrinsic requirements are controlled by the parties’ personal laws which may either be their domicile or nationality, Though valid in a foreign country, certain marriages may be void in the Philippines on grounds of public policy, as those enumerated in Article 38 of the Family Code (COQUIA, Conflict, supra at 254- 262). @: What faw shall govern the determination of the gresiida for the annulment and declaration of nullity of marriage? «+ ‘ANS! itis the law of the place of celebiation or lex loci celebrationis that must govern, subject to certain exceptions (CIVIL CODE, Art. 17). Q: What is the Nationality Principle or Lex Nationalii? ANS: The Nationality Principle states that laws relating to family rights and duties, or the stalus, condition and legal capacity of‘ persons are binding upon citizens of the Philippines, even though living abroad (CIVIL CODE, Art. 15).- Q: What law shall determine whether the child is legitimate or illegitimate? ANS: Based on the nationality principle, if the parents have a common national law, the same shall apply (C/VIL CODE, Art. 15).-In-case they have cifferent nationalities, the national taw of the father must be consulted (SEMPIO-DIY, Conflict of Laws, Supra at 94), Q: What is the rule of Lex Rei Sitae? ANS: The tule of Lex Rei Sitae states that the real property as well a. 2erscnai property is subject lo the law of the country where itis situated (CIVIL CODE, Art. 16). Q: What are the excoptions to the rule of Lex Ref Sitae? (CIAO) ANS: The folluwing shall be governed by the national law of the person whose succession. is under consideration and not by the law of the country where itis situated: 1. Capacity to sucreed (CIVIL CODE, Art. 1039); 2. Intrinsic validity o! testamentary provisions); 3, Amount of succession rights; and 4. Order of succession (CIVIi CODE. Art. 16). Q: What is the rule of Lex Loci Celebrationis? ANS: The forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed (CIVIL CODE, Art. 17, par. 1). 385Q: What is the difference between Lex Nationalii, Lex Rei Sitae, and Lex Loci Celebrationis? A: The differences are the following: ear ae Pa As to governing faw Article 15 of the Civil Code. Anicle 16 of the Civil | Article 17 of the Civil Code. Code. Citizenship is the basis for | The law of the place | The law of the place determining the personat law | where the property is | where the contract applicable. situated is the basis | was executed is the for detetthining the law | basis for determining applicable. the law applicable. ~As 18 scopes Covers family rights and duties’ |” Covers bath real and | Covers only the status, condition “and legal | personal property forms and capacity of persons. _| solemnities (extrinsic validity) of contracts, | wills,” and other pubii¢ instruments. Se The provisioh under Art, -26, j Article 16, par. 2, and-| Article 26, par. 1 of Par. 2 of the Family Code |.Article 1039 of the | the Family Code, Le. pertaining to valid divorce | Cwil Code, ie. | all marriages obtained abroad by the: alien |: capacity to succeed is | sclemnized outside spouse capacitating him or her | governed by the fa of | the Philippines. in ta remarry and extending the |'the- nation of the | accordance with the same capacity to the Filipino’ | decedent, laws in force in the spouse has been modified by country where they the Republic v. Manalo (G.R. were solemnized, No. 221029, April 24, 2018) and valid there as ruling providing that such such, shall also be foreign divorce proceeding valid in this country, whether initiated by the Filipino except those or foreign spouse would prohibited under produce the same result. Based Articies 35(1), (4). (5) | on a clear and plain reading of and (8), 36: 37 and | the provision (Ark. 26, Par. 2 of 138, and intrinsic the Family Code), it only j_ vatidity of requires thal there be a divorce contracts(CIViL validly obtained abroad, The CODE, Arts. 15, 16, letter of the law does not 17 and 26). demand that the alien spouse should be the one who initiated the proceading wherein the divorce decree was granted, Whether tne Filipino _speuse 386initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipinc spouse wil effectively be without a husband or wife. Q; What is the State of the Most Significant Relationship Rule? ANS: This rule provides that the law of the place with the most connection lo the dispute shail prevail in case of contractual conflicts of law. This is basically a matter of convenience and practicality as it seeks to apply the law of the place that has the most connecting factors to the contract (PE BENITO, Conflict of Laws, supra at 102). Q; What law shall govern (1) One’s capacity to execute the will (2) the formality of execution, (3) the capacity of one to inherit from another; and (4) the intrinsic validity of the testamentary provision?...°. ANS: The following are the answers: 1, One's capacity to execute the will, is governed *y his national law (C/VIL CODE, Art. 15); 2. The laws of the country in which. ney are executed ‘Sh jall govern the formalities of the execution of the will (CIVIL CODE, Art. 17, part): 3. The national law of the decedent shall governone's capacity to succeed (CIVIL CODE, Art. 1039): and, 4, The national law, of the decedent shall govern the intrinsic validity of the testamentary provisions (C/it “CODE: Ad. 16, par. 2; RABUYA, Persons, supra at 44-45). Q: What jaw shall govern the administration of the estate of a deceased person? ANS: Administration is governed not by the law on succession (national law of the deceased) but by the actual lex fori - up to. the. point of cistribution. The forum is the place where he was appointed, that is the law of the domicile in the case of the domiciliary administrator (PARAS, Conflict, supra at 368). Q: What law shall govern terms of liability and damages for torts in general? ANS: Lex foci deficti commissi or the law of the place where the quasi-delict was committed shall govern (SEMPIO-DIY, Conflict of Laws, supra at 131). pines? Q: When may liability for foreign torts be enforced in the Phi ANS: Liability for foreign torts may be enforced in the Philippines if: 4, The tortis not penal in character; 2. If the enforcement of the tortious liability will not contravene our public policy; or 3. four judicial machinery is adequate for such enforcement (COQUIA, Conflict. supra at 390). Q: Explain Qaver's principle of preference. ANS: A higher standard of conduct and financial protection given to the injured party by one State is applied by the State where the injury happened, if the ‘aller State adopts lower standard of conduct and financial protection to the injured (SEMPIO-DIY, Conflict of Laws, supra at p. 134). 387C HUMAN RELATIONS (ARTICLES 19-22) Q: Distinguish Articles 19, 20 and 21. ANS: The distinctions are as follows: Describes the degree of care required, so that the failure to observe the same may justify an actionable tort when it is alleged together with Article 20 or Article 21. Contains what is commonly referred to as the principle of abuse of rights, it sets certain standards which must be observed not only in the exercise of one's rights, but also in the performance ‘of. one’s duties. : By itself, itis not the basis of an actionable tort It does not provide a’ remedy for its violation Lays down a rule of conduct for the government of human relations and = forthe maintenance of social order Concerns violations of existing law as basis for an injury, May-be used-as a basis of an action for damages WT ae It allows recovery ‘should +, the act have been wilful or | negligent ee Applies to both willful: and negligent acts “that are done contrary to law Concems injuries that may be caused by acts which are——not necessanly proscribed bylaw. used as a basis ‘an, action — for This article requires that the act be wilful Applies only to willful acts done contra bonus mores (St. Martin Polyetinic, inc. v. LMV Construction Corporation, G.R. No, 217426, December 4, 2017) Q: What are the req ANS: The requisites are: s for abuse of right? 1. Existence of a legal right or duly: 2. Right or duty is exercised in bad faith: and 3. For the sole intent cf prejudicing or injuring another (Albenson Enterprises Corp. v. CA, G.R. No. 88694, January 17, 1993) Q: What is the doctrine of Volenti Non Fit Injuria? A: It refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so (Nikko Hotel Manila Garden, et al. v. Reyes, G.R. No, 154259, February 28, 2005} 388BEDAN RED BOOK Q: What are acts contra bonus mores and what are its elements? ANS: Acts contra bonus mores are acts contrary to morals. ‘The elements are: 1 2 3. 4. There is a legal act But which is contrary to morals, good customs, public order, or public policy; and Itis done with intent to injure (Albenson Enterprises Corp. v. CA, supra); It presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation (Cogeo-Cubao Operators and Drivers Association v. Court of Appeals, G.R. No. 100727, March 18, 1992). Q: What is Accion In Rem Verso? ANS: Accion in Rem Verso is an action for recovery of what has been paid or delivered without just cause or legal ground, Under Article 22 of the Civil Code, if a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means, he has the obligation to return the same (RABUYA, Persons, supra at 60). Q: What are the requisites of Accion In Rem Verso? ANS: The following are the requisites of Accion In Rem Verso: (NEWS) 1 2 3. 4 ‘The plaintiff has No other action Based on contract, quasi-contract, crime or quasi-delict; - - The defendant has been Enriched, ‘The enrichment of the defendant is Without just or legal ground; and The plaintiff has Suffered a loss (RABUYA, Persons, supra at 80) @: What is the difference between Accion in Rem Verso and Solutio indebiti? ANS: Mistake, is an essential element in solution indebiti, But in the accion in rer verso, it is not necessary that there should have been- mistake-in the payment (RABUYA, Persons, supra at 80), ne ll, PERSONS AND FAMILY RELATIONS A. PERSONS Q: Distinguish juridical capacity from capacity to act. ANS: The distinctions are the followin Breer sg Capacity to Act Fiimess to be the subject of legal | Power to do acts with legal effect relations Acquired through the fulfilment of specific legal activities Only through death Through death and other causes 389BEDAN RED:BOOK uu cCunCe ic kuks Can exist without capacity to act Exists always with juridical capacity None Articles 38 and 39 of the Civil Code (1 PARAS, Persons, supra at 222) : What are the restrictions on the capacity to act? ANS: The restrictions on the capacity to act are the following: (MFD-PC) Minority; Insanity or Imbecilty; State of being Deaf-mute; Prodigality; and Civil interdiction (CIVIL CODE, Art. 38). ve eNm Q: What are the circumstances that modify or limit capacity to 2ot? ANS: The circumstances that modify or limit capacity to act are the following:(IF-I-PAID- TAPA) : Insanity; 2. Family relations; 3. Imbectity: 4. Penaity; 5. Age; 6. Insolvency: 7 8 9 ‘State, of be Trusteeshi Alienage: 10. Prodigality; and 11, Absence (CIVIL CODE, Art. 29). Q: When does civi! personality commence? ANS: The civil personality of the child shall commence from the time of his conception for alt purposes favorable’ to him, subject to the requirements of Article 41 of the Civil Code (P.D. No, 603, Art. 5). ~ Q: What is the rule for a fetus to be considered as born? ANS: For civil jtposes, 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 (CIVIL CODE, Art. 41). Q: How is civil perscnality extinguished? ANS: The civil personality is extinguished as follows 1. Natural persons ~ by death (CIVIL CODE, Art, 42); 2, Juridical persons ~ in accordance wilh law (CIVIL CODE, Art. 45). Q: What are the conditions for the application of the survivorship rule under Article 43 of the Civil Code? ‘ANS: The conditions for the application of survivorship rule are as follows: There is a doubt, as between two or more persons. as to which of them died first, and 2. They are called tu succeed each other. 390Note: Whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other (CIVIL CCDE, An. 43). Q: Who are juridical persons? ANS: The following are juridical persons: 1. The State and its political subdivisions; 2. 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, and 3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member (CiViL CODE, Art. 44). Q: What are the rights of juridical persons? ANS: Juridica’ persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization (CIVIL CODE, Art. 46)... Q: What are the rufes in the use of surname by the child? ANS: The rules are as follows: 1, Legitimate child shall use the sumame of ihe father (CIVIL CODE, Art. 364); 2. Legitimated child shall use the surname of the fatlier (CIVIL CODE, Art, 364); 3. Child conceived before the decree annulling avoidable marriage shail use the surname of the father (CIVIL CODE, Art. 369); 4, Illegitimate child stall use the surame of the mother (CIVIL CODE, Art. 368): Note: Illegitimate children may use the surname of theif-father if their filation ‘nas béén expressly recognizedby the father through the record of birth appearing in the civil register, of When an adrhissioh in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime (FAMILY CODE; Art. 176 as amended by RA 9256). 5. Adopted child shail use the surname of the adopter (CIVIL CODE, Art. 365). Q: What are the rules in the use of surname of a married woman? ANS: A married woman may use: 4. Her maiden first name and surname and add her husband's surname, or e.g. Maria Torres-Cruz 2. Her maiden first name and her husband's surname or e.g. Maria Cruz 3. ler husband's full name, but prefixing a word indicating that she is his wife, such as “Mrs.” e.g. Mrs. Jose Cruz (CIVIL CODE, Art 370). Q: What is the rule in the use of surname of the wife in case of annulment of marriage? ANS: it depends: 1. Ifthe wife is the guilty party, she shail resume her maiden name and surname; or 2. If she is the innocent spouse, she may resume her maiden name and sumame. However, she may choose to continue employing her former husband's surname, unless: a. The court decrees otherwise, or b. She or the former husband is married again to another person (CIVIL CODE, Art. 37%). 391VOL 3, 2019 © BEDAN RED BOOK © Q: What is the rule in the use of surname of the wife In case of legal separation? How about in case of death? ANS: When legal separation has been granted, the wife shail continue using her name and sumame employed before the legal separation (CIVIL CODE, Ar. 372). On the other hand, in case of decth of the husband, a widow may use the deceased husband's Surname as though he were still living, in accordance with Article 370 (CIVIL CODE, Art. 373) Q: What are the rules in case of identity of names and surnames? ANS: The rules are as follows, i. The younger person shalt be obliged to use such additional name or surname as will avoid confusion (CIVIL CODE, Art. 374), 2. Between ascendants and descendants, the word "Junior" can be used only by @ son. Grandsons and other direct male descendants shall either: a. Add @ middle name or the mother's surname, or b. Add the Roman Numerals and so on (CIVIL CODE, Art. 375). Note: Article 375 restricts the. usé of “Junior” (STA. MARIA, Persons and Family Relations (2015), p. 976) {hereinafter STA. MARIA, Persons]. : Can a person use different hames and sutnames? ANS: No, as a general rule, No person shall use different names and surnames (CIVIL CODE, Art. 380). eos . , Exception: The use of pen aames or stage names, provided i,és done in good faith and there is no injury to third persons (CIVIL CODE, Art. 378) Noie: Usurpation of a name and surname may be the gubject of ar action for damages and other relief (CIVIL CODE, Art. 377). The unauthofized of unlawful use of another person's surnajne gives a right of action tothe latter (CIVIL CODE Ar. 378) \ te tt ploty Q: Can an entty in a Givil register he changed or corretted? : ANS: No entry'in 4 civil register'shall be changed of corrected without a judicial order, exceptfor: ‘, . " 41. Clerical or typographical ertors, and ~~ : 2. Change of first came or nickname which can be corrected or changed by the concemed city or riunicipat civil registrar or cohsu! general in accordance with the provisions of this Act and its Implementing rules and regulations (R.A. No. 9048, Sec. 1, as amended). me Q: What is a clerical or typographical error? ANS: It refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelied name or misspelied place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records (R.A. No. 9048, Sec. 2(3), as amended), Note: No correction must invclve the change of nationality, age, stetus or sex of the petitioner (R.A. No. 9048, Sec. 2(3), as amended) Q: Who may file a petition for the correction of a clezical or typographical error in an entry and/or change of first name or nickname? ANS: Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sough! to be corrected or changed is kept (RA. No. 9048, Sec. 3, par. 1, as amended). Note: All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once (R.A. No. 9048, Sec. 3, par. 5, as amended). 392VOL 1. Vf 2018 Q: Where shall the petition be filed if the petitioner (+) has already migrated to another place in the Philippines; or (2) is a citizen of the Philippines presently residing in a foreign country? ANS: The petition shall be filed as follows: 1, In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed. the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled, The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition, 2. Citizens of the Philippines who are presently resi¢ing or domiciled in foreign counties may file their petition, in person, with the nearest Philippine Consulates (R.A. No. 9048, Sec. 3, pars. 2 and 3, as amended). Q; What are the grounds for a change of first name or nickname? ANS: The petition for change of first name or nickname may be allowed in any of the following grounds: 1. The petitioner finds the first name. or nickname to be ridiculous, tainted with dishonor or extremely difficult ww wrile or pronounce: 2, The new first name or nickname has been habitually and continuously used by the petitioner and he has been-publicly known by’ that by that first name or nickname in the community; oF 3. The change will avoid confusion (RA. No. 9048, Sec; 4, as amended) Q: When does provisional absence take’ place? ANS: Provisional absence takes place when:(DAW) 4. Aperson disappears from his Dafhicile; 2. Apperson disappears without leaving an Agentto adrhi 3. His Whereabouts are unknown (CIVIL CODE, Art. 281). ter his property: and Q: What are the provisional measures. provided by law in case of provisional absence? ° ANS: The judge may appoint 2 person to rep the instance of: 1. An interested party: 2. Relative; or 3.__ A friend. Note: The same rule shall be observed when under similar circumstances the power conferred by the absentee has expired (CIVIL CODE, Art. 381). The appointment referred to having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules governing guardians (CIVIL CODE, Art. 382). jafit him in all that may be necessary, at Q: Is there a preference as to the appcintment of a representative? ANS: In the appointment of 2 representative, the spause present shail be preferred when there is no legal separation. If the absentee left no spouse, any competent person may be appointed (CIVIL CODE, Art. 383}. Q: When can the court issue a declaration of absence of a person? ANS: The absence may be declared under the following 1. Two (2) years having elapsed without any news about the absentee or since the receipt of the last news; and 2, Five (6) years in case the absentee has Jeft_a person in charge of the administration of his property (CIVIL CODE, Art. 384). 393 Ey s = Pa iw:BRE 3; Note: The judicial declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation (CIVIL CODE, Art. 386}. Q: Who may ask for the deciaration of absence? ANS: The fcllowing may ask for the declaration of absence: i. The spouse present; 2. ‘The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who may succeed by the law of intestacy: and 4. Those who may have over the property of the absentee some right subordinate to the condition of his death (CIVIL CODE, Art, 285). Q: May the wife alienate the husband's property, or that of the conjugal partnership? ANS: No, the wife cannot alienate or encumber the husband's properly, or the conjugal partnership, without judicial authority (CIVIL CODE, Art. 388) Q: When does the administration of the’property of the absentee cease? ANS: The administration shall cease in any of the following cases: 4. When the absentee appears personally or by means of an agent; 2. When the death of the absenize is proved and his tastate or intestate heirs appearand . 3. When a. third ‘person appears, showing’ by proper.document that he has acquired the absentee's property by purchase or other title, Note: In these cases, the administrator shall cease in the performance of his office, and the property shall be at the:disposal.of those who may haye.a right therelo (CIVIL CODE, Art. 389) - Beh : What are the rules as to.presumption of death urider the law7} | ANS: In case of an ordinary absence, the following are the presumptions: 1, Alter ‘absénce of-seven (7) years, the ,parson is’ presumed dead for all purposes except for those of opening. Succession (CiVIL’ CODE, Art. 390, pari. Poms i ? 2. Alter absence of 10 years, the’ péison is presumed dead for purposes of Opening successicn.except ift ha. disappeared after the age of 75, in which case, a period of five (6) years is siffcient (CIVIL CODE, Art, 390, par.2). and 3. After absence of four (4) years, the’person-is presumed dead for purposes of remarriage of the spouse present (FAMILY CODE, Art. 41). in case of extraordinary or qualified absence, ihe following are the rules for all purposes including those of opening succession: 4, After a period of four (4) years, the person shall be presumed dead; and 2, For purposes of remarriage of the spouse present, a period of two (2) years shall be sufficient (FAMILY CODE, Art, 41). The following shall be presumed dead under extraordinary or qualified absence after period of four (4) years: (VAD) 1. A parson on board 2 Vessel lost during a sea voyage or an airplane which is missing; period is countad from the ioss of the vessel or airplane: 2, Aperson in the Armed forces who had taken part in war: 3. A person in Danger of death under other circumstances and his existence has aot been known (CIVIL CODE, Art. 397) Q: What is the effect if the absentee appears? ANS: If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alicnated or the property acquired therewith; but he cannot claim either fruits or rents (CIVIL CODE, Art, 392) 394BEDAN RED BOO Q: What are the rules under the Family Code as to the presumption of death of an absent spouse in relation to a marriage contracted during the subsistence of a previous marriage? ANS: As a general rule, any marriage contracted by a person during the subsistence of a previous marriage shail be null and void (FAMILY CODE, Ars. 41 and 35 (4)). The following are the exceptions: 1. Before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief thal the absent spouse was already dead; or 2. In case of disappearance where there is danger of death under the circumstances sct forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient (FAMILY CODE, Art. 41). Note: Before contracting a subsequent marriage pursuant to Article 41 of the Family Code, the spouse present MUST institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouce (FAMILY CODE, Art, 41}.The Family Code prescribes as well- founded belief that the absentee is already dead before a petition for declaration of presumptive death can be granted (Republic v. Nolasco, G.R. No. 94053, March 17, 1993) B. MARRIAGE ; What is marriage? ANS: Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for tha'establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed: by law an ngt subject'to stipulation, except that marriage seltlements may fix the property relations during the marriage within the limits provided by this Gode (FAMILY CODE, Art. 1). Q: Is there a presumption. of marriage When two persons deport themselves as husband and wife to'the community for Several years despite having no record of marriage? ANS: Yes. A man and a woman who departed themselves as husband and wife and known to the community as such are presumed married. The mere fact that no record of the marriage exists does not invalidate it, provided all requirements are present (Maviategui v. Court of Appeals, G.R. No. L-57062, January 24, 1992). Q: What are the requisites of a valid marriage? ANS: The requisites of a valid marriage are the following: Essential Requisites 7 Uy ee ee Aare aa) 1. Legal capacity of the contracting | 1. Authority of the solemnizing officer, | parties 2. Valid marriage license; | a, Must be a male anc: a femaie; 3. Marriage ceremony where the b. Must be eighteen (18) years oid contracting parties appear before or above the solemnizing officer, with their c.Not under any _ impediment personal declaration that they take mentioned in Arts. 37 (incestuous gach other as husband and wife in marriages) & 38 (marriages void the presence of not less than two for public policy); (2) witnesses of legal age. 2. Consent freely given in the presence [_0lasolemnizing officer. 395 |* BEDAN RED BOOK J Q: What is the effect when there is absence, defect, or irregularity of any of the formal or essential requisites? ANS: The effects are: Wiwern.. Megs etic) ecices ee ee ee eee eee Peet eis fees GR: Marriage is void ab intio (e.g. expired marriage license, marriage by way of jest, marriage of persons who are of the same sex). It does not affect the validity of the marriage but the party responsible for such irregularity may be held civilly, criminally and administratively liable (e.g. absence of two witnesses of legal age), except that the mariage is voidable where contracting party is 48 years old or over but below 21 without the consent of the parents (FAMILY CODE, Art. 4) Marriage is voidabie (e.g. consent obtained through — force and intimidation), Exception: Where either or both parties believed in good faith that the —solemnizing j officer has. legal authority to perform marriages (FAMILY CODE, Art. 35, nar. 2). Q: Who are authorized to solemnize marriages? ANS: The persons authorized to solemnize marriages are the followirig: Priest, rabbi, imam or ministers of any church or religious sect, who must be: a. * Duly authorized by his church or religious sect; b. Registered with the office of the civil registrar generat; ¢. Acting within the limits of the.written authority granted; and d. Atleast one of the parties.beianys to the solemnizing officer's church or religious sect (FAMILY CODE, Art. 7, par. 2) 2. Municipal and city mayors (LOCAL GOVERNMENT CODE, Secs, 444 (b)(1)(xvii) and 455 (b)(1) (xviii), Note: The term “Mayor” includes a Vice-Mayor who is the “Acting Mayor" or one who is merely acting as a Mayor (People v, Bustamante, G.R. No. L- 11898, January 27, 1959). Incumbent members of the judiciary within their? risdiction; Ship captains or airplane chiefs: a. Only in cases of marriages in articulo mortis between passengers or crew members; and b. During the voyage, while the plane is in flight or the ship is al sea and during stopovers at ports of call {FAMILY CODE, Art. 31) Note: Assistant pilot has no authority to solemnize a marriage even if the airplane chief dies during the trip. (STA. MARIA, Persons, supra at 142). 5, Commancéer of a miitary unit, in the absence of chaplain provided: a. He is a commissioned officer — rank should start from second lieutenant, ensign and above (Webster Dictionary, 1991 Edition), and b. Onyy in cases of marriage in articulo mortis between members of the armed forces or civilians within the zone of military operation (FAMILY CODE, Art. 32). Ao 396,BEDAN RED BOOK Yh 8. Consul generals, consu's or vice-consuls of the Republic of the Philippines abroad, provided: a, Only in cases of marriage between Filipino citizens abroad; b. The marriage ceremony is in accordance with Philippine laws (CIVIL CODE, Art. 17); c. He also performs the duties of the local civil ragistrar; and d. Consuls on home assignment in the Phiippines cannot sotemnize marriage (FAMILY CODE Art. 10). Q: What is the effect if a marriage is solemnized by a member of the judiciary outside his jurisdiction? ANS; If a marriage is solemnized by a judge of the Regional Trial Court, Metropolitan Trial Court, or Municipal Court beyond his jurisdiction, there is absence of a formal requisite in such a marriage, namely, the authority of the solemnizing officer. Hence, the mariage is void unless either of the parties believed in good faith that such sotemnizing officer has authority te conduct such marriage (STA. MARIA, Persons, supra at 141). Q: What is the difference in the effect of marriages solemnized outside the jurisdiction of mayors compared to members of the judiciary? if the judge is not clothed with authority to solemnize a marriage outside of his territorial jurisdiction, there is a total absence of a formal requisite and not a mere irregularity, which will render the marriagé void ab initio. But the fact that a mayor had sclemnized a marriage outside of his territorial jurisdiction will act affect the validity of the marriage. This is a mere irregularity jn the exercise of his authority to solemnize marriage. While the authority of the members of the judiciary to sclemnize marriages is confined by law to their court's jurisdiction, the authority of mayors to solemnize marriages is not confined Ly law to his territorial jurisdiction. The Local Government Code simply states that mayors are authdrized tc solemnize marriages without liriting the exercise of such authority to their territorial jurisdiction (RABUYA, Persons, supra at 163). 2 Q: What are the authorized venues of marriages? ANS: The following are the authorized venues of marriage: 1. Chambers of the judge or in open court; 2. Church, chapel ur temple; or 3. Office of consul-general, consul or vice~-consut (FAMILY CODE, Art. 8) Q: What are the exceptions to the authorized venues of marriages? ANS: The following are the exceptions: 1. Marriage in articufo mortis; 2. Marriage in remote places; and 3. Martiage al a house or place designated by the parties in a sworn statement to that effect, with the written request of both parties to the solemnizing officer (FAMILY CODE, Art. 8). Q: Who is authorized to issue a valid marriage license? ANS: The local Civil Registrar of the city or municipality where cither of the contracting Larties habitually resides, except in marriages where no license is required by law, is the person authorized to issue a valid marriage license (FAMILY CODE. Art. 9). Q: What is the period for the validity of a marriage license? ANS: The license shall be valid in any part of the Philippines for a period of one hundred twenly (120) days from the date of issue, and shal! be deemed automatically cancelled al the 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 (FAMILY CODE, Art. 20) 397Yot 1, 2019 BEDAN RED BOOK Q: What is the rule when either or both of the contracting parties applying for the issuance of a marriage license are citizens of a foreign country? ANS: When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them to submit a cerlificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials, before a marriage license can be obtained. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an effidavit stating the circumstances showing such capacity to contract marriage (FAMILY CODE, An. 21). Q: What are the exceptions to the requirements of a marriage license? ANS: The exceptions are: (0-CRAMZ-5) 1, Marriages solemnized Qutside the Philippines where no marriage license is required by the country where they were solemnized (FAMILY CODE, Art. 26, par. 1); 2. Marriage in articulo mortis between passengers or Crew members may be solemnized by a ship captain or. vy,an airplane pilot not only while the ship is at sea or the plane. is- inflight, but also during stopovers at ports of call (FAMILY CODE, Art, 31); i 3. In Remote places, provider that the residence of elther party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar (FAMILY‘CODE, Art. 28); - - ° 4. Marriage’ in Articulo “mortis, which remiains valid even if alling party subsequently. stivives (FAMILY CODE, Art. 27); +f 5. Among Muslims or; members of ethnic cultural commuinities solemnized in accordance .with their customs,-rites, “and, practices, ‘provided they are solemnized in accdrdance with their. customs, rites “of pfactices (FAMILY CODE, Apt 8. iu ft 6. Marriagé. in? articulo\. mort.» between persdis: within the Zone of miltary operation.- vihether: members of the armed forces. or: éivilians. may be solempizee-by 3 miltery.commander of-a uni, who is a commissioned officer (FAMILY CODE, Ait 32);and 7 7. Marriage between a man-afid.a voman who havé lived tégether as husband and wife for at feast five (5) years and without legal impediment to marry each other (FAMILY CODE, Art. 34), a - Q: What are the requisites; to exempt 2 mari ‘and_woman living together as husband and wife from procuring a marriage license?” ANS: The requisites for such exemption. are the follwing :(5-No-PAS) ‘The man and woman must have been living together as husband and wife for at least five (5) years before the marriage; 2. The parties must have No legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be Present at the time of marriage; 4. The parties must execute an Affidavit stating that they have lived together for al least five (8) years (and are without legal impediment to marry each other); and 5. The solemnizing officer must execute a Sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage (Manzano v. Sanchez, A.M, No, MTJ-00-1329, March 8, 2007). Q: Should the absence of a legal impediment as provided in the preceding question be for the entire five-year period of cohabitation? ANS: Yes, this five-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity ~ meaning no third party was involved at any time within the five years and continuity 398DAN RED BOOK 2013 meaning thal the five-year pericd is unbroken (Niftal v. Bayadog, G.R. No. 133778, March 14, 2000}. @: Is there a necessity for a prescribed form or religious ceremony in order for a marriage to become valid? ANS: No prescribed form or religious ceremony for the solemnization of the marriage is Tequired. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legat age that they take each other as husband and wife (FAMILY CODE, Art. 6). Note: The mere private act of signing a marriage contract, without a duly authorized solemnizing officer, bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone cannot be deemed to constitute an ostensibly valid martiage (Morigo v. People, G.R. No. 145223, February 6, 2004). Q: Is marriage by proxy valid? ANS: No, marriage by proxy solemnized Here in the Philippines is void because of the absence of the essential requisite that consent freely given must be made in the presence of the solemnizing officer and the absence of the formal requisite that the contracting parties must personally deciare betore the solemnizing oilicer that they lake each other as husband and wife (STA. MARIA, Persons, supra at 136). Q: What is the effect when the marriage is solemnized outside the Philippines? ANS: Generally, when the mariage 1s solemnized outside the Philippines, in accordance with the laws in force in the country where it is solemnized, itis valid there as such, and shail also be valid in this country. The exceptions are: . fos 1. In case a Filipino contracts a foreign marriage which is null and void in the place where it was solemnized, the same:shall also. be quil and void in the Philippines even if such was valid if celebrated under Philippine laws: 2. Foreign martiages shall not be recognized in the Philippines if: a. Contracted by a rational who is below eighteen (18) years of age (FAMILY CODE, Art. 35, per. 1}; b. Bigamaus or polygamous except as provided in Art. 41, (FAMILY CODE, Art. 36, par. 4): c. Contracted through mistake of one party as to the identity of the other (FAMILY CODE, Art. 35, par.5): Contracted following the annulment or declaration of nullity of a previous marriage but before partition (FAMILY CODE, Art. 35, par. 6); @. Void due to psychological incapacity (FAMILY CODE, Art. 36): 1 Incestuous (FAMILY CODE, Art. 37); and g. Void for reasons of public policy (FAMILY CODE, Ant. 38). Q: What is the effect of divorce procured abroad to the subsistence of the marriage? ANS: Generally, divorce procured abroad is ot recognized in the Philippines: The exceptions are: 1. Between two aliens — if valid in their national laws even if marriage was celebrated in the Philippines; and 2. Between parties who were Filipino citizens at the time of celebration of the marriage, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree —The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse 389 / ViVOL 1, 2019 BEDAN RED.BOOK «. capacitating the latter to remany (Rep. v. Orbecido ill, G.R. No. 154380, October 5, 2005). 3. Between a Filipino and an Alien - If there is a: a. Valid mariage cetebraled between a Filipino citizen and a foreigner, and ». Valid divorce obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shail likewise have capacity to remarry under Philippine law (FAMILY GODE, Art. 26, Par. 2). Such foreign divorce proceeding was whether initiated by the Filipino or foreign spouse (Republic v, Manalo, G.R. No. 221029, April 24, 2018). Note: Based on a clear and plain reading of the provision (Art. 26, Par. 2 of the Family Code), it only requires that there be a divorce validly obtained abroad, The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does not cistinauish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding. The purpose of Paragraph 2 of Article 26 is to avoid.thé absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree thal is effective in the country where it was rendered, is’ no longer martied to the Fi spouse. The provision is @ corrective measure to address an anomaly where the Filipine spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. Whether. the Filipino spouse iated the foreign divorce proceeding or-not, a favorable decree dissolving the marriage bond and capacttating his or her alien spouse to retnatry will have the Samé résuilt: the Filipino spouse will effectively be without @ husband or wife. A Filipino who initiated a foréign divorce proceeding is in the, same place and in like circumstance as a-Filipino who is at the receiving end of an, alien initiated proceeding. Therefore, the’subject provision should not riake 2 distinction. In both instances, it is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the lalter’s national taw (Republic v. Manalo, G.R. No, 221029, April 24, 2018). Q: What are the requirements to be submitted by the petitioner before the local court recognizes the foreign court's judgment decreeing the divorce? ANS: Presentation solely of the divorce decree will not suffice. The fact of divorce must stil first be proven. Before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. In this case, petitioner was able to submit before the courl the 1) Decision of the foreign court allowing the divorce; 2) the Authentication/ Certificate issued by the Philippines Consulate General in the place where the Decree of Divorce was issued; and 3) Acceptance of Certificate of Divorce by the Petitioner and the foreign spouse national. Under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of the Rules of Court, these documents sufficiently prove the subject Divorce Decree as a fact (Republic v. Manalo. G.R. No, 221029, April 24. 2018). Q: What are considered void marriages? ANS: The following marriages shall be void from the beginaing: (18-ALBI-53) 4. Those contracted by any party below eighteen (18) years of age even with the consent of parents or guardians; 2. Those solemnizes 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 solemmizing officer had the legal authority to do so. 3. Those solemnize without License, except those covered the preceding Chapter, 400tN ele) 28i9 ‘Those Bigamous or polygamous marriages not failing under Article 4 Those contracted through mistake of one contracting party as to the Identity of the other; and Those subsequent marriages that are void under Article 53 (FAMILY CODE, Art. 38). The foitowing marriages shall be void from the beginning for seasons of public policy: {CSI-APSLAK) 1. PON DAREN Between Gollateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; Between Step-parents and step-chitdren; Between parents-In-law and children-in-law: Between the Adopting parent and the adopled child; Between the surviving spouse of the adopling Parent and the adopted child; Between the Surviving spouse of the adopted child and the adopter: Beween an adopted child and a Legitimate child of the adopter; Between Adopted children of the same adopter; and Between parties where one, with the intention to marry the other, Killed that other person's spouse, or his or her-own spouse (FAMILY CODE, Art, 38) Void marriages also include: (PIW-B) 1 Marriage contracted by any party who, at the time of the celebration, was Psychologically incapacitated to comply with the estential marital obligations of marriage (void even if such. incapacity becomes manifest only afer its solemnization) (FAMILY CODE, Art. 36). Marriages between the following are Incestuous, and void from the beginning, whether relationship between the parties be legitimate or illegitimate: a._ Between ascendants and descendants of any degree: and b,” Between brothers and sisters, whether of the full of half blood (FAMILY CODE, Art. 37). Martiage subsequently contracted Without a judicial declaration of nullity of the previous marriage (FAMILY CODE, Art. 40); Subsequent mariage under Article 41 where both spouses acted in Bad faith (FAMILY CODE, Art. 44), Q: What are the requisites for psychological incapacity? ANS: The requisites are the following: (GAI} 1. 2. Gravity- must be grave oF serious such that the parly would be incapable of carrying out the ordinary duties required in a marriage: Juridical Antecedence - Must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and Incurability — Must be incurable or, even if it were otherwise, the cure would be beyond the means of the party invalved (Sa'tos v. Court of Appeals, G.P. No. 112019, January 4, 1995). Q: What are the things to be considered in invoking and proving psychological incapacit 2 ANS: The jurisprudential guidelines are: 1 2. Plaintiff has burden of proof, Root cause of the psychological incapacity must be: a. Medically or olinically identified; b. Alleged in the complaint & Sufficiently proven by experts: and d. Clearly explained in the decision 401 /| WiA ta =101e) 4 3. Incapacity must be proven to be existing al the time of the celebration of marriage; 4, Incapacity must be permanent cr incurable; 5. Illness is grave enough to bring about disability to assume essential marital obligations; 6. Marital obligations refer to Articles 68-71, 220,221 and 225 of the Family Code: 7. Interpretations of the National Appellate Matrimonial Tripunal of the Catholic Church of the Philippines while not controlling should be given great respect; and 8. Trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for the state (Republic v. Molina, G.R, No, 108763, February 13, 1997). Note: The Court ruled in Marcos v. Marcos (G.R. No. 136940, October 19, 2000) that there is no requirement that the person to be declared psychologically incapacitated be personally examined by a physician, if.the totality of evidence presented is enough to sustain a finding of psychological incapacity. . Q: Does the action or defense for the declaration of absolute nullity of a marriage prescriby . ANS: No, the action or defense for the declaration of absolute nullity of a marriage does not prescribe (FAMILY CODE, Art. 39, as amended by R.A. No. 8533). Q: Is there a nécessity to obtain a judicial declaration of nullity of a previous void marriage to contract Subsequent marriage? ANS: Yes. it i neCessary to obtain a final judgment declaring such previous marriage void because @ subsequent marriage without such declaration of.nullity of the previous marriage is in ilself void ab initio in accordance with Articles 40,52, and 53 of the Family Code (STA. MARIA, Persons, supra at 292), : Note: For other purposes, such as but not jimiled to determination of heirship, legitimacy or illegitimacy. of a child, settlement of estate, dissolution of property regime, ‘or a criminal case for that.matter, the court may pass upon the validity of marriage even in a suit not directly instituted to questian the same so long as it is essential to the determination of the case (Mifai v. Bayadog, G.R. No. 133773, March 14, 2000). Q: What is the status of marriage contracted during the Subsistence of a previous marriage? ‘ . ANS: The general rule is that any marriage coniracted by any person during the subsistence of a previous marriage shall be null and void (FAMILY CODE, Arts. 47 and 35, Par. 4), The foilowing are the exceptions: 1. Before the celebration of the subsequent marriage. the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead; or 2. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Artic'e 391 of the Civil Code, an absence of only hvo years shall be suificient (FAMILY CODE, Art. 41), Note: For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present MUST institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse (FAMILY CODE, Art. 41).The Family Code prescribes a well-founded belief thal the absentee is already dead before a petition for declaration of presumptive death can be granted (Republic v, Nolasco, G.R. No. 94053, March 17, 1993}. 402TY ion eke Q: What is the effect of reappearance of a spouse who was declared presumptively dead? ANS: Generally, a subsequent marriage shall be automatically terminated by the recording of the Affidavit of Reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio (FAMILY CODE, Art. 42) Such termination shail produce the following effects: 1. 2 The children of the subsequent marriage conceived prior to ils termination shall be considered legitimate; 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 fe in bad faith, his or her share of the net profits of the community property or conjugal partnership propeny shall be forfeited in favor of the ‘common children or, if there are none, the children of the guilty spouse by a previous marriage ar in default of children, the innocent spouse; Donations by reason of marriage shall zemain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law: The innocent spouse may revoke .the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and: The spouse who coniracted the subsequent marriage in bad faith shall be disqualified to. inherit from: the. innocent spouse by testate and intestate succession (FAMILY CODE, Art. 43). Note: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be vord.ad initic and all donations by reason of marriage and testamentary dispositions made’ by one in favor of the other are revoked by - operation of law (FAMILY CODE, Art. 44). - Q: What are the instances of annuilable marriage? ANS: The following are the grounds of annullable marriage: (No-IF-VC) oman ey erie No parental | Parént_or guardian | Any time before no- consent having legal charge | consent party . of no-consent party | reaches age of 21 Free cohabitation after attaining age No-consent party Within 5 years after | of 21 attaining 24 insanity Sane spouse | At any time before without knowledge | death of _ either of insanity party Relative, guardian, | At any time before | Free cohabitation or person having | death of either | of insane party legal charge of | party after insane party insane comes to reason Insane spouse During lucid interval or after regaining sanity 403BEDAN RED BOOK y vous Vf 333 _Fraud Injured party | within 5 years atter | Free cohabitation the discovery of after having fu) fraud knowledge of fraud Vitiated Injured party Within 5 years from | Free cohabitation consent time force, after the force or intimidation, or | intimidation or undue influence | undue influence disappeared or | has ceased or ceased disappeared Incapabitity to | Injured pariy Within 5 years after | Cannot be ratified Consummate! the marriage | (but action sexually -ceremony prescribes) (CIVIL transmissible CODE, Arts. 45 disease and 47). Q: What constitutes fraud as a ground for annulment of marriage under the Family Code? ANS: The following circumstances shell constitute iraud 1. Non-disclosure of a previcus conviction by final judgment of the other party of a crime involving moral turpitude; 2 Conoeailment by the wife of the fact that at the time of the marriage, she was pregnant by’a man other than her husband; u 3. Concealment =f sexually 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 lime of the marriage. 5. No other misrepresentation or deceif as to character, health, rank, fortune or chastity shall constitute such fraud as.will give grounds for action for the annulment of marriage (FAMILY CODE, Art: 46). Note: The enumeration in Angle 46 is EXCLUSIVE (Anaya v. Palaroan, GR. No. L- 27930, November 26, 1970). Q: What are the requisites for annulinent of inarriage due to impotence? ANS: The requisites for annulment due to Impotence are: (Not-U-PIE) 1. It Exists at the time of the celebration of the marriage; 2. Itis Permanent; 3. Its Incurable; 4. Ibis Unknown to the other spouse; and 5. The other spouse must Not also be impotent (STA, MARIA, Persons, supra at 322-323), Q: What is the Docirine of Triennial Conabitation? ANS: The doctrine deciares the presumption that the husband is impotent should the wife still remain a virgin after living together with the husband for three (3) years. In such event, the husband will have to overcome this presumption (STA. MARIA, Persons, Supra at 324 citing Tomplans v. Tompkins, 92 N.J. Eq, 113; 111 Atl, 599). 404Rae S 2 Q: Is one estopped from annulling a marriage on the ground of impctency due to ratification via cohabitation? ANS: No, Unlike the other grounds for annulment of voidable marriages which are subject to ratification by continued cohabitation, the taw does not allow ratification under Article 45 (5). This is so because these grounds are not based on defective consent tike the others but based on the fact that the impotency or disease is incurable. Moreover, they negate the other important purpose of marriage which is fo procreate normal, healthy and upright children. In fact, in the case of incurable soxually-transmissible disease, the continuance of the marriage may even pose a danger to the life of the other contracting party. However, if the aggrieved parties in these cases do not bring the suit within five years after the marriage ceremony, they are barred forever trom annulling the martiage (STA. MARIA, Persons, supra at 326). Q: What are the steps taken by the court to prevent collusion between the parties in an action for annulment or declaration of absolute nullity of marriage? ANS: In all ceses of annulment or declaration of absolute nullity of marriage, the Court shall order the proseculing attorney or fiscal assigned to it to appear on behalf of the State to lake steps lo prevent collusion between the parties and te take care that evidence is not fabricated or suppressed. in the cases referred to in the preceding paragraph, no judgment shail be based upon a stipulation of facts or confession of judgment (FAMILY CODE, Art. 48). Q: What are the steps taken by the court pending the action for the annulment or declaration of absolute nullity of marriage? : ‘ANS: During the pendency of the action and in the absence’of adequate provisions in a written agreement between the spouses, the Court shall pfovide 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 sald children and their choice of the parent with whom they wish to remain as provided to in Title JX. It shall also provide for appropriate visitation rights of the other parent (FAMILY CODE, Art. 49). Q: What are the effects of the declaration of absolute nullity or judgment of annulment of a marriage? ANS: The effacts are the following: 1. Either of the former spouses may marry again after complying with the requirements of Article 52 (FAMILY CODE, Ar. 53). 2. As to the status of the children the general rule is that children conceived and born outside of a valid marriage are illegitimate, The exceptions are: a. Those conceived or barn before the judgment of annulment or absolute nullity of the marriage under Article 36 (psychological incapacity) has become final and executory, shall be considered legitimate: and b. Those conceived or born of the subsequent marriage under Article 53 {Failure to partition and distribute properties and deliver the children's presumplive legitime) shall likewise be legitimate (FAMILY CODE, Art 54) The effects provided for by pars. (2), (3), (4) and {5) of Article 413 and by Article 44 shail also apply in the proper vases to marriages which ave declared void ab) initio or annulled by final judgment under Articles 40 and 45. C. LEGAL SEPARATION Q: What are the grounds for legal separation? ANS: Tie grounds are:(RPC-6-SAD-BALL) 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner, 405 |EDAN RED BOOK 2. Physical violence or moral Pressure to compel petitioner to change religious or political affiliation; 3. Attempt of the respondent to Corrupt o- 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 (6) years even if pardoned; Sexual infidelity or perversion; Note: Sexual perversion includes engaging in such behavior not only with third Fersons but also with the spouse. Mese preponderance of evidence will suffice to prove the existence of these grounds except the fourth ground. Habitual Alcoholism or Drug addiction of the cespondent Contracting by respondent of a subsequent Bigamous marriage; ‘ Abandonment of the petitioner by the respondent without justifiable cause for more than one yes Note: There must be absolute cessation of marital retations, duties, and rights, i with the intention of perpétual separation (Partosa-Jo v. Court of Appeals, G.R. No. 82606, December 18, 1992). Abandonment implies tolai renunciation of duties. 9. Attempt by the respondent against the Life of the petitioner; and 10. Lesbianism or homosexuality of the respondent (FAMILY CODE, Art. 55). 6. 7. 8. : What constitutes acts of violence under R.A. No, 9252 (Anti-Violence Against ‘Women and Their Children Act of 2004)? ANS: Acts of violénce include the following: Causing physical harm to the woman or her child; Threatening'to cause the woman or her child physical harm; Attenipting,to cause the wornan or her child physical harm; Placing the woman or hef child in fear of imminent physica! harm: Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her chiid has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of ‘moverment or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child, This shall include, but not fimited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: ~ a. Threatening to deprive or actually depriving the woman or her child of custody to herthis family; b. Depriving or threatening to deprive the wornan or her children of financial support legally due her or her family, or defiberately providing the woman's children insufficient financial support; & _ Depriving or threatening to deprive the woman or her child of a legal right; and 4. Preventing the woman in engaging in any legitimate profession. ‘occupation, business or activity or controfiing the victim's own money or Properties, or solely controlling the conjugal or common money, or properties; 6. inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 7. Causing or altempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her chitd oF hai/his immediate family: Reno 406BEDAN RED BOOK 8 Engaging in purposetul, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child, This shall include, but not be limited to, the following acts: ‘a, Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman cor her child: ¢. Entering o: remaining in the dwelling or on the property of the woman or her child against her/his will d, Destroying the property and personal belongings of inflicting harm to animals or pets of the woman or her child; e, Engaging in any form of harassment or violence; and Causing mental or emotional anguish, public ridicule or humiliation te the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access ta the woman's child/children 9. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financiat support or custody of minor children of access to the woman's child/children (R.A. No. 9262, Sec. 5). Q: When should an action for legal separation be filed? ANS: An acticn for legal sepatation shall.be filed within fivé (S) years from the time of the occurrence of the cause (FAMILY CODE, Ar. 57). Q: What are the grounds fer denial of petitions for legal’s ‘Seb: ration? ANS: The grounds are the following: (MC*- 1. “Gondonation of the offense or act gor tained of} 2. Consent io commission of offensé or act complained of; Note:-Consent is prior to the act;-condonation’ com Appeals, G.R. No. 96602, No-2mber 19, 1999} 3. Connivance between parties of.commission of offense or act constituting ground; Collusion between parties. Mutual guilt 0 where both parties have given ground for legal separation: Prescription; Note: An action for fégal separation shall be filed within five (5) years from time of occurrence of the cause (FAMILY CODE, Art. 57). 7. Death of either party during the pendency of the case (Lapuz Sy v. Eufemio, GR. No. L-30977, January 31, 1972); and 8. Reconciliation of the spouses during the pendency of the case by filing in the Same proceeding a joint manifestation under oath, duly signed by the spouses (FAMILY CODE, Art. 65). ifter:(Arroyo v. Court of oon Q: If a man commits several acts of sexual infidelity particularly in 2002, 2003, 2004, 2005, does the prescriptive period to file for legal separation run from 2002? ANS: No. Every act of sexual infidelity committed by the man is a ground for legat separation under Article 55(8) of the Family Code, Hence, the prescriptive period begins to run upon the commission of each act of infidelity. An action for legal separation must be filed within five years from the occurrence of the cause. After the lapse of the five- year period, the legal separation case cannot be filed (ST. MARIA, Persons, supra at 382) Q: When shall the action for legal separation be tried? ANS: An action for legal separation shall in no case be tried before six (6) months shail have elapsed since the filing of the petition (FAMILY CODE, Art. 58). 407VOL 1. 2019 Q: Is the cooling-off period applicable where violence as specified under R.A. No. 9262 is alleged? ANS: No. In cases of legal separation, where violence as specified in RA. No. 9262 is alleged, Article $8 of the Family Code shall NOT apply. The court shall proceed on the main case and other incidents of the case as soon as possible. ihe hearing on any appiication for @ protection arder filed by the petitioner must be conducted within the mandatory period specified in this Act (R.A. No. 9262, Sec. 79). Q: Can the parties enter upon stipulation of facts or a confession of judgment? ANS: No. 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 prosesuling attorney or fiscal assigned to it to take steps to prevent collusion between the parlies and to take care that the evidence is not fabricated or suppressed (FAMILY CODE, Art. 60) Q: What are the effects of filing a petition for legal separation? ANS: The effects are the following: 1. The spouses shail be entitled to live separately from each other; or 2. In the absence of an agreement between the parties, the court shall designate the husband, the wife, or a third person to manage the absolute cammunity or conjugal partnership property (FAMILY CODE, Art. 61). Q: What are the effects of a pending action for legal separation? ANS: During the pengenty of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall: 1. Provide for the support Gf the spouses and the custody and support of common children; , 2. Give'paramount consideration to the moral and material welfare of the said children“and their chgice of tie parent with whom they wish lo remain: and 3. Provide for appropriate visitation rights (FAMILY CODE, Art. 49), Q: What are the effects of a decree of legal separation? ‘ ANS: The effects are the following:(DADS-RID} - ~The absolute community or the-conjugal partnership shall be Dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43/2); 2. The custody of the minor children shall be Awarded to the innocent spouse, subject to the provisions of Article 213 of the Family Code; 3. The offending spouse shall be Disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law: 4, The spouses shall be entitled to live Separately from each other, but the marriage bonds shall not be severed (FAMILY CODE. Art, 63): end 5. Afler the finality of the decree of lega! separation, the innocent spouse may Revoke: a. The designation of the iatler as beneficiary in any Insurance policy, even if such designation be stipulated as irrevocable; as well as b. The Donations made by him or by her in favor of the offending spouse. Note: The revocation of the denations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances egistered 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 notitication thereof to the insured. The action to revoke the donation under this Article must be brought within five 408BEDAN RED BOOK (5) years from the time the decree of legal separation becomes final (FAMILY CODE, Art. 64), Q: What is the requirement if the spouses reconcile after the legal separation decree has been issued? ANS: 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 iegal separation (FAMILY CODE, Art. 65). Q: What are the consequences of reconciliation between spouses? ANS: The consequences are the following 1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and 2. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shalt be recorded in the proper civil registries (FAMILY CODE, Art. 66). Q: Should the spouses agree to ravive their former property regime, wnat are the requirements that must be complied with? - ANS: The agreement to revive the former property regime referred to in the preceding Article shali be executed under oath and shall specify: 1. The properties to be contributed anew to the restored regime; 2. Those to be reiained as separated properties of each spouse; 3. The names of all their known creditors, their addresses, and the amounts ‘owing to each; 4, The agreement of revival and the motion for its'epproval shall be filed with the court in the same proceeding for legal séparation, with copies of both furnistied to the creditors named therein, After due heating, 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; and 5. 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 properties to satisfy the creditor's claim (FAMILY CODE, Art. 67) Q: What is the status of children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory? ANS: Children conceived .. born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and exeoulory shall be considered ate. Children conceived or born of the subsequent marriage under Article 53 shalt likewise be legitimate (FAMILY CODE, Art. 54). D. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Q: What are the essential obligations of the husband and wife? ANS: The busband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual hetp and support (FAMILY CODE, Art. 68). Q; Is procreation an obligation of the husband and wife? ANS: Yes, Procreation is also an essential marital obligation considering that such obligation springs from the universal principle that procreation of children through sexual cooperation is the basic end of marriage. Thus, the senseless and protracted refusal of one of the parties to fulfil this marital obligation is equivalent to psychological incapacity 403 Vi(Chi Ming Tsoi v. Court of Appeals, G.R. No. 119190, January 16, 1997). However, if the husband is immoderate or barbaric in his sexual demands for sexual intercourse, the wife may establish a separate residence or domicile (Goitia v. Campos Rueda, G.R. No. 11263, November 2, 1916) Q: What is a domicile? ANS: For the exercise of civil ights and the fulfilment of civil obligations, the demicile of natural persons is the place of their habitual residence (CIVIL CODE, Art. 0). The domicile is the place where the parties intend to have their permanent residence with the intention of always retuming even if they have left it for some time (STA. MARIA, Persons, supra at 425), Q: Who fixes the family domicile? ANS: The husband and wife shall fix the family domicile. In case of disagreement, the court shail decide, Note: The court may exempt one spouse from. tiving with the other if the latter shoutd live abroad or there are other valid’ and compelling reasons for the exemption. However, such exemption shail not apply if the same is not compatible with the solidarity of the family (FAMILY CODE, Art, 69), pad Q: Who shall be responsible for. the support of the family? -, ANS: The spouses ae jointly responsible for the support of the family. The expenses for Such support and cther conjugal obligations shall be paid from the community property and, in the absence thereof, (fr \come or fruits of their separate properties. In case of insufficienoy of absent id"iricome oF fruits, Stich obligations shall be satisfied from the'Separate properties (FAMILY CODE, Art. 70). h } uty in the management of the household? en \QUséhold shall be the right and the-duty of both spouses WT), OS ' f . Q: What is the effect in-case one of the spouses neglécts his‘or her duty to the conjugal union? *, * Ae - ed f ANS: When one of the spouses neglects his of her duties to the conjugal union or commits acts which tend to’bring danger, dishonor or injury lo'the other or to the family, the aggrieved party may apply to the court for calle (FAMILY CODE, Art. 72). Note: The reffef may take on So many forms like filing a case for legal separation if there are grounds for the same, nulifying the"martiage based on Article 36 if the neglect is such that it does not create a functional marital life, petitioning the court for receivership, for judicial sep alion of property, or for authority to be the sole administrator of the community property or the conjugal partnership subject to such precautionary conditions aas the court may impose (STA. MARIA, Persons, supra at 427) @: Gan a spouse ask a competent court to order the spousa who abandoned the conjugal home without any justifiable cause to return to the conjugal home under pain of contempt? ANS: No, the court cannot order a spouse to return to the conjugal home under pain of contempt. The doctrine in this jurisdiction, which is now well-settled, is that the obligation of cohabitation of husband and wife is not enforceable by contempt proceedings. The feason for this is that cohabitation is a purely personal obligation — an obligation to do. To compel him to comply with such obligation would be an infringement of her personal liberty (JURADO, Civil Law Reviewer (2009), p. 136) {hereinafter JURADO, Civil Law Reviewer). 410@: Is there a need for consent in case either spouse desires to exercise any legitimate profession, occupation, business, or activity? ANS: No. 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 accnied to the family prior to the objection or thereafter. Note: if the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obiained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in goad faith (FAMILY CODE, Art, 73 as amended by R.A. No. 10572) E. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE Q: What governs the property relations between husband and wife? ANS: The property relations between husband and wife shall be governed in the following order: 1. Marriage settlements executed before the mariage or ante nuptial agreements; 2, Provisions of the Family Code:, Absolule Community of Property [ACP] (FAMILY CODE, Art. 88) and Conjugat Property of Gains [CPS] (FAMILY CODE, Art. 107); and : 3. Local customs when spouses repudiate absolute community (FAMILY CODE, An 74) Note: It commences at the precise moment of the celebration of the marriage (FAMILY CODE, Art 88)... . . Q: What is a marriage settlement? ANS: Il is a contract enletéd into by the future spousés fixing thé mattimonial property =regime that should govern during the existence of the marriage (7 PARAS, Persons, supra at 633). . Note: In the absence of marriage settlement or when regime agreed upon is void, ACP shall govern (FAMILY CODE, Art 75). Q: What are the requisites of a valid marriage Settlement? ANS: The requisites are the following: (B-Not’-FAWS) 1. Made Before celebration of marriage; 2. In Writing (even modifications); 3. Signed by the parties; 4, Will Not prejudice third persons unless registered in the civil registry and proper registries of property; 5, Shall Fix terms and conditions of their property relations; 6. Must Not contain provisions contrary to law, good morals, good customs. public order, and public policy, or against the dignity of either spouse; and 7. Additional signatories/parties, that is, if made by civil interdictees and disabied, it is indispensable for the guardian appointed by couri to he made a party to the marriage settlement (1 PARAS, Persons, supra at 535) Q: Can the marriage settlement be modified? ANS: The general rule is that marriage settlement can be modified provided it 1. Must be made in writing; 2. Signed by the parties; and 3. Executed before the cetabration of the marriage (FAMILY CODE, Art. 77). Att7 10101. It-can, however, be made after the ceremony in case of judicial separation of property ‘during the marriage: ‘ 1. In case of revival of former property regime belween reconciling spouses after a decree of legal separation has been issued (FAMILY CODE, Arts. 66-67): 2. _ In case of abandonment or failure to comply with marital obligations (FAMILY CODE, Art. 128): 3. Ifit falls under any of the foilowing sufficient causes for judicial separation of ' propery: a. That the spouse of the pelitioner has been sentenced to a penalty which carries with it civil interdiction; b. That the spouse of the petitioner has been judicially declared an absentee; c. That loss of parental authority of the spouse of the petitioner has been decreed by the court; d. That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; . That the spouse granted the power of administration in the marriage settlement has abused that power: and f. That at the time of the petition, the spouses have been separated in fact for a! least one (1) year and reconciliation is highly improbable. Note: In the cases provided fof in (a), (b) and (c}, the presentation of the final judgment against the guily or absent spouse shall be enough basis for the grant of the decree of judicial separalién of property (FAMILY CODE, Art. 135). Q: What law governs the praperty relations between the spouses? ANS: In the absence of a contrary stipulation in a miarriage ‘settlemnent, the properly relations of the spouses shail be governed by Philippife laws, regardless of the place of the cetebration of the marriage and their residence. This rule shall not apply: 1. Whera both spouses are aliens; 2. With respect to the extrinsic vafidity of contracts affecting property not situated in the Philippines and executed in the country where the property is located {CIVIL CODE, Art. 16}: and 3. With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity (FAMILY CODE, Art, 80) Note: Everything stiputated in the settlements or contracts in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulaticns that do not depend upon the celebration of the marriages shall be valid (e.g. admission of paternity of an illegitimate child) (FAMILY CODE, Ari. 81). Q: What are the requisites for a valid donation by reason of marriage? ANS: The requisites are the fellowing:(BCF) 1. Made Before the celebration of marriage; 2. In Consideration of marriage: and 3 In Favor of one or both of the future spouses (FAMILY CODE. Art, 82) Q: What are the rules in case of donation by future spouses to each other? ANS: The limitations are the following: 4. There must be a valid marriage settlement; 2. The marriage settlement must stipulate a property regime other than the ACP; and 3. Donation in the marriage settlement must not be more than one-fifth (1/5) of his or her present oroperty (FAMILY CODE, Art. 84). 412BEDAN RED :BOOK Note: If such donation exceeds this limitation, only the excess is considered void bul the remainder remains to be valid (RABUYA, Persons, supra at 411) 4, The donation must be accepted by the would-be spouse: and 5. It must comply with the requisites in Title Il of Sook Il on Donations (STA. MARIA, Persons. supra at 445}. Note: If there is a marriage settlement providing for a particular property regime other than the absolute community of property. such as the conjugal partnership of gains or the separation of property, and there is also a donation propter nuptias not included in a marriage settlement bul contained in a separate deed, the "not more than one-fifth” limitation wil not apply. Instead, the general rules on donation shall govern (STA. MARIA, Persons, supra at 430). Q: What are the grounds for revocation of a donation propter nuptias? ANS: The grounds are the following: (Not-VP-ARAL) 1. Marriage is Not celebrated or judicially declared Void ab initio except those made in marriage settlement that do not depend on celebration of marriage; Marriage takes place withcut Paréntal consent, as required by law; Marriage is Annulled and donee is in bad faith; Upon Legal sevaration. the donee being the guilty spouse; Donation is with a Resolutory condition and the condition is complied with; and Donee commits Acts of ingratitude as specified by Article 765 of the Civil Code (FAMILY CODE, Art. 86). ° Dahon Q; After the finality of a judicial declaration of nullity of marriage on the ground of a bigamous marriage contracted by donor-spouse, can 'the donor-spouse revoke a donation propter nuptias made to donee-spouse? ANS: No. The suit for revocation for the donation propter.nuptias will not prosper. True, the marriage was annulled at the instance of the donee but it must be noted thal the donee, did not act in bad faith. If anybody acted in bad faith, il was the donor. Under No. 3 of Article 86 of the Family Code, it is clear that the dohation in the instant case can be revoked if the marriage is annulled and the donee acted in bad faith (JURAVO, Civil Law, supra at 148) Q: Can one of the spouses donate to the other during their marriage? ANS: No, the spouses cannot donate to one another, since every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage chall be void, However, moderate gifts which the spouses may give each other on the occasion of any family rejoicing are valid. The prohibition shall also apply to persons living together as husband and wife withoul a valid marriage (FAMILY CODE, Art. 87). Q: When does the absolute community property regime between the spouses commence? ANS: The absolute community of properly between spouses shall commence at the Precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void (FAMILY CODE. Ait. 88) Note: The same rule applies to conjugal partnership of gains (FAMILY CODE. Art. 107). Q: In the absence of specific provisions in the Family Code regarding the property regime of the spouses, what law shall be applied? ANS: The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not especially provided for by the Family Code (FAMILY CODE, Art. 90). ANB.Q: What constitutes community property? ANS: Unless otherwise provided by the law or in the marriage setllements, the community property shall consist of all the property owned by the spouses al the time of the celebration of the marriage or acquired thereafter (FAMILY CODE, Art. 91) Note: Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom (FAMILY CODE, Art. 93). Q: What are excluded from the community property? ANS: The following are excluaed: 1, Property acquired during the marriage by gratuitous tille by either spouse, and the fruils as well as the income thereof, if any, unless it is expressly provided by the conor, testator or grantor that they shali form part of the community property; 2, Property for perscnal and exclusive use of either spouse. However, jewelry shall form part of the community property; and 3. Property acquired before the marriage by either spouse who has legitimate descendants by a former niarriage, and the fruils as well as the income, if any, of such property (FAMILY CODE, Art. 92). @: Can a spouse waive marriage? ANS: No waiver of righs, interests, shares and effécts of the ACP can be made except upon judicial separation of property (FAMILY CODE, Aft, 89}, , interests, shares, and effects during the Note: In order to protect thitd'persons, the.Code requires that any waiver of the interest or share in the absolute community aiter the dissolution of the fnarriage or its annulment or in case of jucisial separation of property rust appear in a public instrument and recorded in thé local civil registry where the marriage contract |s recorded <> well as in the proper registries of property (FAMILY-CODE,. Art. 89, par. 2). Q: What are the charges upon and obligations of the community property? ANS: The charges upon and obligations are as follows: ere ke ec enes ACP (Art. 94)" ikl Guay Support of the spouses, their common ciilldcén, and legitimate children of either spouse - For ilegitimate children, support from | For illegitimate children, support from separate property of person obliged to | separate property of person obliged to give support. In case of insufficiency | give support. In case of insufficiency or or absence of separate property, ACP | absence of separate property, CP shall shall advance support, chargeable to | advance support, chargeable to share of share of parent upon liquidation, parent upon fiquidation, but only after ‘obligations in Art, 121 have been covered. Debts and Obligations Contracted During Marriage: . By the administrator spouse designated in the marriage settlementlappointed by courtione assuming sole administration; . By one without the consent of the other: . By one with the consent of other; or }. By both spouses . For 1 and 2, creditor has the burden of proving benefit to the family and ACPICPG chargeable to the extent of benefit proven, otherwise, chargeable to the separate property of the obligor spouse. 6. For 3 and 4, benefit to family is presumed. PPEN a4EDAN RED.BOO Allltaxes, liens, charges and expenses including minor repairs upon ACP or CP Taxes and expenses for mere | Taxes and expenses for mere preservation during marriage upon | preservation during marriage upon separate property of either spouse | separate property of either spouse, used by family, regardiess of whether used by the family because the use and enjoyment of separate proverly of the spouses belong fo the partnership. Expenses to enable either spouse to commence/complete a professional, vocational or other activity for self-improvement. Value donatedipromise by both spouses in favor of common legitimate children tor exclusive purpose of commencing or completing professional or vocational course or other activity for, self-improvement. Expenses of ligation between spouses unless the suit is found to be groundless 1. Ante-nuptial debts are chargeable | For Ante-nuplial debts, same as ACP but to ACP if they redounded to the |*in case of insufficiency of separate benefit of family. property, obligations enumerated in Art 2. Personal debts not redounding to | 121 mus! first be, satisfied before such benefit of the family such as |, debts may be chargeable to the CP. liabilities incurred by reason of crime of — quasi-delict are chargeable to the separate property of the debtor spouse. 3. In case of insufficiency of separate property, chargeable to ACP but considered advances deductible from the share of the debtor spouse upen liquidation. Note: The separate properties shall be SOLIDARILY AND SUBSIDIARILY liable for the obligations if the cornmunily or conjugal properties are insufficient (FAMILY CODE, Art. Gd) Note: Whatever may be lost during the marriage, in any game of chance, or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law shall be borne by the loser and shall not be charged to the commenity but any winnings therefrom shall form part of the community property (FAMILY GODE, Art. 95). The same rules apply to CPG (FAMILY CODE, Art. 123). Q: What is the effect of debts incurred by either spouse before their marriage on the absolute community of property? ANS: Ante-nuptial debts of either spouse sha be considered as the liability of the absolute community of property insofar as they have redounded to the benefit of the family (FAMILY CODE, Art. 94, Par. 7). @: To whom shall the administration and enjoyment of the community property belong? ANS: The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decisian (FAMILY CODE, Art. 96). The same rules apply to conjugal partnership property (FAMILY CODE, Art. 124). 415BEDAN RED BOOK Q: What are the instances when one of the spouses may assume sole powers of administration? What are those powers that are deemed excluded? ANS: One of the spouses may assume sole powers of administration in the event: 1. One spouse is incapacitated; or 2. Otherwise unable to participate in the administration of the commen properties (FAMILY CODE, Art, 124). Note: These powers do NOT include disposition or encumbrance which must have the authority of the court or the wrillen consent of the other spouse. In the absence of such authorily or consent, the disposition or encumbrance shall be void. However, the lransaction shall be construed as 2 continuing offer or the pari of tne consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors (FAMILY CODE, 4rt. 96). The same rules apply to conjugal partnership property (FAMILY CODE, Art. 124). G: Can one of the spouses donate any community property without the consent of the othor? ANS: Generally, neither spouse may donate. any community property without the consent of the other. However. either spouse may, without the consent of the other. make mederate donations ffem the community property: 1. For charity; 2. On occasions of family rejoicing: or 3. On occasion of family distress (FAMILY CODE, Art. 98). Note: The same rules apply to conjugal partnership property (FAMILY: CODE, Art. 125). Q: In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the community property or conjugal partnership property, may the other spouse assume sole powers of administration? ANS: Yes. However, these powers do nol include disposition or encumbrance without authority of the court of the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be voi. However, the transaction shail be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors (FAMILY CODE, Arts. 96 and 124), Q: When does the absolute community terminate? ANS: The absolute community terminates:(SAD-JR) ‘When there is a decree of legal Separation; When the marriage is Annulled or declared vu. J; Upon the Death of either spouse; In case of Judicial separation of property during the marriage under Articles 134 to 138 (FAMILY CODE, Art, 99); or 5. Upon the filing of an affiaavit of Reappearance of the absent spouse (FAMILY CODE, Art. 42, par. 2). Note: The same rules apply 10 Conjugal Partnership of Gains (FAMILY CODE, Art 1263. Beno Q: Does the separation in fact between the spouses affect the regime of absolute community? ANS: Generally, the separation in fact belween husband and wife shall not affect the regime of absolute community except: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right lo be supported; 416VOL» 2019 2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; and 3. Inthe absence of sufficient community property. the separate property of both spouses shall be solidarity tiable for the support of the family. The spouse present shall, upon proper patition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share (FAMILY CODE Ant. 190). Note: The same rule applies to Conjugal Partnership cf Gains (FAMILY CODE, Art. 127) Q: What is the remedy of the present spouse in case of abandonment by the other spouse or failure to comply by the latter with his or her obligation to the family? ANS: The aggrieved spouse may petition the court for: 1. Receivership; 2. Judicial separation of property; or. 3. Authority to be the sole administrator of the absolute community (STA. MARIA, Persons, supra at 501-502). , Note: The obligations to the femily mentioned in the preceding paragraph refer to marital, parental or property relations. Also, a spouse is deemed to have abandoned the other when she has left the conjugal dwelling without ary intention of returning. Three (3) months disappearance cr failure to give Within the same period any information as to a spouse's whereabouts shal! be prima facie presumption‘of abandonment of the other spouse (FAMILY CODE, Art. 101). . . Q: What are the steps in the liquidation 6f the ACP and CPG? ANS: The steps in the liquidation are the following: 2 1. Inventory of ACP or CPG properties ~nd exclusive property of each spouse; Note: Separate listing shall be made of the absolute community and exclusive properties of each spouse (7 PARAS, Persons, supra at 557), ACP or CPG should also include receivat: 2s from each spouse for:.. a. Amounts advanced for personal debts cf each spouse; b. Support pendente lite of each spouse: and c. For CPG, inciude value of improvements coi property. : 2. Payment of absolute community debis and obligations. In case of insufficiency of said assets, the spouses shall be sofidarily lizble for the unpaid balance with their separate properties: Note: For CPG, reimburse first the spouse for separate property acquired by CP due to increased value thereof as a result of improvements thereon. Delivery to each spouse of his/her separate property if any; For CPG, unless the owner is indemnified from whatever source, payment of loss or deterioration of movables belonging to either spouse that was used for the benefit of the family must be made; 5. Division of net assets (for ACP) or net profits (for CPG), which are not subject to forfeiture: 6. Delivery of nresumptive legitime. if any. to the children: and 7. Adjudication of conjugal dwelling and lot (FAMILY CODE, Arts. 102 and 129) Note: Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of the Family Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined 1ipon such proof as may be considered according to the rules of evidence. In case of doubl as to which community the existing preperties belong, the same shall be divided between the different communities in proportion to the capital and duration of each (FAMILY CODE, Art. 104) Note: The same rules apply for CPG (FAMILY CODE, Art. 129). ‘on separate BY ayN-RED BOOK @: In case of death of one of the spouses, what is the action that the surviving spouse should undertake to liquidate the property? ANS: The community property shall be liquidated in the same proceeding for the settlement of the estale of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shail liquidate the community property either judicially or extra-juvicially within one year from the death of the deceased spouse, If upon the lapse of the six-month period, no liquidation is made, any disposition or encumbrance involving the community property of tne terminated marriage shall be void, Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage (FAMILY CODE, An. 103). Note: The same rules apply to CPG (FAMILY CODE, Art, 128). Q: What is the concept of conjugal partnership of gains? ANS: Its that formed by a husband and wife whereby they place in a common fund the proceeds, products, fruits and income, cf their separate properties, and those acquired by either or both spouses through their efforts Gr by chance, the same to be divided between them equally (as a general rule) upoit the dissolution of the marriage or the partnership (FAMILY CODE, Art. 106), .... : Q: In what instances do the provisions on CRG apply? ANS: In case the.fulure'spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their property relations during marriage, the provisions in Chapter 4, Title IV of the Family Cade shall be of supplementary application. The provisions of this Chapter shail also apply to conjugal partnerships of gains already established between spouses before the effectivity of the Family Code, ‘without prejudice to vested nghts already acquired in accordance with the Civil Code or other laws, as provided in Article 2°5 (FAMILY CODE,/Art-105). Note: The conjugal parinership shail-be-governed’ by the ules. on the contract of partnership in all that is notin conflict with what is expressly determined in this Chapter or by the spouses in tneir ~ arriage’settlements (FAMILY CODE, Art. 108). Q: What is the presumption in case the property is acquired during the marriage in the name of one or both spouses?" ANS: All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in thé name of one or both spouses, is presumed to be conjugal unless the contrary is proved (FAMILY CODE, Ait. 116). Q: What are considered as exclusive properties of each spouse and properties conjugally owned? ANS: The fotlowing are the conjugal and exclusive properties under the CPG: fed ato Gmina Al property acquired during the mat | presumed conjugal, unless the contrary | Is proved (FAMILY CODE. Ar. 176) 4. Those acquired by onerous title | 1. That which is brought {othe ; during the marriage at the expense of marriage as his or her own the common fund 2. That which each acquires during the | 2. Obtained from the labor, industcy, marriage by graluitous title | work, or profession of either or both | 3. That which is acquired by right of | spouses redemption, by barter or by | exchange with property belonging to _only one of the spouses Poe - a —. 4183. Fruits from common property and net | fruits of the exclusive property of each | spouse I } Share of either spouse in hidden treasure, whether as finder or owner of property where treasure was found 5. Acquired through occupation such as. | fishing or bunting . Livestock existing upor dissolution of the partnership in excess of what is brought by either | spous2 to the marriage acquired by ; chance (FAMILY CODE, Art. 117). | the BEDAN RED:BOOK YOL 1. 2019 4, That which 1s purchased with exclusive money of the wife or of the husband (FAMILY CODE, Art. 109). Property donated or left by will to the spauses, joinlly end with designation of delerminele shares (FAMILY CODE, Art. 113). | Property bought on installments, partly. | from exclusive funds and partly: from.t conjugal funds, if full ownership Was | vested during the marriage (FAMILY | CODE, Art. 118) \ Property Dought on installments partly from. exclusive funds and partly from conjugal funds,, if full ownership was vested before. the marriage (FAMILY CODE, Art. 118). As to credit belonging: te one of the: | spouses. interests falling due during the | martiage on the ‘principal (FAMILY*| CODE, Art. 119). { As to credit belongirg to one cf the spoures, sums.which may be collected or by installments:.on-the principal during the marriage in partial payments | | 1 (FAMILY CODE, Aan. 119). Q; What are the rules on properties acquired by gratuitous title by each during the marriage? ANS: They are subject to the following rules: : 1. Properly donated of teft by will to spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her exclusive properly; in the absence of designation, share and share alike, without prejudice to the right of accretion when proper (FAMILY CODE, Art. 113); 2, If the donatic~s are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by ihe conjugal parinership of gains (FAMILY GODE, Art. 114); 3. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case (FAMILY CODE, Art, 115). Q: What are the rights that may be exercised by each spouse i their exclusive property? ANS: Each spouse may: 4. Relain the ownership, possession, administration and enjoyment of their exclusive property (FAMILY CODE, Art. 110, par.1): 2. During the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the piace where the property is located (FAMILY CODE, Art. 110, par. 2}: and 419BEDAN RED BOOK . ff) Note: The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be tumed over to the owner-spouse (FAMILY CODE, Art, 112). 3, Mortgage, encumber, alienate, or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same (FAMILY CODE, Art. 111) : If property bought on installments is paid partly from exclusive funds and partly from conjugal funds, to whom shall the ownership pertain? ANS: It depends. Properly bought on installments paid parlly from exclusive funds of either or bath spouses and partly from conjugal funds belongs to: 4. The buyer or buyers if full ownership was vested before the marriage; or 2. To the conjugal partnership if such ownership was vested during the marriage. Note: in either case, any amount advanced by the parinership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership (FAMILY CODE. Art, 118) Q: Whenever an amourit or credit payable within a period of time belonging to one of the spouses is col'ected during the marriage, to whom shall the ownership pertain? “ ANS: it shall be the exclusive property of the spouse. However, interests faling due during the marriage on principal shall belong to the conjugal partnership (FAMILY CODE, Art. 119) Q: Whenever’ improvements, whether for utility or adornment, is made on a separate property of the spouses at the expense of (1) the partnership; or (2) through the acts or efforts of either or both spouses, to whom shall the ownership pertain? ANS: Il depends. It shall pertain to the conjugal partnership, of to the original owner- spouse, subject to the following rules: 1. When the cost of the improvement made by the conjugal partnership and any resulling increase in value-are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugai partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement (Murioz, Jr. v. Ramirez, G.R. No. 156125, August 25. 2010). 2. If the cost of the improvement made by the conjugal partnership and any resulting increase in value is equal to or less than the value of the principal prope ty al the time of the improvement, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement (Accession). Note: In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the figuidation of the conjugal partnership (FAMILY CODE. Art, 120). Q: Is the conjugal partnership liable to pay the personal debts contracted before or during the marriage, fines, indemnities and support of illegitimate children of either spouse? ANS: No as a general rule. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership. Neither shall the fines and indemnities imposed upon them be charged to the partnership, 420RED:BOO The exceptions are: 1. Ifthey redound to the benefit of the family; or 2. If the spouse who is bound should have 10 exclusive property or if il should be insufficient, provided that the charges and obligations of the conjugal partnership have been covered, Note: But at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned (FAMILY CODE, Art. 122) Q: What rule shall be observed in the appraisal and sale of pruperty of the conjugal partnership and other matters which are vot expressly determined in the chapter on CPG? ANS: The Rules of Court on the administration of estates of deceased persons shall be ‘observed (FAMILY CODE, Art. 132). Q: During the liquidation of the property, where shall the support of the surviving spouse and the children come from? ANS: From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shail be deducted that amount received for support which exceeds the fruits or rents pertaining to them (FAMILY CODE, Art. 133} Q: When will the separation of property between spouses during the marriage take place? ANS: in the absence of an express déclaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may éither be voluntary or for sufficient cause (FAMILY CODE, Art. 134). Q: What are thé sufficient causes for judicial separation of property? ANS: The sufficient causes are:(SCALOP) 1. That at the ime of the petition, the spouses fave Seen Separated in fact for at least one (1) year and reconciliation is highly improbable; 2. That the spouse of the petitioner has been sentenced to a penalty which carries with it Civil intardicticn; That the spouse of the petitioner has been judicially dectared an Absentee: That Loss of parental authority of the spouse of pelitioner has been decreed by the court: 5. That the spouse of the pelitioner nas abandoned the latter or failed to compiy 6. ae with his or her Obligations to the family as provided for in Article 101; and That the spouse granted the Power of administration in the marriage settlements has abused that power. Note: In the cases provided for in numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property (FAMILY CODE, Art. 135). Q: How may the voluntary separation of proporty be effected? ANS: The spouses may jointly file a verified petilion with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors ot the absolute community or of the conjugal partnership of cains, as well as the personal creditors of the spouse, shail be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest (FAMILY CODE, Ar. 136). Note: In both cases {voluntary separation or for sufficient cause), the petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil reyistries and registries of property (FAMILY CODE, Art. 139). 421Ls: Q: What are the effects of the filing and the subsequent issuance of a decree of separation of property? ANS: The effects are the followin 1. The absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code (FAMILY CODE. Art. 137. par. 1}: 2. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children (FAMILY CODE, Art. 137, par.2}: 3. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply (FAMILY CODE, Art. 138); 4. The petition for separation of property and the final judgment granting the same shall be recorded in the proper civil registries ard the registries of property (FAMILY CODE, Art. 139); Note: The separation of property shall NOT prejudice the rights previously acquired by creditors (FAMILY CODE, Art. 14C}. 5. Each spouse may theredfter own exclusively all his or her earnings and the feuits of his or her separate property (FAMILY CODE, Art. 145): 6. The obligation of thé spouses to support their children continues, each spouse contributing thereto (FAMILY CODE, Art, 146, par. 1}: 7. Liability of the spouses to credilors~shall be Solidary with their separate properties (FAMILY CODE, Art. 146, par.2); and 8. Mutual ‘obligation to support each other also continues except when tnere is legal separation ‘ Q: After a decree of separation of property has been isstied, can the spouse revive the former property regime? ANS: The spouses. inthe same proceedings where, separation of property was decreed, file a motion in court for a°detree “reviving the property regime that existed between them before’ the separation of property in any of the following instances: (CAT- Pats) When the Court, being satisfied.thal the spouse granted the power of administration in the marriage-settlements will not again abuse that power, authorizes the resumption of said administration; When the Absentee spouse reappears: When the civil interdiction Terminates, - When Parental authority is Judicialy restored to the spouse previously deprived thereof; 5. When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they Agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted; 6, When the spouse who has Left the conjugal home without a decree of legal separation resumes common life ‘vith the other; or 7, When the spouses who have Separated in fact for at least one year, reconcile and resume common life, Note: The revivai of the former property regime shall be governed by Article 67 of the Family Code (FAMILY CODE, Art. 141). AON Q: What are the grounds by which the administration of all classes of exclusive property of either spouse may be transferred by the court to the ther spouse? ANS: The instances are the following: (GACH) 1. When one spouse becomes the Guardian of the other; 2. When one spause is judicially declared an Absentee: 3. When one spouse is sentenced to a genally which carries with it Civil intesdiction; or 422N RED BOOK 4. When one spouse becomes a fugitive from justice or is in Hiding as an accused in a criminal case. Note: If the other spouse is not qualified by reason of incompetence, conifict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator (FAMILY CODE, Art. 142). Note: If the cause for the transfer of administration of the exclusive properties of a spouse ceases to exist. the reason for the administration by another disappears. The ‘owner-spouse may pelition the court to declare the administration terminated and recover her full rights over the properties under administration (RABUYA, Parsons, supra at 502-503) Q: Can spouses validly execute a public document evidencing their agreement to voluntarily dissolve their conjugal partnership? ANS: No. This agreement is void because it was never approved by @ competent court (FAMILY CODE, Art, 134). Consequently, it cannot produce any legal effect (JURADO, Civit Law, supra at 203-204). » Q: Are properties subsequently acquired by spouses after their separation-in-fact iable for obligations incurred which redound to the benefit of the family? ANS: Yes. Generally, the absolute community of property will not be affected by the separation in fact between the spouses. Hence, the absolute’community of property for instance will stil be liable for all the obligations incurred by either of the spouses for the benefit of the family. It shall likewise be held liable fer all the. charges provided under Article 94. The separate properly of th separated spouses shall still be solidarily liable for the obligations incurred.for the benefit of the family in.the event thal the absolute community of property is insufficient to’ pay off the obligation: The exceptions are provided in Article 100 of the Family Coue,(STA. MARIA, Persons, supra at 498) Q: Define the regime of Separation of Property. . ae Me ANS: It is that matrimonial property regime-agreed upon inthe marriage settlement by the future spouses whersby-each spouse shall own, dispose’ of, possess, auminister and enjoy his or her own separate estate and earnings without the consent of the other (FAMILY CODE, Art, 145}, with each spouse bearing the family expenses in proportion to their earnings and profits of their respective property (FAMILY CODE, Art. 146), Q: What are the consequences of a regime of separation of property? ANS: The consequences are the folowing: 1. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the matriage from his or her separate property (FAMILY CODE, Art. 145); and 2. Both spouses shall bear the family expenses in proportion to their income, or in case of insufficiency or default thereof, to the current market value of their separate properties. The liabililies of the spouses to creditors for family expenses shall, however, be solidary (FAMILY CODE, Art, 146). Q: What does separation of property refer to? ANS: The separation of property may refer to: 1. Present properly: 2. Future property; or 3. Both. It may also be: 4. Total: or 2. Partial Note: In the latter case, the property not agreed upon as separate shall pertain to the absolute community (FAMILY CODE, Art. 144). 423 /VOL 1. 2079 BEDAN RED BOOK Q: How shall the wages and salaries of persons who are capacitated to marry each other, living exclusively as husband and wife without the benefit of marriage or under a void marriage, be distributed? ANS: Their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership (FAMILY CODE, Art. 147, par. 1). Q: What are the requisites for the applicability of Article 147? ANS: The requisites are:(MEW-V) 1. Both man and woman are capacitated to Marry each other, 2. They live Exclusively with each other as husband and wil 3. Their union is Without the benefit of marriage or th (Mercado-Fehr v. Fehr, G.R. No, 152716, October 23, 2003). Note: Void marriages under this provision do not contemplate a void marriage that may ‘occur due to non-observance of Article 40 of the Family Code. (FAMILY CODE, Art. 50). ns marriage is Void Q: What is ihe presumption. with regard to ownership of properties obtained by the parties during cohabitation? ANS: In the absence of proof, properties acquired while. they lived together shall be presumed to have been obtained by their joint efforts; work or, industry, and shall be ‘owned by them in equal shares. A party who did not participate in the acquisition by the other party of any property shall be deemed to have contriauted jointly in the acquisition thereof i the formers efforts consisted in the care and maintenance of the family and of the household (FAMILY CODE, Art. 147, par.2). Q: Can the party encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common? ANS: Generally, neither parly can encumber or dispose by acts infer vivos Ut his or her share in the property acquited during cohabitation end owned in common, except when made: 1. With the consent of the other, or 2. Uniil after the termination of theit cahabitation (FAMILY CODE, Art. 147, par. 3). Q: Whatis the effect if one of the parties to a void marriage is in bad faith? ANS: When only one of the parties to a void marriage is in good faith, te share of the party in bad faith in the co-ovinership shall be forfeited in favor of: 1. Their common children; In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants; or 3. In the absence of descendants, such share shall belong to the innocent party. Note: In all cases, the forfeiture shall take place upon termination of the cohabitation (FAMILY CODE, Art. 147, par. 4). Q: What are the cases of cohabitation contemplated in Article 148? ANS: The relationships contemplated under Article 148 are those whereby a man and @ woman tive logether as husband and wife without the benef of marriage, but are sot capacitated to marry. These include: (PIBA) 1. An Adulterous relationship 2, A Bigamous or polygarnous marriage 3. Incestuous void mariages under Article 37; and 4. Void marriages by reason of Public policy under Art. 38 (STA. MARIA, Persons, supra at 609) 424a4) 13?) ae Vout. 2019 Q: What are the distinctions between Articles 147 and 148 (parties not capacitated to marry each other)? ANS: The distinctions are the following: Pye The provision applies to parties who are capacitated to marry each other, but live exclusively with each other as husband and wife without benefit of marriage or under void marriage. Owned in equal shares. AS to Property Acquired by Either Sp Belongs to such party subject to proof of acquisition by exclusive funds. Governed by 7ules on co-ownership. Presumed to be obtained by their joint efforts, work, or industry and shall be owned by them in equal shares. Efforts in cate and maintenance of family and household are considered contributions. When only one of parties to a void marriage is in good faith, the share of the parly in bad faith in the co- ownership shalt be forfeited: 1. In favor of their common children; 2. tn case of default or waiver by any oF all common children or their descendants each vacant share shall belong to respective surviving descendants; or 3. in their absence, to the innocent party. In all cases, forfeiture takes place upon termination of cohabitation. i ete Pd PTS ane are ek As ales ool tiaheo a ane Aouad E As to Property Acquired While Living Together 5 The provision applies to parties who are incapacitated to marry due to some tegal impediments fie. adulterous relationships and marriages which are bigamous, incestuous, or void by reason of public palicy under Art. 38). Separately owned by the parties. If any of them is married, hisiner salary is the property of the CPG of the legitimate mariage ere EMO AU een LE Belongs to such party. Owned by them in common proportion to respective,contributions in No presumption of joint acquisition When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing 4, If one of partic . is validly married to another, his or her share in the co- ownership shall accrue to the CP or CPG existing in such valid marriage; {f the party who acted in bad faith is not validiy married to another, his/her share shall be iorfeited in the same manner provided for in Article 147; or The above rules apply even if both parties are in bad faith 425ADT wy 3 Q: What property regime governs a man and a woman who live together without a benefit of a marriage and thereafter acquired from their combined earnings a parcel of land? ANS: The regime is that of co-ownership (FAMILY CODE, Aq. 147, par, 1). The half interest in the parcel of land will then become absolute community property of the Person who subsequently married and his/her spouse (JURADO, Civil Law, supra at 217-212). Q: What property regime governs a man of age who cohabited with a minor woman und who thereafter acquired from his savings a parcel of land? ANS: The man is the exclusive owner of the coconut land. The applicable law is Article 148 and not 147 since the woman being a minor nas no lega! capacity to marry. The parcel of Jand will then become absolute community property of the man and his wife (id.). F. FAMILY HOMES: Q: What is a Family Home? ANS: Family home is constituted Jointly by the husband and wife or by an unmarried head of a family, the family nome is the dwelling-house where they and their family raside, and the land on-which iis situated (FAMILY. CODE; Art! 152). Q: When is the fariily home.constituted? ANS: The family home’is deemed constituted on a house and lot from the time it is occupied as a family residence. Note: From the-time éf ils canstitulion and so fong as’ any ofits beneficiaries actually reside therein] the family home continyes, to be sucl{ and is‘exemipt from execution, forced sale or ettaGhment excapt as hereinafter provided and to the extent of the value allowed by law’ TeAMIEY CODE: Ant 153). - Q: What are the requisites in tie constitiition of the family home? ANS: The family home: (DOP*y | >"! 4. Must be Gonstituiéd on the Dwelliig house of the family and the tand on which house is situated: - 2. Must be deomed.constiluted.from.the time of actual Occupation as a family residence (FAMILY CODE, Art. 153): ve 3. Must be part of thé Properties ct the-propiriies of absolute community or the conjugal partnership, or of the-exclusivé properties of either spouse with the latter's consent (FAMILY CODE, Art. 156); and 4. Must be Permanent. Note: The rule applies to valid and voidable and even to common-law spouses under Articles 147 and 148 of the Family Code. Note: The family home continues despite the death of one or both spouses or unmarried head of the family for tea (10) years, or as long as 2 minor beneficiary fives therein (FAMILY CODE, Art. 159). Aiter ten (10) years and a minor beneficiary still lives therein, the family home shall be preserved only until that minor beneficiary reaches the age of majority. The intention of the law is to safeguard and proieci the interests of the minor beneficiary until he reaches the age of majority (Patricio v. Dario itl, G.R. No. 170829, November 20, 2006). A person can constitute one (1) family home only (FAMILY CODE, Art. 161). Q; Who are the beneficiaries of a family home? ANS: The beneficiaries are the following: 1. The husband and wife, or an unmarried person who is the head of a family; 2. Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate cr illegitimate, who are living in the family home and 426y riya on = vor, BEDAN RED BOOK 2015 who depend upon the head of the family for legal support (FAMILY CODE, Art. 154); and 3. In-laws provided the home is jointly constituted by husband and wife (Patricio v. Dario Ill, G.R. No. 170829, Novernber 20, 2006). Q: What are the exceptions to the rule that the family home shail be exempt from execution, forced sale or attachment? ANS: The exceptions are the following: (P-LMT) 1. For non-payment of Taxes; 2. For debts incurred Prior to the constitution of the family home; 3. For debls secured by Mortgages on the premises before or after such constitution; and 4. For debts due to Laborers, mechanins, architects, builders, material men and others who have rendered service or furnished material for the construction of the building (FAMILY CODE, Art. 155). Q: What is the limitation on the right of disposition of the owners of a property where a family home is situated? ANS: The family home may be sold, alisnated, donated, assigned or encumbered by the owner or owners thereof with Ihe written consent of the person constituting the: same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the courts shall decide (FAMILY CODE, Art.158). Q: Whai are the requisites that will enable a creditor ta apply for the execution sale of a family home? ANS: The foifowing are the requisites: (CF-More) 1. The Claim of ihe creditor is not among those mentioned in Article 155; 2. He obtains a judgment in his Favor; < .d 3. He has reasonable grounds to believe that the. family home is actually worth More than the maximum amount fixed in Article, 187" (FAMILY CODE, Art. 160). G. PATERNITY AND FILIATION Q; Who are deemed legitimate children? ANS: The legitimate children are the following: 4. Children conceived or born during the marriage of the parents. Note: This is true regardless of the existence of extramarital relationships. {(Liyao v. Liyao, G.R. No, 138961, March 7, 2002). 2. Children conceived as a result of artificial insemination of the wife with the: a. Sperm of the husband; b. That of a donor; or c. Both, provided that: i. Both of them authorized or ratified such insemination; ii Ina written instrument executed and signed by them before the birth of the child. Also, ii, The instrument shall be recorded in the civil registry together with the birth certificate of the child (FAMILY CODE, Art. 164). 427BEDAN RED BOOK Q: What are the distinctions between legitimate and illegitimate children? ANS: The following are the distinctions: Ey ues) See eee eet Coneeived or born during a vatid marriage (FAMILY CODE, Art. 164); Conceived or born before the judgment of annulment or absolute nullity of marriage if ground is psychological incapacity (FAMILY CODE, Art. 54): . Born in @ subsequent void marriage due to failure to comply with Arts. 52 and 53 (FAMILY CODE, Art. 54), « Product of artificial insémination | provided both spouses authorized of ratified such procedure in'z written instrument, executed” and” signed before birth of child’ and..recorded”|~ (FAMILY CODE, Art. 164); Conceived Or born’ of mothers: who. might nave. declared ‘ against its_ legitimacy: of.was senténced as an adulteress (FAMILY CODE, Art. 167), Legally adopted (FAMILY. CODE, Art. 189); and ; . eee Legitimated: conceived’ and ‘born outside of wedlock of narénts. without impediment al the time of conception and had subsequently married (FAMILY CODE. Art. 177), 1. Conceived and bom outside a valid martiage or inside a void ab initio marriage such as bigamous and incestuous marriages and marriage declared void for being contrary to law and public policy (FAMILY CODE, Art. 165); 2, Conceived and born after the decree of annulment of a voidable marriage (Qe Santos v. Angeles, G.R. No. 105619, December 12, 1995): and 3.Coneaived and born before the decree of annulment if the ground is other than asychological incapacity, Bete etoe cud Has the right to bear the” surriame of father (CIVIL CODE, Art, 364). General rile: the child shalt bear the -mother's surname (CIVIL CODE, Art. 368}. Note: Ilegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in @ public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts 0 prove non-filiation during his lifetime (FAMILY CODE, Art. 178 as amended by RA 9255) ead Under joint authority of parents. Under the sole parental authority of mother (FAMILY CODE, Art. 176). 428VOL. 2019 BEDAN RED BOOK As to Support Has preferential right to support over | No such preference. mother if father has no sufficient means to meet both claims. y As to Succéssional Rights ot Entitled to inheritance (FAMILY CODE, | Entitled to % of legitimate child's Art, 174). inheritance (FAMILY CODE, Art. 176). a a ee ee ae | Primary beneficiaries. Not primary beneficiaries. As to Paternity Leave Father is entitled to paternity leave of 7, | No such benefit (7 PARAS, Persons, days with full pay. supra at 669-670) @: What is the presumption on the legitimacy of a child born after the mother contracted a subsequent marriage? ANS: it depends. The rule is thal if the marriege is terminated and the mother contracted another marriage within three (300) hundred days:after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: +. A child Dom before. one hundred eighty (180) days after the solem:izction of the subsequent marriage is corigigered to have been conceived during the former marriage, provided it be born within three hundred (300) days after the termination of the former marriage: 2. A chile born after one hundred eighty (180) days following the velebration of the subsequent marriage is considered to have been conceived during such mazriage, even though it be born within the three hundred (200} days after the 7 mariage (FAMILY CODE, Ait, 168). Note: The legitimacy or acy of a child born after three hundred (300) days following the termination of the marriage’ shall be proved by whoever alleges such legitimacy or illegilimacy (FAMILY CODE, Art. 769). In case of annulment, the actual separation of the spouses, and not the final judgment, should be the starting point for counting the 300 days because the litigation for annulment may last fong after the spouses shall have actually separated (1 TOLENTINO, Civil Code, supra at 532). Q: What are the grounds in impugning the legitimacy of the child? ANS: The grounds are: 1, Physical impossibility of the husband to have sexual intercourse with his wife within the first 120 days of the 300 days immedialely preceding the chitd's birth, due to: a. Physical incapacity of the ausband: b. Husband and the wife living separately; or c. Serious illness of the husband which absolutely prevented sexual intercourse. 2. Biological or scientific proof that the child could not have been that of the husband; and 3. Written authorization or ratification of either parent for artificial insemination obtained through mistake, fraud, violence, intimidation or undue influence {FAMILY CODE, Art. 166}. 429BEDAN RED BOOK’. Je Note: Rules on impugning legitimacy govern situations where a husband (or his heirs) denies as his own the child of his wife (Benitez-Badua v. Court of Appeals, G.R. No 108625, January 24, 1994), An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of the child born or conceived within a valid marriage A_mother has no right to disavow a child because maternity is never uncertain {Concepcion v. CA, G.R, No. 123450, August 31, 2005). Q: What are the requirements, if any, in order to establish paternity over a child conceived as a result of artificial insemination? ANS: The ‘following are the requirements to establish his paternity over a child conceived as a result of artificial insemination: 1. The arlificia! insemination has been authorized or rallied by the spouses in a wailtten instrument executed and signed by them before the birth of the child: and The written instrument is recorded in the civil registry together with the birth certificate of the child (FAMILY CODE, Art. 164, par. 2). Q: When should the action to impugn the legitimacy of the child be brought? ANS: It shall be brought: 1. Within one (1) year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded: 2. Within two (2) years if the husbana or, in his defauit, all his heirs do not reside al the place of birth or where it was recorded, if they should reside in the Piiilippines; and 3. Within three (3) years if they should reside abroad Note: If the birth of the child has been concealed from’ or was unknown to the husband or his heirs, the period shat! be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier (FAMILY CODE, Art. 170). Note: The question of legitimacy cannot be collaterally allacked. It can be impugned only in a direct action (Liyao Jr. v. Liyao, G.R. No. 138961, March 7, 2002). Q: When may the heirs impugn legitimacy of the child? ANS: Generally, only the husband may impugn. However, the heirs of the husband may impugn the filiation of the child in any of the following cases. 1. If the husband should die before the expiration of the period fixed fer bringing : his action; 2. If he should die after the fiting of the complaint without having desisted thetcitom; or 3. Ifthe child was born after the husband's death (FAMILY CODE, Art, 171). Note: Legitimacy can only be attacked directly (Sayson v. Court of Appeals, G.R. Nos. 88924-25, January 23, 1992) Q: How is the filiation of legitimate children established? ANS: The fillation of legitimate children is established by any af the following 1. The record of birth appearing in the civil register of a final judgment: 2. An admission of legitimate (oF illegitimate) filiation in a publis document or a private handwritten instrument and signed by the parent concemed (STA. MARIA, Persons, supra at 671-673) Note: In the absence of any of the foregaing evidence, such legitimate or illegitimate filiation shall be proved by: 4. Open and continuous possession of the status of a legitimate or illegitimate chil; 430VOL 1, 2019 BEDAN RED BOOK 2. Any other means allowed by the Rules of Court and special laws (FAMILY CODE, Art. 172); a. An act or declaration conceming pedigree (RULES OF COURT, RULE 130, Sec. 39); b. Family reputation or tradition concerning pedigree (RULES OF COURT, RULE 130, Sec. 40); cc. Common reputation respecting pedigree (RULES OF COURT, RULE 130, Sec, 41); d. Judicial admission (RULES OF COURT, RULE 129, Ses. 4); 2. Admission of a party (RULES OF COURT, RULE 130, Sec. 26): f. Admission by silence (RULES OF COURT, RULE 130, Sec. 32). Q: Who may bring an action to claim legitimacy? ANS: An action to claim legitimacy may be brought by: 4. Child ~ exclusive and personal right of child which may be brought anylime auring his lifetime; 2. The heirs of the child within a period of five (5) years in case: a. Child dies during minority; b. Child dies in a state of insanity; or Child cies ater action has already been instituted (FAMILY CODE, Art. 173). . Q: What are the rights of legitimate and illegitimate children? ANS: Legitimate and illegitimate children shall have the fellowing rights: re ok ce kai suk cael} 1. .0 besr the Sumames of the father and the mother, in conformity with the provisions of the Civil Code _on Sumames; 2.To receive Support from their parents, their ascendants, and in proper cases, Iheir brothers and sisters, in conformity with the provisions of this Code on Support; 3. To be entitled to the’ legitimate and other Suecessional rights granted to them by the Civit Code(FAMILY CODE, Art. 174); 4.Receive support from ascendants or descendants of the Same line (FAMILY CODE, Art. 195, par. 2); and 5.Right to inherit Ab intestato from legitimate parents and ascendants (CIVIL CODE, Art. 887, par. 1) 1.Use the Sumame and shale under the parental authority of their mother; 2. Be entitled to Support in conformity with the Family Code; 3.Be entitled to the legitime which shail consist of 1/2 of the legitime of a legitimate child (FAMILY CODE, Art, 176, as amended by R.A. No. 9255); and 4.Receive Support from only up to grandparent and grandchildren (FAMILY CODE, Art 195, par. 2 and 4). Q: Who are deemed illegitimate children? ANS: Children conceived and bor outside a vali¢ marriage are illegitimate, unless otherwise provided in the Family Code (FAMILY CONE, Art. 165). Q: When can an illegitimate child use the surname of the father? ANS: Illegitimate children may use the surname of their father iff 4. Their filiation has been expressly recognized by their father through the record of birth appearing in the civil register; or 434BEDAN RED BOO 2. When an agmission in a public document or private handwritten instrument is made by the father, provided that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime (FAMILY CODE, Art. 176, as amended by R.A. No, 9255). G; How is illegitimate filiation established? ANS: Iltegitimate fibalion may be established in the same way and on the same evidence as legitimate children. The ection must be brought within the same period specified in Articie 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent (FAMILY CODE, Art. 178). Q: Can a father compel his iltegitimate children to use his surname upon his recognition of their filiation? ANS: No. Article 176 of the Family Code gives illegitimate children the right to decide if they want to use the surname of their father oz. nol. It is not the father or the mother who is granted by law the right lo dictale the surname cf their illegitimate children (Grande v. Antonie, G.R, No. 206248, February 18, 2014), Q: Who may be iegitimated? ANS: Only children conceived and born ‘outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated (FAMILY CODE, Art. 177). . Note: The disqualification referred to does not include the case when either or both of them were below eighteen (18) years of age. Couples who had children when they were below the martyinig-age would not.need to go through the process of having to adopt their own offspring just so their kids could enjoy tle rights of legitimate children (FAMILY CODE. Art. 177) : Q: When shall legitimation take place? ANS: Legitimation shall take place -by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legilimation (FAMILY CODE, Art. 178), Note: The effects of legitimation shall retroact to the time of the child's birth (FAMILY CODE, Art. 180). Q: What are the rights of legitimated children? ANS: Legitimated children shall enjoy the’same rights as lagilimate children (FAMILY CODE, Art. 179). Note: The legitimation of children who died before the celebration of the marriage shati benefit their descendants (FAMILY CODE, Art. 181). . Q: How may legitimation be impugned? ANS: Legitimation may be impugned only by those who are prejudicad in their rights within five (5) years from the time their cause of action accrues (FAMILY CODE. Art. 182) 432H. ADOPTION Q: Distinguish between R.A. No. 8552 (Domestic Adoption Act) and R.A. No. 8043 (Inter-Country Adoption Act of 1995. ANS: The distinctions are’ pee (Or eeee acc cakes) ae (Inter-Country Adoption Act) Tada Judicial Proceeding (DSWD Implementing Rules and Regulations on RA. No, 8552, Sec. 27) BOER ice aad File a petition in the Family Court to: adopt not later than thirty (30) day from. date of receipt of the DSWD's written consent 10 adoption (OSWD Implementing Rules and Regulations on R.A, No. 8552, Sec.27). In the Philippines for at least six (3) months BUT the court may reduce the period of trial custody for non-alien adopters (R.A. No. 8552, Sec. 12). 1, Filipino Citizen a. Of legal age: b. In a position to support and care for hisfher children in keeping with the means cf the famiiy: Good moral character; . In possession of full civil capacity or legal rights: e.At least sixteen (16) years older than the adoptee, except when’ i Adopter is the — viological parent of the adoptee i 1, Adopter is the spouse of the adoptee's parent f Has not been convicted of any crime involving moral turpitude: and g. Emotionally and psychologically capable of caring for children (Sec. 7(a)) eo Exlra-Judicial Proceeding; the Inter Country Adoption Board acts as the central authority in matters relating to inter-country adoption (R.A. No. 8043, Sec. 4). occ E File either with the Philippine RTC having jurisdiction over the child, or _Inter-Country Adoption Board, through - an intermediate, agency (R.A. No. 8043, Sec. 10). Ter ee ee ar kick ee hele In the country ofthe adoptive parents which filed’ thé application for inter- country adoption for a period of six (6) months. from the time‘of placement (R.A. No, 8043, Séc:14),,: . 3 OF 2.Fifpino citizen, both permanently residing abroad. Conditions: 1.At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of the application uniess the adopter is: a. parent by nature of the child to be adopted: or b, spouse of such parent 2.\f married, his/her spouse must jointly file for the adoption; 3. Capacity to act and assume all rights and responsibilities of _ parental authority under his/her national laws, and has undergone the appropriate counseling from an accredited counselor in his/ner country: 433 ydBEDAN RED BOOK VOL 1. 2019 2. Alien - Same qualifications as a Filipino, provided: a. Country has diplomatic relations with the Philippines; b. Has been living in the Philippines for at least three (3) continuous years prior to the application for adoption and maintains such residence until the adoption decree is entered, except when: i. A Iormer Filipino citizen seeks to adopt a relative within the fourth degree of consanguinity or affinity; ii, One who seeks to adopt the legitimate son/daughter. . of ||- his/her Filipino spouse; or il, One who is married to a Filipino citizen and seeks: to adopt jointly with” his/her spouse a ‘relative within the fourth degree of consanguinity or affinity’ of the Filipino ‘Spouse. ©. Certified to have legal capacity to adopt by histher diplomatic or consular office but. certification may be waived in the same_ instances for waiver of residency requirement in {b); and Certified by said office that his government allows the adopted to enter his country as his: adopted child (Sec, 7/0). 3. Guardian a.After termination of the. guardianship, with respect to the ward; and b.Clearance of hisiher financial accountabilities (Sec. 7(c)}, 1. Any person below 18 years of age | who has been voluntarily committed to the DSWG under P.D. 603 or judicially deciared available for adoption; 2. Legitimate child of the other spouse; 3. Wiegitimate child of a qualified adopter to improve the child's status; 4. A person of legal age, who, prior to the adoption, has been consistently considered by the adopter as his/her own child since minority, 4.Has not been convicted of a crime involving moral turpitude; 5, Eligible to adopt under his/her national faw: 6 Ina position to provide the proper care and support and to give the necessary moral values and examples to all his children, including the child to be adopted; 7.Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of a Child, and to abide by the rules and regulations issued to implement the Inter—Country Adoption Act; 8. Comes from a country with whom the Philippines has diplomatic relations and whose government ingintains 2 similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and 9.Possesses ail the qualifications and none of the disqualifications under the Inter-Country Adoption Act and other applicable Philippine laws (Sec. 9). Te Only a “legally-free child” may b2 the subject of inter-country adoption (Sec. 3). Note: Legally-free Child — a child who: has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child Youth and Welfare Code (Sec. 3(f)) No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally (Sec. 11). 434ea Py P= 1eL eae VOL. 2019 &. Chid whose adoption has been previously rescinded; and 6. Child whose biological or adoptive parents have died provided that no proceedings shail be initiated within 6 months from the time of death cf said parents (Sec. 8). Note: Child - is a person below eighteen (18) years of age.(R.A. No. 8552, (Sec. 3(a)). There shail be no physical transfer of a voluntarily committed child earlier than six (6) months from the date of execution of Deed of Voluntary Commitment except: 1. Adoption by a relative; or 2.Children “with special mecical condilions (Implementing Rules and Regulations on RA. Ne. 8043, Sec. 25). Note: The provisions on adoption contained from Articles 183 to 193 of the Family Code have been repealed by RA 8552 (STA. MARIA, Persons, suora at 701). Q: When is inter-country adoption allowed? ANS: Inter-country adcption allows aliens not presently allowed by law to adopt Filipino children if such chiidren cannot be adopted by qualified Filipino citizens or aliens (R.A. No, 8043, Sec. 3}. The Board shall ensure: that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child (R.A. No, 8043, Sea. 7). Q: Whose consent is necessary to the adoption? ANS: After being properly counseled and informed of his/her right to give or withhold hisfher approval of the adoption, the written consent of the following to the adoption is hereby required: 1. The adoptee, if ten (10) years of age or over, 2, The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and acopted sons/daughters, ten (10) years of age or over, of the adopter(s) and acoptee, if any; pe 4 The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and 5. The spouse, if any. of the person adopting or to be adopted (R.A. No. 8552, See. 9}. Q; What is the rule on the adeption by a husband and wife? ANS: Husband and wife shall jointly adopt, except in the following cases: 1. Ifone spouse seeks to adopt the legitimate son/daughter of the other: 2. tone spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the olher spouse has signified his ‘her consent thereto; or 3. Ifthe spouses are legally separated from each other. Note: In case husband and wife jointly adopt, or one spouse adopts the illegitimate sonidaughter of the other, joint parental authority shall be exercised by the spouses (R.A. No. 8552, Sec. 7). Q: What are the effects of adoption? ANS: The effects of adoption under R.A. No. 8552 are the following + Severance of legal ties between the biological parents and the adoptee, which shali be vested in the adopters, except if the biological parent 's the spouse of the adopter: 2. Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes: and 3. In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of succession without distinction from legitimate filiation However, if there is @ will, the rules on testamentary succession shall be followed (R.A. No, 8552, Secs. 16-18). 435 4