1. A donation propter nuptias of a parcel of land was given by X to Y.

They were
subsequently married but the marriage was annulled on the complaint of Y upon her
discovery that X has been previously married. X now files a suit for revocation of the
donation. Decide the case with reasons.

Answer: Jurado, pp. 166-167; 1973 Bar Exam

The suit for revocation for the donation propter nuptias will not prosper.

Under No. 3 of Art. 86 of the FC, it is clear that the donation in the instant case can be revoked
only if the marriage is annulled, and the donee acted in bad faith.

Here, the marriage of X and Y was annulled at the instance of the donee but it must be noted
that Y, the donee, did not act in bad faith. If anybody acted in bad faith, it was X, the donor.

2. In 1974, Erasmo married a rich woman. Flora, who brought into the marriage substantial
assets.When Flora died, Erasmo claimed one-half of the said assets on the strength of a
public document executed by Erasmo and Flora during their marriage whereby all their
separate properties were converted into conjugal properties. Is Erasmo’s claim valid?
(10%)

Answer: Jurado, p. 160-161; 1974 Bar Exam

The issue to be resolved in this case is whether the property relation of the spouses is marriage
settlement or conjugal partnership of gains.

No, Erano’s claim is not valid. 

As a rule, the property relations of husband and wife cannot be modified during the marriage. It
can only be done in the marriage settlement entered into by the future spouses before the
celebration of their marriage. The only exception to this rule is in case of judicial separation of
property during the marriage under the family code. Since the instrument executed by Erasmo
and Flora during their marriage does not fall within the purview of the exception, it is null and
void;

Also, to sustain Erasmo’s claim would provide an indirect way of circumventing the ban against
donations between spouses during their marriage as provided in the FC;

Furthermore, to sustain Erasmo’s claim would open the door to the possible commission of
fraud by the spouses. If one or both of them had incurred either ante-nuptial debts or debts
during the marriage which have not redounded to the benefits of the family and for which the
partnership cannot be held liable, all that they will have to do would be to enter into a similar
arrangement in order to defraud their creditors.

In this case, the property relations of Erasmo and Flora at the time of their marriage, without any
marriage settlement is conjugal partnership of gains since they were married before the
effectivity of the Family Code which excluded their separate properties.

3. X had been taking care of B until the latter finally reached womanhood and got married
to A. Prior to the marriage, A executed a deed of donation, wherein he stated that: (a) if
 there are children born during the marriage, the properties referred to as well as those
acquired during the conjugal union shall be donated to such children, who shall inherit in
equal shares; (b) but if there are no children, and he should die before his wife, ½ of
such properties shall be given to his brothers and sisters; or (c) if there are no children,
and his wife should die before him, ½ of such properties shall be given to those who
reared his wife. About nine months after the marriage, B died without issue. This action
now is an action commenced by X against A to enforce the terms of the donation. Will
the action prosper? (10%)

Answer: Jurado, pp. 163-164; Serrano vs. Solomon, 105 Phil. 998

The issue to be resolved in this case is whether the donation made by A can be considered as
donation propter nuptias.

No. The action will not prosper.

The donation cannot be considered as a donation propter nuptias, because, assuming that it
was made in consideration of the marriage, still it was not made in favor of the wife, but rather in
favor of those who had reared her. That does not place it within the purview of Art. 82 of the FC.

If it is a donation inter vivos, it cannot be considered valid and effective because it was never
accepted by the donee either in the same instrument of donation or in a separate document as
required by law. 

If it is a donation mortis causa, it cannot also be considered valid and effective for the reason
that a donation to take effect after the death of the donor is equivalent to a disposition or
bequest of property by last will, and therefore, it should be executed in accordance with the
formalities prescribed by law for the execution of wills.

In the case of Serrano vs Solomon, the donor is still alive, and assuming that the donation is
valid, still the time and occasion have not yet arrived for considering its operation and
implementation.

In the present case, the donation of the husband is not in favor of the wife. It was also not
accepted by the donee and it was not executed in accordance with the formalities prescribed by
law for the execution of will.

Hence, the donation cannot be considered as donation propter nuptias, donation inter vivos,
and donation mortis causa.

4. H donated to his wife, W, an automobile which the latter insured for P3,000.00 with X
Insurance Co. Subsequently, the automobile was totally destroyed in an accident. X
Insurance Co., however, refused to pay the value of the policy on the ground that W did
not have an insurable interest in the automobile because said automobile was donated
by her husband to her, and under Art. 87 of the FC, such a donation is void. Is this
contention correct? Reasons. (10%)

Answer: Jurado, pp. 167-168; Cook vs. McMicling, 27 Phil. 10; Harding vs. Commercial Union
Assurance Co., 38 Phil. 464
No. The contention of X Insurance Co. is not correct for the following reasons to wit:

a. The Company has no right to question the validity of the donation on the ground that, at the
time when such donation was made, it did not bear a relation to the donor or to the property
itself in such a way that the transfer interfered with its rights or interests. It has been long held
that in this jurisdiction the only person who is directly prejudiced by the donation at the time
when it was made can subsequently question its validity. 

b. Even if the Company can invoke Art. 87 of the FC, yet it has not been shown
that the donation does not fall within the purview of the exception provided for in the
article itself. Moderate donations made on the occasion of a family rejoicing are excepted from
the application of the prohibition.

Here, X Insurance Co. accepted the offer of W to insure the automobile donated by her
husband,H. X Insurance Co. was not prejudiced by the donation. Also, X Insurance Co. has not
proven that the donation does not fall within the purview of the exception provided for in Art. 87,
FC.

5. Before the marriage, A had properties valued at P500,000.00. He entered into a

marriage settlement with B, his future spouse, where a conjugal partnership was agreed
upon and A donated to B P200,000.00. Is the donation valid? (10%)

Answer.

Yes. The law allows A to give only 1/5 of such properties to B before and in consideration of the
marriage. If the future spouse gives the other more than 1/5 of his present property, the
donation would not be completely void. Only the excess is void. (Art. 84, FC)

Here, 1/5 of P500,000 is P100,000 which is a valid donation. However, the excess of P100,000
is void.

6. Being engaged to marry “B,” “A” executes a formal donation of a piece of land in a public
instrument in favor of his prospective wife, who duly accepted it. The marriage did not
take place and the creditors of the donor sued the donee “B” and have its value applied
to the payment of their credit, claiming that a donation in consideration of marriage
becomes void ab initio if the marriage is not celebrated, for lack of consideration or
causa. Decide with reasons. (10%)

Answer: Jurado, p. 166; 1972 Bar Exam; Solis vs. Barroso, 53 Phil. 912

Assuming that the donation in the instant case is a donation by reason of marriage as defined in
Art. 82 of the FC, the claim of the creditors that a donation in consequence of marriage
becomes ab initio void if the marriage is not celebrated for lack of consideration or causa is
certainly not correct. Art. 86 of the FC declares that a donation by reason of marriage is not
revocable save in certain cases. Among such cases is the non-celebration of the marriage. 

From this, it is clear that although the marriage is really a consideration of the donation, yet the
fact of its celebration is not necessary in order to give birth to the donation. In other words, even
if the marriage is not celebrated, the donation in the instant case is still valid, although revocable
in character. 
Hence, the non-celebration of the marriage is merely a resolutory condition which will entitle the
donor to ask for the revocation of the donation.

Here, there is no showing that A who is the donor brought an action against “B” for the
revocation of the donation. If no action is brought within the statutory period of prescription, the
donation would be forever valid.

7. Erlinda and Miguel got married while Miguel’s marriage with Carlina was still subsisting.
During their coverture, Miguel gave her P20,000.000.00 which she used to buy property
and placed it under her name. Is the donation of Miguel to Erlinda valid, void or
voidable? Why? (10%)

Answer. Buenaventura vs. Bautista, 50 O.G. 3679; Matabuena vs. Cervantes, 38 SCRA 284;
Agapay vs. Palang, G.R. No. 116668, July 28, 1997, 85 SCAD 145

Void. It is a donation by Miguel to Erlinda which is void because it was made between persons
guilty of adultery at the time of the donation. Moreover, Article 87 of the Family Code provides
that the prohibition against donations between spouses now applies to donations between
persons living together as husband and wife without a valid marriage, otherwise, the condition of
those who incurred guilt would run out to be better than those in the legal union.

Here, Miguel donated P20,000 to Erlinda who are living together as husband and wife without
the benefit of marriage.

8. A, the man, married B, the woman, while the latter is at the age of 20. The consent of B’s
parents was not given. Before their marriage, B donated properties to A. Can B revoke
the donation? (10%)

Answer:

Yes. Article 86(2) of the Family Code provides, to wit: “A donation by reason of marriage may be
revoked by the donor xxx (2) When the marriage takes place without the consent of the parents
or guardian, as required by law”.

In the instant case, the donation can be revoked at the instance of B because her parents did
not give their consent to the marriage.

9. Francisco Comille, a widower, asked his niece and her cousin to take care of him. There
was another woman, Cirila Arcaba, then, a widow who took care of him. When the niece
and her cousin got married, Cirila was left to take care of Francisco. There were
conflicting versions as to their relationship because evidence was shown that they
became lovers since they slept in the same room. Cirila, however, said that she was a
mere helper who could enter the master’s bedroom only when the old man asked her to
and that in any case, he was too old for her. She denied having sexual intercourse with
him. Before he died, he executed a Deed of Donation Inter Vivos of a real property in her
favor in consideration of her faithful services rendered for the past 10 years. After his
death, his relatives filed an action for declaration of nullity of the Deed of Donation
claiming that since he left no heirs, they, as nieces and nephews were entitled to inherit
the property under the law on intestate succession. They claimed that the donation was
 void since they were common law husband and wife. In her testimony, she said that she
signed documents bearing the name “Cirila Comille and on the basis of such findings
and other pieces of evidence, the RTC ruled that they were common-law spouses,
hence, the donation was void under Article 87 of the Family Code. The judgment was
affirmed by the CA, hence, she went to the Supreme Court raising as error the finding of
the two lower courts that they were common-law spouses, claiming that they have never
cohabited since there was no sexual intercourse between them. As The ponente
assigned to write the decision, will you grant the action for declaration of nullity of the
Deed of Donation? (10%)

Answer: Arcaba vs. Tabancura Vda. de Batocael

Yes. In Bitangcor vs. Tan, it was held that the term “cohabitation” or “living together as husband
and wife” means not only residing under one roof, but also having repeated sexual intercourse. 

Cohabitation, of course, means more than sexual intercourse, especially when one of the
parties is already old and may no longer be interested in sex. At the very least, cohabitation is
the public assumption by a man and woman of the marital relation, and dwelling together as
man and wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation;
they are merely meretricious. 

In this jurisdiction, it has been considered as sufficient proof of common-law relationship the
stipulations between the parties, a conviction of concubinage, or the existence of illegitimate
children. Was Cirila Francisco’s employee or his common-law wife? Cirila admitted that she and
Francisco resided under one roof for a long time. It is very possible that the two consummated
their relationship, since Cirila gave Francisco therapeutic massage and Leticia, one of the
nieces said they slept in the same bedroom. At the very least, their public conduct indicated that
theirs was not just a relationship of caregiver and patient, but that of exclusive partners akin to
husband and wife. Aside from Erlinda Tabancura’s testimony that her uncle told her that Cirila
was his mistress, there are other indications that Cirila and Francisco were common-law
spouses. Seigfredo Tabancura presented documents apparently signed by Cirila using the
surname “Comille,” like an application for a business permit to operate as a real estate lessor, a
sanitary permit to operate as real estate lessor with a health certificate, and the death certificate
of Francisco. 

These documents show that Cirila saw herself as Francisco’s common-law wife, otherwise, she
would not have used his last name. Similarly, in the answer filed by Francisco’s lessees (for
collection of rentals), these lessees referred to Cirila as “the common-law spouse of Francisco.”
Finally, the fact that Cirila did not demand from Francisco a regular cash wage is an indication
that she was not simply a caregiver-employee, but Francisco’s common-law spouse. She was,
after all, entitled to a regular cash wage under the law. It is difficult to believe that she stayed
with Francisco and served him out of pure beneficence. Human reason would thus lead to the
conclusion that she was Francisco’s common-law spouse. 

It having been proven by a preponderance of evidence that Cirila and Francisco lived together
as husband and wife without a valid marriage, the inescapable conclusion is that the donation
made by Francisco in favor of Cirila is void under Art. 87 of the Family Code.
 10. X, the husband of Y, hits a pedestrian and kills the latter. He was sued for damages and
held liable for the same. Which property shall be used to pay for the damages assuming
that their property relation is absolute community of property? (5%). Assuming that such
property is insufficient to cover the liability, which property shall be used to pay for the
deficiency? (5%)

Answer: Albano, Persons & Family Relations, p. 452.

Exclusive property of debtor-spouse. Art. 92(9), FC provides, “The absolute community of

property shall be liable for xxx liabilities incurred by either spouse by reason of a crime or a
quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse,
the payment of which shall be considered as advances to be deducted from the share of the
debtor- spouse upon liquidation of the community”

In this case, husband X hits a pedestrian and kills the latter making his exclusive property liable
for damages. However, assuming that his exclusive property is insufficient to cover the liability,
it is the absolute community of property that shall be liable which will be considered as
advances to be deducted from the share of the debtor-spouse upon liquidation of the
community.

11. A, a bachelor, owns a parcel of land. He built a house on the said land from the
proceeds of a loan contracted prior to his marriage with B. The house now serves as
their residence. The loan, however, became due and demandable five (5) months after
their marriage. Is the conjugal partnership or the absolute community of property liable?
Why? (10%)

Answer: Albano, p. 120

Yes, because the law says that the absolute community of property or the conjugal
partnership shall be liable for all ante-nuptial debts of either spouse insofar as they
redounded to the benefit of the family. (Arts. 94 and 121, FC). 
Since the house is now being used as residence of the family, the loan definitely redounded to
the benefit of the family within the contemplation of the law. The measure of the community’s
liability for such ante-nuptial debts is the benefit it gave to the family.

12. On October 31, 1995, the woman obtained a loan secured by a Real Estate Mortgage
over a real property under their names but without the consent of the husband. She
issued checks as partial payments but the same were dishonored, hence, the creditor
filed a complaint for Foreclosure of the Mortgage with damages. The RTC dismissed the
case as the mortgage was executed without the consent of the husband even as it noted
that he executed a Special Power of Attorney for the wife to execute the mortgage on
November 4, 1995. The RTC however ruled that the subsequent execution of the SPA
cannot be made to retroact to the date of the execution of the real estate mortgage. Is
the ruling correct? Why? (10%)

Answer: Arturo Sarte Flores vs. Spouses Enrico & Edna Lindo, G.R. No. 183984, April
13, 2011
No, because the execution of the SPA can be considered as acceptance of the mortgage by the
other spouse that perfected the contract or continuing offer.

Both Article 96 and Article 124 of the Family Code provide that the powers of the
administration do not include disposition or encumbrance without the written consent of the
other spouse. Any disposition or encumbrance without the written consent shall be void.
However, both provisions also state that “the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse xxx before the offer is withdrawn by
either or both offerors.” 

Here, the non-consenting husband executed an SPA after the execution of the real
estate mortgage which is considered his acceptance of the mortgage that perfected the contract
or continuing offer.

Note: This is an example of a void contract that can be ratified. (See: Art. 5, NCC)

13. Romarico and Katrina are married. They have three children, but they have been living
separately from each other most of the time. During the marriage, Romarico acquired a
lot consisting of 1,787 square meters. In 1972, while in Hong Kong, Katrina entered into
a contract with Anita Wong, whereby she consigned to her pieces of jewelry worth
P321,830.95. When she failed to return the jewelries, Anita demanded the payment
where Katrina issued a check for P55,000.00. When it bounced, she was sued
criminally, but since the obligation was purely civil in nature, a suit for collection of sum
of money was filed against her. Judgment was rendered against Katrina. When it
became final and executory, the parcel of land was levied upon and sold at a public
auction. 

Issues:
(1) Whether or not the property is conjugal or not; (5%)

(2) Whether the property is liable for the indebtedness of Katrina. (5%)

Answer: Spouses Ricky and Anita Wong, et al. vs. IAC, et al. G.R. No. 70082, August
19, 1991

1) Having been acquired during the marriage, the property is presumed to belong to the
conjugal partnership (Cuenca vs. Cuenca, 168 SCRA 335), even though Romarico and Katrina
had been living separately. (Flores vs. Escudero, 92 Phil. 786). The presumption of the conjugal
nature of the properties subsists in the absence of clear, satisfactory, and convincing evidence
to overcome said presumption or to prove that the properties are exclusively owned by
Romarico. (Ahern vs. Julian, 39 Phil. 607). While there is proof that Romarico acquired the
properties with money he had borrowed from an officemate, it is unclear where he obtained the
money to repay the loan. If he paid it out of his salaries, then the money is part of the conjugal
assets and not exclusively his. Proof on this matter is of paramount importance considering that
in the determination of the nature of a property acquired by a person during coverture, the
controlling factor is the source of the money utilized in the purchase.

2) The conjugal nature of the properties notwithstanding, Katrina’s indebtedness may not be
paid for with the same since her obligation was not shown by the petitioners to be one of the
charges against the conjugal partnership. (Lacson vs. Diaz, 14 SCRA 183). In addition to the
fact that her rights over the properties are merely inchoate prior to the liquidation of the conjugal
partnership, the consent of her husband and her authority to incur such indebtedness had not
been alleged in the complaint and proven at the trial. (Manaois-Salonga vs. Natividad, 107 Phil.
268). 

Furthermore, under the Civil Code (before the effectivity of the Family Code on August 3, 1988),
a wife may bind the conjugal partnership only when she purchases things necessary for the
support of the family or when she borrows money for the purpose of purchasing things
necessary for the support of the family if the husband fails to deliver the proper sum; when the
administration of the conjugal partnership is transferred to the wife by the courts or by the
husband, and when the wife gives moderate donations for charity. Having failed to establish that
any of these circumstances occurred, the Wongs may not bind the conjugal assets to answer for
Katrina’s personal obligations to them.

14. An individual, while single, purchases a house and lot in 1990 and borrows money in
1992 to repair it. In 1995, such individual gets married while the debt is still being paid.
After the marriage, is that debt still the responsibility of such individual? (10%) 

Answer: 2007 Bar Examination

No. The absolute Community of property is liable for the ante-nuptial debts of either
spouse in so far as the same redounded to the benefit of the family (Art. 94 par.7, FC).

ALTERNATIVE ANSWER:

No. The debt is already the responsibility of the community property, because the
property already constitutes absolute community property under Art. 91 of FC which
took effect in 1988 while the house and lot here involved was purchased in 1990. There is no
indication that the spouse who bought the property had legitimate descendants by a former
marriage, which would exclude the house and lot from the community property, Art. 92 par 3,
FC.

15. Danny and Elsa were married in 2002. In 2012, Elsa left the conjugal home and her two
minor children with Danny to live with her paramour. In 2015, Danny sold without Elsa’s
consent a parcel of land registered in his name that he had purchased prior to the
marriage. Danny used the proceeds of the sale to pay for his children’s tuition fees. Is
the sale valid, void or voidable? Explain your answer. (10%)

Answer: 2017 Bar Examination

The sale is void because the subject property is a community property which was sold without
the consent of one of the spouses. Since the marriage of Danny and Elsa was celebrated during
the effectivity of the Family Code without a marriage settlement, their property regime is
absolute community of property, which is the property regime that applies by default under the
Family Code in the absence of a marriage settlement.

Under the regime of absolute community, properties acquired by the future spouses
prior to the celebration of the marriage shall become community.
Under the regime of absolute community, the disposition or encumbrance of community
property must have the written consent of the other spouse or the authority of the
court without which the disposition or encumbrance is void. Here, the sale of the
absolute community by the husband without the consent of the wife or the authority of
the court renders the sale void, whatever may be the reason for such sale. The husband should
have obtained court authorization in selling the community property for the purpose of using
proceeds thereof to pay his children’s tuition fees. (Basis: Art. 75, 91, and 96, Family Code;
discussed in pages 145, 147 and 153, Volume I, Rabuya Civil Law Reviewer).

16. A and B are married. They have two children. During the marriage, they acquired
properties. A died, hence, B got married to C. Do the properties of B which were
acquired in the previous marriage with A form part of the absolute community of property
in her marriage with C? Why? (10%).

Answer: Albano, p. 117.

No. Under the law, property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits, as well as the income, if any, of such property
is excluded from the absolute community of property. (Art. 92[3], F.C.). The reason for the law is
that, the interests of the legitimate children in the first marriage are supposed to be protected. 

Here, there are legitimate descendants of B by his former marriage.

17. Spouses Arturo and Esther Abalos are the registered owners of a parcel of land. Armed
with a Special Power of Attorney, Arturo executed a Receipt and Memorandum of
Agreement (RMOA) dated October 17, 1989, in favor of Dr. Galicano Macatangay, Jr.,
binding himself to sell to him the subject property and not to offer the same to any other
party within thirty (30) days from date. Subsequently, Arturo’s wife, Esther, executed a
Special Power of Attorney appointing her sister, Bernadette Ramos, to act for and in her
behalf relative to the transfer of the property to Dr, Macatangay. OnNovember 16, 1989,
Esther, through her attorney-in-fact, executed in favor of Dr. Macatangay, a Contract to
Sell the property to the extent of her conjugal interest therein for the sum of six hundred
fifty thousand pesos (P650,000.00). Esther agreed to surrender possession of the
property to respondent within twenty (20) days from November 16, 1989, while the latter
promised to pay the balance of the purchase price in the amount of one million two
hundred ninety thousand pesos (P1,290,000.00) after being placed in possession of the
property. Esther also obligated herself to execute and deliver to respondent a deed of
absolute sale upon full payment. However, Arturo and Esther failed to deliver the
property which prompted Dr. Macatangay to file a complaint for specific performance
with damages against Arturo and Esther. The Regional Trial Court (RTC) dismissed the
complaint for specific performance. It ruled that the Special Power of Attorney (SPA)
ostensibly issued by Esther in favor of Arturo was void as it was falsified. On appeal
taken by Dr. Macatangay, the Court of Appeals reversed the decision of the trial court. It
ruled that the SPA in favor of Arturo, assuming that it was void, cannot affect the
transaction between Esther and Dr. Macatangay. The appellate court ratiocinated that it
was by virtue of the SPA executed by Esther, in favor of her sister, that the sale of the
property to respondent was effected. On the other hand, the appellate court considered
the RMOA executed by Arturo in favor of respondent valid to effect the sale of Arturo’s
conjugal share in the property. Is the Court of Appeals correct in ruling that a contract to
 sell is a contract of sale, and in ordering petitioner to execute a registrable form of deed
of sale over the property in favor of respondent? (10%)

Answer: Abalos vs. Macatangay, Jr., G.R. No. 155043, September 30, 2004.

No. More significantly, it has been held that prior to the liquidation of the conjugal
partnership, the interest of each spouse in the conjugal assets is inchoate, a mere
expectancy, which constitutes neither a legal nor an equitable estate, and does not
ripen into title until it appears that there are assets in the community as a result of the
liquidation and settlement. The interest of each spouse is limited to the net remainder
or remanente liquido (haber ganancial) resulting from the liquidation of the affairs of
the partnership after its dissolution. Thus, the right of the husband or wife to one-half
of the conjugal assets does not vest until the dissolution and liquidation of the conjugal
partnership, or after dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left which can be divided between the
spouses or their respective heirs. In the instant case, there was no liquidation yet of the conjugal
partnership. Thus, neither Arturo nor Esther vests title to their one-half conjugal assets.

18. X and Y are married. A, father of X, donated a parcel of land to him. Is the property a
part of the absolute community of property or exclusive property of X? Explain. (10%)

Answer: Albano, p. 117; Villanueva vs. IAC, 192 SCRA 21

It is, as a general rule, an exclusive property of X, except if the donor has provided in the deed
of donation that such property shall form part of the absolute community of property. (Art. 92[1],
FC).

In Villanueva vs. IAC, 192 SCRA 21, the Supreme Court said the regardless of the time when
the donation was made, such property is a part of the exclusive property of the donee-spouse.

Here, the parcel of land was donated by the father to her son X.

19. As finance officer of K and Co., Victorino arranged a loan of P5 Million from PNB for the
corporation. However, he was required by the bank to sign a Continuing Surety
Agreement to secure the repayment of the loan. The corporation failed to pay the loan,
and the bank obtained a judgment against it and Victorino, jointly and severally. To
enforce the judgment, the sheriff levied on a farm owned by the conjugal partnership of
Victorino and his wife Elsa. Is the levy proper or not? (10%)

Answer: 2000 Bar Exam; Ayala Investment v. Ching, 286 SCRA 272

No. The levy is not proper there being no showing that the surety agreement executed by the
husband redounded to the benefit of the family. An obligation contracted by the husband alone
is chargeable against the conjugal partnership only when it was contracted for the benefit of the
family. When the obligation was contracted on behalf of the family business the law presumes
that such obligation will redound to the benefit of the family. However, when the obligation was
to guarantee the debt of a third party, as in the problem, the obligation is presumed for the
benefit of the third party, not the family. 
Hence, for the obligation under the surety agreement to be chargeable against the partnership it
must be proven that the family was benefited and that the benefit was a direct result of such
agreement.

Cases for Q5

Case 1: Estanislao Serrano v. Melchor Solomon 105 Phil. 998

FACTS: A man, prior to his marriage, made a donation in a public instrument, in favor of his
future wife, with the condition that should she die before him and there be no children, 1/2 of the
properties donated shall be given to the natural guardians of his wife. Nine months after the
wedding, the wife died without issue. The natural guardians now claim the ½ share given to
them in the deed.

The issue to be resolved in this case is whether the donation made by A can be considered as
donation propter nuptias.

HELD: 

The natural guardians cannot get said share.

Insofar as said share is concerned, the alleged donation to them cannot be a valid donation
propter nuptias nor a donation inter vivos nor a donation mortis causa: not a donation propter
nuptias because said share was not given to one of the spouses (Art. 126, Civil Code, now Art.
82, Family Code); not a donation inter vivos, for there was no acceptance on the part of said
natural guardians (Art. 749, Civil Code), and not a donation mortis causa because the deed of
donation did not have the formalities of a will aside from the fact that the donor is still alive.
———————————————————————————————-
The issue to be resolved in this case is whether the donation made by A can be considered as
donation propter nuptias.

No. The action will not prosper.

The donation cannot be considered as a donation propter nuptias, because, assuming that it
was made in consideration of the marriage, still it was not made in favor of the wife, but rather in
favor of those who had reared her. That does not place it within the purview of Art. 82 of the FC.

If it is a donation inter vivos, it cannot be considered valid and effective because it was never
accepted by the donee either in the same instrument of donation or in a separate document as
required by law. 

If it is a donation mortis causa, it cannot also be considered valid and effective for the reason
that a donation to take effect after the death of the donor is equivalent to a disposition or
bequest of property by last will, and therefore, it should be executed in accordance with the
formalities prescribed by law for the execution of wills.
In the case of Serrano vs Solomon, the donor is still alive, and assuming that the donation is
valid, still the time and occasion have not yet arrived for considering its operation and
implementation.

In the present case, the donation of the husband is not in favor of the wife. It was also not
accepted by the donee and it was not executed in accordance with the formalities prescribed by
law for the execution of will.

Hence, the donation cannot be considered as donation propter nuptias, donation inter vivos,
and donation mortis causa.

Case No. 2: FLORES VS Lindo

On October 31, 1995, the woman obtained a loan secured by a Real Estate Mortgage over a
real property under their names but without the consent of the husband. She issued checks as
partial payments but the same were dishonored, hence, the creditor filed a complaint for
Foreclosure of the Mortgage with damages. The RTC dismissed the case as the mortgage was
executed without the consent of the husband even as it noted that he executed a Special Power
of Attorney for the wife to execute the mortgage on November 4, 1995. The RTC however ruled
that the subsequent execution of the SPA cannot be made to retroact to the date of the
execution of the real estate mortgage. Is the ruling correct? Why? (10%)

Answer: Arturo Sarte Flores vs. Spouses Enrico & Edna Lindo

The issue to be resolved in this case is whether the ruling of the RTC that subsequent execution
of  SPA cannot be made to retroact to the date of the execution of the real estate mortgage is
correct. 

No, because the execution of the SPA can be considered as acceptance of the mortgage by the
other spouse that perfected the contract or continuing offer.

The Family Code provide that the powers of the administration do not include disposition or
encumbrance without the written consent of the other spouse. Any disposition or encumbrance
without the written consent shall be void. However, both provisions also state that “the
transaction shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance by the other
spouse before the offer is withdrawn by either or both offerors.” 

Here, the non-consenting husband executed an SPA after the execution of the real
estate mortgage which is considered his acceptance of the mortgage that perfected the contract
or continuing offer.

Case No. 3: CAstillo vs Pasco

H and W, husband and wife, bought a fishpond from X for P48,000.00, payable in three equal.
installments. The first installment was paid with funds belonging exclusively to W, while the
second and third installments were paid with funds which the two had borrowed from Y. In
securing the loan from Y, the couple used as security several parcels of land belonging
exclusively to W. What is the status of the fishpond? Reasons. (10%)

Answer: Jurado, p. 187; Castillo vs. Pasco, 11 SCRA 103

Answer: 

The issue to be resolved in this case is whether the fishpond of the spouses is under conjugal
partnership or paraphernal property of W.

The fishpond in the instant case is partly paraphernal and partly conjugal. It must be
observed that the amount borrowed by H and W from Y is conjugal in character and not
paraphernal. While it is true that the security is paraphernal, nevertheless, that does not affect
the status of the amount borrowed.

 In securing the loan, the spouses were acting for the benefit of the conjugal partnership and not
for the benefit of either of them. 

Consequently, since 1/3 of the purchase price of the fishpond was paid with paraphernal funds
and 2/3 were paid with conjugal funds, it is clear, applying the provisions of thefamily code, that
1/3 undivided share of such fishpond is paraphernal and the other 2/3 conjugal as stated in the
case of  Castillo vs. Pasco.

Case No. 4: Rosete vs Sheriff of Zambales

A husband was convicted, and to satisfy his civil liability, since he did not possess sufficient.
separate property, four parcels of land belonging to the conjugal partnership were sold. Out of
the P1,385 the husband was supposed to pay, only a portion was paid from the proceeds of the
sale and there remained a balance of P793. In the meantime, two parcels were redeemed by
the wife with the money she obtained from her father. Later, the sheriff attached said parcels
and sold the same on execution to satisfy the balance. The wife wants now to cancel the sale
on the ground that the redeemed parcels are to be considered paraphernal and should
therefore, not have been levied upon. Whether or not the sale of the parcels of land be canceled
or annulled. (10%)

Answer: Paras, p. 570; Rosete vs. Sheriff of Zambales, 95 Phil. 560

The issue to be resolved is whether the parcels of land is under the conjugal partnership or
paraphernal property.

The sale should be annulled because the parcels are paraphernal. The right of redemption is
not the same as the right of a successor in interest in cases of execution of judgment. Under the
Family Code, the following shall be the exclusive property of each spouse, that which is
acquired by right of redemption while Rules of Civil Procedure provides as to whom may
redeem real property so sold, is the judgment obligor, or his successor in interest in the whole or
any part of the property.

 In the case of Rosete vs. Sheriff of Zambales, the Supreme Court held that the term successor
in interest appearing in subdivision includes, one who succeeds to the interest of the debtor by
operation of law or the wife as regards her husbands homestead by reason of the fact that some
portion of her husband’s title passes to her and a property is deemed to belong exclusively to
the wife when acquired by her by-right of redemption, and with money belonging exclusively to
her.

In the instant case, the wife redeemed the property, not in behalf of her husband, but in her own
behalf as her husband’s successor- in- interest in the whole or part of the property, it being then
conjugal. Having been obtained in her own right of redemption with money belonging
exclusively to her, said property becomes paraphernal. It thus ceased to be conjugal property, it 
cannot be levied on by virtue of a judgment affecting exclusively the personal liability of the
husband.

Case No. 5: Vda De PAdilla vs Paterno

H and W, husband and wife, constructed a P400,000.00 house on a P100,000.00 lot belonging
to W. The funds used for the construction belonged to the conjugal partnership. Two years later,
the partnership was dissolved by the death of W. By then, the value of the house and lot had
gone up to P700,000.00. In the liquidation of the conjugal partnership properties, to whom shall
you adjudicate the house and lot? Explain your answer. (10%)

Answer: Jurado, pp 200- 201; Vda. de Padilla vs. Paterno, 113 Phil. 656

The issue to be resolved in this case is whether the house and lot is under the conjugal
partnership or paraphernal property.

Since the cost of the house made by the conjugal partnership on the lot of W and the resulting
increase in the value of the whole property are more than the value of the lot of W, the entire
property shall become conjugal and should, therefore, be adjudicated to the conjugal
partnership.

This is so by virtue of the provision under the FC. It must be observed, however, that as far as
the lot is concerned, its conversion from paraphernal to conjugal property is subject to the
suspensive condition that its value shall be reimbursed to the estate of W at the time of
liquidation of the conjugal partnership. Consequently, before we can say that the property has
already been converted into conjugal property, it is essential that the conjugal partnership shall
pay P100,000.00 to the estate of W. 

No, the lot would be paraphernal. In other words, the provision of the family code is applicable
only if the building is still existing at the time of the liquidation of the conjugal partnership.
Hence, if such building is destroyed before such liquidation, the provision is no longer
applicable, in such case the lot is still paraphernal.

Case No. 6: Dael vs IAC

Less than a year after Marilyn’s death, her husband, Johnny, married Susan without liquidating
their conjugal partnership. The couple were engaged in the transportation business and in the
copra business which started during the first marriage. Johnny died. The first marriage existed
for 15 years while the second marriage existed for 14 years. The lower court held that the
properties left belonged to the first marriage. Is the lower court correct? (10%)

Answer: Jurado, p. 205; Dael vs. IAC, 171 SCRA 524

The issue to be resolved in  this case is whether the transportation business, copra business
and all properties acquired in the second marriage belonged to the conjugal partnership of the
first marriage.

No, the lower court is not correct. 

In Dael vs. IAC, the Supreme Court held that after the first marriage was dissolved, the fruits or
income derived from the properties would no longer be conjugal but would belong to the heirs.
The fruits and income of the husband’s inheritance and conjugal shares after the dissolution of
the first marriage, form part of the conjugal property of the second marriage. The first marriage
existed for 15 years while the second marriage existed for 14 years. The property should be
divided in proportion to the duration of each marriage and to the property of the of the respective
spouses.

The first marriage should receive 15/29 while the second marriage will get 14/29 thereof as
stated in the case of Dael vs. IAC.

Case No. 7: Carino vs Carino

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted
by the deceased SPO4 Santiago S. Cariño, whose “death benefits” is now the subject of the
controversy between the two Susans whom he married. During the lifetime of the late SPO4
Santiago S. Cariño, he contracted two marriages, the first was on June 20, 1969, with petitioner
Susan Nicdao Cariño and the second was on November 10, 1992, with respondent Susan Yee
Cariño with whom he cohabitated starting way back in 1982. In 1988, SPO4 Santiago S. Cariño
became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed
away on November 23, 1992, under the care of Susan Yee, who spent for his medical and
burial expenses. Both petitioner and respondent filed claims for monetary benefits and financial
assistance pertaining to the deceased from various government agencies. Petitioner Susan
Nicdao was able to collect a total of P146,000.00 from “MBAI, PCCUI, Commutation,
NAPOLCOM, [and] Pag-ibig,”  3  while respondent Susan Yee received a total of P21,000.00
from “GSIS Life, Burial (GSIS) and burial (SSS).”  

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of
money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to
her at least one-half of the one hundred forty-six thousand pesos (P146,000.00). Respondent
Susan Yee admitted that her marriage to the deceased took place during the subsistence of,
and without first obtaining a judicial declaration of nullity of, the marriage between petitioner and
the deceased. She, however, claimed that she had no knowledge of the previous marriage and
that she became aware of it only at the funeral of the deceased, where she met petitioner who
introduced herself as the wife of the deceased. To bolster her action for collection of sum of
money, respondent contended that the marriage of petitioner and the deceased is void ab initio
because the same was solemnized without the required marriage license. Is the Susan Yee
entitled to one-half of the P146,000.00? (10%)

Answer: Rabuya, pp. 497-499; Cariño vs. Cariño, G.R. No. 132529. February 2, 2001

The issue to be resolved in this case is whether Susan Yee is entitled to claim half of the claim
of Susan Nicdao.
No, Susan Yee is not entitled to the one-half of the P146,000.00.

Under the Family Code, the absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such previous marriage void.
Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes
of contracting a second marriage, the sole basis acceptable in law, for said projected marriage
to be free from legal infirmity, is a final judgment declaring the previous marriage void.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao
and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, 
and the absence thereof, subject to certain exceptions, renders the marriage void ab initio. 

In the case at bar, there is no question that the marriage of petitioner and the deceased does
not fall within the marriages exempt from the license requirement. A marriage license, therefore,
was indispensable to the validity of their marriage.

The declaration in the instant case of nullity of the previous marriage of the deceased and
petitioner Susan Nicdao does not validate the second marriage of the deceased with
respondent Susan Yee. The fact remains that their marriage was solemnized without first
obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased
void. Hence, the marriage of respondent Susan Yee and the deceased is void ab initio. One of
the effects of the declaration of nullity of marriage is the separation of the property of the
spouses according to the applicable property regime.  Considering that the two marriages are
void ab initio, the applicable property regime would not be absolute community or conjugal
partnership of property, but rather, be governed by the Property Regime of Unions Without
Marriage.

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous
marriage, having been solemnized during the subsistence of a previous marriage then
presumed to be valid, the application of Article 148 is therefore in order.

The disputed P146,000.00 is from governmental agencies earned by the deceased as a police
officer. Hence, they are not owned in common by respondent and the deceased, but belong to
the deceased alone and respondent has no right whatsoever to claim the same. By intestate
succession, the said “death benefits” of the deceased shall pass to his legal heirs. And,
respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the
Family Code governs. This article applies to unions of parties who are legally capacitated and
not barred by any impediment to contract marriage, but whose marriage is nonetheless void for
other reasons, like the absence of a marriage license.

As regards to the first marriage, the marriage between Nicdao and SPO4 is null and void due to
absence of a valid marriage license. Nicdao can claim the death benefits by the deceased even
if she did not contribute thereto. Article 147 creates a co-ownership in respect thereto, entitling
Nicdao to share one-half of the benefits. As there is no allegation of bad faith in the first
marriage, she can claim one-half of the disputed death benefits and the other half to the
deceased’ to his legal heirs, by intestate succession.
————————————
ISSUE: Whether or not Yee can claim half the amount acquired by Nicdao.

RULING:

No. SC held that the marriage between Yee and Cariño falls under the Article 148 of the Family
Code, which refers to the property regime of bigamous or polygamous marriages, adulterous or
concubinage relationships.
 
As regards to the first marriage, Article 147 Family Code-Property Regime of Union without
Marriage. When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the rules on co-ownership. In
the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. 

When only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. In the absence of descendants, such share
shall belong to the  innocent party. In all cases, the forfeiture shall take place upon termination
of the cohabitation.”

As regards to the Second marriage between Yee and SPO4 Santiago, Article 148 Family Code
or rules on co-ownership regarding bigamous marriages. In cases of cohabitation not falling
under the preceding Article, only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and evidences of credit.

The marriage between Yee and SPO4 is null and void for the same has been solemnized
without the judicial declaration of the nullity of the marriage between Nicdao and SPO4. Under
Article 40, if a party who is previously married wishes to contract a second marriage, he or she
has to obtain first a judicial decree declaring the first marriage void, before he or she could
contract said second marriage, otherwise the second marriage would be void. However, for
purposes other than to remarry, no prior and separate judicial declaration of nullity is necessary.

Case No. 8: Agapay vs Agapay

A parcel of land was acquired by Miguel and Erlinda who got married while Miguel’s marriage
with Carlina was still subsisting. The question was what law governs the acquisition of such
property. Can Erlinda be considered a co-owner since there is no showing of her contribution to
the acquisition of the same considering that she was only 20 years old then? Why? (10%)

Answer: Albano, pp. 147-148; Agapay vs. Palang, G.R. No. 116668, July 28, 1997, 85 SCAD
145
No. Erlinda cannot be considered a co-owner.

Under Art. 148, Family Code, provides that in cases of cohabitation of man and woman who are
incapacitated to marry each other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, only the properties acquired by both of the
parties through their actual joint contribution of money, property or industry shall be owned by
them in common in proportion to their respective contributions. Actual contribution is required by
Art. 148, F.C. in contrast to Art. 147, F.C. which states that efforts in the care and maintenance
of the family and household are regarded as contributions to the acquisition of common property
by one who has no salary or income or work or industry. If actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares. (Agapay vs. Palang,
G.R. No. 116668, July 28, 1997, 85 SCAD 145).

In this case, Art. 148, FC applies since Miguel and Erlinda’s marriage is void for being bigamous
because Miguel contracted marriage to her while his marriage to Carlina was still subsisting.
The property relation cannot be considered governed by the law on co-ownership since Erlinda
failed to prove that she contributed money to the purchase of the parcel of land.