Persons and Family Relations
2nd Exam
LECTURE 2.1
THE FAMILY CODE OF THE PHILIPPINES
 It applies and took effect on August 3, 1988
Applicability
 ARTICLE 254. Titles III, IV, V, VI, VIII, IX, and XV of Book
1 of RA No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Article 17, 18, 19, 27. 28, 29.
30, 31, 39, 40, 41 and 42 of PD No. 603, otherwise known
as the Child and Youth Welfare Code, as amended, and all
laws, decrees, executive orders, proclamations, rules and
regulations, or parts thereof, inconsistent herewith are
hereby repealed. (n)
 ARTICLE 256. This Code shall have retroactive effect
insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other
laws. (n)
 Effectivity: August 3, 1988.
 Atty: Take note of the provisions that we’ve already
discussed. You already know this that the provisions of the
Family Code will have prospective application from the date
of its effectivity and that it will only have a limited
retroactive effect insofar as it does not prejudice or impair
vested or acquired rights. We’ve already discussed that in
the case of Atienza v. Brillantes.
 These are the provisions under the NCC which have been
repealed and the provisions now under the FC will govern
these matters.
TITLE I
MARRIAGE
CHAPTER 1
Requisites of Marriage
 When I say that we’re going to discuss the requisites of
marriage, we’re going to discuss the matters regarding the
essential as well as the formal requisites and what are
certain exceptions recognized by law.
CASE: FALCIS III VS. CIVIL REGISTRAR GENERAL GR NO.
217910, SEPT. 3, 2019
EVOLUTION ON THE CONCEPT OF MARRIAGE
When marriage was based on a formal contractual
relationship among kinship groups
The right to own land and pass it on to heirs meant that women’s
childbearing abilities and male domination became more important.
Rather than kinship, marriage became the center of family life and was
increasingly based on a formal contractual relationship between men,
women, and their kinship groups. The property and gender
implications of marriage are evident in the exchange of gifts between
spouses and families and clearly defined rules about the rights and
responsibilities of each marital partner.
Women treated as a form of property
During the Middle Ages, economic factors influenced marital choices
more than affection, even among the poor, and women’s sexuality was
treated as a from of property. Wealth and power inequalities meant
that marriages among the elite and/or governing classes were based
largely on creating political alliances and producing male children.
Ensuring paternity became important in the transfer of property to
legitimate heirs, and the rights and sexuality of women were
circumscribed. Ideologies of male domination prevailed, and women,
especially those who were marries to powerful men, were typically
treated like chattel and given very few rights. Consequently, this has
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placed great significance on procreation as a purpose or end of the
family.
 This case is Consti 1 case. It talks about the
constitutionality of the FC because in this case Falcis III
and everyone who petitioned before the SC, they
questioned the constitutionality of the FC. Because
allegedly, this guy along with other people who wanted to
question the validity of the FC assailed its validity because
its concept of marriage was against or violative of the rights
of those who identify as and belong to the LGBT cluster
community.
 They said that because of the provisions under the FC
allowing marriage only between male and female, that goes
against the concept of marriage as a whole which should be
allowed and extended even in favor of those who are
members of the LGBT community.
 So they were saying, as it stands, the provisions under the
FC were against the interest of those who want to contract
same sex marriage.
 This case was brought about I think because of the
pronouncement made in the US. The US SC actually
decided in their federal court, they decided that actually
there should be marriage equality and in recognizing that
marriage equality all laws in the US allegedly which
prohibits this marriage equality was unconstitutional.
Therefore, same sex marriage should be allowed.
 Inspired by the development of that case, they filed this
petition assailing the validity of the provisions under the FC
which limits the marriage only between man and woman.
 But take note that the SC held that, the recourse should
properly be legislative and because of the requisites of
judicial review, etc., scrutinizing the constitutionality of a
law, the petition was not given due course.
 As recognized, the SC emphasized that it is completely
constitutional to limit, at least as of now, our concept of
marriage only between man and woman.
 So take note that, the important matters that we can take
from the ruling of the SC in this case is the introduction of
the SC of the evolution on the concept of marriage.
EVOLUTION ON THE CONCEPT OF MARRIAGE
18th century transformation; industrialization
Then, in the 18th century, women and children were seen as capable of
operating factory machinery and, thus entered the factory labor
system to meet the surge in the demand of the workers. This
potentional for economic, independence altered families by making
children less reliant on families for their survival and women freer from
male domination.
Eventually, the economic transition that came with the spread of
industrialization resulted in massive social, geographical, and familial
changes:
Industrialization shifted populations from rural to urban areas in search
of work; for example, in 1830 most Americans still lived in rural areas
and were employed in farming, but by 1930, most lived in towns and
cities and were engaged in non-farming occupations. Urbanization,
immigration, and adjustment to the industrial labor market took a toll
on the stability of families. Industrial production undermined the
family-based economy, food production technologies reduced the need
for farmers, and essentials once produced by families were now
produced in massive quantities in factories. New professional
institutions emerged (e.g., public schools, hospitals) and assumed
responsibility for many of the functions once fulfilled by families,
ultimately making people less dependent on the family and leading
some social scientists to predict its demise.112
This reorganization of work in the industrial economy "disrupted the
gender order of many families by pulling women into the paid labor
force and spawning new visions of gender equality."113 As a
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2nd Exam
consequence, marriage based on free choice, romantic love, and
companionship developed.
The modern family
A nuclear, marriage-based entity in which men provided economically
for their families and women performed housework and took care of
children. . . . Socially defined notions of masculinity and femininity
reflected these gendered family roles; for example, men were
characterized as being naturally aggressive and rational—traits
valuable in the competitive area of work—and women as being
essentially submissive, domestic, and nurturing.
ARTICLE 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
 The definition of marriage should be put into heart.
 So only with respect to property relations, only with respect
to the matters involving the property relations between
husband and wife, that is the only matters that the law
recognizes and allows for the contracting parties to limit
their marriage. All other incidents of marriage will not be
based on the stipulation or agreement of the contracting
parties.
 Now based on this very meaty definition provided for under
Article 1, I want to tackle for important characteristics of
marriage that we might preseen from this definition.
Characteristics of Marriage:
1. Special contract of permanent union
 It remains settled that the State has a high stake
in the preservation of marriage rooted in its
recognition of the sanctity of married life and its
mission to protect and strengthen the family as a
basic autonomous social institution. Hence, any
doubt should be resolved in favor of the existence
and continuation of the marriage and against its
dissolution and nullity. Presumption is always in
favor of the validity of marriage. Semper
praesumitur pro matrimonio (Alcazar v. Alcazar)
 That is why, you will always encounter this presumption
which will be repeated in a lot of cases that will be
discussed, that any doubt with respect to the validity of that
marriage should be resolved and ruled in favor of the
existence and continuation of the marriage and against its
dissolution and nullity.
 Therefore, the presumption that we will be observing is that,
this is the presumption which is always in favor of the
validity of marriage.
 Take note that the first important characteristic is the fact
that marriage is actually a special contract of permanent
union.
 Read the distinctions of a contract of marriage and an
ordinary contract in your books.
 The more important matter that I want to highlight from this
characteristic that it is a special contract of permanent union
is the fact that in every marriage that is contracted by every
contracting parties, take note that a marriage does not
necessarily involve only the two persons (the husband and
the wife). Actually in marriage there are 3 persons that are
actually involve: the husband, wife and the State.
 This is a special contract in the sense that, it is a contract
imbued with public interest.
 So our public policy, public order requires, in our concept of
good customs and morality, all of these require a recognition
of the law that actually marriage is a special contract.
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2. Legal status
 According to Sempio-Dy: Marriage as a status
carries with it implications with 2 aspects: (1) the
aspect of personal rights and obligations of
the spouses [purely personal between them],
and (2) the aspect of their property relations
[regulated by law and judicial sanctions as they
may affect public interest].
 Article 2035 of the NCC provides that “No
compromise upon the following questions
shall be valid: (1) The civil status of persons
xxx”
 As you already know, being married is part and parcel of
one’s status.
 So as we’ve discussed in Article 15, it is determined by one’s
personal law—personal law of the country where he is a
citizen of. So that is where we apply the nationality principle.
 The manner as to husband and wife take care, maintain as
well as dispose of their conjugal or common property, take
note of that. That is part and parcel of their legal status of
being married.
 Their status as individuals will not only affect them but it
will also have a relationship between them and their
properties or the manner by which they deal with their
property relations.
 Take note that the civil status of a person will not be up for
stipulations. Its not up for compromise. They cannot agree
between them matters involving their status.
 So today you are married, tomorrow you are not married
anymore, that’s not up to compromise. That’s part and
parcel of feature of being married, as part of your legal
status.
3. Foundation of the family
 Action II. SECTION 12. The State recognize the
sanctity of family life and shall protect and
strengthen the family as a basic autonomous
social institution. It shall equally protect the life of
the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the
development of moral character shall receive the
support of the Government.
 Article XV. SECTION 1. The State recognizes the
Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively
promote its total development.
 SECTION 2. Marriage, as an inviolable social
institution, is the foundation of the family and shall
be protected by the State.
 In the definition of the FC, the FC implements the vision or
the guidelines setforth by our 1987 Constitution.
 So it is set in stone in these above articles how should
marriage be, and why should marriage be important in
relation to being the foundation of the family.
 That is why one of the matters discussed in the Falcis case
was that, the Constitution does not place gender as the
requirement of marriage. In fact, if you read Sec 2 of Art.
15, marriage is an inviolable institution, is the foundation of
the family and shall be protected by the State but at the
same time according to the petitioners in that case, marriage
is characterized by the 1987 Constitution which is a
inviolable social institution, it does not limit marriage only
between man and woman. So it is only the law, it is only
the FC that limits the concept of marriage as between
heterosexual couples.
 So logically, according to the SC, if you want to change the
concept of marriage, it is correct that marriage is recognized
and protected by the 1987 Constitution but if you want to
change the concept of marriage such that it will
accommodate non-heterosexual relationships or those
 Persons and Family Relations
2nd Exam
relationships which embrace to the LGBTQ community, then
your recourse should be legislative not judicial.
 Because insofar as the law stands, the law itself is
constitutional now even if at the same time it embraces a
limited concept of marriage insofar as only man and woman
are allowed to marry each other.
 So take note that these articles in the 198 Constitution
whereby rights cannot be acquired, the 1987 Constitution
require an implementing law.
4. Inviolable social institution
 Article 1 of the FC provides that marriage is “an
inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation.” It is an institution
of public order or policy governed by rules
established by law which cannot be made
inoperative by the stipulation of the parties.
(Acebedo v. Arquero)
 Article 2035 of the NCC provides that “No
compromise upon the following questions
shall be valid: (2) The validity of a marriage
or a legal separation; (3) Any ground for
legal separation; xxx”
 The parties themselves cannot agree that they will sever,
terminate or cancel their marriage. It is always and must be
in accordance with law.
 That is why as an inviolable social institution, take note,
especially in relation to the issue of divorce, because we
don’t have divorce law here in the Philippines, take note
that marriage as an inviolable social institution does not
mean that marriage cannot be severed. It can. Its just that
because of considerations of public order, public policy, the
rules established by law must be followed in relation to the
validity, severance or termination of a marriage.
 That is why the stipulations of the parties cannot be
controlling in considering whether or not they will keep their
marriage or not keep their marriage at all.
 In other jurisdictions take note that severing your marriage
or terminating marriage is as easy as going to the City Hall
or going before a judge or going before a lawyer and asking
to draft a divorce marriage settlement. That’s with respect to
other jurisdictions because they don’t place a lot of emphasis
on marriage as we do here.
 Again in this regard, I want to direct your attention and
place the provision of Art. 2035 of the NCC there for the
slide for your perusal.
REQUISITES OF MARRIAGE
ARTICLE 2. No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a
female; and
(2) Consent freely given in the presence of the solemnizing officer.
ARTICLE 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter
2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
 Requisites of marriage are divided into two: (1) Essential
requisites (Art. 2) , and (2) Formal requisites (Art. 3).
 As a warning, in order for us not to be repetitious in our
discussion, I will be correlating the provisions in Art. 2 and 3
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with respect to other relevant provisions that we have to
discuss.
 How do we apply Arts. 2 and 3 of the FC?
APPLICATION & CORRELATION
Essential Requisites: (Art. 2)
1. Legal capacity of the contracting parties (c.f. Art. 5)
2. Consent freely given in the presence of the solemnizing
officer.
Formal Requisites: (Art. 3)
1. Authority of the solemnizing officer (c.f. Arts. 7, 8, 10, 31,
32)
2. A valid marriage license except in the cases provided for in
Chapter 2 of this Title (c.f. Art. 9)
3. A marriage ceremony which takes place with the appearance
of the contracting parties before the solemnizing officer and
their personal declaration that they take each other as
husband and wife in the presence of not less than two
witnesses of legal age. (c.f. Art. 6)
 The legal capacity of this contracting parties must be male
and female. Correlate this with Article 5. We will discuss Arts
2 and 5 jointly.
 Authority of the solemnizing officer will cross reference with
Arts 7, 8, 10, 31, 32 for a holistic understanding. And we’ll
also be discussing Art. 29 but just in passing. Because we’ll
discuss it in depth later.
 The acquisition a valid marriage license as a rule, it is
required in relation to Art. 9 but there are also exceptions. I
will not be discussing those exceptions at this portion. We’ll
discuss them when we reach Chapter 2.
 And a requirement of a marriage ceremony in relation to Art.
6.
ESSENTIAL REQUISITES
(1) Legal capacity of the contracting parties
 Substantive requirement as to the capacity of persons to
enter into marriage
ARTICLE 5. Who may contract marriage?
1. Any male or female
 Art. 1 provides that marriage is a special
contract of permanent union between man
and a woman
 A person’s sex is an essential factor in marriage
and family relations. It is a part of a person’s legal
capacity and civil status. Xxxx The sex of a person
is determined at birth, visually done by the
birth attendant (the physician or midwife) by
examining the genitals of the infant. (Silverio v.
Republic)
2. Of the age of 18 years or upwards
 Below 18 y.o.—the marriage is void, even with the
consent of the parents (Art. 35(1))
 18-20 y.o.—additional requiremen of parental
consent (Art. 14)*
 21-below 25 y.o.—additional requirement of
parental advice (Art. 15)*
3. Not under any of the impediment mentioned in Arts.
37 (incestuous marriages) and 38 (marriages against
public policy)
 Applies Art. 39 of the NCC that one’s capacity to act is
limited by family relations.
 Under Art. 2 par. 1, the legal capacity of the contracting
parties who must be a male and female.
 Persons and Family Relations
2nd Exam
 So take note that this part of the provision under the FC, it
gives you the substantive requirement. It is a matter which
involves capacity—capacity of persons to enter into
marriage.
 So if you remember in our discussions in relation to Art. 37,
this is a part of a person’s capacity to act.
 Again, capacity to act is acquired, it is not inherent.
 So that is why if the person acquires the following attributes
then they may have the capacity to enter into marriage.
 What are these attributes that spell out the legal capacity of
the contracting parties to enter into marriage?
 Art. 5 answers the question who may contract marriage.
 So there are 3 important attributes that a person must
possess in order for them to acquire capacity to enter or to
contract marriage.
 Art. 2 par. 1 in relation to Art. 5 highlights the requirement
in relation to Art. 1.
 A contract of marriage is exclusive with respect to the nature
of the sexes of the contracting parties.
 One of the important distinctions between a contract of
marriage and an ordinary contract is that, in ordinary
contracts we don’t care about the sexes of the contracting
parties but since marriage is a special contract, then we care
about it. Because it is limited again to heterosexual
relationships between male and female.
 Who are male and female? Read the Silverio case.
 In that case, can a transsexual person marry her fiancé for
example. In relation to this, according to the provisions of
the FC, it is obvious that that marriage will be void for lack
of legal capacity because the marriage must be between
male and female. And the determination of the sex will be
the sex assigned to that person at birth. So it is biological
sexes.
 2nd attribute: So a person must be of legal age or must
acquire the age of majority for you to contract marriage at
the very least.
 A person must be of age such that that person must be at
least 18 y.o. and above.
 So there are important characterizations that we have to
highlight with respect to age. (See the notes from the slide
above)
 The fact the either one of the parties or both of them
already reached the age of 18, will it be enough in itself in
order to render that marriage completely valid? No.
 One of the effects if the person will not acquire the requisite
parental consent in relation to Art. 14 is that, that marriage
is rendered defective because of lack or absence of that
parental consent. Basis? Take note that you have to
correlate this further with Art. 45 par. 1 of the FC which
provides that, the marriage may be annulled if the requisite
parental consent was not secured by anyone of the
contracting parties who are between the ages of 18 to 20.
 So when you say that the marriage is annullable, we will
discuss later that voidable marriage is actually valid but it is
susceptible to termination later on.
 Just take note that being 18 y.o. already capacitates you to
marry and that marriage is valid. However, that marriage is
annullable and may be annulled later on because of the
absence of parental consent.
 The lack of parental advice will it constitute an infirmity in
the marriage or lack of legal capacity? No. In relation to Art.
4, we’ll be discussing that the requirement under Art. 15 of
parental advice it is only an irregularity with respect to
marriage. So this additional requirement does not affect
one’s legal capacity to contract marriage.
 But as of now, the minimum age for a person to contract
marriage is at least 18 yo.
 The third an important aspect of Art. 5 in relation to Art. 2
par. 1 is the requirement that there must be no legal
impediment or barrier mentioned under Arts. 37 and 38 for
one to contract marriage.
 This third requirement as part of one’s legal capacity to
contract marriage, this actually applies and highlights Art. 39
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of the NCC which we discussed. Because as we’ve discussed
before, one’s capacity to act may be limited by family
relations.
 You cannot marry your sibling because that is incestuous.
You cant marry your first cousins because that is the type of
marriage which is against public policy. These are legal
impediments.
 And the most obvious legal impediment, although not
mentioned in Art. 5 is the fact that you are already married.
So if you are already married, you cannot contract another
marriage. That status of being married will already limit your
capacity to enter into another marriage because of the
subsistence of another marriage.
 Take note legal capacity under Art. 2 par. 1 correlate it with
the provision under Art. 5.
(2) Consent freely given
 “Freely given” consent requires that the contracting
parties willingly and deliberately enter into marriage.
 Consent must be real in the sense that it is not
vitiated nor rendered defective by any of the vices
of consent under Arts. 45 and 46 of the FC, such
as fraud, force, intimidation, and undue influence.
 Consent must also be conscious and
intelligent, in that the parties must be capable of
intelligently understanding the nature of, and both
the beneficial or unfavorable consequences of
their act. Their understanding should not be
affected by insanity, intoxication, drugs or
hypnotism. (Republic v. Albios)
 Where given? Before the solemnizing officer
 How given? The parties must “appear personally before the
solemnizing officer and declare in the presence of not less
than two witnesses of legal age that they take each other as
husband and wife” (during the marriage ceremony referred
to in Art. 6)
 Defective marriages:
 Sta. Maria: Marriage by proxy solemnized here in
the Philippines is likewise 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 declare before the solemnizing officer
that they take each other as husband and wife.
 A marriage in jest is a pretended marriage, legal
in form but entered into as a joke, with no real
intention of entering into the actual
marriage status, and with a clear understanding
that the parties would not be bound. The
ceremony is not followed by any conduct
indicating a purpose to enter into such a relation.
It is pretended marriage not intended to be real
and with no intention to create any legal ties
whatsoever, hence, the absence of any genuine
consent. Marriages in jest are void ab initio,
not for vitiated, defective or unintelligent consent,
but for a complete absence of consent . There
is no genuine consent because the parties have
absolutely no intention of being bound in any way
or for any purpose. (Republic v. Albios)
 Republic v. Albios gives as requisites when a consent is
freely given.
 If fraud, force, intimidation and undue influence is attendant
in giving one’s consent, in relation to Arts. 45 and 46, the
marriage is defective. It is valid but it is voidable.
The status of the marriage is voidable.
 Because of the attendance of vices of consent in relation to
Arts. 45 and 46, consent is not real and therefore consent is
defective. There is consent but that consent is infirm. Its not
really real.
 Persons and Family Relations
2nd Exam
 Insanity, intoxication, drugs and hypnotism will render the
marriage defective.
 Again, what we’re talking about is the consent freely given.
 For as long as the person consented to be married, then you
comply with those essential requisites. For as long as the
consent is present.
 But if the consent is present and later on it is found that that
consent which was actually given is not actually real, or
conscious or intelligent, take note that the marriage is not
void. It is voidable. It is valid until annulled. Parties may
annul the marriage based on the grounds provided by Arts.
45 and 46.
 All that the essential requisite under Art. 2 par. 2 requires is
the presence of consent freely given.
 Consent freely given would be useless if it is not given
before a solemnizing officer because there is a manner by
which this declaration should be made.
 How should it be made? See notes from the slides above.
 The most important aspect of marriage ceremony is actually
the declaration that the husband takes the wife and vice
versa. They take each other as spouses when they contract
into that marriage.
 That declaration is important because that is the
manifestation, that is how you see that consent is freely
given because consent is a concept of the mind. You will not
really know if the parties really consented or not unless you
have a device that will read minds. But ordinarily since we
are not able to do that, the manifestation of the consent is
important.
 And take note, this manifestation must be made before the
solemnizing officer and through the personal declaration
before the presence of two witnesses of legal age that they
take each other as husband and wife. That is how the
consent of the contracting parties will be manifested.
 That is why, if this consent is not present or this consent is
not properly declared, it may render the marriage defective.
Meaning, it may render the marriage void.
 Defective marriages which renders the marriage void. See
notes from the slides above.
 In marriage by proxy, there is no personal declaration to
that effect. Therefore, their consent freely given, no matter
how much they love each other, that is not manifested in
that marriage ceremony.
 That proxy cannot say ‘for and in behalf of the husband I’m
saying that the husband takes you as the wife’ .
 That marriage by proxy is considered null and void.
 In marriage in jest, a mere ceremony is not sufficient
because the ceremony is not followed by any conduct
indicating a purpose to enter into such relation.
 Because of the absence of consent freely given, marriage in
jest is considered as null and void.
 Mere signing of a marriage contract with nothing at all
succeeding that, that is an example of marriage in jest.
Are the motives of the parties relevant?
 No. Motives do not affect one’s consent.
 Rabuya: As a general rule, the law will not look behind the
appearance of a consent which was clearly manifested to
determine its reality. Secret mental reservations of a party
will not be inquired into, nor will the motives inducing the
apparent consent ordinarily be examined.
 Motives for entering into a marriage are varied and complex.
The State does not and cannot dictate on the kind of life
that a couple chooses to lead. Any attempt to regulate their
lifestyle would go into the realm of their right to privacy and
would raise serious constitutional questions. The right to
marital privacy allows married couples to structure their
marriages in almost any way they see fit, to love together or
live apart, to have children or no children, to love one
another or not, and so on. Thus, marriages entered into for
other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they
comply with all the legal requisites, are equally valid. Love,
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though the ideal consideration in a marriage
contract, is not the only valid cause for marriage .
Other considerations, not precluded by law, may validly
support a marriage. (Republic v. Albios)
 Consent is different from motive.
 Consent is the intention.
 Whatever reasons that you may have to enter into that
marriage, that’s all well and good, those are the reasons that
you have for as long as you consent and intend to be
married that is the minimum requirement under the law. We
will not inquire as to the motives of the contracting parties.
FORMAL REQUISITES
 The most important requisite is the authority of the
solemnizing officer. That’s Art. 3 par. 1.
 In this first paragraph or first instance, the authority of the
solemnizing officer, this formal requisite will be explained by
Art. 7, 31, 32, 10, as well as Art. 8. Which Art 8 also cites
Art. 29.
 We will be correlating these provisions now.
(1) Authority of the solemnizing officer
ARTICLE 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's
jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with the
civil registrar general, acting within the limits of the written authority
granted by his church or religious sect and provided that at least one
of the contracting parties belongs to the solemnizing officer's church or
religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in
Article 31;
(4) Any military commander of a unit to which a chaplain is assigned,
in the absence of the latter, during a military operation, likewise only in
the cases mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul in the case provided in
Article 10.
ARTICLE 31. A marriage in articulo mortis between passengers or
crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight,
but also during stopovers at ports of call.
ARTICLE 32. A military commander of a unit, who is a commissioned
officer, shall likewise have authority to solemnize marriages in articulo
mortis between persons within the zone of military operation, whether
members of the armed forces or civilians.
ARTICLE 10. Marriages between Filipino citizens abroad may be
solemnized by a consul-general, consul or vice-consul of the Republic
of the Philippines. The issuance of the marriage license and the duties
of the local civil registrar and of the solemnizing officer with regard to
the celebration of marriage shall be performed by said consular official.
ARTICLE 8. The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church, chapel or
temple, or in the office the consul-general, consul or vice-consul, as
the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance
with Article 29 of this Code, or where both of the parties request the
solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn
statement to that effect.
FORMAL REQUISITES
ARTICLE 3. The formal requisites of marriage are:
(1) Authority of the c.f. Arts. 7, 8, 10
solemnizing officer;
 Persons and Family Relations
2nd Exam
ARTICLE 7. Marriage may be ARTICLE 8. The marriage  So if the solemnizing officer is already a retired member of
solemnized by: shall be solemnized: the judiciary, they do not have authority. So incumbent
dapat. That’s number 1.
(1) Any incumbent member of  Publicly in the  Second, in the opinion of Sempio-Dy, the authority of the
the judiciary within the court’s chambers of the judge solemnizing officer with respect to certain judges emanate
jurisidiction; or in open court from the jurisdiction of their court to which they are
(2) Any priest, rabbi, imam or  In the church, chapel assigned.
minister of any church or or temple or  So for example with respect to the members of the judiciary
religious sect: that belonged to the RTC or to the MTC, their authority to
 Duly authorized by his solemnize marriage actually emanates form their assignment
church or religious sect in the judicial region where they belong.
and  It is not allowed that an MTC Judge will go to Bukidnon to
 Registered with the civil solemnize marriage. Their authority emanates from their
registrar general court’s jurisdiction.
 Acting within the limits  That is why Art. 7 par. 1 tells you that the authority of the
of the written authority solemnizing officer insofar as the member of the judiciary is
granted him by his concerned, must be within the court’s jurisdiction.
church or religious sect  In relation to Art. 8 where should the marriage be
and solemnized?
 Provided that at least  It should be solemnized publicly in the chambers of the
one of the contracting judge or in open court.
parties belongs to the  Second, under Art. 7 par. 2, the requirements are
solemnizing officer’s mentioned above for them to have authority to solemnize
church or religious sect; marriages.
xxx xxx  The civil registrar will authorize them as having the capacity
 In the office of the to contract marriage. That is where their authority
(5) Any consul-general, consul consul-general, consul emanates.
or vice-consul in the case or vice-consul, as the  If you have a religious celebration, is that allowed? Does
provided in Article 10. case may be and not that produce legal effect because sir diba there’s a
 ARTICLE 10. elsewhere. separation of church and State, that is allowed because of
Marriage between the recognition under Art. 7 in relation to Art. 3 par. 1.
Filipino citizens  Art. 7 authorizes these persons or these solemnizing officers
abroad may be although they are religious figures, they have authority for
solemnized by a consul- as long as they are registered in the civil registrar.
general, consul or vice-  What if that person does not have authority? You will learn
consul of the Republic later on that the belief in good faith of the contracting
of the Philippines. parties that they had authority will validate the marriage. But
 What functions shall is enough that they are a priest, imam or minster okay, for
be performed by said as long as it appears that that formal requisite, their
consular official? authority as solemnizing officers are present, that is enough
1. The issuance of the to allow the marriage to become valid.
marriage license and  If later on they are not actually authorized because of the
2. The duties of the local fact that they were not registered by the civil registrar or
civil registrar and they do not actually belong to the religious sect, will they
3. The solemnizing officer have authority? As a general rule, no. So for lack of authority
in the celebration of the EXCEPTIONS: that marriage is void. But again there is an exception under
marriage a) In cases of marriages Art. 35 par. 2.
contracted at the point of death  So if ever this is a marriage which will be celebrated by this
or in remote places in accordance religious figures, where will the marriage be solemnized?
with Art. 29 of this Code, or Either in the church, chapel or temple. That’s the general
(b) Where both of the parties rule. Again, there are exceptions.
request the solemnizing officer in  Lets now jump to Art. 7 par. 5.
writing in which case the  What is Art. 10?
marriage may be solemnized at a  Class, for purposes of your exam, this is how I want to see
house or place designated by your answers. If the provisions says ‘as provided for in this
them in a sworn statement to article’, don’t just give me the article number, actually cite
that effect. what the article provides. So if this is how I explain it to you,
this is how I expect it as well that you will explain to me in
your answers in the exam.
 Again, formal requisites must be present.
 Take note that the authority of the solemnizing officers who
 The authority of the solemnizing officer insofar as member
are the consul-general, consul and vice-consuls, these are
of the judiciary is concerned, will be limited or determined by
not with respect to all types of marriages. These are only
two (2) conditions: (1) That he’s an incumbent member
limited to marriages between Filipino citizens abroad.
and (2) With respect to judges of the RTC and MTC, they
 So that means in the embassy abroad.
must solemnize marriage only within their court’s
 So if consul in the US will solemnize marriage between a
jurisdiction.
Filipino and a foreigner, is that allowed? No, not
 Art. 8 gives you the venue where the marriage will be
automatically at least. There are additional requirements
solemnized.
because of Art. 10.
 Let’s discuss these two (Arts 7 and 8). Because we’ll take
 The authority now of the consul-general is very limited. The
them together.
marriages between Filipino citizens and the marriages
 So the authority of the solemnizing officer who is a member
between Filipino citizens must be abroad.
of the judiciary, that member of the judiciary must be an
 So the condition that it must be abroad, that is also a
incumbent. So existing member of the judiciary.
limitation under Art. 10 in relation to Art. 7 par. 5.
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 Persons and Family Relations
2nd Exam
 For example if the consul general is away, not doing his duty
because of covid girepatriate siya balik diri sa Pilipinas, and
that consul general will celebrate the marriages between his
friends, the consul general will argue that ‘I am a
solemnizing officer under Art. 10’ is that correct? NO. He
does not have the authority to solemnize marriage here in
the Philippines. Art. 7 par. 5 in relation to Art. 10 grants the
authority of that solemnizing officer only with respect to
marriages between Filipino citizens and aborad, meaning
katong naa sa embassy.
 They are not authorized to solemnize marriage if they are
here in the Philippines.
 That is why Art. 8 provides that the marriage should be
solemnized in the officer of the consul-general, consul, vice
consul, as the case may be and not elsewhere.
 If you see Art. 8, these are the venues where these
marriages must be celebrated. There is a rule, the general
rule, that as the case may be kung judge sa public
chambers, kung religious figures in the church, chapel or
temple, kung consul-general, consul and vice consul in their
offices as the case may be.
 As applicable, kani ang mga venues kung asa icelebrate lng
sa mga solemnizing officer ang kani na mga types of
marriages under Art. 7.
 Take note, not elsewhere. So that is the general rule.
 But what is the exception? What are the instances where the
venue under Art. 8 will not be recognized? (See table for
exceptions)
 Will this be celebrated by these persons that we discussed
under Art. 7? NO.
 That is why if makit-an ninyo sa left, diri sa slide, to the left,
blangko because we will discuss that later.
 Kinsa ang makasolmenize ug marriage at the point of death
and remote places?
 Just for now, I want you to take note, that the venue under
Art. 8, dili ni sila ginarecognize with respect to marriages
contracted at the point of death or in remote places which
are solemnized by other solemnizing officers in accordance
with Art. 29.
 And this is another exception to Art. 8, where both of the
parties request the solemnizing officer in writing in which
case the marriage may be solemnized at a house or a place
designated by them in a sworn statement to that effect. (i.e.
beach wedding, garden wedding, etc)
 These ministers under Art. 7 par. 2 they are not
automatically allowed to solemnize marriage outside of their
church. They must acquire this written request made by
both of the contracting parties under Art. 8 that the
marriage will be solemnized at a place other than a church,
chapel or temple before that marriage ceremony may be
celebrated. Otherwise, there is a concomitant administrative
and even criminal sanction to these persons.
 So dili na siya automatic. There must be an affidavit, a
sworn statement to that effect requesting or making a
request from both of the contracting parties to celebrate the
marriage in a venue other than the venue provided for under
Art. 8.
 So take note the solemnizing officer under Art. 7 relate that
with the venue where the marriage will be solemnized under
Art. 8. As well as take note for the exceptions provided for
under Art. 8.
OTHER RULES ON SOLEMNIZING OFFICERS
Guidelines on the Solemnization of Marriage by the Members
of the Judiciary, Supreme Court Administrative Order No. 125-
07, (Aug. 9, 2007)
SECTION 1. Authority of the Solemnizing Officer—
a. Incumbent Justices of the Supreme Court, Court of
Appeals, Sandiganbayan and Court of Tax Appeals
have authority to solemnize marriages in any part of the
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Philippines, regardless of the venue, provided the requisites
of the law are complied with; and
b. Judges of the Regional Trial Courts, Metropolitan
Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial
Courts have authority to solemnize marriages within the
court’s jurisdiction.
Republic Act No. 7160 (Local Government Code)
 City mayors (Sec. 455) and municipal mayors (Sec. 444)
are authorized to solemnize marriages.
 Take note of the authority of these solemnizing officers
specifically members of the judiciary.
 Is the enumeration under Art. 7 exclusive? Or are there
other solemnizing officers? Yes there are. In relation to RA
7160, city mayors and municipal mayors are authorized to
solemnize marriages.
 Lets go the case of Navarro v. Domagtoy
CASE: NAVARRO VS. DOMAGTOY A.M. NO. MTJ-96-1088,July
19, 1996
 Under Art. 3, one of the formal requisites of marriage is the
“authority of the solemnizing officer.
 Under Art. 7, marriage may be solemnized by, among other,
“any incumbent member of the judiciary within the court’s
jurisdiction.” Art. 8, which is a directory provision, refers
only to the venue of the marriage ceremony and does not
alter or qualify the authority of the solemnizing officer as
provided in the preceding provision. Non-compliance
herewith will not invalidate the marriage.
 A priest who is commissioned and allowed by his local
ordinary to marry he faithful, is authorized to do so only
within the area of the diocese or place allowed by his
Bishop.
 An appellate court Justice or a Justice of this Court has
jurisdiction over the entire Philippins to solemnize marriages,
regardless of the venue, as long as the requisites of the law
are complied with.
 However, judges who are appointed to specific jurisdictions,
may officiate in weddings only within said areas and not
beyond. Where a judge solemnizes a marriage outside
of his court’s jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Art. 3,
which while it may not affect the validity of the
marriage, may subject the officiating official to
administrative liability.
 According in this case, noncompliance with the venue will
not invalidate the marriage. It is a mere irregularity in the
formal requisite of marriage allegedly but we’ll discuss newer
cases to that effect.
 What happens if a judge appointed in a specific jurisdiction
will solemnize outside of its jurisdiction, will that mean that
there is an absence of a formal requisite because they don’t
have the authority to solemnize marriage outside of their
court diba?
 According to this case, where a judge solemnizes a marriage
outside of his court’s jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Art. 3, which
while it may not affect the validity of the marriage, may
subject the officiating official to administrative liability.
 It’s a mere irregularity. Its not an absence of a formal
requisite.
 This irregularity while it may not affect the validity of the
marriage, it may subject the solemnizing officer to
administrative liability.
 I want to emphasize this because the case of Navarro is
different from the opinion of Sempio-dy. The opinion of
Sempio-dy is, the solemnizing officer does not have authority
to solemnize marriage even if that member from the
judiciary is from RTC or MTC and they solemnize the
marriage outside of their court’s jurisdiction. According to
 Persons and Family Relations
2nd Exam
Sempo-dy, if they do so, then that means they don’t have ruling coming from the SC nga naga ingon na, if the judge
authority. Since they don’t have authority, there is an solemnizes a marriage outside the jurisdiction of his court,
absence of formal requisite. And since there is an absence in that marriage is void. Wala pa tay ana na ruling.
the formal requisite, under Art.4, it renders the marriage  I want you to take note that despite the Keuppers ruling
void. saying that Art. 8 is mandatory ug wala dapat laing venue na
 But because of the ruling in Navarro, the SC said that if the irecognize. This ruling will only be as good as determining
fact that an incumbent member of the judiciary will celebrate the administrative liability of an incumbent member of the
marriage outside of that judge’s court’s jurisdiction, take judiciary. It will wtill not be controlling as to the validity of
note that that does not mean that that judge has no the marriage.
authority to solemnize marriage.  What happens therefore if the solemnizing officer celebrates
 According to this case and the predominant acceptation or a marriage outside of the jurisdiction of his or her court? Will
understanding that we have now, jurisprudence provides that mean that the solemnizing officer has no authority? Or
that that will not invalidate a marriage. will that mean that that solemnizing officer only has an
 So pursuant to Navarro ruling, the judge still has authority irregularity in his authority? So we still follow the Navarro
even if they solemnize marriage outside of their jurisdiction. ruling. That is a mere irregularity. It will not affect the
What is that? That is a mere irregularity in the formal validity of the marriage.
requisite, will not invalidate the marriage.  So until such time na makakita ta ug ruling sa SC na
 I want you to take note of that because we have a newer muingon na ang judge solemnizing a marriage outside the
case. jurisdiction of his court, it will render the marriage void, up
until that time we will not follow the opinion of Sempo-dy.
CASE: KEUPPERS VS. HON. MURCIA A.M. NO. MTJ-15-1860 We will follow the ruling of the SC in the Navarro case.
APRIL 3,2018
 Art. 8 of the FC contains the limiting phrase “and not FORMAL REQUISITES
elsewhere”, which emphasizes that the place of the ARTICLE 3. The formal requisites of marriage are:
solemnization of the marriage by a judge like him should (1) Authority of the c.f. Arts. 7, 31 and 32
only be in his office or courtroom. Indeed, the limiting solemnizing officer;
phrase highlights the nature and status of the marriage of ARTICLE 7. Marriage may be .
Rosalinda Keuppers and her husband as “a special contract solemnized by:
of permanent union between a man and a woman,” and as
“the foundation of the family and an inviolable social (3) Any ship captain or ARTICLE 31. A marriage may
institution whose nature, consequences, and incidents are airplane chief only in the cases also be solemnized by a ship
governed by law and not subject to stipulation. mentioned in Art. 31; captain or by an airplane pilot, if:
 The only exception to the limitations are: 1. In articulo mortis
1. When the marriage was to be contracted on the (either or both of the
point of death of one or both of Rosalina and parties are at the point
her husband in accordance with Art. 29 of the FC, of death)
or 2. Between passengers or
2. When the marriage was to be contracted in a crew members
remote place in accordance with Art. 29 of the 3. Not only while the ship
FC, or is at sea or the plane is
3. Where both of Rosalinda and her husband had in flight, but also during
requested him as the solemnizing officer in writing stopovers at ports of
to solemnize the marriage at a house of place call.
designated by them in their sworn statement to (4) Any military commander of
that effect. a unit which a chaplain is
assigned, in the absence of the ARTICLE 32. A military
 Take note that in Art. 8 of the Navarro ruling, it provides latter, during a military operation, commander of a unit shall
that this provision is directory and somehow naay ubang likewise only in the cases likewise have authority to
mga authors that say, failure to solemnize the marriage mentioned in Art.32; solemnize marriages, if:
recognizing the venue provided for in Art. 8, mere 1. S/he is a commissioned
irregularity daw. It will not affect the validity of their officer,
marriage daw which is true diba. Because the chambers of 2. In articulo mortis
the judge or open court with respect to members of the 3. Between persons within
judiciary, these are only directory. So pwde sa chambers sa the zone of military
judge or pwde in an open court where the judge, the staff operation, whether
and everyone else in the public can see your marriage. members of the armed
 But take note, the requirement that it must be within the forces or civilians.
jurisdiction of the court, that’s not tackled by Art. 8., that’s
tackled by Art. 7.  Correlate these two paragraphs under Art. 7 in relation to
 Thus, according to this case, it would hint that Art. 8 is Art. 31 and 32. Because these are the instances, the very
actually a limiting phrase. It provides “not elsewhere”. limited circumstances where they may celebrate and
 So katong mag venues enumerated under Art. 8, according solemnize marriage.
to this case, it emphasizes that the place of solemnization of  The authority of the ship captain and airplane pilot emanates
the marriage by a judge like him should only be in his office from the fact that they can only solemnize a special type of
or courtroom… marriage. And what is that type of marriage? A marriage in
 So the only exceptions daw under Art. 8 kay kato gung artiuclo mortis or at the point of death.
atong gipang discuss.  When we say that it is a marriage in articulo mortis,it
 In this case, the marriage was conducted outside of the pertains to a marriage where either or both of the
office and court room and even outside the jurisdiction of contracting parties are at the point of death. They are still
this solemnizing officer. alive and that they can still intelligently and consciously give
 So according to SC, that was improper. their consent, their consent is real because they truly love
 But take note in this case, basically what the SC is saying is each other.
required an Art. 8 but again we still don’t have an explicit

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 Persons and Family Relations
2nd Exam
 But take note, there is a limitation as to the types of the
contracting parties. The contracting parties must not only be (2) A valid marriage license
male and female but they must also be passengers and crew  ARTICLE 9.  A marriage license shall be issued by the local
members. civil registrar of the city or municipality where either
 When will this type of marriage be solemnized? If it is contracting party habitually resides, except in marriages
articulo mortis and it is during while the ship is at travel or where no license is required in accordance with Chapter 2 of
while the ship is at sea or when the plane is in flight. this Title. 
 The fact na giinsert ning phrase na ‘durin stopovers…’, it
really emphasizes that this ship or this flight is still traversing (3) A marriage ceremony
its journey or kanang iyang destination. So it is still at sea or  ARTICLE 6. No prescribed form or religious rite for the
it is still in flight. solemnization of the marriage is required. It shall be
 What if a ship captain or an airplane pilot solemnizes a necessary, however, for the contracting parties to appear
marriage between sa yang friends or between sa iyang mga personally before the solemnizing officer and declare in the
kaila, while they are offship or while the plane is not in presence of not less than two witnesses of legal age that
flight, lets say for example it’s a garden wedding? Is it a they take each other as husband and wife. This declaration
valid type of marriage? Do they the authority to solemnize shall be contained in the marriage certificate which shall be
that marriage? NO. That is not a valid marriage because of signed by the contracting parties and their witnesses and
the lack of formal requisite—meaning the lack of the attested by the solemnizing officer.
authority of the solemnizing officer in the person of a ship
captain or airplane chief. In case of a marriage in articulo mortis, when the party at
 I want to emphasize that it is the ship captain, dili pwde the point of death is unable to sign the marriage certificate,
basta basta members of that ship. And it must be an it shall be sufficient for one of the witnesses to the marriage
airplane chief, so dili pasabot na katong chief lng na naga to write the name of said party, which fact shall be attested
nagivate sa cockpit sa airplane etc., it may be an airplane by the solemnizing officer.
pilot.
 So take note of the qualifications provided for under Art. 31. FORMAL REQUISITES
 So very important, they may only solemnize marriages in ARTICLE 3. The formal requisites of marriage are:
articulo mortis and between passengers and crew members. (1) A valid marriage license ARTICLE 9. A marriage license
 For example if the ship is not anymore travelling or the plane shall be issued by the local civil
is not anymore in flight, and subsequently didto sa runway EXCEPT: registrar of the city or
sa airport or for example didto sa dock, pag dock sa ship, for In the cases provided municipality where either
example naay nagpropose and nangutana tong mga parties for in Chapter 2 of this contracting party habitually
na ‘captain or airplane pilot can you solemnize our Title; resides, except in marriages
marriage?’. So the answer is NO. where no license is required in
 They don’t have the authority to solemnize marriage accordance with Chapter 2 of this
because the ship is not at sea and the plane is not anymore Title. 
in flight. And of course at that time dili na sila passengers or (3) A marriage ceremony: ARTICLE 6. No prescribed form
crew members. 1. Which takes place with or religious rites for the
 So it really emphasizes the special type of marriage that they the appearance of the solemnization of the marriage is
may solemnize, which is a marriage in articulo mortis. contracting parties required:
 More importantly, a military commander. 2. Before the solemnizing
 It must be a military commander of a unit. officer and It shall be necessary however, for
 A unit in military terms pertains to a particular battalion and 3. Their personal the contracting parties to:
not a mere company. declaration that they 1. Appear personally
 In the absence of the chaplain, that is only the time where take each other as before the solemnizing
the military commander may have the authority to solemnize husband and wife officer and
marriage. And it may only have authority to solemnize a 4. In the presence of not 2. Declare in the presence
marriage during a military operation. less than two of not less than two
 And likewise only in the cases provided for under Art. 32. witnesses of legal age. witnesses of legal age
What are those cases? (See table for reference). 3. That they take each
 That military commander may only solemnize marriages in other as husband and
articulo mortis. wife.
 The authority of a military commander of a unit will attach
under the law, under Art. 32 in relation to Art. 7 par. 4, he This declaration shall be
may or she may celebrate marriages in articulo mortis only contained in the marriage
when is a commissioned officer. So dili pwde na at that time certificate which shall be signed
dili na siya part of the military. It must be during the time na by the contracting parties and
gi-commission siya or gi-appoint siya to a particular unit. their witnesses and attested by
 Dili pwde na wala na siyay authority or nagretire na siya the solemnizing officer.
from the military.
 And more importantly, the contracting parties must be n case of a marriage in articulo
persons within the operation of military zone of operation, mortis, when the party at the
whether they are members of the armed forces or civilians. point of death is unable to sign
 So if you are a military commander off duty, lets sya naay the marriage certificate, it shall
operation pero gipauli ka sa Davao because of covid and all be sufficient for one of the
of a sudden naay mag friends nimo na maghangyo na kaslon witnesses to the marriage to
nimo sila, you do not have the authority. That is where the write the name of said party,
authority of the solemnizing officer emanates from, only the which fact shall be attested by
types of marriages provided for under Art. 32. the solemnizing officer.
 So I want to underscore this because it will spell a difference
to your understanding under Art. 4.  A marriage license is issued by the local civil registrar of the
city or the municipality where either of the contracting party
OTHER FORMAL REQUISITES
9|Page| A L BERT | ARITALIA
 Persons and Family Relations
2nd Exam
habitually resides. Except in cases where a marriage license
is not required under Chapter 2 of this Title in the FC.
 Take note if what happens is, a marriage license was
actually acquired by the parties who are habitual residence
here in Davao City but because of Covid they got stuck in
Manila because they are working in Manila and because of
that they contracted the marriage there in Manila using the
marriage license that they acquired here in Davao City. Will
that amount to the absence of a marriage license? NO.
That’s a mere irregularity in the formal requisites of marriage
license.
 So what is required under the law is the existence of a valid
marriage license. For as long there is a valid marriage license
issued or a marriage license which has not yet expired, that
is the requirement to comply with this formal requisite.
 The use of that marriage license, such as for example you
celebrate your marriage in Manila even if you are habitual
residents of Davao City, that only amounts to a mere
irregularity, so it will not invalidate a marriage.
 The final formal requisite that is required under Art. 3 par. 3
is the existence of a marriage ceremony.
 For example, you have your marriage ceremony kamo lng sa
solemnizing officer and audience nimo kay are your pet cats
or dogs, that’s not allowed.
 A marriage ceremony must be celebrated in the presence of
not less than 2 witnesses. Why? It indicates or it
underscores the requirement of publicity.
 So kinahnaglan that when you’re married, dili pwde na kamo
kamo lng ang nakabalo. Otherwise, it might be a marriage in
jest.
 So take note, for purposes of publicity, and to declare it to
the public na married na jud ni sila ug wala nay lain or dili ni
sila married daan, it must be in the presence of not less tha
2 witnesses of legal age.
 So in relation to Art.6, there is no prescribed formality or
religious rites for the solemnization of the marriage.
 You may do this marriage ceremony in any form that you
like for as long as you comply with this requisite under Art. 3
par. 3.
 The fact that marriage is in articulo mortis, will not take
away the requirement that there must be a witness because
again malay ba nato marriage in jest lang siya because of
the urgency brought by the fact that it is in articulo mortis.
 So take note of the formalities required under Art. 6 and that
these formalities as a minimum echo or mirror the
requirement under Art. 3 par. 3.
Why is it important that there is a need of marriage license? Citing the
case of Kho v. Republic:
KHO v. REPUBLIC
G.R No. 187462 [June 1, 2016]
The rationale for the compulsory character of a marriage license under
the Civil Code [now, Family Code] is that it is the authority granted by
the State to the contracting parties, after the proper government
official has inquired into their capacity to contract marriage.
Stated differently, the requirement and issuance of a marriage license
is the State’s demonstration of its involvement and participation in
every marriage, in the maintenance of which the general public is
interested.
STATUS OF SECRET MARRIAGES
It will be remembered that the subject marriage was a civil ceremony
performed by a judge of a city court. The subject marriage is one of
those commonly known as a “secret marriage” – a legally non-existent
phrase but ordinarily used to refer to a civil marriage celebrated
without the knowledge of the relatives and/or friends of either or both
of the contracting parties. (Republic v. CA, G.R No. 103047, September
2, 1994)
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 Secret marriages will not mean na walay witnesses, in a
certain situation, you can imagine if you and me against the
world jud imong drama sa imong uyab, pwede ban a walay
witnesses? BAWAL. The facts that your parents nor friends
does not know about your marriage, it is a secret marriage.
 Will that invalidate your marriage for lack of marriage
ceremony? No, so long as there are witnesses. Witnesses
can be staff of the judge, staff sa court, etc; especially now
– COVID situation – where there are restrictions that
members of the family are not allowed automatically to enter
the court.
EFFECTS OF ABSENCE, DEFECTS, AND IRREGULARITES
ARTICLE 4
The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).
 The absence of any of the essential or formal requisites shall
render the marriage null and void because the failure to
comply with Article 2 and 3 of FC. Where talking about an
instance of absence, such as having no legal capacity, no
consent freely given, the solemnizing officer has no
authority, no valid marriage license and no marriage
ceremony at all. Complete lack of either of the formal and
essential requisites. The effect will render the marriage void
ab initio.
 Except as stated under Article 35 (2), as regards the
authority of solemnizing officer. As a general rule, those
religious persons mentioned in Article 7, they have the
authority to solemnize a marriage. What if you are
confronted with a situation that the priest who solemnized
your marriage, you believed that he has the authority to
solemnize marriage but in fact he does not have any
authority? Then, there is a lack of authority of the
solemnizing officer, because of the absence of a formal
requisite; it will render the marriage null and void.
 Except when the parties, either one of them or both,
believed in good faith that the solemnizing officer has
authority. Example, where the pastor, imam, etc. in
appearance it would seem that they have the authority but
in truth, wala diay silay authority. Are the parties required to
inquire to the authority of that person? NO. For as long as
they hold themselves out as priest, imam, rabbi and the
parties believed in good faith that they have such authority,
their belief in good faith will validate that void marriage. This
is exceptional because in void marriages cannot be validated
except marriages under Article 35 (2). Take note of this
exceptional circumstance.
 Here, we apply a mistake of fact, meaning the instance here
is a situation where the parties have a mistake in fact such
that they were mistaken that they thought that the
solemnizing officer has the authority but it turns out,
solemnizing officer has no authority. There is no mistake of
law.
 Article 35 (2) does not pertain to a situation where the
person who solemnized the marriage has no authority at all
based on the persons who may solemnized a marriage under
Artice 7.
 What if you are a very sentimental couple and you want
your parents to solemnize your marriage, your parents are
not a solemnizing officer enumerated in Article 7, will your
ignorance of the fact excuse you from the requisite of
absence of a formal requisite in marriage? NO. It is not a
mistake in fact, it is ignorance of law.
A defect in any of the essential requisites shall render the marriage
voidable as provided in Article 45.
 Defect pertains to essential requisites
 Defect means that the essential requisites are present, it’s
just that there is a defect or it is defective.
 Persons and Family Relations
2nd Exam
 Example, in the consent freely given, anyone of the party
consented, it’s just that that person consented because
‘shot-gun wedding’, he was threatened if he will not marry
the girl he impregnated. It will render the marriage voidable
in relation to Article 45, and 46.
An irregularity in the formal requisites shall not affect the validity of
the marriage but the party or parties responsible for the irregularity
shall be civilly, criminally and administratively liable. (n)
 Irregularity pertains to formal requisites it’s just that there is
infirmity, such as the misuse of a valid marriage license. Will
this have the effect of the validity of marriage? No. The
residual effect; the law will still recognize the validity of the
act it’s just that there are consequential punishment.
 In relation to the case of Navarro v. Domagtoy, the SC held
that a judge who is an incumbent member of the judiciary
solemnizes a marriage outside of his territorial jurisdiction,
will not affect the validity of the marriage, it is only
considered as an irregularity; the judge may be held
administratively liable.
LOCAL MARRIAGE DOCUMENTS AND OTHER LEGAL PAPERS
ARTICLE 11
Where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage
was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person
having charge, in case the contracting party has neither father nor
mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to
exhibit their residence certificates in any formality in connection with
the securing of the marriage license. (59a)
 Where a marriage license is required, not exempted under
Chapter 2 of the Family Code, the contracting parties are
required to file separately a sworn application for a license.
 Purpose: For the state to know that you are capacitated to
marry
ARTICLE 12
PROCEDURE:
1. Sworn application for a marriage license will be filed (Article
11)
2. Upon receiving such application, the local civil registrar (LCR)
shall require the presentation of:
a. The original birth certificates of the contracting
parties or copies of such documents duly attested
by the persons having custody of the originals, or
b. In default thereof, the baptismal certificates of the
contracting parties or copies of such documents
duly attested by the persons having custody of the
originals
*NOTE: These certificates or certified copies of the documents
required by this Article need not be sworn to and shall be exempt from
the documentary stamp tax. The signature and official title of the
person issuing the certificate shall be sufficient proof of its authenticity.
11 | P a g e | A L B E R T | ARITALIA
WHAT IF EITHER OF THE CONTRACTING PARTIES IS UNABLE TO
PRODUCE HIS BIRTH OR BAPTISMAL CERTIFICATE OR A CERTIFIED
COPY OF EITHER?
Reasons must be:
1. Because of the destruction or loss of the original, or
2. It is shown by an affidavit of such party or of any other
person that such birth or baptismal certificate has not yet
been received though the same has been required of the
person having custody thereof at least 15 days prior to the
date of the application
Recourse? In lieu thereof, such party may furnish his current residence
certificate or an instrument drawn up and sworn to before the LCR
concerned or any public official authorized to administer oaths.
o Such instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name,
residence and citizenship of such contracting party and of his
or her parents, if known, and the place and date of birth of
such party.
o The nearest of kin of the contracting parties shall be
preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.
WHEN IS THE PRESENTATION OF THE BIRTH OR BAPTISMAL
CERTIFICATE SHALL NOT BE REQUIRED?
1. If the parents of the contracting parties appear personally
before the local civil registrar concerned and swear to the
correctness of the lawful age of said parties, as stated in the
application, or
2. When the local civil registrar, shall, by merely looking at the
applicants upon their personally appearing before him, he
convicted that either or both of them have the required age.
ARTICLE 13
RULE IN CASE EITHER OF THE CONTRACTING PARTIES HAS BEEN
PREVIOUSLY MARRIED
The applicant shall be required to furnish:
1. The death certificate of the deceased spouse or
2. The judicial decree of the absolute divorce or
3. The judicial decree if annulment or declaration of nullity of
his or her marriage
What if the death certificate cannot be secured? The party shall make
an affidavit setting forth:
1. His circumstance,
2. His or her actual civil status, and
3. The name and date of death of the deceased spouse
ARTICLE 14
EFFECT IF THE MARRIAGE WAS SOLEMNIZED WITHOUT THE
REQUISITE PARENTAL CONSENT?
Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage
annulled was eighteen years of age or over but below twenty-one, and
the marriage was solemnized without the consent of the parents,
guardian or person having substitute parental authority over the party,
in that order, unless after attaining the age of twenty-one, such party
freely cohabited with the other and both lived together as husband and
wife;
 Persons and Family Relations
2nd Exam
 For the requisites under Article 14, take note when it is
required.
 Article 14 must be read in relation to Article 45, where it
provides for the annullable of a marriage in the absence of
parental consent.
 A lack of parental consent means a defect in the essential
requisite; it does not mean an absence of legal capacity.
ARTICLE 15
Any contracting party between the age of twenty-one and twenty-five
shall be obliged to ask their parents or guardian for advice upon the
intended marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued till after three
months following the completion of the publication of the application
therefor.
A sworn statement by the contracting parties to the effect that such
advice has been sought, together with the written advice given, if any,
shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated
in the sworn statement.
 There is a requirement under our law to seek filial respect.
 If there is no parental advise, it is just mere irregularity. If it
is unfavourable, it will only have an effect to the issuance of
marriage license.
 What if you acquired a marriage license because you bribed
the officer from LCR, but you never seek parental advise, will
that mean that there is a lack of formal requisite? NO.
 It is a different story when the marriage license was not
issued by the LCR. Such as the marriage license was
fraudulently made by a person in local civil registrar but not
the registrar himself; obviously that is not a valid marriage
license – it is an absence of ML.
EFFECT IF THE MARRIAGE WAS SOLEMNIZED WITHOUT THE
REQUISITE PARENTAL ADVICE?
If marriage license issued notwithstanding the absence of such
parental advise or prior to the three-month suspension period under
Article 15 of the Family Code, the same shall be considered as mere
irregularity in the issuance of the license and shall not affect the
validity of the marriage.
ARTICLE 16
 Talks about a situation involving the necessity of parental
consent and parental advise in relation to the duty of the
solemnizing officer to attach it to the certificate of marriage.
 Take note, the certificate of marriage is the best proof of
marriage.
 Failure to attach to that marriage certificate the counselling
required under Article 16 – it is only a mere irregularity
ARTICLE 17
 Talks about the preparation of the notice whereby this is the
duty of LCR; since this notice covers the involvement of the
State to the marriage, there will be publicity, it will be posted
for 10 consecutive days.
ARTICLE 18
 Talks about the effectivity of the marriage license.
 It will not be affected by the fact that there is an
impediment known by the LCR, because Art 18 encompasses
the ministerial duty on the part of the LCR.
 What if it is known to the LCR na 18 years old pa ang
contracting parties or marriage ang either sa ilaha, can the
LCR refuse on the ground that they know these
12 | P a g e | A L B E R T | ARITALIA
impediments? NO, they will only take down those
impediments; unless, it is not allowed by a competent court
ARTICLE 19
 Talks about the payment of necessary fees
ARTICLE 20
The license shall be valid in any part of the Philippines for a period of
one hundred twenty days from the date of issue, and shall be
deemed automatically canceled at the 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.
 It talks about the effectivity of marriage license
 What if you married 6 months after? It is beyond the
required period of validity of the marriage license. It not an
irregularity. It will be deemed automatically cancelled. Thus,
you do not have the marriage license at the time of
marriage, rendering the marriage void.
ARTICLE 21
 Requires the certificate of legal capacity to contract marriage
PURPOSE and EFFECTS
To repeat, the legal capacity to contract marriage is determined by the
national law of the party concerned. The certificate mentioned in
Article 21 of the Family Code would have been sufficient to establish
the legal capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie evidence of
legal capacity to marry on the part of the alien applicant for marriage
license.
Footnote 50: In passing, we note that the absence of the said
certificate is merely an irregularity in complying with the formal
requirement for procuring a marriage license. Under Article 4 of the
Family Code, an irregularity will not affect the validity of a marriage
celebrated on the basis of a marriage license issued without that
certificate.
ARTICLE 22
 What if they did not take personal declaration because naka
mask sila due to COVID, the solemnizing officer shall only
allow the parties to sign the contract – will the lack of oral
declaration render the marriage null and void? NO, because
parties contracting marriage, they make 2 declarations, what
is only required is they make declaration but the manner by
which is not required by law. It is only considered as mere
irregularity.
ARTICLE 23
 Duty of solemnizing officers
ARTICLE 24. It shall be the duty of the local civil registrar to prepare
the documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents
and affidavits filed in connection with applications for marriage licenses
shall be exempt from documentary stamp tax. (n)
ARTICLE 25. The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry book
strictly in the order in which the same are received. He shall record in
said book the names of the applicants, the date on which the marriage
license was issued, and such other data as may be necessary. (n)
 Persons and Family Relations
2nd Exam
FOREIGN MARRIAGES
ARTICLE 26
All marriages solemnized outside the Philippines, in accordance with
the laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (As amended by
Executive Order 227)
PARAGRAPH 1 RULES
General Rule: All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such (highlights marriage as a contract
pursuant to the lex loci celebritionis principle)
Exceptions: (highlights applicability of Philippine Law pursuant to the
nationality principle)
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even
with the consent of parents or guardians;
(4) Those bigamous or polygamous marriages not failing under Article
41;
(5) Those contracted through mistake of one contracting party as to
the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 36 – Psychological incapacity
Art. 37 – Incestuous marriages
Art. 38 – Marriages against public policy
Instances where foreign law will govern the status of persons
(not Philippine law);
Art. 35. The following marriages shall be void from the beginning:
(2) Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
 It is considered valid here in the Philippines because these
instances refer to formal requisites of marriage, it is
embraced under the general rule (lex loci celebrationis
principle)
 Example, ordinarily under Ph law, a marriage solemnized by
a person not a solemnizing officer, would render marriage
void. What if the contracting parties entered into a marriage
in a country where the marriage license is not required and
they solemnized the marriage there, or for example they
were solemnized in a country where their brother is allowed
to solemnize a marriage even if their brother is not
considered as a solemnizing officer in the Family Code, are
those marriages valid? It would seem YES. For as long as
the laws in force in the country where they were solemnized,
and valid there as such.
13 | P a g e | A L B E R T | A R I T A L I A
PARAGRAPH 2 RULES
Situation:
 A marriage between a Filipino citizen and a foreigner
 It is validly celebrated and
 A divorce is thereafter validly obtained abroad
o By the alien spouse
o Capacitating him or her remarry
Rule? The Filipino spouse shall have capacity to remarry under
Philippine law
*Note: REPUBLIC v. MANALO
 Art 26 (2) applies to mixed marriages, marriage between a
Filipino citizen and a foreigner, and is validly celebrated and
a divorce decree was validly obtained after the marriage.
 General rule is that the Filipino spouse will also be
capacitated to remarry.
 Republic v. Manalo sufficiently summarizes the ruling of the
cases, and deliberately says that even if the Filipino Spouse
acquired the divorce decree, paragraph 2 of Art. 26 will still
apply
Concept of Divorce
In its strict legal sense, divorce means the legal discussion of a lawful
union for a cause arising after marriage. But divorces are of different
types.
The two basic ones are (1) absolute divorce or a vincula matrimonii
and (2) limited divorce or a mensa et thoro. The first kind terminates
the marriage, while the second suspends it and leaves the bond in full
force. (Garcia v. Recio, G.R No. 138322, October 2, 2001)
 What is pertained under Art 26 (2) is absolute divorce,
because it must allow the foreigner to remarry
 Cannot invoke Art 26 (2) if what was acquired is limited
divorce
PUBLIC POLICY ON DIVORCE
The non-recognition of absolute divorce in the Philippines is a
manifestation of the respect for the sanctity of the marital union
especially among Filipino citizens. It affirms that the extinguishment of
a valid marriage must be grounded only upon the death of either
spouse, or upon a ground expressly provided bylaw. For as long as this
public policy on marriage between Filipinos exists, no divorce decree
dissolving the marriage between them can ever be given legal or
judicial recognition and enforcement in this jurisdiction. (Lavadia v.
Heirs of Luna)
Owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept
of public policy and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided they are
valid according to their national law. (Pilapil v. Ibay-Somera)
 Take note that there is no recognition of an absolute divorce
here in the Philippines because of our public policy on
marriage. This only extends to marital union between Filipino
citizens.
ARREZA v. TOYO
G.R. No. 213198, July 01, 2019
 Persons and Family Relations
2nd Exam
The second paragraph was introduced as a corrective measure to
resolve an absurd situation where the Filipino spouse remains married
to the alien spouse even after their marital bond had been severed by
the divorce decree obtained abroad. Through this provision, Philippine
courts are given the authority "to extend the effect of a foreign divorce
decree to a Filipino spouse without undergoing trial to determine the
validity of the dissolution of the marriage." It bestowed upon the
Filipino spouse a substantive right to have his or her marriage
considered dissolved, granting him or her the capacity to remarry.
Nonetheless, settled is the rule that in actions involving the recognition
of a foreign divorce judgment, it is indispensable that the petitioner
prove not only the foreign judgment granting the divorce, but also the
alien spouse's national law. This rule is rooted in the fundamental
theory that Philippine courts do not take judicial notice of foreign
judgments and laws.
 Case talks about how the capacity of Filipino spouse to
remarry is actually a substantive right in accordance with Art
26 (2)
 There must be a sufficient proof of judgment and the alien
spouse national law capacitating him to remarry under Rule
132

Both the foreign divorce decree and the foreign spouse's national law,
purported to be official acts of a sovereign authority, can be
established by complying with the mandate of Rule 132, Sections 2445
and 2546 of the Rules of Court:
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document.
If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal
of his office.
Here, the Regional Trial Court ruled that the documents petitioner
submitted to prove the divorce decree have complied with the
demands of Rule 132, Sections 24 and 25. However, it found the copy
of the Japan Civil Code and its English translation insufficient to prove
Japan's law on divorce. It noted that these documents were not duly
authenticated by the Philippine Consul in Japan, the Japanese Consul
in Manila, or the Department of Foreign Affairs.
However, the English translation submitted by Genevieve was
published by Eibun-Horei-Sha, Inc., a private company in Japan
engaged in publishing English translation of Japanese laws, which
came to be known as the EHS Law Bulletin Series. However, these
translations are "not advertised as a source of official translations of
Japanese laws;" rather, it is in the KANPO or the Official Gazette where
all official laws and regulations are published, albeit in Japanese.
Accordingly, the English translation submitted by petitioner is not an
official publication exempted from the requirement of authentication
RECENT CASES THAT ECHO THE MANALO RULING:
Nulleda v. Civil Registrar of Manila
G.R No. 2245548, January 23, 2019
In the Manalo decision, the Court went on to cite jurisprudence
wherein the legal effects of a foreign divorce decree, albeit obtained by
a Filipino spouse, were acknowledged in our jurisdiction but limited on
the issues of child custody and property relations. In several other
jurisprudence, recognition of the effects of a foreign divorce was also
implied from the Court's disposition of the cases. The specific issue on
the binding effect of a divorce decree obtained by a Filipino spouse on
one's marital status was then expressly and directly tackled by the
Court. In determining whether a divorce decree obtained by a
foreigner spouse should be recognized in the Philippines, it is
immaterial that the divorce is sought by the Filipino national.
14 | P a g e | A L B E R T | ARITALIA
While opposition to the foregoing interpretation is commonly raised on
the basis of the nationality principle, such principle is not an absolute
and unbending rule. The second paragraph of Article 26 of the Family
Code should be deemed an exception to the general rule.
Marlyn failed to satisfy the foregoing requirements. The records only
include a photocopy of excerpts of The Civil Code of Japan, merely
stamped LIBRARY, Japan Information and Culture Center, Embassy of
Japan, 2627 Roxas Boulevard, Pasay City 1300.37 This clearly does not
constitute sufficient compliance with the rules on proof of Japan's law
on divorce. In any case, similar to the remedy that was allowed by the
Court in Manalo  to resolve such failure, a remand of the case to the
RTC for further proceedings and reception of evidence on the laws of
Japan on divorce is allowed, as it is hereby ordered by the Court.
WHAT IF THE DIVORCE DECREE WAS ACQUIRED JOINTLY BY THE
FILIPINO AND FOREIGNER SPOUSE?
GALAPAN V. REPUBLIC
G.R No. 243722, January 22, 2020
Pursuant to the majority ruling in Manalo, Art 26 (2) applies to mixed
marriages where the divorce decree is:
i. Obtained by the foreign spouse;
ii. Obtained jointly by the Filipino and foreign spouse; and
iii. Obtained solely by the Filipino spouse
Based on the records, Cynthia and Park obtained a divorce decree by
mutual agreement under the laws of South Korea. The sufficiency of
the evidence presented by Cynthia to prove the issuance of said
divorce decree and the governing national law of her husband Park
was not put in issue.
MAY A FOREIGN DIVORCE DECREE BE USED AS A DEFENSE IN
A BIGAMY CASE?
SARTO Y MISALUCHA v. PEOPLE OF THE PHILIPPINES
G.R. No. 206284, February 28, 2018
For a person to be convicted of bigamy, the following elements must
concur: (1) that the offender has been legally married; (2) that the
first marriage has not been legally dissolved or, in case of an absentee
spouse, the absent spouse could not yet be presumed dead according
to the provisions of the Civil Code; (3) that the offender contracts a
second or subsequent marriage; and (4) that the second or
subsequent marriage has all the essential requisites for validity.
Redante admitted that he had contracted two marriages. He, however,
put forth the defense of the termination of his first marriage as a result
of the divorce obtained abroad by his alien spouse.
A divorce decree obtained abroad by an alien spouse is a foreign
judgment relating to the status of a marriage. As in any other foreign
judgment, a divorce decree does not have an automatic effect in the
Philippines. Consequently, recognition by Philippine courts may be
required before the effects of a divorce decree could be extended in
this jurisdiction. Recognition of the divorce decree, however, need not
be obtained in a separate petition filed solely for that purpose.
Philippine courts may recognize the foreign divorce decree when such
was invoked by a party as an integral aspect of his claim or defense.
Before the divorce decree can be recognized by our courts, the party
pleading it must prove it as a fact and demonstrate its conformity to
the foreign law allowing it. Proving the foreign law under which the
divorce was secured is mandatory considering that Philippine courts
cannot and could not be expected to take judicial notice of foreign
laws. For the purpose of establishing divorce as a fact, a copy of the
divorce decree itself must be presented and admitted in evidence. This
is in consonance with the rule that a foreign judgment may be given
presumptive evidentiary value only after it is presented and admitted
in evidence.
 Persons and Family Relations
2nd Exam
This certificate of divorce, however, is utterly insufficient to rebut the
charge against Redante.  marriage void.
First, the certificate of divorce is not the divorce decree required by the
rules and jurisprudence. As discussed previously, the divorce decree
required to prove the fact of divorce is the judgment itself as rendered
by the foreign court and not a mere certification. 
Second, assuming the certificate of divorce may be considered as the
divorce decree, it was not accompanied by a certification issued by the
proper Philippine diplomatic or consular officer stationed in Canada, as
required under Section 24 of Rule 132.  the marriage settlements to a certain extent fix the property relations
Lastly, no copy of the alleged Canadian law was presented by the
defense. Thus, it could not be reasonably determined whether the
subject divorce decree was in accord with Maria Socorro's national law.
Further, since neither the divorce decree nor the alleged Canadian law
was satisfactorily demonstrated, the type of divorce supposedly
secured by Maria Socorro - whether an absolute divorce which
terminates the marriage or a limited divorce which merely suspends it -
and whether such divorce capacitated her to remarry could not also be
ascertained. As such, Redante failed to prove his defense that he had
the capacity to remarry when he contracted a subsequent marriage to
Fe. His liability for bigamy is, therefore, now beyond question.
CHAPTER 2
Marriages Exempt from the License Requirement
ARTICLE 27
In case either or both of the contracting parties are at the point of
death, the marriage may be solemnized without necessity of a
marriage license and shall remain valid even if the ailing party
subsequently survives.
 This is the provision catering to the general marriages under
articulo mortis
 Let’s say they are not in a death bed in hospital, zones of
military operation, on a ship or airplane, can a priest come in
so long as there is an authority? YES, they are exempted of
marriage license
ARTICLE 28
If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the
local civil registrar, the marriage may be solemnized without necessity
of a marriage license.
 What is exempted here is the marriage license, not other
requisites.
ARTICLE 29 - 30
 Talks about the requirement that must be observed by the
solemnizing officer in relation to Article 27 and Article 28.
 This is an exception to the marriage ceremony.
 This is about the duties of the solemnizing officers in cases
of Article 27 and 28. If these requirements are not complied
with, it will not have any effect to the validity of marriage
but it is a mere irregularity
ARTICLE 31 -32
 These have limited solemnizing officers
ARTICLE 33
 Although customs are not the same as laws, it is still
important to know because they are facts which are need to
allege and prove. If you celebrate a marriage in accordance
to their customs, where you do not need to obtain a
marriage license but the validity of that marriage will be
15 | P a g e | A L B E R T | A R I T A L I A
assailed later on, take note that you still need to prove those
customs as facts. Failure to prove such, it will render the
NOLLORA, JR. vs. PEOPLE
G.R No. 191425, September 7, 2011
Art. 14. Nature. - Marriage is not only a civil contract but a civil
institution. Its nature, consequences and incidents are governed by
this Code and the Shari’a and not subject to stipulation, except that
of the spouses.
Art. 15. Essential Requisites. -  No marriage contract shall be perfected
unless the following essential requisites are complied with:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two
competent persons after the proper guardian in marriage ( wali) has
given his consent; and
(d) Stipulation of the customary dower ( mahr) duly witnessed by two
competent persons.
Art. 18. Authority to solemnize marriage. -  Marriage maybe
solemnized:
(a) By the proper wali by the woman to be wedded;
(b) Upon the authority of the proper wali, by any person who is
competent under Muslim law to solemnize marriage; or
(c) By the judge of the Shari’a District Court or Shari’a Circuit Court or
any person designated by the judge, should the proper wali refuse
without justifiable reason, to authorize the solemnization.
Art. 19. Place of solemnization. -  Marriage shall be solemnized publicly
in any mosque, office of the Shari’a judge, office of the Circuit
Registrar, residence of the bride or her wali, or at any other suitable
place agreed upon by the parties.
Art. 20. Specification of dower. -  The amount or value of dower may
be fixed by the contracting parties (mahr-musamma) before, during or
after the celebration of marriage. If the amount or the value thereof
has not been so fixed, a proper dower ( mahr-mithl) shall, upon petition
of the wife, be determined by the court according to the social
standing of the parties.
Indeed, Article 13(2) of the Code of Muslim Personal Laws states that
"[i]n case of a marriage between a Muslim and a non-Muslim,
solemnized not in accordance with Muslim law or this Code,
the [Family Code of the Philippines, or Executive Order No. 209, in lieu
of the Civil Code of the Philippines] shall apply." Nollora’s religious
affiliation is not an issue here. Neither is the claim that Nollora’s
marriages were solemnized according to Muslim law. Thus, regardless
of his professed religion, Nollora cannot claim exemption from liability
for the crime of bigamy.
ARTICLE 34
SITUATION:
 A man and a woman who have lived together as husband
and wife (cohabitation)
 They have done so for at least fove years and
 Without any legal impediment to marry each other
RULES:
1. No license shall be necessary for the marriage
2. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer
oaths (affidavit of cohabitation)
3. The solemnizing officer shall also state under oath that the
ascertained the qualifications of the contracting parties are
found no legal impediments to the marriage.
CONCEPTS
 Persons and Family Relations
2nd Exam
The reason for the rule is “the publicity attending the marriage license Ninal v. Bayadog: Cohabitation for 5 years under this Article should
may discourage such persons from legalizing their status.” (Family be in the nature of a perfect union that is valid under the law but
Code Commission) “To preserve peace in the family and avpid the rendered imperfect only by the absence of the marriage contract.
peeping and suspicious eye of public exposure and contain the source
of gossip arising from the publication of their names, the law deemed o Applicable to marriages celebrated under New Civil Code
it wise to preserve their privacy and exempt them from that
requirement. (Albano) Manzano v. Sanchez: For this provision on legal ratification of
marital cohabitation to apply, the following requisites must concur:
Legal impediment pertain to the legal capacity of either of the
contracting parties to marry (Article 2(1) in relation to Article 5); refers 1. The man and woman must have been living
to any possible ground or basis under the Family Code, including non- together as husband and wife for at least five
age and the status of being already married among others, to make a years before the marriage;
marriage infirm. (Sta. Maria) 2. The parties must have no legal impediment to
marry each other;
Nature of cohabitation: There are two divergent schools of thought: 3. The fact of absence of legal impediment between
the parties must be present at the time of
1. Ninal, et al vs. Bayadog:  Cohabitation for 5 years under this Article marriage;
should be in the nature of a perfect union that is valid under the law 4. The parties must execute an affidavit stating that
but rendered imperfect only by the absence of the marriage contract. they have lived together for at least five years
[and are without legal impediment to marry each
2. Manzano v. Sanchez: For this provision on legal ratification of other]; and
marital cohabitation to apply, the following requisites must concur: 5. The solemnizing officer must execute a sworn
statement that he had ascertained the
1. The man and woman must have been living qualifications of the parties and that he had found
together as husband and wife for at least five no legal impediment to their marriage.
years before the marriage; o Applicable to marriages celebrated under the Family Code.
2. The parties must have no legal impediment to
marry each other; LECTURE 2.2
3. The fact of absence of legal impediment between
the parties must be present at the time of
marriage;
DEFECTIVE MARRIAGES
4. The parties must execute an affidavit stating that
they have lived together for at least five years
Status of Marriages:
[and are without legal impediment to marry each
other]; and
Marriages are either:
5. The solemnizing officer must execute a sworn
statement that he had ascertained the
qualifications of the parties and that he had found 1. Valid
no legal impediment to their marriage. a) Completely Valid – one which has all the essential
and formal requisites of marriage
b) Susceptible to Legal Separation – one which is valid
SCHOOLS OF THOUGHT:
but the spouses may be allowed to separate from
bed and board, and there will be a discontinuation
i. Justice Caguioa pointed out that what is important is that at
of their property relations despite the subsistence of
the time of the marriage, both parties are capacitated to
the marriage.
marry.
2. Voidable/Annullable – one which is valid until it is judicially
ii. Sempo-Diy and Jurado: Ninal v. Bayadog, runs counter to
annulled.
the intention of the drafters of the Family Code, and the Civil
3. Void – one which is legally inexistent from the very
Code before them, that the provision is only to save the
beginning
parties from the marriage license in view of the publicity
attendant the application therefor, which might discourage
 A marriage is always presumed valid. Law as well as the
them to legalized their union. It is, therefor, enough that the
constitution recognizes the vital role of marriage with respect
parties had no impediment to marry at the time of the
to the family and with its reservation as an inviolable
celebration of their marriage.
institution.
iii. Sta.Maria: the parties must be without legal impediment only
 In void marriages, there are only residual legal
at the time of the marriage ceremony and not during all
consequences. One of those is liability for bigamy. But in this
those previous 5 years. This must be the interpretation
chapter, we will be discussing other consequences.
because the essential requirement under Article 2 and the
 Our discussion will be from the most defective until the least
formal requisites under Article 3 for a valid marriage must be
present not only at the celebration of the marriage and not defective
at any other point in time. The five-year period is not among
the said essential and formal requisites.
iv. Vitug: Although the sentence structure appears to indicate
the absence of the legal impediment refers to the life of
cohabitation, the presumption of validity and regularity of
marriage, among other things, could override this
interpretation in favor of simply requiring the freedom from
legal impediment at the time the marriage is celebrated CHAPTER 3: Void and Voidable Marriages
which would be when the question becomes of real
consequence. VOID MARRIAGES
v. Tolentino, Pineda, Albano and Rabuya: apply Ninal v.
Bayadog ruling ARTICLE 35.

CONCLUSION The following marriages shall be void from the beginning:

16 | P a g e | A L B E R T | ARITALIA
 Persons and Family Relations
2nd Exam
(1) Those contracted by any party below eighteen years of age even
with the consent of parents or guardians
 Absence of Legal Capacity – Non-age or minority
(2) Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
authority to do so;
 Absence of Authority of Solemnizing Officer
 EXCEPTION: Belief in good faith that the solemnizing officer
had authority (not as to whether solemnizing officer or not)
 The exception only applies when the marriage is not void
because the belief in good faith must not exist after the
marriage has been solemnized. If the validity of marriage will
be assailed later on, then that belief in good faith must have
existed at the time of the celebration of the marriage. This is
actually a situation which is excluded from ARTICLE 35 (2)
(3) Those solemnized without license, except those covered the
preceding Chapter;
 Absence of marriage license – lack of formal requisite
 EXCEPTION: Marriages under Chapter 2 (Articles 27-34)
(4) Those bigamous or polygamous marriages not failing under Article
41;
 Absence of legal Capacity – bigamous or polygamous
marriages
 EXCEPTION: Subsequent marriage under Article 41 which is
conditional
 Such condition is a positive resolutory condition, the
happening of which will automatically terminate that
subsequent bigamous marriage.
(5) Those contracted through mistake of one contracting party as to
the identity of the other; and
 Absence of Consent Freely Given – mistake as to identity
 Example is having mistake of identity, where you married A
but actually it was B, the twin sister of A.
 This is an exceptional circumstance where mistake as to a
particular fact will not excuse because the identity of the
contracting parties will be necessary as part and parcel of
the fundamental requirement of marriage which is consent
freely given.
(6) Those subsequent marriages that are void under Article 53.
 Failure to comply with requirement under the law – Article
52 and 53
 Here, it is expressly excluded by law, there is no absence of
any essential or formal requirements.
ARTICLE 36
 With respect to psychological incapacity, this PI must exist at
the time of the marriage although it has manifest only
afterwards. This PI must relate to the failure, utter inability to
comply, perform and discharge the essential marital obligations
of marriage, such as parental marital obligations/
SANTOS v. CA
G.R No. 112019, JANUARY 4, 1995
Justice Sempio-Diy cites with approval the work of Dr. Gerardo Veloso,
a former Presiding Judge of the Metropolitan Marriage Tribunal of the
Catholic Archdiocese of Manila (Branch 1), who opines that
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psychological incapacity must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability.
o The incapacity must be grave or serious such that the party
would be incapable of carrying out the ordinary duties required
in marriage;
o it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only
after the marriage; and
o it must be incurable or, even if it were otherwise, the cure would
be beyond the means of the party involved.
The term "psychological incapacity" should refer to no less than a
mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as so
expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and
render help and support.
There is hardly any doubt that the intendment of the law has been to
confine the meaning of "psychological incapacity" to the most serious
cases of personality disorders clearly demonstrative of an utter
intensitivity or inability to give meaning and significance to the
marriage. This pschologic condition must exist at the time the marriage
is celebrated. The law does not evidently envision, upon the other
hand, an inability of the spouse to have sexual relations with the other.
This conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of nullity
of the void marriage to be "legitimate."
Psychological Incapacity Insanity
the most serious cases of SEMPIO-DIY: It is not insanity or
personality disorders clearly mental incapacity because
demonstrative of an utter insanity:
intensitivity or inability to give i. May be of varying degrees;
meaning and significance to the ii. Is curable, being an illness;
marriage hence, marriage can be
ratified
iii. Has lucid intervals
iv. Is a ground only for
annulment of marriage in
many countries
Void – Article 36 Voidable – Art. 45(2)
CHI MING TSOI v. CA
G.R No. 119190, January 16, 1997
If a spouse, although physically capable but simply refuses to perform
his or her essential marriage obligations, and the refusal is senseless
and constant, Catholic marriage tribunals attribute the causes to
psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the
prolonged refusal of a spouse to have sexual intercourse with his or
her spouse is considered a sign of psychological incapacity.
Evidently, one of the essential marital obligations under the Family
Code is "To procreate children based on the universal principle that
procreation of children through sexual cooperation is the basic end of
marriage." Constant non- fulfillment of this obligation will finally
destroy the integrity or wholeness of the marriage. In the case at bar,
the senseless and protracted refusal of one of the parties to fulfill the
above marital obligation is equivalent to psychological incapacity.
 SC in this case tries to emphasize the requirement that it must
relate to the utter inability to perform the essential marital
 Persons and Family Relations
2nd Exam
obligation. Here, there is no categorical identification of some
form of medical condition for Chi Ming Tsoi’s condition but
nevertheless that will not preclude the finding of Psychological
Incapacity.
REPUBLIC v. CA and MOLINA
G.R NO. 108763, February 13, 1997
The following guidelines in the interpretation and application of Art. 36
of the Family Code are hereby handed down for the guidance of the
bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs
to the plaintiff. Any doubt should be resolved in favor of the existence
and continuation of the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family, recognizing it "as
the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be "protected" by the
state.
The Family Code echoes this constitutional edict on marriage and the
family and emphasizes the permanence,
inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint,
(c) sufficiently proven by experts and (d) clearly explained in
the decision. Article 36 of the Family Code requires that the
incapacity must be psychological — not physical. although its
manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or
physically ill to such an extent that the person could not have known
the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of the
provision under the principle of  ejusdem generis, nevertheless such
root cause must be identified as a psychological illness and its
incapacitating nature explained. Expert evidence may be given
qualified psychiatrist and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of
the celebration" of the marriage. The evidence must show that the
illness was existing when the parties exchanged their "I do's." The
manifestation of the illness need not be perceivable at such time, but
the illness itself must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not related to marriage,
like the exercise of a profession or employment in a job. Hence, a
pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but may not be psychologically
capacitated to procreate, bear and raise his/her own children as an
essential obligation of marriage.
(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes.
The illness must be shown as downright incapacity or inability, nor a
refusal, neglect or difficulty, much less ill will. In other words, there is
a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby complying
with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced
by Articles 68 up to 71 of the Family Code as regards the
18 | P a g e | A L B E R T | ARITALIA
husband and wife as well as Articles 220, 221 and 225 of the same
Code in regard to parents and their children. Such non-complied
marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines,
while not controlling or decisive, should be given great
respect by our courts. It is clear that Article 36 was taken by the
Family Code Revision Committee from Canon 1095 of the New Code of
Canon Law, which became effective in 1983 and which provides:
The following are incapable of contracting marriage: Those who are
unable to assume the essential obligations of marriage due to causes
of psychological nature. 
Since the purpose of including such provision in our Family Code is to
harmonize our civil laws with the religious faith of our people, it stands
to reason that to achieve such harmonization, great persuasive weight
should be given to decision of such appellate tribunal. Ideally —
subject to our law on evidence — what is decreed as canonically
invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose
of the Family Code provision, contemporaneous religious interpretation
is to be given persuasive effect. Here, the State and the Church —
while remaining independent, separate and apart from each other —
shall walk together in synodal cadence towards the same goal of
protecting and cherishing marriage and the family as the inviolable
base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No
decision shall he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring therein
his reasons for his agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting attorney,
shall submit to the court such certification within fifteen (15) days from
the date the case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095.
 Take note of these guidelines, because I could ask you to
enumerate the Molina guidelines. You should have adequate
one-liner. Example under Paragraph 6, the essential marital
obligations which cannot be performed are those which are
embraced under Article 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 and
225 of the same Code in regard to their parents an children.
MARCOS v. MARCOS
G.R N.O 136490, October 19, 2000
Totality of Evidence Rule – The Moline guidelines do not require
that a physician examine the person to be declared psychologically
incapacitated. In fact, the root cause may be "medically or clinically
identified." What is important is the presence of evidence that can
adequately establish the party’s psychological condition. For indeed, if
the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the
person concerned need not be resorted to.
Although this Court is sufficiently convinced that respondent Wilson
failed to provide material support to the family and may have resorted
to physical abuse and abandonment, the totality of his acts does not
lead to a conclusion of psychological incapacity on his part. There is
absolutely no showing that his "defects" were already present at the
inception of the marriage or that they are incurable.
 Persons and Family Relations
2nd Exam
ARTICLE 37
Marriages between the following are incestuous and void from the
beginning, whether relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
 Incestuous marriages
 Full-blood siblings: brothers and sisters who have the same
father and mother
 Hald-blood: Only have the same ascendants (example:
brothers and sisters of the same father)
 Step-siblings: A is the child of X and C is the child of Y, X and Y
got subsequently got married, A and C would be considered as
step siblings.
ARTICLE 38
 They are against the public policy because of some prohibitions
brought about by relationship.
 Civil relationships will limit ones capacity to act, because of civil
relationship recognized by law and which is protected and
preserved by the law as between as those which are related to
each other; the law actually includes the prohibition of
marrying each other.
 Adoption actually creates a relationship by legal fiction between
the adopting parent and the child. The adopted child/ren is/are
considered to be legitimate and accumulates all rights of a
legitimate child/ren. If the adopter is actually married, the
adoption process will not be allowed if it is without consent of
the spouse of the adopting parent. If the adopting parent will
adopt a child, and that adoption was made with the consent of
the spouse of the adopting parent, if that adopting parent
subsequently dies, naturally the surviving spouse will be still
considered as the parent.
 The law is silent as to the illegitimate child marrying the
adopter. But nevertheless, what is not included in the law is
deemed to be excluded by the law.
 Paragraph 9, example A wants to kill Y to enable her to marry
X, that is not allowed. What the law requires is that the killing
is with intention to marry the other.
Legal Civil Relationships
1. Relationship by blood relations – by consanguinity
2. Relationships by legal fiction:
a. By affinity
b. By adoption
CIVIL RELATIONSHIPS by Consanguinity
Art. 963. Proximity of relationship is determined by the number of
generations. Each generation forms a degree. (915)
Art. 964. A series of degrees forms a line, which may be either direct
or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come from
a common ancestor.  his uncle, C.
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from
him.
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The latter binds a person with those from whom he descends. 
Art. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the
child is one degree removed from the parent, two from the
grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and
then descent is made to the person with whom the computation is to
be made. Thus, a person is two degrees removed from his brother,
three from his uncle, who is the brother of his father, four from his
first cousin, and so forth. 
Art. 967. Full blood relationship is that existing between persons
who have the same father and the same mother.
Half blood relationship is that existing between persons who have
the same father, but not the same mother, or the same mother, but
not the same father.
JURADO’S ILLUSTRATION:
A is the common ancestor; B, C
and D are the children of A; E
and F are the children of B, G
and H are the children of D; I
and J are the children of E; K is
the child of F; L is the child of
H; and M and N are the children
of I.
In terms of degrees, how is
E related to his grandson, M?
 In this case, descent is made from E to M, counting the
number of persons from E to M – minus one. Therefore, E is
two degrees removed from his grandson, M. Within the
direct descending line.
How is E related to his grandfather, A?
 The same procedure is followed. Ascent is made from E to A,
counting the number of persons from E to A – minus one.
Therefore, E is two degrees removed from his grandfather,
A.
How is E related to his brother, F?
 In this case, ascent is made from E to their common
ancestor, B, and then descent is made to F counting the
number of persons from E up to B down to F – minus one.
Therefore, E is two degrees removed from his brother, F.
How is E related to his uncle, C?
 The same procedure is followed. Ascent is made to E to their
common ancestor, A, and then descent is made to C,
counting the number of persons from E up to B to A down to
C – minus one. Therefore, E is three degrees removed from
How is E related to his first cousin, H?
 The same procedure is followed. Ascent is made from E to
their common ancestor, A, and then descent is made to H,
counting the number of persons from E up to B to A down to
 Persons and Family Relations
2nd Exam
D to H – minus one. Therefore, E is four degrees removed
from his first cousin H.
CIVIL RELATIONSHIPS by Affinity
The word "step", when used as prefix in conjunction with a degree of
kinship, is repugnant to blood relationship and is indicative of a
relationship by affinity. (People v. Mamac, G.R No. 130332, May 31,
2000)
Affinity is the relation that one spouse has to the blood relatives of the
other spouse. It is a relationship by marriage or a familial relation
resulting from marriage. It is a fictive kinship, a fiction created by law
in connection with the institution of marriage and family relations.
(Intestate Estate Of Carungcong V. People Of The Philippines And
William Sat, G.R No. 181409, February 11, 2010)
Affinity denotes "the relation that one spouse has to the blood relatives
of the other spouse." It is a relationship by marriage or a familial
relation resulting from marriage. It is a fictive kinship, a fiction created
by law in connection with the institution of marriage and family
relations.
Relationship by affinity refers to a relation by virtue of a legal bond
such as marriage. Relatives by affinity, therefore, are those commonly
referred to as "in-laws," or stepfather, stepmother, stepchild and the
like.
Affinity may also be defined as "the relation which one spouse because
of marriage has to blood relatives of the other. The connection
existing, in consequence of marriage between each of the married
persons and the kindred of the other. The doctrine of affinity grows
out of the canonical maxim that marriage makes husband and wife
one. The husband has the same relation by affinity to his wife's blood
relatives as she has by consanguinity and vice versa."
Indeed, "there is no affinity between the blood relatives of one spouse
and the blood relatives of the other. A husband is related by affinity to
his wife's brother, but not to the wife of his wife's brother. There is no
affinity between the husband's brother and the wife's sister; this is
called affinitas affinitatis. (Tinggangay vs. Wacas, A.M. OCA IPI No.
09-3243-RTJ : April 1, 2013)
If marriage gives rise to one’s relationship by affinity to the
blood relatives of one’s spouse, does the extinguishment of
the marriage by the death of the spouse dissolve the
relationship by affinity?
The first view (the terminated affinity view) holds that relationship by
affinity terminates with the dissolution of the marriage either by death
or divorce which gave rise to the relationship of affinity between the
parties.
Under this view, the relationship by affinity is simply coextensive and
coexistent with the marriage that produced it. Its duration is
indispensably and necessarily determined by the marriage that created
it. Thus, it exists only for so long as the marriage subsists, such that
the death of a spouse ipso facto ends the relationship by affinity of the
surviving spouse to the deceased spouse’s blood relatives.
The first view admits of an exception. The relationship by affinity
continues even after the death of one spouse when there is a surviving
issue. The rationale is that the relationship is preserved because of the
living issue of the marriage in whose veins the blood of both parties is
commingled.
The second view (the continuing affinity view) maintains that
relationship by affinity between the surviving spouse and the kindred
of the deceased spouse continues even after the death of the
deceased spouse, regardless of whether the marriage produced
children or not.
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 Under this view, the relationship by affinity endures even after the
dissolution of the marriage that produced it as a result of the death of
one of the parties to the said marriage. This view considers that,
where statutes have indicated an intent to benefit step-relatives or in-
laws, the "tie of affinity" between these people and their relatives-by-
marriage is not to be regarded as terminated upon the death of one of
the married parties. (Intestate Estate Of Carungcong V. People Of The
Philippines And William Sat, G.R No. 181409, February 11, 2010)
 Atty. Alabastro thinks that it is better to adapt the second view
ith respect to issues involving dissolution of the marriage and
the subsistence of the effective kinship created by relationship
by affinity. But as I say, this is really not an issue.
 Under Article 38, it doesn’t distinguish whether the spouses got
divorced or the other spouse died, they remain to be in-laws.
 However, with respect to step parents and step children, the
same is true. Because despite the dissolution of the marriage,
they still consider themselves having been made part of the
same family.
 You can categorically say that jurisprudence did not give a
direct pronouncement with respect to the adoption of the two
views with regard to ARTICLE 38.
CIVIL RELATIONS by Adoption
Adoption is a juridical act which creates between two persons a
personal relationship similar to that which results from legitimate
paternity and filiation. Under the law, the adopted child is considered
the legitimate son or daughter of the adopter for all intents and
purposes. It is for this reason that the law prohibits marriages between
the adopter and the adopted child.
 This is applicable to marriages under Art 38 (4,5,6,7,8)
 Take note that civil relationship by adoption is really specific.
Ehen you talk about the legal fiction, it is limited to the extent
that only the adopted children are considered relatives of the
adopting parents. For example, if the adopting parents’ parents
are still alive, you can really imagine a situation na what if
katung adopting parent ang namatay and then katung
biological parent of the adopting parent will soon die, the
question is, does the adopted child will have a right? Because
legitimate daughter man kaya siya of the adopting parent, will
it follow therefore that that adopting child is also considered as
a legitimate descendant of the deceased grandparent? There
are actually two views in succession. But for purposes of PFR,
they are not related, the adopted child with respect to the
biological parent of the adopting parent.
ARTICLE 39
The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe.
 The general perspective is on the issue of prescription.\
 Prescription by the lapse of time, certain actions will be
precluded for its filing in court.
 With respective to void marriages, the action for the
declaration of nullity of marriage shall not prescribe –
imprescriptible action.
GENERAL RULE: Only a judgement declaring a marriage void shall
sever a void marriage
 This provision highlights the requirement of the filing of an
action for declaration of nullity of marriage; otherwise, the
party will be confronted with the threat of having committed
bigamy if s/he contracts a subsequent marriage because of
the presumption that the former marriage subsists and is
valid.
 Nullity of a marriage may be used as a defense, but it is one
based on a judicial declaration.
 It is considered to be a direct attack
 Persons and Family Relations
2nd Exam
EXCEPTION: To a limited degree, there will be no need for a judicial
declaration.
 Collateral attack upon the death of either spouses –
inheritance issues (Carlos v. Sandoval)
 Subsequent marriage under Article 41 in relation to Article
42 – automatic termination; where the absentee spouse
reappear and causes the registration of his or her
reappearance
Prudencio cannot claim to have been in good faith in assuming that
there was no legal impediment for him to remarry based merely on the
National Statistics Office's issuance of a Certificate of No Marriage
Record. Based on Prudencio and Arlene's Marriage Certificate, along
with the photos of the wedding ceremony, they were married on April
8, 1994. Thus, the Certificate of No Marriage Record is not enough for
Prudencio to assume that his previous marriage with Arlene has been
voided.

Who may institute the action?

Types of Void Bigamous Marriages
The marriage having been solemnized prior to the effectivity of Family
Code, the applicable law is the Civil Code which was the law in effect Bigamous Under Article 35 (4) Bigamous Under Article 40
at the time of its celebration. But the Civil Code is silent as to who may The subsequent marriage is void The subsequent marriage is void
bring an action to declare the marriage void. Does this mean that any because of the subsistence of the because of the failure to acquire
person can bring an action for declaration of nullity of marriage? prior marriage, and the prior the judicial declaration of the
marriage is valid previous marriage, and such
 The absence of a provision in the Civil Code cannot be marriage is void.
construed as a license for any person to institute a nullity of Property Regime is governed by Property Regime is governed by
marriage case. Such person must appear to be the party limited co-ownership under Article Absolute Community of Property
who stands to be benefited or injured by the judgment in 148 or Conjugal Partnership of Gains
the suit, or the party entitled to the avails of the suit. (c.f. Art. 50)
Elsewise stated, plaintiff must be the real party-in-interest. Judicial declaration may be Judicial declaration may be
For it is basic in procedural law that every action must be acquired for severance of the acquired for severance of the
prosecuted and defended in the name of the real party-in- subsequent bigamous marriage previous marriage with the
interest. purpose of remarrying
 Interest within the meaning of the rule means material
interest or an interest in issue to be affected by the decree
or judgment of the case, as distinguished from mere ARTICLE 41 in relation to ARTICLE 42
curiosity about the question involved or a mere incidental
interest. One having no material interest to protect cannot Rules on Judicial Declaration of Presumptive Death
invoke the jurisdiction of the court as plaintiff in an action.
When plaintiff is not the real party-in-interest, the case is General Rule: A marriage contracted by any person during the
dismissible on the ground of lack of cause of action. (Carlos subsistence of a previous marriage: NULL and VOID – that’s because
v. Sandoval) of either Article 35 (4) or Article 40

SUMMARY Exception:

A.M No. 02-11-10-SC Sec. 2a (filed by spouse)
o Marriage celebrated under FC
o March 15, 2003 onwards
Carlos Sandoval (collateral attack, real party in interest)
o Marriages under NCC
o Marriages under FC prior to March 15, 2003
1. Before the celebration of the subsequent marriage, the prior
spouse (spouse in the previous marriage) had been absent
for four consecutive years and
a. In case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
2. The spouse present had a well-founded belief that the
absent spouse was already dead

ARTICLE 40 RECOURSE? The spouse present must institute a summary proceeding

as provided in this Code (Article 238) for the declaration of
The absolute nullity of a previous marriage may be invoked for presumptive death of the absentee without prejudice to the effect of
purposes of remarriage on the basis solely of a final judgment reappearance of the absent spouse.
declaring such previous marriage void.
Remedies of the Reappearing Spouse
 This is actually a bigamous marriage if you do not acquire a
judicial declaration of absolute nullity of previous marriage. 1. Execution and recording of the affidavit of reappearance:
a. The subsequent marriage shall be automatically
DE GUZMAN Y JUMAQUIO v. PEOPLE terminated by the recording of the affidavit of
G.R No. 224742, August 07, 2019 reappearance of the absent spouse, unless there is
a judgement annulling the previous marriage or
The law provides that a judicial declaration of nullity is indispensable declaring it void ab initio.
for the purposes of remarriage. In Teves v. People. b. A sworn statement of the fact and circumstances
of reappearance shall be recorded in the civil
registry of the residence of the parties to the
The Family Code has settled once and for all the conflicting
subsequent marriage at the instance of any
jurisprudence on the matter. A declaration of the absolute nullity of a
interested person, with due notice to the spouses
marriage is now explicitly required either as a cause of action or a
of the subsequent marriage.
ground for defense. Where the absolute nullity of a previous marriage
2. Judicial Determination of the fact of appearance – “without
is sought to be invoked for purposes of contracting a second marriage,
prejudice to the fact of reappearance being judicially
the sole basis acceptable in law for said projected marriage to be free
determined in case such fact is disputed.”
from legal infirmity is a final judgment declaring the previous marriage
void.
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 Persons and Family Relations
2nd Exam
 Example, there is a reappearing spouse, and the present
spouse who contracted another marriage will deny the fact
that the reappearing spouse is not his/her previous spouse
because she/he was her/his twin even if it was recorded in the
affidavit of reappearance, and the present spouse believed so
that her/his previous spouse is already dead. Thus, if the facts
of reappearance are already in doubt, the recording of the
affidavit is no longer sufficient. The present spouse shall file for
a judicial determination of the fact of appearance.
REPUBLC v. QUINONEZ
G.R No. 237412, January 6, 2020
Culled from this provision, the essential requisites for a declaration of
presumptive death for the purpose of remarriage are:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the
absentee is dead and
4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.
The petition is anchored on Remar’s alleged failure to prove
compliance with the third requisite.
The law did not define what is meant by “well founded belief”. It
depends upon the circumstances of each particular case. Its
determination, so to speak, remains on a case-to-case basis. To be
able to comply with this requirement, the present spouse must prove
that his or her belief was the result of diligent and reasonable efforts
and inquiries to locate the absent spouse and that based on these
efforts and increased inquiries he or she believes that under the
circumstances the absent spouse is already dead it requires exertion of
active effort (not a mere passive one).
Here, Remar’s efforts to locate Lovelyn are marked by the following
acts:
1. Remar travelled to several places where his wife had been
reportedly seen particularly, Bilsig City and the Municipality of Lingig in
the province of Surigao del Sur, Metro Manila, Batangas, and Cavite
and
2. Remar constantly communicated with Lovelyn’s relatives for a period
of ten (10) years in order to ascertain Lovelyn’s whereabouts.
Unofrtunately, Remar failed to allege, much less prove, the extent of
the search he had conducted in the places where he claims to have
gone. This leaves the Court with no way to ascertain the extent of
Remar’s search.
Remar also failed to identify which of Lovelyn’s relatives he had
communicated with, and disclose what he learned from these
communications. Again, this leaves the Court with no basis to
determine whether the information Remar learned is sufficient to
engender a well-founded belief that Lovelyn is dead.
Moreover, much like the respondent in Cantor, Remar never sought
the help of the authorities to locate Lovelyn un the course of her ten
year disappearance. Remar was given ample opportunity to explain his
failure to report Lovelyn’s disappearance, considering that the Republic
first noted such failure when its petition for certiorari with the CA.
Curiously, however, Remar chose not to address the matter.
Finally, the allegations in Remar’s Petition for Declaration of
Presumtive Death suggest that he is aware of the true cause of
Lovelyn’s disappearance, thus:
In the first three months that his wife was in Manila, there was
constant communication through cellphone calls and texts. Remar
relayed to Lovelyn that he is working in Surigao City as a security
guard in the hall of justice.
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Then the calls and text got fewer and fewer until they stopped. He
thought that the cellphone of his wife was just lost so he started
inquiries from his and her relatives in Bislig City; one confessed that
his wife is now cohabiting with another man and will not be going
home because of shame. He could not Believe and refused to believe
the devastating news
The court commiserates with Remar’s plight. Nevertheless, the court
cannot uphold the issuance of a declaration of presumptive death for
the purpose of remarriage where appears to be no well-founded belief
of the absentee spouses test but only the likelihood that the absent
spouse does not want to be found
 The SC really does not grant the petition for Presumptive Death
because of the issue that they do not rise to the well-founded
belief required allegedly by Article 41.
 Are we led to presume that there are no actions granting a
petition for presumptive death? Citing the case of Reoublic vs.
Estrada;
REPUBLIC v. ESTRADA
G.R NO. 214792, MARCH 18, 2015
In this case, Diego's absence for more than 30 years, which far
exceeded the law-required four years of absence is more than enough
to declare him presumptively dead for all legal intents and purposes.
Further. it can be clearly gleaned from the totality of evidence that
Diego had already died due to the prevalence of New People's Army in
Malaybalay. As Cited by the appellate court:
It had been thirty two years since the date of Diego Olemberio's
disappearance when Teresita seasonably filed her petition with the
RTC. The fact that Diego Olemberio would be seventy-five years old by
now was reason enough to support the presumption that he could be
dead. To Teresita Olembeno, the acts of going to SSS to inquire on
Diego's remittances and of going to the house of the parents of Diego
to inquire as to his whereabouts, constitute diligent efforts sufficient to
support her belief that Diego is dead. It is the petitioner in a petition
for declaration of presumptive of death, and not the trial court, who
must possess a well-grounded belief of the death of his or absent
spouse.
To the satisfaction of the trial court, Teresita Olembeno was able to
prove such belief. This Court is well aware that in the mountainous
province of Bukidnon where the [Estrada) resides, NPA occupation is
prevalent Thus, we find no cogent reason to disturb the findings of
fact of the trial court.
ARTICLE 43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate, and their custody and
support in case of dispute shall be decided by the coirt in a proper
proceeding;
(2) The absolute community of property or the conjugal partnership,
as the case may be, shall be dissolved and liquidated, but if either
spouse contracted said marriage in bad faith, his or her share of the
net profits of the community property or conjugal partnership property
shall be forfeited in favor of the common children or, if there are none,
the children of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if
the donee contracted the marriage in bad faith, such donations made
to said donee are revoked by operation of law;
 Persons and Family Relations
2nd Exam
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance policy,
even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse by testate and
intestate succession.
 What will now happen if the reappearing spouse will avail of
the remedies specifically execution of the affidavit of
reappearance and recording that affidavit before the local
civil registrar? What will be the effect now to the subsequent
marriage? So obviously the subsequent marriage will be
terminated.
 The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
 First, the children of the subsequent marriage conceived
prior to its termination shall be considered legitimate and
their custody and support in case of dispute shall be decided
by the coirt in a proper proceeding;
 Now, absolute community of property or the conjugal
partnership, since that is the property regime that governs
the subsequent marriage, it shall be dissolved and liquidated
but if either spouse contracted the subsequent marriage in
bad faith, meaning they knew of the defect that in fact kato
diayng absentee spouse nagtago lng diay siya or gisabutan
nila na magtago or some connivance or similar action to that
effect, the result will be, the spouse in bad faith, his or her
share in the net profits of the community property or
conjugal property shall be forfeited in the following order:
first, forfeited to their common children, if there are none,
the children of the guilty spouse from a previous marriage or
in default of children, the innocent spouse.
 Donations by reason of marriage, that is what we call,
donations propter nuptias.
 These donations shall be valid. So it will be owing to the
spouses to the subsequent marriage despite it having been
terminated except if the donee spouse contracted the
marriage in bad faith. So such donation made to sad donee
are revoked by operation of law.
 So you don’t have to do anything to revoke or to take away
or terminate or cancel that donation. It is revoked by
operation of law.
 The innocent spouse may also have the remedy to 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.
 With respect to the spouses in the subsequent marriage
contemplated under Art. 41 in relation to Art. 42, that
innocent spouse may designate katong guilty spouse as a
beneficiary in an insurance policy i.e. life insurance.
 Take note that this designation is not by operation of law. So
it must be by virtue of an action and that action to revoke
designation of the beneficiaries in an insurance policy, you’ll
learn about that in Insurance Law.
 Finally, the spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the innocent
spouse either by virtue of a last will and testament and even
intestate succession, even in the absence of a last will and
testament.
 Know this article by heart because we will be repeating it
again in Art. 50.
ARTICLE 44. If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.
 With respect to donations and testamentary dispositions,
meaning katong mga gipangbutang sa last will and
testament made with respect to one another or made to the
other spouse who also acted in bad faith, all of that is
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revoked, cancelled, or terminated by operation of law. You
don’t have to do anything about it.
 The status of the marriage is both spouses in the
subsequent marriage acted in bad faith is void ab initio. It is
obviously bigamous in relation to Art. 35 par. 4.
 Take note of that because this the effect of Art. 44 if both
spouses contracted the subsequent marriage in bad faith.
VOIDABLE MARRIAGES
 We will be correlating the provisions with one another.
ARTICLE 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage
annulled was eighteen years of age or over but below twenty-one, and
the marriage was solemnized without the consent of the parents,
guardian or person having substitute parental authority over the party,
in that order, unless after attaining the age of twenty-one, such party
freely cohabited with the other and both lived together as husband and
wife;
(2) That either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other as husband and
wife;
(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting the
fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation
or undue influence, unless the same having disappeared or ceased,
such party thereafter freely cohabited with the other as husband and
wife;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to
be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease
found to be serious and appears to be incurable.
ARTICLE 46. Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the
other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of 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 time of the marriage.
No other misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute such fraud as will give grounds for
action for the annulment of marriage. (86a)
ARTICLE 47. The action for annulment of marriage must be filed by
the following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose
parent or guardian did not give his or her consent, within five years
after attaining the age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any time before such party
has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by any
relative or guardian or person having legal charge of the insane, at any
 Persons and Family Relations
2nd Exam
time before the death of either party, or by the insane spouse during a  But it is also possible that that action may be instituted by
lucid interval or after regaining sanity; the parent or guardian or person having legal charge of the
minor and that action will be filed at any time before such
(3) For causes mentioned in number 3 of Article 45, by the injured party reaches the age of twenty-one.
party, within five years after the discovery of the fraud;  Its different. So with respect to Art. 47, its either the party
who is 18 to 21 yrs of age or it is the parent or guardian of
(4) For causes mentioned in number 4 of Article 45, by the injured that person.
party, within five years from the time the force, intimidation or undue  So when we talk about a minor here, because of the change
influence disappeared or ceased; of the age of emancipation under the law, we talk about the
minor as a person who is 18 yrs or age but below 21 yrs of
(5) For causes mentioned in number 5 and 6 of Article 45, by the age. So it may be filed by the party himself, the one who is
injured party, within five years after the marriage. 18 to 21 who did not acquire the parental consent and that
 Art. 45 gives you the grounds may be instituted within 5 years after attaining the age of 21
 Art. 46 is an extension of the grounds under Art. 45 par. 3 . yrs old.
 And we also have Art. 47 that gives you the instances within  But if its by the parents, it can by anytime before such party
which a party should file an action for annulment. Otherwise, reaches the age of 21.
beyond the periods contemplated by Art. 47, that action for  The exception to Art. 45 is, after attaining the age of 21,
annulment would have already prescribed. such party freely cohabited with the other and both lived as
 Lets correlate these with one another for a better husband and wife.
understanding.  This free cohabitation or this exception under Art. 45, the
 First is, is the first ground under Art. 45. So we will correlate first instance, this talks about a situation where the voidable
it with the periods under Art. 47. marriages may be ratified.
 Remember that principle that remedy in voidable or
SUMMARY annullable marriages, it will not only be an action for
ARTICLE 45. A ARTICLE 47. The action for annulment of annulment to declare that marriage subsequently as
marriage may be marriage must be filed by the following annulled. It could also be possible that the marriage will stay
annulled for any of persons and within the periods indicated completely valid if they ratify the marriage. And under Art.
the following causes, herein: 45, it is the spouse who is below 21 but 18 and above, who
existing at the time will ratify on account of their free cohabitation with the other
of the marriage: spouse such that they will both leave together as husband
(1) That the: Who may Period? and wife.
institute?  So this posts an important question.
* party in whose
behalf it is sought to (1) For causes May the parents ratify this voidable marriages?
have the marriage mentioned in number  Sempio-Dy: No, since the law requires mutual and free
was eighteen years 1 of Art. 45: —within five years cohabitation of the spouses. The parents have no
of age or over but —by the party after attaining the involvement.
below twenty-one, whose parent or age of twenty-one;  Tolentino: Yes
and guardian did not give 1) Since parental consent is all that the law requires,
* the marriage was his or her consent, or —at any time before so that it is immaterial whether the consent is
solemnized without —by the parent or such party reaches given in advance or after the marriage by
the consent of the guardian or person the age of twenty- ratification [BUT NOTE: “existing at the time of
parents, guardian or having legal charge one the marriage” (Art. 45)]
person having of the minor 2) And the parents may waive the right to institute
substitute parental an action for annulment within the prescribed
authority over the period.—convalidation by prescription, not by
party. in that order ratification

 No. 2 is not a positive act from the parents.

 Their inaction to institute an action for annulment especially
XPN: After attaining after the prescriptive period that is convalidation by
the age of 21, such prescription.
party freely  Strictly speaking, that is not ratification as what Tolentino
cohabited with the posits.
other and both lived
as husband and wife. ARTICLE 45. A ARTICLE 47. The action for annulment of
marriage may be marriage must be filed by the following
 Under Art. 45, the first instance talks about a party in whose annulled for any of persons and within the periods indicated
behalf it is sought to have the marriage was eighteen the following causes, herein:
years of age or over but below twenty-one years of existing at the time
age. of the marriage:
 If you remember this diba, there is a requirement of parental (2) That either party Who may Period?
consent. was of unsound mind institute?
 The marriage is voidable because it was solemnized without
the consent of the parents, guardians or person having (2) For causes
substitute parental authority over such party. And it must be mentioned in number
in that order. 2 of Article 45: —at any time before
 If the marriage is solemnized without the consent of these —by the sane spouse the death of either
persons, take note that in relation to Art. 47, the action for who had no party
annulment may be filed by the party whose parent or knowledge of the
guardian did not give his or her consent and that action other’s insanity; by
must be filed within five years after attaining the age of any relative, guardian
twenty-one. or person having
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 Persons and Family Relations
2nd Exam
legal charge of the within 5 years. Remember the important reckoning point,
insane after the discovery of the fraud.
—during a lucid  Its not five years after the marriage, its not five years after
—by the insane interval or after the commission of the fraud, it is five years after discovery
spouse. regaining sanity of the fraud. Because again, that is that time that you can
properly reckon that period because it is at that point in time
XPN: unless such where the injured party realized that he was actually
party, after coming defrauded, his consent was not freely given and was actually
to reason, freely defective because of some fraudulent machination or
cohabited with the misrepresentation on the part of the other spouse.
other as husband  So it is possible that they could have been married for 20
and wife. years but at that moment of discovery that is when you
reckon the five year period.
 Who may institute an action for annulment? By the sane
spouse who had no knowledge of the other’s spouse GROUNDS FOR CONSTITUTING FRAUD
insanity; by any relative, guardian or person having legal
charge over the insane. So the representative or the ARTICLE 46. Any of the following circumstances shall constitute fraud
guardian may institute that. When? At any time before the referred to in Number 3 of the preceding Article:
death of either party. Because of course the death of either
party, would already terminate the marriage. (1) Non-disclosure of a previous conviction by final judgment of the
 It may also be filed by the insane person but its specific that other party of a crime involving moral turpitude;
it must be filed during a lucid interval or after that person
regains sanity. (2) Concealment by the wife of the fact that at the time of the
 Take note of the exception. Unless such party, after coming marriage, she was pregnant by a man other than her husband;
to reason because he is cured from his insanity or during a
lucid interval, freely cohabited with the other as husband (3) Concealment of sexually transmissible disease, regardless of its
and wife. nature, existing at the time of the marriage; or
 So coming to reason here must really be a conscious effort
to freely cohabit with the other spouse. That is necessary in (4) Concealment of drug addiction, habitual alcoholism or
order to ratify the marriage. homosexuality or lesbianism existing at the time of the marriage.
 Again, to cleanse that marriage of all of its defects.
 It is important that the grounds under Art. 45 must exist at No other misrepresentation or deceit as to character, health, rank,
the time of the marriage. And when we talk about the right fortune or chastity shall constitute such fraud as will give grounds for
to institute an action for annulment and the period within action for the annulment of marriage.
which it must be instituted we’ll refer to Art. 47 except for
Art. 45 par. 3 because here we talk about a situation where  Art. 46(1) is a matter involving crim. This concept of moral
consent of either of the contracting parties was obtained by turpitude. You just read it in your books what that means.
fraud.  I just want to emphasize that it is the non-disclosure that
amounts to fraud. And it must be a conviction by final
ARTICLE 45. A ARTICLE 47. The action for annulment of judgment.
marriage may be marriage must be filed by the following  Art. 46(2): Take note the law is very specific with respect to
annulled for any of persons and within the periods indicated the type of chastity that is concealed.
the following causes, herein:  Art. 46(2) does not apply the other way around, that
existing at the time concealment by the husband of the fact that he had already
of the marriage: sired a child by another woman at the time of the marriage.
(3) That the consent Who may Period?  The reason for this because is that, there is a danger if the
of either party was institute? wife conceals the fact that she was pregnant by a man other
obtained by fraud. (3) For causes than his husband, it runs the danger of introducing a
mentioned in number stranger into the family.
3 of Art. 45:  Supposedly that child if the other man is not married,
—within five years supposedly that child is illegitimate. But if that child will be
—by the injured after the discovery of born into that marriage, and the husband did not know
party. fraud about it because of the fraudulent concealment on the part
of the wife, that child will be considered as legitimate son or
daughter which has certain successional rights and rights to
XPN: unless such their properties which illegitimate children do not have or at
afterwards least on an equal level not equal to that of a legitimate
1. Freely cohabit with children.
the other as husband  Art. 46(3): Regardless of its nature whether its incurable or
and wife not for as long as its existing at the time of the marriage.
2. With full  Art. 46(4)
knowledge of the  Take note that the acts constituting fraud here is the act of
facts constituting the concealment or non-disclosure.
fraud
 This enumeration is exclusive.
 If you conceal the fact that you are rich, you were
 Again, the exception here or the ratification here happens if pretending to be poor, and that particular aspect is the
such party, meaning one whose consent was obtained by reason why someone married you because of your humble
fraud, freely cohabited with the other, meaning the one who beginnings, etc. but in truth and in fact you’re filthy rich,
defrauded him, freely cohabited as husband and wife with subsequently the other spouse cannot annul your marriage
full knowledge of the facts constituting fraud. just because you conceal that fact from them.
 In case that this type of marriage will not be ratified, who
may institute an action for annulment? This action may ARTICLE 45. A ARTICLE 47. The action for annulment of
instituted by the injured party and it must be instituted marriage may be marriage must be filed by the following
25 | P a g e | A L B E R T | ARITALIA
 Persons and Family Relations
2nd Exam
annulled for any of persons and within the periods indicated the latter of a reasonable freedom of choice. The following
the following causes, herein: circumstances shall be considered: the confidential, family, spiritual
existing at the time and other relations between the parties, or the fact that the person
of the marriage: alleged to have been unduly influenced was suffering from mental
(4) That the consent Who may Period? weakness, or was ignorant or in financial distress.
of either party was institute?
obtained by force, (3) For causes  Remember these definitions.
intimidation or undue mentioned in number  When we talk about violence, it must be a physical act.
influence 4 of Art. 45:  When we talk about intimidation, this talks about moral
—within five years compulsion. So its not a physical compulsion.
—by the injured from the time the  Undue influence is basically an undue advantage. It happens
party. force, intimidation or when a person takes an proper advantage of his power over
undue influence the will of another.
disappeared or  This usually happens in instances whereby by virtue of
ceased relationship, you take advantage of that relationship and use
it against another person.
XPN: unless:
 An example of intimidation is shotgun weddings.
1. such party
 If your boss tells you na if hindi mo pinakasalan anak niya,
thereafter freely
that’s undue influence.
cohabited with the
 When you talk about violence, binugbog.
other as husband
 Violence, intimidation and undue influence, they must have
and wife;
spurred the individual’s giving their consent.
2. the same having
 If there’s no relationship between the violence committed, or
disappeared or
ceased the intimidation done, or the undue influence which was
been properly taken advantage, there is no connection as to
the giving of one’s consent, then that marriage is completely
 Under par. 4, if the consent of either party was obtained by
valid. Its not voidable.
force, intimidation or undue influence. Unless there is a
 Finally, grounds under par. 5 and 6. We’ll discuss them
ratification.
jointly because they are discussed jointly under Art. 47 but
 Ratification is made under Art. 45 par. 4 in that, such party,
there are different grounds.
meaning the one whose consent was obtained through F, I,
or UI, thereafter freely cohabited with the other as husband
ARTICLE 45. A ARTICLE 47. The action for annulment of
and wife and the same having disappeared or ceased.
marriage may be marriage must be filed by the following
 They must have known about the fact of that F, I, or UI
annulled for any of persons and within the periods indicated
obviously.
the following causes, herein:
 What is important is, not the fact that they have knowledge
existing at the time
about these circumstances but the fact that they freely
of the marriage:
cohabited thereafter at the point in time when this F, I, or UI
has already disappeared or ceased. So its different from (5) That either party Who may Period?
fraud. was physically institute?
 More importantly, the one who may institute the action for incapable of (3) For causes
consummating the mentioned in number
annulment is the injured party, meaning the one whose
marriage with the 4 of Art. 45:
consent is acquired by virtue of these vices which renders
other, and such —within five years
one’s consent defective, within five years from the time the
incapacity continues —by the injured from the time the
force, intimidation or undue influence disappeared or
and appears to be party. force, intimidation or
ceased.
incurable; or undue influence
 So its only logical. How can you file an action for annulment
disappeared or
that you are under duress or that your are being intimidated,
ceased
that there is an undue advantage taken over you diba.
(6) That either party
 So this period tolled, it is stopped during the period of the
was afflicted with a
existence of fraud, intimidation or undue influence.
sexually-transmissible
 So logically the prescriptive period must be reckoned from
disease found to be
the time that these circumstances disappeared or ceased.
serious and appears
The five year period should be reckoned from that moment.
to be incurable.
 Now, since we don’t have a definition what violence,
intimidation or undue influence is, I want you to jump to
Arts. 1335 and 1337.
XPN: unless:
1. such party
CONCEPTS
thereafter freely
cohabited with the
ARTICLE 1335. There is violence when in order to wrest consent,
other as husband
serious or irresistible force is employed.
and wife;
2. the same having
There is intimidation when one of the contracting parties is
disappeared or
compelled by reasonable and well-grounded fear of an imminent and
ceased
grave evil upon his person or property, or upon the person or property
of his spouse, descendants or ascendants, to give his consent.
 Under par. 1 of Art 45, eitherone of the parties was
To determine the degree of intimidation, the age, sex and condition of
physically incapable of consummating the marriage with the
the person shall be borne in mind. xxx
other, and such incapacity continues and appears to be
incurable.
ARTICLE 1337. There is undue influence when a person takes
improper advantage of his power over the will of another, depriving  So there are three important requisites:

26 | P a g e | A L B E R T | ARITALIA
 Persons and Family Relations
2nd Exam
1. The physical incapability to consummate the DISTINCTIONS
marriage VOID VOIDABLE
2. That incapacity must be continuous Nature Inexistent from the Valid and binding
3. That capacity must be incurable very beginning until annulled by a
 Under par. 6 if you distinguish this with Art 46, the one with competent court
STD under par. 3, if either one of the parties is afflicted with Susceptibility to Generally not Convalidated either
a STD, Art 45 par 6 requires that that STD must be serious convalidation susceptible, except by:
and incurable. under Art. 35(2) 1. Cohabitation
 There are three requisites under Art 45 par. 6 but if you try 2. Prescription
compare it with Art. 46 its explicit. Regardless of the nature Effect upon property Generally governed Generally governed
of the STD. relations by rules on co- by the marriage
 So here the nature of the STD is important that it must be ownership (147&148) settlements or legal
incurable. except void property regimes
 Another point of distinction under Art. 46, the STD must marriages under Art.
have been concealed regardless of its nature at the time of 40
the marriage—that constitutes fraud. Effect upon status of Generally children Conceived before the
 Here, it’s a separate ground altogether. Whether concealed children are illegitimate decree of annulment
or not, as long as that STD was present at the time of the except children of are considered
marriage, it is serious and it is incurable in nature, then that void marriages under legitimate
is a ground to declare that marriage as annulled or to have it Art. 35(6) and Art. 36
annulled. It is a voidable marriage under Art 45 par 6. in relation to Art. 54
 So in both paragraphs, it is the injured party who may How marriage may May be attacked Judicial declaration
institute to annul the marriage. be impugned either directly or is necessary
 There is one reglamentary period to talk about and that is collaterally
five years after the marriage. Who may impugn the Anyone who may be As a rule, only by the
 So this is the instance where the date of the marriage is marriage an interested party contracting parties,
important because you reckon it from that date regardless of with a direct interest except in cases under
when they knew about it or when they discovered it. Art. 45(1)
When the marriage Not subject to Subject to
Physical incapacity may be impugned prescription, and may prescription, and
Incapacity to consummate denotes the permanent be assailed even must be assailed
inability on the part of the spouses to perform the after death of either during the lifetime of
complete act of sexual intercourse. Non-consummation of the contracting either of the
of a marriage may be on the part of the husband or of the parties contracting parties
wife and may be caused by a physical or structural
defect in the anatomy of one of the parties or it may  Remember these distinctions
due to chronic illness and inhibitions or fears arising
in whole or in part from psychophysical conditions. It
may be caused by psychogenic causes, where such mental MATTERS OF PROCEDURE
block or disturbance has the result of making the spouse
physically incapable of performing the marriage act. (Alcazar OVERVIEW OF PROCEDURE (Summary of A.M. No. 02-11-10-SC)
v. Alcazar) 1. Filing of the petition for declaration of nullity or annulment
Under the doctrine of triennial cohabitation , the before the Family Courts (RTCs)
husband in this case is presumed to be impotent. The claim 2. Summons will be served on the other spouse
of the husband that his wife did no want carnal intercourse 3. The respondent-spouse will have 15 days from receipt of
is hard to believe. Such solicitation of a groom is noble; of a summons to file an Answer
husband, heroic. Men are still cavemen in the pleasures of 4. The public prosecutor will investigate whether there
the bed. The husband’s plea does not inspire confidence. was collusion between the parties
Common experience discredits it. And if in fact he had the 5. Pre-trial and pre-trial conference
physical power and refrained from sexual intercourse during 6. Trial and submission of Memoranda
the five years he occupied the same bed with his wife, 7. Decision will be rendered
purely out of sympathy for her feelings, he deserve to be
doubted for not having asserted his rights, even though she ARTICLE 48. In all cases of annulment or declaration of absolute
balked. The presumption of impotency (because of the nullity of marriage, the court shall order the prosecuting attorney or
doctrine of triennial cohabitation) has not been overcome, fiscal assigned to it to appear on behalf of the State to take steps to
and the decree of annulment will be granted. (Tompkins v. prevent collusion between the parties and to take care that evidence is
Tompkins) not fabricated or suppressed.

 This is an instance where according to the New Jersey Court,
because of the application of triennial cohabitation, it is a
situation where it gives rise to legal presumption of physical
incapability to consummate the marriage.
 When we talk about a physical incapacity we are talking
about a situation of impotency. It means the chronic inability
to attain or sustain an errection for the performance of a
sexual act.
 What is important is the incapability to complete the act of
sexual intercourse. It must not be the fact that they can
engage to sexual intercourse but they cannot bear a child.
That’s a totally different story.
 How do we distinguish matters involving void and voidable
marriges?
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In the cases referred to in the preceding paragraph, no judgment shall
be based upon a stipulation of facts or confession of judgment.
COLLUSION
Collusion is a situation where, for purposes of getting an annulment or
nullity decree:
1. The parties come up with an agreement making it appear
that the marriage is defective due to the existence of any of
the grounds for the annulment of marriage or the
declaration of its nullity provided by law
2. Agree to represent such false or non-existent cause of action
before the proper court
3. With the objective of facilitating the issuance of a decree of
annulment or nullity of marriage
 Persons and Family Relations
2nd Exam
Collusion implies a corrupt agreement between the husband and
wife and therefore, renders dismissible any annulment of nullity case
initiated through the same.
 When we talk about collusion, at a bare minimum, it
talks about a corrupt agreement to fabricate grounds
which really and truly do not exist.
 It’s a different matter when the parties agree at some
point that will file actions against each other involving
the invalidity of their marriage or regarding the defect
in their marriage.
 What is an example? In psychological incapacity for
example, under Art. 36, musugot and husband and wife
na muadto silag psychologists or psychiatrist. Can you
say that the fact that they were going together to a
psychiatrist, that is already collusion? Of course, not.
Because for example if the wife will file an action on the
base of PI against the husband. The husband will say,
‘im not the one who is psychologically incapacitated,
you are’ or ‘both of us’. That is not a corrupt agreement
or collusion which the law seeks to prevent.
 The investigation of collusion or collusion report is the
job of the fiscal or prosecuting attorney who represents
the State.
 Because again, the State has an interest in the validity,
invalidity or subsequent invalidity of that marriage.
Stipulation of facts v. Confession of judgment
The former is practically an admission by both parties made in court
agreeing to the existence of the act constituting the ground for
annulment or for the declaration of nullity of the marriage, while the
latter is the admission made in court by the respondent or defendant
admitting fault as invoked by the plaintiff to sever the marriage ties.
The prohibition expressed in the aforesaid laws and rules is predicated
on the fact that the institutions of marriage and of the family are
sacred and therefore are as much the concern of the State as the
spouses; because the state and the public have vital interest in the
maintenance and preservation of these social institutions against
desecration by collusion between the parties or by fabricated evidence.
 This is the distinction of the two terms.
 And it is not allowed because again it would amount to
collusion.
 When parties make certain admissions in court, that is what
you call a judicial admission, and under the Rules of
Evidence, when one makes an admission, evidence need not
be presented to prove that fact because they already
admitted in court.
 Usually in certain proceedings or other civil cases, that’s
allowed.
 But with respect to a civil case involving a marriage, a
judgment shall not be based solely on the admission of the
parties.
 The point of Art. 48 is that that judgment must not be based
on that admission alone, or those stipulations of acts alone.
 Second, with respect to confession of judgment. You can
imagine a situation, where for example, the wife will file an
action for declaration of nullity against the husband on the
ground of psychological incapacity and all of a sudden, the
husband will just say, ‘okay im psychologically incapacitated’.
Will that mean that they will not anymore present evidence?
NO. that’s a confession of judgment.
 So what the law really prohibits is a judgment or decision in
an action for nullity or annulment that cannot be based on
stipulation of facts or confession of judgment alone. The
matters involving the existing grounds with respect to nullity
or annulment they must be fully threshed out in a trail
proceeding. They have to present evidence, testimonies of
their own witnesses.
ARTICLE 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
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Court shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided
to in Title IX. It shall also provide for appropriate visitation rights of
the other parent.
 This article talks about support pendente lite.
 Take note common children.
 Despite the severance of the marriage, there is still a right to
visit and see the child as the case may be.
 How do we really define support? Because Art. 49 is not an
action for support. Its not the main action. Its only an
ancillary proceedings. We’re talking about proceedings
involving the declaration of nullity, and annulment.
SUPPORT PENDENTE LITE
Art. 194 Support compromises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.
Transportation shall include expended in going to and from school, or
to and from place of work.
 Art. 49 talks about support pendente lite.
 So dili pwde na they file action for declaration of nullity and
annulment against each other, it’s as if they will not support
each other diba as husband and wife, that’s not allowed. Its
as if you’re severing the marriage already.
EFFECTS O JUDGMENT
ARTICLE 50. The effects provided for by paragraphs (2), (3), (4) and
(5) of Article 43 and by Article 44 shall also apply in the proper cases
to marriages which are declared ab initio or annulled by final judgment
under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of third
presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or
the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.
 Art. 50 is important in relation to Art. 43.
 Read Arts. 102 and 129.
ARTICLE 51. In said partition, the value of the presumptive legitimes
of all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian or the trustee of their property may ask
for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no
way prejudice the ultimate successional rights of the children accruing
upon the death of either of both of the parents; but the value of the
properties already received under the decree of annulment or absolute
nullity shall be considered as advances on their legitime.
 Persons and Family Relations
2nd Exam
 Art. 51 talks about a matter of partition and with respect to
the children asking for enforcement of the judgment that it
will be carried out and the delivery of presumptive legitime.
ARTICLE 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses
and the delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons.
 Talks bout the requirement of recording and if you
remember, if they are not properly recorded, the marriage is
considered void in relation to Art. 53.
 So the recording of the judgment must before the
appropriate civil registry as well as the registries of property.
ARTICLE 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
 Gives you the effect if the registration requirements as well
as the delivery, partition and distribution under Art. 52 are
not meant of not complied with, then Art. 53 tells you that
the subsequent marriage that you contract despite having
the previous marriage declared null and void, that
subsequent marriage will be considered null and void as well
because it is explicitly provided for under the law, your
failure to comply will render that subsequent marriage as
null and void.
ARTICLE 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.
 Art. 54 with respect to children conceived and born before
the judgment of annulment or absolute nullity of the
marriage only under Art. 36 before it has become final and
executory.
 What is the effect? Those children are considered legitimate.
 So remember the general rule, that legitimate children are
those who are conceived and born during the subsistence of
a marriage.
 GR: So in void marriages, if the marriage will be declared
subsequently void, as a general rule, children born into void
marriages are considered illegitimate. Even if in theie birth
certificates there is an annotation there that they are
legitimate because at that time gipresume nila that their
marriage is void, the law tells us that children born into void
marriages are as good as children born out of wed-lock. So
they are illegitimate.
 XPN: Children conceived or born, if that marriage is
considered subsequently null and void on the basis of
psychological incapacity or children are conceived or born of
the subsequent marriage under Art. 53. They are also
considered legitimate.
 These are instances where, even if the law provides that the
marriage is void, Art. 36 and Art 35, the last instance, in
relation to Art. 53, these grounds despite rendering the
marriage void, Art. 54 explicitly provides that these children
born into these void marriages are considered legitimate. So
there is a residual legal consequence despite that marriage
being considered void ab intio.
APPLICATION
 How do we apply these provisions and how do we apply
them?
ARTICLE 43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
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(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or her
share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children
or, if there are none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if
the donee contracted the marriage in bad faith, such donations made
to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance policy,
even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse by testate and
intestate succession.
 First, Art 43, I want to underscore that even if the marriage
is void diba under Art 40 in relation to Art.50, take note that
the effect under the second paragraph of Art. 43 will apply.
And what is this of that effect? That effect says that the
absolute community of property or the conjugal partnership
will be property regime in that subsequent void marriage.
ARTICLE 44. If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.
 Article 44, also applicable we’ve also discussed this.
JUDICIAL DECLARATION
GR: The final judgment shall provide for:
1. The liquidation, partition and distribution of the properties of
the spouses,
2. The custody and support of the common children, and
3. The delivery of their presumptive legitimes
XPN: unless such matters had been adjudicated in previous judicial
proceedings.
 For example, prior to the judicial declaration of nullity or
annulment proceedings, they’ve already had a dispute before
the court as to who has the property custody of their
common children.
 So if that has already been adjudicated in a previous judicial
proceedings, then that ruling in that previous judicial case,
should be followed and applied in this decision—in the
decision of declaration of nullity or annulment of marriage.
NOTE:
 All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of
the proceedings for liquidation.
 Why? When we liquidate the common property of the
spouses as well as know their exclusive properties, the
creditors have interest beceause if idivide na nato ang
properties sa ilaha tapos they’ll call it a day, magiyahay na
sila, the rights of the creditors will be prejudiced if they are
not notified of this proceedings diba.
 That is why creditors must be notified of the pending
proceedings and the decisions in court.
 Liquidation means you have to know what are the assets
of the spouses, they have to pay off thei indebtedness then
after that you will know how much you will be owing to
them afterwards.
PARTITION
 Persons and Family Relations
2nd Exam
In the partition:
1. The conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the
provisions of Arts. 102 and 120. (50)
 Unless otherwise agreed upon by the parties, in the partition
of the properties, the conjugal dwelling and the lot on
which it is situated shall be adjudicated to the spouse with
whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise.
In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children.
 Art. 102 is applicable if the property regime is absolute
community of property. Art. 129 if it’s the conjugal
partnership of gains.
 Children above 7 may choose the parent whom they wish to
stay with.
2. The value of the presumptive legitimes of all common
children, computed as of the date of the final
judgment of the trial court, and shall be delivered in
cash, property or sound securities.
 Unless the parties, by mutual agreement judicially
approved, had already provided for such matters. (51)
 You have to remember that these presumptive legitimes
should be delivered in cash, property, or sound securities
unless under Art. 51 the parties have already made a mutual
agreement and that is approved by the court as to how they
will give the presumptive legitimes to their common children.
ENFORCEMENT OF THE JUDGMENT
 Enforcement is when you seek to carry out the things
embodied in that judgment.
Who may ask for the enforcement of the judgment?
 The children or their guardian, or the trustee of their
property
 Of course, this include either one of the spouses
The delivery of the presumptive legitimes:
 Shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or
both of the parties;
 But the value of the properties already received under
the decree of annulment or absolute nullity shall be
considered as advances on their legitime.
 Legitime as you all know, with respect to the amount of
inheritance, the order of successional rights, the amount of
inheritance that you will be getting, or the amount of the
property of the estate that you will be getting, there is a
portion allocated under the law reserved in favor of
compulsory heirs.
 You have to take note that at the point of the severance of
the marriage, its declaration of nullity or annulment, the
legitimes are given and its only called presumptive because
legitimes are owed only at the time of death of either one of
the parties. That’s why its presumptive na kumbaga at the
time of the declaration of nullity or annulment, you already
determined how much should be owed to the children.
 That is only an advance of what the children will ultimately
receiving in the future upon the death of either or both of
their parents.
 The reason ngano magka advance is because there is
already a partition.
 There will be recording as required under Art. 42.
RECORDING
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What shall be recorded in the appropriate civil registry and
registries of property?
1. The judgment of annulment or of absolute nullity of the
marriage,
2. The partition and distribution of the properties of the
spouses, and
3. The delivery of the children’s presumptive legitimes;
Failure to record? The same shall not affect third persons. (52)
 What does this mean? For example, with respect to creditors
who are naturally interested in the properties of the spouses,
if this judgment partition, delivery, will not be recorded in
the local civil registrar, there is no constructive notice to the
entire world that the rest of the world should know with
respect to the matters involving the judgment of partition
and the delivery?
 Effect of failure of record is that the knowledge that the rest
of the world has especially with respect to persons interested
in the marriage, it is as is.
 For example, the spouses naa silay utang na 10M and lets
say with respct to that utang of 10M, they already divided
their property, etc. Lets say ang nabilin na lng sa ila is 2M
each after paying all the indebtedness. Katong giutangan
nila na 10M, it just so happens that there is this creditor who
was excluded, that creditor will make a collection upon the
spouse, lets say the previous wife, uingon karon ang
previous wife na “you cannot collect against me because I
am already single, we’ve declared our marriage as null and
void” magpakita pa jud si wife ug katong judgment sa
declaration of nullity of marriage, is it allowed or affect the
rights of third persons who were never notified because of
the lack of the recording requirement? NO. they will not be
bound by that judgment. They still have a right to collect
against that debtor-spouse as if married gihapon sila.
Effect of compliance: Either of the former spouses may marry again
after complying with the requirements of the immediately preceding
Article;
Failure to comply: The subsequent marriage shall be null and void.
(53)
What is a legitime?
Article 886. Legitime is that part of the testator’s property which he
cannot dispose of because the law has reserved it for certain heir who
are called therefore, called compulsory heirs. (806)
Article 887. The following are compulsory heirs:
1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
3) The widow or widower;
4) Acknowledged natural children and natural children by legal
fiction by (4) Illegitimate children [as amended by Art. 175
of the FC]
5) Other illegitimate children referred to in Art. 287
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
those Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the extent
established by this Code. (807a)
Presumptive legitime
 Persons and Family Relations
2nd Exam
 That portion of the net assets of the absolute community of
property or net profits of the conjugal partnership of gains at
the time of the final judgment decided by the trial court,
which the law has set aside for the common children of the
spouses
 For purposes of computation, the law presumes “as if” both
spouses died and that they both died with a last will and
testament
Determination of the presumptive legitime
Under the first paragraph of Art. 888 of the Civil Code, “the legitime
of the legitimate child and descendants consists of one-half of
the hereditary estate of the father and of the mother.” The
children are therefore entitled to half of the share of each spouse
in the net assets of the absolute community, which shall be
annotated on the titles/document covering the same, as well as to
their respective shares in the net proceeds from the sale of the
Sampaloc property including the receivables from Sps. Paringit in the
amount of P410,000.00. (Noveras v. Noveras)
 The SC held here that David’s children are entitled to half of
each of the spouse in the net assets of the absolute
community.
 All stated above are common properties which will be
liquidated and partitioned and distributed.
 How will you distribute it?
 In so far as the presumptive legitime is concerned, this is
how you determine it in accordance with the ruling of
Noveras v. Noveras.
APPICATION AND COMPUTATION
 We will follow strictly the case of Noveras.
 In the delivery of presumptive legitime, we assume as if the
spouses died so that we will suppletory apply the rules under
the Rules on Succession and we will presume that they died
with a last will and testament for purposes of computation.
 I will give you hypotheticals in the computation of
presumptive legitimes.
PROCEDURE
1. Compute how much is the net assets of the absolute
community of property or the net profits of the conjugal
partnership of gains*
2. Since the properties are common or conjugal properties, the
former spouses get ½ share each to the entirety of the net
assets or net profits (as the case may be)
3. Each share of the former spouse will be halved:
a. ½ of the share—shall pertain to the presumptive
legitimes of the common children (that portion
which the law has reserved for the common
children)
b. ½ of the share—shall pertain to the free portion
(that portion set aside for the former spouse
which he/she may dispose of as he/she deems fit)
4. Divide the portion allotted for the legitimes to the common
children (the division shall depend on the status of the
common children—if they are legitimate, all illegitimate or
mixed)
ILLUSTRATION NO. 1:
Assume that the value of the net assets of the absolute community as
of the date of the final judgment of the trial court declaring the
marriage of H and W was null and void is 5,000,000. Compute the
value of the presumptive legitimes owing to their five (5) legitimate
children. [A,B,C,D,E]
5,000,000/2=2,500,000 share of H and W respectively in the net
assets.
H’s share in the net assets: 2,500,000/2
 1,250,000- free portion (which shall remain with H)
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 1,250,000- legitimes of the 5 children
How much will be the share of each legitimate child from H’s share in
the net assets?
 1,250,000/5 (no. of children )= 250,000 for each child
 This is only with respect to H’s share, so with respect to W,
each child will also have 250,000 each logically following the
same procedure.
 The reason why the children are entitled to automatic ½, t is
because with respect to the children, since they are
legitimate, we follow the ruling in the case of Noveras
invoking Art. 888 of the NCC. That is why ½ of the
hereditary estate or net assets of the absolute community in
this case, it will go to the legitimes.
 Legitimes man na siya with all the common children. So how
much will the each child get diba? So since all of them are
legitimate, so logically they will get an equal share.
ILLUSTRATION NO. 2:
What if the spouses only had illegitimate children?
 The procedure and answer would be the same as in #1.
 Basis:
Art. 901 of the NCC provides: When the testator dies
leaving illegitimate children and no other compulsory heirs,
such illegitimate children shall have a right to one-half o the
hereditary estate of the deceased.
The other half shall be at the free disposal of the testator.
 Because again for purposes of computation, it is as if both
parents died.
ILLUSTRATION NO. 3:
Assume that the value of the net assets of the absolute community as
of the date of the final judgment of the trial court declaring the
marriage of H and W as null and void is 5,000,000. Compute for the
value of the presumptive legitime owing to their one illegitimate child
[A] and two legitimate children [B,C].
5,000,000/2= 2,500,000 share of H and W respectively in the net
assets
W’s share in the net assets: 2,500,000/2
 1,250,000= free portion (which shall remain with W)
 1,250,000- legitimes to the two legitimate children
 How about the illegitimate child?***
Share of illegitimate child
 Family Code, Art. 176. Xxx The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate
child.
Where will the legitime of illegitimate children be taken?
 NCC, Art. 895. Xxx The legitime of the illegitimate children
shall be taken from the portion of the estate at the
free disposal of the testator, provided that in no case
shall the total legitime of such illegitimate children exceed
that free portion.
COMPUTATION: (Refer to Illustration No. 3)
W’s share in the net assets: 2,500,000/2
 1,250,000- free portion (which shall remain with W)
 1,250,000- legitimes to the two legitimate children
Compute for the legtime of each legitimate child:
 1,250,000/2 LC= 625, 000 for each legitimate child
 Persons and Family Relations
2nd Exam
defective marriage; reconciliation merely
Compute for the legitime of the illegitimate child: ratification cleanses restores the right of
 625,000/2 LC= 312,500 for 1 illegitimate child the marriage of all of the parties to cohabit
its defects as husband and wife
Where will the legitime owing to the illegitimate child be
taken?  In annulment, the marriages here are voidable. Meaning
 From the free portion of W: 1,250,000-312,500= 937,500 they are valid until they are annulled. Grounds are provided
remains with W in Art. 45 and 46 of the FC.
 This is the same procedure that you will observe with  In legal separation, there is no defective marriage. Here we
respect to H. are talking about valid marriages. But because of some
 Kaning 312,500 times 2 ni siya because there will be portion grounds that exists under the law, the spouses may choose
of the presumptive legitime coming from H’s share because to separate from each other. But definitely the marriage is
again we are only computing W’s. The process is still the still existing, the marriage subsists and it presupposes a valid
same nothing difficult there. marriage.
 As to the existence of the grounds, take note that in
ILLUSTRATION NO. 4 annulment proceedings, the grounds with respect to Art. 45
must exist a the time of the marriage or even before the
Assume that the value of the net assets of the absolute community as marriage basta at the very latest they must be present at
of the date of the final judgment of the trial court declaring the the time of the marriage.
marriage of H and W as null and void is 5,000,000. Compute for the  However, when we talk about legal separation usually the
value of the presumptive legitimes owing to their three illegitimate grounds, if not all the grounds occur or happen after the
children [A, B, C] and one legitimate child [D]. marriage or during the marriage itself.
 With respect to the effects take note that in annulment
5,000,000/2= 2,500,000 share of H and W respectively in the net proceedings, necessarily, the marriage is set aside and the
assets parties can remarry.
 However, with respect to legal separation, the marriage
H’s share in the net assets: 2,500,000/2 subsists and the parties cannot remarry, otherwise, they’d
 1,250,000- free portion (which shall remain with H) be risking liability for bigamy.
 1,250,000- legitime of D  So this concept of ratification and reconciliation, they very
 How about the illegitimate children? different.
 With respect to annulment marriages, under specific grounds
COMPUTATION provided for under Art. 45, take note that the parties may
ratify their defective marriage but as you already know the
Note: Each illegitimate child shall have ½ the share as that of a grounds under Art. 45 are not absolute with respect to the
legitimate one. matter involving ratification.
 What is the effect of this ratification if it does happen?
 D’s share as a legitimate child: 1,250,000 Ratification cleanses the marriage of all of its defects. So it is
 Share of each illegitimate child should be: 625,000 as if from the very beginning, there were no defects that
 Total share of all illegitimate children should be: 625,000 x 3 existed in that marriage.
(A,B,C)= 1,875,000  However, reconciliation is different. This concept is
applicable with respect to legal separation and as regards
But remember, H’s free portion is only 1,250,000 legal separation cases, regardless of the grounds the parties
may reconcile.
So divide the free portion among the illegitimate  So what was previously considered a form of legal
children: separation, they may put an end to that and they may
 1,250,000/3= 416,666.66 for each illegitimate child reconcile and cohabit once more as husband and wife but
again the marriage is subsisting regardless.
 So reconciliation merely has the effect of restoring the right
LECTURE 2.3 of the parties to cohabit once again as husband and wife.
TITLE II  There is no cleansing of the defect in reconciliation unlike
LEGAL SEPARATION that of ratification.
 More importantly in legal separation, you cannot ratify for
 Take note that in the provisions that I will be discussing the the existence of those grounds. They are totally different
illustration to certain points will be with reference to certain concepts.
matters involving procedure.
 Distinguish annulment proceedings with that of legal DISTINCTIONS
separation proceedings.
LEGAL SEPARATION DE
DISTINCTIONS SEPARATION FACTO
As to the nature of Effected only by Effected by the will of
ANNULMENT LEGAL separation court decree or after the parties at any
SEPARATION court proceedings time or extrajudicially
As to defects Marriage is defective Marriage is not As to effects Results in the Does not result in
defective dissolution of the dissolution of
Existence of grounds At the time or before After the marriage property relations, property relations
marriage but the parties and are considered
Effects The marriage is set The marriage remain married husband and wife of
aside and parties can subsists and parties each other
remarry cannot remarry
Ratification and Under specific Regardless of the
reconciliation grounds, the parties ground, the parties ARTICLE 55.
may ratify their may reconcile;

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 Persons and Family Relations
2nd Exam
 With respect to these grounds you have to remember that  The mere attempt to do so would already sufficiently
when we talk about a child, in the last paragraph of Art. 55, become a ground for legal separation even if its not done by
this child necessarily pertains to a child by nature, meaning one of the spouses lng, there is a connivance with a third
by blood or by adoption. party in such form or corruption or inducement. Such
connivance with another person of course with respect to
SUMMARY the respondent spouse may constitute a ground for legal
separation.
Subject Nature of act Committed Remarks  Lets go to the grounds that provide for condition.
against
Responden Repeated physical Directed against SUMMARY
t spouse violence or the petitioner
grossly abusive spouse, a Subject Nature of Committed Remarks
conduct common child, condition against
or a child of the Responden Final judgment Even if
petitioner t spouse sentencing pardoned
spouse imprisonment of
Responden Physical violence The petitioner Not a ground if more than six
t spouse or moral pressure committed years
to compel to against a Responden Drug addition or Compare with
change religious common child, t spouse habitual Arts. 36 and
or political or a child of alcoholism 45 with 46
affiliation the petitioner Responden Lesbianism or Compare with
Responden Attempt to The petitioner t spouse homosexuality Art. 36 and 45
t spouse corrupt or induce spouse, a with 46
to engage in common child, Responden Contracting a Whether in the
prostitution, or or a child of the t spouse subsequent Philippines or
connivance in petitioner bigamous abroad
such corruption or spouse marriage
inducement Responden Sexual infidelity or Compare with
t spouse perversion Art. 36 and 45
 When we talk about repeated physical violence or grossly with 46
abusive conduct, this must be in the nature of physical acts
or those done through force.  With respect to the 4th ground, the respondent spouse was
 What I want you to take note of this is, if it is committed sentenced by a final judgment for imprisonment of more
against the spouse or a minor child, this also constitutes than 6 years.
criminal violation for RA 9262 with respect to VAWC and with  Take note that the judgment sentencing him must be final
respect to the children specifically especially in the case of a and the sentence must be imprisonment for more than 6
minor child, this may constitute a violation of RA 7610 or the years.
Child Abuse Law.  Take note that this is a ground for legal separation even if
 In those laws, we are talking about criminal liability of the subsequently the respondent spouse has been pardoned.
respondent spouse. That criminal liability is separate and  With respect to the fifth ground, necessarily these are not
distinct from the ground that we are talking about here in committed against any individual.
legal separation.  What I want to highlight, these conditions being conditions
 Take note that the terms “repeated physical violence” and you have to compare them with the other Articles that we’ve
“grossly abusive conduct” the terms are used loosly so that discussed before.
the courts may properly determine on a case to case basis  If you remember drug addiction or habitual alcoholism
whether or not the physical violence does constitute specifically with respect to drug addiction, according to the
repeated acts, whether or not the abusive conduct is so SC in the PI cases, if you remember the decision of the SC in
gross. Ting v. Ting, alcoholism and drug addiction, these do not
 The distinction with the second ground to the first ground is necessarily rise to the level of PI. So you have to make a
that, in the second ground there is a specific purpose, it is to distinction.
compel one to change his or her religious or political  Mere drug addiction or habitual alcoholism on the part of
affiliation. And take note that it can be committed against one spouse, that would be sufficient ground for legal
the petitioner spouse. Again this is a form of VAWC in the separation.
case of the wife, but remember this is not a ground for legal  But you have to remember that if it will be alleged that its
separation if this is physical violence or moral pressure to because of some form of underlying psychological condition
compel one to change one’s religion or political affiliation is such that it will impair the discharge of some essential
committed against the common child or the child of the marital obligations, then logically, that is not anymore a
petitioner. ground for legal separation under Art. 55 it already becomes
 Why is this the case? With respect to children especially if basis for PI, if the matters of PI are present.
they are minors, there is a legal presumption that with  You also have to compare drug addiction and habitual
respect to the exercise of parental authority, there is a alcoholism on the ground of fraud under Art. 43(3) in
leeway given with respect to parents to mold how they want relation to Art. 46. Those are voidable marriages diba.
their children to be religiously or politically affiliated, etc. so  When does drug addiction or habitual alcoholism render the
that does not automatically constitute as a from of child marriage voidable? When it is concealed.
abuse.  Same as lesbianism or homosexuality.
 You have to remember the qualification provided under the  If its find out subsequently that the respondent spouse is a
law, when it becomes a ground if only the physical violence lesbian or homosexual, that condition per se will already be
or moral pressure is for the purpose to compel the other sufficient basis to have or to file a case for legal separation,
spouse to change her/his religious or political belief. but ultimately, if it arises to the level of some form of PI, it’s
 In the third ground, it is not necessary that the actual a different basis, the marriage is void if you can prove that.
corruption or inducement resulted into the acts constituting But with respect to Art. 45, in relation to Art. 46 just like
prostitution. drug addiction, if there is concealment with respect to one’s
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 Persons and Family Relations
lesbianism or homosexuality, take note that is a ground for
fraud under Art. 46 and in relation to Art. 45(3) that ground
for fraud makes the marriage voidable.
 So you have to make the necessary distinctions.
 With respect to the 8th ground, if the respondent spouse
contracted a subsequent bigamous marriage.
 So this presumes that this marriage, the one in question, the
prior marriage, it is a valid marriage.
 That marriage despite being valid, there is a ground for legal
separation.
 Contracting subsequent marriage, the status of that
subsequent bigamous marriage is void in relation to Art. 35
par. 4.
 So take note we are not talking about a situation here similar
to Art.40 where there is a necessity for judicial declaration
because the previous marriage is not void.
 In contracting the subsequent bigamous marriage, it gives a
ground with respect to prior marriage, there is a ground for
legal separation only. And take note, this is regardless where
the marriage (subsequent) took place.
 With respect to the 9th ground, this is where I would like to
compare it with Art. 36.
 So with respect to Art. 55, mere sexual infidelity or sexual
perversion, already a ground for legal separation. All the
same, the law does not give us a definition of what sexual
perversion is if you remember, but definitely it gives leeway
or avenue for the courts to determine based on the facts or
the circumstances and the narration of the case whether or
not that perversion would sufficiently become a basis for the
legal separation of the spouses.
 Comparing with Art. 36, if you remember the case of Kalaw.
The infidelity there was indicative of some form of PI . in
fact according to the SC, it found that there was PI. That
sexual infidelity is not a mere sexual infidelity. That infidelity
already rose to the level of PI which can declare the
marriage as null and void.
 If you remember the infidelity in the case of Mola Cruz,
when you allow your Japanese bf quietus with you in the
marital bed. Obviously, that type of infidelity rises to the
level of PI. That was a manifestation of histrionic personality
disorder.
 Other grounds…
SUMMARY
Subject Nature of act Committed Remarks
against
Responden Attempt against Petitioner Not a ground if
t spouse the life spouse committed
against
common child,
or child of the
petitioner
Responden Abandonment Petitioner For more than
t spouse without justifiable spouse one year
cause
 Remember under the 9th ground, is not a ground if it is
committed against a common child or a child of the
petitioner.
 More importantly, the attempt here or violence is against the
life of the petitioner spouse. We are not talking about
attempt against destroying the property of the spouse.
 Finally, with respect to 10 th ground, we are not talking about
the abandonment of the children, we are talking about the
abandonment on the part of the petitioner spouse.
 The abandonment must be made without justifiable causes.
 For example, if you are the husband or your client
abandoned his wife and there were sufficient reasons or
justifiable causes why the abandonment took place because
for example gina bugbug siya sa iyang wife every night. If
the abandonment has justifiable cause it is not a ground for
legal separation automatically.
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2nd Exam
 What the law requires is that the abandonment is without
justifiable cause and this period of abandonment must be a
period of more than 1 year.
 There is presumption of abandonment in relation to Art 101,
we’ll talk about it under the property regimes. Because in
that, abandonment or leaving the conjugal dwelling for a
period of 3 months without having the intention to return, it
already creates a presumption of abandonment under the
law. And that abandonment or neglect, you are allowed to
avail of certain remedies or relief but take note the
abandonment under legal separation is very specific it must
be a period of more than one year for it to constitute as a
ground.
ARTICLE 56.
 Now lets go to the defenses (Art. 56). A petition for legal
separation once it is filed it may be denied on the basis of
the following grounds or usually as we will discuss in the
procedure later, if you are the respondent spouse and these
grounds occurred, these grounds may be interposed as part
of your defense in order that, if the petition is filed against
you, you raise these defenses under Art. 56 in order to have
that petition dismissed. Because this petition will be denied
under any of the following grounds.
 Lets talk about these grounds and distinguish them.
DISTINCTIONS
1. Condonation- forgiveness or pardon which happens after
the commission of the act
2. Consent- prior acquiescence to the commission of the act
3. Connivance- luring or willingness of the spouse to the
commission of the act
4. Mutual guilt- both parties have given grounds for legal
separation, clean hands doctrine
5. Collusion
6. Prescription- in relation to Art. 57
 Condonation necessarily talks about or alludes to some form
of forgiveness or pardon after the act.
 So it is after the commission of the act which were described
under Art. 55. And that this forgiveness or pardon happened
after the commission of those acts or after learning about
certain conditions that occurred during the marriage.
 When we talk about consent as a basis to deny the petition
for legal separation, we are talking about a prior
acquiescence to the commission of the act.
 So this must be present at the time the act was about to be
committed. i.e. you agreed that your spouse will contract a
subsequent bigamous marriage, then that is consent.
a  Obviously this type of consent, this does not become
sufficient basis or a valid defenses in cases when we are
talking about the conditions. Necessarily if we are talking
about the conditions, you must have condoned those
conditions after you learn about them.
 Connivance, its luring of the spouse to the commission of the
act that is considered as a ground under legal separation.
i.e. with respect to sexual infidelity, if you lure your spouse
to commit some form of sexual infidelity against you in order
that there will be a ground, that’s a valid defense.
 The reason for mutual guilt is because of the clean hands
doctrine. And this doctrine is present in our legal system
even before covid.
 Mutual guilt, i.e. one party is liable for sexual infidelity or has
committed an attempt against the life of the other spouse
and the other suffers from a particular drug addiction or
habitual alcoholism. If both of them have given grounds for
legal separation, the clean hands doctrine will already be
applied.
 The theory of the clean hands doctrine is that no one may
file an action in court with dirty hands.
 Collusion is some form of corrupt agreement to make it
appear that the grounds exist when in truth an in fact they
do not.
 Persons and Family Relations
2nd Exam
 Prescription by the lapse of time. Petition for legal separation
may denied because its not filed within the reglamentary
period required under Art. 57.
ARTICLE 57.
 Take note of the reckoning point, from the time of the
occurrence of the cause.
 For example, repeated physical violence, when do you
reckon the occurrence of the cause. Of course its not at the
first instance of physical violence because the law requires
that it must have been repeated. So you reckon it from the
repetition not from the mere commission of that form of
physical violence, except if the physical violence is an
attempt against the life of the petitioner. Then obviously,
you reckon it from there.
MATTER OF PROCEDURE
Overview of Procedure
1. Filing of the petition for legal separation
2. Summons will be issued by the Family Courts and served on
the other spouse
3. The respondent prosecutor will be given 15 days from
receipt of summons to file an Answer
4. The public prosecutor will conduct collusion investigation and
make a report
5. Pre-trial and pre-trial conference
6. Trail and submission of Memoranda
7. Rendition of decision
 Here we are talking about AM 11-11-SC(?)
 I want to emphasize no. 4 because there is a requirement
with respect to collusion in the investigation that will be
conducted by te public prosecutor.
 Necessarily the State has an interest with respect to keeping
the harmony of marriage in tact such that the parties will not
be automatically allowed to be legally separated from each
other.
 In the next slides you will that this overview of the
procedure might be changed a bit because of the additions
produced by the provisions of the FC.
 What are those additions? The cooling-off period. (Art. 58)
ARTICLE 58.
 This 6 months period refers to the cooling-off period where
the FC Committee deems it proper that at time of the filing
of the petition of legal separation, emotions might be high,
there might be poor judgment with respect to the judgment
of petition.
 So it is a better matter involving policy or as a matter of
policy, it’s a better rule to have with respect to the FC
Committee that they will allow a 6 months period to pass
from the time of the filing of the petition in order that the
spouses may recollect, or try to see or look into their
conscience if they really want to pursue the legal separation
action or not.
ARTICLE 59.
 This talks about reconciliation conferences.
 As a matter of practice certain judges and certain family
courts actually conduct what they call reconciliation
conferences.
 If you look at AM 02-11-11-SC, these conferences are not
mandated. Its not part of the basic procedures that the court
will follow.
 But some conduct these reconciliation conferences to ensure
that the spouses are given the chance to reconcile with each
other. Because during the pendency of the proceedings if
they reconcile or if they forgive each other, there will be a
necessary effect which is the termination of the proceedings.
 Based on Art. 59, all efforts must have been exhausted by
the courts and by the judge hearing the case to allow the
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parties sufficient amount of time to reconcile with each other
by conducting these reconciliation conferences. But because
of lack of material time, some of them just allow them to go
to mediation.
 These mediation attempts are more important with respect
to family cases because it gives them sufficient opportunity
to try to talk about their problem and reconcile with each
other because sometimes the filing of the cases are inspired
by hot headedness or poor temperament of some parties
that in hindsight did not realize na “uy pwde man diay na di
ko mag file ug legal separation case”.
 If its highly improbable, the decision of the judges should
state such fact.
ARTICLE 60.
 Here we are talking about the decree of legal separation and
that it shall not be issued on the basis of stipulation of facts
or a confession of judgment.
 This is where you can see the 4 th step in our procedure
under the second paragraph.
 So you already know that from the counterpart provision
that we discussed this in void marriages and voidable
marriages.
ARTICLE 61.
 This article is very specific with respect to legal separation
cases.
 In declaration of nullity and annulment cases, it would seem
that from the time of the filing of the petition, you have to
wait out until the rendition of judgment before you expect
anything to happen.
 And generally that’s the case with respect to legal separation
except Art. 61.
 From the moment of filing, the petition for legal separation
regardless of the ground, the mere filing of petition for legal
separation will already entitle the spouses to live separately
from each other.
 There are matters that will be considered from the time of
that filing of the petition which we will summarize here:
Effects of filing the petition for legal separation
1. The spouses shall be entitled to live separately from each
other.
2. The spouses may make a written agreement as to the
administration or management of the absolute community or
conjugal partnership which shall be approved by the court
 If the spouses can amicably settle and agree with respect to
who between them will manage their common properties or
if they will allow the management in the person of a third
person, all of that agreement is okay for as long as it will be
approve by the court.
3. In the absence of a written agreement between the
spouses, the court shall designate either of them or a third
person to administer the absolute community or conjugal
partnership properties.
NOTE: The administrator appointed by the court shall have the same
powers and duties as those of a guardian under the Rules of Court.
 If you are considered as a guardian as you are duly
appointed by the court, take note that you have certain
responsibilities to live up to, you have certain duties that you
have to comply with and all of these matters are provided
for under the Rules of Court.
ARTICLE 62.
 Art. 62 talks about the right to give support pendente lite not
only between the spouses but also to their common children
during the pendency of the action.
 From the time of the filing of the petition, even if you wait
out for the colling off period to lapse, take note that support
 Persons and Family Relations
2nd Exam
pendente lite may already be asked in order that during the
pendency of the action, the obligation of the spouses with
respect to each other will not cease.
 Someone will be obliged to give support to the other
especially if he or she will be the one who has job or who
has financial means to do so and also give support to their
common children.
ARTICLE 63.
The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other,
but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no right
to any share of the net profits earned by the absolute community or
the conjugal partnership, which shall be forfeited in accordance with
the provisions of Article 43(2);
 The definition of net profits here is the same as to the
definition under Article 43 (2). Article 43 in relation to article
50, you know that it also applies to Article 40. The effect
under Art 43(2) will not only be applied to the subsequent
marriage that is terminated under Article 42 but also
applicable to Article 40, the subsequent bigamous marriage
because of Article 50. And again this Art 43(2) will be
applied again under Article 63. So, always take note of
Article 63, also case of Quiao v. Quiao
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent spouse shall
be revoked by operation of law.
Custody of Minor Children
Article 213. In case of separation of the parents, parental authority
shall be exercised by the parent designated by the Court. The Court
shall take into account all relevant considerations, especially the choice
of the child over seven years of age, unless the parent chosen is unfit.
Article 64.
After the finality of the decree of legal separation, the innocent
spouse may revoke the donations made by him or by her in favor of
the offending spouse, as well as the designation of the latter as
beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. X x x x
Effects of Finality of the Decree of Legal Separation
The innocent spouse MAY revoke the following:
1. Donations made by him or by her in favor of the offending spouse:
 The revocation of the donations shall be recorded in the
registries of property in the places where the properties are
located.
 Alienations, liens (such as mortgages) and encumbrances
registered in good faith before the recording of the
complaint for revocation in the registries of property shall be
respected.
 The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation become final.
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 When we talk about alienations, liens (such as mortgages) and
encumbrances registered in good faith; before the recording of
this complaint for revocation, it shall be respected.
 As provided in a principle, first in time, stronger in right… If you
are the one who will assert your right with respect to a particular
sale in your favor over the property donated by the offending
spouse. If you are secured with a mortgage that has been
extended to you by the mortgagor spouse and that latter is the
offending spouse, if there is an encumbrance constituted thereto
for some reason there is a contract between you and the
offending spouse constituting a burden on the property like for
example anti-crisis x x x BUT the important reason why these
matters should be registered in good faith and they were
registered before the recording of the complaint, these matters
are respected because of the principle “first in time, stronger in
right”.
 In this case, if certain individuals assert their claim such that
those claims are registered in good faith over the property, that
claim over that property is superior as compared to the claim of
the innocent spouse to take back that property once the donation
has already been revoked.
2. The designation of the offending spouse as a beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable.
 The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written
notification thereof to the insured.
 Ground for legal separation are present and a decree for legal
separation has been issued, and there is finality to that effect
already, the innocent spouse acquires the right to revoke such
donations.
 We are talking about an instance where the innocent spouse is
the donor.
Reconciliation and Revival of Property Relations
 These are concepts applicable only to legal separation.
ARTICLE 65
If the spouses should reconcile, a corresponding joint manifestation
under oath duly signed by them shall be filed with the court in the
same proceeding for legal separation. (n)
ARTICLE 66
The reconciliation referred to in the preceding Articles shall have the
following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be
terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless the spouses agree to
revive their former property regime.
The court’s order containing the foregoing shall be recorded in the
proper civil registries. (108a)
ARTICLE 67
The agreement to revive the former property regime referred to in the
preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the
amounts owing to each.
 Persons and Family Relations
2nd Exam
The agreement of revival and the motion for its approval shall be filed
with the court in the same proceeding for legal separation, with copies
of both furnished to the creditors named therein. After due hearing,
the court shall, in its order, take measure to protect the interest of
creditors and such order shall be recorded in the proper registries of
properties.
The recording of the ordering in the registries of property shall not
prejudice any creditor not listed or not notified, unless the debtor-
spouse has sufficient separate properties to satisfy the creditor’s claim.
SUMMARY
Reconciliation means the bilateral act of resuming marital cohabitation
and marital relations.
How manifested?
 Express (deliberately say that they have reconciled) or
implied (moving in together and having sexual intercourse
even if they did not declare that they have reconciled )
 Requires the execution of joint manifestation under oath to
be filed in the court hearing the petition or issued the decree
of legal separation
RECONCILIATION; What are the effects of the reconciliation of the
parties?
1. If legal separation proceedings are still pending, it shall be
terminated in whatever stage, and
2. If there is final decree of legal separation (issued), it shall be
set aside, and the separation of property and any forfeiture
of the share of the guilty spouse already effected shall
subsist
3. And foregoing [decree if reconciliation] shall be recorded in
the proper civil registries (LCR) (Article 66 of the FC)
REVIVAL; What if the reconciliation occurred after the rendition of
judgment granting the petition for legal separation but before the
issuance of the Decree?
 The spouses shall express in their manifestation whether or
not they agree to revive the former regime of their property
relations or choose a new regime
 The court shall immediately issue a decree of reconciliation
declaring that the legal separation proceeding is set aside
and specifying the regime of property relations under which
the spouses shall be covered [par. C, Section 23, A.M 2-11-
11-SC]
May the parties agree to revive their former property regime?
YES, only when they reconciled and upon the execution of an
agreement to revive their former property regime under oath
 Example, dugay na na final ang decree of legal separation,
and during their separation, they have acquired properties.
It took them 5 years for them to realize that they cannot live
without each other; they chose to reconcile and revive their
former property regime. For the revival of property regime, it
requires that the properties to be contributed anew to the
restored property regime must be indicated. For example,
tung nakuha nila during the legal separation, if they want
that to be part of their common property or conjugal
partnership, then they must indicate that. Also, they should
agree which property would still remain separate
Formalities: The agreement to revive shall specify;
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
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(3) The names of all their known creditors, their addresses and the
amounts owing to each.
Procedure:
1. The agreement shall be executed by the parties and
notarized
2. A verified motion for approval of the agreement of revival
will be filed in court hearing the petition/issuing the decree
attaching a copy of the agreement itself and both ( motion
and agreement) shall be furnished to creditors named
3. A hearing on the motion be undertaken
4. The court shall grant the motion and order the approval of
the agreement of revival and take measures to protect the
interest of creditors
5. The said court order shall be recorded in the proper registrar
or property
Effect of recording of the agreement of revival:
1. Creditors who have been informed are duly protected and
acquire a lien to the properties
2. Any creditor not listed or not notified shall not be prejudiced
– thus, may file an action against the spouses to claim the
common properties, unless the debtor spouse has sufficient
separate properties to satisfy the creditor’s claim
A.M. 2-11-11-SC ISSUE
Upon reconciliation, may the parties agree to a NEW property regime?
 Yes, under pars (c) and (d) of Sec. 23 of A.M. 2-11-11-SC
 Section 24. Revival of property regime or adoption of
another. –
a) In case of reconciliation under Section 23,
paragraph (c) above, the parties shall file a
verified motion for revival of regime of property
relations or the adoption of another regime of
property relations in the same proceeding for legal
separation attaching to said motion their
agreement for the approval of the court.
b) The agreement which shall be verified shall specify
the following:
1. The properties to be contributed to the
restored or new regime
2. Those to be retained as separate
properties of each spouse; and
3. The names of all their known creditors,
their addresses, and the amounts owing
to each.
c) The creditors shall be furnished with copies of the
motion and the agreement.
d) The court shall require the spouses to cause the
publication of their verified motion for two
consecutive weeks in a newspaper of general
circulation.
e) After due hearing, and the court decides to grant
the motion, it shall issue an order directing the
parties to record the order in the proper registries
of property within thirty days from receipt of a
copy of the order and submit proof of compliance
within the same period.
 The issue with the adoption of another property regime is
that that is only indicated in an administrative matter, not
explicitly provided for under the Family Code. We have to
approach this with caution.
 In liberal view, since there is no prohibition for an adoption
of another property regime, it is allowed that the parties
upon agreement, they may choose to adopt new regime.
 But, there is a middle ground, it is allowed to adopt new
regime, however, the absolute community property or
conjugal partnership will be the property regime that will
attach as part of the property relationship of the spouses at
 Persons and Family Relations
2nd Exam
the moment of marriage. In fact, in the FC, any agreement
to the contrary is considered void.
 An adoption of another or new property regime is allowed
provided that this new property regime is not the absolute
property regime or conjugal partnership of gains, in order
that it will not be offensive to the provisions under FC.
 Take note of this as we will discuss this again in the property
regimes chapter.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
ARTICLE 68.
The husband and wife are obliged to live together, observe mutual
love, respect and fidelity, and render mutual help and support.
 The obligation to live together may be limited when the
marriage has already been declared null and void or declared
annulled or there is already a decree of legal separation.
ARTICLE 69
The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling
reasons for the exemption. However, such exemption shall not apply if
the same is not compatible with the solidarity of the family.
 This is a domicile which the law provides; the domicile of
husband and wife and also the children. In case of
disagreement, the court will decide.
ARTICLE 70
The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid
from the community property and, in the absence thereof, from the
income or fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be satisfied
from the separate properties. (111a)
ARTICLE 71
The management of the household shall be the right and the duty of
both spouses. The expenses for such management shall be paid in
accordance with the provisions of Article 70. (115a)
SUMMARY OF RULES ON EXPENSES
Personal expenses are shouldered from the personal assets of the
respective spouses – (because somehow it is not beneficial to the
family, such as if the wife wanted to buy an Hermes bag or the
husband wants to buy a bicycle for personal use, personal assets shall
be used)
The expenses for family support, conjugal obligations and
management of the household shall be paid from:
1. The community property
2. In the absence thereof, the income or fruits of their separate
properties
3. In case of insufficiency or absence of said income or fruits,
such obligations shall be satisfied from their separate
properties – solidarily and personally liable
 Solidary liabilities pertains to the entirety of the prestation
may be demanded against anyone of the debtors; they are
liable to the extent of their properties
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ARTICLE 72
When one of the spouses neglects his or her duties to the conjugal
union or commits acts which tend to bring danger, dishonor or injury
to the other or to the family, the aggrieved party may apply to the
court for relief.
 Citing Siemp-Diy’s opinion, this injury must not only be mere
economic injury, because that is catered by the reliefs under
3rd exam coverage. The injury here must be one that is
psychological, emotional anything which is not harmonious
with the betterment of the family.
AVAILABLE REFLIEFS
1. Petitioning the court for receivership
2. Petitioning for judicial separation of property or
3. Petitioning for authority to be the sole administrator of the
community property or the conjugal partnership (c.f. Article
101 and 128)
 These reliefs should not affect the validity of the marriage or
separation of the spouses
Note: Distinguish with psychological and legal separation cases
ARTICLE 73
Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may
object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the resulting
obligation shall be enforced against the separate property of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who
acted in good faith.
 An example of valid objections with valid, serious, and moral
grounds is when either of the spouse would want to work as
an OFW, being away from the children, allowing the wife to
raise the children on her own, you may contend to the
husband about the rearing the children or best interest of
family
 For moral grounds, such as being engaged in moral
trafficking, prostitutions and etc. What the other spouse may
do is lawfully object
 What if there is disagreement between them to the type of
legitimate profession that will be engaged by the other
spouse, the court will decide: (1) whether the objection is
proper and (2) whether there is benefit accrued to the family
prior to the objection or thereafter
 Example, naay utang gi-extend because of a particular
business nag i undertake sa is aka spouse, then wala kabalo
ang creditor na when that business was undertaken, that
spouse did not inquire the consent of the wife for example.
In that case, can that spouse who is in business say na dili
pwede masingil sa community property because I did not
obtain the other spouse kay malugi jud ko ani.. will that be a
valid defense in order that the right of creditor will be
prejudice? NO. The creditor can make a collection.
LECTURE 2.4
 We will be looking regarding matters involving property
relations.
 Persons and Family Relations
2nd Exam
ASPECTS OF MARRIAGE
 Personal aspects:
 Rights and obligations between husband and wife
 Rights and obligations between parents and children
 Property aspects:
 Property relations between husband and wife
 Property relations between parents and children
 Rights and obligations between the spouses and third
persons
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 1. General Provisions
ARTICLE 74.
 Art. 74 gives you this provision that talks about property
relations between the husband and wife.
 So obviously its not automatically governed by the FC.
 The primary determination of the property relation of the
husband and wife, during the marriage, is this marriage
settlement or this prenuptial agreement which as clearly
indicated under Art. 74, it must have been executed before
the marriage.
 Because logically its called prenuptial agreement for a
particular reason. It must be executed before the marriage
because the spouses or the future spouses intend to have
those matters included in the marriage settlement govern
the property relations and the incidents with respect to
property relations during the marriage.
 So necessarily it must have been executed before the
marriage. That is the general rule.
 Also in the absence of the marriage settlements, that is the
only time that the provisions of the FC will take into effect.
 Now as you already know there are different default
property regimes which have been provided for depending
on the governing law.
 Under the NCC, we’ve seen cases that it is the conjugal
partnership of gains which is the default property regime
during the time that the NCC was in effect or at least
governs marriages celebrated thereunder.
 However now we have the FC. And it will be the FC that will
govern the incidents especially with respect to the property
relations of the spouses there is an absence of any marriage
settlements executed or if the marriage settlement executed
is void.
 Finally its important for us to know local customs because
local customs will somehow influence the matters by which
property relations will be observed. But again, courts do not
take automatic judicial notice of local customs. We have to
know what these customs are. These customs have to be
proven as facts in a particular case, where the property
relations of the husband and wife is place into question or
the customs is place at issue with respect to how they
manage their common property.
 But again, local customs will only govern in the absence of
marriage settlement and in the absence of any provision in
the FC which treats a particular issue.
Marriage settlements/pre-nuptial agreement
 An agreement between spouses or two people engaged to
be married concerning the division and ownership of marital
property during marriage or upon dissolution by death or
divorce (Black’s Law Dictionary)
 It is a contract entered into by the future spouses fixing the
matrimonial property regime that should govern during the
existence of the marriage. The provisions of the marriage
settlement must not be contrary to law, good morals, good
customs, public order, and public policy. After all, the
marriage settlement is still a contract. Said provisions must
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not be derogatory to the dignity or authority of the husband
and the wife.
 If in the marriage settlement, one of the surviving spouse is
prohibited in marrying another, such an agreement would be
void as against public policy. Furthermore, the marriage
settlement must generally confine itself merely to property
relations. (Paras)
ARTICLE 75. The future spouses may, in the marriage settlements,
agree upon the regime of absolute community, conjugal partnership of
gains, complete separation of property, or any other regime. In the
absence of a marriage settlements, or when the regime agree upon is
void, the system of absolute community of property as established in
this Code shall govern.
 Lets look at the primary contents of the marriage
settlements:
Contents of the marriage settlement
The future spouses may agree upon the following matters:
1. The regime of absolute community of property;
2. Conjugal partnership of gains;
3. Complete separation of property; or
4. Any other regime
 The future spouses may agree upon the following matters.
 So a regime of absolute community of property conjugal
partnership of gains they may have also complete separation
of their respective properties and any other regime that
illustrated in your books such as the dowry system or a mix
of the absolute community and conjugal partnership or a mix
of any one of the property regimes indicated under this
provision.
 Now i want you to take note of that although this provision
talks about thecontents of the marriage, these content are
not exclusive.
 Its not required for the spouses to only agree upon the
property regime that they will observe during the marriage.
 They may have a lot of agreement. For example with respect
affiliation, if they have an illegitimate child before the
marriage and at the time of birth of that illegitimate child if
was not yet acknowledged by the putative father, it could be
that before their marriage the putative father or the future
husband will indicate in that marriage settlement that that is
his child and the future husband is acknowledging the child
as his illegitimate child with the future wife of course.
 There a lot of different contents that may be had in the
marriage sacrament but obviously at the minimum but we
require for a marriage sacrament to be valid is that, it must
indicate the property regime that will govern the property
relationship of the spouses during the marriage.
Family Code Default Property Regime
The system of absolute community of property as established ni this
Code shall govern, if:
1. In the absence of a marriage settlements, or
2. When the regime agreed upon is void
The parties cannot stipulate that the conjugal
partnership of gains or the absolute community of
property will start at a time other than the precise
moment of the celebration of the marriage
because such agreement is void under Arts. 88
and 107;
If the marriage has been terminated by death of
one spouse and there has been no liquidation of
the properties of the previous marriage, the
surviving spouse, if he or she decides to remarry,
cannot execute a marriage settlement
providing for a regime other than the
complete separation of property regime (in
the subsequent marriage) because Arts. 102 and
130 specifically provide that, in such a remarriage,
the property regime governing the subsequent
 Persons and Family Relations
2nd Exam
marriage must be the separation of property
regime.
 The FC default property regime is the system of absolute
community of property.
 It gives you the that good idea that this is the property
regime that will govern the marriage even in the absence of
the marriage settlement.
 So that is why, although you have a marriage settlement
executed and although specifically indicated that the system
of absolute community of property will govern your property
relationship take not, that is actually immaterial because in
the absence of marriage settlements it will be that property
regime, that is the Family Code default property regime
imposed on the property relations between the spouses.
 Now again the family code provides that this will be the
system of property relationship that will govern when the
regime agreed a bad is void.
 What are the instances know where the regime agreed upon
is void? There are actually a lot for example but this is
arguable it really depends upon a decided case or when the
courts decide to do so but generally a property regime
agreed upon will be considered void if it is antagonistic or
against the better interest of the spouse to the marriage.
 Like for example, the future husband and wife will agree
that all of the properties acquired during the marriage, all of
the exclusive property of the wife, all of that of the mass of
the properties, will pertain to the husband and will be
considered as the exclusive property of the husband even
during the marriage.
 So when you look at that nature of a property regime
although it is agreed upon by the spouses one can argue
that it is obviously void because it is antagonistic to the
common relationship that partners have or husband and wife
should have during the marriage.
 There are also provisions under the Family Code will be
discussing in the third exam coverage which tell you that
there are certain property regimes imposed and if you go
against these requirements under the law that property
regime will be declared void.
 What is an example? The parties cannot stipulate that the
conjugal partnership are absolute community will start at a
time other than the precise moment of the celebration of the
marriage, such an agreement would be void because it
contravenes articles 88 and 107 of the Family Code.
 Another thing is if the marriage has been terminated by
death of any one of the spouses and there has been no
liquidation of the properties from the previous marriage, the
surviving spouse if he or she decides to remarry cannot
execute a marriage settlement or prenuptial agreement
providing that in that subsequent marriage they will observe
a regime other than complete separation of property, this is
again against Articles 103 and 130 of the Family Code
specifically provided in such a marriage the property regime
will be the property regime governing the subsequent
marriage must be the separation of property or the complete
separation of property regime between the spouses.
 That is an example where although there is a marriage
settlement, it contravenes the law and for it going against
the law itself that marriage settlement cannot rise higher or
cannot have more validity than what the law provides
between the spouses in that type of marriage.
 You have general provisions and specific provisions to this
effect but nevertheless you have to remember them because
these are examples where the FC itself indicates that certain
property regime will become void if you do not comply with
his provisions.
ARTICLE 76. In order that any modification in the marriage
settlements may be valid, it must be made before the celebration of
the marriage, subject to the provisions of Articles 66, 67, 128, 135 and
136.
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 Now we have Article 76, which provides that, in order that
any modification in a marriage settlement may be valid as a
general rule it must be executed before the marriage.
 But we also have settled exceptions.
Modifications to marriage settlements
 GR: Made before the celebration of the marriage
 XPN:
1. Arts 66,67—Reconciliation & Revival of the former
property regime
2. Art. 128—Judicial Separation of Property or Sole
Administration
3. Art. 135—Judicial Separation of Property (for
sufficient causes)
4. Art. 136—Voluntary Dissolution/Judicial Separation
of Property
 So you have to remember that we're talking about
modification to the marriage settlement early on with
discussed that with respect to marriage settlement itself, for
it to be valid and for it to govern the incidents during the
marriage obviously that marriage settlement should have
been executed before the marriage.
 What happens if there are certain modifications? what if
they want to agree that ok our marriage will be governed by
the conjugal partnership of gains but only with respect to
the properties acquired during the marriage? what about
they want to modify it such that the present property that
they already have before the marriage will be kept exclusive
by them, that is allowed.
 That modification is completely valid however the law
imposes the condition, that such modifications must be
made before the celebration of the marriage.
 This stands to reason that the marriage settlement will be,
that agreement to be recorded executed by the future
spouses which will govern their property relationship during
the marriage.
 W hat are some exceptions where the spouses may change
their property relationship even if that change occurs during
the marriage?
 This provision enumerate the following exceptions article 66,
67 in relation to the reconciliation of the spouses when
they've already acquired a dick range of legal separation and
they enter into an agreement for the revival of the former
property regime.
 why is there a modification to the property relationship
under this case? you have to remember that at the time of
the issuance of the degree of legal separation the property
relationship between the spouses will already be goverened
by complete separation of property because there's no
commonality anymore to protect, they separated from bed
and board and there will be a dissolution of the properties of
the absolute community of property or the conjugal
partnership of gains as the case may be.
 This is the reason why from that complete separation at the
time that the decree of legal separation has already been
issued if they choose to revive their former property regime,
this is an exception to the modifications of that should have
happened before the celebration of the marriage.
 Again we are talking about modifications to marriage
settlements if they exist.
 Judicial separation of property or sole administration the
common properties under article 128 which will discuss the
third exam coverage.
 Judicial separation of property for sufficient causes very
dissolution or judicial separation of property under Articles
135 and 136 again provisions that will be discussing in the
third exam.
 I just want you to take note of these provisions as early as
now to take constitute exception to this provision under the
family code
 The general rule that modifications must be made before the
celebration of the marriage.
 Persons and Family Relations
2nd Exam
 Again we are talking about modifications to the marriage
settlement.
FORMALITIES
ARTICLE 77.
 Lets go to the formalities.
 what does the law require with respect to the solemnities
that must be observed with regard to these marriage
settlements?
 Under the article 77 it's obvious the marriage settlements
and any modifications thereto they must be made in writing.
signed by the future spouse and executive before the
celebration of the marriage.
 it will not prejudice third person unless it is that agreement
or not my settlement is registered with the local civil
registrar with the marriage contract is recorded as well as
proper registries of property meaning the registry of deeds.
SUMMARY
The marriage settlements and any modification thereof shall be:
1. in writing
2. signed by the parties and
3. executed before the celebration of the marriage
4. they shall not prejudice third persons unless they
are registered in the local civil registry where
the marriage contract is recorded as well as in the
proper registries of property.
 now in summary i'll give you these rules has presented by
that provision but as a general rule since this an agreement,
a contract, primarily marriage settlements and prenuptial
agreements will bind only the parties between themselves.
 So it must be in writing, signed by the parties themselves
and executed before the marriage.
 if these first three requirements are not observe the that
marriage settlement is not valid as between the spouses.
 so they become valid the moment that they are signed and
executed before the celebration of the marriage.
 take note that under this provision of the family code in
order for it to produce greater effect with respect to third
persons, or for it to have greater efficacy to bind third
person it will be necessary that these marriage settlements
must be registered both with the local civil registrar in the
registry of deeds.
 why is it that they must be registered? you have to
remember that registration with respect to the local civil
registrar and the registry of deeds, they constructive notice
to the entire world that actually the parties of this
agreement and that all third person who might be interested
in their properties for example or constructively informed of
the fact that they have these agreements.
 so why is it that there is a registration requirement for
purposes of giving constructive notice?
 these third persons are not just any other third persons of
might be you know that might be interested in the marriage
per se, this third person has interest with respect to the
properties of the spouses and in order for those interests
such as in the case of creditors diba kung utangan ang
either one of the husband and wife in order, for those
interests not to be prejudiced or not to be alienated, in order
for those interests for this third persons not to be impaired,
they have to know that there are certain property relations
agreed upon by the spouses, reflected their marriage
settlement and they are charged with that knowledge the
moment that these marriages settlements are registered
with the local civil registrar and the proper registries of
property.
 otherwise they cannot be enforced with respect to third
person.
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 third person are not charged with the knowledge of the
intricacies that they agreed upon in their marriage
sacrament.
 so that marriage settlement completely valid as between
them but as regards third person it will not bind those third
person who might be interested in the common properties
between a husband and wife.
ARTICLE 78.
 go to article 78 which talks about a minor executing the
marriage sacrament.
 again this is not minor in it ordinary term because we've
already change the age of emancipation.
 when you talk about minor it is those individuals may
contract marriage but require the parental consent.
 take note that these individuals if they execute a marriage
settlement that’s completely valid but those marriage
settlement will only be valid if the persons designated under
article 14 give consent to the marriage are also made parties
to that agreement.
 which is logical diba if you require parental consent or the
consent of the guardian for one to marry its also illogical
that any incident to that marriage just like the marriage
settlement ,those individuals the parents the guardians they
must also be included in that marriage settlement.
 what is the effect of their excluded? ok or if you do not
comply with this requirement?
CASE: MIRASOL V. LIM
In order that a minor may validly execute a deed of marriage
settlements, it is indispensable that the persons
designated by law to give consent to the marriage, consent
to the execution of such deed (Art. 1318 of the CC) and that
such marriage settlements be recorded in a public
instrument executed before the celebration of the marriage
(Art. 1321, id.).
In the case at bar, the alleged deed of marriage settlements
was executed by Maria Lim when she was 16 years of age.
Her mother, who is the person designated by law to give
consent to her marriage by reason of the father’s death, was
present at the time the contract was executed before the
justice of the peace of Apalit, Pampanga, who was not then
authorized to act as a notary public. Although the said
justice of the peace, who authenticated the deed of
marriage settlements, may be considered a notary public de
facto, however, the said deed cannot be considered legally
valid on the ground that it was not signed by the mother of
Maria Lim, who was a minor at the time of the execution
thereof. (Art. 1218, CC)
 we have a very old keys to get mirasol vs lim but it gives
you the idea that the provision under the family code is an
indispensable requirement for individuals between the ages
of 18 to 21.
 why is it that case?
 take note that the formalities are present under the family
code not merely the formalities of giving consent noh, it's
not merely for purposes of complying with those
requirements but these formalities are for purposes of the
validity of the marriage settlement itself.
 so in this case the supreme court look into a situation where
the marriage settlement was not properly notarized as
required by the previous law and that the deed was not
signed by the mother whose parental consent was required.
 according to the supreme court that marriage settlement is
void because of lack of which was expressed or should have
been expressed by the mother whose parental consent is
necessary for the marriage.
 so according to the supreme court although the suggest a
sump is authenticated the deed of marriage settlements may
be considered a notary public de facto the said it cannot be
considered legally valid on the ground that it was not signed
 Persons and Family Relations
2nd Exam
by the mother of Maria who was a minor during the time of
the execution.
 now although we have a different concept of minors
nevertheless individuals between the ages of 18 to 21, they
require parental consent for purposes of the validity of the
marriage.
 otherwise it will also mean that the marriage settlement is
likewise the defective.
ARTICLE 79.
 For the validity of any marriage settlement executed by a
person person about whom a sentence of civil interdiction
has been pronounced or who is subject to any other
disability provided for by law with respect to one's capacity
to act, it shall be indispensable the guardian appointed by a
competent court to be made a party thereto.
BASIS FOR INCAPACITY
 RPC. Art. 34. Civil Interdiction—Civil interdiction shall deprive
the offender during the time of his sentence of the rights of
parental authority, or guardianship, either as to the person
or property of any ward, of marital authority, of the right to
manage his property and of the right to dispose of such
property by any act or any conveyance inter vivos.
 The reason or the basis for this because when one is
charged with the penalty of under the RPC Article 34
specifically that individual is limited as to the methods by
which he may decide how to go about his or her own
property, as you can see there on the article 34.
 because of that limitation in one's capacity to act to manage
and even this dispose or decide matters involving his or her
property, it is necessary that the guardian appointed by the
court must be made a party to that agreement. Otherwise,
the marriage settlement is questionable.
 It's definitely not valid with respect to the lack of the
concurrence or consent of the guardian appointed by the
court.
ARTICLE 80.
 article 80 is again another conflict of laws provisions that
we've discussed in passing before but since you already
know this provision let's go to the rules.
RULES
 GR: The property relations between spouses are governed
principally by the national law of Filipino spouses.
 VITUG: The “contrary stipulation” referred to in Art. 80 of
the FC can include a foreign law governing the proper
relations (property regimes) of the spouses other than as
may be so excepted under the provisions of the third
paragraph of Art. 17 of the CC (relating to prohibitory laws)
and to the extent that said parties are free to provide and
cover matters in their marriage settlement.
 as a general rule in the in article anywhere talk about
marriage as between Filipino spouses.
 o their property relationship between the spouses primarily
it will be governed by the national law of the Dilipino
spouses because with the Orion Savings case property
relations will not be governed by article 16 just because it
involves property, we're talking about familial rights and
family duties the duties of spouses with respect to their
property relationship .
 so it's not governed by lex rei sitae but it's covered properly
by the lex nationali principle.
 how do we construe therefore this contrary stipulation clause
provided for an article 80?
 according to Vitug that clause referred to under article 80
can include a foreign law governing property relations or
property regimes of the spouses other than as may be so
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accepted by the provisions under the third paragraph of
article 17.
 you remember parties cannot agree as to matters which
involve violations prohibitory laws or mandatory laws.
 so if they are exceptions to that third paragraph under
article 70 then they may agree that with respect to their
property abroad, for example, foreign law will govern those
properties and with respect to the marriage settlement that
may be properly reflected that it will be foreign law that will
govern those properties located abroad and to the extent
that the said parties are free to provide a cover matters in
their marriage settlement involving those properties as well.
 so basically this is a matter which involves decision making
between the spouses.
 the general rule will be as a default the property relationship
between these spouses ,how they manage, how they own,
how they administer their properties, in the absence of any
stipulation that will be governed by the national law of the
Filipino spouses but if the foreign law will allow and in
allowing, the foreign law will not contravene our prohibitory
laws here in the philippines the spouses may include a
portion of their marriage settlement dedicated to the
management, administration, and ownership of their
properties which are located abroad .
 They may include a clause that it will be foreign law that will
govern the manner by which those properties are managed,
are disposed of how, they are administered.
RULES
 XPN: This rule shall not apply:
1. Where both spouses are aliens—lex nationalii principle
2. With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines and
executed in the country where the property is located-
lex rei sitae principle
3. With respect to the extrinsic validity of contracts
entered into the Philippines but affecting property
situated in a foreign country whose laws require
different formalities for their extrinsic validity- lex re
sitae principle
 so take note that article 80 of the family code will not apply
to the following instances.
 we already know this and we already know the reason why.
 primarily when both spouses are aliens of course it will be
the lex nationalii principle that will govern.
 Under the second instance were talking about the extrinsic
validity of contracts which affect property not located in the
Philippines.
 So naturally we know that both the intrinsic and extrinsic
matters would be governed by the lex rei sitae principle, the
law of the place where the property is located.
 with respect to the extrinsic validity of contracts entered into
the philippines but they affect property is situated in a
foreign country, we also already know this with respect to
extrinsic and extrinsic validity of contracts which specifically
deal with real properties located abroad. It will be the law of
that forum or the law of that place that will govern both the
extrinsic and intrinsic validity of these contracts, the contract
that deal with these properties.
 If they are situated in a foreign country and whose laws
require different formalities for the extrinsic validity.
 although these contracts are entered into the Philippines
naturally you should observe the extrinsic validity of
contracts required in the foreign country because you’re
talking about dispositions of real property or even personal
property located in another country.
DOCTRINE OF IMMUTABILITY OF THE MATRIMONIAL REGIME
 The original property regime that prevailed at the start of
the marriage prevails despite the change of nationality of the
husband, the wife, or both parties;
 Reasons:
 Persons and Family Relations
2nd Exam
1. Property relations are determined by the law in
force at the time of the marriage
2. To protect the rights of interested 3 rd persons or
creditors
3. For the protection of the spouses themselves
 so i want you to stay you at this point and the article 80 or
in relation to article in the doctrine of immutability of
matrimonial regime.
 this is again another conflict of laws principles that you can
properly apply in persons and family relations.
 take note that under this doctrine the original property
regime that prevailed between the spouses at the time the
marriage, it will prevail despite the change of nationality of
the husband or wife or both of the parties and I present you
there succinctly what are the reasons for this.
 property regimes, the moment that they are determined at
the time of the celebration of the marriage they become
immutable, they cannot change it as a matter of decision-
making, they cannot change it as a matter of law, even
arguing that it is their new foreign law that will govern their
property relationship.
 that is not the case.
 here in the philippines and with respect to private
international law we comply with this doctrine of a
immutability of this matrimonial regime.
 take note that it follows the same principle of what law will
govern a marriage despite the effectivity of the family code.
 as we've already seen in the cases if certain marriages have
been contracted during the time the effectivity of the new
civil code that marriage generally, the incidence of that
marriage that will be covered by the new civil code
provisions.
 you cannot say that just because now we have the family
code provisions in effect automatically it will be the family
code provisions that will cater to all of the incidents involving
that marriage. so that's a general rule.
 in the same way as other than the governing law, we also
have immutability of the matrimonial regime such that the
property relationship that will govern the marriage at the
time of its celebration it will be deemed to continue despite
the change of the nationality between either one or both of
the parties to the marriage.
 So have to remember this doctrine because it's very
important.
ARTICLE 81.
 now we have article 81 everything stipulated in the
settlements or contracts refer to the preceding article in
consideration of a future marriage including the donations
between the prospective spouses made therein, they shall
be rendered void if the marriage does not take place.
 however stipulation that do not depend on the celebration
of the marriage, of course, they will remain valid.
MARRIAGE AS A LEGAL CONDITION
Marriage constitutes a positive suspensive condition for the validity
of the following:
1. marriage settlements
2. contracts in consideration of a future marriage
3. donations between the prospective spouses made in the
marriage settlements or contracts
NOTE: Such stipulations that do not depend upon the celebration of
the marriage shall be valid.
 so what does article 81 really mean?
 it means that marriage is contemplated as legal conditions
specifically, it is a positive suspensive condition, the
happening of which will give rise and effectivity to other
43 | P a g e | A L B E R T | ARITALIA
accessory contract or two other agreements related to that
condition.
 so in your obligations and contracts, you will learn that there
different types of conditions, a condition is a future answer
any event the happening of which the parties do not know
as of yet
 in persons and family relations with take marriage as a legal
condition.
 because this concept of future uncertain event, they may be
voluntary, they may be contractual but they may also be
provided by law and in this case marriage is considered as a
legal condition, the happening of which will give effect and
validity to the following contracts: to marriage settlements,
contracts in consideration of a feature marriage, donations
between the spouses, all of these contracts including that of
the special contract of marriage, all of these contracts will
not be valid and will be rendered ineffective and void if the
marriage will not take place because all of these are under
the consideration of the future marriage to be celebrated.
 logically if that marriage will not take place, then there is no
reason why these contracts shooting.
 some authors say in explaining article 81 that marriage
settlements, these contracts, these donations between the
prospective spouses, they actually in the form of an
accessory contract and then being accessory contracts their
validity or invalidity will rely on the validity or invalidity of the
principal contract which is marriage.
 that is also true if you look at marriage solely at a
contractual relationship. that is very true.
 However, i want to characterize marriage year as a legal
condition because as you already know, marriage is not just
an ordinary contract although it is a principal contract we
cannot say that it's like an ordinary contract that there may
be accessory undertaking or accessory contract thereto.
 so that’s why i like to characterize marriage as a legal
condition and not merely as a principal contract to these
accessory contract.
 in fact marriage contract in consideration of a future
marriage, these donations they are not entirely dependent
of the existence of the principal contract because if they
contain stipulations that do not depend upon the celebration
of the marriage itself, then they're completely valid.
 For example, if the spouses had an agreement or they
entered into a contract that the husband will recognize the a
legitimate illegitimate child with the future wife and they do
not contract marriage that is an admission of filiation, that
will become effective despite the fact that the marriage did
not take place.
 so in obligations and contracts language it would be asburd
that the marriage did not take place, the principal contract
did not come into fruition, but nevertheless the accessory
contract existed which is that contract or that agreement
admitting or acknowledging the illegitimate child of the
husband with the wife, its just that the marriage did not take
place.
 that's why i am uncomfortable with subscribing to the idea
that marriage is a principal contract under article 81.
 i'd rather think of it that marriage is a legal condition which
the law imposes for the effectivity and validity of these
contracts, the contracts which are married settlements, other
contracts in consideration of a future marriage and
donations between the prospective spouses.
 are there other contracts in consideration of a future
marriage? What contract can you think of where the spouses
or certain individuals agree and use the future marriage as
consideration or cause for that contract?
 an example would be how the expenses of the marriage will
be divided between them right? in your obligations and
contracts you will learn under that this is actually a contract
which must be in writing in order for it to be enforceable in
relation to the statute of frauds. So for example ang parents-
in-law, ang future spouse they all agree 50/50 sila or 70/30,
 Persons and Family Relations
2nd Exam
that contract must be in writing for it to be enforceable and
that writing depend upon the validity of marriage.
 it may be possible that contract is not in consideration of a
future marriage. For example if you've known of individuals
who practice their traditional chinese celebrations and
beliefs. Chinese families usually have a take on a Tinghun or
a pre-wedding engagement ceremony, the engagement
ceremony and all the costs thereto, that is devoid of any
consideration of the future marriage. That is a separate and
distinct cultural celebration kumbaga that is a separate
tradition in of itself. So the contract with respect to how they
will celebrate the Tinghu, who will carry the costs incurred
because of that celebration or that engagement party, that’s
not in consideration of the future marriage. So if the
marriage will not take place it still completely valid and
binding between the parties. So you have a lot of different
contracts that may be in consideration of a future marriage
and may also not be related to that marriage. So you have
to know and have to read the stipulation in the contract for
you to know whether or not they are dependent upon the
celebration of that marriage, so that the marriage will not be
celebrated later on in the future you will also be able to
know if that contract remains to be valid or it is rendered
ineffective and void because of the month celebration of the
marriage.
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 2. Donations by Reason of Marriage
 now let's go to the property relations between husband and
wife specifically those matters involving donations propter
nuptias.
DONATION
New Civil Code:
 Art. 725. Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of another,
who accepts it.
 Art. 726. When a person gives to another a thing or right on
account of the latter’s merits or of the services rendered by
him to the donor, provided they do not constitute a
demandable debt, or when the gift imposes upon the donee
a burden which is less than the value of the thing given,
there is also a donation.
 we do not have a definition of what donation is under the
Family Code but nevertheless we can make reference to two
important provisions under the new civil code.
 article 725 which is the definition of donation to donation is
not a mere document were proper properties will be
alienated in favor of another account of one security.
 Donation is specifically defined as an act of liberality so it is
the giving, it is from the donor's perspective, it is the act of
liberality with gratuitous consideration in mind whereby a
person called the donor disposes gratuitously or without
valuable consideration of a thing or right in favor of another
individual who accepts it. And the latter individual is called
the donee.
 so when a person gets to another thing or right on account
of the latter's merits or services rendered by him to the
donor provided they do not constitute and demandable debt
or with the gift imposes the donee a buren and that burden
is less than the value of the thing given, there is also a
donation.
 so there is under article 726, there is an emphasis under the
new civil code where if an individual gives a particular
property in favor of another just because it recognizes the
merits or services rendered by that donee or that it imposes
a burden, it's not automatic that it's not anymore gratuitous.
44 | P a g e | A L B E R T | ARITALIA
 it remains to be gratuitous, for as long as with respect to the
services rendered it does not constitute the demandable
debt, so meaning there's no valuable consideration involved
and with respect to the condition imposed or the burden
imposed on the donation for as long as that condition or
burden which is imposed is less that the value of the thing
given, it's also considered a donation.
 so for example if a parcel of land is given by the parents in
favor of their child and in consideration of marriage for
example and there is a condition that okay sge i-maintain
ninyo ng yutaa na, once okay na siya, limpyu na siya
tanawon, we will give you that automatically ok so that the
conditional donation, it imposes a particular condition that
you have to maintain and properly prepare the property for
purposes of donation to you.
 If that burden lets say in the amount of 50,000 pesos ang
inyong nagastos will be less than the value of the property
given which is 50 million ang value sa land, obviously there
is still a donation even if somehow there is a consideration
involved. But nevertheless that consideration involved is not
greater than the value of the thing. So its still considered
gratuitous. Its still out of the liberality imposed by the donor
with respect to the donee.
ARTICLE 82.
 so the important provision under the family code with
respect to donation propter nuptias is article 83.
 donations by reason of marriage are those made before its
celebration, in consideration of that marriage and in favor of
one or both of the future spouses who are specifically the
donee.
DONATIONS PROPTER NUPTIAS
Requisites:
1. They are made before the celebration of the marriage
2. They are in consideration of the same, and
3. They are made in favor of one or both of the future spouses
 so donations propter nuptias have these important
requisites, if they do not exist they may be considered as an
ordinary donation but it's not a donation by reason of
marriage.
 so you have to remember this three important requisite
because this will spell the difference between an ordinary
donation and donations propter nuptias.
 donations propter nuptias are primarily governed by the
provisions of the family code and ordinary donations are
governed by the provisions of the new civil code.
 so when we talked about donations in general, you learn
about them when you reach property but when we talk
about donations propter nuptias, we refer to the provisions
under the family code insofar as they do not negate the
provisions of the new civil code we can apply the latter lost
suppletory to donations propter nuptias which we will
illustrate a bit later.
ARTICLE 83.
 article 83 again provides that that same rule, that donations
are governed by the rules on ordinary donations established
under Title 3 Book 3 of the new civil code insofar as they are
not modified with the following article.
 This illustrated in a case that i assigned, the Spouses Cano
case.
 Nevertheless you have to remember, before during the time
na NCC palang wala pa nag take into effect ang FC, the NCC
aactually already distinguished different rules for donations
propter nuptias and ordinary donations.
 this the reason why because of the effectivity of the family
code, it will be the family code that will be the primary know
that will govern donations propter nuptias, their validity, how
 Persons and Family Relations
2nd Exam
they will be carried out, the limitations provided for by law,
etc. but if certain donations propter nuptias were made
during the time of the new civil code was the governing law
it will be that law that will govern the considerations made in
those donations propter nuptias obviously it will not be the
family code.
FORMALITIES FOR DONATIONS
 Art. 748. The donation of a movable may be made orally or
in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
In the value of the personal property donated exceeds
five thousand pesos, the donation and the acceptance
shall be made in writing. Otherwise, the donation shall be
void.
 Art. 749. In order that the donation of an immovable may
be valid, it must be made in a public document,
specifying therein the property donated and the
value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of
donation or in a separate public document, but it shall
not take effect unless it is done during the lifetime of the
donor.
If the acceptance is made in a separate instrument,
the donor shall be notified thereof in an authentic
form, and this step shall be noted in both
instruments.
 now other aspects of donations under the new civil code
which are suppletory applicable to the provisions under the
family code, will be the formalities of donations.
 you have to remember that donations under property law is
not only a mode or are not only modes of acquiring
ownership but you have to remember that from the
perspective of marriage, from the perspective of obligations
and contracts even that donations are primarily formal
contracts.
 what do you mean by formal contracts? these are contracts
or these are agreements between the donor and the donee
which require a certain solemnities or formalities for their
validity.
 so in short, if you have donations, there is consent between
the parties, there is consideration, which is the liberality or
pure beneficence on the part of the donor, and of course
there is a proper subject matter object of that contract,
which is the property to be given or to be donated.
 So its really a contract when you come to think of it but this
is a special type of contract in that there are certain
formalities that ought to be observed.
 if these formalities are not observe then that contract of
donation is considered void.
 which is the reason why you have to know about these
formalities.
 if it's an oral donation then it requires simultaneous delivery
of the thing which is to be donated. That’s completely valid
even if it's of verbally entered into by the parties. However,
if you deal with personal property which exceed 5000 pesos
that is donation as well as the acceptance of the donee must
be in writing.
 so when we talked about personal property less than 5000
pesos, oral donation, simultaneous delivery, no problem and
acceptance.
 but it but if it involves personal property and the value of
which exceeds 5,000 pesos, it must be in writing both of the
donation and acceptance. Otherwise, the donation is void.
 if we talked about immovable property or real property such
as a parcel of land or a house for example, when we talked
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about these types of properties regardless of their value, in
order for the donation involving these properties to be valid
they must be executed in a public instrument. So there must
be a public document evidencing that donation specifying
the property to be donated its values and charges, meaning
if there are burdens constituted thereto as well as the
acceptance of the donee.
 Those are the 3 important things that must be indicated in
that public document .
 So the acceptance of the donee in the public document may
be in the same deed as that of the deed of donation. So its
only in one document.
 Or it may also be separate. So one public document or
public instrument may contain the deed of donation and
other public document or instruments may contain the
acceptance but take note in both instruments there must be
a notation notifying that the donor has notified the donee
and the donee has notified the donor of its acceptance.
 So that is the meaning under the last sentence of article
749
 take note of these important provisions because they talked
about the validity of donations in general and these
formalities of the donations, ordinary donations, they are
applied to the formalities required for donations propter
nuptias.
ARTICLE 84.
 we have article 84.
 if the future spouse agree upon a regime other than the
absolute community of property, meaning it can be the
conjugal partnership of gains, complete separation of
property, other property regimes that they want to adopt the
marriage settlement, take note that they cannot donate to
each other in their marriage settlements more than one-fifth
of the value of the current properties or their present
property.
 Take note any donation more than this limitation will be
considered void as to the excess but the other parts of the
donation within the limit it will be considered valid which will
be illustrated later on.
 we talk about donations of future property under the new
civil code in your law on property, you will learn that
donations of future property are completely void because
you cannot give something which is not yours obviously.
 so as a general rule under the new civil code donations of
future properties cannot be, so they are void.
 however they are allowed in the form of donations mortis
causa, meaning these are donations which are not inter
vivos or made effective during the lifetime of the donor but
they take effect upon the death, that is why they are mortis
causa. They take effect upon the death of any one of the
spouses which we will look into again later.
RULES
Situation:
 The future spouses agree upon a regime other than the
absolute community of property in their marriage settlement
 Marriage settlement include donations to each other
RULE:
1. They cannot donate to each other more than one-fifth of
their present property.
2. Any excess shall be considered void.
 so let us illustrate the rules.
 first what is the situation that you'll see under this provision?
So you’ll see there.
 Persons and Family Relations
2nd Exam
 so the rules are: the spouses cannot donate to each other
more than one-fifth of their present property and it is only
the excess in case that they will go beyond this limitation
that will be considered void so you still give effect to the
donation but only within the limits provided for in this 1/5
rule.
APPLICATION
 A and B executed a pre-nuptial agreement whereby they
agree to have the conjugal partnership of gains as their
property regime during the marriage, and that all their
separate properties acquired before the marriage shall
remain exclusive property to them.
 In the agreement:
o A promises to donate 50,000, leaving 1,500,000
under her own name
o B promises to donate his house and lot valued at 5
Million, leaving properties amounting to 15 Million
under his own name.
 so let's see how you will apply this?
 This example involves computation. So in the computation
we will look at the one –fifth limit and see how it will be
applied in relation to this provision under the family code.
 the basic question is are the donations made in the
agreement valid?
 So we will consider two: the donation made by A, and the
donation made by B.
PROCEDURE
1. Compute how much is the respective present property of the
future spouses
2. Determine the ratio or portion of the property donated to the
present property
3. Compare with the 1/5 or 20% threshold
4. The donation shall be valid, but any excess will be void.
 Now, what is the procedure for you to be able to apply this
provision?
 first you have to know how much is the respective present
property of the future spouse.
 then you determine the ratio or portion of the property
donated to that of the present property and then you
compare it with the 1/5 rule or the 20% threshold, then you
will decide if the donation will be valid or not.
 if it is not valid, the invalidity will only be to the excess,
katong sobra lang sa 1/5.
COMPUTATION
With respect to A:
1. value of the present property (1.5M + 50K)= 1,550,000
2. ratio of donation to present property (50K/1,550,000)= .
03226
3. less than 1/5 or 20% therefore, the donation in its
entirety is valid
With respect to B:
1. Value of present property (15M+5M)= 20M in properties
2. Ratio of donation to present property (5M/20M)= ¼ or 25%
3. So the donation is valid only to the extent of 1/5:
(20M/5)= 4M
4. As to the 1M excess: void for being inofficious
 When you talk about the void inofficious donation only with
respect to the excess and that is relative to the present
property of the future spouses.
DONATIONS OF FUTURE PROPERTY
 GR: Art. 751. Donations cannot comprehend future
property.
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By future property is understood anything which the donor
cannot dispose of at the time of the donation.
Donations of Future Property
General Rule: Article 751. Donations cannot comprehend future
property.
By future property is understood anything which the donor cannot
dispose of at the time of the donation. (635)
 There is an established rule nemo dat quod non ha bet ,
where parties cannot give what is not theirs.
 The consideration of donation will be your liberality. There is
pure beneficence to give property in favor of the done.
 For a lack of subject matter/object, is considered void.
Exception: Donations propter nuptias between spouses of future
properties — donation mortis causa (effective upon the death of the
spouses)
- Intrinsic Validity: Governed by the provisions on testamentary
succession and
- Extrinsic Validity: Governed by the formalities of wills
 If a third party wanted to donate to the spouses a future
property, it does of fall under this exception – it is under the
general rule
Formalities of Wills
 Holographic Wills
Article 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
 Notarized Wills
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last; on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental Witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. (n)
Article 806. Every will must be acknowledged before a notary was by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk
of Court.(n)
ARTICLE 85.
 Persons and Family Relations
2nd Exam
Donations by reason of marriage of property subject to encumbrances Donations made in Donations propter
shall be valid. In case of foreclosure of the encumbrance and the the marriage nuptias
property is sold for less than the total amount of the obligation Settlement (Art 86)
secured, the donee shall not be liable for the deficiency. If the property (Art 81)
is sold for more than the total amount of said obligation, the done shall Nature Not necessarily By reason of
be entitled to the excess. (1314) donations propter marriage
nuptias (e.g., they
DONATIONS WITH ENCUMBRANCES donated it because it
is part of their
Status: Valid, and the encumbrances constituted thereon must be engagement, or
respected because nabuntis
ang wife et al)
 Example, the parents will give the future spouses a house Limitation as to Subject to “not more No limitation; except
and lot for them to make it as a family home, but the said donation than 1/5 value of if inofficious (Art. 752
house and lot is constituted in a mortgage, that mortgage is present property” of the NCC)
a burden/encumbrance. The status of donation is valid but rule (Art 84)
you have to respect the encumbrance constituted thereto. Effect of non- Automatically null Not automatic; the
So, when the said property is mortgaged in a bank, meaning celebration of the and void (81) donor must file an
the parents has the obligation, and the bank has interest marriage action to revoke (86)
thru the mortgage over that property such as in case when (valid until revoked
the parents cannot pay the debt/loan, the may foreclose the by the donor)
property which constituted as a security.

In case of foreclosure of the encumbrance and the property is sold:

- If the selling price is < the total amount of the obligation
secured:
o The donee shall not be liable for the deficiency
 Example: Upon foreclosure sale, the property was
sold at public auction for P5 Million and the value
of the indebtedness is P10 Million. The donee is
not liable for the P5 Million deficiency.
- If the selling price is > the total amount of the obligation
secured:
o The donee is entitled to the excess
 Example: Upon foreclosure sale, the property was
sold at public auction for P1o Million and the value
of the indebtedness is P5 Million. The donee is
entitled to the P5 Million excess proceeds.
 Why? Because donation is a mode of acquiring
ownership. When anything happens to the
property, we respect the encumbrance, rights of
third party x x but any advantage or benefits
arising from that auction sale or the incidents
involving the enforcement of the rights of a third
person, those benefits will inure to the owner of
that property. Since future spouses acquired the
property by donation, they are entitled for the 5
million excess, not the parents.*
ARTICLE 86.
SOLIS V. BARROSO,
G.R. NO. 27939, [OCTOBER 30, 1928]
In donations propter nuptias, the marriage is really a consideration,
but not in the sense of being necessary to give birth to the obligation.
This may be clearly inferred from Article 1333 (Spanish Civil Code),
which makes the fact that the marriage did not take place a cause for
the revocation of such donations, thus taking it for granted that there
may be a valid donation propter nuptias, even without marriage, since
that which has not existed cannot be revoked.
And such a valid donation would be forever valid, even without
marriage since that which has not existed cannot be revoked. And
such a valid donation would be forever valid, even if the marriage
never took place, if the proper action for revocation were not
instituted, or if it were instituted after the lapse of the statutory period
of prescription.
This is so, because the marriage in a donation propter nuptias is rather
a resolutory condition which, as such, presupposes the existence of the
obligation which may be resolved or revoked, and it is not a condition
necessary for the birth of the obligation.
(1) Judicial Declaration of Void Marriage
General Rule: If there is a judicial declaration of void marriage, the
donor has to file an action for revocation of the donation

A donation by reason of marriage may be revoked by the donor in the Exception: When are donations propter nuptias automatically revoked
following cases: or revoked by operation of law?

(1) If the marriage is not celebrated or judicially declared void ab initio
except donations made in the marriage settlements, which shall be
governed by Article 81;
(2) When the marriage takes place without the consent of the parents
or guardian as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied
with;
 Void marriage under Article 40, because of the effects under
Article 50 in relation to Art. 43 (3) and the donee acted in bad
faith
o (3) Donations by reason of marriage shall remain valid,
except that if the done contracted the marriage in bad faith,
such donations made to said donee are revoked by operation
of law;
 Here, the donor is the innocent spouse and the donee is the
guilty spouse
 Is it possible that the marriage is void under Article 40 but
dili siya revoked by operation of law? YES. If the donee did
not acted in bad faith – complete ignorance of the fact x x

(6) When the donee has committed an act of ingratitude as specified (2) Lack of Parental Consent
by the provisions of the Civil Code on donations in general. (132a)
 Mere existence of the ground is basis for revocation
(1) If the marriage is not celebrated
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 Persons and Family Relations
2nd Exam
 It is not necessary the marriage is annulled before the donor The action to revoke the donation under this Article must be brought
may revoke. within five years from the time the decree of legal separation become
final. (107a)
(3) Annulled Marriages & Donee in Bad Faith
(5) COMPLIANCE A RESOLUTORY CONDITION
ARTICLE 45 in relation to 50 ARTICLE 45 in relation to 86
and 43 (3) & 44 Conditional obligations- the acquisition of rights [suspensive condition],
BOTH MARRIAGES ARE VOIDABLE as well as the extinguishment or loss of those already acquired
If the marriage is annulled and If the marriage is annulled and [resolutory condition], shall depend upon the happening of the event
the done acted in bad faith: the done acted in bad faith: which constitutes the condition. (Art. 1181)
revoked by ‘operation of law’ donor may revoke
Article 43 and 44 are new Article 86 originated from Article Concept- uncertain event which wields an influence on a legal or
provisions under the Family code 132 of the New Civil Code juridical relationship (Manresa)

a. Futurity
b. Uncertainty of its occurrence
How do we settle the conflict?
c. It has an effect upon the efficaciousness of the obligation —
meaning, when the obligation becomes due and demandable
 ARTICLE 45 in relation to So and 43 (3) & 44 applies if the
donor is the innocent spouse (so these provisions
(6) Acts of Ingratitude
contemplate donations propter nuptias between spouses)
 ARTICLE 45 in relation to 86 applies if the donor is a 3
Article 765. The donation may also be revoked at the instance of the
person (so these provisions contemplate donations propter
donor, by reason of ingratitude in the following cases:
nuptias in favor of the spouses from 3" persons)
(1) If the donee should commit some offense against the
DISTINGUISH (2) AND (3)
person, the honor or the property of the donor, or of his wife
or children under his parental authority;
Art. 86 (2) Art. 86 (3)
Ground for Mere lack of parental Requires final Requisites:
revocation of or guardian’s consent judgment annulling
donation to the marriage the marriage 1. Commission of the offense vs. donor, even without a
Condition of the Not necessary to be Donee must be in conviction
donee in bad faith bad faith 2. Offense must be against the person, the honor or the
Status of the Marriage may subsist Voidable marriage property of the donor, or of the spouse or children under his
marriage & Effect (although voidable) must be annulled as parental authority
on donation but the donation may a condition for the
be revoked revocation of the Acts of Ingratitude
donation
Effect of Only the marriage is The marriage is Article 765. The donation may also be revoked at the instance of the
ratification on the ratified, but the ratified and the donor, by reason of ingratitude in the following cases:
voidable marriage donation may still be donation cannot be
& revocable revoked revoked 2) If the donee imputes to the donor any criminal offense, or
donation any act involving moral turpitude, even though he should
prove it, unless the crime or the act has been committed
against the donee himself, his wife or children under his
JUSTIFICATIONS authority;

 This is the view of Atty. Galas, Justice Sempio-Diy and Requisites:

Albano
 The effects under Article 50 in relation to 43 (3) and 44 are 1. Imputation to the donor of any criminal offense, or any act
under TITLE | MARRIAGE; Chapter 3. Void and Voidable involving moral turpitude
Marriages — specific to the parties to the marriage 2. It is immaterial that the donee can prove his accusation or
 The effects under Article 86 are under TITLE IV PROPERTY substantiate his testimony against the donor
RELATIONS BETWEEN HUSBAND AND WIFE, Chapter 2.
Donations by Reason of Marriage — in general Acts of Ingratitude

(4) Legal Separation and Donee in Bad Faith
Compare with Art. 64. (donations between spouses)
After the finality of the decree of legal separation, the innocent spouse
may revoke the donations made by him or by her in ROS offending
spouse, as well as the ge elt of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable.
The revocation of the donations shall be recorded in the registries of
properties in the places where the properties are located. Alienations,
liens and encumbrances registered in good faith before the recording
of the complaint for revocation in the registries of property shall be
respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof
to the insured.
Article 765. The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor. (648a)
Requisites:
1. The refusal to support the donor must be undue, that is,
without just reason; and
2. The donee must be legally or morally bound to support the
donor.
WHEN MAY THE DONOR FILE THE ACTION TO REVOKE?

48 | P a g e | A L B E R T | ARITALIA
 Persons and Family Relations
2nd Exam
Grounds Period to Revoke
Art. 86 (1) to (5) Article 1144. The following actions must be
brought within ten years from the time the right
of action accrues: (1) Upon a written contract;
Article 1145. The following actions must be
commenced within six years: (1) Upon an oral
contract;
Art. 86 (4) c.f. Art. 64*** 5 years from the finality of the
decree of legal separation
Art. 86 (6) Article 769. The action granted to the donor by
reason of ingratitude cannot be renounced in
advance. This action prescribes within one year,
to be counted from the time the donor had
knowledge of the fact and it was possible for
him to bring the action. (652)
GRANTS OF GRATUITOUS ADVANTAGE
1. Voluntary Usufructs (Art. 562 NCC)
2. Contracts of Commodatum (Art. 1933 NCC)
3. Gratuitous Simple loan (Art. 1933 NCC)
4. Contracts of Deposit (Art. 1962 NCC)
5. Contracts of Guaranty (Art. 2047 NCC)
PROHIBITED ONEROUS TRANSACTIONS
o Article 1490 NCC. The husband and the wife cannot sell
property to each other, except:
1. When a separation of property was agreed upon in
the marriage settlements; or
2. When there has been a judicial separation of
property under article 191. (1458a)
o Article 1646 NCC. The persons disqualified to buy referred to
in articles 1490 and 1491, are also disqualified to become
lessees of the things mentioned therein. (n)

ARTICLE 87.

Every donation or grant of gratuitous advantage, direct or indirect,

between the spouses during the marriage shall be void, except
moderate gifts which the spouses may give each other on the occasion
of any family rejoicing. The prohibition shall also apply to persons
living together as husband and wife without a valid marriage. (133a) - END -

Cohabitation GOD BLESS SA EXAM!

In Bitangcor v. Tan, we 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 a woman of the marital relation, and
dwelling together as man and wife, thereby holding themselves out to
the public as such.

PROHIBITED DEALINGS DURING MARRIAGE OR

COHABITATION

General Rule: Every donation or grant of gratuitous advantage, direct

or indirect, between the spouses during the marriage or common law
partners during their cohabitation shall be void

Exception: Moderate Gifts - depends on the financial capacity of the

DONOR

“INDIRECT DONATIONS”

Article 87 includes the following donations of a donor-spouse:

1. to a stepchild who has no compulsory and/or legal heirs,

such as his or her children, other than the other spouse at
the time of the donation;
2. to acommon child who has no compulsory and/ or legal
heirs other than the other spouse at the time of the
donation; (XPN under Art. 94 and 121 of FC)
3. to the parents of the other spouse;
4. to the other spouse's adopted child who has no compulsory
and/or heirs or, in cases when, at the time of the donation,
the only surviving relative of the adopted is the other
spouse (parent of the adopted);
5. to a common adopted child who has no other compulsory
and/or legal heirs.

The above donations in favor of the said donees are indirect donations
to the spouse of the donor-spouse because, once they die, the spouse
of the donor will inherit from the donee. (Sta. Maria)

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