EH 403 PFR Review Module 1-8

403 NOTES | PERSONS & FAMILY RELATIONS REVIEW | DEAN ALEX MONTECLAR | 2020-2021
PERSONS & FAMILY RELATIONS reflecting the influence of American rule over the
REVIEW Philippines and the influx of commercial relations
involving Americans during that time.
DEAN ALEX MONTECLAR
NOTES COMMITTEE The great mass of disputes between private persons

Dadol, Dasig, Dela Pena, De los Angeles, Dimaunahan, Gaviola, Gazo, over civil and property relations are resolved by
Manit, Ramirez, Rivera, Sevilla, Suarez, Torres, Villa, Zosa application of the provisions of the Civil Code. With over
2000 specific provisions, the Civil Code attempts to
PROOFREADERS
Asentista, Dasig, Dy, Li, Gaviola, Sevilla
anticipate all possible questions arising from civil and
property relations and prescribe a definitive solution for
CASE COMMITTEE these problems. Understandably, the Civil Code itself is
Amoro, Bilagantol, Borga, Capuno, Castello, Del Rosario, Dongallo, unable to provide a definite answer for all emerging
Gaspar, Lequigan, Ligutom, Orcullo, Pacana, Tagaloguin, Salubre
problems, and reliance has been placed by the courts
not only on the provisions of the Code, but also on the
PART 1: PRELIMINARY MATTERS interpretations of the Code as laid down by the Supreme
MODULE 1: INTRODUCTION Court. Notably, the Civil Code itself recognizes that
HISTORY “[j]udicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of
The Civil Code is strongly influenced by the Spanish Civil the Philippines” (Article 8, Civil Code), a recognition of
Code, which was first enforced in 1889 within the the eminent role now played by judicial precedents in
Philippines, then a colony of Spain. The Spanish Civil Philippine law.
Code remained in effect even during the American
colonization of the Philippines. However, by 1940, the THE FAMILY CODE OF 1987
Commonwealth Government of President Manuel
Quezon had created a Commission to create a new Civil In 1987, President Corazon Cojuangco Aquino enacted
Code. The Commission was initially headed by Chief into law The Family Code of 1987, which was intended
Justice Ramon Avanceña. However, the work of the to supplant Book I of the Civil Code concerning persons
Commission was interrupted by the Japanese invasion and family relations. Work on the Family Code had
of the Philippines, and its records were destroyed during begun as early as 1979, and it had been drafted by two
the Battle of Manila in 1945. successive committees, the first chaired by future
Supreme Court Justice Flerida Ruth Romero, and the
In 1947, President Manuel Roxas created a new Code second chaired by former Supreme Court Justice J.B.L.
Commission, this time headed by the former Dean of the Reyes. The need was seen to amend the Civil Code
University of the Philippines College of Law Jorge through the Family Code in order to, among others,
Bocobo. Among the members who sat on the new change certain provisions implanted from foreign
Commission were future Supreme Court Associate sources which had proved unsuitable to Filipino culture;
Justice Francisco R. Capistrano, and future Vice- and to attune to contemporary developments and
President Arturo Tolentino. The Commission completed trends.
the final draft of the new Civil Code by December 1947,
and this was submitted to Congress, which enacted it The Family Code covers fields of significant public
into law through Republic Act No. 386. The Civil Code interest, especially the law on marriage. The definition
took effect in 1950. and requisites for marriage, as well as the grounds for
its annulment of marriage, are found in the Family Code.
Due to its extensive coverage and impact, the Civil Code Also, in the Family Code is the law on conjugal property
is among the most widely studied and commented upon relations, the rules on establishing filiation, and the
laws in the Philippines. Several legal luminaries governing provisions on support, parental authority, and
developed reputations as experts on the Civil Code and adoption.
consequently enhanced their reputations in the field of
Philippine law. These include Tolentino, Supreme Court Source:
Associate Justices J.B.L. Reyes and Jose Vitug, and https://thecorpusjuris.com/legislative/republic-acts/ra-
respected law professors such as Ruben Balane, Araceli no-386.php
Baviera, Ismael Oledan, Adam Dayot, with GR Sanchez,
and Alejandro Mendros. Article 1, NCC: This Act shall be known as the "Civil
Code of the Philippines."
FEATURES OF THE CIVIL CODE
CIVIL CODE COMMISSION
The Civil Code is divided into 5 “books”, with a specific
Pres. Manuel Roxas on March 20, 1947, by virtue of EO
book covering persons and family relations; property;
48, created the Civil Code Commission.
succession; obligations and contracts; and special
contracts. Special contracts encompasses several
Members of the Code Commission:
classes of contracts as sales, agency, and partnership.
1. Dean Jorge Bocobo (Chairman)
The law on torts and damages is found in Book V,
2. Judge Guillermo B. Guevarra
although developments in tort and damages law have
3. Dean Pedro R. Ylagan
been guided less by the Code than by judicial
4. Dean Francisco R. Capistrano
precedents.
5. Arturo Tolentino (resigned) Replaced by: Dr.
Carmelino Alvendia
The influence of the Spanish Civil Code is most evident
in the books on property, succession and obligations and
Important Dates
contracts. The law on succession, for example, retains
Started: May 8, 1947
such concepts indigenous to Spain such as the rule on
Finished: December 16, 1947
legitimes and reserva troncal. On the other hand, many
Approved: June 18, 1949 as R.A. 386
of the provisions on special contracts, particularly on
Took effect: August 30, 1950 (Lara vs. Del Rosario)
sales, are derived from American common law,
1
DISCLAIMER: This material is NOT FOR SALE. The authors do not guarantee that this reviewer is 100% error-free.
Use at own risk. Good luck and happy studying!
SOURCES: Dean Monteclar’s lecture 2020, Dean Monteclar’s Compendium on PFR (2014), Jurado’s Civil Law Reviewer (2019),
Paras, Sta. Maria, GN 2018 & 2019, San Beda MemAid 2019, UP Law Reviewer 2020, Notes from previous batches
SOURCES OF THE CIVIL CODE judicial decisions, conventions or treaties, customs and
traditions.
(a) The Civil Code of Spain
(b) The Philippine Constitution of 1935 ESSENTIAL ELEMENTS OF HUMAN POSITIVE LAW
(c) Statutes or Laws (Philippine, American, European)
(d) Rules of Court (local and foreign) (a) Reasonable rule of action
(e) Decisions of local tribunals (particularly the SC up to (b) Due promulgation — for otherwise obedience can
1947) hardly be expected
(f) Decisions of foreign tribunals (c) Promulgation by competent authority
(g) Customs and traditions of our people (d) Generally, a sanction imposed for disobedience
(h) General principles of law and equity
(i) Ideas from the Code Commission itself CIVIL LAW viz-a-viz OTHER MATTERS
4 BOOKS OF THE CIVIL CODE Civil Law, defined

It is that branch of the law that generally treats of the
● Book I - Law on Persons and Family Relations personal and family relations of an individual, his
(Art. 1 to 413) property and successional rights, and the effects of his
● Book II - Property Ownership and its obligations and contracts.
Modification (Art. 414 to 711)
● Book III - Different Modes of Acquiring It is that mass of precepts that determine and regulate
Ownership (Art 712 to 1155) the relations of assistance, authority, and obedience
● Book IV - Law on Obligations and Contracts (Art. among members of a family, and those which exist
1156 to 2270) (Note: including special among members of a society for the protection of
contracts) private interests, family relations, and property rights.
(Tecson v. Commission on Elections, 424 SCRA 277)
NOTE: Civil Code on Family Relations was amended on
August 3, 1988 by the Family Code of the Philippines NOTE: The word “civil’’ is derived from the Latin word
(EO 209 as amended by EO 227) “civiles,’’ a citizen, as distinguished from a savage or a
barbarian. Originally, the word pertained to a member
LAW & ITS CLASSIFICATION of a “civitas’’ or free political community.
Definition of Law CIVIL LAW DISTINGUISHED FROM OTHER LAWS

In its general sense, it is the science of moral laws based POLITICAL LAW
on the rational nature of man, which governs his free
activity for the realization of his individual and social While civil law governs the relations of the members of
eds, and which by its very nature is demandable and a community with one another, political law deals with
reciprocal. the relations of the people and the government.
In its specific sense, it is a rule of conduct, just, CRIMINAL LAW

obligatory, promulgated by legitimate authority and of
common observance and benefit. To be useful and fair, The main difference between civil and criminal law deals
law has to be promulgated, i.e., made known to those with people who committed a wrong against another
who are expected to follow it. person. Civil law deals with disputes between one entity
and another. The guidelines for these disputes are
CLASSIFICATION OF LAW outlined in official documents and other governmental
NATURAL LAW Natural Moral Law - rules and regulations. Criminal law, on the other hand,
(promulgated impliedly applies to our higher deals with an individual’s offenses against the state (as
in our conscience and faculties a general rule).
body) e.g. do good and avoid
evil ADMINISTRATIVE LAW
Law of Nature - applies
to both our higher and While civil law is the law governing the relations
lower faculties between private persons or organizations,
e.g. the law of gravity administrative law governs a case between state
POSITIVE LAW Divine Positive Law - authority on the one side and a person from the other.
(promulgated expressly like the 10 Administrative law is the law regarding the rules or
or directly) Commandments regulations made and enforced by governmental
Divine-Human agencies. ‘
Positive Law - like the
Commandments of the CIVIL LAW DISTINGUISHED FROM THE CIVIL
Catholic Church CODE
Human Positive Law -
like Congressional While most of our civil laws are found in the Civil Code,
Statutes or Executive still the Civil Code is not the only place where we can
Orders find our civil laws. A Civil Code is a compilation of
NOTE: Understandably, we will deal only with Human existing civil laws, scientifically arranged into books,
Positive Law. titles, chapters, and subheads and promulgated by
legislative authority which regulates the private
Bases of Human Positive Law relations of the members of civil society, determining
Human positive law has for its basic premises the their respective rights and obligations with reference to
following Divine Pronouncements, the natural moral persons, things, and civil acts.
nature of man, legislative enactments, jurisprudence or
2
A codification may be necessary to provide for GEN: Publication is mandatory.

simplicity, unity, order, and reform in legislation. From XPN: (Memory Aid: ORLI)
time to time, however, additional civil statutes, civil 1. Municipal ordinances (governed by the LGC);
presidential decrees (during the existence of martial 2. Rules and regulations which are internal in
law), or civil executive orders may be promulgated. nature;
3. Letters of Instruction issued by administrative
MODULE 2: EFFECTIVITY OF LAWS supervisors on internal rules and guidelines;
and
ARTICLE 2, NCC. Laws shall take effect after fifteen 4. Interpretative regulations regulating only the
(15) days following the completion of their publication personnel of the administrative agency.
either in the Official Gazette or in a newspaper of
general circulation in the Philippines, unless it is XPN to the XPN: (Memory Aid: DEP)
otherwise provided. Administrative rules and regulations that require
publication:
When does an ordinary law take effect? 1. The purpose of which is to implement or enforce
Laws take effect after 15 days following the completion existing laws pursuant to a valid delegation;
of their publication either in the Official Gazette or in a 2. It diminishes existing rights of certain
newspaper of general circulation in the Philippines, individuals; or
unless otherwise provided. 3. It is penal in nature.
It depends on whether or not it has provided a specific TAÑADA VS. TUVERA

date. G.R. No. L-63915, April 24, 1985
1. If the date is specified Art. 2 of the Civil Code does not preclude the
Upon the lapse of the said period following its requirement of publication in the Official Gazette, even
complete publication, and not before. if the law itself provides for the date of its effectivity.
The clear object of this provision is to give the general
2. If no date is specified public adequate notice of the various laws which are to
− The 15-day period, which may either be on regulate their actions and conduct as citizens. Without
the 15th or on the 16th day, depending on such notice and publication, there would be no basis for
the language used by the Congress in fixing the application of the maxim ignoratia legis nominem
the effectivity date of the statute. excusat. It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law
− 15th day – If the law declares that which he had no notice whatsoever, not even a
it shall become effective “15 days constructive one.
after its publication”. So if a law
was published on August 31, 2020, The very first clause of Section 1 of CA 638 reads: there
it will be effective on September 15, shall be published in the Official Gazette…. The word
2020; “shall” therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the
− 16th day – If the law declares that constitutional right of the people to be informed on
it shall be effective “after 15 days matters of public concern is to be given substance and
following its publication”. So if a validity.
law was published on August 31,
2020, it will be effective on The publication of presidential issuances of public nature
September 16, 2020. or of general applicability is a requirement of due
process. It is a rule of law that before a person may be
3. If the law provides for immediate bound by law, he must first be officially and specifically
effectivity or upon approval informed of its contents. The Court declared that
It is effective immediately after its complete presidential issuances of general application which have
publication, and not after the signing of the not been published have no force and effect.
President.
FARIÑAS, ET. AL. VS. EXECUTIVE SECRETARY
4. If the law is voluminous G.R. No. 147387, December 10, 2003
Reckoning shall begin from the release of the
last series. Petitioners assert that RA No. 9906 (Fair Election Act) is
null and void in its entirety as irregularities attended its
Is publication needed? enactment into law. Section 16 of the law provides that
A: Yes. Publication is mandatory, since it is an "this Act shall take effect upon its approval" is a violation
indispensable requirement of due process. Whether the of the due process clause of the Constitution, as well as
law is punitive or not, publication is necessary. jurisprudence, which require publication of the law
before it becomes effective.
The term “unless it is otherwise provided” does not
mean that there is no need for publication if there is a The Supreme Court ruled that the “effectivity" clause of
provision stating so. In the case of Tañada vs. Tuvera, RA No. 9006 which provides that it "shall take effect
the Supreme Court said that it means that the phrase immediately upon its approval," is defective. However,
“unless it is otherwise provided” refers to the length of the same does not render the entire law invalid. This
15 days, which can be shortened or lengthened. clause does not mean that the legislator may make the
However, publication cannot be dispensed with. law effective immediately upon approval, or on any
other date without its previous publication.
3
Publication is indispensable in every case, but the Furthermore, the ruling in the Del Rosario case is
legislature may in its discretion provide that the usual contrary to the Supreme Court’s statement in a prior
fifteen period shall be shortened or extended. Following case that the reason for the conclusive presumption in
Article 2 of the Civil Code and the doctrine enunciated the Revised Administrative Code “is obviously to avoid
in Tañada, RA No. 9006, notwithstanding its express uncertainties likely to arise if the date of publication is
statement, took effect fifteen days after its publication to be determined by the date of the actual release of the
in the Official Gazette or a newspaper of general Gazette.’’
circulation.
FACTS: The plaintiffs were former taxi drivers of the
EFFECTIVITY OF THE CIVIL CODE defendant. When the latter sold some of his vehicles,
the plaintiffs who were no longer needed were
According to several cases decided by the Supreme dismissed. Because their employer did not give them
Court, the date of effectivity of the Civil Code of the their one month’s salary in lieu of the notice required in
Philippines is August 30, 1950, which is one year after Art. 302 of the Code of Commerce, this action was
its publication in the Official Gazette. instituted.
However, this is subject of criticism by some of our It was held that the services of the plaintiffs ended
leading commentators. Article 2 of the NCC expressly September 4, 1960, when the new Civil Code was
provides that the NCC of the Philippines shall take effect already in force, it having become effective on Aug. 30,
one year after the completion of its publication in the 1950. The new Civil Code in Art. 2271 repealed the
Civil Code. Actually, it was published in a Supplement provisions of the Code of Commerce governing agency,
dated June 1949, which accompanied the June 1949 one provision of which was Art. 302. Hence, the
issue. plaintiffs are no longer entitled to their one-month
severance pay.
However, the Editor of the said Official Gazette certified
that “the June 1949 issue of the Official Gazette with the NOTE: This is controversial because the Supreme Court
Supplement thereto, was released for circulation on may have committed judicial legislation, since the word
August 30, 1949.” Consequently, if the basis for of the law is clear. However, there is no higher court
computing the one-year period was the date of than the Supreme Court where this ruling may be
publication, then the date of effectivity would be June questioned.
30, 1950.
IGNORANCE OF THE LAW EXCUSES NO ONE
But if the basis for computing the period is the date of
circulation, then the date of effectivity would be August ARTICLE 3, NCC. Ignorance of the law excuses no one
30, 1950. Evidently, although decisions are silent, the from compliance therewith.
SC has chosen this basis, even though it seems to be
contrary to Sec. 11 of the Administrative Code of the This rule or principle is a conclusive presumption of law
Philippines, which declares that the date of publication which is embodied in Article 3 of the NCC.
of the Official Gazette is conclusive presumed to be the
date indicated therein as the date of issue. RATIONALE BEHIND THE MAXIM
LARA VS. DEL ROSARIO It is based on expediency, as well as public policy and
G.R. No. L-6339, April 20, 1954 necessity. Were it not for this rule, almost everybody
would be able to relieve himself of any criminal or civil
In the case of Lara v. Del Rosario, the Supreme Court in liability by claiming that he is ignorant of the law.
an obiter dictum (obiter — because the principal date
concerned in the case was September 4, 1950) held that NOTE: This rule, however, refers only to mistakes with
the Civil Code of the Philippines took effect on Aug. 30, regard to the existence of the law rather than to
1950. This date is exactly one year after the Official mistakes with question of the law or with regard to the
Gazette publishing the Code was released for effect of a certain contract or transaction. The latter
“circulation,” the said release having been made on Aug. (mistake as to the effect of a certain
30, 1949. contract/transaction) may be the basis of possession in
good faith, or may render a contract voidable, or may
This ruling with respect to the effectivity date seems to give birth to a quasi-contract of solutio indebiti.
be contrary to the provision of the law which states that
“This Code shall take effect one year after such IGNORANCE OF LAW v. IGNORANCE OF FACTS
publication’’ (Art. 2, Civil Code), not after “circulation.’’
And under the Revised Administrative Code (Sec. 11), Is there any difference in its legal effect between
“for the purpose of fixing the date of issue of the Official ignorance of law and ignorance of mistake/fact?
Gazette, it is conclusively presumed to be published on A: Yes. The former does not excuse a party from the
the date indicated therein as the date of issue.’’ It should legal consequences of his conduct, while the latter
be remembered that the June 1949 issue of the Official constitutes an excuse and is a legal defense.
Gazette was circulated on Aug. 30, 1949.
What about ignorance of foreign law?
While it is no doubt desirable that the date of issue A: Ignorance of foreign law is not ignorance of the law.
should be the same as the date of circulation, for It is ignorance of fact because foreign laws must be
otherwise the public may be unduly prejudiced, still no alleged and proven as a fact. If one cannot prove the
amount of judicial legislation can or should outweigh the foreign law which is applicable in one’s case, then the
express provision of Sec. 11 of the Revised court will assume that foreign law is similar to domestic
Administrative Code. Dura lex sed lex (“the law may be laws. This is known as the doctrine of processual
harsh but it is the law’’). presumption.
4
IN THE MATTER OF THE ESTATE OF CHEONG BOO, by foreign laws. Furthermore, it is against our public
DECEASED; MORA ADONG VS. CHEONG SENG GEE policy that a child not be given support.
G.R. No. 18081, March 3, 1922
PROSPECTIVE APPLICATION OF LAWS
DOCTRINE: Ignorance of foreign law is not ignorance
of the law, but ignorance of the fact because foreign ARTICLE 4, NCC. Laws shall have no retroactive effect,
laws must be alleged and proved as matters of fact, unless the contrary is provided. (3)
there being no judicial notice of said foreign laws.
GEN: Laws shall not have a retroactive effect.
Cheong Boo, a native of China, who died intestate in the
Philippine Islands, was married with Tan Dit in China and XPN: (Memory Aid: SPPICE)
begot a child, named Cheong Seng Gee, herein 1. When the law expressly provides for its
appellant, who claimed for the properties left by Cheong retroactivity;
Boo. The evidence presented by Cheong Seng Gee were − This is only applicable to civil law.
immigration documents which the trial court found to be
insufficient to sustain the marriage of Cheong Boo in 2. When the law is curative or remedial in nature
China. in the sense that the purpose of the law is to
cure defects in judicial/administrative
The Supreme Court affirmed the lower court by positing proceedings;
that in order to establish a valid foreign marriage, it is
first necessary to prove before the courts of the Islands 3. When the law is procedural provided it does not
the existence of the foreign law as a question of fact, affect or change vested rights;
and it is then necessary to prove the alleged foreign
marriage by convincing evidence. Otherwise stated, 4. When the law is penal in character and only
ignorance of foreign law is not ignorance of the law, but when it is favorable to an accused who is not a
ignorance of the fact because foreign laws must be habitual criminal, even though at the time of the
alleged and proved as matters of fact, there being no enactment of such law, final sentence has
judicial notice of said foreign laws. already been rendered (Art. 22, RPC);
− Otherwise, it will be an ex post facto
WONG WOO YIU VS. VIVO, ET. AL. law, which is prohibited by our
G.R. No. L-21076, March 31, 1965 Constitution
− Elements of an ex post facto law: (1) It
DOCTRINE: If the foreign law is not properly alleged is criminal in nature; (2) It applies
and proved, the presumption is that it is the same as retroactively; and (3) If applied, it
our law. This presumption has been referred to by the would be disadvantageous to the
famed author Wharton as a “processual presumption.” accused.
− Example: The suspension of the Death
Thus, a marriage in China celebrated before a village Penalty Law by the 1987 Constitution
leader therein cannot be recognized as valid in the benefits those who are charged of
Philippines, unless there is proof that indeed in China capital offenses and whose cases are
and according to Chinese law such a marriage is pending in court. Note that this law was
regarded as valid. reimposed in 1994. However, the SC
has held that its reimposition will not
Without such proof, we will assume that the law on apply to those charged for capital
marriage in China is the same as the law in the offenses prior to its reimposition.
Philippines, and in our country, it is well-known that a
village leader cannot perform a marriage, whether 5. When the law creates new substantive rights,
before or after the effectivity date of the new Civil Code. provided that the same does not impair vested
rights;
DEL SOCORRO VS. VAN WILSEM − The best example is the New Family
G.R. No. 193707, December 10, 2014 Code. The NFC provides for its own
retroactivity. It expressly states that it
Van Wilsem, a foreigner, refused to give support to his should have retroactive effect.
son arguing that under the laws of Holland he is not − But according to the SC, we cannot
legally obligated to do so. Norma filed a criminal apply the law retroactively, even when
complaint against him under RA 9262 in relation to it expressly so provides, if it impairs a
Article 195 of the Family Code. Van Wilsem is not vested right of a person which was
governed by the provision in the Family Code regarding acquired under the old law.
the obligation to give support since he is governed by
the laws of Holland. 6. When the law is interpretative of other laws.
However, he failed to prove the laws on Holland thus the MEANING OF PROSPECTIVITY
court will presume that such foreign law is the same as
our domestic laws. Thus, he is obliged to give support MUNICIPALITY OF CORON VS. CARIÑO
to his son and his refusal thereof is penalized under RA G.R. No. 65894, Sept. 24, 1987
9262.
Petitioner sought the authority of the court to demolish
NOTE: Even if Van Wilsem were able to prove his the structures built by private respondent petitioner’s
national law, the SC said that it will still not apply the wharf. The court ruled in favor of the petitioner. Private
law of Holland in accordance with Art. 17 of our Civil respondents filed an appeal wherein they were required
Code. Our prohibitive laws cannot be rendered nugatory to submit the forty (40) printed copies of their record on
appeal together with the proof of service within fifteen
5
(15) days from receipt of the notice of their appeal. BERNABE VS. ALEJO
Private respondents failed to do so. Their appeal was G.R. No. L-140500, January 21, 2002
dismissed and such order became final and executory
on September 27, 1982. Before the Sheriff could Carolina Allejo, in behalf of Adrian, filed a complaint for
proceed with the execution, the Interim Rules of Court recognition as an illegitimate child of Fiscal Bernabe. At
implementing BP 29 was promulgated, wherein printed the time when Adrian was born, Article 285 of the Civil
records on appeal are no longer required, thus private Code provided that an action for recognition can be filed
respondents filed their motion to be heard on appeal. within 4 years after the child attained the age of
The Interim Rules of Court does not apply in this case. majority. It was thereafter superseded by the Family
Statutes regulating the procedure of the courts will be Code which now requires that the action will be filed
construed as applicable to actions pending and during the lifetime of the alleged father. The sole
undetermined at the time of their passage. Procedural surviving heir of Bernabe argued that the Family Code
laws are retrospective in that sense and to that extent. should be given retroactive effect since no there will be
no vested right that would be impaired. The Family Code
EXCEPTIONS TO THE RULE ON PROSPECTIVITY provides a caveat that rights that have already vested
prior to its enactment should not be prejudiced or
CAMACHO VS. CIR impaired. Article 285 of the Civil Code is a substantive
G.R. No. L-1505, May 12, 1948 law, thus the Family Code cannot impair such right
granted by it to Adrian because that right had already
DOCTRINE: If the laws themselves provide for been vested prior to the enactment of the Family Code.
retroactivity, in no case must an ex post facto law be
passed. (It should be noted that generally, the Philippine MANDATORY AND PROHIBITORY LAWS
Constitution does not prohibit retroactive laws.)
ARTICLE 5, NCC. Acts executed against the provisions
The CIR in reversing the ruling of Tenancy Law of mandatory or prohibitory laws shall be void, except
Enforcement Division of the DOJ in favor of petitioners, when the law itself authorizes their validity. (4a)
ruled and upheld the oral contract embodying the old
customs of tenancy sharing observed by the parties. It Mandatory/Prohibitory Laws
ruled that although Section 4 of RA 4045 requires such As distinguished from permissive/directive laws, these
agreement to be in writing, RA 53 and Section 8 of RA are laws that have to be obeyed.
4045 recognizes oral contracts of tenancy sharing.
Moreover, Section 3 of RA 34 amending Section 8 of RA Kinds of Mandatory Legislation
4045, which became effective on September 30, 1947 1. Positive – when something has to be done;
cannot be applied in this case without impairing the 2. Negative or prohibitory – when something
obligations of contract and infringing the Constitution. should not be done
The CIR ruling is incorrect. Although no retrospective
effect would be given to Section 3 of RA 34 with respect RULE
to the palay during the agricultural year of 1946-1947,
the Constitution does not prohibit the enactment of GEN: Acts against the provisions of mandatory or
retrospective laws which do not impair the obligations prohibitory laws are void.
of contract or deprive a person of property without due
process of law. In this case, no vested rights were XPN: These are instances when an act, even when
acquired by the parties in this case since pursuant to violative of a mandatory/prohibitory law, is valid or may
Section 4 of RA 4045 the contract of tenancy sharing produce a legal effect:
must be in writing.
1. When the law makes the act merely voidable
PEOPLE VS. PATALIN (e.g. annulment of marriage – a marriage
G.R. No. 125539, July 27, 1999 celebrated through violence or intimidation or
physical incapacity or fraud is valid until
The accused-appellants in this case were charged with annulled by a competent court);
Robbery with Physical Injuries and Robbery with
Multiple Rapes. At the time the crimes charged were 2. When the law makes the act valid, but it
committed, robbery with rape if committed with the use penalizes the wrongdoer (e.g. A widow who
of deadly weapon or two or more persons was remarries before the lapse of 300days after the
punishable by death. While the case was still in its trial death of her husband is liable to criminal
stage, the 1987 Constitution was ratified abolishing the prosecution, but the marriage itself is valid.)
death penalty, subject to reimposition by Congress for
compelling reasons. Congress eventually restored the 3. When the law makes the act valid when it should
death penalty by virtue of the Death Penalty Law. The have been void (e.g. Gambling is illegal, but the
accused-appellant argues that the restoration of the law allows sweepstakes, horse-racing);
death penalty would no longer cover them since the
Constitution's abolition of the death penalty had 4. When the law makes the act void but recognizes
retroactive effect, being beneficial to them. The abolition some legal effects flowing therefrom. (e.g. Art.
of the death penalty retroactively affected and benefited 36 of the Family Code – when a child is born out
accused appellants pursuant to Article 22 of the Revised of a void marriage on the ground of
Penal Code. Perforce, the subsequent re-imposition of psychological incapacity, the child is still
the death penalty will not affect them since laws passed considered a legitimate one.)
by Congress re-imposing the death penalty can only
have prospective application. Moreover, a subsequent Note: Other exceptions provided in Jurado:
statute cannot be applied retroactively as to impair a
right that accrued under the old law. 5. Where a marriage was solemnized by a person
who does not have legal authority, but the party
6
or parties believing in good faith, that such SUMMARY

person has the authority to do so, then such
marriage is valid but the person who solemnized GEN: Rights can be waived.
the same shall be criminally liable; XPN:
1. It is contrary to law, public order, public policy,
PAFLU VS. SEC. OF LABOR, ET. AL. morals or good customs; or
G.R. No. L-22228, February 27, 1969 2. When prejudicial to a third person with a right
recognized by law.
FACTS: The Secretary of Labor ordered the cancellation
of the registration certificate of the Social Security Illustration: Waiver is void for being contrary to
System Employees Association (SSSEA). SSSEA filed a public policy
petition for certiorari and prohibition, claiming that In land cases, when the government gives a person a
respondents acted without jurisdiction because the parcel of land, the latter is not supposed to sell that land
decision to cancel the union’s registration was made within 5 years. The reason, of course, is that the
beyond the 30-day period provided in Section 23(c) of government wants to give lands to the landless but since
RA 875. the lands are given by the government, the recipient
should not sell it for at least 5 years, so there is a
Are legal provisions prescribing the period within which prohibition.
a decision should be rendered, mandatory or directory?
If the recipient transacts the land within the
HELD: They are MANDATORY in the sense that if not prohibitive period, can he waive his/her right to
complied with, other officers concerned may be dealt redeem that land?
with administratively. No. Because that land was given by the government, it
is basically founded on public policy, and one cannot
But this is also DIRECTORY in the sense that the waive a right that is given by law by virtue of public
judgments rendered after said period would still be valid policy.
(unless there be some other important defect).
REQUISITES OF A VALID WAIVER
MARCOS VS. COMELEC, ET. AL.
G.R. No. 119976, September 18, 1995 1. The person waiving the right must be
capacitated to make the waiver; and
Imelda Marcos filed her certificate of candidacy, but she 2. The right must already be in existence when the
was disqualified by the COMELEC for failure to comply waiver is made.
with the residency requirement. Marcos assails the
jurisdiction of the COMELEC since the resolution REQUISITES OF A VALID WAIVER
disqualifying her was rendered 14 days before the (UP LAW BOC 2020)
election in violation of the Omnibus Election Code. The
Supreme Court ruled that it is a settled doctrine that a 1. Existence of a right;
statute requiring rendition of judgment within a 2. Knowledge of the existence thereof;
specified time is generally construed to be merely 3. An intention to relinquish the right.
directory such that non-compliance with them does not
invalidate the judgment. RIGHTS THAT CANNOT BE WAIVED
WAIVER OF RIGHTS ARTICLE 2035, NCC. No compromise upon the

following questions shall be valid:
ARTICLE 6, NCC. Rights may be waived, unless the 1. The civil status of persons;
waiver is contrary to law, public order, public policy, 2. The validity of a marriage or legal separation;
morals, or good customs, or prejudicial to a third person 3. Any ground for legal separation;
with a right recognized by law. (4a) 4. Future support;
5. The jurisdiction of courts;
Waiver, defined 6. Future legitime.
It is the intentional relinquishment of a known right.
Other rights that cannot be waived:
RULES AND EXCEPTIONS
1. Natural right to life;
Rights may be waived. In what cases may waiver
be prohibited and declared null and void? 2. Rights which are not existing yet;
Waiver is prohibited and may be declared null and void − Example: Waiver of future inheritance is
when: void as it is contrary to law. The right is
1. It is contrary to law, public order, public policy, merely inchoate and does not exist yet. If
morals or good customs; or the inheritance has already accrued, the
2. When prejudicial to a third person with a right waiver may be valid except when it is done
recognized by law. to prejudice a creditor.
Some instances where waiver is considered void 3. Political rights;

Waiver is considered void in such instances as: - The agreement between the Mayor and the
1. Waiver of future support; candidate for Vice-Mayor to split the term of
2. Waiver of political rights; office is null and void. The constitution says
3. Waiver of future inheritance, especially if the a public office is beyond the commerce of
waiver is intended to prejudice creditors. man, a matter of public trust, cannot be an
object of a contract, void ab initio. Also, it is
contrary to public policy.
7
4. Renunciation of rights violating public policy; When the courts declare a law to be inconsistent with
− Examples: the Constitution, the former shall be void and the latter
a. Agreement between husband and wife shall govern.
who have separated de facto not to sue
each other for concubinage or adultery; Administrative or executive acts, orders and regulations
b. A contract of sale with the right to shall be valid only when they are not contrary to the
repurchase with a prohibition against laws or the Constitution. (5a)
selling the property to another except to
the heirs of the vendor a retro is null and Repeal of Laws
void since it is a perpetual restriction on An existing law can only be changed by a passage of a
the right of ownership. But only the new law that is inconsistent with the existing law. The
prohibition itself is void, and not the repeal of the law can either be express or implied.
entire contract.
c. Five-year prohibition period with KINDS OF REPEAL
relation to land patents;
d. Waiver of a scholar’s right to transfer to There are two kinds of repeal, namely:
another school (Cui vs. Arellano
University; see case digest below) 1. Express repeal
− Also known as declared repeal
CUI VS. ARELLANO UNIVERSITY − It is contained in a special provision of the
G.R. No. L-15127, May 30, 1961 subsequent law, and names the law that is
repealed.
DOCTRINE: A stipulation requiring the recipient of a
scholarship grant to waive (before receiving said award) 2. Implied repeal
his right to transfer to another school, unless he refunds − Also known as tacit repeal
the equivalent of his scholarship in cash, is null and void. − It takes place when the provisions of the
subsequent law are incompatible or
Cui was a scholar at Arellano University. On his last inconsistent with those of the earlier law.
semester, he transferred to another school. When he
was about to take the bar exams, respondent refused to NOTE: The fundamental rule is that the legislature is
release his transcript unless he refunded the equivalent presumed to have known the existing laws on the
of his scholarship in cash. Cui then filed the present case subject and not have enacted conflicting statutes.
to recover the amount he paid under protest. Hence, all doubts must be resolved against any implied
repeal, and all efforts should be exerted in order to
The school concerned obviously understands harmonize and give effect to all laws on the subject.
scholarship awards as a business scheme designed to
increase the business potential of an educational NON-OBSERVANCE OF THE LAW
institution. Thus, conceived, it is not only inconsistent
with sound policy, but also with good morals. Disuse, custom, or practice to the contrary does not
repeal a law.
LEAL VS. IAC
G.R. No. L-65425, November 5, 1986 Example: Although hardly enforced nowadays, an
article of the RPC still prohibits betting on the results of
A contract of sale with right to repurchase containing a a basketball game, or any sports contest.
prohibition against selling the property to any other
person except the heirs of the vendor a retro is null and MISTAKE IN THE LAW
void because it is contrary to law. It amounts to a
perpetual restriction on the right of ownership. What An executive fiat cannot correct a mistake in the law,
was declared void, however, was the stipulation but only by another legislation.
prohibiting the sale to any other person, not the whole
contract itself REVIVING REPEALED LAWS
Expressly Repealed Laws

OTAMIAS VS. REPUBLIC
The new law which expressly repealed the old one is
G.R. No. 189516, June 8, 2016
itself repealed; the old one shall not be revived unless
expressly so provided.
Petitioner sought to have the pension benefits of her
husband executed to provide support to herself and her
Impliedly Repealed Laws
children. Respondent refuses to recognize the Deed of
The new law which impliedly repealed the prior law itself
Assignment and the Writ of Execution in favor of
is repealed; the old one shall be revived unless the
petitioner because pension benefits are exempt from
language of the repealing statute provides otherwise.
execution. The benefit of exemption from execution of
(US vs. Soliman, G.R. No. L-11555, January 6, 1917)
pension benefits is a statutory right which may be
waived so long as it does not contravene public policy
NOTE: Implied repeals are not favored. (US vs. Palacio,
and does not infringe on the right of third persons.
33 Phil. 208). Therefore, if both statutes can stand
together, there is no repeal. (Lichauco vs. Apostol, G.R.
REPEAL OF LAWS No. L-19628, December 4, 1922)
ARTICLE 7, NCC. Laws are repealed only by

subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to
the contrary.
8
CONFLICT BETWEEN GENERAL AND SPECIAL 1. The factual findings are not supported by
LAWS evidence;
2. The findings are vitiated by fraud,
In case of conflict between a general and a special imposition or conclusion;
law, which should prevail? 3. The procedure which led to the factual
findings is irregular;
a. If the general law was enacted before the 4. When palpable errors are committed; or
special law, then the special law is considered 5. When a grave abuse of discretion,
the exception to the general law. Therefore, the arbitrariness, or capriciousness is manifest.
general law remains good law, and there is no
repeal, except insofar as the exception or − It is well-settled that the constitutionality of a law
special law is concerned. (Lichauco vs. Apostol, or executive order may not be collaterally attacked.
G.R. No. L-19628, December 4, 1922) They shall, therefore, be deemed valid unless
declared null and void by a competent court.
b. If the general law was enacted after the special − The Secretary of Finance can revoke a circular
law, the special law remains unless: issued by his predecessor based on an erroneous
construction of the law, because the construction of
1. There is an express declaration to the a statute by those administering it is not binding on
contrary; their successors.
2. There is a clear, necessary and − An administrative officer cannot change a
irreconcilable conflict; or congressional law by a wrong interpretation of it.
3. Unless the subsequent general law covers − Departmental regulations must be in harmony
the whole subject and is clearly intended to with legal provisions, and are not allowed to enlarge
replace the special law on the matter. or extend the law.
LAPSE OF LAWS DECIDING THE CONSTITUTIONALITY OF A

TREATY, INTERNATIONAL OR EXECUTIVE
When the law has an expiration date, it dies without a AGREEMENT, OR LAW
repeal. However, frequently-violated or unused laws are
not rendered invalid. − The Supreme Court shall be composed of:
1. A Chief Justice, and
Example: A law granting emergency powers to the 2. 14 Associate Justices
President, or the annual appropriations law.
− It may sit en banc or in its discretion, in divisions of
Problem: Juan committed an offense, but before the 3, 5, or 7 members. Any vacancy shall be filled
time of the trial, the offense was no longer considered within 90 days from the occurrence thereof.
an offense by the law. Should Juan still be punished? − All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which
A: It depends. If there was a complete repeal, he should shall be heard by the Supreme Court en banc, and
not be punished anymore. But if the law merely lapsed, all other cases under the ROC which are required to
the penalty can still be imposed. be heard en banc, including those involving the
constitutionality, application, or operation of
SUPREMACY OF THE CONSTITUTION Presidential Decrees, Proclamations, Orders,
Instructions, Ordinances, and Other regulations
The Constitution is the supreme, basic, and fundamental shall be decided with the concurrence of the
law of the land. In case of conflict between a law and majority of the members who actually took part
the Constitution, the latter will prevail. in the deliberations on the issues in the case and
voted thereon.
However, in deciding the constitutionality of the statute, − Cases or matters heard by a division shall be
every presumption favors the validity of the same, and decided with the concurrence of a majority of the
when possible, statutes shall be given a meaning that members who actually took part and voted thereon,
will not bring it into conflict with the Constitution. and in no case without the concurrence of at
least three (3) members.
UNCONSTITUTIONAL LAWS, TREATIES, − When the required number is not obtained, the case
ADMINISTRATIVE OR EXECUTIVE ORDERS shall be heard en banc, provided that no doctrine
or principle of law laid down by the SC in a
− Generally, rules and regulations are imperative decision rendered en banc or in division may
because Congress cannot conceivably provide for all be modified or reversed except by the Court
necessary details in the enforcement of a particular sitting en banc.
law. However, these rules and regulations must
comply with the provisions of the Constitution. SOME GROUNDS FOR DECLARING A LAW
− Decisions of administrative officers should not be UNCONSTITUTIONAL
disturbed by the courts except when the former
have acted without jurisdiction or in grave abuse of a. The enactment of the law may not be within the
discretion. legislative powers of the lawmaking body;
− It is well-settled that by reason of their special (e.g. The Bar Flunkers Law)
knowledge and expertise gained from the handling b. Arbitrary methods may have been established;
of specific matters falling under their respective c. The purpose or effect violates the Constitution,
jurisdictions the Court ordinarily accords respect – if or its basic principles.
not finality – to factual findings of administrative
tribunals, unless:
9
EFFECT OF A LAW THAT HAS BEEN DECLARED Decisions of the Supreme Court
UNCONSTITUTIONAL Decisions of the Supreme Court forms part of our legal
system. It is called “jurisprudence”.
GEN: An unconstitutional law confers no right, creates
no office, affords no protection, and justifies no acts Are judicial decisions laws?
performed under it. No. While it is true that decisions which apply or
interpret the Constitution or the laws are part of the
XPN: There are instances when the operation and legal system of the Philippines. Otherwise, the courts
effects of the declaration of its unconstitutionality may would be allowed to legislate, contrary to the principle
be relaxed or qualified because the actual existence of of separation of powers.
the law prior to such declaration is an operative fact
and may have consequences which cannot justly be Judicial decisions, though not laws, are evidence,
ignored. however, of what the laws mean, and this is why they
are part of the legal system of the Philippines. The
OPERATIVE FACT DOCTRINE interpretation placed upon written law by a competent
This is when a legislative or executive act, prior to its court has the force of law.
being declared as unconstitutional by the courts, is valid
and must be complied with. NOTE: Only the decisions of the Supreme Court, and
unreversed decisions (meaning, they still went to the
U.S. VS. PALACIO Supreme Court) of the Court of Appeals on cases of first
G.R. No. L-11002, January 17, 1916 impression, establish jurisprudence or doctrines in the
Philippines.
DOCTRINE: Implied repeals are not looked upon with
favor. Effect of Judicial Decisions
A Supreme Court decision, unlike laws or statutes,
Palacio was convicted for revising the assessment of real cannot be applied retroactively. Its decisions can only
property, in violation of Act No. 82. Defendant appealed be applied prospectively.
the conviction, claiming that the act committed by his
client does not constitute an infraction provided for and Persons acting faithfully to a doctrine shall not be held
punished under Act No. 82, as such has been repealed liable if the said doctrine is subsequently rejected, as
by Act No. 2238. Act No. 2238 is intimately related to long as the person acted before the doctrine was
Act No. 82 and is virtually a complement of the latter. overturned by the new doctrine.
Act No. 2238 only repeals provisions which are in NOTE: If the Supreme Court interprets a law, it
conflict with it. It is evident that the said penal provision retroacts to the day that the law was originally passed.
contained in Act No. 82 continues in force and is
applicable to respondent. PHILIPPINE INTERNATIONAL TRADING CORP.
VS. COMMISSION ON AUDIT
LICHAUCO VS. APOSTOL G.R. No. 205837, November 21, 2017
G.R. No. L-19628, December 4, 1922
Judicial decisions are part of the legal system of the
DOCTRINE: The general law, in general, remains good Philippines. The decision of the Supreme Court
law and there is no repeal, except insofar as the special interpreting a law is considered part of the law as of the
law is concerned. date the law was originally passed, since the Court’s
construction merely establishes contemporaneous
Lichauco sought to import from Pnom-Pehn a shipment legislative intent. This is different from the Court’s ruling
of draft cattle and bovine cattle for the manufacture of abandoning a doctrine which could only be applied
serum but was not admitted by the Department of prospectively.
Agriculture except on the condition that the said cattle
must be immunized. Lichauco contends that the DEAN: Compare this case with the Jabinal case. When
imposition of such condition is invalid invoking Sec. the Supreme Court issues a doctrinal ruling, it is applied
1762 of the Administrative Code as amended by Act no. prospectively. But if it’s an interpretation of the law, it
3052. Respondents on the other hand relied on Sec. is considered part of the law as of the date the law was
1770 of the Administrative Code and Administrative originally passed.
Order no. 21. It was however claimed that Sec. 1770
was impliedly repealed by Act No. 3052 which is of later Opinions of the Secretary of Justice and Other
enactment than the Administrative Code. The Court Executive Officials (Executive Interpretation of
ruled that Sec. 1770 is not impliedly repealed by Act. Legislative Acts)
No. 3052. Sec. 1762 as amended, is of general nature Their opinions, although not law, should be given great
while Sec. 1770 is a particular one. This means that Sec. weight. However, said opinions cannot correct mistakes
1770 is not inconsistent with the provisions of Sec. 1762 in legislation. Nor should said opinions have a controlling
and should be considered as a special qualification of the effect on the Courts.
latter. Repeals by implication are not favored and where
two provisions cover the same matter but are not DOCTRINE OF STARE DECISIS
necessarily irreconcilable, both must be given effect. Let It Stand, et non quieta movere
JUDICIAL DECISIONS FORM PART OF THE LEGAL This doctrine states that once a case has been decided
SYSTEM one way, then another case, involving exactly the same
point at issue, should be decided in the same manner.
ARTICLE 8, NCC. Judicial decisions applying or
The rule follows the legal maxim “legis interpretado legis
interpreting the laws or the Constitution shall form part
vim obtinet”, which means that the interpretation placed
of the legal system of the Philippines. (n)
10
upon the written law by a competent court has the force NATIONAL AMNESTY COMMISSION VS. COA
of law. G.R. No. 156982, September 8, 2004
What if a case has been decided erroneously? Petitioner, a government agency created through
When a case has been decided erroneously, such an Proclamation no. 347. The Commission then passed
error must not be perpetuated by blind obedience to the Administrative Order No. 2 which entitles the
doctrine of stare decisis. representatives of its ex-officio members to per diems,
allowances, bonuses and other benefits provided by law.
Why do we adhere to this doctrine? The order was invoked by petitioner in assailing before
For reasons of stability in law. COA the rulings of the resident auditor and NGAO in
disallowing the giving of such to the representatives.
When may a final judgment be changed? COA on the other hand relied on COA Memorandum No.
1. When a judgment is void for lack of jurisdiction 97-038 in disallowing the giving of allowances but this
over the subject matter can be assailed at any was assailed for not complying with the notice and
time, either directly or collaterally; or publication requirement provided by Art. 2 of the Civil
2. When after the judgment has attained finality, Code. The Court ruled that the Memorandum does not
facts and circumstances transpire which render need to be published to be valid and effective. COA
its execution impossible or unjust. In this case, Memorandum No. 97-038 is merely an internal and
the party interested may ask the court to modify interpretative regulation or letter of instruction which
or alter the judgment to harmonize the same does not need publication to be effective and valid. It is
with justice and with the facts. not an implementing rule or regulation of a statute but
a directive issued by the COA to its auditors to enforce
OBITER DICTA the self-executing prohibition imposed by Section 13,
Article VII of the Constitution on the President and his
Obiter Dicta (singular “Dictum”) official family, their deputies and assistants, or their
These are opinions not necessary to the determination representatives from holding multiple offices and
of a case. They are not binding, and cannot have the receiving double compensation.
force of judicial precedents.
PEOPLE VS. JABINAL
What about dissenting opinions? G.R. No. L-30061, February 27, 1974
They neither affirm or overrule any claim, right, or
obligation. It merely expresses the view of the
DOCTRINE: The interpretation placed upon the written
dissenter.
law by a competent court has the force of law. It
becomes a part of the law as of the date that law was
ABROGATION OF DECISIONS OF THE SUPREME originally passed. However, a reversal of that
COURT interpretation cannot be given a retroactive effect to the
prejudice of parties who had relied on the first
(1) By a contrary ruling of the Supreme Court
interpretation.
DEAN: A decision of the Supreme Court can only be
Jabinal was found guilty of illegal possession of firearm
revoked or repealed if a new doctrine has been and ammunition. He challenged the conviction based on
established which is different and contrary to the old the ruling of the Court in two previous cases which held
doctrine. This is different from a statute which can only that he is authorized to possess firearms as he was
be repealed by an enactment of a subsequent law.
appointed as a secret agent and confidential agent. The
said rulings were however abandoned by a subsequent
(2) By corrective legislative acts of Congress
ruling. The issue is whether Jabinal be acquitted based
Congress cannot alter a constitutional interpretation of
on the 2 rulings which were the prevailing doctrine at
the Supreme Court. That would amount to an the time he was appointed as a secret agent but was
unwarranted assumption of judicial power. The subsequently reversed by another ruling. The Court
Supreme Court is the only one that can interpret the ruled that the abandonment of the rulings in the two
Constitution. (Endencia vs. David, G.R. No. L-6355-56,
previous rulings cannot be applied prospectively and
August 31, 1953)
should not apply to parties who had relied on the old
doctrine and acted on the faith thereof. This is especially
DEAN: Congress can also repeal or abrogate a decision true in the construction and application of criminal laws,
decided by the Supreme Court through the enactment where it is necessary that the punishability of an act be
of a new law that is inconsistent or that repeals the old reasonably foreseen for the guidance of society. In this
law on which the SC’s decision/doctrine was based. This case, since Jabinal was appointed as a secret agent and
usually happens when the decision of the SC is not in
confidential agent and is authorized to possess firearms
accordance with the intent or purpose of the law, so they
pursuant to the prevailing doctrine in the 2 cases,
have to enact a new law. We call this corrective
appellant must be absolved. He should not be punished
legislative act of Congress. for an act which at the time it is done was held to be not
punishable.
But such an act cannot be done if it is an interpretation
of the Constitution, and not an ordinary statute.
Congress has no right to overturn the interpretation of APIAG VS. CANTERO
the Supreme Court pertaining to the Constitution, since A.M. No. MTJ-95-1070, February 12, 1997
the SC is its official interpreter.
DOCTRINE: Per current jurisprudence, a marriage
though void, still needs a judicial declaration of such fact
before any party thereto can marry again; otherwise,
the second marriage will also be void. This was
expressly provided for under Art. 40 of the Family Code.
11
Apiag and her 2 children filed an administrative case of 1. Customs which are not contrary to law, public
bigamy and falsification of public documents against order, and public policy; (see also Art. 11 of the
Judge Cantero. It was alleged that the Judge married Civil Code)
another woman without securing a judicial declaration 2. Decisions of foreign and local courts on similar
of nullity of his marriage with Apiag. The judge alleged cases;
that he should not be faulted for bigamy pursuant to the 3. Opinions of highly-qualified writers and
en banc case of Odayat v. Amante where the court held professors;
the marriage as void ab initio and no judicial decree is 4. Rules of statutory construction;
necessary to establish void marriages. The Court ruled 5. Principles laid down in analogous instances; (Ubi
that although the en banc case was already overturned eadem ratio ibi eadem isposition – where the
by the case of Weigel v. Sempio-Dy and the effectivity same reason exists, there the same law
of the Family Code where a judicial declaration for nullity prevails)
of marriage is required, the doctrine in the case of 6. General principles of natural moral law, human
Odayat v. Amante still applies in respondent’s favor as law, and equity; or
he contracted the second marriage and all their children 7. Respect for human dignity and personality.
are born prior to the passage of the Weigel case and the
effectivity of the Family Code. CONCEPT OF JUDICIAL LEGISLATION
NOTE: During the ruling of the case, the prevailing Judicial legislation is defined as the move of a court
jurisprudence supported the stance that there was no to step in to craft missing parts, to fill in the gaps in
need to have a prior void marriage judicially declared laws, or when it oversteps its discretional boundaries
void before contracting another marriage. This is an and goes beyond the law to coin doctrines or principles
instance when prior decisions of the Supreme Court which are not previously established.
were abrogated by a contrary ruling of the Supreme
Court. FLORESCA VS. PHILEX MINING CORPORATION
G.R. No. L-30642, April 30, 1985
ENDENCIA, ET. AL. VS. DAVID
G.R. No. L-6355-56, August 31, 1953 DOCTRINE: Judicial decisions of the Supreme Court
assume the same authority as the statute itself. Art. 8
DOCTRINE: Congress cannot alter a Supreme Court of the Civil Code tells us that judicial decisions that apply
interpretation of a constitutional provision, for this or interpret laws of the Constitution form part of our
would be an unwarranted assumption of judicial power. legal system. These decisions, although in themselves
The legislature, however, is allowed to define the terms not laws, are evidence of what the laws mean. The
it uses in a statute, said definitions being considered as application or interpretation placed by the Court upon a
part of the law itself. law is part of the law as of the date of its enactment
since the Court’s application or interpretation merely
David, the CIR ordered the collection of income taxes establishes the contemporaneous legislative intent that
from 2 justices of the Court of Appeals. According to the the construed law purports to carry into effect.
Brief of the Solicitor General, the decision of the Court
in the case of Perfecto v. Meer, where the Court has held HOW TO INTERPRET A LAW IN CASE OF DOUBT
that pursuant to Sec. 9 Article VIII of the Constitution,
judicial officers are exempt from payment of income ARTICLE 10, NCC. In case of doubt in the
taxes as such constitutes diminution of their salaries is interpretation or application of laws, it is presumed that
something expressly prohibited by the Constitution, is the lawmaking body intended right and justice to
not favored by Congress because immediately after its prevail. (n)
promulgation, Congress enacted RA 590. The argument
of the Solicitor General as well as Sec. 13 of RA 590 is Primary Duty of the Judge
unconstitutional. The interpretation and application of Dura lex sed lex – the law may be harsh, but it is still
the laws which in this case, is Sec. 9 Article VIII of the the law. The first duty of the judge is to apply the law,
Constitution belongs to the Judiciary. The role of the whether it is wise or not, whether just or unjust,
legislature is to make and enact laws but not interpret provided that the law is clear.
them. The act of Congress in interpreting Sec. 9 Article
VIII of the Constitution by enacting Sec. 13 of RA 590 In Case of Doubt
encroaches on the power of the judiciary whose function Of course, in case of doubt, the judge should presume
is to interpret the laws. that “the lawmaking body intended right and justice to
prevail.” After all, it has been truly said that “we should
DUTY OF THE COURT IF THE LAW IS SILENT interpret not by the letter that killeth, but by the spirit
that giveth life.” Judicial conclusions inconsistent with
ARTICLE 9, NCC. No judge or court shall decline to the spirit of a law must be avoided. Moreover, it has
render judgment by reason of the silence, obscurity or been wisely stated that “when the reason for the law
insufficiency of the laws. (6) ceases, the law automatically ceases to be one.”
Cessante ratione cessat ipsa lex.
Duty of a Judge if the Law is Silent
A judge must give a decision, whether he knows what EQUITY FOLLOWS THE LAW
law to apply or not.
Equity has been defined as “justice sweetened with
If the law is silent, obscure or insufficient, what mercy.”
should the judge apply in deciding a case?
The judge may apply any rule he desires as long as the As a rule, courts should not apply equity if equity does
rule chosen is in harmony with general interest, order, not serve the ends of justice. It cannot be invoked to
morals, and public policy. Among such rules may be the reopen a case. If remedies are given, it should only be
following: within what is prescribed. Equity follows the law.
12
Thus, the rule of equity can only be applied in the are of three hundred sixty-five days each; months, of
absence of – but never against – the statute or law. thirty days; days, of twenty-four hours; and nights from
Courts exercising equity jurisdiction are bound by the sunset to sunrise.
rules of law and have no arbitrary discretion to disregard
them. In other words, equity cannot be used if there If months are designated by their name, they shall be
is an applicable law. computed by the number of days which they
respectively have.
PHILIPPINE RABBIT BUS LINES, INC. VS.
ARCIAGA In computing a period, the first day shall be excluded,
G.R. No. L-29701, March 16, 1987 and the last day included. (7a)
DOCTRINE: One cannot invoke equity as a ground for COMPUTATION OF A PERIOD

reopening a case if an express provision of law exists
under which the remedy can be invoked. Equity follows The first day is excluded, and the last day is included.
the law. There are instances, when a court of equity
gives a remedy where the law gives none; but if the law Example: If asked to compute 15 days from January 5,
gives a particular remedy, and that remedy is bounded January 5 is excluded and January 20 is included.
and circumscribed by particular rules, it would be
improper for the court to take it up where the law leaves RULE IF THE LAST DAY IS A SUNDAY/LEGAL
it and to extend it further than the law allows. Equity HOLIDAY
aids the vigilant, not those who slumber on their rights.
If the last day of a period is a Sunday or a regular
CUSTOMS AND TRADITIONS CAN BE SOURCES OF holiday, is the act due that day or the following
LAW day?
It depends. In an ordinary contract, the general rule
ARTICLE 11, NCC. Customs which are contrary to law, is that an act is due even if the last day is a Sunday or
public order or public policy shall not be countenanced. a holiday. Thus, a debt due on a Sunday must, in the
(n) absence of an agreement to the contrary, be paid on
that Sunday. (Basis: Art. 1159, Civil Code – The
ARTICLE 12, NCC. A custom must be proved as a fact, obligations arising from contracts have the force of law
according to the rules of evidence. (n) between the contracting parties. An exception to this
rule is the maturity date of a negotiable instrument).
Customs
However, when time refers to a period prescribed or
− Customs are defined as rules of conduct formed by
allowed by (1) the Rules of Court, (2) by an order
a repetition of acts, uniformly observed and
of court, or (3) by any other applicable statute, if
practiced as a social rule, legally binding and
the last day is a Sunday/legal holiday, it is understood
obligatory.
− Courts take no judicial notice of customs, which can that the last day should really be the next day.
only be established as evidence when they are
proven as facts. NUMBER OF DAYS CONTAINED IN PERIODS
− Customs can be used only in the absence of an
applicable law, but they cannot prevail over a
statutory rule or even a legal rule made by the SC. 30 days
− There is a presumption that a person acts in
accordance with the custom of the place. Example: 10 months is 300 days
− A custom is presumed not to exist when those who
should know it, do not know of its existence. Note: However, if the law
specifies a month by its name, the
Month
REQUISITES BEFORE THE COURTS CAN number of days contained therein
CONSIDER CUSTOMS must be the actual number of days
in such month. For example, if
1. A custom must be proven as a fact according to “March” is specifically mentioned,
the rules of evidence; then there are 31 days in it. (Art.
2. The custom must not be contrary to law, public 13, par. 2)
order, or public policy;
3. There must be a number of repeated acts;
4. The repeated acts must have been uniformly 365 days
performed;
5. There must be a juridical intention to make a rule Now: 12 months
of social conduct (i.e., there must be a conviction in
the community that it is the proper way of acting, The provision stating that a year is
and that therefore, anyone who disregards the equal to 365 days has now been
custom in fact also disregards the law); repealed by the SC in its rulings in
Year
6. There must be a sufficient lapse of time (Note: the cases of:
This by itself is not a requisite of custom, but it gives 1. CIR v. Primetown Property
evidence of the fact that it indeed exists and is being Group, Inc., G.R. no.
duly observed). 162155, August 28, 2007
2. CIR v. Aichi Forging
COMPUTATION OF A PERIOD Company of Asia, Inc.,
G.R. No. 184823, October
6, 2010
ARTICLE 13, NCC. When the laws speak of years,
months, days or nights, it shall be understood that years
13
3. Co v. New Prosperity fact or event, or transaction that is so closely connected

Plastic Products, G.R. No. with a foreign system of law as to necessitate recourse
183994, June 30, 2014 to that system.
What does “State” mean in Conflict of Laws?

7 successive days It includes not only foreign sovereign countries or
states, but also political subdivisions of states or
Note: However, a week of labor, countries which have their own legal systems.
Week in the absence of any agreement,
is understood to only mean 6 labor ELEMENTS OF CONFLICT OF LAWS
days.
1. Legal problem or case involving a foreign element;
and
2. Determination of whether the law or judgments of
24 hours other State/s will govern and if so, the extent of its
recognition in the forum.
Thus, if the last day for submitting
a pleading is today, and it was Foreign Element
only submitted at 11:40p.m. − A foreign element is a factual situation cutting
Day across territorial lines, affected by diverse laws of
(after office hours), it was held
that the pleading was still filed on two or more States. The presence of a foreign
time because a day consists of 24 element in a case determines the existence of a
hours. This presupposes that the Conflict of laws situation. Where there is no foreign
pleading was duly received by a element, no Conflict of laws exists.
person authorized to do so. − A foreign element is anything which is not domestic
and has a foreign component to it. It can be a
CONFLICT OF LAWS foreigner, a foreign corporation, an incident
(ARTS. 14-17) happening in a foreign country, or a foreign law
chosen by the parties.
[A/N: The topic of Conflict of Laws will no longer be reviewed
extensively in our other review classes, but may come out in 3-FOLD FUNCTIONS OF PRIVATE
the Mock Bar and/or actual Bar examinations. For a more INTERNATIONAL LAW
comprehensive set of notes on this topic, please click here.
Otherwise, please head to our GDrive and follow this sequence: 1. Question of Jurisdiction
FIRST SEM > CIVIL LAW REVIEW > Other Subjects > Conflict
Prescribes the conditions under which a court or
of Laws
agency is competent to entertain proceedings with
However, for purposes of Civil Review, we will be including foreign elements.
relevant provisions from the Conflict of Law Notes of the San
Beda Law Centralized Bar Operations.] 2. Question of Applicability of a Foreign
Judgment
GENERAL PRINCIPLES Specifies the circumstances in which foreign
judgment will be recognized as valid and binding in
The world is divided into many territorial units, each the forum.
imposing its own set of laws. With the developed means
of transportation and communication, distances 3. Question of Choice of Law
between these nations have shortened allowing more Determines the particular system of law for each
and more people to travel and enter into contracts. class of cases to ascertain the rights of parties.
These dynamics cause the occurrence of events that
contain elements significant to more than one legal TWO KINDS OF INTERNATIONAL LAWS
system which give rise to problems that private
international law seeks to resolve. (Coquia and Aguiling- 1. Public International Law
Pangalangan)
2. Private International Law (Conflict Rules)
Its incorporation in municipal laws is based not on − Deals with the rules to be applied in case it
extraterritorial validity of the foreign law but on comity involves a foreign element, namely:
of nations. a. Art. 14 – Territoriality Theory
b. Art. 15 – Nationality Theory
“Comity,” in the legal sense, is neither a matter of c. Art. 16 – Lex Rei Sitae
absolute obligation, on the one hand, nor of mere d. Art. 17 – Lex Loci Celebraciones
courtesy and good will, upon the other. But it is the
recognition which one nation allows within its territory Public Private
to the legislative, executive or judicial acts of another International International
nation, having due regard both to international duty and Law Law (COL)
convenience, and to the rights of its own citizens or of Domestic and
other persons who are under the protection of its laws. 1. International
municipal laws,
(Hilton v. Guyot, 159 US 113, June 3, 1895) conventions;
which includes
2. International
the
CONFLICT OF LAWS customs;
As to source Constitution
3. The general
and statutes
That part of municipal law which governs cases involving principles of
adopted by
a foreign element. It is also that part of law which comes law
individual
into play when the issue before the court affects some recognized
countries.
14
by civilized under the UN

nations; and Charter; and
4. Judicial i. War
decisions and
teachings of PHASES IN CONFLICT RESOLUTION
the most
highly (1) Jurisdiction
qualified Concerns the authority of a court of law to take
publicists of cognizance of a case. (Where can or should litigation
the various be initiated?)
nations.
National, (2) Choice of Law
As to nature International in municipal, or Refers to the applicable law to the problem. (Which
or character character. local in law will the court apply?); Characterization
character.
Sovereign states (3) Recognition and Enforcement
and entities Concerns the enforcement of foreign laws and
As to possessed of Private judgments in another jurisdiction. (Where can the
persons international individuals or resulting judgment be enforced?)
involved personality, corporations
exceptionally, PROVING A FOREIGN LAW
individuals too
Transactions GEN: Courts are not authorized to take judicial notice of
entered into foreign laws. The laws of a foreign country must be
which generally properly pleaded and proved as facts, in the manner
As to affect public provided under the Rules of Court.
Strictly private
transactions interest;
in nature Manner of Proving Foreign Laws
involved transactions in
which sovereign
states are a. Written law
interested a. By official publication;
In case of b. Copy attested by officer having legal custody
violation of thereof;
International − If the record is not kept in the Philippines –
Law, resort may a certificate with seal to the effect that said
be peaceful or officer has custody from:
forcible. a. A secretary of the embassy,
b. Legation (diplomatic minister, one
Peaceful rank below the ambassador),
Remedies c. Consul-general,
a. Diplomatic d. Consul,
negotiation; e. Vice-consul,
b. Tender and f. Consular agent, or
exercise of g. Other officer in the foreign service
good offices; of the Philippines
c. Mediation;
d. Inquiry and and
conciliation;
e. Arbitration; c. A published treatise on the subject law provided
and that the court takes judicial notice of the
As to f. Judicial Resort to competence of the writer, or evidence is
remedies settlement by municipal introduced to establish the author’s
applied the tribunals competence.
International
Court of Note: There can be no summary judgment
Justice where questions of fact are in issue, or where
material allegations of the pleadings are in
Forcible dispute.
remedies
a. Severance of b. Unwritten law
diplomatic a. By oral testimony of expert witnesses;
relations; − The testimony of an expert witness may be
b. Retorsions; allowed to prove foreign law. Sec. 25, Rule
c. Reprisals; 132 of the ROC does not exclude the
d. Embargo; presentation of other competent evidence to
e. Boycott; prove the existence of a foreign law.
f. Non- (Asiavest Limited vs. CA, G.R. No. 128803,
intercourse; September 25, 1998)
g. Pacific
blockades; b. By printed and published books of reports of
h. Collective decisions of the country involved, if proved to
measures be commonly admitted to its courts.
15
XPN to the procedural requirements for proving DEAN: In this convention, we agree to grant
foreign law: diplomatic immunity to diplomats or heads of
1. Presentation of a foreign-licensed attorney who the states who are in the Philippines. So, an
will testify in open court concerning her ambassador of a foreign country cannot be
knowledge of the law in question; prosecuted criminally in the Philippines even if
2. Administrative agencies recognizing foreign they commit a crime in the Philippines because
laws without proof thereof; of that diplomatic immunity. The immunity
3. Lack of objection to the improper presentation applies not only to the ambassador but to all the
by one party of proof of foreign law; and members of the diplomatic team.
4. Laws appearing in the official websites of
government agencies which have custody of the (2) Former Philippine-US Military Bases
laws. Agreement
EFFECT OF FAILURE TO PLEAD OR PROVE DEAN: We used to have before an agreement

FOREIGN LAW that when a US military assigned in the Subic
Naval base commits a crime in the Philippines,
1. Defendant may move for Demurrer to he is exempt from criminal liability and cannot
Evidence if plaintiff’s cause of action rests on be prosecuted in the Philippines. They will be
unproven law, resulting in no cause of action to prosecuted through their court martial. The
the plaintiff’s case. If the defense rests on agreement was terminated in 1992 when the
unproven foreign law, the defense fails. Philippine senate decided that after the
expiration of the agreement no renewal shall be
2. The case will not be dismissed; the doctrine of entered into. That’s why the American soldier
processual presumption will become who raped a Filipino was tried in RTC
operative. Olonggapo.
Doctrine of Processual Presumption (Presumed- Theory of Generality

Identity Approach) It means that even aliens, male or female, come under
In the absence of pleading and proof, the laws of the our territorial jurisdiction. This is because aliens owe
foreign country or state will be presumed to be the same some sort of allegiance to our country if they sojourn
as our local or domestic law. here, even if it be temporary.
THEORY OF TERRITORIALITY NATIONALITY THEORY
ARTICLE 14, NCC. Penal laws and those of public ARTICLE 15, NCC. Laws relating to family rights and
security and safety shall be obligatory upon all who live duties, or to the status, condition and legal capacity of
or sojourn in Philippine territory, subject to the persons are binding upon citizens of the Philippines,
principles of public international law and to treaty even though living abroad. (9a)
stipulations. (8a)
Status Defined
GEN: Penal laws shall apply to all those who live or The status of a person in civil law includes personal
sojourn in our territory, regardless of citizenship unless qualities and relations, more or less permanent in
otherwise stated. nature, and not ordinarily terminable at his own will,
such as being married or not, or his being legitimate or
If the criminal act is committed within our territory, the illegitimate.
Philippines has jurisdiction over it. It used the word
“sojourn”. Our penal laws apply. Bouvier’s Law Dictionary defines it as the sum total of a
person’s rights, duties, and capacities.
XPN:
1. Treaty stipulations; Nationality Theory/Principle
2. Principles of Public International Law; Wherever a Filipino citizen goes, he or she is governed
− Examples are the immunities granted to by the Civil Law of the Philippines. The reverse applies
diplomatic officials and visiting heads of to foreigners. In other words, Filipinos are governed by
states, provided the latter do not travel Philippine laws, and foreigners by their own national
incognito. If they travel incognito but with law.
the knowledge of our government officials,
heads of states are entitled to immunity. If Coverage of the Nationality Theory
the incognito travel is without the 1. Family rights and duties
knowledge or permission of our country, 2. Status;
diplomatic immunity cannot be insisted 3. Condition;
upon. However, once they reveal their 4. Legal Capacity (subject to various exceptions)
identity, immunity is given.
3. Laws of Preferential Application (e.g. Capacity to Enter into Ordinary Contracts
ambassadors, ministers); The capacity to enter into an ordinary contract is
4. International agencies enjoying diplomatic governed by the national law of a person, and not by
immunity the law of the place was entered into.
Examples: Capacity to Enter into Other Relations

(1) 1961 Vienna Convention Treaty Capacity to enter into other relations or contracts is not
− Under this treaty, diplomats are necessarily governed by the national law of the person
immune from criminal prosecution in concerned. Thus:
the countries where they are assigned.
16
a. Capacity to acquire, encumber, assign, donate real and personal property are governed by the country
or sell property – The law of the place where the where it is situated, when it comes to inheriting these
property is situated (lex rei sitae; Art. 16, par. properties, it is the law of the person whose successional
1, CC) rights is under consideration.
b. Capacity to inherit – The national law of the RENVOI DOCTRINE

decedent (Art. 1039, CC)
Renvoi literally means “a referring-back”; the problem
c. Capacity to get married – The law of the place arises when there is a doubt as whether a reference in
where the marriage was entered into (lex loci our law to foreign law is:
celebraciones or locus regit actum), subject to
certain exceptions (Arts. 26; 35 (1), (4), (5), a. A reference to the internal law of said foreign
and (6); 36, 37, and 38 FC) law; or
b. A reference to the whole of the foreign law,
LEX REI SITAE AND ITS EXCEPTIONS including its conflict rules.
ARTICLE 16, NCC. Real property as well as personal In the latter case, if one state follows the nationality
property is subject to the law of the country where it is theory, and the other, the domiciliary theory, there is a
situated. possibility that the problem may be referred back to the
law of the first state.
However, intestate and testamentary successions, both
with respect to the order of succession and to the IN THE MATTER OF THE TESTATE ESTATE OF
amount of successional rights and to the intrinsic DECEASED EDWARD E. CHRISTENSEN
validity of testamentary provisions, shall be regulated G.R. No. L-16749, January 31, 1963
by the national law of the person whose succession is
under consideration, whatever may be the nature of the This is the very first case where the Supreme Court
property and regardless of the country wherein said expounded at length what should be done when there is
property may be found. (10a) a renvoi problem in the case.
Conflict Rules on Property (Lex Rei Sitae) In this case, Edward E. Christensen, though born in New
Property, whether real or personal, is as a rule governed York, migrated to California, where he resided (and
by the law of the place where the property is situated or consequently was considered a California citizen) for a
lex rei sitae. period of nine years. In 1913, he came to the Philippines
where he became a domiciliary till the time of his death.
Real Property However, during the entire period of his residence in this
The rule of lex rei sitae is absolute, for a contrary rule country he had always considered himself a citizen of
may render a judgment on real property ineffective or California.
incapable of enforcement.
In his will executed on March 5, 1951, he instituted an
Personal Property acknowledged natural daughter, Maria Lucy Christensen
Under the old Civil Code, personal property was (now Mrs. Bernard Daney) as his only heir, but left a
subjected to the law of the nation of the owner; i.e., legacy of sum of money in favor of Helen Christensen
personal property followed the national or domiciliary Garcia (who in a decision rendered by the Supreme
law under the doctrine of mobilia sequuntur personam Court had been declared another acknowledged natural
(chattels follow the person). daughter of his).
However, now that there has been a great increase in Counsel for the acknowledged natural daughter Helen
the amount and variety of personal property not claims that under Art. 16, par. 2 of the Civil Code,
immediately connected with the person of the owner, it California law should be applied; that under California
was deemed advisable by the Congress of the law, the matter is referred back to the law of the
Philippines to also adopt the doctrine of lex rei sitae to domicile; that therefore Philippine law is ultimately
movables. (Report of Senator Lorenzo Tañada, applicable; that finally, the share of Helen must be
Chairman, Special Committee on the new Civil Code) increased in view of the successional rights of
illegitimate children under Philippine law.
EXCEPTIONS TO THE RULE OF LEX REI SITAE
Upon the other hand, counsel for the child Maria Lucy
The exception to the rule of lex rei sitae are contends that inasmuch as it is clear that under Art. 16,
successional rights, namely: par. 2 of our Civil Code, the national law of the deceased
must apply, our courts must immediately apply the
a. The order of succession; internal law of California on the matter; that under
b. The amount of successional rights (or the California law there are no compulsory heirs and
amount of property that each heir is legally consequently a testator could dispose of any property
entitled to inherit from the estate available possessed by him in absolute dominion and that finally,
for distribution); illegitimate children not being entitled to anything under
c. Intrinsic validity of the provisions of a will; California law, the will of the deceased giving the bulk
d. Capacity to succeed (Art. 1039, Civil Code) of the property to Maria Lucy must remain undisturbed.
When it comes to intestate succession, in so far as the The Court in deciding to grant more successional rights
order of succession, amount of successional rights and to Helen said in effect that there are two rules in
intrinsic validity of the will, it will be governed by the California on the matter: the internal law (which should
national law of the person whose succession is under apply to Californians domiciled in California); and the
consideration. So, Article 16 provides that although the conflicts rule (which should apply to Californians
17
domiciled OUTSIDE of California). The California Yes, the company must issue the new certificates
conflicts rule, found in Art. 946 of the California Civil because of the following reasons:
Code, says: “If there is no law to the contrary in the
place where personal property is situated, it is deemed (1) While factually, the old certificates still exist, the
to follow the person of its owner and is governed by the same may by judicial fiction be considered lost in
law of his domicile.’’ Christensen being domiciled view of the refusal of the New York administrator to
outside California, the law of his domicile, the surrender them, despite a lawful order of our courts.
Philippines, ought to be followed. To deny the remedy would be derogatory to the
dignity of the Philippine judiciary. The ancillary
Were we to throw back the matter to California, the Philippine administrator is entitled to the possession
problem would be tossed back and forth between the of said certificates so that he can perform his duty
states concerned, resulting in “international football.” as such administrator. A contrary finding by any
(The case was remanded to the trial court for further foreign court or entity would be inimical to the honor
proceedings — the determination of successional rights of our country. After all, an administrator appointed
under Philippine law). in one state has no power over property matters in
another state.
DEAN: This was a conflict of law case. A renvoi problem
existed. If our court applies the nationality theory and (2) The Company has nothing to fear about the
the national law of the testator refers the case back to contingent liability should the new certificates be
us, we should apply our national law because if we refer issued. Its obedience to a lawful court order
it back to them, they may refer it back to us again. certainly constitutes a valid defense.
Therefore, the court should accept the referral and apply
the Philippine law instead. TESTATE ESTATE OF AMOS G. BELLIS VS.
EDWARD A. BELLIS
MICIANO VS. BRIMO G.R. No. L-23678, June 6, 1967
G.R. No. L-22595, November 1, 1927
Amos G. Bellis was a citizen and resident of Texas at the
An alien testator (Turk) who made his will in the time of his death. Before he died, he made two wills,
Philippines stated in the will that his property should be one disposing of his Texas properties, the other,
distributed in accordance with Philippine law, and not disposing of his Philippine properties. In both wills, his
that of his nation. recognized illegitimate children were not given
anything.
Is the provision valid?
Texas has no conflicts rule (rule of Private International
No, for Turkish law should govern the disposition of his Law) governing successional rights. Furthermore, under
property. This is clear under Art. 16. Texas Law, there are no compulsory heirs and therefore
no legitimes. The illegitimate children opposed the wills
TESTATE ESTATE OF IDONAH SLADE PERKINS; on the ground that they have been deprived of their
TAYAG VS. BENGUET CONSOLIDATED, INC. legitimes (to which they would be entitled, if Philippine
G.R. No. L-23145, Nov. 29, 1968 law were to apply).
Idonah Slade Perkins died domiciled in New York on Are they entitled to their legitimes?
March 27, 1960; because she has properties both in
New York and in the Philippines, a domiciliary (1) Said children are NOT entitled to their legitimes —
administrator was appointed in New York by the New for under Texas Law which we must apply (because
York courts, and an ancillary administrator was it is the national law of the deceased), there are no
appointed in the Philippines by the Philippine courts. legitimes. (See Art. 16, par. 2, Civil Code).
Now then, to satisfy the legitimate claims of local (2) The renvoi doctrine, applied in Testate Estate of
creditors, the Philippine ancillary administrator asked Edward Christensen, Adolfo Aznar v. Christensen
the New York administrator to surrender to the former Garcia, L-16749, Jan. 31, 1963, cannot be applied.
two stock certificates owned by the deceased in a Said doctrine is usually pertinent where the
Philippine corporation, the Benguet Consolidated, Inc. decedent is a national of one country, and a
Although said New York administrator had the stock domiciliary of Texas at the time of his death. So that
certificates, he refused to surrender them despite the even assuming that Texas has a conflicts of law rule
order of the Philippine court, prompting the court to providing that the law of the domicile should govern,
consider said certificates as LOST for all purposes in the same would not result in a reference back
connection with the administration of the deceased’s (renvoi) to Philippine law, but would still refer to
Philippine estate. Texas law because the deceased was BOTH a citizen
and a domiciliary of Texas. Nonetheless, if Texas
The court then ordered the Benguet Consolidated, Inc. has a conflict rule adopting the situs theory (lex rei
to cancel said certificates and to issue new certificates sitae) calling for the application of the law of the
deliverable either to the ancillary administrator or to the place where the properties are situated, renvoi
Philippine probate court. The company refused to issue would arise, since the properties here involved are
the new certificates on the ground firstly, that after all, found in the Philippines. In the absence, however,
the old certificates still really exist, although in the of proof as to the conflicts of law rule in Texas, it
possession of the New York administrator; and should not be presumed different from ours.
secondly, that in the future, the Company may be held
liable for damages because of the presence of conflicting (3) The contention that the national law of the deceased
certificates. (Art. 16, par. 2; Art. 1039) should be disregarded
because of Art. 17, par. 3 which in effect states that
Should the company issue the new certificates? our prohibitive laws should not be rendered
18
nugatory by foreign laws, is WRONG, firstly because GERMANN AND CO. VS. DONALDSON, SIM & CO.
Art. 16, par. 2 and Art. 1039 are special provisions, G.R. No. 439, November 11, 1901
while Art. 17, par. 3 is merely a general provision;
and secondly, because Congress deleted the phrase A power of attorney was executed in Germany giving
“notwithstanding the provisions of this and the next the recipient authority to bring an action in the
preceding article’’ when it incorporated Art. 11 of Philippines. Said power of attorney was not
the old Civil Code as Art. 17 of the new Civil Code, authenticated by a notary public. In Germany, no such
while reproducing without substantial change, the authentication was needed, contrary to Philippine rules.
second paragraph of Art. 10 of the old Civil Code as
Art. 16 in the NCC. It must have been its purpose to Was the power of attorney properly made insofar as
make the second paragraph of Art. 16 a specific form was concerned?
provision in itself, which must be applied in testate
and intestate successions. As further indication of Yes, because it was executed in Germany. There is no
this legislative intent, Congress added a new reason why the lex loci celebrationis should not apply.
provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the 2. Intrinsic Validity
national law of the decedent. It is therefore evident The legal capacity is governed by the national law of
that whatever public policy or good customs may be the parties.
involved in our system of legitimes, Congress has
not intended to extend the same to the succession XPN: Formalities for the acquisition, encumbrance,
of foreign nationals. and alienation of property (real or personal). These
shall be governed by the rule of lex rei sitae.
(4) It has been pointed out by the oppositor that the
decedent executed two wills — one to govern his DEAN: When two Filipino nationals who are minors go
Texas estate and the other his Philippine estate — to California to get married, their marriage shall be void
arguing from this that he intended Philippine law to for lack of legal capacity as it is required under our
govern his Philippine estate. Assuming that such national law that for there to be a valid marriage, the
was the decedent’s intention in executing a separate parties must at least be of legal age.
Philippine will, it will NOT ALTER the law, for as this
Court rules in Miciano v. Brimo, 50 Phil. 867, 870, a Principle of Extraterritoriality
provision in a foreigner’s will to the effect that his This principle states that even if an act is done abroad,
properties shall be distributed in accordance with if the same is executed before Philippine diplomatic and
the Philippine law and not with his national law, is consular officials, the solemnities of Philippine laws shall
illegal and void for his national law, in this regard, be observed. The theory is that the act is being done
cannot be ignored. within an extension of Philippine territory.
DOCTRINE OF LEX LOCI CELEBRACIONES Rule Respecting Prohibitive Laws

The third paragraph gives one exception to the rule that
ARTICLE 17, NCC. The forms and solemnities of a foreign law, contract, or judgment can be given effect.
contracts, wills, and other public instruments shall be The reason is that public policy in the Philippines
governed by the laws of the country in which they are prohibits the same.
executed.
Examples:
When the acts referred to are executed before the a. A contract for the sale of human flesh (prostitution)
diplomatic or consular officials of the Republic of the even if valid where made cannot be given effect in
Philippines in a foreign country, the solemnities the Philippines.
established by Philippine laws shall be observed in their
execution. b. An absolute divorce granted Filipinos abroad even if
valid where given cannot be recognized in the
Prohibitive laws concerning persons, their acts or Philippines inasmuch as under the Civil Code,
property, and those which have for their object public absolute divorce is prohibited (except insofar as
order, public policy and good customs shall not be Mohammedan Filipinos are concerned).
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a c. A U.S. court allowed a mother living with a man
foreign country. (11a) other than her husband to exercise authority over
her child with the lawful husband. It was held by our
Doctrine of Lex Loci Celebrationis Supreme Court that such a decision cannot be
The first paragraph of Art. 17 lays down the rule of lex enforced in the Philippines. The rule is the same
loci celebrationis insofar as the extrinsic validity (forms today except that in case of separation of his
and solemnities) is concerned. parents, no child under 7 years of age shall be
separated from his mother, unless the court finds
Thus, a contract entered into by a Filipino in Japan will compelling reasons to do so. Even the commission
be governed by Japanese law insofar as form and of adultery, according to the Code Commission, is
solemnities of the contract are concerned. not a compelling reason.
1. Extrinsic Validity SUPPLETORY NATURE OF THE CIVIL CODE

Formalities and solemnities are governed by the law
of the place where the contract is executed. ARTICLE 18, NCC. In matters which are governed by
the Code of Commerce and special laws, their deficiency
shall be supplied by the provisions of this Code. (16a)
19
GEN: In case of conflict between a special law and a constitute the contract. An acceptance made by letter
general law, the special law shall prevail. The Civil Code shall not bind the person making the offer except from
shall apply suppletorily to special laws. the time it came to his knowledge. The contract, in such
case, is presumed to have been entered into at the place
XPN: Where the Civil Code expressly declares itself where the offer was made.”
superior to special laws:
1. Common carriers (Art. 1766); The Civil Code rule, that an acceptance made by letter
− The Code of Commerce supplies the shall bind the person making the offer only from the
deficiency. date it came to his knowledge avoids uncertainty and
tends to security. Therefore, the contract for a life
2. Insolvency (Art. 2237) annuity was not perfected because it has not been
− The special laws supply the deficiency. proved satisfactorily that the acceptance of the
application ever came to the knowledge of the applicant,
Usury Herrer.
In case of conflict, the new Civil Code applies (Art.
1961). But under another article, the new Civil Code DOLE PHILIPPINES VS. MARITIME CO. OF THE
inconsistently says that in case of conflict, usurious PHILIPPINES
transactions are governed by special laws (Art. 1175). G.R. No. L-61352, February 27, 1987
However, in the case of Law vs. Olympic Sawmill (G.R. DOCTRINE: The Civil Code cannot be applied
No. L-30771, May 28, 1984), the Supreme Court has suppletorily if the special law has no deficiency.
held that “for sometime now usury has been legally non-
existent; interest can now be charged as lender and Dole Philippines, Inc., as consignee, seeks to claim for
borrower may agree upon.” loss and/or damage to a shipment of machine parts
against the carrier, Maritime Company of the
Rule in Statutory Construction Philippines, under the provisions of the Carriage of
GEN: Special law governs in case of conflict. Goods by Sea Act. The subject cargo was discharged in
Dadiangas unto the custody of the consignee. Maritime
RAMOS VS. DE LA RAMA filed an answer pleading inter alia the affirmative
G.R. No. L-5524, March 21, 1910 defense of prescription under the provisions of the
Carriage of Goods by Sea Act.
In this case, large cattle were sold in a public
instrument. It was contended that under the Civil Code, Is Article 1155 of the Civil Code providing that ‘the
the sale should be valid. prescription of actions is interrupted by the making of
an extrajudicial written demand by the creditor’
It was held by our Supreme Court that the sale is void applicable to actions brought under the Carriage of
because under the Cattle Registration Act, no sale or Goods by Sea Act (Sec 3(6))?
transfer of large cattle is valid unless it is registered and
a certificate of the transfer is obtained under the Cattle NO. In such a case, the general provisions of the new
Registration Act. The Civil Code cannot apply because Civil Code (Art. 1155) cannot be made to apply, as such
there is no deficiency in the matter in this special law. application would have the effect of extending the one-
year period of prescription fixed in the law. It is
INSULAR VS. SUN LIFE OF CANADA desirable that matters affecting transportation of goods
G.R. No. L-15895, November 29, 1920 by sea be decided in as short a time as possible the
application of the provisions of Article 1155 of the new
Herrer made an application to Sun Life through its office Civil Code would unnecessarily extend the period and
in Manila for life annuity. Two days later, he paid the permit delays in the settlement of questions affecting
sum of Php6000 to the company’s manager in its Manila transportation, contrary to the clear intent and purpose
office and was given a receipt. On Nov. 26, 1917, the of the law.
head office gave notice of acceptance by cable to Manila.
On the same date, the Manila office prepared a letter MODULE 3: LAW ON HUMAN RELATIONS
notifying Herrer that his application has been accepted
and this was placed in the ordinary channels of The whole chapter of human relations deals with the
transmission, but was never actually mailed and norms and conduct one should observe in the exercise
received by Herrer. Herrer died on Dec. 20, 1917. The of his rights and in the performance of his duties. Such
plaintiff as administrator of Herrer’s estate brought this when if you fail to observe these norms and conduct,
action to recover the Php6000 paid by the deceased. this may rise to an action for damages against you.
Was Herrer able to receive the notice of acceptance of PRINCIPLE OF ABUSE OF RIGHTS
his application?
Art. 19, NCC. Every person must, in the exercise of his
The law that applies here is the Civil Code Art 1802, rights and in the performance of his duties, act with
because the Insurance Act is silent as to the methods justice, give everyone his due, and observe honesty and
followed to create a contract of insurance. The special good faith.
law on the subject of insurance is deficient in
enunciating the principles governing acceptance, the Article 19 provides that even in the exercise of one’s
subject-matter of the Civil code, if there be any, would right, he may be held liable for damages if he does it
be controlling. with bad faith. Even if it’s your right to do it, make sure
that you do it in good faith.
In the Civil Code, Article 1262 provides that “Consent is
shown by the concurrence of offer and acceptance with
respect to the thing and the consideration which are to
20
ELEMENTS OF ABUSE OF RIGHT VELAYO VS. SHELL CO. PHIL

GR No. L- 7817, Oct. 31, 1956
1. There is a legal right or duty on the part of the
defendant The CALI (Commercial Air Lines, Inc.) knew it did not
2. Such duty is exercised in bad faith by the have sufficient assets to pay off its liabilities, and so it
defendant called a meeting of its creditors, who agreed that they
3. It is for the sole intent of prejudicing or injuring would be contented with a pro-rata division of the
another assets, including a C-54 plane, still in California. One of
the creditors, the Shell Co., took advantage of this
NOTE: The absence of good faith is essential to abuse information, and made a telegraphic assignment of its
of right (Elizabeth Diaz v. Georgina Encanto, G.R. No. credit in favor of a sister Shell Co., in the U.S. which
171303, January 20, 2016) then promptly attached the plane in California, thus
depriving the other creditors of its value.
Principle of Abuse of Rights
It presents some basic principles to be observed for the The Supreme Court declared Shell Co. liable to damages
rightful relationship between human beings and for the to other creditors. The basis of such liability then, in the
stability of social order absence of law, is Article 21 of the Civil Code which
states that, “Any person who willfully causes loss or
A person has the right to exercise his rights but he must injury to another in a manner that is contrary to morals,
be mindful of the rights of other people, otherwise he good customs or public policy shall compensate the
can be liable for damage. This is a basis used to claim latter for the damage.” A moral wrong or injury, even if
damages in civil cases. it does not constitute a violation of a statute law, should
be compensated by damages. A co-creditor who did not
BASIC NORMS OF CONDUCT observe honesty and good faith in its dealings with the
other creditors in an insolvency proceeding can be held
1. Act with justice liable for damages if its action causes damage to them.
2. Give everyone his due
3. Observe honesty and good faith MERALCO VS. CA
GR No. L-39019, Jan. 22, 1988
NOTE: Article 19 establishes limitations on people’s
rights, being, when it impinges on other people’s rights.
Petitioner MERALCO disconnected the electrical service
A legal wrong is done when not in conformity to the
line of private respondents Chaveses because of their
norms.
failure to pay electric bills without serving them a Notice
of Disconnection. Both the RTC and CA ruled in favor of
ARTICLE 19, 20 AND 21 IN THE ENFORCEMENT the Chaveses and ordered MERALCO to pay the
AND SANCTIONS OF ABUSE OF RIGHT damages. In the instant petition, MERALCO contends
that in the absence of bad faith, they could not be held
While Art. 19 lays down the rule of conduct for the
liable for moral and exemplary damages as well as
government of human relations, it does not provide a
attorney's fees; that their failure to give a notice of
remedy. Generally, an action for damages under either
disconnection to Chaveses might have been a breach of
Art. 20 or Art. 21 would be proper. Art. 21 deals with duty or breach of contract, but by itself does not
acts contra bonus mores or contrary to good morals constitute bad faith or fraud; that it must be shown that
and presupposes loss or injury, material or otherwise, such a failure was motivated by ill will or done with
which one may suffer as a result of such violation. Under
fraudulent intent.
Arts. 19 and 21, the act must be intentional (Rabuya,
2006).
The SC ruled that MERALCO is liable for damages under
Art. 19 of the Civil Code. The law requires at least a 48-
Furthermore, Article 20 speaks of the general sanction hour notice before electric supply service of
for all other provisions of law which do not especially disconnection is made to a delinquent customer. Failure
provide for their own sanction. to give such prior notice amounts to a tort. This failure
is a clear violation of Article 21 of the Civil Code as
Article 21 on the other hand, speaks of an act which is
reiterated by paragraph 10 of Article 2219 and Article
legal but is contrary to morals, good custom, public
2220 of the same Code.
order or public policy and is done with intent to injure.
GO VS. CORDERO
ALBETZ INVESTMENT INC VS. CA
GR No. 164703, May 4, 2010
GR No. L-32570, Feb. 28, 1977
Cordero ventured into the business of marketing inter-
Having won a case in a final and executory judgment,
island passenger vessels with Robinson, an Australian-
the winning party, in having the judgment executed, did
based national who is the Managing Director of
not give the occupants of a house (sought to be
Aluminium Fast Ferries Australia (AFFA). They entered
demolished) sufficient time to remove their personal
into an Exclusive Distributorship Agreement wherein
belongings. Are said occupants entitled to damages?
Cordero was appointed as the exclusive distributor of
AFFA catamaran and other fast ferry vessels in the
Since no reasonable time was given, and the belongings
Philippines. To close a deal for the purchase of two (2)
were damaged, the demolition of the house may be said
SEACAT 25, Cordero negotiated with Landicho and
to have been carried out in a manner not consistent with
Tecson, lawyers of Go, who is the owner/operator of
justice and good faith, as required by Art. 19 of the Civil
ACG Express Liner of Cebu City, a single proprietorship.
Code. Damages may therefore be awarded in view of
Per agreement between Robinson and Cordero, the
this abuse of a right.
latter shall receive commissions totalling
US$328,742.00, or 22.43% of the purchase price, from
the sale of each vessel. However, Cordero later
21
discovered that Go was dealing directly with Robinson in Willful and Negligent Acts
violation of his exclusive distributorship agreement Acts done by fault are punishable by law. Negligence
unduly depriving him of his due commissions. The SC which is a source for damages gives the person injured
ruled that Robinson, Go, Tecson and Landico acted in the right to ask for compensation.
bad faith and in utter disregard of the rights of Cordero
under the exclusive distributorship agreement. Their Damnum Absque Injuria rule
failure to act with fairness, honesty and good faith in There is no damage when there is no injury. If there is
securing better terms for the purchase of high-speed injury yet no right is violated, no liability is present.
catamarans from AFFA, to the prejudice of Cordero as
the duly appointed exclusive distributor, is further FELIPE VS. LEUTERIO, ET AL
proscribed by Article 19 of the Civil Code whose subject G.R. No. L-4606, May 30, 1955
is to set certain standards which must be observed not
only in the exercise of one's rights but also in the In 1950, a benefit inter-collegiate oratorical contest was
performance of one's duties. These standards are the held in Naga City. One of the contestants therein was
following: act with justice, give everyone his due and private respondent Imperial and among the judges of
observe honesty and good faith. Its antithesis, the competition was petitioner Felipe, being the
necessarily, is any act evincing bad faith or intent to Chairman. During the announcement of the judges’
injure. Its elements are the following: (1) There is a decision, Imperial merely placed second. Four days
legal right or duty; (2) which is exercised in bad faith; afterwards, Imperial addressed a letter to the Board of
(3) for the sole intent of prejudicing or injuring another. Judges protesting the verdict, and alleging that one of
When this article is violated, an action for damages is the judges had committed a mathematical mistake,
proper under Arts. 20 or 21 of the Civil Code. resulting in her getting second place only, instead of the
first, which she therefore claimed. Upon refusal of the
CEBU COUNTRY CLUB VS. ELIZAGAQUE Board to amend their award, she filed a complaint
542 SCRA 65 before the CFI which ruled in her favor and declared her
as the first placed winner. The SC ruled the judiciary has
In 1987, San Miguel Corporation, a special company no power to reverse the award of the board of judges of
proprietary member of petitioner Cebu Country Club an oratorical contest. For that matter it would not
Inc. (CCCI) designated respondent Elizagaque interfere in literary contests, beauty contests and similar
(Elizagaque), as a special nonproprietary member. The competitions. No rights to the prizes may be asserted
designation was thereafter approved by the CCCI's by the contestants, because theirs was merely the
Board of Directors. Elizagaque then filed with CCCI an privilege to compete for the prize, and that privilege did
application for proprietary membership. However, CCCI not ripen into a demandable right unless and until they
disapproved of the same by virtue of a “black ball were proclaimed winners of the competition by the
system” of voting. Despite sending letters for appointed arbiters or referees or judges. However,
reconsideration, Elizagaque was left in the dark. He was granting that Imperial suffered some loss or injury, yet
not even informed that a unanimous vote of the Board her case is one under "damnum absque injuria". If
members was required. When he sent a letter for fraud or malice had been proven, it would be a different
reconsideration and an inquiry whether there was an proposition. But then her action should be directed
objection to his application, petitioners apparently against the individual judge or judges who fraudulently
ignored him. The SC ruled that in rejecting Elizagaque’s or maliciously injured her. Not against the other judges.
application for proprietary membership, CCCI violated
the rules governing human relations. While the Board of UNIVERSITY OF THE EAST VS. JADER
Directors, under the Articles of Incorporation of a non- G.R. No. 132344, February 7, 2000
profit and non-stock membership club, may have the
right to approve or disapprove an application for Respondent Jader was a law student of petitioner
proprietary membership, the right should not be University of the East (UE). He took a removal exam for
exercised arbitrarily. A right, though by itself legal his subject Practice Court I for getting an incomplete
because it is recognized or granted by law as such, may grade for the same. Unknown to him, however, he was
nevertheless become the source of some illegality – given a failing grade. This notwithstanding, he was
when a right is exercised in a manner which does not included in the list of graduates and was able to enroll
conform with the norms enshrined in Article 19 of the at the pre-bar review class. Later, he learned of his
Civil Code and results in damage to another, a legal deficiency and thus, dropped his review class and was
wrong is thereby committed for which the wrongdoer not able to take the bar examinations. He filed an action
must be held responsible for damages against the university and both the trial
court and the CA ruled in his favor. The SC ruled that
ACTS CONTRARY TO LAW DONE WILLFULLY OR UE, in belatedly informing Jader of the result of the
NEGLIGENTLY CAUSING DAMAGE removal examination, particularly at a time when he had
already commenced preparing for the bar exams,
Art. 20, NCC. Every person who, contrary to law, cannot be said to have acted in good faith. However,
willfully or negligently causes damage to another, shall while UE was guilty of negligence and thus liable to
indemnify the latter for the same. Jader for the latter's actual damages, Jader should not
have been awarded moral damages for he did not suffer
No right impaired, no basis for damages shock, trauma and pain when he was informed that he
1) The act should be contrary to law; could not graduate and will not be allowed to take the
2) The act must be done willfully or negligently; bar examinations. At the very least, it behooved him to
3) Damage is not enough, there must also be a right verify for himself whether he has completed all
impaired. necessary requirements to be eligible for the bar
examinations. As a senior law student, Jader should
Hence, even if an act causes damage to you but you have been responsible enough to ensure that all his
have no right that is impaired, you are still not entitled affairs, specifically those pertaining to his academic
to damages. achievement, are in order. Given these considerations,
22
he could not have suffered untold embarrassment in WASSMER VS. VELEZ

attending the graduation rites, enrolling in the bar 12 SCRA 649
review classes and not being able to take the bar exams.
If he was indeed humiliated by his failure to take the Mere breach of promise to marry is not an actionable
bar, he brought this upon himself by not verifying if he wrong, but to formally set a wedding and go through all
has satisfied all the requirements including his school the preparations therefore, only to walk out of it when
records, before preparing himself for the bar. the marriage is about to be solemnized is quite different.
Obviously, it is contrary to good customs and
WILLFUL ACTS THAT ARE CONTRARY TO LAW morals. The defendant must be held liable for damages
CAUSING DAMAGE TO ANOTHER pursuant to Article 21 of the Civil Code.
Art. 21, NCC. Any person who willfully causes loss or GASHEM SHOOKAT BAKSH VS. CA
injury to another in a manner that is contrary to morals, 219 SCRA 115
good customs or public policy shall compensate the
latter for the damage. Where a man’s promise to marry is in fact the proximate
cause of the acceptance of his love by a woman and his
Acts Contrary to Morals, Good Customs, etc. representation to fulfill that promise thereafter becomes
As opposed to Article 20 wherein the act may either be the proximate cause of the giving of herself unto him in
willful or negligent, acts under Article 21 must be willful a sexual congress, proof that he had, in reality, no
although not contrary to law. These acts however are intention of marrying her and that the promise was only
contrary to morals, good customs, etc. a subtle scheme or deceptive device to entice or inveigle
her to accept him and to obtain her consent to the
This article is intended to expand the concept of torts in sexual act, could justify the award of damages pursuant
this jurisdiction by granting adequate legal remedy to to Article 21 not because of such promise to marry but
someone who has been injured by another, and no law because of the fraud and deceit behind it and the willful
punishes such an act that caused the injury. The act is injury to her honor and reputation which followed
against morals and good customs. thereafter. It is essential however, that such injury
should have been committed in a manner contrary to
ELEMENTS OF AN ACTION UNDER ART. 21 morals, good customs or public policy.
(CONTRA BONUS MORES)
The pari delicto rule does not apply in this case for while
1. There is an act which is legal indeed, the private respondent may not have been
2. But such act is contrary to morals, good impelled by the purest of intentions, she eventually
customs, public order or policy submitted to the petitioner in sexual congress not out of
3. The act is done with intent to injure lust, but because of moral seduction. She is not,
therefore, in pari delicto with the petitioner. Pari delicto
Breach of promise to marry, is it actionable? means “in equal fault; in a similar offense or crime;
A man who promised to marry a woman but did not do equal in guilt or in legal fault.” At most, it could be
so cannot be sued since a mere breach of promise is not conceded that she is merely in delicto.
actionable.
HERMOSISIMA VS. CA
What kind of damage can be recovered? 109 Phil. 629
Actual damages may be awarded (e.g. expenses for the
cancelled wedding) The Supreme Court ruled that there can be no recovery
of moral damages in a breach of promise to marry,
Moral damages may be awarded in case of moral except when there is moral seduction committed by the
seduction as when the woman was enticed to have man. In this case, however, it was the woman who
carnal knowledge with the man due to the promise made virtually seduced the man, by surrendering herself to
(take note that when the carnal knowledge is him because she, a woman ten years older, was
consensual, no moral damages may be granted) or overwhelmed by her love for him.
when the backing out of the man from his promise is
made to humiliate the woman. No damages can be recovered under Articles 19 and 21
where the sexual intercourse is a product of
CECILIO PE VS. ALFONSO PE voluntariness and mutual desire.
2 SCRA 200
UNJUST ENRICHMENT
A married man who enticed a young woman to elope
with him, taking advantage of his closeness to the family
Art. 22, NCC. Every person who through an act of
of the woman is violative of basic rules on human
performance by another, or any other means, acquires
relation. His premeditated act of frequently visiting the
or comes into possession of something at the expense
woman in the guise of teaching her how to pray the of the latter without just or legal ground, shall return
rosary, but thru an ingenious scheme or trickery, the same to him.
seduced the latter to the extent of making the woman
fall in love with him has committed an injury to the
Art. 23, NCC. Even when an act or event causing
woman’s family in a manner contrary to morals, good
damage to another’s property was not due to the fault
customs and public policy as contemplated in Article 21
or negligence of the defendant, the latter shall be liable
of the New Civil Code.
for indemnity if through the act or event he was
benefited.
23
ELEMENTS OF UNJUST ENRICHMENT As accion in rem verso requires the interference and
positive action of recovery by the person directly
1. The defendant has been enriched; affected by the circumstance, it differs from natural
2. The plaintiff has suffered a loss; obligation.
3. The enrichment of the defendant is without just;
4. The plaintiff has no other action based on PARENS PATRIAE
contract, quasi- contract, crime or quasi-delict.
Art. 24, NCC. In all contractual, property or other
Nemo Cum Alterius Detriment Protest relations, when one of the parties is at a disadvantage
No person should unjustly enrich himself at the expense on account of his moral dependence, ignorance,
of another. indigence, mental weakness, tender age or other
handicap, the courts must be vigilant for his protection.
Solutio Indebiti
Payment by mistake. If one pays another by mistake, Parens Patriae
the latter is duty bound to return it. The state serves to protect the weak and the minorities.
Those who are less in life, must have more in law.
Article 23: Code Commission Example
Mr. A, a farmer whose cattle were driven to the Meaning of “the courts must be vigilant for his
cultivated highland belonging to B because of a flood. protection”
A’s cattle were saved, but B’s crops were destroyed and It means that in case of doubt, the courts must resolve
eaten by the cattle. Although it wasn’t A’s fault, he was the case in favor of the underdog. Thus, in labor
benefitted. It is right and equitable to indemnify B. contracts, doubts are resolved in favor of the laborers
as they are usually the disadvantaged party. (Report
ACCION IN REM VERSO Code Commission)
It is the remedy for unjust enrichment. It is an action EXTRAVAGANCE DURING EMERGENCY

for recovery of what has been paid or delivered without
just cause or legal ground. It can only be availed of if Art. 25, NCC. Thoughtless extravagance in expenses
there is no other remedy to enforce it based on contract, for pleasure or display during a period of acute public
quasi-contract, crime or quasi-delict. want or emergency may be stopped by order of the
courts at the instance of any government or private
ACCION IN REM VERSO V. SOLUTIO DEBITI
charitable institution.
In accion in rem verso, it is not necessary that there
Thoughtless Extravagance
should have been mistake in the payment unlike in
The action to file is injunction. Only charitable
solutio indebiti where mistake is an essential element
institutions, whether government or private, may bring
(Rabuya, 2006).
action in court to stop/prevent thoughtless
extravagance during acute public want.
ACCION IN REM VERSO V. UNJUST ENRICHMENT
Purpose: To avoid chaos in the society, as thoughtless
An accion in rem verso is merely an auxiliary action
spending in an emergency may incite those who cannot
available only when there is no other remedy on
afford to spend.
contract, quasi-contract, crime, and quasi-delict while
unjust enrichment, wherein one is unjustly enriched at
RESPECT FOR DIGNITY, PERSONALITY, PRIVACY,
the expense of or from the efforts or obligations of
AND PEACE OF MINDS OF NEIGHBORS
others, may be availed of as a prerequisite for the
enforcement of the doctrine of restitution. (Shinryo
Philippines Company v. RRN Incorp. G.R. No. 172525, Art. 26, NCC. Every person shall respect the dignity,
October 20, 2010) personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts,
ACCION IN REM VERSO V. NATURAL OBLIGATION though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and
A natural obligation is an obligation that has no legal other relief:
basis and hence does not give a right of action to enforce
its performance. It is based on equity, morality, and (1) Prying into the privacy of another's residence;
natural law, and should be voluntary. (2) Meddling with or disturbing the private life or family
relations of another;
An obligation can be considered as a natural obligation (3) Intriguing to cause another to be alienated from his
if: friends;
(4) Vexing or humiliating another on account of his
1. It is based on moral or social grounds and religious beliefs, lowly station in life, place of birth,
cannot be enforced by positive (human-made) physical defect, or other personal condition.
laws. NOTE: Acts are not considered criminal in nature but are
2. It is voluntary, with the debtor having the grounds for damages.
knowledge that the obligation cannot be
enforced by the law. Respect for Privacy and Dignity
3. Its performance cannot be prevented or This provision is intended to enhance human dignity and
invalidated by the court. give due regard for decency and propriety.
4. It can be recognized by the court after its
fulfillment; hence, the creditor has the right to Remedy: The offended party can file an action for
retain what has been done or delivered by the damages, prevention (injunction), or any other relief.
debtor who has no right to recover it
24
DAMAGES AGAINST PUBLIC OFFICIALS AND FOR RULE 111, ROC

UNFAIR COMPETITION
Section 1. Institution of criminal and civil
Article 27, NCC. Any person suffering material or moral actions. — (a) When a criminal action is instituted, the
loss because a public servant or employee refuses or civil action for the recovery of civil liability arising from
neglects, without just cause, to perform his official duty the offense charged shall be deemed instituted with the
may file an action for damages and other relief against criminal action unless the offended party waives the civil
the latter, without prejudice to any disciplinary action, reserves the right to institute it separately or
administrative action that may be taken. institutes the civil action prior to the criminal action.
Article 28, NCC. Unfair competition in agricultural, The reservation of the right to institute separately the
commercial or industrial enterprises or in labor through civil action shall be made before the prosecution starts
the use of force, intimidation, deceit, machination or any presenting its evidence and under circumstances
other unjust, oppressive or highhanded method shall affording the offended party a reasonable opportunity to
give rise to a right of action by the person who thereby make such reservation.
suffers damage.
When the offended party seeks to enforce civil liability
Refusal to Perform Official Duty against the accused by way of moral, nominal,
This is intended for public officials or employees who temperate, or exemplary damages without specifying
refuse or neglect to perform their duties which resulted the amount thereof in the complaint or information, the
in damage or prejudice of another person. He is liable filing fees thereof shall constitute a first lien on the
for causing damage due to inaction. judgment awarding such damages.
For example, a president of a State College who, in bad Where the amount of damages, other than actual, is
faith, refuses to let a student graduate with honors specified in the complaint or information, the
which the latter rightfully deserved, despite corresponding filing fees shall be paid by the offended
interventions and directives by the Official Bureau of party upon the filing thereof in court.
Public Schools, can be held liable for damages.
(Ledesma v. CA) Except as otherwise provided in these Rules, no filing
fees shall be required for actual damages.
Unfair Competition
This provision is intended to lay down a general principle No counterclaim, cross-claim or third-party complaint
outlawing unfair competition, both on enterprises and may be filed by the accused in the criminal case, but
laborers because it undermines free enterprise. any cause of action which could have been the subject
Democracy is rendered nothing by high handed methods thereof may be litigated in a separate civil action. (1a)
of depriving others a fair chance to engage in business
to earn a living. (b) The criminal action for violation of Batas Pambansa
Blg. 22 shall be deemed to include the corresponding
DEPENDENT AND INDEPENDENT CIVIL ACTION civil action. No reservation to file such civil action
(ART. 29 – 35) separately shall be allowed.
Article 29, NCC. When the accused in a criminal Upon filing of the aforesaid joint criminal and civil
prosecution is acquitted on the ground that his guilt has actions, the offended party shall pay in full the filing fees
not been proved beyond reasonable doubt, a civil action based on the amount of the check involved, which shall
for damages for the same act or omission may be be considered as the actual damages claimed. Where
instituted. Such action requires only a preponderance of the complaint or information also seeks to recover
evidence. Upon motion of the defendant, the court may liquidated, moral, nominal, temperate or exemplary
require the plaintiff to file a bond to answer for damages damages, the offended party shall pay additional filing
in case the complaint should be found to be malicious. fees based on the amounts alleged therein. If the
amounts are not so alleged but any of these damages
If in a criminal case the judgment of acquittal is based are subsequently awarded by the court, the filing fees
upon reasonable doubt, the court shall so declare. In the based on the amount awarded shall constitute a first lien
absence of any declaration to that effect, it may be on the judgment.
inferred from the text of the decision whether or not the
acquittal is due to that ground. Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated
Article 30, NCC. When a separate civil action is with the criminal action upon application with the court
brought to demand civil liability arising from a criminal trying the latter case. If the application is granted, the
offense, and no criminal proceedings are instituted trial of both actions shall proceed in accordance with
during the pendency of the civil case, a preponderance section 2 of this Rule governing consolidation of the civil
of evidence shall likewise be sufficient to prove the act and criminal actions. (cir. 57-97)
complained of.
Section 2. When separate civil action is suspended. —
Article 31, NCC. When the civil action is based on an After the criminal action has been commenced, the
obligation not arising from the act or omission separate civil action arising therefrom cannot be
complained of as a felony, such civil action may proceed instituted until final judgment has been entered in the
independently of the criminal proceedings and criminal action.
regardless of the result of the latter.
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until
25
final judgment is rendered in the criminal action. action based upon the pendency of a prejudicial
Nevertheless, before judgment on the merits is question in a civil action may be filed in the office of the
rendered in the civil action, the same may, upon motion prosecutor or the court conducting the preliminary
of the offended party, be consolidated with the criminal investigation. When the criminal action has been filed in
action in the court trying the criminal action. In case of court for trial, the petition to suspend shall be filed in
consolidation, the evidence already adduced in the civil the same criminal action at any time before the
action shall be deemed automatically reproduced in the prosecution rests. (6a)
criminal action without prejudice to the right of the
prosecution to cross-examine the witnesses presented Section 7. Elements of prejudicial question. — The
by the offended party in the criminal case and of the elements of a prejudicial question are: (a) the
parties to present additional evidence. The consolidated previously instituted civil action involves an issue similar
criminal and civil actions shall be tried and decided or intimately related to the issue raised in the
jointly. subsequent criminal action, and (b) the resolution of
During the pendency of the criminal action, the running such issue determines whether or not the criminal action
of the period of prescription of the civil action which may proceed. (5a)
cannot be instituted separately or whose proceeding has
been suspended shall be tolled. (n) NOTE: Art. 29 does not speak of an independent civil
action. It simply means that an acquittal on the ground
The extinction of the penal action does not carry with it that the guilt of the defendant “has not been
extinction of the civil action. However, the civil action satisfactorily established” is equivalent to one on
based on delict shall be deemed extinguished if there is reasonable doubt, and does not preclude or prevent a
a finding in a final judgment in the criminal action that civil suit under the same provision.
the act or omission from which the civil liability may
arise did not exist. (2a) Reason for Art. 29
Criminal liability is harder to prove than civil liability
Section 3. When civil action may proceed because the former demands proof of guilt beyond
independently. — In the cases provided for in reasonable doubt; the other, mere preponderance of
Articles 32, 33, 34 and 2176 of the Civil Code of the evidence. Now then if criminal conviction is not obtained
Philippines, the independent civil action may be brought because of reasonable doubt there is still a chance that
by the offended party. It shall proceed independently of the civil liability can be held to exist because of
the criminal action and shall require only a preponderance of evidence
preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same Under the Revised Penal Code (Art. 100) a person
act or omission charged in the criminal action. (3a) criminally liable is also civilly liable. The two liabilities
are separate and distinct from each other. Thus, even if
Section 4. Effect of death on civil actions. — The death the accused be acquitted, he is released only from
of the accused after arraignment and during the criminal responsibility, not civil liability; otherwise, the
pendency of the criminal action shall extinguish the civil victim would be prejudiced.
liability arising from the delict. However, the
independent civil action instituted under section 3 of this Scope of Art. 31 (Obligation Not Arising from a
Rule or which thereafter is instituted to enforce liability Crime)
arising from other sources of obligation may be Art. 31 contemplates a case where the obligation does
continued against the estate or legal representative of not arise from a crime, but from some other act — like
the accused after proper substitution or against said a contract or a legal duty.
estate, as the case may be. The heirs of the accused
may be substituted for the deceased without requiring MEANING OF “INDEPENDENT CIVIL ACTION”
the appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor An independent civil action is one that is brought
heirs. distinctly and separately from a criminal case allowed
for considerations of public policy, because the proof
The court shall forthwith order said legal representative needed for civil cases is LESS than that required for
or representatives to appear and be substituted within criminal cases; but with the injunction in general that
a period of thirty (30) days from notice. success in financially recovering in one case should
prevent a recovery of damages in the other.
A final judgment entered in favor of the offended party
shall be enforced in the manner especially provided in It should be noted that the bringing of the independent
these rules for prosecuting claims against the estate of civil action is PERMISSIVE, not compulsory. Arts. 32,
the deceased. 33, 34 and 2177 give instances of independent civil
actions.
If the accused dies before arraignment, the case shall
be dismissed without prejudice to any civil action the ● Art. 32 — (breach of constitutional and other
offended party may file against the estate of the rights)
deceased. (n) ● Art. 33 — (defamation, fraud, physical injuries)
● Art. 34 — (refusal or failure of city or municipal
Section 5. Judgment in civil action not a bar. — A final police to give protection)
judgment rendered in a civil action absolving the ● Art. 2177 — (quasi-delict or culpa aquiliana)
defendant from civil liability is not a bar to a criminal
action against the defendant for the same act or
omission subject of the civil action. (4a)
Section 6. Suspension by reason of prejudicial

question. — A petition for suspension of the criminal
26
QUANTUM OF EVIDENCE REQUIRED IN CRIMINAL compulsory process to secure the attendance of witness
AND CIVIL CASE in his behalf;
17. Freedom from being compelled to be a witness
Hierarchy of Evidentiary Values against one's self, or from being forced to confess guilt,
● Proof beyond reasonable doubt (hardest to or from being induced by a promise of immunity or
prove, required in Criminal Case) reward to make such confession, except when the
● Clear and convincing proof person confessing becomes a State witness;
● Preponderance of Evidence (second easiest to 18. Freedom from excessive fines, or cruel and unusual
prove, required in Civil Case) punishment, unless the same is imposed or inflicted in
● Substantial evidence (easiest to prove, required accordance with a statute which has not been judicially
in Administrative Case) declared unconstitutional; and
19. Freedom of access to the courts.
Criminal Case Requires Proof Beyond Reasonable
Doubt In any of the cases referred to in this article, whether or
Well-entrenched in jurisprudence is the rule that the not the defendant's act or omission constitutes a
conviction of the accused must rest, not on the criminal offense, the aggrieved party has a right to
weakness of the defense, but on the strength of the commence an entirely separate and distinct civil action
prosecution. The burden is on the prosecution to prove for damages, and for other relief. Such civil action shall
guilt beyond reasonable doubt, not on the accused to proceed independently of any criminal prosecution (if
prove his innocence. the latter be instituted), and may be proved by a
preponderance of evidence. The indemnity shall include
Civil Case Requires Preponderance of Evidence moral damages. Exemplary damages may also be
Section 1, Rule 133 of the Rules of Court mandates that adjudicated.
in civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
Preponderance of evidence means that the evidence as violation of the Penal Code or other penal statute.
a whole adduced by one side is superior to that of the
other. It refers to the weight, credit and value of the Implementation of Constitutional Civil Liberties
aggregate evidence on either side and is usually The civil liberties guaranteed by the Constitution need
considered to be synonymous with the term “greater implementation, hence, the necessity for Art. 32.
weight of evidence” or “greater weight of the credible
evidence.” It is evidence which is more convincing to the SEPARATE CIVIL ACTION FOR DEFAMATION,
court as worthy of belief than that which is offered in FRAUD, & PHYSICAL INJURY
opposition thereto.
Article 33, NCC. In cases of defamation, fraud, and
SEPARATE CIVIL ACTION FOR VIOLATION OF physical injuries a civil action for damages, entirely
CONSTITUTIONAL RIGHTS separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall
Article 32, NCC. Any public officer or employee, or any proceed independently of the criminal prosecution, and
private individual, who directly or indirectly obstructs, shall require only a preponderance of evidence.
defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another Article 34, NCC. When a member of a city or municipal
person shall be liable to the latter for damages: police force refuses or fails to render aid or protection
to any person in case of danger to life or property, such
1. Freedom of religion; peace officer shall be primarily liable for damages, and
2. Freedom of speech; the city or municipality shall be subsidiarily responsible
3. Freedom to write for the press or to maintain a therefor. The civil action herein recognized shall be
periodical publication; independent of any criminal proceedings, and a
4. Freedom from arbitrary or illegal detention; preponderance of evidence shall suffice to support such
5. Freedom of suffrage; action.
6. The right against deprivation of property without due
process of law; Art. 33 speaks of:
7. The right to a just compensation when private a) Defamation (or libel or slander or intrigue
property is taken for public use; against honor)
8. The right to the equal protection of the laws; b) Fraud (or estafa or swindling)
9. The right to be secure in one's person, house, papers, c) Physical injuries including consummated,
and effects against unreasonable searches and seizures; frustrated and attempted homicide, murder,
10. The liberty of abode and of changing the same; parricide, infanticide — so long as there was
11. The privacy of communication and correspondence; physical injury.
12. The right to become a member of associations or
societies for purposes not contrary to law; Independent Civil Action for the Liability of City or
13. The right to take part in a peaceable assembly to Municipal Police Force
petition the Government for redress of grievances; a) Primary liability is assessed against the member
14. The right to be a free from involuntary servitude in of the police force who refuses or fails to render
any form; aid or protection.
15. The right of the accused against excessive bail; b) Subsidiary liability is imposed on the city or
16. The right of the accused to be heard by himself and municipality concerned in case of insolvency.
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public NOTE: By virtue of Art 34, the city or municipal
trial, to meet the witnesses face to face, and to have government concerned can be sued for its
subsidiary liability. Incidentally, the provision
27
does not grant to the government the defense sad case, and the cognizance of which pertains to
of due diligence in the selection and supervision another tribunal. (People vs. Aragon, 94 Phil 357)
of the policemen.
A prejudicial question is a question which is based on a
RESERVATION IN FILING OF INDEPENDENT fact distinct and separate from the crime but so
CIVIL ACTION intimately connected with it that its resolution is
determinative of the guilt or innocence of the accused
What are the consequences of the independent (Apa, et al vs Hon. Fernandez, et al, 59 SCAD 759)
character of actions under Articles 32, 33, 34 and
2176 of the Civil Code? ELEMENTS OF PREJUDICIAL QUESTION
(People v. Consing, Jr., 395 SCRA 366)
● The right to bring the foregoing actions based
on the Civil Code need not be reserved in the a) the civil case involves facts intimately related to
criminal prosecution, since they are not deemed those upon which the criminal prosecution
included therein. would be based;
● The institution or the waiver of the right to file b) in the resolution of the issue or issues raised in
a separate civil action arising from the crime the civil actions, the guilt or innocence of the
charged does not extinguish the right to bring accused would necessarily be determined; and
an independent civil action. c) jurisdiction to try, said question must be lodged
● Even if a civil action is filed separately, the ex in another tribunal
delicto civil liability in the criminal prosecution ELEMENTS OF PREJUDICIAL QUESTION
remains, and the offended party may — subject (Sec. 7 Rule 111 ROC)
to the control of the prosecutor — still intervene
in the criminal action, in order to protect the a) the previously instituted civil action involves an
remaining civil interest therein. issue similar or intimately related to the issue
raised in the subsequent criminal action, and
Under Section 1 of the present Rule 111, what is b) the resolution of such issue determines whether
"deemed instituted" with the criminal action is only the or not the criminal action may proceed.
action to recover civil liability arising from the crime or
ex-delicto. All the other civil actions under Articles 32, PEOPLE VS. ARAGON
33, 34 and 2176 of the Civil Code are no longer "deemed GR No. L-5930, Feb. 17, 1954
instituted," and may be filed separately and prosecuted
independently even without any reservation in the FACTS: Aragon was married to Martina. Later, Aragon
criminal action. The failure to make a reservation in the forced Efigenia to marry him. Efigenia filed an action to
criminal action is not a waiver of the right to file a cancel the marriage to her alleging that the latter "by
separate and independent civil action based on these means of force, threats and intimidation of bodily harm,
articles of the Civil Code. (Supreme Transportation forced her to marry him.” Meantime, Aragon was
Liners Inc. vs. San Andres, G.R. No. 200444, August 15, accused of bigamy. Aragon alleges that the civil case is
2018). a prejudicial question. Is he correct?
Article 35, NCC. When a person, claiming to be injured HELD: Aragon is wrong because it was he who
by a criminal offense, charges another with the same, employed the force insofar as the second marriage is
for which no independent civil action is granted in this concerned. A second marriage contracted by a man
Code or any special law, but the justice of the peace while the first marriage is not yet dissolved is illegal and
finds no reasonable grounds to believe that a crime has void. Its nullity, however, is no defense to a criminal
been committed, or the prosecuting attorney refuses or action for bigamy filed against him. The filing, while the
fails to institute criminal proceedings, the complainant bigamy case is pending, of a civil action by the woman
may bring a civil action for damages against the alleged in the second marriage for its annulment by reason of
offender. Such civil action shall be supported by force and intimidation upon her by the man, is not a bar
preponderance of evidence. Upon the defendant’s or defense to the criminal action. The civil action does
motion, the court may require the plaintiff to file a bond not decide that he entered the marriage against his will
to indemnify the defendant in case the complaint should and consent, because the complaint therein does not
be found to be malicious. allege that he was the victim of force and intimidation
in the second marriage. It was he who used the force or
If during the pendency of the civil action, an information intimidation and he may not use his own malfeasance to
should be presented by the prosecuting attorney, the defeat the action based on his criminal act.
civil action shall be suspended until the termination of
the criminal proceedings.
MERCED VS. DIEZ
PREJUDICIAL QUESTION 109 Phil. 155
Article 36, NCC. Pre-judicial questions, which must be A married man, Abundio Merced was forced by Elizabeth
decided before any criminal prosecution may be to contract a marriage with her. He then sued for the
instituted or may proceed, shall be governed by rules of annulment of second marriage on ground of force and
court which the Supreme Court shall promulgate and intimidation, but Elizabeth countered with a criminal
which shall not be in conflict with the provisions of this charge of bigamy. Abundio filed a motion to suspend the
Code. proceedings until the termination of the annulment case
on a theory of prejudicial question. The court ruled that
Definition the annulment is really a prejudicial question, because
It is a question which arises in a case, the resolution of if he was really forced, there was no consent to the
which is a logical antecedent of the issue involved in the second marriage, and he cannot therefore be guilty of
bigamy. In order that a person may be held guilty of
28
bigamy, the second marriage must have had all the

essential elements of a valid marriage, were it not for ALANO VS. CA
the existence of the first marriage. The contention that GR. No. L-111224, Oct. 15, 1997
the second marriage being bigamous and void, does not
have to be declared such, cannot be sustained because A criminal case for estafa was filed against Alano
precisely the issue here is whether or not such marriage alleging that he defrauded Roberto and pretended to be
was really bigamous. an owner of a land. Alano moved for the suspension of
the criminal case on the ground of prejudicial question
DONATO VS. HON. LUNA pending resolution of a case tried in the RTC. In the said
GR No. 53642, Apr. 15, 1988 case Carlos filed against Alano an annulment of the
contract to sale. Alano contended in that case that he
A case for annulment of marriage can be considered as never sold the property to Carlos and that his signature
a prejudicial question to the bigamy case against the in the deed of absolute sale was forged. The Court ruled
accused only if it is proved that the petitioner’s consent that a criminal action for estafa (for alleged double sale
to such marriage was obtained by means of duress, of property) is a prejudicial question to a civil action for
violence, and intimidation in order to establish that his nullity of the alleged deed of sale and the defense of the
act in the subsequent marriages was an involuntary one alleged vendor is the forgery of his signature in the
and as such the same cannot be the basis for conviction. deed. However, since the suspension of the criminal
A prejudicial question usually comes into play in a case due to a prejudicial question is only a procedural
situation where a civil action and a criminal action may matter, the same is subject to a waiver by virtue of the
proceed, because however the issue raised in the civil prior acts of the accused. Alano admitted during the
action is resolved would be determinative juris et de jure stipulation of facts of his criminal act and such
of the guilt or innocence of the accused in a criminal tantamounts to waiver. Hence, the proceedings cannot
case. The mere fact that the actions to annul the be suspended.
marriage entered into by the accused in a bigamy case
does not mean that “prejudicial questions” are SABANAL VS. TONGCO, ET AL.
automatically raised in civil actions as to warrant the GR.No. L-124498, Oct. 5, 2001
suspension of criminal case.
Sabandal was charged with BP 22 for failing to comply
LANDICHO VS. RELOVA with his memorandum of dealership with Philippines
22 SCRA 73 Today. While the case was still pending and 3 years
later, petitioner filed a complaint for specific
Where the first wife filed a criminal action for bigamy performance, recovery of overpayment and damages
against the husband, and later the second wife filed a along with a motion to suspend trial in the criminal case
civil case for annulment of the marriage on the ground based on prejudicial question. The motion was denied.
of force and intimidation, and the husband later files a Does a prejudicial question exist in this case? NO. The
civil case for annulment of marriage against the first two (2) essential elements of a prejudicial question are:
wife, the civil cases are not prejudicial questions in the (a) the civil action involves an issue similar or intimately
determination of his criminal liability for bigamy, since related to the issue raised in the criminal action; and (b)
his consent to the second marriage is not in issue. In the resolution of such issue determines whether or not
order that a case of annulment of marriage be the criminal action may proceed. If both civil and
considered prejudicial question to a case of bigamy criminal cases have similar issues or the issue in one is
against an accused, it must be shown that the intimately related to the issues raised in the other, then
petitioner’s consent to such marriage was procured by a prejudicial question would likely exist. It must appear
means of duress, force and intimidation to show that his not only that the civil case involves the same facts upon
act in the second marriage was involuntary and cannot which the criminal prosecution would be based, but also
be made the basis of his conviction for the crime of that the resolution of the issues raised in the civil action
bigamy. would be necessarily determinative of the guilt or
innocence of the accused. The issue in the BP 22 case is
whether the accused issued the worthless checks while
BOBIS VS. BOBIS
GR No. 138509, July 31, 2000 the issue in the civil case is whether Sabandal overpaid
his obligations to the respondent. Even if it is shown that
Isagani contracted 3 marriages. An information of the petitioner has overpaid respondent, it does not
follow that he cannot be held liable for the bouncing
bigamy was filed against him by his second wife. Later,
checks he issued, for the mere issuance of worthless
Isagani filed a civil action for declaration of absolute
checks with knowledge of the insufficiency of funds to
nullity of his first marriage on the ground of lack of
support the checks is itself an offense.
marriage license and wanted to suspend the criminal
case on the theory of prejudicial question. The court
ruled that there was no prejudicial question. Article 40 ISABELO APA ET AL VS. HON. FERNANDEZ ET AL
of the Family Code, which was effective at the time of GR No. 112381, March 20, 1995
celebration of the second marriage, requires a prior
judicial declaration of nullity of a previous marriage Petitioners were charged with a violation of the Anti-
before a party may remarry. Isagani, without first Squatting Law and moved for the suspension of their
having obtained the judicial declaration of nullity of the arraignment on the basis of a prejudicial question as
first marriage, cannot be said to have validly entered there was a pending civil case, which the same
into the second marriage. Any decision in the civil action petitioners filed 3 years earlier, to determine the
for nullity would not erase the fact that respondent ownership of the land they squatted on. The motion for
entered into a second marriage during the subsistence suspension was denied. Is the question of ownership a
of a first marriage. Thus, a decision in the civil case is prejudicial question to justify suspension of the criminal
not essential to the determination of the criminal proceedings? YES. A prejudicial question is a question
charge. It is, therefore, not a prejudicial question. which is based on a fact distinct and separate from the
crime but so intimately connected with it that its
29
resolution is determinative of the guilt or innocence of Capacity to act, on the other hand, is not inherent in a
the accused. To justify suspension of the criminal action, person; it is attained or conferred and, therefore, it can
it must appear not only that the civil case involves facts likewise be lost not only by death of the person but by
intimately related to those upon which the criminal any valid cause provided by law (STA. MARIA).
prosecution is based but also that the decision of the
issue or issues raised in the civil case would be decisive RESTRICTIONS ON THE CAPACITY TO ACT
of the guilt or innocence of the accused. In the criminal
case, the question is whether petitioners occupied a Article 38, NCC. Minority, insanity or imbecility, the
piece of land not belonging to them but to private state of being a deaf-mute, prodigality and civil
respondent and against the latter's will. Whatever may interdiction are mere restrictions on the capacity to act,
be the ultimate resolution of the question of ownership, and do not exempt the incapacitated person from
such resolution will be determinative of the guilt or certain obligations, as when the latter arise from his acts
innocence of petitioners in the criminal case. Surely, if or from property relations, such as easements. (32a)
petitioners are co-owners of the lot in question, they
cannot be found guilty of squatting because they are as FACTORS THAT MODIFY OR LIMIT CAPACITY TO
much entitled to the use and occupation of the land as ACT
are the private respondent. Since ownership is the
pivotal question in the civil case, the proceedings in the
Article 39, NCC. The following circumstances, among
criminal case must in the meantime be suspended.
others, modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence,
TE VS. CA insolvency and trusteeship. The consequences of these
November 29, 2000 circumstances are governed in this Code, other codes,
the Rules of Court, and in special laws. Capacity to act
Arthur was charged with bigamy for contracting a is not limited on account of religious belief or political
second marriage while the first was subsisting. Private opinion. A married woman, twenty-one years of age or
respondent Liliana also filed an administrative case over, is qualified for all acts of civil life, except in cases
against Arthur for immorality and falsification while he specified by law.
filed an action for annulment of marriage against her.
Petitioner filed a motion to suspend the proceedings in Capacity to Act
view of the pending civil and criminal cases which were Means the power to do acts with legal effect and it is
denied. Is there a prejudicial question? NO. The acquired and lost by law. It is acquired when one
outcome of the civil case for annulment of petitioner's reaches the age of majority (now 18 years old as per
marriage to private respondent had no bearing upon the RA6809).
determination of petitioner's innocence or guilt in the
criminal case for bigamy, because all that is required for Juridical Capacity
the charge of bigamy to prosper is that the first Refers to the fitness of a person to be the subject of a
marriage be subsisting at the time the second marriage legal relation. It is inherent in every natural person from
is contracted. Petitioner's argument that the nullity of birth and lost upon death.
his marriage to private respondent had to be resolved
first in the civil case before the criminal proceedings Full Civil Capacity (Sui Juris)
could continue, because a declaration that their When a person has juridical capacity and the capacity to
marriage was void ab initio would necessarily absolve act, then he is considered to be a person with full civil
him from criminal liability, is untenable. The prevailing capacity. A new-born infant has juridical capacity but
rule is found in Article 40 of the Family Code, which has no capacity to act.
states that the absolute nullity of a previous marriage
may not be invoked for purposes of remarriage unless Factors that Restricts Capacity to Act
there is a final judgment declaring such previous 1. Minority
marriage void. A marriage, even one which is void or 2. Insanity or imbecility
voidable, shall be deemed valid until declared otherwise 3. State of being deaf-mute
in a judicial proceeding. 4. Prodigality
5. Civil Interdiction
MODULE 4: LAW ON PERSONS
TITLE I: CIVIL PERSONALITY Factors that Modify Capacity to Act
1. Family Relation
Article 37, NCC. Juridical capacity, which is the 2. Alienage
fitness to be the subject of legal relations, is inherent 3. Absence
in every natural person and is lost only through death. 4. Insolvency
Capacity to act, which is the power to do acts with 5. Penalty
legal effect, is acquired and may be lost. (n) 6. Prodigality
Juridical Capacity distinguished from Capacity to CHAPTER 2: NATURAL PERSONS

Act
Juridical capacity is acquired upon the birth of a person. Art. 40, NCC. Birth determines personality; but the
In fact, there are certain cases when, even if a child is conceived child shall be considered born for all purposes
still unborn and merely inside the womb of the mother, that are favorable to it, provided it be born later with
such child is already given a provisional personality the conditions specified in the following article. (29a)
which entitles him to be supported or to receive
donation (Articles 40, 41, 742, 854). Juridical capacity Art. 41. For civil purposes, the foetus is considered born
is terminated only upon death. if it is alive at the time it is completely delivered from
the mother's womb. However, if the foetus had an intra-
uterine life of less than seven months, it is not deemed
30
born if it dies within twenty-four hours after its complete at the same time and there shall be no transmission
delivery from the maternal womb. (30a) of rights from one to the other. (33)
COMMENCEMENT OF PERSONALITY Note: Article 43 applies when the case involves

two or more persons who are called to succeed
General Rule each other. But if the parties are not called to succeed
Personality is vested upon a natural person upon the each other, Rule 131, Section 3 (jj) of the Revised Rules
moment of birth. of Evidence applies:
Conditional Exception (Presumptive Personality) Section 3 (jj): That except for purposes of
The civil personality of the child shall commence from succession, when two persons perish in the same
the time of its conception, for all purposes favorable to calamity, such as wreck, battle, or conflagration, and
him, subject to the requirements of Art. 41 of the Civil it is not shown who died first, and there are no
Code (P.D. No. 603, Art. 5). This personality at particular circumstances from which it can be
conception is called presumptive personality. Such inferred, the survivorship is determined from the
personality has two characteristics: probabilities resulting from the strength and the age
1. Limited; and of the sexes, according to the following rules:
2. Provisional or conditional. 1. If both were under the age of fifteen years,
the older is deemed to have survived;
Example: A fetus may already be a Donee in a Deed of 2. If both were above the age of sixty, the
Donation. However, the donation made to a fetus inside younger is deemed to have survived;
the womb of the mother is conditional. If the condition 3. If one is under fifteen and the other above
in article 41 is not met, then the donation is invalidated sixty, the former is deemed to have survived;
since the donee has not acquired juridical 4. If both be over fifteen and under sixty, and
personality. the sex be different, the male is deemed to
have survived, if the sex be the same, the
When is a Child Considered Born: older; and
Intra-uterine Life When considered born 5. If one be under fifteen or over sixty, and the
7 months or more Alive upon complete other between those ages, the latter is
(ordinary) delivery – even if the deemed to have survived.
child dies within 24
hours Dean’s Notes 2018:
Less than 7 months Alive upon complete Special Power of Attorney
(extraordinary) delivery and at least 24 A special power of attorney executed by a person in
hours thereafter favor of another to sell his property is deemed
terminated if the person dies. The sale, after such death,
Note: Parents are not entitled to damages for and in is not valid if made by the agent with the knowledge of
behalf of their unborn child (Geluz vs. CA, 2 SCRA 801). the principal’s death, even if the buyer is in good faith
(Rallos vs. Felix Gochan & Sons Realty Corp.)
EXTINGUISHMENT OF CIVIL PERSONALITY
Criminal Liability
Art. 42, NCC. Civil personality is extinguished by Criminal liability is extinguished by death but the
death. proceedings with regard to his civil liability should
continue. It is charged on the estate of the deceased
The effect of death upon the rights and obligations of (People vs. Tirol and Baldesco).
the deceased is determined by law, by contract and
by will. (32a) Service of Summons
Service of summons on a defendant who is already dead
Death puts an end to civil personality but the rights and through his relatives is not valid as said defendant has
obligations of a dead person can still be regulated by already lost his juridical personality. Any judgment
contract, will or the law. For example: rendered by the court against him will be null and void
(Dumlao v. Quality Plastic Products, GR No. L-27956,
● The creditors are given the right to claim from April 30, 1976).
the estate of the deceased any obligation due
them before the estate can finally be partitioned CHAPTER 3: JURIDICAL PERSONS
in favor of the heirs.
● The testator through an express provision in a Art. 44, NCC. The following are juridical persons:
will may disinherit any of his or her heirs under (1) The State and its political subdivisions;
any of the valid grounds provided by law, (2) Other corporations, institutions and entities
thereby, in effect, controlling the disposition of for public interest or purpose, created by law;
his properties even after death. their personality begins as soon as they have
● Any person who shows disrespect to the dead, been constituted according to law;
or wrongfully interferes with a funeral, shall be (3) Corporations, partnerships and associations
liable to the family of the deceased for damages, for private interest or purpose to which the
material and moral (Sta. Maria). law grants a juridical personality, separate
and distinct from that of each shareholder,
Art. 43, NCC. If there is a doubt, as between two or partner or member. (35a)
more persons who are called to succeed each other,
as to which of them died first, whoever alleges the Art. 45, NCC. Juridical persons mentioned in Nos. 1
death of one prior to the other, shall prove the same; and 2 of the preceding article are governed by the
in the absence of proof, it is presumed that they died laws creating or recognizing them.
31
Private corporations are regulated by laws of general Acquisition and Loss of Juridical Personality
application on the subject. 1. Public Juridical Person – acquires personality
from the moment they are constituted according
Partnerships and associations for private interest or to law.
purpose are governed by the provisions of this Code 2. Private Juridical Person – Begins to exist
concerning partnerships. (36 and 37a) from the moment a certificate of incorporation
is granted to it by the SEC.
Art. 46, NCC. Juridical persons may acquire and
possess property of all kinds, as well as incur Dissolution of Public Juridical Persons
obligations and bring civil or criminal actions, in 1. Article 47 refers to public corporations or
conformity with the laws and regulations of their associations.
organization. (38a) 2. How assets are to be distributed:
a) First apply the provisions of the law or
Art. 47, NCC. Upon the dissolution of corporations, charter creating them.
institutions and other entities for public interest or b) If there is no such provision, the assets will
purpose mentioned in No. 2 of article 44, their be for the benefit of the place which was
property and other assets shall be disposed of in already receiving the principal benefits
pursuance of law or the charter creating them. during the existence of the corporation or
association (Paras).
If nothing has been specified on this point, the
property and other assets shall be applied to similar Dissolution of Private Corporations
purposes for the benefit of the region, province, city The dissolution of private corporations is governed by
or municipality which during the existence of the the Corporation Code. With respect to corporations for
institution derived the principal benefits from the public interest or purposes created by a charter, their
same. (39a) dissolution shall be governed in accordance with the
provisions of their respective charters and in the
Juridical Person absence of any such provision, by the provision of the
A being of legal existence susceptible of rights and Corporation Code. The dissolution of a partnership is
obligations, or of being the subject of juridical relations. governed by Title IX, Chapter 3 of the Civil Code (Sta.
Maria).
Kinds of Juridical Persons
1. Public Juridical Person – acquires personality CITIZENSHIP AND DOMICILE
from the moment they are constituted according Note: Citizenship is already considered part of the
to law. Political Law Bar Exam. Domicile, on the other hand, was
a. The State and its Political Subdivisions discussed by Dean
(provinces, cities, municipalities,
barangays) Art. 48, NCC. The following are citizens of the
b. Public Corporations, GOCCs Philippines:
(1) Those who were citizens of the Philippines at
2. Private Juridical Person – Begins to exist the time of the adoption of the Constitution of
from the moment a certificate of incorporation the Philippines;
is granted to it by the SEC. (2) Those born in the Philippines of foreign
a. Private corporations – Those formed for parents who, before the adoption of said
some private purpose, benefit, aim or Constitution, had been elected to public office
end, as distinguished from public in the Philippines;
corporations which have for their (3) Those whose fathers are citizens of the
purpose the general good and welfare. Philippines;
b. Partnerships (4) Those whose mothers are citizens of the
c. Foundations Philippines and, upon reaching the age of
majority, elect Philippine citizenship;
Governing Laws (5) Those who are naturalized in accordance with
1. Public Corporations – By the law or charter law. (n)
creating them;
2. Private Corporations – The Corporation Code; Citizenship
3. Partnership & Associations for Private Citizenship is the status of being a citizen, or of owing
interest – By the Civil Code (2018 DEAN allegiance to a certain state for the privilege of being
Notes). under its protection.
Effects of Juridical Personality Nationality

1. It can acquire and dispose of all kinds of While citizenship is political in character, nationality
property. refers to a racial or ethnic relationship. This is the
2. It can sue and be sued. difference, as the two terms are known in such subjects
3. It can enter into contracts in the name of the as political science, social science, and sociology.
corporation (2018 DEAN Notes).
In the field however of Civil Law and Private
Rights of Juridical Personalities International Law, the two are possessed of the same
1. To acquire and possess property of all kinds. meaning, i.e., the meaning of CITIZENSHIP. Thus, when
2. To incur obligations. we say that successional rights depend on the national
3. To bring civil or criminal actions (Paras). law of the deceased, we really refer to the law of the
country of which he was a citizen at the moment of
death.
32
Who are citizens of the Philippines under the 1987 (a) The Republic of the Philippines has a
Constitution? defensive and/or offensive pact of
Under the 1987 Constitution, Art. IV, Section 1, we have alliance with the said foreign country;
the following: or
1. Those who are citizens of the Philippines at the (b) The said foreign country maintains
time of the adoption of this Constitution; armed forces on Philippine territory with
2. Those whose fathers or mothers are citizens of the consent of the Republic of the
the Philippines; Philippines: Provided, That the Filipino
3. Those born before Jan. 17, 1973, of Filipino citizen concerned, at the time of
mothers, who elect Philippine citizenship upon rendering said service, or acceptance of
reaching the age of majority; and said commission, and taking the oath of
4. Those who are naturalized in accordance with allegiance incident thereto, states that
law. (Art. IV, Sec. 1). he does so only in connection with his
service to said foreign country: And
Kinds of Filipino Citizens provided, finally, That any Filipino
1. Natural-born citizen - Those who are citizens citizen who is rendering service to, or is
of the Philippines from birth without having to commissioned in, the armed forces of a
perform any act to acquire or perfect their foreign Arts. 48-5197 country under
Philippine citizenship. (Art. III, Sec. 4, 1973 any of the circumstances mentioned in
Constitution). (This must be distinguished from paragraph (a) or (b), shall not be
the native-born citizen, one born in the country permitted to participate nor vote in any
of which he is a citizen. Hence, a child born to a election of the Republic of the
Filipino father in Germany is a natural-born, but Philippines during the period of his
not native-born citizen.) service to, or commission in, the armed
2. Naturalized citizens – Citizens who become forces of the said foreign country. Upon
such through judicial proceedings. discharge from the service of the said
3. Citizen by Election – Citizens who become foreign country, he shall be
such by exercising the option to elect a automatically entitled to the full
particular citizenship, usually within a enjoyment of his civil and political rights
reasonable time after reaching the age of as Filipino citizen;
majority. 5. By cancellation of the certificate of
naturalization;
ACQUISITION AND LOSS OF FILIPINO 6. By having been declared by competent authority
CITIZENSHIP a deserter of the Philippine armed forces in time
of war, unless subsequently, a plenary pardon
The law that governs the loss or reacquisition of or amnesty has been granted; and
citizenship is Commonwealth Act No. 63 as amended by 7. In the case of a woman, upon her marriage to a
Republic Act No. 106. foreigner if, by virtue of the laws in force in her
husband’s country, she acquires his nationality
MODES OF ACQUIRING CITIZENSHIP (Section 1, C.A. No. 63 as amended).
1. Jus Sanguinis – citizenship by blood wherever REACQUISITION OF CITIZENSHIP

he may be born;
2. Jus Soli – citizenship is determined by place of The grounds for the reacquisition of citizenship are as
birth; and follows:
3. Naturalization – artificial means (judicial or 1. By naturalization: Provided, That the applicant
administrative) by which a state adopts an alien possesses none of the disqualification
and gives him imprint and endowment of a prescribed in Section 4 of Commonwealth Act
citizen of that country. No. 473;
1. By repatriation of deserters of the Army, Navy
LOSS OF CITIZENSHIP or Air Corps: Provided, that a woman who lost
her citizenship by reason of her marriage to an
The grounds for the loss of citizenship are as follows: alien may be repatriated in accordance with the
1. By naturalization in a foreign country; provisions of Commonwealth Act No. 63, as
2. By express renunciation of citizenship; amended, after the termination of the marital
3. By subscribing to an oath of allegiance to status; and
support the constitution or laws of a foreign 2. By direct act of the Congress of the Philippines.
country upon attaining twenty-one years of age
or more: Provided, however, that a Filipino may NATURALIZATION: ITS QUALIFICATIONS AND
not divest himself of Philippine citizenship in any DISQUALIFICATIONS
manner while the Republic of the Philippines is
at war with any country; Art. 49, NCC. Naturalization and the loss and
4. By rendering service to, or accepting reacquisition of citizenship of the Philippines are
commission in, the armed forces of a foreign governed by special laws. (n)
country: Provided, That the rendering of service
to, or acceptance of such commission in, the Naturalization, Defined
armed forces of a foreign country, and the Naturalization is the process of acquiring the citizenship
taking of an oath of allegiance incident thereto, of another country.
with the consent of the Republic of the (a) In the strict sense, it is a judicial process, where
Philippines, shall not divest a Filipino of his formalities of the law have to be complied with,
Philippine citizenship if either of the following including a judicial hearing and approval of the
circumstances is present: petition.
33
(b) In the loose and broad sense, it may mean not (c) Polygamists or believers in the practice of
only the judicial process but also the acquisition polygamy;
of another citizenship by such acts as marriage (d) Persons convicted of crimes involving moral
to a citizen, and the exercise of the option to turpitude;
elect a particular citizenship. (e) Persons suffering from mental alienation or
incurable contagious diseases;
QUALIFICATIONS FOR NATURALIZATION (f) Persons who, during the period of their
residence in the Philippines, have not mingled
(1) The petitioner must not be less than 21 socially with the Filipinos, or who have not
(majority age today is 18) years of age on the evinced a sincere desire to learn and embrace
date of the hearing of the petition; all customs, traditions, and ideals of the
(2) He must have, as a rule, resided in the Filipinos;
Philippines for a continuous period of not less (g) Citizens or subjects of nations with whom (the
than ten years; (h) United States and) the Philippines are at war,
(3) He must be of good moral character, and believe during the period of war; and
in the principles underlying the Philippine (i) Citizens or subjects of a foreign country other
Constitution, and must have conducted himself than the United States, whose laws do not grant
in a proper and irreproachable manner during Filipinos the right to become naturalized citizens
the entire period of his residence in the or subject thereof.
Philippines in his relation with the constituted
government as well as with the community in STEPS IN NATURALIZATION PROCEEDINGS
which he is living;
(4) He must own real estate in the Philippines worth 1) A declaration of intention to become a Filipino
not less than P5,000, Philippine currency, or citizen must first be filed, unless the applicant
must have some lucrative trade, profession, or is exempted from this requirement. (Secs. 5
lawful occupation; and 6, Commonwealth Act 473).
(5) He must be able to speak and write English or 2) The petition for naturalization must then be
Spanish and any one of the principal Philippine filed. (Sec. 8, Commonwealth Act 473).
languages; 3) The petition will then be heard. (Sec. 9,
(6) He must have enrolled his minor children of Commonwealth Act 473, as amended).
school age in any of the public schools or private 4) If the petition is approved, there will be a
schools recognized by the Bureau of Private rehearing two years after the promulgation of
Schools where Philippine history, government, the judgment awarding naturalization. (Sec. 1,
and civics are taught or prescribed as part of the Republic Act 530).
school curriculum during the entire period of the 5) The last step will be the taking of the oath of
residence required of him, prior to the hearing allegiance to support and defend the
of his petition for naturalization as citizen. (Sec. Constitution and the laws of the Philippines.
2, Commonwealth Act 473, as amended). (Sec. 11, Commonwealth Act 473, as
amended).
Note: The residence requirement is REDUCED to
five years in any of the following cases: DOMICILE
a) If the applicant has honorably held office
under the Government of the Philippines or Domicile is that place where a person has certain
under that of any of the provinces, cities, settled, fixed, legal relations because:
municipalities, or political subdivisions (a) it is assigned to him by the law AT THE MOMENT
thereof; OF BIRTH (domicile of origin); or
b) If he has established a new industry or (b) it is assigned to him also by the law AFTER
introduced a useful invention in the BIRTH on account of a legal disability caused for
Philippines; instance by minority, insanity, or marriage in
c) If he is married to a Filipino woman; the case of a woman (constructive domicile or
d) If he had been engaged as a teacher in a domicile by operation of law); or
public or recognized private school not (c) because he has his home there — that to which
established for the exclusive instruction of whenever he is absent, he intends to return
children of persons of a particular (domicile of choice).
nationality or race in any of the branches of
education or industry for a period of two Domicile is the place of a person’s habitual residence
years; (Ong Huan Tin vs. Republic).
e) If he was born in the Philippines. (Sec. 3,
Commonwealth Act 473, as amended). Domicile Distinguished from Residence
The principal distinction is this: while residence is more
DISQUALIFICATIONS or less temporary, domicile is more or less permanent.
Secondly, while a person can have several places of
The following cannot be naturalized as Philippine residence, he can have generally only one domicile. As
citizens: a matter of fact, under the Civil Code, domicile carries a
(a) Persons opposed to organized government or note of habituality. (Art. 50).
affiliated with any association or group of
persons who uphold and teach doctrines Article 50, NCC. For the exercise of civil rights and
opposing all organized governments; the fulfillment of civil obligations, the domicile of
(b) Persons defending or teaching the necessity or natural persons is the place of their habitual
propriety of violence, personal assault, or residence. (40a)
assassination for the success and predominance
of their ideas;
34
Article. 51, NCC. When the law creating or

recognizing them, or any other provision does not fix The SC ruled that Marcos satisfied the residency
the domicile of juridical persons, the same shall be requirement mandated by Article VI, Sec. 6 of the 1987
understood to be the place where their legal Constitution. It is the fact of residence, not a statement
representation is established or where they exercise in a certificate of candidacy, which ought to be decisive
their principal functions. in determining whether or not an individual has satisfied
the constitution‘s residency qualification requirement
Domicile Residence (as intended by the framers of the constitution). When
As to Definition she got married to the late President, it cannot be
Denotes a fixed Used to indicate a place argued that she lost her domicile of origin by operation
permanent residence to of abode, whether of law. It is the husband‘s right to transfer residences to
which when absent, one permanent or wherever he might see fit to raise a family. Thus, the
has the intention of temporary. relocation does not mean or intend to lose the wife‘s
returning. domicile of origin.
As to Number
A man can have but one A man may have What is the difference between residence and domicile?
domicile for one and the numerous places of Article 50 of the Civil Code decrees that "for the exercise
same purpose at any residence. of civil rights and the fulfillment of civil obligations, the
time. domicile of natural persons is their place of habitual
As to Intention to Remain residence." In Ong vs. Republic, the SC took the concept
It is residence coupled No length of residence of domicile to mean an individual's "permanent home",
with the intention to without intention of "a place to which, whenever absent for business or for
remain for an unlimited remaining will constitute pleasure, one intends to return, and depends on facts
and circumstances in the sense that they disclose
time. domicile.
intent." Domicile includes the twin elements of "the fact
of residing or physical presence in a fixed place" and
Elements of Domicile:
animus manendi, or the intention of returning there
1. Physical presence in a fixed place;
permanently. Residence, in its ordinary conception,
2. Intention to remain permanently in said place
implies the factual relationship of an individual to a
(animus manendi) (Romualdez-Marcos vs.
certain place. It is the physical presence of a person in
COMELEC, 1995)
a given area, community or country. The essential
distinction between residence and domicile in law is that
Kinds of Domicile:
residence involves the intent to leave when the purpose
1. Domicile of origin – Acquired by every person
for which the resident has taken up his abode ends. One
at birth. It is usually the place where the child’s
may seek a place for purposes such as pleasure,
parents reside and continues until the same is
business, or health. If a person's intent is to remain, it
abandoned by the acquisition of a new domicile.
becomes his domicile; if his intent is to leave as soon as
2. Domicile of choice - That which is chosen by
his purpose is established it is residence. It is thus, quite
a person as his more or less permanent home;
perfectly normal for an individual to have different
that to which, whenever he is absent, he
residences in various places. However, a person can
intends to return.
only have a single domicile, unless, for various reasons,
3. Domicile by operation of law – Attributes to
he successfully abandons his domicile in favor of
a person a domicile independent of his own
another domicile of choice.
intention or actual residence, ordinarily
resulting from legal domestic relations, as that
of the wife arising from marriage, or the relation FAYPON VS QUIRINO
of a parent and a child. G.R. No. L-7068, December 22, 1954
Rules for Determining the Domicile of Juridical In Faypon vs. Quirino, 96 Phil. 294, the Supreme Court
Persons: ruled that the absence from residence to pursue studies
(a) Get the domicile provided for in the law creating or practice a profession or registration as a voter other
or recognizing them or in their articles of than in a place where one is elected does not constitute
agreement. loss of residence. So settled is the concept of domicile
(b) If not provided for, get the place: in our election law that in these and other election law
1) Where their legal representation is cases, this Court has stated that the mere absence of
established. an individual from his permanent residence without the
2) Or where they exercise their principal intention to abandon it does not result in a loss or
functions. change of domicile.
FOR GREEN CARD STATUS

ROMUALDEZ-MARCOS VS. COMELEC
G.R. No. 119976 September 18, 1995
UGDORACION VS COMELEC
Imelda Romualdez-Marcos filed her Certificate of 552 SCRA 231
Candidacy for the position of Representative of the First
District of Leyte. Cirilo Roy Montejo, incumbent of and A Filipino citizen’s acquisition of a permanent resident
candidate for the same position, filed a petition for status abroad constitutes an abandonment of his
cancellation and disqualification with the COMELEC, domicile and residence in the Philippines. The “green
alleging that Marcos did not meet the one-year card” status in the U.S.A. is a renunciation of one‟s
residency requirement. Marcos then filed an status as a resident of the Philippines. Residence in
Amended/Corrected Certificate of Candidacy claiming contemplation of election laws is synonymous to
that her error in the first certificate was the result of an domicile; Domicile is classified into (1.) domicile of
honest misrepresentation and that she has always origin, (2.) domicile of choice, and (3.) domicile by
maintained Tacloban City as her domicile or residence. operation of law. In a controversy such as the one at
35
bench, we are guided by three basic rules, namely: (1.) It is an act by which a man and a woman unite for life,
a man must have a residence or domicile somewhere; with the intent to discharge towards society and one
(2.) domicile, once established, remains until a new one another those duties which result from the relation of
is validly acquired; and (3.) a man can have but one husband and wife. (Schouler, Law of Domestic
residence or domicile at any given time. Relationship) It is the civil status of one man and one
woman, legally united for life, with rights and duties,
PART 2: LAW ON FAMILY RELATIONS which, for the establishment of families and the
THE FAMILY CODE OF THE PHILIPPINES multiplication and education of the species, are or from
time to time may thereafter be, assigned by law to
Brief History matrimony.
The New Famliy Code of the Philippines was signed into
law by Pres. Aquino during the new freedom The State is interested in marriage and cannot be
government as EO 209, amended by EO 227 on July 17, annulled for failure of consideration simply because the
1987. EO 209 was approved on July 6, 1987. reason for marriage did not materialize, which is
normally true for regular contracts. In fact, RA 6955 or
The Civil Code Revision Committee of the UP Law Centre “The Act Prohibiting Mail Order Bride” was enacted to
(Justice JBL Reyes [Chairman]; Justice Ricardo Puno protect the importance of marriage.
[Co-Chairman], Justice Eduardo Caguioa, and Justice
Flerida Ruth Romero among others) drafted the Family STATE POLICY ON MARRIAGE - Marriage as an
Code finished the draft on May 4, 1987, during the inviolable social institution
freedom government, that is why it was Pres. Aquino Under the Constitution, “marriage, as an inviolable
who converted the draft into a law. social institution, is the foundation of the family and
shall be protected by the State” (1987 Constitution, Art.
Effectivity of the Family Code XV, Sec. 2).
Art. 257 of the Family Code provides that it should take
effect one (1) year after its publication in any Marriage is an institution in which the community is
Newspaper of General Circulation. The last publication deeply interested. The State has surrounded it with
came out on August 4, 1987. safeguards to maintain its purity, continuity and
permanence. The security and stability of the State are
Thus, the Code took effect on August 3, 1988. Since largely dependent on it. It is in the interest and duty of
1987 is a leap year, the Supreme Court officially each member of the community to prevent the bringing
declared that the Family Code took effect on August 3, about of a condition that would shake its foundation and
1988. lead to its destruction. The incidents of the status are
governed by law, not by the will of the parties (Beso v.
TITLE I - MARRIAGE Daguman, A.M. No. MTJ-99-1211, January 28, 2000).
CHAPTER 1 – REQUISITES OF MARRIAGE
DISCRIMINATORY POLICY AGAINST MARRIAGE
Marriage cannot be restricted by discriminatory policies
Article 1, FC: Marriage is a special contract of
of individuals or corporations. Disqualifying married
permanent union between a man and a woman entered
women from work is illegal. However, prohibition of
into in accordance with law for the establishment of
marriage of employees between opposing companies
conjugal and family life. It is the foundation of the family
which may prejudice the company is allowed.
and an inviolable social institution whose nature,
consequences, and incidents are governed by law and
PT & T vs NLRC
not subject to stipulation, except that marriage
PT&T as a provision in its employment contract (CBA)
settlements may fix the property relations during the
that they shouldn't get married. “You are employed
marriage within the limits provided by this Code. (52a)
because you are single and you should stay single”. This
was assailed as it was discriminatory to marriage. SC
PROTECTED BY LAW held that the provision is void. It is the duty of the State
Marriage is protected and cherished by law and to protect the sanctity of marriage.
recognized as a fundamental human right under
international law. All states must protect it regardless of
STAR PAPER CORPORATION VS. SIMBOL
ideology.
G.R.No. 164774, April 12, 2006
No less than the 1987 Constitution (Sec. 2, Article XV)
Several couples, including Simbol, met, started their
recognizes this fact when it stated: Marriage, as an
relationships, married, and were forced to resign during
inviolable social institution, is the foundation of the
the course of their employment pursuant to a company
family and shall be protected by the State.
policy. Respondents filed a complaint against petitioner
for unfair labor practices which was dismissed by the
Marriage is not just a contract but also a creation
Labor Arbiter who held that the company policy was a
of status
valid exercise of management prerogative. Did the
Marriage creates a social status or relation between the
questioned policy violate the rights of the workers? YES.
contracting parties in which not only they, but the State
The case at bar involves Article 136 of the Labor Code
as well, are interested.
which provides “it shall be unlawful for an employer to
require as a condition of employment or continuation of
Why? Because if you enter into a marriage, your status
employment that a woman employee shall not get
is shifted from being single to being married. It creates
married, or to stipulate expressly or tacitly that upon
a status.
getting married, a woman employee shall be deemed
resigned or separated , or to actually dismiss, discharge
What are the two aspects of marriage?
, discriminate or otherwise prejudice a woman employee
Marriage has two distinct aspects. It may be understood
merely by reason of her marriage.” The company policy
either as an act or as a status.
of Star Paper, to be upheld, must clearly establish the
36
requirement of reasonableness. In the case at bar, there Marriage vis-à-vis Ordinary Contracts
was no reasonable business necessity. Petitioners failed MARRIAGE ORDINARY
to show how the marriage of Simbol, then a Sheeting CONTRACTS
Machine Operator, to Alma Dayrit, then an employee of Nature a. Special Merely a
the Repacking Section, could be detrimental to its contract contract
business operations. The questioned policy may not b. Sui generis
facially violate Article 136 of the Labor Code but it c. Social
creates a disproportionate effect and under the institution
disparate impact theory, the only way it could pass Governing Law Law on Marriage Law on
judicial scrutiny is a showing that it is reasonable despite (Family Code) Contracts (Civil
the discriminatory, albeit disproportionate, effect. Code)
Lastly, the absence of a statute expressly prohibiting Violability Inviolable Social Not inviolable
marital discrimination in our jurisdiction cannot benefit Institution
the petitioners. The protection given to labor in our Parties Two Parties Any number
jurisdiction is vast and extensive that we cannot (Man and (Gender is
prudently draw inferences from the legislature's silence Woman) Immaterial)
that married persons are not protected under our Termination Death or Can be dissolved
Constitution and declare valid a policy based on a Annulment through express
prejudice or stereotype. (never by provision of the
mutual law, through
DUNCAN V. GLAXO agreement) expiration of the
G.R. NO. 162994, September 17, 2004 term for which
the contract was
Pedro Tecson, an employee of Glaxo, married his entered into, or
girlfriend who was employed by Glaxo’s competitor. He by mutual
was then repeatedly warned by Glaxo about the conflict agreement by
of interest due to his relationship with his wife. However, the parties
he failed to meet the demands of his employer; hence, concerned.
he was transferred to another location. Tecson argued Freedom to GR: Not subject Yes, as long as
that such policy is an absolute prohibition against Stipulate to stipulation it is not contrary
marriage. The Supreme Court ruled that such policy is a to law, morals,
valid exercise of management prerogative. The XPN: Marriage good customs,
prohibition against personal or marital relationships with Settlement and public
employees of competitor companies upon Glaxo’s policy.
employees is reasonable under the circumstances Capacity to Legal capacity is Minors may
because relationships of that nature might compromise Contract required contract through
the interests of the company. their parents or
guardians or in
MARRIAGE AS A SPECIAL CONTRACT some instances,
Marriage is a special contract because of the permanent by themselves.
union of the couple. The nature, consequences, and
incidents of the marriage are governed by law, and not The contracting parties must be a man and a
up to the couple. Therefore, there can be no woman.
compromise nor can any of its terms by subject to the DEAN: If you read the Civil Code of the Philippines, it
will of the couple EXCEPT the type of economic regime did not mention there that the contract must be between
their marriage will have. a man and a woman. Why is it being emphasized now
in the Family Code? It is because of the development of
The economic regimes may be: separation of property science which makes it easy for a man to look like a
regime, conjugal partnership of gains, and absolute woman. In the 1950s it was unheard of to make a man
community of property regime (default regime). into a woman through sex change. In order to avoid this
confusion, the law makes it very clear that the
DEAN: It is a special contract between a man and a contracting parties must be a man and a woman. This is
woman entered into in accordance with law for the not only found in the definition of marriage under Article
establishment of conjugal family life. 1 but also in Article 2. This is also repeated in Article 5.
For three times, this was repeated by the Family Code.
Is there any difference between conjugal life and
family life? LAW GOVERNING VALIDITY OF MARRIAGE
Conjugal life refers to the relationship of the husband
and wife. Family life refers not only to the relationship The validity of marriage is determined by the law in
between the husband and the wife but also including force at the time of the celebration of marriage. (Castillo
their children as a family. v. Lea P. De Leon-Castillo, G.R. No. 189607, April 18,
2016)
The family is considered as a violable social institution
because it is the foundation of the family whose nature, A marriage that is void at the time of its celebration
consequences and incidents are governed by law and cannot be validated by a subsequent law. Thus, a
not subject to stipulation. marriage between stepbrother and stepsister before the
effectivity of the Family Code is void and shall remain to
Marriage settlement or Pre-nuptial agreement be so even if such kind of marriage is no longer
The only aspect of marriage where the parties may prohibited by the new law. The new Family Code does
agree as to what type of property regime will govern not affect the void nature of such marriage because it is
them during the marriage but in all other aspects, they governed by the law prevailing at the time of its
are not free to stipulate. celebration.
37
Rommel Silverio filed for a petition for a change of his

There is however, one instance in the present law, first name and sex in his birth certificate. He argued that
where a marriage may be declared void even if it was although he was born male, he feels, thinks, and acts as
considered valid at the time of its celebration. This is the a female; thus, he underwent a sex reassignment
void marriage on the ground of psychological incapacity surgery. The Republic opposed such on the ground there
under Article 36 of the Family Code. Under the Civil is no law allowing a change of entry in the birth
Code, psychological incapacity of a party is not a ground certificate due to sex alteration. The Supreme Court
to declare a marriage void but it is now a ground under ruled against Silverio. First, the remedy and procedure
the Family Code. This provision of the Family Code is under RA 9048 which governs a change of first name
retroactive such that it applies eve to those marriages are primarily administrative, not judicial. Hence, he
solemnized under the Civil Code. Under RA 8533, should have filed it before the local civil registrar
amending Article 39, there is no more prescriptive concerned, not before the RTC. Moreso, it does not
period for this action to declare the marriage void on the sanction a change of first name on the account of a sex
ground of psychological incapacity even if the marriage reassignment surgery.
was solemnized prior to the effectivity of the Family
Code. (Monteclar, Compendium on the Law on Persons Second, there is no special law in the Philippines which
and Family Relations) governs sex reassignment and its effects. Moreso, under
the Civil Register Law, a birth certificate is a historical
CASTILLO V. LEA P. DE LEON-CASTILLO record of the facts as they existed at the time of birth.
G.R. No. 189607, April 18, 2016 Thus, the sex of a person is determined at birth, visually
done by the birth attendant by examining the genitals
DEAN: Lea P. de Leon Castillo got married in the 1970s of the infant. Considering that there is no law legally
and her first marriage was null and void. She found recognizing sex reassignment, the determination of a
another man and married him. At the time she married person's sex made at the time of his or her birth, if not
the previous and subsequent husband, the prevailing attended by error, is immutable.
law provides that a void marriage does not produce a
legal effect – it is as if you have not married at all, thus, RULE ON INTERSEX
you are free to marry again. Now in the Family Code,
however, if the first marriage was void, you cannot REPUBLIC VS. CAGANDAHAN
contract a second marriage unless the first marriage has G.R. No. 166676, Sept. 12, 2008.
been judicially declared void.
DOCTRINE: Where the person is biologically or
Lea Castillo was prosecuted for bigamy. Is she guilty of naturally intersex, the determining factor in his gender
bigamy? classification would be what the individual, having
reached the age of majority, with good reason thinks of
Since she married her husband under the old law and his/her sex. Sexual development in cases of intersex
married her second husband also under the old Law, the persons makes the gender classification at birth
prevailing law is the old law in determining WON her inconclusive. It is at maturity that the gender of such
marriage is valid. It is obvious that at the time she persons, like respondent, is fixed.
contracted the second marriage, she was not guilty of
bigamy under the old law. Jennifer Cagandahan filed for a Petition for Correction of
Entries in Birth Certificate, praying that her sex be
Had she married when the Family Code took effect, that changed from female to male; and her first name from
would have been another story. If she got married to Jennifer to Jeff. She alleged that although she was
her first husband under the Old Law and it is clearly null registered as female, she was, in fact, an intersex, who
and void and she married again under the Family Code, possess both male and female reproductive organs. The
she has to follow the Family Code, which provides that Supreme Court ruled that where the person is
she has to obtain a decree first before contracting the biologically or naturally intersex, the determining factor
second marriage, otherwise, she will be held guilty of in his gender classification would be what the individual,
bigamy. having reached the age of majority, thinks of his/her
sex. Sexual development in cases of intersex persons
SEX CHANGE AND MARRIAGE makes the gender classification at birth inconclusive;
Marriage is only between a man and a woman. rather, it is at maturity that the gender of such persons,
like respondent, is fixed.
Note: With regard to same sex marriage, there is no
need to amend the Constitution, only the Family Code. REQUISITES FOR A VALID MARRIAGE
EFFECT OF SEX CHANGE ESSENTIAL REQUISITES

1. Legal Capacity
SILVERIO V. REPUBLIC 2. Consent Freely Given
G.R. No. 174689, October 22, 2007
FORMAL REQUISITES
DOCTRINE: Sex reassignment surgery or sex change 1. Authority of the Solemnizing Officer
does not make a man into a woman. A petition for 2. Valid Marriage License
correction of entry in the birth certificate of a person 3. Marriage Ceremony
who underwent sex reassignment surgery praying that
the entry on sex in his birth certificate be changed from ARTICLES 2 & 5 – ESSENTIAL REQUISITES
male to femal and that his name Rommel Jacinto Dantes
Silverio be changed to Mely Silverio has no basis in law. Art. 2, FC. No marriage shall be valid, unless these
There is no law that allows the change of entry in the essential requisites are present:
birth certificate as to sex on the ground of sex (1) Legal capacity of the contracting parties who must
reassignment. be a male and a female; and
38
(2) Consent freely given in the presence of the An example of absence of consent or total absence of
solemnizing officer. (53a) consent is a marriage in jest or one meant as a joke and
you don’t intend to be bound by it.
Art. 5, FC. Any male or female of the age of eighteen
years or upwards not under any of the impediments REPUBLIC V. ALBIOS
mentioned in Articles 37 and 38, may contract marriage. G.R. NO. 198780, October 16, 2013
(54a)
Facts: A Filipino woman contracted with an American
(1) Legal Capacity of the Contracting Parties man to marry her so that she will acquire American
citizenship. According to Albios, she even paid the
1. Majority Age, 18 years old and above as per American $2000 for that transaction, hence, they got
RA 6809; married in the Philippines. The marriage was in
2. Must be between a man and a woman accordance with our law; they applied for a marriage
3. No impediments under Art. 37 and 38 license and etc. After they got married, the American
a. Incestuous marriage; returned to the USA with the promise to petition her for
b. Marriage against public policy citizenship there. When the American got back to the
(consanguinity; affinity) USA, the American did not any more communicate with
her. Albios later on filed a case to nullify her marriage
DEAN: Even if you are 18 years old already, but if you on the ground that it was just a marriage in jest and
are marrying someone of the same sex or even if you therefore there was no valid consent.
are already 18 years of age but if you are marrying one
who has a legal impediment under article 37 and under Ruling: It is not a marriage in jest when she married
article 38, it is still not a valid marriage because you the American man. She really intended to enter into
have no legal capacity to marry. marriage otherwise she cannot become an American.
She married with the intention to become an American
Article 37 is about impediments on incestuous citizen. The motive does not affect the validity of the
marriages, marriages between descendants and marriage. A marriage entered into for the purpose of
descendants, between brothers and sisters of full or half enabling the Filipino woman to acquire the American
blood. On the other hand, Article 38 refers to marriages citizenship of the man for a consideration of $2000 is
to against public policy like if you are marrying your first not a marriage in jest as there was a valid consent.
degree cousin, a marriage between step brother, a
marriage between step parents and step children For consent to be valid, it must be (1) freely given and
between adopting parents adapting children etc. These (2) made in the presence of a solemnizing officer. It
are against public policy. must also be conscious or intelligent, in that the parties
must be capable of intelligently understanding the
Bar Question (1989): Paul, a 17-year old Filipino and nature of, and both the beneficial or unfavorable
a permanent resident in the US, married Jean, a 16 year consequences of their act. In this case, there was real
old American in Las Vegas, Nevada. The parents of both consent because it was not vitiated nor rendered
gave their consent to the marriage. The marriage is defective by any vice of consent. Their consent was also
valid in Nevada. Is it also valid in the Philippines? Give conscious and intelligent as they understood the nature
your reasons. and the beneficial and inconvenient consequences of
their marriage. Their consent was freely given is best
Answer: No, the marriage is not valid. Under the FC, evidenced by their conscious purpose of acquiring
the law requires that the contracting parties are at least American citizenship through marriage. Such plainly
18 years of age. However, if the marriage took place demonstrates that they willingly and deliberately
before the effectivity of the FC, the marriage will be valid contracted the marriage.
since under the provisions of the NCC, a marriage valid
in the place of celebration is valid in the Philippines DEAN: Actually here the Supreme Court was saying
except bigamous, polygamous, and incestuous that, you are making a mockery of our law on marriage,
marriages as determined by Philippine law. The you should suffer the consequences
minimum age under the old law is 16 for the male and
14 for the female. ARTICLES 3 & 6 – FORMAL REQUISITES
Silverio v. Republic Art. 3, FC. The formal requisites of marriage are:

Same-sex marriage is not possible. A person who (1) Authority of the solemnizing officer;
underwent sex change is still a man in the eyes of our (2) A valid marriage license except in the cases
law. The petition to amend his birth certificate is provided for in Chapter 2 of this Title; and
untenable. (3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
(2) Consent freely and voluntarily given solemnizing officer and their personal declaration
that they take each other as husband and wife in
The parties must be physically present and give their the presence of not less than two witnesses of legal
consent in front of a solemnizing officer. age. (53a, 55a)
There must be no coercion, force or undue influence. If Art. 6, FC. No prescribed form or religious rite for the
the consent is vitiated, it is voidable under Art. 45 which solemnization of the marriage is required. It shall be
means valid until it is annulled. If there is total absence necessary, however, for the contracting parties to
of consent, the marriage is void. appear personally before the solemnizing officer and
declare in the presence of not less than two witnesses
of legal age that they take each other as husband and
wife. This declaration shall be contained in the marriage
Marriage in Jest certificate which shall be signed by the contracting
39
parties and their witnesses and attested by the certification from the LCR that no such license
solemnizing officer. was issued.
In case of a marriage in articulo mortis, when the party Alcantara v. Alcantara

at the point of death is unable to sign the marriage To be considered void on the ground of absence of a
certificate, it shall be sufficient for one of the witnesses marriage license, the law requires that the absence of
to the marriage to write the name of said party, which such marriage license must be apparent on the
fact shall be attested by the solemnizing officer. (55a) marriage contract or at the very least, supported by a
certification from the local civil registrar that no such
Formal Requisites: marriage license was issued to the parties.
1. Authority of the solemnizing officer
2. Valid marriage license Sevilla v. Cardenas
3. Marriage ceremony In case of a missing marriage license, the Local Civil
Registrar must be sure it is lost.
(1) Authority of the Solemnizing officer
Principle: A fake marriage license amounts to
The Solemnizing officer is essential. The person who absence of said license which renders the
solemnizes the marriage should be authorized to marriage void.
solemnize the marriage. He must be among those
mentioned in Article 7 of the Family Code. Otherwise, SYED AZHAR ABBAS V. GLORIA GO ABBAS
the marriage will be void. G.R. No. 18 January 30, 2013
General Rule: If the solemnizing officer has no FACTS: Gloria Abbas is the land lady of a boarding
authority then the marriage is void. house. There was an Arabian student studying in Manila
living in her boarding house. They got married.
Exception: If one or both of the parties believed in However, after the marriage, the middle-eastern man
good faith that the solemnizing officer has the authority wanted to get out of the marriage contending that he
to do so. did not personally apply for a marriage license. He went
to the lawyer who found out that the marriage license
DEAN: Article 35 paragraph 2 states that parties who presented - since it was Gloria who processed the
believe in good faith that the person who solemnized the marriage license - was secured from the local civil
marriage is authorized to solemnize marriage even registrar of Carmona Cavite and bears a number of
though he is not, the marriage becomes valid. This is the 9969967. It was found out that license 9969967 was not
only part in the entire family code where you can find issued to Syed Abbas and Gloria Go but to another
good faith that could validate a void marriage. person named Arlando Gilatado and Myrna Dinolanagan.
The local civil registrar of Carmona Cavite testified that
(2) Valid Marriage License the license was not issued to them but it was issued to
another person and that he never issued any license to
General Rule Syed Abbas and Gloria Go Abbas.
Absence of a valid marriage license renders the
marriage void. RULING: The Local civil registrar of Carmona, Cavite
issued a license but to another person, thus the
Exception / Instances where marriage license is marriage of the parties is null and void for lack of a valid
not needed marriage license.
1. Marriage under Articulo Mortis;
2. Marriage in a far and remote place; SALLY GO BANGAYAN V. BENJAMIN BANGAYAN
3. Marriages between Muslims or marriage between G.R. No. 201061, July3, 2013
members of the ethnic cultural communities; and
4. Ratification of marital cohabitation (which means a NOTE: Reiteration. The license was issued to another
marriage between two persons who have already couple and they just copied it. The marriage is void. To
been living together for at least 5 years). be considered void on the ground of an absence of a
marriage license, the law requires that the absence of
A marriage license is an essential requisite because it such must be apparent on the marriage contract or
is through this that the State intervenes in the supported by a certification from the local civil registrar
marriage. It is through the marriage license that the that no such marriage license was issued to the parties.
State determines whether there are impediments in the
marriage or not. Hence, absence of a marriage license On September 10, 1973, Benjamin Bangayan married
renders the marriage void. Azucena Alegre. In 1979, Benjamin had a romantic
relationship with Sally Go-Bangayan. In 1982, Benjamin
Marriage licenses are issued by the civil registrar of the and Sally lived together as husband and wife. On March
residential place of any of the parties 10 days after 7, 1982, Sally and Benjamin signed a purported
application and is valid for 120 days anywhere in the marriage contract to appease her father who was
Philippines. If it was issued by the Local Civil Registrar against the relationship. The relationship between Sally
of neither of the place where the parties reside. It is and Benjamin ended in 1994 when the former went to
just an irregularity. Canada with their children. Sally filed criminal actions
for bigamy and falsification of public documents against
Any irregularities in the license may not render Benjamin, using the simulated marriage contract as
marriage void as long as it is not regarding legal evidence. Benjamin, in turn, filed a petition for
capacity. If the license is fake, the marriage is void. declaration of a non-existent marriage or declaration of
The issuance should be before the marriage. nullity of marriage before the trial court on the ground
Principle: The absence should be apparent on the that his marriage to Sally was bigamous and that it
marriage contract or at least, supported by a lacked the required marriage license).
40
Being that the ceremony held on Dec. 28, 1966 was the
The Supreme Court ruled that the marriage between only marriage ceremony between the parties and this
Benjamin and Sally null and void ab initio and, at the was not solemnized pursuant to any ratifying religious
same time, non-existent. Under Article 35 of the Family rite, practice or regulation but a civil one officiated by
Code, a marriage solemnized without a license, except the mayor, this marriage does not fall under the
those covered by Article 34 where no license is purview of Article 77 of the Civil Code.
necessary, “shall be void from the beginning.” In this
case, the marriage between Benjamin and Sally was (3) Marriage Ceremony
solemnized without a license. It was duly established
that no marriage license was issued to them. The case Absence of a marriage ceremony renders a marriage
clearly falls under Section 3 of Article 35 which made void. There is no prescribed form in the solemnity of
their marriage void ab initio. celebrating marriage. However, Art. 6 only imposes the
minimum requirement
Principle: A duly issued marriage license must
exist by the time the marriage is celebrated. A Requisites
license issued after marriage does not cure the 1. In a presence of a authorized solemnizing
invalidity of the marriage. officer,
2. In the presence of 2 witnesses of legal age;
ARANEZ VS OCCIANO and
AM No. MTJ-02-1390, April 11,2002 3. Declare to the solemnizing officer that you take
each other as man and wife.
A widower decided to marry again. He found a girl
willing to marry him. As he was already old, he did not Marriage by Proxy
want to march. So, he contacted a friend Judge to Marriage by proxy is not valid. In marriage by proxy
solemnize the marriage. On the wedding day, the judge there is absence of consent given in the presence of the
of another area (outside of his jurisdiction) went there. solemnizing officer; there is absence of a marriage
A marriage conducted by a Judge of different area is ceremony; and there is no personal appearance of the
still valid. When the Judge went there, he saw that parties which are essential.
there were many people as the reception is also there.
He asked for the marriage license. The widower said Bar Question (1973): Is marriage by proxy, whether
that the Local Civil Registrar is on leave although they in the Philippines or abroad valid? Explain.
already filed for the license. The Judge accepted but
will not register the marriage until after the license is Answer: If the marriage by proxy is celebrated in the
issued. A week after, the license was issued and Philippines, it is void because of non-compliance with
attached to the marriage contract but it was dated on the formal but essential requisite of marriage ceremony
the same day it was issued, which was already one as prescribed in Article 6 of the FC. Accordingly, it shall
week after the wedding. The validity of the marriage be necessary for the contracting parties to appear
was questioned. SC ruled the marriage as void for lack personally before the solemnizing officer and declare in
of marriage license. the presence of not less than two witnesses of legal age
that they take each other as husband and wife. It is
Principle: However, simply forgetting to bring the obvious that marriage by proxy is not allowed under this
marriage license does not affect the validity of codal provision.
the marriage.
However, if the marriage by proxy is celebrated abroad,
Article 26 of the FC is applicable. All marriages
COSCA V. PALAYPAYON
solemnized outside the Philippines, in accordance with
55 SCAD 759, 237 SCRA 249
the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid
The marriage license was not shown during the wedding
in this country, except those prohibited under Articles
day as the parties forgot to bring it due to excitement.
35 (1), (4), (5) and (6), 36, 37, and 38 of the FC. It is
The wedding occurred with the condition that the license
clear that marriages by proxy fall within the purview of
should be brought after and immediately be attached to
the general rule and not within the purview of the
the marriage contract, which the parties did. The court
exceptions.
said it’s valid. SC said if there was already a license
issued but only that the parties were not able to bring it
Common Law Marriage
and show it to the solemnizing officer at the time of the
A common Law marriage is recognized in the UK and US
marriage, the marriage would still be valid. They can
where a man and a woman who have been living
show it to the solemnizing officer after the marriage and
together for quite a number of years is considered
that it was issued in fact before the marriage.
married. Such marriage is not recognized in the
Philippines. We do not have common law marriage
Principle: The exemption from the requirement of because one of the formal requisites required here it
a marriage license under Article 77 of the Civil that there should be a marriage ceremony.
Code refers to a religious ratification of a civil
wedding. A religious ratification of a civil wedding Annotation on Annulment of Marriage by Judge
presupposes that there was already a previous Consent need not be expressed verbally.
valid civil wedding done. Contemporaneous action from both parties is enough.
Thus, failure of solemnizing officer to ask if they take
Salgado v. Anson (2016) one another as husband and wife is not a ground for
The exemption from the requirement of a marriage annulment. A declaration by word of mouth of what the
license under Article 77 of the Civil Code refers to a parties had already stated in writing would be a mere
religious ratification of a civil wedding. It presupposes repetition. Omission is not a fatal defect.
that there was already a civil wedding done and the
parties merely ratifies it with a religious ceremony.
41
Madriejo v. De Leon A marriage of a party below 18 years old is void

A marriage certificate is neither an essential nor formal by absence of legal capacity. See discussion
requisite of marriage. Failure to sign a marriage under Article 2 and 5
certificate does not render a marriage void.
The same is true when the husband finds out
EUGENIO, SR. V. VELEZ that his wife is a man who just had a sex
185 SCRA 425 reassignment surgery. The marriage is void
because they are of the same sex. A man cannot
DOCTRINE: The intervention in a valid marriage marry a man. The law is clear that the meaning
ceremony of an ecclesiastical or civil functionary of legal capacity is not only confined to the age
authorized by the state to solemnize marriage is one of of the parties, one of the elements is that it must
the indispensable requisites for a valid marriage in the be between a man and a woman, and there are
Philippines. A man and a woman who cohabit without a no legal impediments to contract marriage.
marriage ceremony may be considered legally married
in common-law jurisdictions but not in the Philippines. 2. Absence of Consent
Example: Marriage in jest is void because there
FACTS: Vitaliana Vargas’ brothers and sisters unaware is absence of consent. However, if the consent
of the former’s death filed a petition for Habeas Corpus is vitiated, it will not render the marriage void
before the RTC of Misamis Oriental alleging that she was because it will only be considered a defect in one
forcible taken from her residence sometime in 1987 and of the essential requisites.
was confined by the herein petitioner, Tomas Eugenio in
his residence in Misamis Oriental. The respondent court 3. Absence of Authority of the Solemnizing
issued the writ of habeas corpus, but the writ was Officer
returned unsatisfied. Petitioner refused to surrender the Marriage without a solemnizing officer is void,
body of Vitaliana to the respondent sheriff, reasoning unless parties believe in good faith that the
that a corpse cannot be the subject of habeas corpus person solemnizing the marriage was
proceedings; Petitioner claims that as her common law authorized to do so. See discussion under Article
husband, he has legal custody of her body. Petitioner 3 and 6
claims he is the spouse contemplated under Art. 294 of
the Civil Code, the term spouse used therein not being 4. Absence of a Valid Marriage License
preceded by any qualification; hence, in the absence of See discussion under Article 3 and 6
such qualification, he is the rightful custodian of
Vitaliana's body. Vitaliana's brothers and sisters contend How would you know if the marriage
otherwise. license is genuine?
DEAN: When you enter into marriage, you have
RULING: Indeed, Philippine Law does not recognize to present your marriage license first to the
common law marriages. A man and woman not legally authorized solemnizing officer. After the
married who cohabit for many years as husband and celebration of marriage, you will be issued a
wife, who represent themselves to the public as marriage certificate or a marriage contract by
husband and wife, and who are reputed to be husband the solemnizing officer. If in the marriage
and wife in the community where they live may be contract, your marriage license does not appear,
considered legally mauled in common law jurisdictions that is good proof that there is no marriage
but not in the Philippines. In any case, herein petitioner license issued.
has a subsisting marriage with another woman, a legal
impediment which disqualified him from even legally Second, if there appears a marriage license in
marrying Vitaliana. Custody of the dead body of your marriage certificate, but the Local Civil
Vitaliana was correctly awarded to her surviving Registrar will issue a certification that said
brothers and sisters. license does not appear in the records and that
license is fake, the marriage will be declared null
EFFECT OF ABSENCE OR DEFECTS IN ANY OF THE and void.
REQUISITES
Absence of a marriage license must be apparent
on the contract or at least supported by a
Art. 4, FC. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, Certification from the Office of the Local Civil
except as stated in Article 35(2). Registrar (Alcantara vs Alacantara, 531 SCRA
446)
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
5. Absence of a Marriage Ceremony
See discussion under Article 3 and 6
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 A common law marriage is not recognized in the
and administratively liable. Philippines. (Eugenio vs Velez, 185 SCRA)
EFFECTS BESO VS. DAGUMAN

A. Absence of any of the essential or formal AM NO. MTJ-99-1211, JAN. 28, 2000
requisites
Zenaida S. Beso charged Judge Juan J. Daguman, Jr.
Shall render the marriage void except as stated in
with solemnizing marriage outside of his jurisdiction and
Article 35.
of negligence in not retaining a copy and not registering
Examples:
1. Absence of Legal Capacity the marriage contract with the office of the Local Civil
Registrar alleging that After their wedding, Bernardito
42
abandoned Zenaida for no reason, so the latter went to marriage would have been valid were it not for the
check with the Civil Registrar their Marriage Contract. existence of the first marriage. In such a case, he would
She was told that the marriage was not registered. have been guilty of bigamy.
Thus, she asked a copy of the Marriage Contract from
Judge Daguman who informed her that all copies were B. Defect in any of the essential requisites
taken by Bernardino. Zenaida filed an administrative Shall render the marriage voidable.
case against Judge Daguman with the office of the Local
Civil Registrar. Judge Daguman averred that the A mere defect instead of absence of essential requisites
marriage had to be solemnized outside his territory as renders the marriage merely voidable.
municipal Judge of Sta. Margarita, Samar because he
was physically unable to report to his station and that The defect here refers to the defect in the consent to the
Zenaida and Bernardito came to his residence, marriage. If the consent given by the party is defective
requesting the celebration of their marriage right then because of fraud, intimidation, undue influence then the
and there because Zenaida said she must leave for marriage is only voidable. (See discussions under Art.
abroad. He also alleged that his failure to file the 45 and 46 on voidable marriages.)
marriage contract was beyond his control because
Bernardito absconded with the missing copies of the C. Irregularity in the formal requisites
marriage certificate. The Court held that a marriage can Shall not affect the validity of the marriage. But will
be held outside the courtroom only in the following render the party responsible liable.
instances: at the point of death; in remote places in
accordance with Article 29; or upon the request of both Irregularity in the Formal Requisites
parties in writing in a sworn statement to this effect. The person responsible for any irregularity in the formal
There is no pretense that either complainant or requisites shall be held civilly, criminal or
Bernardito was at the point of death or in a remote administratively.
place. Neither was there a sworn written request made
by the contracting parties. Considering that respondent Irregularity in the Marriage License
Judges jurisdiction covers the municipality of Sta. Example: A marriage license issued w/o complying with
Margarita-Tarangan-Pagsanjan, Samar only, he was not the 10-day period. Valid but the Local Civil Registrar is
clothed with authority to solemnize a marriage in the held liable.
City of Calbayog. A judge is charged with exercising
extra care in ensuring that the records of the cases and Suppose the man is from Mandaue and the woman is
official documents in his custody are intact. from Cebu City, but they applied a marriage license in
Lapu-Lapu City. Will it make the marriage void?
MORIGO VS. PEOPLE No, only treated as a mere irregularity.
GR No. 145226, February 6, 2004
If the LCR issues a license with the knowledge that the
Lucio Morigo and Lucia Barrete got married in 1990. parties are not residents of Lapu-Lapu City, it does not
Barrete went back to Canada for work and in 1991 she affect the validity of the marriage license, but the LCR
filed petition for divorce in Ontario Canada, which was shall be held civilly, criminally, and administratively
granted. In 1992, Morigo married Lumbago, so he liable.
subsequently filed a complaint for judicial declaration of
nullity on the ground that there was no marriage Examples of Irregularities:
ceremony. Morigo was then charged with bigamy and 1. Marriage solemnized in a place other than the
pleaded not guilty claiming that his marriage with Church or Chamber of the Judge
Barrete was void ab initio and contented he contracted 2. Absence of adult witnesses
second marriage in good faith. The court held that 3. Issuance of marriage place where neither
Morigo’s marriage with Barrete is void ab initio parties reside
considering that there was no actual marriage ceremony 4. Issuance of license without supporting docs
performed between them by a solemnizing officer 5. Absence of marriage contract
instead they just merely signed a marriage contract. The 6. Issuance of license without parental consent, if
mere private act of signing a marriage contract bears no required
semblance to a valid marriage and thus,the petitioner 7. Issuance of license without complying with the
does not need to file declaration of the nullity of his posting period
marriage when he contracted his second marriage with 8. No marriage counselling
Lumbago. Such act alone, without more, cannot be 9. Non-payment of the required license fee
deemed to constitute an ostensibly valid marriage for
which petitioner might be held liable for bigamy unless Marriage outside the solemnizing officer’s jurisdiction is
he first secures a judicial declaration of nullity before he valid, only an irregularity.
contracts a subsequent marriage.Hence, he did not
commit bigamy and is acquitted in the case filed. COSCA VS. PALAYPAYON
55 SCAD 759, 237 SCRA 249
PEOPLE VS. LARA
(CA) L-12588, Feb. 15, 1955 Complainants allege that respondent judge solemnized
marriages even without the requisite marriage license.
A married man contracted a second marriage on Aug. Thus, couples were able to get married by the simple
18, 1951, but the marriage license was issued only on expedient of paying the marriage fees despite the
Aug. 19, 1951, or one day following. He was prosecuted absence of a marriage license, In addition, respondent
for bigamy. He is not guilty, because the second judge did not sign their marriage contracts and did not
marriage by itself was null and void. The subsequent indicate the date of solemnization, the reason being that
issuance of the license does not validate the void he allegedly had to wait for the marriage license to be
marriage. Had the license been issued prior to the submitted by the parties which was usually several days
celebration of the second marriage, said second after the ceremony. Indubitably, the marriage contracts
43
were not filed with the local civil registrar. On the charge Moreover, under Art 4 of the FC, any irregularity in the
regarding illegal marriages the Family Code pertinently formal requisites of a marriage, one of which is a
provides that the formal requisites of marriage are, inter marriage license, will not affect the validity of marriage.
alia, a valid marriage license except in the cases Thus, it has been held that the marriage under a license
provided for therein. Complementarily, it declares that is not invalidated by the fact that the license was
the absence of any of the essential or formal requisites wrongfully or fraudulently obtained without prejudice to
shall generally render the marriage void ab initio and the prosecution of the parties; and that the solemnizing
that, while an irregularity in the formal requisites shall officer does not have to investigate whether or not the
not affect the validity of the marriage, the party or lciense has been properly issued. It is the absence of an
parties responsible for the irregularity shall be civilly, essential or formal requisite that will render the
criminally and administratively liable. marriage void ab initio. It is worth observing that the
law specifies what marriages are void from the
NAVARRO VS. DOMAGTOY beginning and the absence of a certificate of legal
AM No. MTJ-06-1088, 72 SCAD 328 capacity to marry is not one of them.
Rodolfo G. Navarro filed charges against Municipal PERSONS AUTHORIZED TO SOLEMNIZE

Circuit Trial Court Judge Hernando Domagtoy for gross MARRIAGE
misconduct and inefficiency in office and ignorance of
the law. It was alleged that Domagtoy solemnized the Art. 7, FC. Marriage may be solemnized by:
marriage of Tagadan & Borga despite knowing that (1) Any incumbent member of the judiciary within the
Tagadan (groom) was merely separated from his wife. court’s jurisdiction;
Second instance was when he performed a marriage (2) Any priest, rabbi, imam, or minister of any church
ceremony between Sumaylo & del Rosario at his or religious sect duly authorized by his church or
residence, which is outside his jurisdiction. The Supreme religious sect and registered with the civil
Court ruled that marriages solemnized were void. As to registrar general, acting within the limits of the
the marriage of Tagadan & Borga, the marriage is void written authority granted by his church or
for the law provides that: “A marriage contracted by any religious sect and provided that at least one of the
person during the subsistence of a previous marriage contracting parties belongs to the solemnizing
shall be null and void, unless before the celebration of officer’s church or religious sect;
the subsequent marriage, the prior spouse had been (3) Any ship captain or airplane chief only in the case
absent for four consecutive years and the spouse mentioned in Article 31;
present had a well-founded belief that the absent (4) Any military commander of a unit to which a
spouse was already dead. In case of disappearance chaplain is assigned, in the absence of the latter,
where there is danger of death under the circumstances during a military operation, likewise only in the
set forth in the provisions of Articles 391 of the Civil cases mentioned in Article 32;
Code, an absence of only two years shall be sufficient.”; (5) Any consul-general, consul or vice-consul in the
“For the purpose of contracting the subsequent case provided in Article 10. (56a)
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as PERSONS AUTHORIZED TO SOLEMNIZE
provided in this Code for the declaration of MARRIAGE
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent 1. Incumbent member of the judiciary
spouse “Absent this judicial declaration, he remains 2. Priest, rabbis, imams, or ministers of a
married to his first wife. As to the marriage of Sumaylo religion
and del Rosario, marriage is void, as provided Marriage 3. Ship captain or airplane pilots – under
can only be held outside a judge’s chamber or articulo mortis
courtroom only in the following instances : (a) at the 4. Military Commander – under articulo
point of death (b) in remote places (c) request of both mortis
parties in writing & sworn statement (Art. 8 FC). 5. Consul, Vice Consul, Consul General
Sumaylo & del Rosario were not under any of these 6. Mayors under the Local Government
conditions. Code
Problem: Mr. Bradley Latta, an Australian national, (1) Judges of Regular Courts
married Josefina Vallar, a Filipino citizen last January,
1990. It appears that Mr. Latta was issued a certificate (1) Justices of the SC
of legal capacity to contract marriage after the marriage (2) Justices of the CA
which is not in accordance with Article 21 of the FC (3) Judges of RTC
which requires that “when either or both of the (4) Judges of Municipal Trial Court (MTC, Municipal
contracting parties are citizens of a foreign country, it Circuit Court, Metropolitan Trial Court in Cities)
shall be necessary for them before a marriage license (5) Judges of the Sandiganbayan
can be obtained, to submit a certificate of legal capacity
to contract marriage, issued by their diplomatic or Incumbent judges of regular courts are authorized to
consular officials.” The Australian Embassy claims that solemnize marriage within their jurisdictions. Retired
such a marriage is void from the beginning. Is this Judges are not authorized to solemnize marriage.
marriage contracted without certificate of legal capacity
but with a marriage license void ab initio? However, hearing officers or judges of quasi-judicial
bodies, and justices of the Court of Tax Appeals have no
Answer: The marriage contracted in the above problem authority to solemnize marriages.
is not a void marriage. Articles 2 and 3 of the FC
repealed Article 53 of the NCC with respect to the A judge who solemnizes outside his own
requisite of marriage. Thus, under Arts 2 and 3 of the jurisdiction may be administratively liable but
FC, a marriage has essential and formal requisites. the marriage is still valid.
44
Here, the consul acts not only as the solemnizing officer

(2) Heads of Religious Groups or Churches but also performs the duties of the Local Civil Registrar.
Thus, he may also issue a marriage license
May solemnize provided the following circumstances are
present: GOOD FAITH OF PARTIES UNDER ARTICLE 35
1. Must be authorized by his/her church or PARAGRAPH 2
religious sect; Under Article 35, a marriage solemnized by any person
2. Must act within the limits of the written not legally authorized to perform marriages is void.
authority granted him by his religious sect or
church; Except when either or both of the parties believe in good
3. At least one of the contracting parties belongs faith that the person who solemnized such marriage had
to the solemnizing officer’s church or religious the legal authority to do so.
sect; and
4. Registered in the General civil registrar. This is the only portion of the Family Code where you can
find good faith as a ground to validate what is an
(3) Ship Captain or Airplane Chief otherwise void marriage since the rule is when marriage
is void, it cannot produce anything and good faith is not
May solemnize when: generally a defense.
1. One of the parties is at the point of death;
2. Parties must be passengers or crew; and MAYORS
3. Ship or airplane must be in transit; Note: Enumeration is not exclusive as a mayor may also
4. Marriage must be performed inside the ship or solemnize.
airplane
Mayor can once again solemnize marriage as authorized
In this case, no marriage license is needed. by the Local Government Code.
DEAN: If the vessel is still docked in the port of Cebu, VICE-MAYOR

the ship captain cannot solemnize the marriage because A Vice-Mayor, acting as a Mayor, can solemnize marriage
the ship is not yet in transit. because he can exercise the powers of the Mayor in the
absence of the latter. (People vs Bustamante)
Suppose the vessel has already left for Cebu and it bound
for Surigao, but made a stopover in Maasin. The ship PEOPLE VS. BUSTAMANTE
captain can perform marriage in articulo mortis because 105 Phil. 64
even if the ship is already in dock at Maasin, the ship is
still considered to be in transit because it has not yet Federic Bustamante married Maria Perez in August
reached its final destination. 1954. In September 1955, while the first marriage was
still subsisting, he contracted a second marriage with
(4) Military Commanders Demetria Tibayan, solemnized before Vice-Mayor Nato
of Mapandan, Pangasinan, who was then acting as
May solemnize when: Mayor of the said Municipality since the incumbent
1. He is a commissioned officer commanding a mayor was on leave of absence. Subsequently,
military unit where a chaplain is assigned; Demetria discovered the previous marriage of Federic.
DEAN: This military unit must be a big unit, at Hence, Demetria filed a case for bigamy against Federic.
least a battalion. When the military unit is only Federic contended that there could not have been a
composed of one platoon, there is no assigned second marriage to speak of, as Nato was merely acting
chaplain. One company is composed of 4 or 5 as mayor when he celebrated the same, hence, without
platoons, there is still also no assigned chaplain authority of law to do so. The Supreme Court ruled that
yet. But several company will compose a when the issue involves the assumption of powers and
battalion. When it is already a battalion, there is duties of the office of the mayor by the vice-mayor,
already an assigned chaplain. The Battalion when proper, it is immaterial whether it because the
Commander can solemnize the marriage in this latter is the Acting Mayor or merely acting as Mayor, for
case. in both instances, he discharges all the duties and wields
2. The assigned chaplain is absent at the time the the power appurtenant to said office. This instance does
marriage is solemnized; not involve a question of title to the office, but the
3. The marriage is in be a articulo mortis; performance of the functions thereunto appertaining by
4. The parties must be a member of his unit or a one who is admitted to be temporarily vested with it.
civilian; and The powers and duties of the Mayor devolve upon the
5. The Marriage must be done in the zone or area Vice-Mayor whenever the latter is in an acting capacity.
of military operation.
Problem: Discuss the extent of authority of judges,
Also, in this case, no marriage license is needed. justices, and priests to solemnize marriages.
(4) Consul-General, Consul, or Vice Consul Answer: The authority of the RTC judges and judges of
inferior courts to solemnize marriages is confined to
May solemnize marriage when: their territorial jurisdiction as defined by the Supreme
1. The parties are both Filipinos; and Court. A priest who is commissioned and allowed by his
2. The marriage is done abroad local ordinance to marry the faithful is authorized to do
so only within the area or diocese or palced allowed by
Important: If one of the party is a foreigner, the his Bishop.
marriage is not valid. The consul is not authorized to
solemnize such marriage. An appellate court Justice or Justice of the Supreme
Court has jurisdiction over the entire Philippines to
45
solemnize marriages, regardless of the venue, as long WHO ISSUES THE MARRIAGE LICENSE
as the requisites of the law are complied with. However,
judges who are appointed to specific jurisdictions may Art. 9, FC. A marriage license shall be issued by the
officiate in wedidngs only within said areas and not local civil registrar of the city or municipality where
beyond. Where a judge solemnizes a marriage outside either contracting party habitually resides, except in
his court’s jurisdiction, there is a resultant irregularity in marriages where no license is required in accordance
the formal requisite laid down in Article 3, FC which wile with Chapter 2 of this Title.
it may not affect the validity of the marriage, may
subject the officiating official to administrative liability. Art. 10, FC. Marriages between Filipino citizens abroad
(Aranes vs Occano, April 11 2002) may be solemnized by a consul-general, consul or vice-
consul of the Republic of the Philippines. The issuance
VENUE OF MARRIAGE of the marriage license and the duties of the local civil
registrar and of the solemnizing officer with regard to
Art. 8, FC. The marriage shall be solemnized publicly in the celebration of marriage shall be performed by said
the chambers of the judge or in open court, in the consular official.
church, chapel or temple, or in the office the consul-
general, consul or vice-consul, as the case may be, and WHERE ISSUED
not elsewhere, except in cases of marriages contracted The LCR of the place where either of the parties resides
on the point of death or in remote places in accordance issues marriage licenses.
with Article 29 of this Code, or where both of the parties
request the solemnizing officer in writing in which case The marriage license is the authority given by the state
the marriage may be solemnized at a house or place to the parties to enter into the contract of marriage. If
designated by them in a sworn statement to that effect. the LCR is not of the place where either party lives,
(57a) it does not render the marriage void. It is
considered merely as an irregularity in the formal
(a) Judge – courtroom or chamber requisites for which the Local Civil Registrar or the
(b) Priest, etc. – chapel parties responsible for such irregularity can be held
(c) Ship captain or airplane pilot – ship or airplane liable.
(d) Military Commander – Area of operation
(e) Consul-General, Consul, Vice-Consul – DEAN: So if the man is from Cebu City and the woman
consulate office is from Mandaue City, they can apply for a marriage
license in Mandaue or in Cebu city. However, if they
Venue apply for a marriage license in Santander because the
Venue is not mandatory but directory in nature. local civil registrar there is their good friend, the
However, a solemnizing officer may be held accountable marriage is still valid. That is an only irregularity but the
when the solemnization is done outside the venue stated person responsible for that shall be held responsible.
by law.
Marriages between Filipino Citizens Abroad
Exception If the marriage is solemnized in the consular office
1. When one of the party is at the point of death abroad between two Filipinos, they must also apply for
(in articulo mortis); or a marriage license and the one who will issue the
2. When both of the parties request the marriage license is also the consul. The consul plays a
solemnizing officer in writing to solemnize the dual role being the solemnizing officer and the LCR.
marriage elsewhere.
WHO WILL ISSUE
If the venue is not valid, it is merely an irregularity and (a) Issued by the local civil registrar of the city or
the person responsible for the irregularity may be held municipality where either contracting party
administratively liable. habitually resides
(b) Issued by the consul-general, consul or vice-
DEAN: consul of the Republic of the Philippines when
• There should be a written request from both parties the marriage is between Filipino citizens abroad
and a valid reason for that request, such as
marriages contracted on the point of death or in APPLICATION FOR MARRIAGE LICENSE
remote places. Example: husband is bed ridden
• It seems that this provision has been abused by Art. 11, FC. Where a marriage license is required, each
solemnizing officers. Marriages are now performed of the contracting parties shall file separately a sworn
in hotels, beach resorts, and foreign countries. Will application for such license with the proper local civil
it affect the validity of marriage? No, it will only be registrar which shall specify the following:
considered as an irregularity and the person (1) Full name of the contracting party;
responsible for the irregularity may be held (2) Place of birth;
administratively liable. (3) Age and date of birth;
• Example: Celebrities marrying in a secluded area (4) Civil status;
was considered valid (Trivia: Christopher De Leon (5) If previously married, how, when and where the
and Nora Aunor’s beach wedding) 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;
Navarro v. Domagtoy (9) Full name, residence and citizenship of the mother;
A judge who solemnizes a marriage outside his and
territorial jurisdiction is administratively liable but the (10) Full name, residence and citizenship of the
marriage is still valid. guardian or person having charge, in case the
46
contracting party has neither father nor mother and who personally appears before the proper local civil
is under the age of twenty-one years. registrar, or in the form of an affidavit made in the
presence of two witnesses and attested before any
The applicants, their parents or guardians shall not be official authorized by law to administer oaths. The
required to exhibit their residence certificates in any personal manifestation shall be recorded in both
formality in connection with the securing of the marriage applications for marriage license, and the affidavit, if
license. (59a) one is executed instead, shall be attached to said
applications. (61a)
Art. 12, FC. The local civil registrar, upon receiving such
application, shall require the presentation of the original Art. 15, FC. Any contracting party between the age of
birth certificates or, in default thereof, the baptismal twenty-one and twenty-five shall be obliged to ask their
certificates of the contracting parties or copies of such parents or guardian for advice upon the intended
documents duly attested by the persons having custody marriage. If they do not obtain such advice, or if it be
of the originals. These certificates or certified copies of unfavorable, the marriage license shall not be issued till
the documents by this Article need not be sworn to and after three months following the completion of the
shall be exempt from the documentary stamp tax. The publication of the application therefor. A sworn
signature and official title of the person issuing the statement by the contracting parties to the effect that
certificate shall be sufficient proof of its authenticity. such advice has been sought, together with the written
advice given, if any, shall be attached to the application
If either of the contracting parties is unable to produce for marriage license. Should the parents or guardian
his birth or baptismal certificate or a certified copy of refuse to give any advice, this fact shall be stated in the
either because of the destruction or loss of the original sworn statement. (62a)
or if it is shown by an affidavit of such party or of any
other person that such birth or baptismal certificate has Art. 16, FC. In the cases where parental consent or
not yet been received though the same has been parental advice is needed, the party or parties
required of the person having custody thereof at least concerned shall, in addition to the requirements of the
fifteen days prior to the date of the application, such preceding articles, attach a certificate issued by a priest,
party may furnish in lieu thereof his current residence imam or minister authorized to solemnize marriage
certificate or an instrument drawn up and sworn to under Article 7 of this Code or a marriage counselor duly
before the local civil registrar concerned or any public accredited by the proper government agency to the
official authorized to administer oaths. Such instrument effect that the contracting parties have undergone
shall contain the sworn declaration of two witnesses of marriage counseling. Failure to attach said certificates
lawful age, setting forth the full name, residence and of marriage counseling shall suspend the issuance of the
citizenship of such contracting party and of his or her marriage license for a period of three months from the
parents, if known, and the place and date of birth of completion of the publication of the application.
such party. The nearest of kin of the contracting parties Issuance of the marriage license within the prohibited
shall be preferred as witnesses, or, in their default, period shall subject the issuing officer to administrative
persons of good reputation in the province or the sanctions but shall not affect the validity of the
locality. marriage.
The presentation of birth or baptismal certificate shall Should only one of the contracting parties need parental
not be required if the parents of the contracting parties consent or parental advice, the other party must be
appear personally before the local civil registrar present at the counseling referred to in the preceding
concerned and swear to the correctness of the lawful paragraph. (n)
age of said parties, as stated in the application, or when
the local civil registrar shall, by merely looking at the DOCUMENTS THAT MUST ACCOMPANY THE
applicants upon their personally appearing before him, APPLICATION
be convinced that either or both of them have the
required age. (60a) 1. Birth Certificate or Baptismal Certificate of the
parties;
Art. 13, FC. In case either of the contracting parties has Note: Birth Certificate or Baptismal Certificate are
been previously married, the applicant shall be required needed to determine whether parties are of legal age.
to furnish, instead of the birth or baptismal certificate In the absence of both Birth Certificate and Baptismal
required in the last preceding article, the death Certificate, the parties must present a joint affidavit of
certificate of the deceased spouse or the judicial decree two (2) interested person to attest legal capacity
of the absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her previous 2. If either party has been previously married, the
marriage. death certificate of the deceased spouse or
In case the death certificate cannot be secured, the judicial decree of absolute divorce, annulment, or
party shall make an affidavit setting forth this declaration of nullity of marriage;
circumstance and his or her actual civil status and the
name and date of death of the deceased spouse. (61a) 3. Parental Consent in case the party is between the
ages of 18 to 21. Otherwise the marriage will be
Art. 14, FC. In case either or both of the contracting voidable.
parties, not having been emancipated by a previous
marriage, are between the ages of eighteen and twenty- 4. Parental Advice in case the party is between the
one, they shall, in addition to the requirements of the ages of 21 to 25 years of age.
preceding articles, exhibit to the local civil registrar, the Note: This is optional. If they do not obtain such advice
consent to their marriage of their father, mother, the marriage license shall not be issued till after three
surviving parent or guardian, or persons having legal months following the completion of the publication of
charge of them, in the order mentioned. Such consent the application.
shall be manifested in writing by the interested party,
47
5. Certificate of Legal Capacity to Marry issued by knowledge of any impediment to the marriage to advise
his or her consul in the Philippines if one of the party is the local civil registrar thereof. The marriage license
a foreigner. shall be issued after the completion of the period of
publication. (63a)
Important: Both parties must fill up their separate
application form and must be passed to the Local Civil Art. 18, FC. In case of any impediment known to the
Registrar where either of the parties resides. local civil registrar or brought to his attention, he shall
note down the particulars thereof and his findings
INSTANCES WHERE BIRTH CERTIFICATE IS NOT thereon in the application for marriage license, but shall
NEEDED nonetheless issue said license after the completion of
the period of publication, unless ordered otherwise by a
1. When the parents of the applicant personally competent court at his own instance or that of any
appeared before the LCR and manifest that their child is interest party. No filing fee shall be charged for the
of legal capacity. petition nor a corresponding bond required for the
Note: They must sign a form to attest their child’s legal issuances of the order. (64a)
capacity to contract marriage. Penalty: Perjury
Art. 19, FC. The local civil registrar shall require the
2. When the Local Civil Registrar, by looking at the payment of the fees prescribed by law or regulations
physical appearance of the applicant, is convinced that before the issuance of the marriage license. No other
he is over 18 years of age. sum shall be collected in the nature of a fee or tax of
any kind for the issuance of said license. It shall,
3. If either party has been previously married. however, be issued free of charge to indigent parties,
Note: Instead of the birth certificate, the party/ies must that is those who have no visible means of income or
present the evidence of the dissolved marriage whose income is insufficient for their subsistence a fact
(declaration of nullity of marriage, death certificate, established by their affidavit, or by their oath before the
judgement annulment). local civil registrar. (65a)
Parental Consent Posting of Notice

Parents must personally appear before the LCR and give Upon receipt of application to marry, the Local Civil
their consent. They must sign the form and it must be Registrar will post a notice to inform the public of the
notarized. If the parents cannot come personally, an application for 10 days so that if there are any legal
affidavit is sufficient. It must also be in writing, impediments, the registrar can be informed.
notarized, in the presence of 2 witnesses.
The notice of application is posted in conspicuous places,
Preference is given to the father to give consent, usually in the bulletin board of the LCR for 10 days.
otherwise the mother, surviving parent or guardian can
give consent. If there was without any posting or it was posted less
than the 10-day period, this will not affect validity of
Parental Consent is important as without it, the marriage. It is only an irregularity. The officer may be
marriage can be annulled: voidable. held administratively liable.
Parental Advice Effect of Knowledge of the LCR of any Impediment

If the party is between the ages of 21 to 25 years of If any legal impediment is reported, the registrar will
age, parental advice is needed. However, parental record it and the issuance of the license will proceed
advice is not that important. The only thing that the LCR unless the law restrains him from doing so.
may do is delay the issuance of marriage certificate for
3 months after the lapse of 10 days posting period. This DEAN: Under the old law, it was discretionary for LCR
does not affect the validity of marriage. to hold the issuance. However, under the New Family
Code, issuance is already mandatory. This was due to
Marriage Counselling the grave abuse of discretion of the LCR then.
If parental consent or parental advice are needed,
parties must undergo marriage counselling. This is a GR: LCR should still issue the license.
seminar wherein the parties are taught of the dos and XPN: If there is a TRO or injunction issued by the court
don’ts in marriage, family planning and etc. The to stop the issuance by the LCR. The case may be filed
certification of marriage counselling is issued by the by the LCR or any interested party.
solemnizing officer or a counsellor of the proper
government agency. Failure to obtain such, the license Payment of License Fee
will be suspended for 3 months. The issuance fee of the license is P300.00, but free for
indigent parties in order to encourage people to legalize
If only one of the party is between the ages of 18 to 25, the marriage, especially those who are living together.
both parties are still needed to attend the seminar.
Effectivity of Marriage License Issued
DUTY OF THE LOCAL CIVIL REGISTRAR The license shall be valid in any part of the Philippines
for a period of one hundred twenty (120) days from
Art. 17, FC. The local civil registrar shall prepare a the date of issue, and shall be deemed automatically
notice which shall contain the full names and residences canceled at the expiration of the said period if the
of the applicants for a marriage license and other data contracting parties have not made use of it. (Article 21,
given in the applications. The notice shall be posted for Family Code)
ten consecutive days on a bulletin board outside the
office of the local civil registrar located in a conspicuous LIFE OF THE MARRIAGE LICENSE
place within the building and accessible to the general
public. This notice shall request all persons having
48
Article 20, FC. The license shall be valid in any part of (7) That the parties have entered into marriage
the Philippines for a period of one hundred twenty days settlement, if any, attaching a copy thereof. (67a)
from the date of issue, and shall be deemed
automatically canceled at the expiration of the said Article 23, FC. It shall be the duty of the person
period if the contracting parties have not made use of solemnizing the marriage to furnish either of the
it. The expiry date shall be stamped in bold characters contracting parties the original of the marriage
on the face of every license issued. (65a) certificate referred to in Article 6 and to send the
duplicate and triplicate copies of the certificate not later
Life of Marriage License – 120 Days than fifteen days after the marriage, to the local civil
Once the license is issued it is valid for 120 days from registrar of the place where the marriage was
the date of issuance. It can be used anywhere in the solemnized. Proper receipts shall be issued by the local
Philippines, provided that you use it within 120 days. civil registrar to the solemnizing officer transmitting
After the lapse of 120 days from the issuance, the copies of the marriage certificate. The solemnizing
marriage license automatically expires if not used. officer shall retain in his file the quadruplicate copy of
Marriage after expiration is null and void. the marriage certificate, the copy of the marriage
certificate, the original of the marriage license and, in
CERTIFICATE OF LEGAL CAPACITY TO MARRY proper cases, the affidavit of the contracting party
regarding the solemnization of the marriage in place
other than those mentioned in Article 8. (68a)
Article 21, FC. When either or both of the contracting
parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be Article 24, FC. It shall be the duty of the local civil
obtained, to submit a certificate of legal capacity to registrar to prepare the documents required by this
contract marriage, issued by their respective diplomatic Title, and to administer oaths to all interested parties
without any charge in both cases. The documents and
or consular officials.
affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary
Stateless persons or refugees from other countries shall,
stamp tax. (n)
in lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a) Article 25, FC. 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
Certificate of Legal Capacity to Marry
are received. He shall record in said book the names of
Marriage license is still required for foreigners who want
the applicants, the date on which the marriage license
to marry in the Philippines. When an applicant to a
was issued, and such other data as may be necessary.
marriage license is a foreigner he is not required to bring
(n)
his birth certificate. Instead he is required to present a
certificate of legal capacity to contract marriage duly
Marriage license v. Marriage certificate
issued by their respective diplomatic or consular official.
This in line with the nationality theory because the MARRIAGE MARRIAGE
foreigner’s personal capacity is determined by his or her LICENSE CERTIFICATE
national law. Authorization by
Best evidence of
the state to
Example: A foreigner, even if he is still fifteen years Nature the existence of
celebrate
old, therefore a minor according to our law, the marriage.
marriage.
foreigner can get married in the Philippines provided he Requisite Neither essential
secures a certificate of legal capacity to contract Formal requisite
of nor formal requisite
marriage from his own consular office or embassy here of marriage.
Marriage of marriage.
in the Philippines because his capacity to marry is
Issued by the
determined by his own national law. Issuing
Issued by the LCR person solemnizing
Authority
the marriage
If both spouses are foreigners, they may have their
marriage solemnized without a marriage license if their Time Issued before the Issued after the
country’s law allows it. Issued marriage marriage
MARRIAGE CERTIFICATE Marriage Certificate

Best evidence to prove/establish marriage is the
Article 22, FC. The marriage certificate, in which the marriage certificate/contract. This is issued by the
parties shall declare that they take each other as solemnizing officer to prove that he solemnized the
husband and wife, shall also state: marriage. However, the lack of the marriage certificate
(1) The full name, sex and age of each contracting will not affect the validity of the marriage because the
party; spouses living together in apparent matrimony
(2) Their citizenship, religion and habitual residence; presumes, in the absence of any counter-presumption
(3) The date and precise time of the celebration of the or evidence special to the case, to be in fact married
marriage; because the law favors morality.
(4) That the proper marriage license has been issued
according to law, except in marriage provided for in
Chapter 2 of this Title;
(5) That either or both of the contracting parties have Presumption of Marriage (Sempter Paesumitur
secured the parental consent in appropriate cases; Pro Patrimonio)
(6) That either or both of the contracting parties have The absence of marriage certificate does not affect the
complied with the legal requirement regarding parental validity of the marriage. In fact marriage can be proven
advice in appropriate cases; and by parole evidence or by oral evidence. There is always
a presumption in law, and this is one of the disputable
49
presumptions in law that when a man and a woman contracted subsequently, no proof other than a
have been living together as husband and wife for many certificate of the record in the civil register shall be
years, the law presumes them to be lawfully married. admitted, unless such books have never been kept, or
It is incumbent upon the person who attacked the have disappeared, or the question arises in litigation, in
validity of marriage to present a strong and satisfactory which cases the marriage may be proved by evidence of
evidence to rebut the presumption of validity. The any kind.” The SC also considered the following
evidence to prove the invalidity of the marriage may evidence proffered by plaintiff:
even be presented for the first time on appeal.
a) Pugeda’s testimony that the marriage was officiated
Copies of the Marriage Certificate by the Justice of the Peace and before two witnesses.
Fours (4) copies of the marriage certificate will be b) The testimony of the Justice of the Peace who
prepared: 1 for the contracting parties; 2 for the local officiated the marriage.
civil registrar (1 will be forwarded to Manila-NSO); and c) Testimonies of other witnesses that Maria and Pugeda
1 for solemnizing officer together with other lived in the same house until Maria’s death.
accompanying documents. d) The baptismal certificate and the registry of birth of
their first child which states that such was the ‘issue’ of
LIM TANHU V. RAMOLETE said spouses.
G.R. No. L-40098. August 29, 1975 e) The project of partition signed by the defendants
themselves stating that Maria had a second marriage
Plaintiff filed an accounting for properties of her alleged with Pugeda.
deceased husband. However, defendants controvert this
and claim that plaintiff was not the legal wife of the SY V. COURT OF APPEALS
deceased. G.R. No. 127263. April 12, 2000
The SC held that under Article 55 of the Civil Code, the Sy filed a petition for the declaration of absolute nullity
declaration of the contracting parties that they take of her marriage to her husband based on psychological
each other as husband and wife "shall be set forth in an incapacity. The RTC and CA denied her petition. In an
instrument" signed by the parties as well as by their appeal by certiorari, petitioner, for the first time, raises
witnesses and the person solemnizing the marriage. the issue of the marriage being void for lack of a valid
Accordingly, the primary evidence of a marriage must marriage license at the time of its celebration. The SC
be an authentic copy of the marriage contract. While a held that their marriage is void. In their marriage
marriage may also be proved by other competent contract, the issue of the marriage license and the
evidence, the absence of the contract must first be marriage certificate was dated on September 17, 1974.
satisfactorily explained. The certification of the person However, in her petition and her husband’s answer, the
who allegedly solemnized a marriage is not admissible marriage was held on November 15, 1973. As such, on
evidence of such marriage unless proof or loss of the the day of the marriage ceremony, there was no
contract or of any other satisfactory reason for its non- marriage license. A marriage license is a formal
production is first presented to the court. requirement; its absence renders the marriage void ab
initio. In addition, the marriage contract shows that the
PERIDO V. PERIDO marriage license was issued in Carmona, Cavite, yet,
G.R. No. L-28248. March 12, 1975 neither petitioner nor private respondent ever resided in
Carmona.
Lucio had two (2) marriages: first, with Benita (died
during the Spanish regime), petitioners’ mother; and VILLANUEVA V. COURT OF APPEALS
second, with Marcelina, respondents’ mother (first child G.R. No. 84464. June 21, 1991
born in 1900). Petitioners contend that respondents are
illegitimate since they were born out of wedlock by Catalina filed a complaint for annulment of deed of sale
presenting the certificates of title issued to Lucio in 1923 for a parcel of land where her husband Roberto was the
indicating that Lucio is not married. The SC held that the purported vendor. Catalina claims that Roberto’s
statement was not conclusive to show that he was not signature therein was forged. Petitioners claim that
actually married to Marcelina, and is weak and Roberto was never married and was in fact living with a
insufficient to rebut the presumption that persons living common law wife. The SC held that Catalina sufficiently
together as husband and wife are married to each other. proved her status as Roberto’s widow by submitting
This presumption may be overcome only by cogent their marriage contract. As such, with respect to the
proof on the part of those who allege the illegitimacy. common law wife, it rendered unnecessary the
Persons dwelling together in apparent matrimony are presumption that a man and a woman deporting
presumed, in the absence of any counter-presumption themselves as husband and wife have entered into a
or evidence special to the case, to be in fact married. lawful contract of marriage. Moreover, the TCT
describing Roberto as single is not controlling as to
PUGEDA V. TRIAS Roberto’s civil status. The best documentary evidence
G.R. No. L-16925. March 31, 1962 of a marriage is the marriage contract itself. A Torrens
certificate is the best evidence of ownership of
Maria had two (2) marriages: first, with Mariano; and registered land, not of the civil status of the owner.
second, with plaintiff Pugeda. Pugeda claims
participation over some properties which were allegedly
acquired by him and Maria with conjugal funds. The
existence of the second marriage was questioned by the SSS V. LORDES ENOBISO
defendants. Defendants presented a photostatic copy of G.R. No. 183262, February 13, 2013
the record of marriages which showed that no record of
the alleged second marriage existed. In affirming the Petronilo was a member of the SSS. Since Lourdes
existence of the second marriage, the SC cited Art. 53 claimed that she married him, she was declared an
of Civil Code which provides that “as to marriages additional beneficiary of Petronilo. When the latter died,
50
Lourdes filed claims for death and pension benefits with 4. If the party whose previous marriage has been
the SSS, which was granted. However, SSS eventually annulled or declared void, contracts a second
stopped paying the benefits and declared that their marriage but failed to have the judicial decree
marriage certificate was fake. The SSC declared that she declaring the first marriage void with the LCR to
was not a primary beneficiary of Petronilo. However the partition the conjugal properties and deliver the
CA, as affirmed by the Supreme Court ruled that presumptive legitime to the children under
although a marriage contract is considered primary Article 53. (Art 35, par. 6);
evidence of marriage, the failure to present it is not 5. Void marriage due to psychological incapacity
proof that no marriage took place. Other evidence may (Art. 36);
be presented to prove marriage. 6. Incestuous marriage (Art. 37); and
7. Void against public policy [Marriage within the
VDA. DE AVENIDO V. AVENIDO 4th degree of consanguinity] (Art. 38).
G.R. No. 173540, January 22, 2014
NOTE: What is not included is deemed excluded. Thus,
Tecla filed a complaint for the declaration of nullity of marriage without license, or solemnized by a person not
marriage against Peregrina (second wife) on the ground authorized to solemnize marriage under Article 7 FC or
that she is the lawful wife of the deceased Eustaquio. marriage by proxy if valid in the place where it was
According to her, the fact of their marriage is evidenced celebrated, is valid here. It is not one of the exceptions.
by a Marriage Certificate recorded with the Office of the Common law marriage between Filipinos, even
Local Civil Registrar (LCR) of Talibon, Bohol. However, recognized abroad, is not considered valid here because
due to World War II, records were destroyed. Thus, only Article 26 FC speaks of marriages solemnized abroad.
a Certification was issued by the LCR. The RTC denied The word solemnize presupposes the performance of a
her petition for her failure to present her certificate of marriage ceremony which is wanting in a common law
marriage to Eustaquio. Upon appeal, the CA ruled in marriage.
favor of Tecla, which was affirmed by the Supreme
Court. It ruled that while a marriage certificate is If the marriage of a Filipino abroad is considered as void
considered the primary evidence of a marital union, it is or voidable under the law of the country where it was
not regarded as the sole and exclusive evidence of celebrated, the marriage can also be annulled or
marriage. Jurisprudence teaches that the fact of declared void here by our court.
marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person's Example: Absence of witness who are of legal age will
birth certificate may be recognized as competent considered the marriage celebrated abroad to be null
evidence of the marriage between his parents. and void, it is also considered void here even if the said
kind of marriage would have been valid here.
LEX LOCI CELEBRACIONES RULE IN MARRIAGE
DIVORCE
Divorces done by Filipino spouses abroad is not
Article 26, FC. All marriages solemnized outside the
recognized. However, marriage between a Filipino and a
Philippines, in accordance with the laws in force in the
foreigner where the latter obtains a divorce against the
country where they were solemnized, and valid there as
Filipino spouse, capacitating him to remarry, entitles the
such, shall also be valid in this country, except those
Filipino spouse to also remarry. This rule also applies to
prohibited under Articles 35 (1), (4), (5) and (6), 3637
former Filipino citizens.
and 38. (17a)
However, the rule that it should be the foreigner spouse
who should initiate the divorce proceeding and obtain a
Where a marriage between a Filipino citizen and a
divorce decree against the Filipino spouse in order to
foreigner is validly celebrated and a divorce is thereafter
entitle the Filipino spouse to also remarry has been
validly obtained abroad by the alien spouse capacitating
abandoned.
him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended
In the 2018 case of Republic v. Manalo, the
by Executive Order 227)
Supreme Court ruled that. Art. 26, par. 2 only requires
that there be a divorce validly obtained abroad. The law
LEX LOCI CELEBRACIONES does not demand that the alien spouse should be the
Lex Loci Celebraciones in marriage means when the one who initiated the proceeding wherein the divorce
marriage is valid in the place where it was celebrated, it decree was granted.
shall also be valid here. Recognition of marriage abroad Note: Philippine courts do not take judicial notice of
is a matter of international comity. However, foreign judgements, like divorce decree, and laws. They
marriage celebrated that is repugnant to our laws and must be proven as fact under our rules on evidence.
policies will not be recognized by our courts to conserve
morality in the country. PROOF REQUIRED FOR RECOGNITION OF
DIVORCE DECREE
Marriages Not Recognized (Rule 32, Section 24, Rules on Evidence)
Marriage done outside cannot be recognized if it is one
of the void marriages under Article 35 (1), (4), (5) and Record of public documents of a sovereign authority or
(6), 36, 37, and 38. tribunal may be proved by:
1. Official publication
2. A copy attested by the officer having legal
The following marriages can never be valid here even custody thereof
under lex loci celebraciones: 3. Such official publication or copy must be
1. When one party (Filipino) is a minor (Art. 35, accompanied with a certificate that the attesting
par. 1); officer has legal custody thereof
2. Bigamous or polygamous marriage (Art. 35, 4. The certificate* may be issued by any of the
par. 4);
3. Marriage by mistake in identity (Art. 35, par. 5);
51
authorized Philippine Embassy in the country where However, aliens may obtain divorces abroad, which may
the document is kept be recognized in the Philippines, provided they are valid
according to their national law. Pursuant to his national
*Certificate shall not be required when a treaty between law, private respondent is no longer the husband of
foreign country and the PH has abolished the petitioner. He would have no standing to sue in the case
requirement or has exempted the document itself from below as petitioner’s husband entitled to exercise
this formality. control over conjugal assets.
QUITA V. CA PILAPIL VS. IBAY SOMERA

G.R. No. 124862, December 22, 1998 GR NO 80116, June 30, 1989
Quita and Padlan, both Filipinos were married in the Geiling, a German national, filed a divorce against his
Philippines. Quita sued Padlan for divorce in San wife, Pilapil, a Filipino citizen, on the ground of failure of
Francisco, California and remarried twice. Then, Padlan marriage. After the issuance of the Divorce Decree,
died intestate. The question now arises whether Quita Geiling filed two complaints for adultery against Pilapil.
was still entitled to inherit from decedent. The Supreme The Court ruled that only the offended spouse can
Court ruled that the citizenship of the petitioner when legally file a complaint for adultery against the other
the divorce was decree was obtained is material. Once spouse. The valid Divorce Decree he obtained abroad
proved that she was no longer a Filipino citizen at the and its legal effects may be recognized in the Philippines
time of their divorce, Van Dorn principle would become in so far as the private respondent is concerned, in view
applicable, where aliens may obtain divorces abroad, of the nationality principle on matters of status of
which may be recognized in the Philippines, provided persons. The severance of the marital bond had the
they are valid according to their national law. Hence, effect of dissociating the former spouses from each
Quita could very well lose her right to inherit from other. Hence, he is no longer the husband of Pilapil at
Padlan. the time when the complaint was filed and thus had no
legal standing to commence such action.
BAYOT V. CA
G.R. No. 155635, November 7, 2008 GARCIA VS. RECIO
G.R. NO. 138322, October 2, 2001
Vicente and Rebecca, an American citizen, were
married. However, a divorce proceeding was initiated by A divorce decree was issued by the Australian Family
the latter in the Dominican Republic. On February 22, Court dissolving the marriage between Recio and his
1996, the Dominican Court ordered the dissolution of Australian wife, Editha Samson. Thereafter, Recio
the couple’s marriage. However, on March 21, 2001, became an Australian citizen and subsequently married
Rebecca filed a petition for declaration of absolute nullity petitioner. Petitioner filed a Complaint for Declaration of
of marriage on the ground of Vicente’s alleged Nullity of Marriage on the ground of bigamy contending
psychological incapacity. Vicente countered that the that Recio was married to Editha Samson. Recio argued
petition is barred by the prior judgment of divorce. The that his marriage to Editha Samson was validly
Supreme Court ruled that Rebecca was still an American dissolved by virtue of the Divorce Decree issued by the
citizen when she secured the judgment of divorce from Australian Court. He however merely presented the
the Dominican Republic. Being an American citizen, divorce decree without proving its authenticity and due
Rebecca was bound by the national laws of the United execution pursuant to Rule 132 and without proving the
States of America, a country which allows divorce. Her Australian law. In mixed marriages involving a Filipino
filing an action to declare the nullity of her marriage to and a foreigner, Article 26 of the Family Code allows the
her husband on the ground of the latter’s psychological former to contract a subsequent marriage in case the
incapacity is no longer tenable. Given the validity and divorce is validly obtained abroad by the alien spouse
efficacy of divorce secured by her, the same shall be capacitating him or her to remarry. However, the party
given a res judicata effect in this jurisdiction. As an invoking the legal effect of the divorce decree must
obvious result of the divorce decree obtained, the allege and prove the divorce decree as well as the
marital vinculum between Rebecca and Vicente is foreign law which capacitates the parties to remarry, in
considered severed and they are both freed from the accordance with Sections 24 and 25 of Rule 132. Due to
bond of matrimony. the insufficiency of the evidence presented, the case is
remanded for receipt of evidence.
VAN DORN V. ROMILLO, JR.
G.R. No. L-68470, October 8, 1985 EDELINA T. ANDO V. DEPARTMENT OF FOREIGN
AFFAIRS
After a divorce was granted by a United States court G.R. NO. 195432, August 27, 2014
between Alice Van Dorn, a Filipina, and her American
husband, the latter filed a civil case in a trial court here A Divorce Decree was obtained by Kobayashi, a
alleging that her business concern was conjugal Japanese national, with respect to his marriage with
property and praying that she be ordered to render an petitioner. Believing that she can remarry, she married
accounting and that the plaintiff be granted the right to Ando. When she applied for the renewal of her Philippine
manage the business. Rejecting his pretensions, this passport to indicate her surname with her second
Court perspicuously demonstrated the error of such husband, she was told by DFA that the same cannot be
stance. Thus, there can be no question as to the validity issued to her until she can prove by competent court
of that Nevada divorce in any of the States of the United decision that her marriage with Ando is valid. Hence, the
States. The decree is binding on private respondent as petitioner filed a petition for Declaratory Relief. SC ruled
an American citizen. It is true that owing to the that petitioner should have filed instead a petition for
nationality principle embodied in Article 15 of the Civil the judicial recognition of her foreign divorce from her
Code, only Philippine nationals are covered by the policy first husband. A divorce obtained abroad by an alien
against absolute divorces, the same being considered may be recognized in our jurisdiction, provided the
contrary to our concept of public policy and morality. decree is valid according to the national law of the
52
foreigner. Both the divorce decree and the governing G.R. No. 221029, April 24, 2018
personal law of the alien spouse who obtained the
divorce must be proven. Here, there is insufficiency of Manalo filed and obtained a divorce decree in Japan
evidence with regard to the national law the first against her Japanese husband. She then filed a petition
husband and the validity of the divorce decree under for cancellation of entry of marriage. The OSG opposed,
that national law. assailing the validity of the divorce decree obtained by
the Filipino spouse against her foreigner husband.
REPUBLIC VS. ORBECIDO III Article 26(2) of the Family Code only requires that there
GR NO. 154380, October 5, 2005 be a divorce validly obtained abroad. The letter of the
law does not demand that the alien spouse should
Orbecido found out that his wife had been naturalized initiate the divorce proceeding. The law does not
as an American citizen, thereafter obtained a divorce distinguish whether the Filipino spouse is the petitioner
decree therein and married a certain Innocent Stanley. or the respondent in the foreign divorce proceeding.
He then filed a petition for authority to remarry invoking
Article 26 (2) of the Family Code. RTC granted such MORISONO V. MORISONO
petition but OSG filed a motion for reconsideration G.R. No. 226013, July 2, 2018
arguing that Article 26 (2) of the Family Code only
applies to mixed marriages. Article 26 (2) should be Petitioner sought recognition of the foreign divorce
interpreted to include cases involving parties who, at the decree (Divorce by Agreement) which was filed and
time of the celebration of the marriage were Filipino approved before the City Hall of Mizuho-Ku, Japan. The
citizens, but later on, one of them becomes naturalized RTC denied the petition since it was the Filipino spouse
as a foreign citizen and obtains a divorce decree. The which initiated the divorce proceedings. The Supreme
Filipino spouse should likewise be allowed to remarry as Court reiterated the ruling in Republic v. Manalo such
if the other party were a foreigner at the time of the that in mixed marriages involving a Filipino and a
solemnization of the marriage. The reckoning point is foreigner, the former is allowed to contract a
not the citizenship of the parties at the time of the subsequent marriage in case the absolute divorce is
celebration of the marriage, but their citizenship at the validly obtained abroad. The law does not require that
time a valid divorce is obtained abroad by the alien the foreign spouse initiate and procure the divorce
spouse capacitating the latter to remarry. To rule decree.
otherwise would be to sanction absurdity and injustice.
Where the interpretation of a statute according to its REPUBLIC V. COTE
exact and literal import would lead to mischievous G.R. 212860, March 14, 2018
results or contravene the clear purpose of the
legislature, it should be construed according to its spirit Rhomel and Florie, both Filipinos, were married in the
and reason, disregarding as far as necessary the letter Philippines. Later on, Rhomel became a naturalized
of the law. Hence, Orbecido should be allowed to American citizen and obtained a divorce decree. Florie
remarry. then commenced a petition for recognition of foreign
judgment before the RTC. The Republic opposed said
MIRORU FUJIKI VS. MA. PAZ MARINAY & S. petition. The recognition of the divorce decree should be
MAEKAR granted, pursuant to Article 26(2) of the Family Code.
G.R. NO. 196049, June 26, 2013 In Republic v. Obrecido III, it was ruled that the
reckoning point is not the citizenship of the parties at
Without dissolving her first marriage with Fujiki, Marinay the time of the celebration of the marriage, but their
married Maekara. However, she suffered from physical citizenship at the time a valid divorce is obtained abroad
abuse from Maekara while they are living in Japan which by the alien spouse capacitating the latter to remarry.
prompted her to leave him. She met Fujiki again and
they reestablished their relationship. Fujiki helped CHAPTER 2: MARRIAGES EXEMPTED FROM
Marinay obtain a judgment from a family court in Japan, LICENSE REQUIREMENT
which declared the marriage between Marinay and MARRIAGE UNDER ARTICULO MORTIS
Maekara void on the ground of bigamy. Thereafter,
Fujiki filed a petition in the RTC for the Judicial Article 27, FC. In case either or both of the contracting
Recognition of Foreign Judgment (or Decree of Absolute parties are at the point of death, the marriage may be
Nullity of Marriage). RTC dismissed the petition on the solemnized without necessity of a marriage license and
ground that only Maekara or Marinay can file the petition shall remain valid even if the ailing party subsequently
to declare their marriage void. While the Philippines survives. (72a)
does not have a divorce law, Philippine courts may,
however, recognize a foreign divorce decree under Article 28, FC. If the residence of either party is so
Article 26 (2) of the Family Code, to capacitate a Filipino located that there is no means of transportation to
citizen to remarry when his or her foreign spouse enable such party to appear personally before the local
obtained a divorce decree abroad. However, the civil registrar, the marriage may be solemnized without
petitioner has to prove the foreign judgement as a fact necessity of a marriage license. (72a)
under the Rules of Court. Moreover, the effect of foreign
judgement is not automatic, the Philippine courts must Article 29, FC. In the cases provided for in the two
determine if such foreign judgement is consistent with preceding articles, the solemnizing officer shall state in
domestic public policy and other mandatory laws. Here, an affidavit executed before the local civil registrar or
Fujiki can prove as a fact the judgement of the Japanese any other person legally authorized to administer oaths
Family Court under Rule 108 of the Rules of Court, since that the marriage was performed in articulo mortis or
such petition is consistent with the public policy of the that the residence of either party, specifying the barrio
Philippines, as bigamous marriages are declared void or barangay, is so located that there is no means of
from the beginning. transportation to enable such party to appear personally
before the local civil registrar and that the officer took
REPUBLIC V. MANALO the necessary steps to ascertain the ages and
53
relationship of the contracting parties and the absence 3. He is convinced that there are no legal
of legal impediment to the marriage. (72a) impediments to marry
Article 30, FC. The original of the affidavit required in The original copy of the affidavit shall be submitted to
the last preceding article, together with the legible copy the LCR where the marriage was performed within 30
of the marriage contract, shall be sent by the person days.
solemnizing the marriage to the local civil registrar of
the municipality where it was performed within the MARRIAGE AMONG MUSLIMS OR MEMBERS OF
period of thirty days after the performance of the ETHNIC CULTURAL COMMUNITIES
marriage. (75a)
Article 33, FC. Marriages among Muslims or among
Article 31, FC. A marriage in articulo mortis between members of the ethnic cultural communities may be
passengers or crew members may also be solemnized performed validly without the necessity of marriage
by a ship captain or by an airplane pilot not only while license, provided they are solemnized in accordance
the ship is at sea or the plane is in flight, but also during with their customs, rites or practices. (78a)
stopovers at ports of call. (74a)
Marriage amongs Muslims and Members of Ethnic
Article 32, FC. A military commander of a unit, who is Communities
a commissioned officer, shall likewise have authority to Code of Muslim Personal Laws is the governing law on
solemnize marriages in articulo mortis between persons Persons and Family Relations amongst Muslims. No
within the zone of military operation, whether members marriage license is required provided it is done in
of the armed forces or civilians. (74a) accordance with their customs, rites, or practices.
Articulo Mortis Both parties must be Muslims or members of the ethnic

Articulo Mortis is a marriage where one of the parties is community. If only one part is a Muslim or a member of
at the point of death which may be solemnized (by the ethnic community, the Family Code shall govern; a
persons authorized to solemnize marriage under Article license is needed.
7 FC) even without a marriage license due to necessity
and practicability. ZAMORANOS V. PACASUM SR.
G.R. No. 193902, June 1, 2011
Ship Captain or Airplane Chief
May solemnize when: Zamoranos and De Guzman, both Muslims, married in
1. One of the parties is in Articulo Mortis; 1982. Subsequently, they obtained a divorce by talaq in
2. The parties must be passengers or crew; and 1982. This divorce was confirmed by the Shari’a Court.
3. The ship or airplane must be in transit. In 1989, Zamoranos married Pacasum. Later, they were
de facto separated and entered into a compromise
Military Commanders agreement regarding custody over their children.
May solemnize when: Pacasum didn’t like this and filed several cases against
1. He is a commissioned officer of a unit with a Zamoranos, including a case for bigamy and a petition
chaplain; for annulment of marriage. The petition for annulment
2. The assigned chaplain is absent; was dismissed by the RTC because such was under the
3. One of the parties is in Articulo Mortis; jurisdiction of the Shari’a Court, both parties being
4. The parties must be member of the unit or a Muslims. On the other hand, the bigamy case proceeded
civilian; and as the RTC had jurisdiction over crimes punished in the
5. The Marriage must be done in the zone of RPC. The Supreme Court ruled that the RTC should have
operations. suspended the criminal proceedings until the validity of
Zamoranos and De Guzman’s marriage was litigated
Marriage in a Far and Remote Place before the Shari’a Court. Trying Zamoranos for bigamy
Where one of the party resides in a remote place that is simply because the regular criminal courts have
far and inaccessible by ordinary means to the office of jurisdiction defeats the purpose for the enactment of the
local registry office is exempt from license requirement. Code of Muslim Personal Laws and the equal recognition
This is to encourage the parties to marry and legalize bestowed by the State on Muslim Filipinos.
their relationship instead of cohabiting in an illicit
relationship.
NOLLORA JR. V. PEOPLE
G.R. No. 191425, September 7, 2011
Affidavits to be Executed
The solemnizing Officer of an articulo mortis marriage
Nollora Jr. was charged with bigamy. Both his wives
must:
were non-Muslim. In his defense, he claims that as a
1. Execute an affidavit before the LCR stating that
Muslim, he is allowed to have four wives. However,
he solemnized the marriage under articulo mortis;
granting that he is indeed a Muslim at the celebration of
2. He took all the necessary steps to ascertain the
both marriages, he cannot deny that both marriage
age and relationship of the contracting parties; and
ceremonies were not conducted in accordance with the
3. He is convinced that there are no legal
Code of Muslim Personal laws. Article 13(2) of the Code
impediments to marry.
of Muslim Personal Laws states that in case of a
If the marriage was done in a far and remote place, the
marriage between a Muslim and a non-Muslim,
solemnizing officer must:
solemnized not in accordance with Muslim law, the
1. Execute an affidavit before the LCR stating that
Family Code of the Philippines shall apply.
he solemnized the marriage in a far and remote
place;
2. He took all the necessary steps to ascertain the PEOPLE OF THE PHILIPPINES V. ERWIN ONG
age and relationship of the contracting parties, G.R. No. 202130, April 7, 2004
and
54
Accused-appellant was charged with Bigamy. His in fact cannot make any cohabitation by either spouse
defense is that he cannot be guilty of bigamy because with any party as being one as “husband and wife”.
at the time he contracted the 2nd marriage, he already
converted to Islam and therefore, exempted from the MANZANO VS. SANCHEZ
coverage of the penal law on bigamy by virtue of Art. AM No. MTJ 00-1329, March 8, 2001
180 of the Code of Muslim Personal Laws of the
Philippines (P.D 1083). The Court held that accused- An administrative case was filed by the complainant
appellant is guilty of bigamy as all the elements of the against the respondent judge for solemnizing the
crime of bigamy has been proven. He could also not marriage of her husband and another woman who also
avail of the exemption provided for by the P.D 1083 as had a valid and subsisting marriage. On her defense, the
the standing rule is that Art. 180 of P.D 1083 does not judge presented a joint affidavit executed by petitioner’s
bar prosecution for bigamy when the first marriage is husband and the 2nd wife, stating that they had been
not conducted according to Muslim Law. cohabiting as husband and wife for seven years.
Supreme Court found merit to the complaint. It noted
RATIFICATION OF MARITAL COHABITATION that the judge could not take refuge for such affidavit.
Just like separation, free and voluntary cohabitation
Article 34, FC. No license shall be necessary for the with another person for at least five years does not
marriage of a man and a woman who have lived severe the tie of a subsisting previous marriage. Marital
together as husband and wife for at least five years and cohabitation for a long period of time between two
without any legal impediment to marry each other. The individuals who are legally capacitated to marry each
contracting parties shall state the foregoing facts in an other is merely a ground for exemption from marriage
affidavit before any person authorized by law to license. It could no serve as a justification for
administer oaths. The solemnizing officer shall also state respondent Judge to solemnize a subsequent marriage
under oath that he ascertained the qualifications of the vitiated by the impediment of a prior existing marriage.
contracting parties are found no legal impediment to the Clearly, respondent Judge demonstrated gross
marriage. (76a) ignorance of the law when he solemnized a void and
bigamous marriage.
Ratification of Marital Cohabitation
When a man and a woman had been living together as COSCA VS. PALAYPAYON
husband and wife for at least 5 years and there are no A.M. No. MTJ-92-721. September 30, 1994
legal impediments to marry is exempt from the license
requirement. They will only have to execute a joint Administrative complaints were filed against respondent
affidavit of Cohabitation. This will serve as their judge on the ground of illegal solemnization of marriage,
marriage license. among others. They alleged that respondent solemnized
marriages without the requisite marriage license. The
Rationale: This is to encourage live-in relationships to judge contends that he validly solemnized the marriage
legalize their cohabitation. of one of the couples as their marriage falls with the
exemption from the marriage license requirement.
Requisites According to him, the contracting parties have
The Parties will execute a joint affidavit stating therein submitted a joint affidavit that they have been living
that: together as husband and wife for almost six years. The
1. Both of them have been living together as Court disagreed. It observed that at the time the judge
husband and wife had solemnized their marriage, one of the parties is only
for at least 5 years; and 18 years old. If indeed they have been living together
2. They have no legal impediment to marry each for 6 years, he should have been less than 13 years old
other and that is hard to believe. The judge should have
ascertained the qualification of the contracting parties
Note: These two conditions must concur. who might have executed a false joint affidavit in order
to have an instant marriage by avoiding the marriage
Solemnizing Officer must: license requirement.
1. Take all the necessary steps to ascertain the
qualifications of the contracting parties, and REPUBLIC VS. DAYOT;
2. He is convinced that there are no legal FELIZA TECSON-DAYOT V. DAYOT
impediments to marry. G.R. No. 175581, G.R. No. 179474; March 28, 2008
NIÑAL V. BADAYOG Feliza and Jose were married at Pasay City hall. In lieu
G.R. No. 133778, March 14, 2000 of a marriage license, they executed a sworn affidavit
attesting among others, that they have lived as husband
Petitioners filed a petition for declaration of the nullity and wife for at least 5 years. Jose later on filed for
of the marriage of their deceased father and respondent annulment and alleged that he never executed such
as void on the ground of lack of marriage license. The affidavit and his consent to the marriage was secured as
Court ruled that the second marriage is not covered by fraud. This was denied by Feliza and the latter also filed
the exception to the requirement of a marriage license for a case of bigamy and an administrative case against
therefore void ab initio. One of the instances where the Jose for contracting a 2nd marriage while their marriage
requirement for a marriage license is ratification of is still subsisting. The Court ruled that the marriage
marital cohabitation. The Court ruled that the five-year between Feliza and Jose is void ab initio. Marriages of
cohabitation period should be in the nature of a perfect exceptional character are, doubtless, the exceptions to
union that is valid under the law but rendered imperfect the rule on the indispensability of the formal requisite of
only by the absence of the marriage contract. In this a marriage license. In this case, it was proven that Jose
case, the father had a valid subsisting marriage at the and Feliza only started living together barely five
time he cohabitated with respondent. The subsistence months prior to the celebration of their marriage hence
of the marriage even if the spouses may be separated the affidavit, as correctly pointed out by the Court of
55
Appeals, is a mere scrap of paper. The falsity of the

allegation in the affidavit on the period of their Based on law and the Guidelines on the Solemnization
cohabitation is not a mere irregularity for it refers to a of Marriage by the Members of the Judiciary, the person
quintessential fact that the law precisely required to be who notarizes the contracting parties' affidavit of
deposed and attested to by the parties under oath. cohabitation cannot be the judge who will solemnize the
parties' marriage.
DE CASTRO V. ASSIDAO-DE CASTRO
G.R. No. 160172, February 13, 2008, 568 PHIL 724- As a solemnizing officer, the judge's only duty involving
734 the affidavit of cohabitation is to examine whether the
parties have indeed lived together for at least five years
The marriage solemnized without a marriage license on without legal impediment to marry.
the basis of an affidavit executed by the parties that
they have already been living together as husband and Affidavits of cohabitation are documents not connected
wife for at least five years is null and void if it turns out with the judge's official function and duty to solemnize
that the affidavit is falsified as the allegations therein marriages. Notarizing affidavits of cohabitation is
are not true. If the truth is that the parties did not live inconsistent with the duty to examine the parties'
together for at least five years, then the marriage will requirements for marriage. If the solemnizing officer
not fall under the exception and therefore there is a notarized the affidavit of cohabitation, he cannot
need for a marriage license. The falsified affidavit does objectively examine and review the affidavit's
not exempt the parties and their marriage is considered statements before performing the marriage ceremony.
to be one without a license, hence, void. The falsity of Should there be any irregularity or false statements in
the affidavit cannot be considered to be a mere the affidavit of cohabitation he notarized, he cannot be
irregularity considering that the 5-year period is a expected to admit that he solemnized the marriage
substantial requirement of the law to be exempted from despite the irregularity or false allegation.
obtaining a marriage license
MODULE 6: VOID AND VOIDABLE MARRIAGES
VOID AB INITIO MARRIAGES
OFFICE OF THE COURT ADMINISTRATOR V.
NECESSARIO
A.M. No. MTJ-07-1691, April 2, 2013, 707 PHIL 328- Article 35, FC. The following marriages shall be void
364 from the beginning:
The Court does not accept the arguments of the (1) Those contracted by any party below eighteen years
respondent judges that the ascertainment of the validity of age even with the consent of parents or guardians;
of the marriage license is beyond the scope of the duty (2) Those solemnized by any person not legally
of a solemnizing officer especially when there are glaring authorized to perform marriages unless such marriages
pieces of evidence that point to the contrary. were contracted with either or both parties believing in
good faith that the solemnizing officer had the legal
The judges' gross ignorance of the law is evident when authority to do so;
they solemnized marriages under Article 34 of the (3) Those solemnized without license, except those
Family Code without the required qualifications and with covered the preceding Chapter;
the existence of legal impediments. Marriages of (4) Those bigamous or polygamous marriages not failing
exceptional character such as those made under Article under Article 41;
34 are, doubtless, the exceptions to the rule on the (5) Those contracted through mistake of one contracting
indispensability of the formal requisite of a marriage party as to the identity of the other; and
license. Under the rules of statutory construction, (6) Those subsequent marriages that are void under
exceptions as a general rule should be strictly but Article 53.
reasonably construed. The affidavits of cohabitation
should not be issued and accepted pro forma particularly Two Kinds of Defective Marriage
in view of the settled rulings of the Court on this matter.
The five-year period of cohabitation should be one of a VOID VOIDABLE
perfect union valid under the law but rendered imperfect MARRIAGES MARRIAGES
only by the absence of the marriage contract. The
parties should have been capacitated to marry each Defective ab Valid until
Validity
other during the entire period and not only at the time initio annulled
of the marriage.
Ratification Cannot be ratified Can be ratified
The absence of a marriage license will clearly render a
marriage void Ab Initio. The actions of the judges have Can only be
raised a very alarming issue regarding the validity of the questioned
Can be attacked
marriages they solemnized since they did not follow the Attack during the
collaterally
proper procedure or check the required documents and lifetime of the
qualifications. In Aranes v. Judge Salvador Occiano, the parties
Court said that a marriage solemnized without a
marriage license is void and the subsequent issuance of Can be assailed
the license cannot render valid or add even an iota of Nullity can be by third parties
validity to the marriage. It is the marriage license that As to time to raised even after (parents
gives the solemnizing officer the authority to solemnize question the death of without
a marriage and the act of solemnizing the marriage either party parental
without a license constitutes gross ignorance of the law. consent)
TUPAL V. ROJO Action to annul

Prescription
A.M. No. MTJ-14-1842 (Resolution), February 24, 2014 prescribes
56
Action to declare identity of other party, not merely a mistake in the

nullity is name, personal qualifications, character, social
imprescriptible standing
6. Those subsequent marriages that are void

Can only be Can be assailed under Article 53.
assailed by by third parties Article 53 should be read in conjunction with Article
Persons who parties to the (parents if 52. Article 52 provides that when a Court dissolves
can assail marriage without your marriage through a decree of annulment or a
(A.M. No. 02-11- parental decree declaring your marriage void, you should not
10 SC) consent) remarry right away. The following should be
complied with first:
Declaration of
Caption of Annulment of a. Have the decree of annulment recorded in the
Nullity of
the Case Marriage office of the local civil registry; and
Marriage
VOID MARRIAGE b. The partition of the conjugal property between the

Void marriages are usually defective because they failed former spouses should also be recorded in the office
to comply with essential and formal requisites under of the register of deeds.
Articles 2 and 3.
Failure to comply with the foregoing will make the
1. Below 18 years of age; subsequent marriage void.
Even if the entire family consents, still it is void. The
defect cannot be curable. Marriage is void for lack of COLLATERAL ATTACK
legal capacity The nullity of the marriage is not the principal or main
issue of the case but it is necessary to the resolution of
2. Solemnized by a person not authorized to the case. Usually done to question inheritance of
solemnize a marriage; children born out of void marriages and can also be done
GEN: The marriage is void ab initio. in an action to question child support.
XPN:
1. Express - If either or both parties believed in Example:
good faith that the solemnizing officer had the 1. Settlement of the estate. The validity of the
legal authority to do so (FC, Art. 35). deceased’ marriage
is important.
2. Implied - Article 10 in relation to Article 26 of
the Family Code. If the marriage between a There is no need to produce proof of a prior
foreigner and a Filipino citizen abroad judicial declaration of nullity of marriage
solemnized by a Philippine consul assigned in because evidence other than the judicial
that country is recognized as valid in the host decision of nullity of marriage can be presented
country, such marriage shall be considered as to establish the illegitimacy of some claimants.
valid in the Philippines
This is the only portion of the Family Code where 2. Action for support. The alleged father can raise
you can find good faith as a ground to validate the issue of the validity of the marriage.
what is an otherwise void marriage since the
rule is when marriage is void, it cannot produce Note: Other than for purposes of marriage, no judicial
anything and good faith is not generally a action is necessary to declare a marriage an absolute
defense. (Marriage with fake license or one nullity.
party is below 18 – good faith will not make the
marriage valid) DIRECT ATTACK
This is necessary if the purpose is to remarry and also
3. When there is an absence of a marriage license to revoke donations propter nuptias.
except those under Art. 27 to 34;
Article 40
4. Bigamous or polygamous marriage; Art. 40 provides that absolute nullity of a previous
A bigamous marriage is when there is a prior, marriage may be invoked for purposes of remarriage on
subsisting marriage which has not been legally the basis solely of a final judgement declaring such
dissolved. marriage is void. You need to file a civil action for the
declaration of nullity of the first marriage.
A polygamous marriage is when there is more than
2 (3 or 4), and a prior, subsisting marriage which has Article 50
not been legally dissolved Art. 50 in relation to Art. 43(3) [revocation of a donation
propter nuptias because the marriage is void] provides
5. Those contracted through mistake of one that one need to obtain a judicial declaration of nullity
contracting party as to the identity of the other; of marriage to revoke a donation propter nuptias.
Example: The person you married before a priest or
a judge turned out to be not the real person that you Void marriage is void ab initio that’s why that action to
intended to marry. The consent you gave in front of declare is imprescriptible.
the solemnizing officer is not for that person that you
are marrying, it is intended for another person. SPLITTING-A-CAUSE RULE
The case for nullity of marriage involves only one cause
For marriage to be rendered void, the mistake in of action which is to declare the marriage void
identity must be with reference to the actual physical
57
regardless of the number of grounds available to a 3. Sufficiently proven by experts; and

party. 4. Clearly explained in the decision.
VOID DUE TO PSYCHOLOGICAL INCAPACITY NOTE: Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
Article 36, FC. A marriage contracted by any party
who, at the time of the celebration, was psychologically Action to Declare Nullity on the Ground of
incapacitated to comply with the essential marital Psychological Incapacity
obligations of marriage, shall likewise be void even if The action can be filed even by the incapacitated party.
such incapacity becomes manifest only after its Party who was declared psychologically incapacitated by
solemnization. (As amended by Executive Order 227) the court may still contract a second marriage since
psychological incapacity is not absolute and is very
PSYCHOLOGICAL INCAPACITY person and limited and therefore relative to the situation
There is no clear definition on psychological incapacity at hand.
since it was the intention of law to leave the
determination of psychological incapacity with the Expert Testimonies of psychologists and psychiatrists
courts on a case-to-case basis. Therefore, the presence are not required and it is up to the court to accept it or
of psychological incapacity depends upon the facts of not. The court may base its decision on the totality of
the case. the evidence other than the findings of an expert
witness. (Marcos vs Marcos)
Generally however, psychological incapacity refers to
the inability of a party to the marriage to comply with Personal medical or psychological examination of a
the essential marital obligations because of respondent is not a requirement for a declaration of
psychological reasons. psychological incapacity, but it is mostly helpful in the
resolution of the case. (Matias v Dagdag)
Psychological incapacity is not insanity nor is it mental
illness since the former is just a part of the latter. It is The decision of the National Appellate Matrimonial
also not a physical defect. The party simply refuses to Tribunal, to be given weight and respect by the courts,
perform these obligations although physically capable must be anchored on Canon 1095, par. 3 which is the
due to psychological causes. basis of article 36. (Najera v Najera)
Example: A nymphomaniac or a homosexual. A Filing of the action of Incapacitated Person

nymphomaniac can never be satisfied or content with The incapacitated Person may also file the case to
having sexual relations with the husband alone. They declare the marriage void on the ground of psychological
will always look for other men who will satisfy their incapacity. Also the incapacitated party may contract a
sexual desires. Even if they know that they should not subsequent marriage as the ground is highly personal
have sex with other men, their mind dictates that they and limited. (Halili v. Halili)
have to do it. So, they are not able to perform an
essential marital obligation. Moral Damages
Moral damages cannot be claimed from the
Important: There is no such thing as absolute incapacitated party because he or she cannot be held
psychological incapacity. It is only relative. One may answerable because he or she is not aware of his
be incapacitated to one partner but does not necessarily incapacity. (Buenaventura v CA)
applies to all.
CASES GRANTED BY THE SUPREME COURT
ESSENTIAL CHARACTERISTICS OF
PSYCHOLOGICAL INCAPACITY Chi Ming Tsoi vs. Court of Appeals
The SC said that the refusal of the husband to have sex
1. Juridical Antecedence: Must exist at the time of even if he is physically capable is a manifestation of
celebration psychological incapacity. The contention of the husband
2. Gravity: Very serious defect that it was instead his wife who refuses to have sex with
3. Incurability: Not Curable him is of no moment, for even if it is true, the action to
declare the marriage void on the ground of psychological
INCAPACITY MUST CONSIST OF THE FOLLOWING incapacity can be brought by the party at fault.
1. A true inability to commit oneself to the Antonio vs. Reyes

essentials of marriage; Where the wife’s defect of being a congenital liar was
2. This inability to commit oneself must refer to the considered by the Court as a form of psychological
essential obligations of marriage: the conjugal incapacity. It also gave much weight to the findings of
act, community of life and love, rendering of the Matrimonial Tribunal of Manila, as affirmed by the
mutual help, procreation and education of Roman Rota in Vatican, that the marriage is annullable
offspring. on the ground of psychological incapacity of a party.
3. The inability must be tantamount to Te vs. Te
psychological abnormality Where the petitioner was found to be suffering from
dependent personality disorder while the respondent
Note: It is not enough to prove that a spouse failed to was also suffering from narcissistic and anti-social
meet his responsibility and duty as a married person. personality disorder.
Proof of Psychological Incapacity CASES DENIED BY THE SUPREME COURT

The root cause of psychological incapacity must be:
1. Medically or clinically identified; Santos vs. CA
2. Alleged in the complaint;
58
The Supreme Court ruled that failure of the wife to

return home and communicate does not constitute Note: The mandatory nature of the OSG’s certification
psychological incapacity. in requirement in (h) has been dispensed with by AM
No. 02-11-10 SC. This may be applied retroactively to
Choa vs. Choa pending matters. (Rumbua v. Rumbua)
A mere showing of irreconcilable differences and
conflicting personalities in no wise constitute Molina Doctrine as Strait-Jacket
psychological incapacity. The Molina doctrine has become a strait-jacket, forcing
all sizes to fit into and be bound by it. The Court has
Dedel vs. CA allowed diagnosed sociopaths, schizophrenics,
Disordered personality is not a ground for declaring a nymphomaniacs, narcissists and the like, to
marriage void. Sexual Infidelity or perversion and continuously debase and pervert the sanctity of
abandonment do not constitute psychological marriage.
incapacity.
The court in Te v. Te clarified, thus, no case is “on all
Siayngco vs. Siayngco fours” with another case as far as psychological
An unsatisfactory marriage is not a null and void incapacity as a ground for declaring the nullity of
marriage. Whether or not psychological incapacity exists marriage is concerned. The Molina doctrine is not being
depends crucially on the facts of the case abandoned, however these cases must be interpreted
on a case to case basis, guided by experience, the
Republic vs. Lolita Quintero-Hamano findings of experts and researchers in psychological
The rule on psychological incapacity applies even if the disciplines, and by decisions of church tribunals. (Te v.
spouse is a foreigner. The foreigner husband’s act of Te)
abandonment is doubtlessly irresponsible but it was
never alleged nor proven to be due to some kind of It was again clarified in another case that the Molina
psychological illness doctrine was not abandoned in Te v. Te as it merely
declared in the said case that, in hindsight, it is
Note: Every time the court denies a petition, it never inappropriate for the court to impose a rigid set of rules
fails to cite the 3 elements of psychological incapacity. in resolving cases of psychological incapacity. (Ting v.
If one element is lacking, then the petition will be Velez-Ting)
denied.
PSYCHOLOGICAL DISORDERS TAKE FROM ROMAN
MOLINA DOCTRINE ROTA DECISIONS
Provides for the Guidelines in Applying Article 36 of the
Family Code. The Supreme Court, being alarmed 1. Hypersexuality - Nymphomania
because the indiscriminate actions of the lower court 2. Hypersexuality - Satyriasis
judges due to the wide leeway given to them in 3. Homosexuality
determining the applicability of Article 36, laid down the 4. Lesbianism
jurisprudential guidelines in determining the presence of 5. Schizophrenia
Psychological incapacity. 6. Affective Immaturity
7. Anti-Social Personality Disorder
Jurisprudential Guidelines in determining 8. Dependent Personality Disorder
Existence of Psychological Incapacity as per 9. Vaginismus or Psychic impotence
Republic v. Molina 10. Sexual Disorder
11. Psychoneurosis
1. Burden of proof belongs to plaintiff; 12. Lack of Interpersonal Integration
2. Root cause of psychological incapacity must be 13. Immature Personality
medically or clinically identified, alleged in the 14. Obsessive-Compulsive Personality
complaint, sufficiently proven by experts; 15. Frigidity
3. Incapacity must be proven to exist at the time 16. Alcoholism and Gambling
of celebration, even if it manifests after 17. Liar, cheat and swindler
marriage; 18. Sexual Neurosis
4. Incapacity must be shown to be medically or 19. Hysterical Personality
clinically permanent and incurable; 20. Psychic Immaturity
5. Illness grave enough to prevent assuming
essential marital obligations; SANTOS VS. COURT OF APPEALS
6. f. Essential marital obligations must be those in G.R. No. 112019, January 4, 1995
Articles 68 to 71, 220, 221, 225;
7. Interpretations by the National Appellate DOCTRINE: Psychological incapacity must be
Matrimonial Tribunal of the Catholic Church in characterized by (a) gravity, (b) juridical antecedence,
the Philippines should be given great respect by and (c) incurability. Psychological incapacity" should
our courts; and refer to no less than a mental (not physical) incapacity
8. The trial court must order the Prosecuting that causes a party to be truly incognitive of the basic
Attorney or Fiscal and the Solicitor General to marital covenants that concomitantly must be assumed
appear as counsel for the State. No decision and discharged by the parties to the marriage which, as
shall be handed down unless the Solicitor so expressed by Article 68 of the Family Code, include
General issues a certification, which will be their mutual obligations to live together, observe love,
quoted in the decision, briefly stating therein his respect and fidelity and render help and support.
reasons for his agreement or opposition, as the
case may be, to the petition which must be Leouel and Julia exchanged vows on September 20,
passed within 15 days from the date the case is 1986. A year after the marriage, the couple when
deemed submitted for resolution of the court. quarreling over a number of things including the
59
interference of Julia’s parents into their marital affairs. Whether or not in the absence of petitioner in the
On May 18, 1998, Julia finally left for the United States. hearing, the court should have ordered a prosecuting
Leouel was then unable to communicate with her for a officer to intervene.
period of five years and she had then virtually
abandoned their family. Leouel filed a case for nullity on The role of the prosecuting attorney or fiscal in
the ground of psychological incapacity. The Regional annulment of marriage and legal separation proceedings
Trial Court dismissed the complaint for lack of merit. The is to determine whether collusion exists between the
Court of Appeals affirmed the decision of the trial court. parties and to take care that the evidence is not
suppressed or fabricated. Petitioner's vehement
Whether or not the grounds of psychological incapacity opposition to the annulment proceedings negates the
in this case should be appreciated. conclusion that collusion existed between the parties.
There is no allegation by the petitioner that evidence
The failure of Julia to return home or to communicate was suppressed or fabricated by any of the parties.
with her husband Leouel for more than five years does Under these circumstances, we are convinced that the
not constitute psychological incapacity. Psychological non-intervention of a prosecuting attorney to assure
incapacity must be characterized by (a) gravity, (b) lack of collusion between the contending parties is not
juridical antecedence, and (c) incurability. Psychological fatal to the validity of the proceedings in the trial court
incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly Petitioner also alleges that if he were able to present his
incognitive of the basic marital covenants that evidence, he could have testified that he was not
concomitantly must be assumed and discharged by the psychologically incapacitated at the time of the marriage
parties to the marriage which, as so expressed by Article as indicated by the fact that during their first ten years,
68 of the Family Code, include their mutual obligations he and private respondent lived together with their
to live together, observe love, respect and fidelity and children as one normal and happy family, that he
render help and support. continued supporting his family even after he left the
conjugal dwelling and that his work as owner and
The intendment of the law has been to confine the operator of a radio and television corporation places him
meaning of "psychological incapacity" to the most in the public eye and makes him a good subject for
serious cases of personality disorders clearly malicious gossip linking him with various women. These
demonstrative of an utter insensitivity or inability to give facts, according to petitioner, should disprove the
meaning and significance to the marriage. This ground for annulment of his marriage to petitioner.
psychological condition must exist at the time the
marriage is celebrated. The finding of the trial court as to the existence or non-
existence of petitioner's psychological incapacity at the
TUASON VS. CA time of the marriage is final and binding on us. Petitioner
G.R. No. 116607, April 10, 1996 has not sufficiently shown that the trial court's factual
findings and evaluation of the testimonies of private
DOCTRINE: The role of the prosecuting attorney or respondent's witnesses vis-a-vis petitioner's defenses
fiscal in annulment of marriage and legal separation are clearly and manifestly erroneous.
proceedings is to determine whether collusion exists
between the parties and to take care that the evidence SALITA VS. MAGTOLIS
is not suppressed or fabricated. G.R. No. 106429, June 13, 1994
On June 1972, respondent Victoria Lopez Tuazon Spouses Erwin Espinosa and Joselita Salita’s relationship
married petitioner Emilio Tuazon. Due to the series of turned sour after a year of their marriage, which
physical abuse against the respondent, the petitioner prompted them to be separated in fact, which in turn led
use of prohibited drugs, cohabitating with three women, Erwin to sue for annulment on the ground of Joselita’s
leaving the conjugal home and giving minimal child psychological incapacity, which incapacity existed at the
support, abuse of conjugal property use and incurring of time of the marriage although the same became
bank debts without the respondent consent, respondent manifest only thereafter.
filed a petition for annulment of marriage in 1989 on the
ground of psychological incapacity and prayed for Dissatisfied with the allegation in the petition, Joselita
powers of administration to save the conjugal properties moved for a bill of particulars which the trial court
from further dissipation. granted.
Petitioner filed his Opposition in April 1990 and was Subsequently, in his Bill of Particulars, Erwin specified
scheduled to present his evidence. Counsel for that at the time of their marriage, Joselita was
petitioner moved for a postponement, however, psychologically incapacitated to comply with the
petitioner failed to appear. The trial court rendered essential marital obligations of their marriage in that she
judgment declaring the nullity of marriage and awarding was unable to understand and accept the demands
the custody of common children to respondent. No made by his profession — that of a newly qualified
appeal was taken. Doctor of Medicine — upon his time and efforts so that
Thereafter, respondent filed Motion for Dissolution of she frequently complained of his lack of attention to her
Conjugal Partnership of Gains and Adjudication to even to her mother, whose intervention caused
Plaintiff of the Conjugal Properties which was opposed petitioner to lose his job.
by petitioner. Petitioner filed a Petitioner from Relief of
Judgment on the held decision. The trial court denied Petitioner (Joselita) insisted that the allegations in the
the petition which was affirmed by the CA. Hence, this Bill of Particulars constitute a legal conclusion, not an
petition for review on certiorari. averment of ultimate facts, and fail to point out the
specific essential marital obligations she allegedly was
not able to perform, and thus render the Bill of
60
Particulars insufficient if not irrelevant to her husband’s irresponsibility”. In October 1986, the couple had a very
cause of action. intense fight which estranged their relationship.
Are the allegations in the petition for annulment of Subsequently, Roridel filed a petition for declaration of
marriage and the subsequent bill of particulars filed in nullity of her marriage to Reynaldo contending that the
amplification of the petition sufficient? latter is psychologically incapable of complying with
essential marital obligations. Petitioner argues that
Yes. A complaint only needs to state the "ultimate facts “opposing and conflicting personalities” is not equivalent
constituting the plaintiff’s cause or causes of action." to psychological incapacity.
Ultimate facts has been defined as "those facts which
the expected evidence will support." The term does not Do irreconcilable differences and conflicting personality
refer to the details of probative matter or particulars of constitute psychological incapacity?
evidence by which these material elements are to be
established. No. The marriage between Roridel and Reynaldo
subsists and remains valid. What constitutes
Private respondent has already alleged that “petitioner psychological incapacity is not mere showing of
was unable to understand and accept the demands irreconcilable differences and conflict on personalities.
made by his profession x x x upon his time and efforts
x x x x” Certainly, she can respond to this. To demand It is indispensable that the parties must exhibit
for more details would indeed be asking for information inclinations which would not meet the essential marital
on evidentiary facts – facts necessary to prove essential responsibilities and duties due to some psychological
or ultimate facts. For sure, the additional facts called for illness. Reynaldo’s action at the time of the marriage
petitioner regarding her particular acts or omissions did not manifest such characteristics that would
would be evidentiary, and to obtain evidentiary matters comprise grounds for psychological incapacity. The
is not the function of a motion for bill of particulars. evidence shown by Roridel merely showed that she and
her husband cannot get along with each other and had
CHI MING TSOI VS. CA not shown gravity of the problem neither its juridical
G.R. No. 119190, January 16, 1997 antecedence nor its incurability.
Chi Ming Tsoi and Gina Lao Tsoi was married in 1988. In the case at bar, finding that there was no
There was no sexual intercourse that transpired psychological incapacity on the part of the respondent-
between them during their first night and same thing husband but more a “difficulty’’ if not outright “refusal’’
happened until their fourth night. Since May 1988 until or “neglect’’ in the performance of some marital duties,
March 1989 they slept together in the same bed but no and that the evidence merely showed that the parties
attempt of sexual intercourse between them. Gina does could not get along with each other, the Supreme Court
not want to reconcile with Chi Ming Tsoi and want their denied the petition for declaration of nullity of marriage
marriage declared void on the ground of psychological filed by petitioner-wife.
incapacity. On the other hand, the latter does not want
to have their marriage annulled because he loves her Note: In this case, the court further laid down the
very much, he insists that has no defect on his part and following guidelines in the interpretation and application
is physically and psychologically capable and since their of Article 36 of the Family Code:
relationship is still young, they can still overcome their
differences. Chi Ming Tsoi submitted himself to another a) The burden of proof to show the nullity of the
physical examination and the result was there is no marriage belongs to the plaintiff, and any doubt
evidence of impotency and he is capable of erection. must be resolved in favor of the existence of the
marriage and against its nullity.
Is Chi Ming Tsoi’s refusal to have sexual intercourse with b) The root cause of the psychological incapacity
his wife constitute psychological incapacity? must be:
a. medically or clinically identified;
Yes. One of the essential marital obligations under the b. alleged in the complaint;
Family Code is “to procreate children based on the c. sufficiently proven by experts; and
universal principle that procreation of children thru d. clearly explained in the decision.
sexual cooperation is the basic end of marriage.’’ c) The incapacity must be proven to be existing at
Constant non-fulfillment of this obligation will finally “the time of the celebration of the marriage,’’
destroy the integrity, or wholeness of the marriage. although the manifestation need not be perceivable
at such time.
The senseless and protracted refusal of one of the d) The incapacity must also be shown to be medically
parties of sexual cooperation for the procreation of or clinically permanent or incurable, although
children is equivalent to psychological incapacity. In this the incurability may be relative only in regard to the
case, there was no sexual contact between the parties other spouse, not necessarily absolutely against
since their marriage on May 22, 1988 up to Mar. 15, everyone of the same sex. Furthermore, the
1989 or for almost a year. Likewise, either spouse may incapacity must be relevant to the assumption of
fifi le the action to declare the marriage void, even the marriage obligations, not to those not related to
psychologically incapacitated. marriage like the exercise of a profession or
employment in a job.
REPUBLIC VS. MOLINA e) Such illness must be grave enough to bring about
G.R. No. 108763, February 13, 1997 the disability of the party to assume the essential
obligations of marriage.
f) The essential marital obligations must be those
Roridel and Reynaldo were married on April 14, 1985, in
embraced by Arts. 68-71 of the Family Code as
Manila and bore a son. A year after the marriage,
Reynaldo showed signs of “immaturity and regards husband and wife, and Arts. 220-225, same
Code, in regard to parents and their children. Such
61
non-compliance must also be stated in the petition, could no longer bear Zosimo’s bad behavior, at one
proven by evidence, and included in the text of the point, Lorna, together with their children, left the
decision. conjugal dwelling. But one day, they also returned to
g) Interpretations given by the National Appellate give Zosimo a second chance. But after the second time
Matrimonial Tribunal of the Catholic Church in the when Zosimo still did not change his violent ways, Lorna
Philippines, while not controlling, should be given and their children left him for good. Lorna sued Zosimo
great respect by our courts. before the RTC for the declaration of nullity of their
h) The trial court must order the fiscal and the Solicitor marriage invoking psychological incapacity which was
General to appear as counsel for the State. No granted. The CA reversed the said decision. Hence, this
decision shall be handed down unless the Solicitor petition. The SC ruled that Lorna utterly failed, both in
General issues a certification, which will be quoted her allegations in the complaint and in her evidence, to
in the decision, briefly stating his reasons for his make out a case of psychological incapacity on the part
agreement or opposition to the petition. The of Zosimo, let alone at the time of solemnization of the
Solicitor General and the fiscal shall submit such contract, so as to warrant a declaration of nullity of the
certification to the court within fifteen (15) days marriage. Emotional immaturity and irresponsibility,
from the date the case is submitted for resolution. invoked by her, cannot be equated with psychological
incapacity.
HERNANDEZ VS. CA
G.R. No. 126010, December 8, 1999 CHOA VS. CHOA
G.R. No. 143376, November 26, 2002
Lucita and Marcio met in Philippine Christian University
in Dasmarinas when Lucita was Marcio’s teacher for two Petitioner Leni Choa and respondent Alfonso Choa were
consecutive semesters. They later on became married in 1981. Out of this union two children were
sweethearts and eventually got married. They also had born. In 1993, Alfonso filed before the RTC, a Complaint
a child. Lucita supported the family as her husband for the annulment of his marriage to Leni. Afterwards he
continued studying, supported by his parents. The first filed an Amended Complaint for the declaration of nullity
few years of their marriage went okay. But this of his marriage to petitioner based on her alleged
eventually changed. She alleged that from the time of psychological incapacity. During trial, Leni presented
their marriage up to the time of the filing of the suit, documents containing charges for perjury, false
private respondent failed to perform his obligation to testimony, concubinage and deportation that she filed
support the family and contribute to the management of against Alfonso. Alfonso now claims that these are proof
the household, devoting most of his time engaging in of the Leni’s psychological incapacity to comply with the
drinking sprees with his friends. She further claimed essential obligations of marriage.
that private respondent, after they were married,
cohabited with another woman with whom he had an The SC disagreed. It ruled that the documents
illegitimate child, while having affairs with different presented by during the trial do not in any way show the
women, and that, because of his promiscuity, private alleged psychological incapacity of Leni. It is the height
respondent endangered her health by infecting her with of absurdity and inequity to condemn her as
a sexually transmissible disease (STD). She averred that psychologically incapacitated to fulfill her marital
the private respondent was irresponsible, immature and obligations, simply because she filed cases against him.
unprepared for the duties of a married life. The evidence presented, even if taken as true, merely
establishes the prosecution of the cases against him. To
Is Marcio psychologically incapacitated to fulfill his rule that the filings are sufficient to establish her
marital obligations? psychological incapacity is not only totally erroneous,
but also grave abuse of discretion bordering on
No. Petitioner failed to prove that her respondent- absurdity. Neither is the testimony of respondent, taken
husband was psychologically incapacitated at the time by itself or in conjunction with his documentary
of the celebration of the marriage. Certainly, petitioner’s offerings, sufficient to prove petitioner's alleged
declaration that at the time of their marriage her psychological incapacity. Even if taken as true, the
respondent-husbands character was on the borderline testimony of respondent basically complains about three
between a responsible person and the happy-go-lucky, aspects of petitioner's personality; namely, her alleged
could not constitute the psychological incapacity in (1) lack of attention to their children, (2) immaturity and
contemplation of Article 36 of the Family Code. The acts (3) lack of an "intention of procreative sexuality." None
and attitudes complained of by petitioner-appellant of these three, singly or collectively, constitutes
happened after the marriage and there is no proof that "psychological incapacity."
the same have already existed at the time of the
celebration of the marriage to constitute the
BARCELONA VS. CA
psychological incapacity under Article 36 of the Family
G.R. No. 130087, Sept. 24, 2003
Code.
In 1995, private respondent Tadeo filed a Petition for
PESCA VS. PESCA Annulment of Marriage against petitioner Diana (“first
G.R.No. 136921, April 17, 2001 petition”). Subsequently, Tadeo filed a Motion to
Withdraw Petition which the trial court granted and filed
Sometime in 1975, Petitioner Lorna Pesca (Lorna) and anew a Petition for Annulment of Marriage against
respondent Zosimo Pesca (Zosimo) first met while on petitioner Diana (“second petition”) based on Article 36
board an inter-island vessel bound for Bacolod City. of the Family Code. Diana opposed the second petition
After a whirlwind courtship, they got married. In 1988, for failing to state a cause of action and for violating SC
Lorna said she noticed that Zosimo surprisingly showed Circular No. 04-94 on forum shopping. Petitioner Diana
signs of "psychological incapacity" to perform his marital argues that the second petition falls short of the
covenant. His "true color" of being an emotionally guidelines set forth in Santos and Molina.
immature and irresponsible husband became apparent.
He was cruel, violent and a habitual drinker. Since Lorna
62
The SC disagreed. It ruled that subsequent to Santos subsequent judicial declaration retroacts to the date of
and Molina, the Court adopted the new Rules on the celebration of the marriage to Ancajas. As such, he
Declaration of Absolute Nullity of Void Marriages and argues that, since his marriage to Ancajas was
Annulment of Voidable Marriages (“New Rules”). subsequently declared void ab initio, the crime of
Procedural rules apply to actions pending and bigamy was not committed.
unresolved at the time of their passage. The obvious
effect of the new Rules providing that "expert opinion The SC disagreed. It ruled that a declaration of the
need not be alleged" in the petition is that there is also nullity of the second marriage on the ground of
no need to allege the root cause of the psychological psychological incapacity is of absolutely no moment
incapacity. Only experts in the fields of neurological and insofar as the State's penal laws are concerned. The
behavioral sciences are competent to determine the root subsequent judicial declaration of nullity of marriage on
cause of psychological incapacity. the ground of psychological incapacity does not retroact
to the date of the celebration of the marriage insofar as
Since the new Rules do not require the petition to allege the Philippines' penal laws are concerned. As such, an
expert opinion on the psychological incapacity, it follows individual who contracts a second or subsequent
that there is also no need to allege in the petition the marriage during the subsistence of a valid marriage is
root cause of the psychological incapacity. What the new criminally liable for bigamy, notwithstanding the
Rules require the petition to allege are the physical subsequent declaration that the second marriage is void
manifestations indicative of psychological incapacity ab initio on the ground of psychological incapacity.
which was successfully discharged by Tadeo in his
petition. AZCUETA VS. REPUBLIC AND CA
G.R. No. 180668, May 26, 2009
DEDEL VS. CA
G.R. No. 151687, January 29, 2004 Marrieta filed a petition for declaration of nullity of
Marriage against Rodolfo for being psychologically
Petitioner David Dedel met private respondent Sharon incapacitated. She complained that during their
Corpuz Dedel while he was working in the advertising marriage that Rodolfo never bothered to look for work
business of his father. They got married twice, in 1966 and instead always asked his mother for financial
and 1967. Petitioner avers that during the marriage, assistance. They also had poor sexual relationship. The
Sharon turned out to be an irresponsible and immature issue was whether Rodolfo was psychologically
wife and mother. She had extra-marital affairs with incapacitated.
several men, and despite having undergone
psychological treatments, she did not stop her illicit The court ruled that Rodolfo’s psychologically
relationships and sexual infidelity. Finally, giving up all incapacitated to perform his marital obligations because
hope of a reconciliation with his wife, David filed a of his dependent personality disorder. The disorder was
petition seeking the declaration of nullity of his marriage clearly established at the time of and even before the
on the ground of psychological incapacity under Art. 36 celebration of marriage. The disorder was manifested by
of the Family Code. irresponsibility, overdependence on his mother and
abnormal sexual reticence. The disorder is incurable
The SC ruled that Sharon’s sexual infidelity or having engrained to him in his early years.
perversion and abandonment do not by themselves
constitute psychological incapacity within the RENATO REYES SO VS. VALERA
contemplation of the Family Code. Neither could her G.R. No. 150667, June 5, 2009
emotional immaturity and irresponsibility be equated
with psychological incapacity. It must be shown that Renato and Lorna first met in 1973 and lived together
these acts are manifestations of a disordered as husband and wife, without the benefit of marriage,
personality which make respondent completely unable before they got married in 1991. In the course of their
to discharge the essential obligations of the marital relationship, they had 3 children and established a
state, not merely due to her youth, immaturity or sexual communications business. In 1996, Renato filed with
promiscuity. At best, the circumstances relied upon by RTC a petition for the declaration of the nullity of his
petitioner are grounds for legal separation under Art. 55 marriage with Lorna. He alleged that their marriage was
of the Family Code. null and void for want of the essential and formal
requisites. He also claimed that Lorna was
TENEBRO VS. CA psychologically incapacitated to exercise the essential
G.R. No. 150785, February 18, 2004 obligations of marriage, as shown by the following
circumstances: Lorna failed and refused to cohabit and
Petitioner Veronico Tenebro, contracted marriage with make love to him; did not love and respect him; did not
private complainant Leticia Ancajas on April 10, 1990. remain faithful to him; did not give him emotional,
They lived together continuously and without spiritual, physical, and psychological help and support;
interruption until the latter part of 1991, when Tenebro failed and refused to have a family domicile; and failed
informed Ancajas that he had been previously married and refused to enter into a permanent union and
to a certain Hilda Villareyes on November 10, 1986. establish conjugal and family life with him.
Invoking this previous marriage, Tenebro thereafter left The RTC nullified the marriage, concluding that Lorna
the conjugal dwelling which he shared with Ancajas, was psychologically incapacitated to comply with her
stating that he was going to cohabit with Villareyes. marital obligations.
However, on January 25, 1993, Tenebro contracted yet
another marriage, this one with a certain Nilda Villegas. The Republic through the OSG, appealed to the CA,
When Ancajas learned of this third marriage, she which reversed and set aside the RTC decision and
confirmed the same with Tenebro who also admitted the dismissed the petition for lack of merit. It ruled that
same. Subsequently, Ancajas filed a case for bigamy Renato failed to prove Lorna’s PI because her character,
against Tenebro which was granted and Tenebro was faults, and defects did not constitute PI warranting the
convicted for bigamy. Tenebro now argues that this nullity of the parties’ marriage. The CA reasoned out
63
that while Lorna “appears to be a less than ideal mother or clinically permanent or incurable as established
to her children, and loving wife to her husband,” these jurisprudence requires. Neither did the psychologist
flaws were not physical manifestations of psychological testify that the disorder was grave enough to bring
illness. The CA further added that although Lorna’s about the disability of the party to assume the essential
condition was clinically identified by an expert witness obligations of marriage.
to be an “Adjustment Disorder,” it was not established
that such disorder was the root cause of her incapacity In Molina, SC ruled that “mild characterological
to fulfill the essential marital obligations. The peculiarities, mood changes and occasional emotional
prosecution also failed to establish that Lorna’s disorder outbursts cannot be accepted as indicative of
was incurable and permanent in such a way as to disable psychological incapacity. The illness must be shown as
and/or incapacitate Lorna from complying with downright incapacity or inability, not a refusal, neglect
obligations essential to marriage. The CA likewise held or difficulty, much less ill will. In other words, the root
that her subsequent refusal to cohabit with him was not cause should be a natal or supervening disabling factor
due to any psychological condition, but due to the fact in the person, an adverse integral element in the
that she no longer loved him. Finally, the CA concluded personality structure that effectively incapacitates the
that the declaration of nullity of a marriage was not person from really accepting and thereby complying
proper when the psychological disorder does not meet with the obligations essential to marriage.” In the
the guidelines set forth by the Supreme Court in the present case, the psychologist simply narrated adverse
case of Molina. Renato filed a MR but was denied. “snapshots” of the respondent’s life showing her alleged
failure to meet her marital duties, but did not
Was the marriage null and void due to psychological convincingly prove her permanent incapacity to meet
incapacity? her marital duties and responsibilities; the root or
psychological illness that gave rise to this incapacity;
No. The Supreme Court agreed with the CA and ruled and that this psychological illness and consequent
that the totality of evidence presented by Ramon failed incapacity existed at the time the marriage was
to establish Lorna’s psychological incapacity to perform celebrated.
the essential marital obligations. The Supreme Court did
not give much credence to the testimony and report of Given the foregoing, the Supreme Court ruled that
Renato’s expert witness. The report of the psychologist based on the evidence, psychological incapacity was not
was not sufficiently in-depth and comprehensive to proved
warrant the conclusion that PI existed that prevented
Valera from complying with marital obligations. In the VALERIO E. KALAW VS. MA. ELENA FERNANDEZ
first place, the facts on which the psychologist based her G.R. No.166357, January 14, 2015
conclusions were all derived from statements by the
petitioner whose bias in favor of his cause cannot be This is the decision based on the Motion for
doubted. Her reading may not at all be completely fair Reconsideration of the same case. In the original, the
in its assessment. We say this while fully aware that the SC dismissed the complaint, stating that there was no
psychologist appeared at the petitioner’s bidding and psychological incapacity. The petitioner relied on his
the arrangement between them was not pro bono. The expert witnesses who concluded that respondent is
“Particulars” and the “Psychological Conclusions” are psychologically incapacitated. Petitioner’s experts
disproportionate with one another; the conclusions heavily relied on petitioner’s allegations of respondent’s
appear to be exaggerated extrapolations, derived as constant mahjong sessions, visits to the beauty parlor,
they are from isolated incidents, rather than from going out with friends, adultery, and neglect of their
continuing patterns. The “particulars” are, as it were, children. Petitioner’s experts opined that respondent’s
snapshots, rather than a running account of the alleged habits, when performed constantly to the
respondent’s life from which her whole life is totally detriment of quality and quantity of time devoted to her
judged. Thus, we do not see her psychological duties as mother and wife, constitute a psychological
assessment to be comprehensive enough to be reliable. incapacity in the form of Narcissistic Personality
Disorder.
As against the negatives in viewing the respondent, we
note that she lived with the petitioner for 18 years and Is the respondent psychologically incapacitated?
begat children with him born in 1975, 1978 and 1984 –
developments that show a fair level of stability in the Yes. The Court held that the guidelines set in the case
relationship and a healthy degree of intimacy between of Republic v. CA have turned out to be rigid, such that
the parties for some eleven (11) years. She finished her their application to every instance practically
Dentistry and joined her husband in the communications condemned the petitions for declaration of nullity to the
business – traits that do not at all indicate an fate of certain rejection. But Article 36 of the Family
irresponsible attitude, especially when read with the Code must not be so strictly and too literally read and
comment that she had been strict with employees and applied given the clear intendment of the drafters to
in business affairs. The petitioner’s Memorandum itself adopt its enacted version of “less specificity” obviously
is very revealing when, in arguing that the Marriage to enable “some resiliency in its application.” Instead,
Contract was a sham, the petitioner interestingly alleged every court should approach the issue of nullity “not on
that (referring to 1987) “[S]ince at that time, the the basis of a priori assumptions, predilections or
relationship between the petitioner and respondent was generalizations, but according to its own facts” in
going well, and future marriage between the two was recognition of the verity that no case would be on “all
not an impossibility, the petitioner signed these fours” with the next one in the field of psychological
documents.” incapacity as a ground for the nullity of marriage; hence,
every “trial judge must take pains in examining the
The Supreme Court also noted that there was no proof factual milieu and the appellate court must, as much as
that Lorna’s psychological disorder was incurable. The possible, avoid substituting its own judgment for that of
psychologist’s testimony itself glaringly failed to show the trial court.
that the respondent’s behavioral disorder was medically
64
In the task of ascertaining the presence of psychological (7) Between an adopted child and a legitimate child
incapacity as a ground for the nullity of marriage, the of the adopter;
courts, which are concededly not endowed with (8) Between adopted children of the same adopter;
expertise in the field of psychology, must of necessity and
rely on the opinions of experts in order to inform (9) Between parties where one, with the intention
themselves on the matter, and thus enable themselves to marry the other, killed that other person's spouse, or
to arrive at an intelligent and judicious judgment. his or her own spouse.
Indeed, the conditions for the malady of being grave,
antecedent and incurable demand the in-depth Void Marriages because Against Public Policy
diagnosis by experts. There is no requirement for one to Nullity of the marriages under this Article hinges on the
be declared psychologically incapacitated to be relationship of the parties to the marriage. These
personally examined by a physician, because what is marriages are against public policy because they do not
important is the presence of evidence that adequately serve the fundamental objective of the state which is to
establishes the party’s psychological incapacity. Hence, nurture a stable family unity that can effectively be the
“if the totality of evidence presented is enough to foundation of society
sustain a finding of psychological incapacity, then actual The Prohibition under this article hinges on the affinity
medical examination of the person concerned need not relation, adoptive relation, and the criminal motive to
be resorted to.” dispose of a spouse in order to enable the surviving
spouse to marry. However, marriage between step-
Verily, the totality of the evidence must show a link, siblings is valid since it’s not one of those shown under
medical or the like, between the acts that manifest this article.
psychological incapacity and the psychological disorder
itself. If other evidence showing that a certain condition A marriage between the killer and the surviving spouse
could possibly result from an assumed state of facts of his victim or between the spouses who killed his or
existed in the record, the expert opinion should be her own spouse in order to marry another is prohibited
admissible and be weighed as an aid for the court in by law. The killing must be animated by the intention to
interpreting such other evidence on the causation. The marry another person. No prior criminal conviction by
Court also held that the courts must accord weight to the court is required by law. Mere preponderance of
expert testimony on the psychological and mental state evidence is required to prove the killing.
of the parties in cases for the declaration of the nullity
of marriages, for by the very nature of Article 36 of the List is Exclusive
Family Code the courts, “despite having the primary The enumeration is exclusive. Those not included are
task and burden of decision-making, must not discount deemed excluded.
but, instead, must consider as decisive evidence the
expert opinion on the psychological and mental Thus, the following marriages are valid:
temperaments of the parties.” 1. Between the adopted child and the parents of
the adopter;
VOID BECAUSE INCESTOUS 2. Between the adopted child the illegitimate child
of his adopter;
Article 37, FC. Marriages between the following are 3. Between the adopter and the relatives of the
incestuous and void from the beginning, whether adopted;
relationship between the parties be legitimate or 4. Between step brothers and step sisters; and
illegitimate: 5. Between brothers-in-law and sisters-in-law.
(1) Between ascendants and descendants of any
degree; and Note: Marriage between first degree cousins is not
incestuous but against public policy.
(2) Between brothers and sisters, whether of the full or
half blood. PRESCRIPTIVE PERIOD
Reasons Why it is Prohibited Article 39, FC. The action or defense for the declaration
1. It would tend to create confusion of rights and duties of absolute nullity of a marriage shall not prescribe. (As
incident to family relations. amended by Executive Order 227 and Republic Act No.
2. Abhorrent to the nature of people. 8533; The phrase "However, in case of marriage
3. Often results in deficient and degenerate offspring celebrated before the effectivity of this Code and falling
and will amount to deterioration of the human race. under Article 36, such action or defense shall prescribe
in ten years after this Code shall taken effect" has been
VOID BECAUSE AGAINST PUBLIC POLICY deleted by Republic Act No. 8533 [Approved February
23, 1998]).
Article 38, FC. The following marriages shall be void
from the beginning for reasons of public policy: Imprescriptibility
No prescriptive period for an action to declare the
(1) Between collateral blood relatives whether marriage void because a null and void marriage
legitimate or illegitimate, up to the fourth civil degree; produces no legal effect. A judicial decree merely
(2) Between step-parents and step-children; confirms the voidness, non-existence, or incipient
(3) Between parents-in-law and children-in-law; invalidity of the marriage.
(4) Between the adopting parent and the adopted
child; RA 8533
(5) Between the surviving spouse of the adopting This law removed the 10-year prescriptive period if the
parent and the adopted child; ground for the voidness of the marriage is psychological
(6) Between the surviving spouse of the adopted incapacity under Article 36 of the Family Code.
child and the adopter;
65
The applicable rule now is that even if you were married still issued an order dismissing the annulment case filed
in the 1950s or 1940s, you can still have your marriage by the parents.
declared void now under Article 36, since there is no
more prescriptive period under psychological incapacity. The parents filed an MR to the decision of the RTC,
stating that they were not given a day in court. Palma
Who can file filed an opposition to this MR, which was granted.
Only the husband or wife can file an action to declare
their marriage void. (see A.M. No. 00-11-01-SC) Whether or not respondent Judge committed a grave
abuse of discretion, amounting to want of jurisdiction,
Any of the parties can file a case for nullity of marriage, in refusing to dismiss the case in the lower court.
even the wrongdoer since the law does not prohibit the
guilty spouse from bringing the action in court as a void NO. The Judge acted in accordance to the will of the SC
marriage is not ratifiable and the in pari delicto rule will in the earlier case while Palma not only failed to file an
not apply. answer, but insisted on the dismissal of the case in
blatant defiance of the SC and in a bid to delay the
COJUANGCO VS. ROMILLO proceedings.
G.R. No. L-69550, November 24, 1988
NOTE: This is no longer controlling in the light of the
Sps. Eduardo Cojuangco, Jr. and Soledad Cojuangco, provision of A.M. No. 02-11-10-SC which took effect on
filed an action for declaration of nullity of marriage March 15, 2003.
between their daughter, Ma. Luisa Cojuangco and Leo J.
Palma. NIÑAL VS. BAYADOG
G.R. No. 133778, March 14, 2000
The complaint alleged that Maria Luisa O. Cojuangco is
22 years of age, single and daughter of private DOCTRINE: The action or defense for nullity is
respondents, Eduardo M. Cojuangco, Jr. and Soledad O. imprescriptible, unlike voidable marriages where the
Cojuangco, while defendant Leo J. Palma, is a lawyer, action prescribes.
35 years of age and married to Elizabeth H. Palma with
whom he contracted marriage on December 19, 1971 at Pepito Niñal was married with Teodulfa Bellones on
Cebu City and with whom he has been continuously September 26, 1974. They had 3 children namely
cohabiting and with whom he has 3 children. Babyline, Ingrid and Archie, petitioners. Due to the shot
inflicted by Pepito to Teodulfa, the latter died on April
The complaint further alleged that Palma, who was for 24, 1985 leaving the children under the guardianship of
some time a member of the law firm of Angara, Engrace Niñal. 1 year and 8 months later, Pepito and
Concepcion, Regala, and Cruz Law Offices ("ACCRA") Norma Badayog got married without any marriage
was offered by private respondent Eduardo M. license. They instituted an affidavit stating that they had
Cojuangco, Jr. to be his own personal and confidential lived together for at least 5 years exempting from
counsel and that of his family and companies wholly securing the marriage license. Pepito died in a car
owned by him, which was promptly accepted by the accident on February 19, 1977. After his death,
petitioner Palma; that he became so close with the petitioners filed a petition for declaration of nullity of the
family of the private respondents and was requested to marriage of Pepito and Norma alleging that said
tutor petitioner Maria Luisa O. Cojuangco, who was then marriage was void for lack of marriage license. The case
a student at the Assumption College; that with grave was filed under the assumption that the validity or
abuse and betrayal of trust and confidence reposed in invalidity of the second marriage would affect
him and with his moral and intellectual ascendancy over petitioner’s successional rights. Norma filed a motion to
Maria Luisa O. Cojuangco, he succeeded in courting and dismiss on the ground that petitioners have no cause of
contracting a second marriage with her on June 22, action since they are not among the persons who could
1982 by falsely representing to the Hongkong file an action for “annulment of marriage” under Article
authorities that he is a "bachelor". 47 of the Family Code.
Consequently, the marriage between Leo Palma and Whether or not the second marriage of Pepito was void?
Maria Luisa O. Cojuangco, is null and void for being
bigamous and/or contrary to law, morals, good customs The marriage of Pepito and Norma is void for absence of
and public policy. Complainants (herein private the marriage license. The two marriages involved herein
respondents) prayed that judgment be rendered having been solemnized prior to the effectivity of the
declaring the marriage null and void ab initio and Family Code (FC), the applicable law to determine their
ordering petitioner Palma to pay private respondents validity is the Civil Code which was the law in effect at
reasonable amounts as moral, nominal and exemplary the time of their celebration. A valid marriage license is
damages, reasonable attorney's fees and expenses of a requisite of marriage under Article 53 of the Civil Code,
litigation as may be proved in the course of the trial. the absence of which renders the marriage void ab initio.
However, there are several instances recognized by the
Ma. Luisa, subsequently wanting to continue her marital Civil Code wherein a marriage license is dispensed with,
union with Leo, sought the immediate dismissal of the one of which is that provided in Article 76, referring to
aforecited case and wrote petitioner's counsel, seeking the marriage of a man and a woman who have lived
the dismissal of the said case. together and exclusively with each other as husband
and wife for a continuous and unbroken period of at
The RTC declared the case null and void ab initio, least five years before the marriage.
prompting Ma. Luisa to file a petition for certiorari, In this case, they cannot be exempted even though they
mandamus with preliminary injunction in another case. instituted an affidavit and claimed that they cohabit for
In such case, the Supreme Court issued a resolution at least 5 years because from the time of Pepito’s first
setting aside the decision of the RTC. The RTC however, marriage was dissolved to the time of his marriage with
Norma, only about 20 months had elapsed. Albeit,
66
Pepito and his first wife had separated in fact, and

thereafter both Pepito and Norma had started living with Nullity of a previous marriage can only or solely be
each other that has already lasted for five years, the fact established by a final judgment of the court declaring
remains that their five-year period cohabitation was not such marriage void.
the cohabitation contemplated by law. Hence, his
marriage to Norma is still void. Grounds for Bigamy
In recent cases, second marriage contracted after a
Whether or not the heirs of the deceased may file for subsisting marriage is grounds for bigamy if first
the declaration of the nullity of Pepito’s marriage after marriage is not declared void by the court first.
his death?
Capili v Capili (2013)
No. Jurisprudence under the Civil Code states that no Marriage is void if there is no such judicial declaration
judicial decree is necessary in order to establish the when the marriage was contracted. This is true even if
nullity of a marriage. “A void marriage does not require there was a judicial declaration of the second marriage,
a judicial decree to restore the parties to their original so long as the first marriage was still subsisting when
rights or to make the marriage void but though no the second marriage was celebrated.
sentence of avoidance be absolutely necessary, yet as
well for the sake of good order of society as for the People v Odtuhan (2013)
peace of mind of all concerned, it is expedient that the There is bigamy when the first marriage is still
nullity of the marriage should be ascertained and subsisting when the second marriage was contracted.
declared by the decree of a court of competent
jurisdiction. Under ordinary circumstances, the effect of PEOPLE VS. MENDOZA
a void marriage, so far as concerns the conferring of G.R. No. L-5877, September 28, 1954
legal rights upon the parties is as though no marriage
had ever taken place. And therefore, being good for no Petitioner Arturo first married Jovita in 1936 and
legal purpose, its invalidity can be maintained in any contracted a second marriage with Olga while the first
proceeding in which the fact of marriage may be was subsisting in 1941. On 1943, Jovita died and Arturo
material, either direct or collateral, in any civil court contracted a third marriage with Carmencita in 1949
between any parties at any time, whether before or after which gave rise to the case for bigamy. Arturo contends
the death of either or both the husband and the wife, that as his second marriage was void ab initio and the
and upon mere proof of the facts rendering such third was contracted after his first wife died, he cannot
marriage void, it will be disregarded or treated as non- be held liable.
existent by the courts.”
Is the petitioner liable for bigamy?
It is not like a voidable marriage which cannot be
collaterally attacked except in direct proceeding NO. In this case, Arturo's second marriage was
instituted during the lifetime of the parties so that on contracted during the existence of his first marriage with
the death of either, the marriage cannot be impeached, Jovita de Asis. Section 29 of the marriage law (act
and is made good ab initio. But Article 40 of the Family 3613), in force at the time the appellant contracted his
Code expressly provides that there must be a judicial second marriage in 1941, provides: Illegal marriages. —
declaration of the nullity of a previous marriage, though Any marriage subsequently contracted by any person
void, before a party can enter into a second marriage during the lifetime of the first spouse of such person
and such absolute nullity can be based only on a final with any person other than such first spouse shall be
judgment to that effect. illegal and void from its performance, unless. (a) The
first marriage was annulled or dissolved; (b) The first
However, other than for purposes of remarriage, no spouse had been absent for seven consecutive years at
judicial action is necessary to declare a marriage an the time of the second marriage without the spouse
absolute nullity. For other purposes, such as but not present having news of the absentee being alive, or the
limited to determination of heirship, legitimacy or absentee being generally considered as dead and
illegitimacy of a child, settlement of estate, dissolution believed to be so by the spouse present at the time of
of property regime, or a criminal case for that matter, contracting such subsequent marriage, the marriage so
the court may pass upon the validity of marriage even contracted being valid in either case until declared null
in a suit not directly instituted to question the same so and void by a competent court. This statutory provision
long as it is essential to the determination of the case. plainly makes a subsequent marriage contracted by any
This is without prejudice to any issue that may arise in person during the lifetime of his first spouse illegal and
the case. void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished
JUDGMENT BEFORE ONE CAN REMARRY from mere annullable marriages. Hence, he is acquitted.
Article 40, FC. The absolute nullity of a previous GOMEZ V. LIPANA

marriage may be invoked for purposes of remarriage on G.R. NO. L-23214, June 30, 1970
the basis solely of a final judgment declaring such
previous marriage void. (n) While his first marriage was still subsisting, Joaquin
Lipana married Isidra Gomez. They later acquired a
Subsequent Marriages property during such marriage. Later, Isidra died
When marriage is void, a party to that marriage can childless and intestate. The administratrix of the Isidra’s
contract a subsequent marriage only after he or she has estate filed the present suit, praying a forfeiture of the
the previous marriage judicially declared null and void. husband’s share in favor of the estate, pursuant to
Otherwise, if the previous marriage has not been Article 1417 of the Civil Code which decrees that the
declared void, the subsequent marriage will be void ab spouse who in bad faith has given cause for nullity (of
initio. The only way parties of a void marriage can the marriage) shall have no share in the conjugal
remarry is when the first marriage is declared void first. properties.
67
married to one Eliseo Portales on February 16, 1948

The Supreme Court ruled that such provision is not thereby making the respondent’s marriage with
applicable in the case at bar. The first paragraph of the Filomena void ab initio.
article states the two causes for termination of the
conjugal partnership: (1) dissolution of the marriage Whether or not respondent should be found guilty of
and (2) declaration of nullity, neither of which has immorality on the basis of his marriage to Beatriz during
occurred to defendant's first marriage. The second the subsistence of his previous marriage to Filomena.
paragraph of the same article states that it is upon the
termination of the partnership by either of said causes He is not guilty of immorality.
that the forfeiture of the share of the guilty spouse takes
place. The conjugal partnership formed by virtue of the The Court adopted the findings of Executive Judge Zosa
marriage of the defendant to the deceased Isidra Gomez and found his recommendation, exonerating the
was dissolved by the latter's death in 1959. By that respondent from the charges, in accordance with law
time, Art. 1417 was no longer in force having been and the evidence on record. Indeed, there is no question
eliminated in the New Civil Code, which took effect in that Filomena Abella's marriage with the respondent
1950. was void ab initio under Article 80 [4] of the New Civil
Code, and no judicial decree is necessary to establish
If the nullity, or annulment, of the marriage is the basis the invalidity of void marriages.
for the application of Article 1417, there is need for a
judicial declaration thereof, which of course As regards the charge of falsification of a public
contemplates an action for that purpose. In the instant document, the complainant failed to prove this charge.
case, however, the conjugal partnership formed by the Contrary to the allegation, the document in question
second marriage was dissolved by the death of the showed that the respondent actually placed in "Item 6.
second wife; and there has been no judicial declaration Civil Status" therein the word "Married" and not “Single”
of nullity except possibly in this very action, filed after as alleged in the complaint.
dissolution by death had taken place and when Article
1417 of the Spanish Civil Code was no longer in force. WIEGEL VS. SEMPIO DIY
G.R. No. L-53793, August 19, 1986
ODAYAT VS. AMANTE
A.M No. P-58, June 2, 1977 Karl Heinz Weigel filed for declaration of nullity of his
marriage to Lilia Wiegel on the ground that the latter’s
Pedro Odayat charged Atty. Demetrio Z. Amante, Clerk previous subsisting marriage to another man. Lilia
of Court, Court of First Instance, Branch IX, Basey, alleged that her first marriage was null and void,
Samar, with oppression, immorality and falsification of alleging that her first husband was already married to
a public document. someone else when they contracted the marriage.
The complaint alleged that: (1) the respondent grabbed The Supreme Court ruled that there is no need to
a portion of complainant's land, (2) the respondent is introduce evidence about the existing prior marriage of
cohabiting with one Beatriz Jornada, with whom he her first husband at the time they married each other,
begot many children, even while his spouse Filomena for then such a marriage, though void, still needs a
Abella is still alive; and (3) the respondent, although judicial declaration of such fact and for all legal intents
married, falsely represented his status as single in the and purposes she would still be regarded as a married
information sheet submitted in connection with his woman at the time she contracted her marriage with
appointment to his present position as Clerk of Court. Karl Heinz Wiegel; accordingly, the marriage of
petitioner and respondent would be regarded VOID
When the matter was submitted to Executive Judge under the law.
Segundo M. Zosa of the Court of First Instance, Branch
I, Catbalogan, Samar, for investigation and YAP VS. CA
recommendation, the following findings were G.R. No. L-40003, October 18, 1986
submitted:
While his first marriage to Talina Bianong was still
1. The charge of oppression was not addressed having subsisting, Maning Yap contracted another marriage
been acknowledged by complainant as more properly a with Nancy Yap. In both marriages, he begot children.
cause for civil action. Maning Yap later died and his estate became a subject
of intestate proceedings; hence, there was now the
2. On the issue of immorality, complainant testified and issue as to the distribution of his estate among the heirs.
submitted documents attesting to the existence of the
marriage between respondent and Filomena, and that The Supreme Court ruled that the properties that were
the two bore children. Complainant likewise testified acquired during the existence of the marriage must be
that the respondent was also married to Beatriz with considered as conjugal property of the spouses; hence,
whom he also had children. the estate of Maning Yap must be equally divided
For his defense, the respondent, while admitting his between him and Talina Bianong as their respective
marriage to Filomena on October 16, 1948 and shares. The one-half share of Maning Yap would then
subsequently to Beatriz on April 4, 1964, claimed that comprise his intestate estate to be distributed among
he was coerced into marrying Filomena, unaware that his heirs. Under the Civil Code, Maning Yap’s heirs are
she was already married to another man, and they as follows: Talina Bianong, his children with Talina; and
separated in 1949 after Filomena told him of her his children with Nancy. Talina Bianong, the first wife
previous marriage, and that from 1949 to 1964, the had not lost or relinquished her status as putative heir
respondent did not hear or received any communication of her husband. She is entitled to share in Maning Yap's
from her, much less knew of her whereabouts. The estate upon his death. On the other hand, Nancy Yap,
respondent presented a certification from the Local Civil the second wife cannot inherit from Maning Yap because
Registrar of Pateros, Rizal attesting that Filomena was their marriage was void ab initio.
68
Consuelo Tan. Tan did not know of the previous and

DOMINGO VS. CA subsisting marriage of Mercado. Tan filed bigamy
G.R. No. 104919, September 17, 1993 against Mercado. After a month, Mercado filed an action
for declaration of nullity of marriage against Oliva. In
Delia Domingo filed for a declaration of nullity of 1993, marriage between Mercado and Oliva was
marriage against her husband Roberto Domingo, on the declared null and void.
ground that Roberto had already contracted a previously
subsisting marriage to another woman. He opposed The SC held that a judicial declaration of nullity of a
such petition for failure to state a cause of action. He previous marriage is necessary before a subsequent one
alleged that since the marriage was void ab initio, such can be legally contracted. One who enters into a
petition for the declaration of nullity is therefore subsequent marriage without first obtaining such
superfluous and unnecessary. judicial declaration is guilty of bigamy. This principle
applies even if the earlier union is characterized by
The Supreme Court disagreed with the contention of statute as “void.”
Roberto. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of In the instant case, petitioner contracted a second
action or a ground for defense. Moreover, Article 40 marriage although there was yet no judicial declaration
included the significant clause which denotes that such of nullity of his first marriage. In fact, he instituted the
final judgment declaring the previous marriage void Petition to have the first marriage declared void only
need not be obtained only for purposes of remarriage. after complainant had filed a letter-complaint charging
Undoubtedly, one can conceive of other instances where him with bigamy. By contracting a second marriage
a party might well invoke the absolute nullity of a while the first was still subsisting, he committed the acts
previous marriage for purposes other than remarriage, punishable under Article 349 of the Revised Penal Code.
such as in case of an action for liquidation, partition, That he subsequently obtained a judicial declaration of
distribution and separation of property between the the nullity of the first marriage was immaterial.
erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery To repeat, the crime had already been consummated by
of the latter's presumptive legitimes. then. Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; an accused could
In such cases, evidence needs must be adduced, simply file a petition to declare his previous marriage
testimonial or documentary, to prove the existence of void and invoke the pendency of that action as a
grounds rendering such a previous marriage an absolute prejudicial question in the criminal case. We cannot
nullity. These need not be limited solely to an earlier allow that. The fact that the first marriage is void from
final judgment of a court declaring such previous the beginning is not a defense in a bigamy charge.
marriage void.
NICDAO CARIÑO VS. CARIÑO
PEOPLE VS. VICENTE COBAR G.R. No. 132529, Feb. 2, 2001
CA-G.R. No. 19344, Nov. 10, 1997
During the lifetime of SP04 Santiago S. Carino, he
In September 1964, a Marriage License was issued at contracted two marriages, the first with Susan Nicdao
Marawi City in favor of Vicente Cobar and Rosalita Carino and with Susan Yee Carino.
Decena. About a year later, the two were married.
In 1988, Santiago passed away under the care of Susan
On July 1991, appellant contracted a second marriage Yee who spent for his medical and burial expenses. Both
with Herodias. At that time, Vicente Cobar’s marriage petitioner and respondent filed claims for monetary
with Rosalita Decena had not been judicially declared benefits and financial assistance pertaining to the
void ab initio. When the first marriage is void and a party deceased from various government agencies. Yee filed
to that marriage contracted a second marriage without an action for collection of sum of money against Nicdao,
obtaining a judicial declaration of marriage of the first contending that the marriage of the latter with Santiago
marriage, there is no doubt that the second marriage is is void ab initio because their marriage was solemnized
null and void under Article 40 of the Family Code, but without the required marriage license.
the said party will not be guilty of bigamy.
The Court held that while the previous marriage was
The Supreme Court held that there is no bigamy void for having been solemnized without a marriage
because of the absence of the first and fourth element license, nevertheless, the subsequent marriage was
of bigamy, which are that the first marriage must be bigamous because the first marriage, though void, was
valid and that the second marriage must have all the still presumed to be valid considering that there was no
essential requisites for validity. A void bigamous judicial declaration of nullify of marriage. The reason
marriage therefore contemplates a situation where the behind the rule that even if the marriage is void, there
second marriage was contracted at the same time when is a need to have it declared void is the fact that the
the first marriage, which was valid in all respects, was parties to the marriage cannot decide for themselves the
still subsisting. Hence, the first marriage must not be invalidity of their marriage.
void but valid or at least annullable.
MERCADO VS. MERCADO MORIGO VS. PEOPLE

G.R. No. 137100, August 1, 2000 G.R. No. 145226, Feb. 6, 2004
In 1976, Dr. Vincent Mercado and Thelma Oliva were The petitioner was found by the trial court guilty of
married. In 1991, Mercado contracted a marriage with bigamy for contracting a second marriage without
69
having his first marriage judicially declared void. During

the pendency of the bigamy case, petitioner Mr. Lucio On June 28, 2004, petitioner was charged with the crime
Morigo filed a case for declaration of nullity of his first of bigamy for ontracting a second mariage with Shirley
marriage on the ground of absence of marriage Tismo while his marriage with Karla is still valid and
ceremony. subsisting. In 2004, Karla filed an action for declaration
of nullity of the second marriage and on June 2004,
While the appeal of his conviction in the bigamy case Tismo filed a bigamy case against Capili. Before the
was pending in the Court of Appeals, the Family Court release of the decision on the bigamy case, Karla’s
declared his first marriage null and void due to the petition was granted declaring the marriage between
absence of marriage ceremony. The decision became Capili and Tismo void. Consequently, Capili filed a
final as no appeal was interposed by the State. The motion to dismiss the bigamy case claiming that the
Court of Appeals eventually affirmed his conviction for second marriage was declared void ab initio which
bigamy prompting him to raise the matter to the means that the marriage never took place at all.
Supreme Court by way of Certiorari. In reversing the
decision of the Court of Appeals, the Court ruled that no Whether or not the declaration of nullity of the second
bigamy was committed as not all the elements of the marriage can be a ground to dismiss the bigamy case.
crime of bigamy is present. The Court ruled that there
are four elements of bigamy, and they are as follows: No. The elements of bigamy are: (1) that the offender
the offender has been legally married; the first marriage is legally married; (2) that the first marriage has not
has not been legally dissolved; he contracts a been legally dissolved, or in case his or her spouse is
subsequent marriage, and the subsequent marriage absent, the absent spouse cannot yet be presumed dead
would have been valid had it not been for the existence according to the Civil Code; (3) that the offender
of the first. contracts a second or subsequent marriage; and (4) that
the second or subsequent marriage has all the essential
In the instant case, the Court finds no bigamy because requisites for validity.
there was no first marriage to speak of. The declaration
of nullity of the first marriage by the Court, retroacts to It is undisputed that a second marriage between
the time of the celebration of the said marriage. Thus, petitioner and private respondent was contracted on
when petitioner contracted the second marriage, there December 8, 1999 during the subsistence of a valid first
was no prior valid subsisting marriage. Petitioner, marriage between petitioner and Karla. The subsequent
legally speaking, was never married to his first wife as judicial declaration of the nullity of the first marriage
no marriage really took place due to the absence of was immaterial because prior to the declaration of
marriage ceremony. nullity, the crime (bigamy) had already been
consummated at the time the second marriage was
MERLINDA MONTAÑEZ VS. LOURDES CIPRIANO contracted while the first marriage was subsisting.
G.R. No. 181089, Oct. 22, 2012 When Capili married Tismo, the above-mentioned
elements were present. Hence, the crime of bigamy was
In 1976, Lourdes married Socrates. In 1983, during the already consummated.
subsistence of the said marriage, Lourdes married
Silverio V. Cipriano. In 2001, Lourdes filed with the RTC PEOPLE VS. EDGARDO ODTUHAN
of Muntinlupa a Petition for the Annulment of her G.R. No. 191566, July 17, 2013
marriage with Socrates. The RTC rendered its decision
declaring the marriage of Lourdes with Socrates null and In 1980, respondent married Jasmin Modina. In 1993,
void. Said decision became final and executory on respondent married Eleanor A. Alagon. In August 1994,
October 13, 2003. In 2004, petitioner Merlinda Edgardo filed a petition for annulment of his marriage
Montañez, Silverio’s daughter from the first marriage, with Modina. On February 23, 1999, the RTC of Pasig
filed a complaint for bigamy against Lourdes alleging City granted Edgardo’s petition and declared his
that Lourdes failed to reveal to Silverio that she was still marriage with Modina void ab initio for lack of a valid
married to Socrates. Lourdes moved to quash the marriage license. In June 2003, private complainant
information alleging that her first marriage to Socrates Evelyn Abesamis Alagon learned of Edgardo’s previous
had already been declared void ab initio in 2003, thus, marriage with Modina and so she filed a Complaint-
there was no more marriage to speak of prior to her Affidavit charging respondent with bigamy. Respondent
marriage to Silverio on January 24, 1983. She also moved for the quashal of the Information based on the
averred that she had contracted her second marriage trial court’s declaration that his marriage with Modina is
before the effectivity of the Family Code; hence, the null and void ab initio.
existing law at that time did not require a judicial
declaration of absolute nullity as a condition precedent The Supreme Court ruled that a declaration of the
to contracting a subsequent marriage. absolute nullity of a marriage is explicitly required either
as a cause of action or a ground for defense. A judicial
The Supreme Court ruled that respondent was properly declaration of nullity is required before a valid
charged of the crime of bigamy, since the essential subsequent marriage can be contracted; or else, what
elements of the offense charged were sufficiently transpires is a bigamous marriage, reprehensible and
alleged. At the time respondent contracted the second immoral.
marriage, the first marriage was still subsisting as it had
not yet been legally dissolved. The subsequent judicial
declaration of nullity of the first marriage would not
change the fact that she contracted the second marriage SARTO Y MISALUCHA VS. PEOPLE
during the subsistence of the first marriage. G.R. No. 206284, February 28, 2018
JAMES WALTER CAPILI VS. REPUBLIC AND Redante Sarto was charged with the crime of bigamy for
SHIRLEY TISMO-CAPILI allegedly contracting two (2) marriages: the first, with
G.R. No. 183805, July 3, 2013 Maria Socorro, and the second, without having the first
70
one legally terminated, with private complainant Fe R. institute a summary proceeding as provided in this Code
Aguila. Redante admitted that he had contracted two for the declaration of presumptive death of the
marriages but interposed the defense that his first absentee, without prejudice to the effect of
marriage had been legally dissolved by divorce obtained reappearance of the absent spouse. (83a)
in a foreign country by his alien spouse.
Article 42, FC. The subsequent marriage referred to in
A divorce decree obtained abroad by an alien spouse is the preceding Article shall be automatically terminated
a foreign judgment relating to the status of a marriage. by the recording of the affidavit of reappearance of the
As in any other foreign judgment, a divorce decree does absent spouse, unless there is a judgment annulling the
not have an automatic effect in the Philippines. previous marriage or declaring it void ab initio.
Consequently, recognition by Philippine courts may be
required before the effects of a divorce decree could be A sworn statement of the fact and circumstances of
extended in this jurisdiction. reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent marriage
Recognition of the divorce decree, however, need not be at the instance of any interested person, with due notice
obtained in a separate petition filed solely for that to the spouses of the subsequent marriage and without
purpose. Philippine courts may recognize the foreign prejudice to the fact of reappearance being judicially
divorce decree when such was invoked by a party as an determined in case such fact is disputed. (n)
integral aspect of his claim or defense. Before the
divorce decree can be recognized by our courts, the Article 43, FC. The termination of the subsequent
party pleading it must prove it as a fact and demonstrate marriage referred to in the preceding Article shall
its conformity to the foreign law allowing it. Proving the produce the following effects:
foreign law under which the divorce was secured is The children of the subsequent marriage conceived prior
mandatory considering that Philippine courts cannot and to its termination shall be considered legitimate;
could not be expected to take judicial notice of foreign
laws. The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
NORBERTO A. VITANGCOL VS. PEOPLE liquidated, but if either spouse contracted said marriage
G.R. No. 207406, Jan. 13, 2016 in bad faith, his or her share of the net profits of the
community property or conjugal partnership property
On December 4, 1994, Norberto Vitangcol contracted a shall be forfeited in favor of the common children or, if
second marriage with Alice G. Eduardo without legally there are none, the children of the guilty spouse by a
dissolving his first marriage with Gina Gaerlan. Alice previous marriage or in default of children, the innocent
eventually discovered Norberto's previous marriage as spouse;
evidenced by a marriage contract registered with the
National Statistics Office. Alice subsequently filed a Donations by reason of marriage shall remain valid,
criminal Complaint for bigamy against Norberto. except that if the donee contracted the marriage in bad
However, Norberto argued that he revealed to Alice faith, such donations made to said donee are revoked
before they got married that he had a "fake marriage" by operation of law;
with his college girlfriend. The RTC found Norberto guilty
of bigamy for contracting a subsequent marriage while The innocent spouse may revoke the designation of the
a prior marriage subsisted. Norberto argued that there other spouse who acted in bad faith as beneficiary in
was no record of marriage license in the office of the any insurance policy, even if such designation be
Civil Registrar. stipulated as irrevocable; and
Even if there is no record of marriage license in the office The spouse who contracted the subsequent marriage in
of the civil registrar, it does not prove that the marriage bad faith shall be disqualified to inherit from the
is dissolved since it is just a mere certification. Even innocent spouse by testate and intestate succession. (n)
when this case was pending, Norberto did not present
any decision from any trial court nullifying his first Article 44, FC. If both spouses of the subsequent
marriage. Norberto’s first marriage was not judicially marriage acted in bad faith, said marriage shall be void
declared void. The first marriage must be judicially ab initio and all donations by reason of marriage and
declared as void under the Family Code otherwise it testamentary dispositions made by one in favor of the
would lead to the crime of bigamy upon contracting the other are revoked by operation of law. (n)
subsequent marriage.
Judicial declaration of presumptive death under Article
JUDICIAL DECLARATION OF PRESUMPTIVE 41 is needed only for the purpose of capacitating the
DEATH present spouse to remarry.
Filing A Summary Proceeding for the Declaration

Article 41, FC. A marriage contracted by any person
of Presumptive Death
during subsistence of a previous marriage shall be null
The purpose of the judicial declaration of presumptive
and void, unless before the celebration of the
death is to protect the present spouse from possible
subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present has a prosecution of bigamy in case the first or absent spouse
well- founded belief that the absent spouse was already turns out to be alive.
dead. In case of disappearance where there is danger of
death under the circumstances set forth in the On the other hand, under Article 390 and 391 of the Civil
Code, no declaration is needed for a person to be
provisions of Article 391 of the Civil Code, an absence of
declared presumptively dead provided that the specified
only two years shall be sufficient.
periods lapse since such presumption arises from law.
For the purpose of contracting the subsequent marriage Such presumption of death is made for all purposes
under the preceding paragraph the spouse present must except succession.
71
The spouse has been absent for 2 years and there is

However, for purposes of remarriage, the law applicable danger of death under the circumstances in Art. 391:
depends on the circumstances attendant to the case:
(See Valdez v. Republic, infra.) 1. When absent spouse was lost at sea or the
airplane went missing and was not heard of
1. If the marriage and the disappearance took
place BEFORE the effectivity of the Family DEAN: The law says the vessel or airplane
Code (Aug. 3, 1988) The Civil Code (Article 390) disappeared or is lost. It does not say the plane
shall apply and judicial declaration of presumptive crashed or the vessel sank. If your spouse rode an
death is not required for purposes of remarriage. airplane and it crashed and it was declared that
there is no survivor, you don’t have to wait for 2
2. If marriage and disappearance took place years. He really died there. But if the plane just
after the effectivity of the Family Code (Aug. disappeared or the ship really is lost like those that
3, 1988) disappear in the Bermuda Triangle and we can’t tell
where it went, then you have to wait for 2 years.
The Family Code (Article 41) shall apply and a judicial
declaration of presumptive death is required for 2. When absent spouse was part of the armed
purposes of remarriage. forces and went to war and was missing
ESTRELLITA TADEO-MATIAS VS. REPUBLIC 3. When absent spouse has been in danger of
G.R. No. 230751, April 25, 2018 death under other circumstances and his
existence has not been known
A petition for declaration of presumptive death under
Article 41 of the FC is applicable only for purposes of DEAN: This refers to conditions analogous to the
remarriage. If the purpose is to claim the death benefit 1st two. If after 2 years you have not heard any
of her army husband who disappeared in 1979, then word from your absent spouse and you have
Article 390 and 391 of the Civil Code will apply. Thus, a reasonable ground to believe he is dead, you can
petition to declare the husband presumptively dead go to court and have him declared presumptively
under Article 41 FC is not proper. The grant of the dead and you can remarry.
petition by the RTC is wrong and the CA is correct in
reversing the said decision. SUMMARY PROCEEDING; FINAL AND EXECUTORY
Judicial declaration of presumptive death is a summary
ESSENTIAL REQUISITES FOR THE DECLARATION proceeding under the Rules on Summary Judicial
OF PRESUMPTIVE DEATH Proceedings.
Under Article 41 of the FC: As a matter of course, it follows that no appeal can be
1. That the absent spouse has been missing for had of the trial court’s judgment in a summary
four consecutive years, or two consecutive proceeding for the declaration of presumptive death of
years if the disappearance occurred where there an absent spouse under Article 41 of the Family Code.
is danger of death under the circumstances in
Art 391 of the CC Nonetheless, one can file a petition for certiorari under
2. That the present spouse wishes to remarry Rule 65 to question abuse of discretion amounting to
lack or excess of jurisdiction to the CA. From the CA the
Note: Art. 41 is a new provision and this is only parties may appeal the decision to the SC through Rule
important if you want to remarry. If you have 45. (Republic v Tango – 2009; cited in Republic v.
no intention to remarry, no need to go to court Nacerda – 2013)
and have the absent spouse declared
presumptively dead since there is already a WELL-FOUNDED BELIEF
provision in the Civil Code regarding The presumption of death must be anchored on well-
presumptive death. founded belief. The exercise of that degree of due
diligence required in searching for missing spouse.
3. That the present spouse has a well-founded
belief that the absentee is dead; and Republic v. Nolasco
Facts: Nolasco is a Filipino seaman who married a
4. That the present spouse files a summary British woman. They lived in the province. Nolasco went
proceeding for the declaration of presumptive back to work and he left the wife together with his
death of the absentee. (Republic v. Espinosa mother. The wife said she was going to process some
Cantor, 2013) papers in Manila but never returned. When he came
back, he never saw her again. They never had any
PERIODS REQUIRED FOR PRESUMPTION OF communication.
DEATH
After several years, he filed a petition to declare the
General Rule: 4 years British wife as presumptively dead. He alleged that he
The spouse is absent for 4 years and the present spouse exerted all efforts to find her as when their ship was
has a well- founded belief that the absent spouse was docked in England, he tried to look for her in London for
already dead. several days. However, during cross-examination, it
If a spouse has reason to believe the other is dead and was found out that he knew that his wife is not from
did not return for 4 uninterrupted years, the present London but from Liverpool England, about 300 miles
spouse may remarry provided he or she gets a judicial from London.
declaration of presumptive death.
Ruling: The Supreme Court denied the petition. Nolasco
Exception: 2 years did not exert enough effort to locate his wife. He did not
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try to locate his spouse to the best of his capability. His affidavit of reappearance. Without these, the
petition was not anchored on a well- founded belief that presumption continues.
the absent spouse is really dead. There should have
been a sufficient basis to presume that your spouse is Since the 1st wife did not reappear despite knowledge
already dead. that she was declared presumptively dead, the SSS does
not have authority to overrule the RTC. SSS has to
Valdez v. Republic follow the decision of the regular court. The benefit
The husband and the wife were married in 1971, then, should go to the 2nd wife.
the husband disappeared in 1975, and the wife did not
anymore hear any news from him, the subsequent EFFECTS OF TERMINATION OF SUBSEQUENT
marriage of the wife with another man in 1985 is valid. MARRIAGE AFTER REAPPEARANCE
In fact, there is no more need for the wife to file a
petition to declare her first husband presumptively dead When subsequent marriage/terminated, property
before contracting the second marriage as that is not regime is terminated:
required under the Civil Code. The validity of the
subsequent marriage is determined by the law 1. The children of said marriage still legitimate;
prevailing at the time of the marriage. The Family Code,
particularly Article 41 thereof, cannot be applied 2. The Conjugal partnership is dissolved and the
retroactively by requiring the spouse to first obtain a spouse in bad faith shall not be entitled to a
judicial declaration of presumptive death before share in the net profit of the partnership;
contracting the subsequent marriage. To do so would be
to impair a vested right already acquired by a party Note: If it was done in bad faith, the property is
under the former law. Considering that it is the Civil forfeited to the children of the subsequent
Code and not the Family Code that will apply here, proof marriage. If none, to the children of previous
of “well founded belief” is not required. marriage. If none, to the innocent spouse.
AFFIDAVIT OF REAPPEARANCE 3. The donations in favor of the guilty spouse is

If absent spouse reappears, subsequent marriage will revoked by operation of law;
be terminated upon execution of the affidavit of
reappearance by the reappearing spouse or any Note: This refers to donations propter nuptias in
interested party and recorded in the LCR where spouse favor of the spouse in bad faith. The donations
and subsequent spouse resides. made to said donee are revoked by operation of
law.
The subsequent marriage in this case would be
considered bigamous but valid due to the judicial Example. The wife donated a parcel of land to the
declaration of presumptive death husband before the marriage. Later on, the wife
disappeared and the husband had her declared
Recording of affidavit of appearance terminates presumptively dead even if he knew she was still
subsequent marriage; if none filed, subsequent alive. The husband remarried and the 2nd wife also
marriage prospers. But the reappearing spouse cannot donated a land to the husband before the marriage.
marry again as on his part, his marriage is still existing The first wife reappeared and executed an affidavit.
in the eyes of law. The 2nd marriage is now dissolved. The donation
made by the 2nd wife is revoked by operation of
If the reappearing spouse wants to remarry another, he law. Even if she did not want to revoke, it is still
has to file a petition on the grounds of void or voidable revoked because it is automatic by operation of
marriage. law.
SSS v. Vda de Bailon 4. The designation of the guilty spouse as

Facts: The husband and wife were already separated. beneficiary in the innocent spouse’s insurance
The husband found another woman and wanted to policy may be revoked;
marry her, but cannot because his first marriage was
not annulled. So what he did is have his 1st wife Note: If an innocent spouse has made the guilty
declared presumptively dead. The 1st wife did not spouse a beneficiary in a life insurance policy, it can
object. So the husband now married again and later on be revoked even if irrevocable.
died. He was to receive SSS benefit. The 2nd wife
claimed it. But the 1st wife said contended that she is 5. Guilty spouse disqualified from inheritance
the legal wife. SSS initially awarded it to the 2nd wife. from innocent spouse; and
However, it later awarded the benefit to the 1st wife
because according to it, the husband is clearly in bad 6. If both parties are guilty of bad faith,
faith when he filed petition to declare presumptively subsequent marriage is void ab initio.
dead the 1st wife. The 1st marriage was not dissolved.
The judicial declaration of presumptive death is of no Note: All donations by reason of marriage and
moment. The 2nd wife went to the SC. testamentary dispositions made by one in favor of
the other are revoked by operation of law.
Ruling: The declaration of presumptive death of the
wife as declared by the court cannot be overturned or
disregarded by the SSS to award the death benefit of REPUBLIC VS. NOLASCO
the husband to the 1st wife because of its finding that G.R. No. 94053. March 17, 1993
the husband is in bad faith when he filed the petition.
Nolasco filed a petition for the declaration of
The presumption of death can only be destroyed by the presumptive death of his wife Janet (British), invoking
reappearance of the absent spouse and execution of an Article 41 of the FC. After Nolasco’s marriage with Janet,
73
he worked overseas as a seaman. Nolasco’s parents for the presumption to arise. Since death is presumed
informed him that Janet gave birth to their son. to have taken place by the seventh year of absence,
However, 15 days after giving birth, Janet left. The SC Sofio is to be presumed dead starting October 1982.
held that Nolasco failed to conduct a search for his Consequently, at the time of petitioner's marriage to
missing wife with such diligence as to give rise to a Virgilio, there existed no impediment to petitioner's
"well-founded belief" that she is dead. When he arrived capacity to marry, and the marriage is valid under
in Antique after learning of Janet’s departure, instead of paragraph 2 of Article 83 of the Civil Code. Considering
seeking the help of local authorities or of the British that it is the Civil Code that applies, proof of "well-
Embassy, he secured another seaman's contract and founded belief" is not required. The Family Code was not
went to London to look for her there. yet in effect at the time of her marriage to Virgilio. To
retroactively apply the provisions of the Family Code
Nolasco’s claim that Janet declined to give any requiring petitioner to exhibit "well-founded belief" will,
information as to her personal background even after ultimately, result in the invalidation of her second
she had married Nolasco too convenient an excuse to marriage, which was valid at the time it was celebrated.
justify his failure to locate her. Moreover, when he was
informed of Janet’s departure, it took him 9 months to TADEO-MATIAS VS. REPUBLIC
return to Antique. Nolasco’s bare assertion that he had G.R. No. 230751, April 25, 2018
inquired from their friends of her whereabouts does not
lend credence, considering that respondent did not Estrellita and Wilfredo were married in 1968. Wilfredo
identify those friends in his testimony. Even if admitted was a member of the Philippine Constabulary. In 1979,
as evidence, said testimony merely tended to show that Wilfredo was declared missing by the Napolcom. In
the missing spouse had chosen not to communicate with 2012, Estrellita filed a petition for the declaration of
their common acquaintances, and not that she was presumptive death in order to claim death benefits as a
dead. military serviceman.
REPUBLIC VS. CANTOR The SC denied the petition. First, Art. 41 of the FC is
G.R. No. 184621, December 10, 2013 only applicable for the purpose of contracting a valid
subsequent marriage. Second, a petition whose sole
Maria and Jerry were married. However, they had a objective is to have a person declared presumptively
quarrel brought about by Maria’s inability to reach dead under Art. 390 and 391 of the Civil Code is not
“sexual climax” during their intimate moments, among regarded as a valid suit. A rule creating a presumption
others. Thereafter, Jerry left. After more than four (4) of death is merely one of evidence that — while may be
years, Maria filed a petition for Jerry’s declaration of invoked in any action or proceeding — cannot be the
presumptive death. She alleged that she had inquired lone subject of an independent action or proceeding.
from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but REPUBLIC VS. BERMUDEZ-LORINO
to no avail. She also allegedly made it a point to check G.R. No. 160258, January 19, 2005
the patients' directory whenever she went to a hospital.
All these earnest efforts, the respondent claimed, In 1987, Gloria married Francisco. In 1991, due to
proved futile. Francisco’s violent character, they separated. She
worked abroad to support their 3 children. In 2000,
The SC held that Maria’s efforts fell short of the degree Gloria filed a verified petition with the RTC under the
of diligence required. Her hospital visits and her rules on Summary Judicial Proceedings in the Family
consequent checking of the patients' directory therein Law provided for in the Family Code. The RTC granted
were unintentional. She did not report Jerry's absence the petition. Under Art. 247 of the FC, the judgment
to the police nor did she seek the aid of the authorities should be immediately final and executory. However,
to look for him. She did not present as witnesses Jerry's the Republic filed a notice of appeal. The CA treated this
relatives or their neighbors and friends, who can as an ordinary appeal under Rule 41. However, the
corroborate her efforts to locate Jerry. Worse, these appeal was denied.
persons, from whom she allegedly made inquiries, were
not even named. Following the strict standard approach, The appeal to the SC via Rule 45 was denied. According
she failed to conduct a diligent search because her to the SC, the CA acquired no jurisdiction to review the
alleged efforts are insufficient to form a well-founded judgment which, by express provision of law, is
belief that her husband was already dead. immediately final and executory. The Republic as
oppositor had no right to appeal the RTC decision. The
VALDEZ VS. REPUBLIC CA should have dismissed the appeal outright for lack of
G.R. No. 180863, September 8, 2009 jurisdiction.
In 1971, Angelita married Sofio. They had constant

quarrels which led to Sofio’s departure. When they met REPUBLIC VS. TANGO
again in October 1975, they agreed to separate and G.R. No. 161062, July 31, 2009
executed an agreement to that effect. In 1985, Angelita
married Virgilio. Virgilio filed for naturalization as an In 1987, Ferventino and Maria were married. They only
American citizen but was denied due to Angelita’s spent the night together once. Four (4) days after the
subsisting marriage with Sofio. Hence, in 2007, Angelita marriage, Maria and her family went to the USA. For a
filed a petition for declaration of Sofio’s presumptive year, they communicated through letters. However,
death. Maria stopped responding to Ferventino’s letters. In
2001 or after 14 years, Ferventino filed a verified
The SC dismissed the petition. Angelita’s two marriages petition for the declaration of presumptive death of
were celebrated under the Civil Code (1971 and 1985). Maria under Art. 41 of the FC. The RTC granted the
Under the Civil Code, the presumption of death is petition. The Republic appealed to the CA by filing a
established by law and no court declaration is needed
74
notice of appeal. The CA treated this as an ordinary (1) That the party in whose behalf it is sought to have
appeal under Rule 41. The RTC was sustained. the marriage annulled was eighteen years of age or over
but below twenty- one, and the marriage was
The petition was denied by the SC. Petitioner should solemnized without the consent of the parents, guardian
have filed a petition for certiorari instead of filing a or person having substitute parental authority over the
notice of appeal to the CA. The RTC equally erred in party, in that order, unless after attaining the age of
giving due course to said appeal and ordering the twenty-one, such party freely cohabited with the other
transmittal of the records of the case to the appellate and both lived together as husband and wife;
court. By no means did the CA acquire jurisdiction to
review the judgment of the RTC which, by express (2) That either party was of unsound mind, unless such
provision of law, was immediately final and executory. party after coming to reason, freely cohabited with the
other as husband and wife;
REPUBLIC V. CATUBAG
G.R. NO. 210580, April 18, 2018 (3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge
While private respondent was working abroad, he was of the facts constituting the fraud, freely cohabited with
informed by his relatives that his wife Shanaviv left the the other as husband and wife;
house and never returned. Thus, private respondent
took an emergency vacation leave and flew back home. (4) That the consent of either party was obtained by
He then proceeded to inquire about Shanaviv's force, intimidation or undue influence, unless the same
whereabouts from their close friends and relatives, but having disappeared or ceased, such party thereafter
they too could offer no help. He travelled to Bicol, his freely cohabited with the other as husband and wife;
wife’s hometown, but could not locate her. He
subsequently sought the help of Bombo Radyo (5) That either party was physically incapable of
Philippines to broadcast the fact of his wife's consummating the marriage with the other, and such
disappearance. He also searched various hospitals and incapacity continues and appears to be incurable; or
funeral parlors. After almost 7 years, he filed a petition
to have his wife declared presumptively dead. One of (6) That either party was afflicted with a sexually-
the requisites for the declaration of presumptive death transmissible disease found to be serious and appears
is that there must be a “well-founded” belief that the to be incurable. (85a)
absent wife is dead. Such belief must result from diligent
efforts to locate the absent spouse. Based on the Article 46, FC. Any of the following circumstances shall
parameters set by jurisprudence, private respondent's constitute fraud referred to in Number 3 of the
efforts fall short of the required degree of diligence. Only preceding Article:
the fact that he went to Bombo Radyo was corroborated
since the alleged friends and relatives whom he inquired (1) Non-disclosure of a previous conviction by final
into were not presented as witnesses. Moreover, private judgment of the other party of a crime involving moral
respondent did not seek the help of other concerned turpitude;
government agencies, namely, the local police
authorities and the NBI. (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;
SSS VS. VDA. DE BAILON
G.R. No. 165545, March 24, 2006
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
Clemente and Alice married in 1955. More than 15 years
marriage; or
later, Bailon filed before the CFI a petition to declare
Alice presumptively dead. In 1983, Clemente married
(4) Concealment of drug addiction, habitual alcoholism
Teresita. When Clemente died, Teresita claimed his SSS
or homosexuality or lesbianism existing at the time of
benefits. However, his children claimed that his
the marriage.
marriage to Teresita was bigamous because Alice is still
alive.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
Since the two marriages were contracted before the
fraud as will give grounds for action for the annulment
effectivity of the Family Code, the Civil Code shall apply.
of marriage. (86a)
Under the Civil Code, a subsequent marriage contracted
during the lifetime of the first spouse is illegal and void
GROUNDS FOR ANNULMENT
ab initio unless the prior marriage is annulled or
dissolved or contracted under exceptional cases (such
as when the absentee spouse is presumed dead). Any of these grounds must be existing by the time of
Marriage under exceptional cases is deemed voidable, celebration of the marriage. However, if these
manifested after the celebration of marriage, there will
that is, valid unless declared null and void, by a
be no grounds for annulment. The grounds are:
competent court. Here, Alice had been absent for 15
years when Clemente sought the declaration of her
presumptive death.
1. Lack of parental consent for a party between
18 to 21 years old;
VOIDABLE BIGAMOUS MARRIAGES
(ANNULMENT OF MARRIAGE)
2. A party is of unsound mind;
Article 45, FC. A marriage may be annulled for any of 3. Consent is vitiated by fraud;
the following causes, existing at the time of the
marriage:
75
4. Consent is vitiated by force, intimidation, or intimidation or undue influence that respondent or her
under influence friends have improperly taken advantage of, or used
their power, if any, over the will of petitioner, depriving
Note: This must be based on a well-founded fear. him of a reasonable freedom of choice. Petitioner is a
The circumstances must be taken into account. healthy male with sufficient intellectual capacity to resist
any untoward intimidation against him.
Villanueva v. CA
The claim of the security guard, that his consent to FOUR TYPES OF FRAUD FOR GROUNDS TO ANNUL
the marriage was vitiated because of fear that he A MARRIAGE
may be harmed by an NPA Commander if he will
not marry his wife is unfounded and of no basis. 1. Non-disclosure of a previous conviction of a
crime involving moral turpitude;
5. Physical incapacity to consummate the
marriage; and 2. Concealment by the wife of a fact that at the
time of the marriage she was pregnant by
Note: The impotency, must be existing at the time another man;
of the marriage and such incapacity continues and
appears to be Buccat vs. Buccat
incurable. If pregnancy is already apparent at the time of
marriage, like 7 mos. Concealment cannot be used
General Rule as a ground.
Presumption of potency. The burden of proof must
be discharged by the one complaining. Aquino vs. Delizo
If pregnancy is not apparent such that the wife is
Exception: Doctrine of triennial cohabitation. plump or fat, concealment is possible. Vitiated
Presumption of potency is rebutted if the wife consent must be proven by preponderance of
remains a virgin for 3 years. evidence.
6. STD which is serious and incurable. 3. Concealment of any kind of Sexually-

transmitted disease, regardless if serious or
Note: The STD must be both serious and incurable curable existing at the time of marriage; and
for it to be a ground for annulment. However, if only
either serious or incurable, it only a ground for 4. Concealment of drug addiction, habitual
fraud, if it existed at the time of marriage. alcoholism, lesbianism, homosexuality
ELMER BERMUDO VS. COURT OF APPEALS Note: Drug addiction, habitual alcoholism,
G.R. No. 188519, June 3, 2013 homosexuality and lesbianism can be a ground for
annulment if existing at the time of the marriage
A marriage license being a formal requisite of marriage, and it was concealed by the party. If it occurred
the absence thereof renders a marriage void ab initio after the marriage, it is only a ground for legal
pursuant to Article 4 of the Family Code. separation, not annulment.
Nevertheless, a marriage license is a public document; Important: No other deceit or fraud can invalidate
as such, it has in its favor the presumption of regularity, the marriage. All these grounds must be existing at
and to contradict the same, there must be evidence that the time of the marriage but discovered only after
is clear, convincing and more than merely the celebration of marriage
preponderant. We consider this principle together with
the fact that petitioner's and respondent's marriage BUCCAT VS. BUCCAT
contract is also a public document, and, as such, it is G.R. No. 47101, April 25, 1941
prima facie proof, under Section 44, Rule 130 of the
Rules of Court, of their questioned marriage. The burden The plaintiff met the defendant in March 1938. On
of proof to overcome the presumption lies with November 26 of the same year, the plaintiff married the
petitioner who is challenging its validity. defendant in a Catholic Cathedral in Baguio. They, then,
cohabited for about eighty-nine days. Defendant gave
In the case at bar, as pointed out by the CA, petitioner birth to a child of nine months on February 23, 1939.
failed to present any concrete proof, such as a Following this event, the plaintiff filed an action for
certification from the local civil registrar of San Juan, to annulment of marriage before the CFI of Baguio City.
attest to the fact that the challenged marriage license The plaintiff claimed that he consented to the marriage
does not exist in their records, or that the same is because the defendant assured him that she was virgin.
spurious. More importantly, the marriage contract The trial court dismissed the complaint.
between petitioner and respondent reflects a license
number: 4920018, issued on 24 January 2003 at San Should the annulment of marriage be granted on the
Juan, Metro Manila. ground that Luida concealed her pregnancy before the
marriage?
Likewise, petitioner's claim of vitiated consent as a No. Clear and authentic proof is needed in order to
result of the force and intimidation employed by nullify a marriage, a sacred institution in which the State
respondent's friends in obtaining his agreement to his is interested and where society rests.
marriage with respondent has no merit.
In this case, the court did not find any proof that there
The records disclose that no evidence was presented to was concealment of pregnancy constituting fraud as a
reveal force, intimidation or undue influence. There is ground for annulment. It was unlikely that Godofredo, a
no proof of the facts or circumstances constituting force, first-year law student, did not suspect anything about
76
Luida’s condition considering that she was in an (3) For causes mentioned in number 3 of Article 45, by
advanced stage of pregnancy (highly developed physical the injured party, within five years after the discovery
manifestation, i.e. an enlarged stomach) when they got of the fraud;
married. As she gave birth less than 3 months after they
got married, she must have looked very pregnant even (4) For causes mentioned in number 4 of Article 45, by
before they were married. the injured party, within five years from the time the
force, intimidation or undue influence disappeared or
AQUINO VS. DELIZO ceased;
G.R. No. L-15853, July 27, 1960
(5) For causes mentioned in number 5 and 6 of Article
Petitioner Aquino filed a complaint for annulment of his 45, by the injured party, within five years after the
marriage with respondent Delizo based on the ground of marriage. (87a)
fraud, it being alleged, among other things, that Delizo,
at the date of her marriage to Aquino, on December 27, Prescription
1954, concealed from the latter the fact that she was 1. Absence of Parental Consent
pregnant by another man, and sometime in April 1955, a. By the parents before the party who did not secure
or about four months after their marriage, gave birth to the consent reaches the age of 21; or
a child. The complaint was dismissed by the trial court. b.By the party himself within 5 years after reaching
Aquino thereafter filed a verified "Petition to reopen for the age of 21.
reception of additional evidence", presenting the
certificates of birth and delivery of the child born of the 2. Insanity
defendant on April 26, 1955, which documents, a. By the sane spouse, who had no knowledge of the
according to him, he had failed to secure earlier and other's insanity at any time before the death of
produce before the trial court thru excusable negligence. either party;
The petition, however, was denied. Upon appeal before b.By any relative or guardian or person having legal
the CA, the latter upheld the dismissal of the complaint. charge of the insane, at any time before the death
of either party; or
The SC ruled that the dismissal of the complaint cannot c. By the insane spouse during a lucid interval or after
be sustained. The evidence sought to be introduced at regaining sanity. Anytime during the lifetime of the
the new trial, taken together with what has already been insane party; the insane person may even file
adduced, would be sufficient to sustain the fraud alleged during his lucid interval.
by Aquino. Under the new Civil Code, concealment by
the wife of the fact that at the time of the marriage, she 3. Fraud
was pregnant by a man other than her husband By the injured party within 5 years from the
constitutes fraud and is a ground for annulment of discovery of the fraud.
marriage. In this case, the CA erred in ruling that it was
impossible for Aquino and Delizo not to have had sexual 4. Force and Intimidation
intercourse during their engagement so that the child By the injured party within 5 years from the time it
could be their own. ceases.
The CA also erred in finding it unbelievable Aquino’s 5. Impotency & STD which is serious and
claim that he did not notice or even suspect that Delizo incurable
was pregnant when he married her. When Delizo was By the injured party within 5 years from the
claimed to be four months pregnant, at that stage, it celebration of the marriage.
cannot be said that her pregnancy was readily apparent,
especially since she was "naturally plump" or fat. If NO DECLARATION OF DEFAULT IN ANNULMENT
Delizo is "naturally plump", Aquino could hardly be CASES
expected to know, merely by looking, whether or not
she was pregnant at the time of their marriage, more so Role of the Fiscal in Annulment Cases
because she must have attempted to conceal the true In all cases of annulment or declaration of absolute
state of affairs. nullity of marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of
PRESCRIPTIVE PERIOD the State to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated
or suppressed (Article 48)
Article 47, FC. The action for annulment of marriage
must be filed by the following persons and within the
periods indicated herein: TUASON VS. COURT OF APPEALS
G.R. No. 116607, April 10, 1996
(1) For causes mentioned in number 1 of Article 45 by
the party whose parent or guardian did not give his or DOCTRINE: The role of the prosecuting attorney or
her consent, within five years after attaining the age of fiscal in annulment of marriage and legal separation
twenty-one, or by the parent or guardian or person proceedings is to determine whether collusion exists
having legal charge of the minor, at any time before between the parties and to take care that the evidence
such party has reached the age of twenty-one; is not suppressed or fabricated.
(2) For causes mentioned in number 2 of Article 45, by
the same spouse, who had no knowledge of the other’s In June 1972, respondent Victoria Lopez Tuazon married
insanity; or by any relative or guardian or person having petitioner Emilio Tuazon. Due to the series of physical
legal charge of the insane, at any time before the death abuse against the respondent, the petitioner use of
of either party, or by the insane spouse during a lucid prohibited drugs, cohabitating with three women,
interval or after regaining sanity; leaving the conjugal home and giving minimal child
support, abuse of conjugal property use and incurring of
bank debts without the respondent consent, respondent
77
filed a petition for annulment of marriage in 1989 on the residence in Cavite. Petitioner was then declared in
ground of psychological incapacity and prayed for default for failing to answer the said petition. Just over
powers of administration to save the conjugal properties a month after it was filed, the trial court granted the
from further dissipation. petition and declared the marriage of the parties void ab
initio.
Petitioner filed his Opposition in April 1990 and was
scheduled to present his evidence. Counsel for Five years later, petitioner challenged the trial court’s
petitioner moved for a postponement, however, order declaring as void ab initio her marriage with
petitioner failed to appear. The trial court rendered respondent Rodolfo, citing extrinsic fraud and lack of
judgment declaring the nullity of marriage and awarding jurisdiction over her person, among others. She alleged
the custody of common children to respondent. No that the respondent lied on her real address in his
appeal was taken. petition so she never received summons on the case,
hence depriving her of her right to be heard. The Court
Thereafter, respondent filed Motion for Dissolution of of Appeals dismissed her petition so she now comes to
Conjugal Partnership of Gains and Adjudication to the Supreme Court for review on certiorari.
Plaintiff of the Conjugal Properties which was opposed
by petitioner. Petitioner filed a Petitioner from Relief of Whether or not the declaration of nullity of marriage was
Judgment on the held decision. The trial court denied valid.
the petition which was affirmed by the CA. Hence, this
petition for review on certiorari. NO. The trial court and the public prosecutor defied
Article 48 of the Family Code and Rule 18, Section 6 of
Whether or not in the absence of petitioner in the the 1985 Rules of Court (now Rule 9, Section 3[e] of the
hearing, the court should have ordered a prosecuting 1997 Rules of Civil Procedure). A grant of annulment of
officer to intervene. marriage or legal separation by default is fraught with
the danger of collusion, says the Court. “Hence, in all
The role of the prosecuting attorney or fiscal in cases for annulment, declaration of nullity of marriage
annulment of marriage and legal separation proceedings and legal separation, the prosecuting attorney or fiscal
is to determine whether collusion exists between the is ordered to appear on behalf of the State for the
parties and to take care that the evidence is not purpose of preventing any collusion between the parties
suppressed or fabricated. Petitioner's vehement and to take care that their evidence is not fabricated or
opposition to the annulment proceedings negates the suppressed.”
conclusion that collusion existed between the parties.
There is no allegation by the petitioner that evidence “If the defendant-spouse fails to answer the complaint,
was suppressed or fabricated by any of the parties. the court cannot declare him or her in default but
Under these circumstances, we are convinced that the instead, should order the prosecuting attorney to
non-intervention of a prosecuting attorney to assure determine if collusion exists between the parties. The
lack of collusion between the contending parties is not prosecuting attorney or fiscal may oppose the
fatal to the validity of the proceedings in the trial court application for legal separation or annulment through
the presentation of his own evidence, if in his opinion,
Petitioner also alleges that if he were able to present his the proof adduced is dubious and fabricated.”
evidence, he could have testified that he was not
psychologically incapacitated at the time of the marriage Here, the trial court immediately received the evidence
as indicated by the fact that during their first ten years, of the respondent ex-parte and rendered judgment
he and private respondent lived together with their against the petitioner “without a whimper of protest
children as one normal and happy family, that he from the public prosecutor who even did not challenge
continued supporting his family even after he left the the motion to declare petitioner in default.”
conjugal dwelling and that his work as owner and
operator of a radio and television corporation places him The Supreme Court reiterates: “The task of protecting
in the public eye and makes him a good subject for marriage as an inviolable social institution requires
malicious gossip linking him with various women. These vigilant and zealous participation and not mere pro-
facts, according to petitioner, should disprove the forma compliance. The protection of marriage as a
ground for annulment of his marriage to petitioner. sacred institution requires not just the defense of a true
and genuine union but the exposure of an invalid one as
ANCHETA VS. ANCHETA well.”
G.R. No. 145370, March 4, 2004
REPUBLIC V. IYOY
Petitioner Marietta Ancheta and respondent Rodolfo G.R. No. 152577, September 21, 2005
Ancheta were married on March 5, 1959 and had eight
children. After 33 years of marriage the petitioner left Crasus was married to Fely and had five kids with her.
the respondent and their children. Their conjugal She then left to the US where she had an affair, bore a
properties were later separated through a court- child, and sent Crasus divorce papers. Crasus filed a
sanctioned compromise agreement where the petitioner complaint for declaration of nullity of marriage while
got among others a resort in Cavite. When the husband Fely married her white husband. During the annulment
wanted to marry again, he filed before the Regional Trial proceedings, Fely and her counsel failed to submit any
Court a petition for the declaration of nullity of his documents which led the trial court to waive her right to
marriage with the petitioner on the ground of present evidence. The trial court eventually ruled in
psychological incapacity on June 5, 1995. Although he favor of Crasus, declaring their marriage to be void ab
knew that the petitioner was already residing at the initio. Petitioner Republic appealled the decision.
resort in Cavite, he alleged in his petition that the
petitioner was residing at Las Piñas, Metro Manila, such Does the Solicitor General have the right to intervene in
that summons never reached her. Nevertheless, the case?
substituted service was rendered to their son at his
78
YES. The intent of Article 48 of the Family Code of the paramount consideration to the moral and material
Philippines is to ensure that the interest of the State is welfare of said children and their choice of the parent
represented and protected in proceedings for annulment with whom they wish to remain as provided to in Title
and declaration of nullity of marriages by preventing IX. It shall also provide for appropriate visitation rights
collusion between the parties, or the fabrication or of the other parent. (n)
suppression of evidence; and, bearing in mind that the
Solicitor General is the principal law officer and legal PROCEDURE
defender of the land, then his intervention in such (GOVERNED BY AM NO. 02-11-10 SC)
proceedings could only serve and contribute to the
realization of such intent, rather than thwart it. 1. A complaint for annulment or declaration of
Furthermore, the general rule is that only the Solicitor nullity of marriage must be filed in court. This is
General is authorized to bring or defend actions on treated as a civil action;
behalf of the People or the Republic of the Philippines
once the case is brought before this Court or the Court 2. The court will prepare summons and will be
of Appeals. served to the defendant. It must be answered
within 15 days;
While it is the prosecuting attorney or fiscal who actively
participates, on behalf of the State, in a proceeding for 3. If there no answer from the defendant, this will
annulment or declaration of nullity of marriage before not result to a default;
the RTC, the Office of the Solicitor General takes over
when the case is elevated to the Court of Appeals or this 4. The court will order the prosecutor to appear for
Court. the state and conduct an investigation to
determine whether or not there is collusion
SIN VS. SIN between the parties;
G.R. No. 137590, March 26, 2001 a. Defend validity of the marriage
b. Expose invalid marriages
Florence, the petitioner, was married with Philipp, a c. Prevent collusion between parties
Portuguese citizen in January 1987. Florence filed in d. Submit memorandum
September 1994, a complaint for the declaration of e. Actively participate in hearing
nullity of their marriage. Trial ensued and the parties
presented their respective documentary and testimonial 5. No judgment shall be based on stipulations of
evidence. In June 1995, trial court dismissed Florence’s facts or confession of judgment or a
petition and throughout its trial, the State did not compromise. A full-blown hearing must
participate in the proceedings. While Fiscal Jabson filed commence; and
with the trial court a manifestation dated November
1994 stating that he found no collusion between the 6. The support of the children while the case is
parties, he did not actively participate therein. Other pending shall be provided for.
than having appearance at certain hearings, nothing
more was heard of him. NOTE: The fiscal will represent the state to determine if
there is collusion. The SolGen will see to it that the
The Supreme Court ordered that the petition be sanctity of marriage will be protected. If it is found that
remanded back to the trial court. It observed that the both of the parties are colluding, the case will be
State did not actively participate in the proceedings. immediately dismissed.
Although the fiscal-in-charge entered his manifestation
that there was no collusion between the parties, he did Tuason v. Court of Appeals
not actively participate therein. The task of protecting The submission of a report by the fiscal that there is no
marriage as an inviolable social institution requires collusion between the parties can be dispensed with if it
vigilant and zealous participation and not mere pro- is very clear that there is no collusion. In this case, the
forma compliance. The protection of marriage as a fiscal failed to actively intervene in the case and in fact
sacred institution requires not just the defense of a true he forgot to submit a report that there was no collusion
and genuine union but the exposure of an invalid one as between the parties. Nevertheless, the judge proceeded
well. to hear the case. When it was appealed, it was the
ground that was cited in order to nullify the proceedings.
PROCEDURES IN ANNULMENT AND NULLITY OF The SC however refused to nullify the proceedings
MARRIAGE simply because of the failure of the prosecutor to submit
a collusion report. It was found out by the SC that the
defendant (wife) filed an answer and in fact actively
Article 48, FC. In all cases of annulment or declaration
of absolute nullity of marriage, the Court shall order the participated in the case. It was a no holds barred
prosecuting attorney or fiscal assigned to it to appear on proceeding. According to the SC, the report could be
behalf of the State to take steps to prevent collusion dispensed with if it is very clear that there was no
collusion.
between the parties and to take care that evidence is
not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no Partial, Voluntary Separation of Property
judgment shall be based upon a stipulation of facts or The partial voluntary separation of property agreed
confession of judgment. (88a) upon by the parties through a compromise agreement
approved by the court prior to the judicial declaration of
nullity of marriage is valid. This is not an indicator of
Article 49, FC. During the pendency of the action and
collusion.
in the absence of adequate provisions in a written
agreement between the spouses, the Court shall provide
for the support of the spouses and the custody and Maquilan v. Maquilan
support of their common children. The Court shall give
79
An agreement to separate property is not of itself an The final judgment in such cases shall provide for the
indicator of collusion. In fact, there is no need for the liquidation, partition and distribution of the properties of
Fiscal to participate in the negotiation leading to the the spouses, the custody and support of the common
agreement. children, and the delivery of third presumptive
legitimes, unless such matters had been adjudicated in
Support previous judicial proceedings.
Support of spouses and custody of support for children
must be governed by whatever agreement the parties All creditors of the spouses as well as of the absolute
have made. community or the conjugal partnership shall be notified
of the proceedings for liquidation.
If none, support must be taken from the conjugal or
absolute community until marriage is dissolved. The In the partition, the conjugal dwelling and the lot on
custody of the children will be resolved by Article 213. which it is situated, shall be adjudicated in accordance
If one parent gets custody of children, the other must with the provisions of Articles 102 and 129.
have visitation rights unless the Court deprives him or
her of such. Article 51, FC. In said partition, the value of the
presumptive legitimes of all common children,
When proceedings are done, the court may motu proprio computed as of the date of the final judgment of the trial
or upon application issue provisional orders with or court, shall be delivered in cash, property or sound
without hearing and enforced with or without bond securities, unless the parties, by mutual agreement
judicially approved, had already provided for such
Provisional Orders include: matters.
1. Spousal support
2. Child Support The children or their guardian or the trustee of their
3. Child Custody property may ask for the enforcement of the judgment.
4. Visitation rights
5. Hold Departure Order The delivery of the presumptive legitimes herein
6. Order of Protection prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the
CUSTODY AND SUPPORT OF CHILDREN DURING death of either of both of the parents; but the value of
PENDENCY OF THE CASE the properties already received under the decree of
annulment or absolute nullity shall be considered as
SILVA VS. COURT OF APPEALS advances on their legitime. (n)
G.R. No. 114742, July 17, 1997
Article 52, FC. The judgment of annulment or of
Carlitos E. Silva, a married businessman, and Suzanne absolute nullity of the marriage, the partition and
T. Gonzales, an unmarried local actress, cohabited distribution of the properties of the spouses and the
without the benefit of marriage. The union saw the birth delivery of the children’s presumptive legitimes shall be
of two children: Ramon Carlos and Rica Natalia. Not very recorded in the appropriate civil registry and registries
long after, a rift in their relationship surfaced. At any of property; otherwise, the same shall not affect third
rate, the two eventually parted ways. In February 1986, persons. (n)
by the refusal of Gonzales to allow Silva to have the
children in his company on weekends. Silva filed a Article 53, FC. Either of the former spouses may marry
petition for custodial rights over the children before the again after compliance with the requirements of the
Regional Trial Court. The petition was opposed by immediately preceding Article; otherwise, the
Gonzales who averred that Silva often engaged in subsequent marriage shall be null and void.
“gambling and womanizing” which she feared could
affect the moral and social values of the children. The Article 54, FC. Children conceived or born before the
court held that there is enough recognition of the judgment of annulment or absolute nullity of the
inherent and natural right of parents over their children. marriage under Article 36 has become final and
executory shall be considered legitimate. Children
The Court appreciates the apprehensions of private conceived or born of the subsequent marriage under
respondents and their well-meant concern for the Article 53 shall likewise be legitimate.
children; nevertheless, it seems unlikely that petitioner
would have ulterior motives or undue designs more than Effects of Annulment Of Marriage
a parents natural desire to be able to call on, even if it Decree of Annulment of marriage under Art 45 and
were only on brief visits, his own children. The trial Declaration of Nullity under Art. 40 shall include the
court, in any case, has seen it fit to understandably dissolution of the conjugal partnership or the absolute
provide this precautionary measure, i.e., "in no case can community of property regime. This is a necessary
petitioner take out the children without the written consequence of the annulment or declaration of nullity
consent of the mother." of marriage.
NULLITY OF MARRIAGE Decree will be issued after the judgment is final and
executory. Decree must include:
Article 50, FC. The effects provided for by paragraphs 1. Liquidation, partition, distribution of properties
(2), (3), (4) and (5) of Article 43 and by Article 44 shall 2. Custody and support of the common children
also apply in the proper cases to marriages which are 3. Delivery of presumptive legitimes
declared ab initio or annulled by final judgment under
Articles 40 and 45. All creditors of the parties must be notified. Conjugal
dwelling goes to the spouse to whom most of the
children want to be with
80
Family Code, which was granted. Hence, the marriage

Marriages under 40, and 45; Effects of Art. 43 par. is null and void on the ground of their mutual
2, 3, 4, & 5 psychological incapacity. Their children were placed
Marriages under 40 refer to Subsequent Marriages under the custody of their mother while the other 3
without declaring a previously void marriage as void by siblings are free to choose which they prefer. Gomez
the court and marriages under 45 refers to those that sought a clarification of that portion in the decision
are voidable. Article 43 (2),(3),(4),(5) and Article 44 will regarding the procedure for the liquidation of common
take effect: property in “unions without marriage”. During the
1. If done in bad faith, property forfeited to hearing on the motion, the children filed a joint affidavit
children of subsequent marriage, if none, expressing desire to stay with their father.
children of previous marriage, if none, innocent
spouse (43 par. 2) The provision of Article 43, paragraphs 2, 3, 4 and 5
2. Donations in favor of the guilty spouse is applies only, by explicit terms of Article 50, to voidable
revoked (par. 3) marriages under Article 45 and exceptionally, to void
3. Designation of guilty spouse in innocent marriages under Article 40 of the Family Code. A spouse
spouse’s insurance policy revoked (par. 4) who contracted a subsequent marriage without having
4. Guilty spouse disqualified from inheritance from his previous marriage judicially declared void is guilty
innocent spouse (Par. 5) not only of bigamy but also of violating Article 40, thus,
5. If both parties are guilty, subsequent marriage his subsequent marriage is null and void. The spouse in
is void ab initio (Art. 44) bad faith in a void marriage under Article 40 shall forfeit
only his or her share of the net profits of the community
All other Void Marriages property or conjugal partnership in favor of the common
In all other cases of void marriages other than Art. 40, children or, if there are none, the children of the guilty
the property regime that will govern is co-ownership spouse by a previous marriage, or in default of children,
under either Art. 147 or 148. (Valdez v. RTC) the innocent spouse. This is because of the explicit
provision of Article 43 paragraph 2 in relation to Article
Presumptive Legitime 50 of the Family Code.
It is the part of the testator’s property which the testator
cannot dispose of because the law has reserved it for However, if the marriage is void not because of Article
the compulsory heirs. It must be delivered in cash, 40, the forfeiture of share shall be in accordance with
property or sound security to the children and must be Articles 147 or 148, which provide that the guilty party
provided for in the decree. shall forfeit not only his or her share in the net profits
but all his or her shares in the co-ownership in favor of
Important: The delivery of presumptive legitime their common children.
applies only in:
1. Dissolution of a voidable marriage under Art. 45; MACADANGDANG VS. CA
and G.R. No. L-38287 (Resolution), October 23, 1981
2. The declaration of nullity of a void marriage under
Art. 40. Elizabeth Mejias is married with Crispin Anahaw. She
allegedly had intercourse with petitioner
It is not required in other forms of void marriages Macadangdang. She also alleges that due to the affair,
because said marriages are to be governed by co- she and her husband separated. 7 months or 210 days
ownership under Art. 147 and 148. following the illicit encounter, she gave birth to a baby
boy who was named Rolando Macadangdang in 1967.
3 Instances Where a Void Marriage may produce On April 25, 1972, respondent filed a complaint for
Legitimate Children recognition and support against petitioner.
1. Born before the annulment of a voidable marriage Macadangdang filed his answer opposing Mejias’ claim
becomes final; and praying for its dismissal.
2. Born before the declaration of nullity of marriage
under Art. 36 becomes final; Under Article 255 of the Civil Code, the child Rolando is
3. Born of subsequent void marriage under Article 53 conclusively presumed to be the legitimate son of
(Registration of the judicial decree, record and etc.) respondent and her husband. The baby boy subject of
this controversy was born on October 30, 1967, only
Registration with the LCR seven (7) months after March, 1967 when the "incident"
When your marriage is annulled or declared void, the or first illicit intercourse between respondent and
decree must be registered with the local civil registrar. petitioner took place, and also, seven months from their
Partition and distribution of properties are to be separation (if there really was a separation).
recorded in the LCR and the Registry of Deeds (Art. 52)
to bind the third persons. If not complied with, the It must be noted that as of March 1967, respondent and
subsequent marriage shall be void. This is the void Crispin Anahaw had already four children; hence, they
marriage contemplated under Art. 53 had been married years before such date. The birth of
Rolando came more than one hundred eighty 180 days
NOTE: The partition may be made by agreement following the celebration of the said marriage and before
between parties or by judicial proceedings. (Art. 496 of 300 days following the alleged separation between
CC) aforenamed spouses. The fact that the child was born a
mere seven (7) months after the initial sexual contact
VALDES VS. RTC between petitioner and respondent is another proof that
G.R. No. 122749, July 31, 1996 the said child was not of petitioner since, from
indications, he came out as a normal full-term baby. The
Valdes and Gomez were married in 1971 and had 5 child Rolando is presumed to be the legitimate son of
children. Valdes filed a petition for a declaration of respondent and her spouse. This presumption becomes
nullity of their marriage pursuant to Article 36 of the conclusive in the absence of proof that there was
81
physical impossibility of access between the spouses in there is suspension only of the property relations of the
the first 120 days of the 300 which preceded the birth husband and wife.
of the child.
In LS, it cannot be granted on mere stipulation of facts,
LEDESMA VS. INTESTATE ESTATE OF CIPRIANO or confession of judgment or agreement of the parties
PEDROSA (Art. 60, FC). In SP, it can be effected by agreement of
G.R. No. 102126, March 12, 1993 the spouses during their marriage subject, however, to
Court approval; if done prior to marriage, it can be
Petitioner’s marriage to Pedrosa was declared a nullity effected through marriage settlement (Arts. 134 and
by the RTC. Pending receipt by the court of the ordered 136, FC).
inventory of their properties, Pedrosa died. A separate
petition for the probate of his last will and testament In LS, it necessarily involves separation of property. On
was filed. Petitioner argues that respondent judge the other hand, there may be SP of the spouses without
reneged in the performance of a lawful duty when she legal separation as they may still be actually living
refrained from rendering a decision in the partition case together.
and considered the same closed and terminated, due to
the pendency of intestate proceedings over the DISTINGUISH LEGAL SEPARATION FROM
deceased husband's estate. SEPARATION DE FACTO
Finding the contention of the petitioner meritorious, the In legal separation (LS), it can only be effected by
Supreme Court ruled that the respondent judge should decree of court. In separation de facto (SDF), the
decide the partition case and determine which of the spouses can separate from each other at any time
properties of the conjugal partnership should be without need of a Court order.
adjudicated to each of them. The properties that may
be allocated to the deceased petitioner by virtue of the Dissolution of the absolute community of property or
liquidation of the conjugal assets, shall be distributed in conjugal partnership of the spouses necessarily results
accordance with the laws of intestate succession in from LS. The share of the guilty spouse in the net profits
Special Proceedings. of the absolute community of property or conjugal
partnership is forfeited. Neither can the said guilty
MODULE 7: LEGAL SEPARATION spouse inherent from the innocent spouse. In SDF, the
husband and the wife are still heirs of each other, their
property relations remain, no matter how guilty one
Otherwise known as “relative divorce.”
party is, unless the innocent party disinherits the guilty
An action for legal separation involves nothing more party in his/her will.
than the bed-and-board separation of the spouses. It is
purely personal in nature [Lapuz Sy vs. Eufenio, G.R. DISTINGUISH LEGAL SEPARATION FROM
No. L-30977 (1972)]. In the eyes of our law, the ANNULMENT OF MARRIAGE
husband and wife are still married to each other but they
In legal separation (LS), the marriage is not defective.
are already allowed to live separately.
In annulment of marriage (AM), it is defective.
Legal separation is a legal remedy available to parties in
a valid but failed marriage for the purpose of obtaining In LS, the grounds arise only AFTER the marriage. In
a decree from the court entitling him or her certain AM, the grounds must exist at the TIME OF or BEFORE
the marriage.
reliefs such as the right to live separately from each
other (without affecting the marital bond that exists
In LS, the spouses are still married to each other and
between them), the dissolution and liquidation of their
cannot therefore, remarry. In AM, the spouses can
absolute community or conjugal partnership property
regime and the custody of their minor children. remarry as the marriage is set aside.
Under the Civil Code, there were only two grounds for There are 10 grounds for LS. There are only six (6)
grounds for AM.
legal separation and these are: 1) Adultery on the part
of the wife and concubinage on the part of the husband;
Question (Jurado): Who and when may the petition
and 2) Attempt on the life of the other spouse.
for Legal Separation be filed?
In the present Family Code, there are already ten (10)
grounds. The first ground of adultery and concubinage Answer: The Petition may only be filed by the husband
was no longer reproduced now but it does not mean that of the wife, as the case may be, within five (5) years
from the time of the occurrence of any of the grounds
they are no longer grounds for legal separation because
under Art. 55 of the Family Code (Art. 57, FC).
it is now covered by the generic term “sexual
infidelity” under paragraph 8 of Article 55. The
grounds enumerated herein are exclusive and therefore
no other grounds for legal separation can be invoked GROUNDS FOR LEGAL SEPARATION (Art. 55, FC)
except those stated in this article. These grounds need
not exist prior to the marriage as they even usually Article 55, FC: A petition for legal separation may be
occur after the marriage. filed on any of the following grounds:
DISTINGUISH LEGAL SEPARATION FROM (1) Repeated physical violence or grossly abusive
SEPARATION OF PROPERTY conduct directed against the petitioner, a common
child, or a child of the petitioner;
In legal separation (LS), there is suspension of the (2) Physical violence or moral pressure to compel the
common life of the husband and wife covering their petitioner to change religious or political affiliation;
persons and properties. In separation of property (SP),
82
(3) Attempt of respondent to corrupt or induce the

petitioner, a common child, or a child of the 2. Threatening to cause the woman or her child physical
petitioner, to engage in prostitution, or connivance in harm;
such corruption or inducement;
(4) Final judgment sentencing the respondent to 3. Attempting to cause the woman or her child physical
imprisonment of more than six years, even if harm;
pardoned;
(5) Drug addiction or habitual alcoholism of the 4. Placing the woman or her child in fear of imminent
respondent; physical harm;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent 5. Attempting to compel or compelling the woman or her
bigamous marriage, whether in the Philippines or child to engage in conduct which the woman or her child
abroad; has the right to desist from or desist from conduct which
(8) Sexual infidelity or perversion; the woman or her child has the right to engage in, or
(9) Attempt by the respondent against the life of the attempting to restrict or restricting the woman's or her
petitioner; or child's freedom of movement or conduct by force or
(10) Abandonment of petitioner by respondent threat of force, physical or other harm or threat of
without justifiable cause for more than one year. physical or other harm, or intimidation directed against
For purposes of this Article, the term "child" shall the woman or child. This shall include, but not limited
include a child by nature or by adoption. (9a) to, the following acts committed with the purpose or
effect of controlling or restricting the woman's or her
child's movement or conduct:
GANDIONCO VS. HON. PENARANDA, ET. AL., A. Threatening to deprive or actually depriving the
G.R. No. L-72984, November 1987 woman or her child of custody to her/his family;
B. Depriving or threatening to deprive the woman or her
Private respondent filed with RTC, presided by the children of financial support legally due her or her
respondent judge, a complaint against petitioner for family, or deliberately providing the woman’s children
legal separation, on the ground of concubinage, with a insufficient financial support;
petition for support. Private respondent also filed with C. Depriving or threatening to deprive the woman or her
MTC a complaint against the petitioner for concubinage. child of a legal right;
She also filed an application for the provisional remedy D. Preventing the woman in engaging in any legitimate
of support pendente lite, pending a decision in the action profession, occupation, business or activity or
for legal separation, which was granted by the controlling the victim's own money or properties, or
respondent judge. Petitioner argues that his conviction solely controlling the conjugal or common money, or
for concubinage will have to be first secured before the properties;
action for legal separation can prosper or succeed, as
the basis of the action for legal separation is his alleged 6. Inflicting or threatening to inflict physical harm on
offense of concubinage. The court ruled that a decree of oneself for the purpose of controlling her actions or
legal separation, on the ground of concubinage, may be decisions;
issued upon proof by preponderance of evidence in the
action for legal separation. No criminal proceeding or 7. Causing or attempting to cause the woman or her
conviction is necessary. child to engage in any sexual activity which does not
constitute rape, by force or threat of force, physical
1st Ground: Repeated physical violence or grossly harm, or through intimidation directed against the
abusive conduct directed against the petitioner, a woman or her child or her/his immediate family;
common child, or a child of the petitioner
8. Engaging in purposeful, knowing, or reckless conduct,
Repeated Physical Violence means the unjust or personally or through another, that alarms or causes
unwarranted exercise of force by a spouse against the substantial emotional or psychological distress to the
other spouse or their common child or the child of the woman or her child. This shall include, but not be limited
other spouse, repeatedly. (Ramirez, Law on Marriage to, the following acts:
(2003), p. 171). A. Stalking or following the woman or her child in public
or private places;
NOTE: Violence need not be physical, it is submitted B. Peering in the window or lingering outside the
that psychological and sexual violence and repeated residence of the woman or her child;
verbal abuse may qualify as grossly abusive conduct C. Entering or remaining in the dwelling or on the
(Rabuya). property of the woman or her child against her/his will;
D. Destroying the property and personal belongings or
The same is also punishable under R.A. No. 9262 (Anti- inflicting harm to animals or pets of the woman or her
Violence Against Women and their Children Act of child; and,
2004). E. Engaging in any form of harassment or violence.
For the purposes of Art. 55, the term “child” shall 9. Causing mental or emotional anguish, public ridicule
include a child by nature or by adoption. or humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse,
Acts of Violence according to the “Anti-Violence and denial of financial support or custody of minor
Against Women and Their Children Act of 2004” children of access to the woman's child/children.
[R.A. No. 9262] (as grounds for legal separation Protection Order
under Art. 55(1), FC): A protection order under R.A. 9262 is an order issued
under this act for the purpose of preventing further acts
1. Causing physical harm to the woman or her child; of violence against a woman or her child and granting
83
other necessary relief. The relief granted under a Otherwise, it will be a ground for annulment under Art.
protection order serves the purpose of safeguarding the 46(4), FC in relation to Art. 45(3), FC.
victim from further harm, minimizing any disruption in
the victim’s daily life, and facilitating the opportunity If said defects already existed before the marriage and
and ability of the victim to independently regain control they were concealed from the other spouse, they could
over her life. be grounds for annulment of marriage as it would
constitute fraud under paragraph 3 of Article 45 in
The provisions of the protection order shall be enforced relation to Article 46, paragraph 4.
by law enforcement agencies. The protection orders that
may be issued under this Act are the Barangay Homosexuality and lesbianism can also be a ground to
Protection Order (BPO), Temporary Protection Order declare the marriage void under Article 36 if it existed
(TPO) and Permanent Protection Order (PPO). before the marriage, anchored on psychological causes,
and both grave and incurable.
WHO MAY FILE PETITION FOR PROTECTION
ORDERS 7th Ground: Contracting by the respondent of a
subsequent bigamous marriage, whether in the
1. The offended party; Philippines or abroad
2. Parents or guardians of the offended party;
3. Ascendants, descendants or collateral relatives within The elements for bigamy to be prosecuted in the
the fourth civil degree of consanguinity or affinity; Philippines are:
4. Officers or social workers of the DSWD or social
workers of local government units (LGUs); 1. Offender has been legally married;
5. Police officers, preferably those in charge of women 2. The marriage has not been legally dissolved or, in
and children’s desks; case his or her spouse is absent, the absent spouse
6. Punong barangay or Barangay Kagawad; could not yet be presumed dead;
7. Lawyer, counselor, therapist or healthcare provider of 3. Offender contracts a subsequent marriage;
the petitioner; 4. Subsequent marriage has all the essential requisites
8. At least 2 concerned responsible citizens of the city for validity, except legal capacity [Capili v. People, G.R.
or municipality where the violence against women and No. 183805 (2013)].
their children occurred and who has personal knowledge
of the offense committed. (Sec. 9. R.A. 9262) As a ground for legal separation however, there is no
need for a criminal conviction for bigamy.
2nd Ground: Physical violence or moral pressure to
compel the petitioner to change religious or political 8th Ground: Sexual infidelity or perversion
affiliation
Criminal conviction of adultery or concubinage is not
The law does not require the violence or moral pressure required in the action for legal separation. The court
to be repeated. A single act of violence is sufficient to may grant legal separation by mere preponderance of
be a ground since religious and political belief are human evidence and no criminal proceedings or conviction is
rights (Tolentino). necessary (Gandionco vs. Hon. Penaranda, et al., G.R.
No. L- 72984, November 27, 1987). Although adultery
3rd Ground: Attempt of respondent to corrupt or and concubinage are included in the acts of sexual
induce the petitioner, a common child, or a child of the infidelity, other acts of sexual infidelity short of adultery
petitioner, to engage in prostitution, or connivance in and concubinage are enough so long as the said act
such corruption or inducement constitute a clear betrayal of the trust of one spouse.
Hence, even a husband’s single act of sexual intercourse
Only the respondent spouse must be guilty of corrupting with another woman is already a ground for legal
or inducing the petitioner, a common child or a child of separation.
the petitioner to engage in prostitution.
Adultery is not a continuing crime; it is consummated at
4th Ground: Final judgment sentencing the respondent every moment of carnal knowledge. Thus, every sexual
to imprisonment of more than six years, even if act is a ground for legal separation [People v. Zapata
pardoned and Bondoc, G.R. No. L-3047 (1951)].
5th Ground: Drug addiction or habitual alcoholism of A civil action for legal separation based on concubinage
the respondent may proceed ahead of, or simultaneously with, a
criminal action for concubinage; conviction is not a
DEAN (2018): This can be a ground for legal separation prerequisite [Gandionco v. Penaranda, G.R. No. 79284
if they occur during the marriage. If this ground already (1987)].
existed before the marriage and was concealed, this can
be a ground for annulment of marriage for fraud under 9th Ground: Attempt by the respondent against the
par. 3 Art. 45 in relation to par. 4 Art. 46. The marriage life of the petitioner
is voidable.
Attempt on the life of the other spouse must not be
6th Ground: Lesbianism or homosexuality of the justified by self-defense or that the spouse attacked was
respondent caught in flagrante delicto having carnal knowledge with
another man or woman.
To constitute grounds for legal separation, the cause
(i.e., drug addiction, habitual alcoholism, lesbianism or Criminal conviction is not required as the attempt on the
homosexuality) does not have to be existing at the life of another spouse may be proven by preponderance
time of the celebration of marriage. It is enough of evidence.
that it arises during the existence of the marriage.
84
10th Ground: Abandonment of petitioner by the opportunity for the wrong doing directly or
respondent without justifiable cause for more than one indirectly.
year ✔ Recrimination means that both parties are at
fault or have given ground for legal separation.
Abandonment is not mere physical estrangement but ✔ Collusion refers to an arrangement between
also financial and moral desertion. There must be an the spouses to obtain a decree of legal
absolute cessation of marital relations, duties, and separation by secret maneuvers or pretensions
rights with the intention of perpetual separation [Dela by making it appear that a valid ground exists
Cruz. v. Dela Cruz, G.R. No. L-19565 (1968)]. even if there is none.
✔ Prescription means the loss or extinction of
To be a ground for legal separation, abandonment must the right to file an action due to the lapse of time
be without just cause [Ong Eng Kiam v. Ong, G.R. No. fixed by the law.
153206 (2006)].
CONDONATION by the aggrieved party – After
IMPORTANT: These grounds are exclusive. No other the commission of the offense;
grounds can be used. Also, these need not be existing maybe express or implied
prior to the marriage. Existence before the marriage and
concealment of such is not required. (Dean, 2018) Condonation may be given expressly or impliedly. An
example of an implied condonation is when a husband
DEFENSES AVAILABLE TO THE DEFENDANT repeatedly has intercourse with the wife despite the
(Art. 56, 65, 66, FC) wife’s cruelty. “Although he did not wish it, [he did it]
eventually for the sake of peace.” [Willan v. Willan, G.R.
Article 56, FC: The petition for legal separation shall No. L-13553 (1960)]
be denied on any of the following grounds:
ALMACEN VS. BALTAZAR
(1) Where the aggrieved party has condoned the 103 Phil. 1147
offense or act complained of;
(2) Where the aggrieved party has consented to the Plaintiff committed adultery with the cousin of the
commission of the offense or act complained of; defendant. Prior to such infidelity, the defendant himself
(3) Where there is connivance between the parties in has not been loyal to the plaintiff. The defendant
the commission of the offense or act constituting the separated from the plaintiff after the latter's infidelity.
ground for legal separation; After their separation, there has been a condonation by
(4) Where both parties have given ground for legal the defendant of the acts committed by the wife as
separation; shown by the fact that he has been sending her money
(5) Where there is collusion between the parties to for her support. Defendant argues, however, that he
obtain decree of legal separation; or and plaintiff never resumed their conjugal relationship
(6) Where the action is barred by prescription. and, therefore, there has been no legal condonation of
the acts of the erring wife. The court ruled that the act
Article 65, FC: If the spouses should reconcile, a of giving money to an erring wife and the fact proven in
corresponding joint manifestation under oath duly the case that no action was taken against her before the
signed by them shall be filed with the court in the courts of justice are sufficient to establish forgiveness
same proceeding for legal separation. amounting to condonation, for condonation is the
forgiveness of one of the married parties of an offense
Article 66, FC: The reconciliation referred to in the which he knows the other has committed against the
preceding Articles shall have the following other. At any rate, condonation does not require sexual
consequences: intercourse and it may be express or implied.
(1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
BUGAYONG VS. GINES
(2) The final decree of legal separation shall be set
100 Phil. 616
aside, but the separation of property and any
forfeiture of the share of the guilty spouse already
Bugayong, a serviceman in the United States Navy, was
effected shall subsist, unless the spouses agree to
married to Ginez. When Bugayong reported back to
revive their former property regime.
duty, he began receiving letters informing him of alleged
acts of infidelity of his wife. He then went to see his wife.
The court's order containing the foregoing shall be
Despite the alleged unfaithfulness of Ginez, he slept with
recorded in the proper civil registries.
her for 2 nights. On the following day, he tried to verify
from his wife the truth about her infidelity. Instead of
An action for legal separation can be dismissed by the answering, Ginez left. Bugayong filed a case for legal
court if any of the grounds enumerated in Article 56 is separation. Ginez moved for its dismissal on the ground
present. These grounds are as follows: condonation, of condonation. Following the US doctrines, the
consent, connivance, recrimination, collusion, and Supreme Court ruled that any cohabitation with the
prescription. guilty party, after the commission of the offense, and
with the knowledge or belief on the part of the injured
party of its commission, will amount to conclusive
✔ Condonation is an act of forgiving and is given
evidence of condonation; but this presumption may be
after the fact.
rebutted by evidence.
✔ Consent is given before the commission of the
act that gives rise to the ground for legal
separation. CONSENT by the aggrieved party to the
commission of the offense – before the
✔ Connivance when the spouse participated in
commission of the offense;
the downfall of the other as by providing actively
may be express or implied
85
A written agreement between the spouses, which 203 SCRA 750

provided that they were “free to get any mate and live
with as husband and wife without any interference by Dr. Neri filed a criminal complaint for adultery against
any of us, nor either of us can prosecute the other for Mrs. Neri and Arroyo, Jr. The RTC convicted both of
adultery or concubinage or any other crime or suit them. Upon appeal, Mrs. Neri contended that a pardon
arising from our separation” amounted to express had been extended by her husband and that the latter
condonation of and consent to the adulterous acts of had later contracted marriage with another woman with
wife [Matubis v. Praxedes, G.R. No. L11766 (1960)]. whom he is presently cohabiting, thereby precluding
him from filing the criminal complaint on the ground of
The non-interference of the husband with regard to the pari delicto. The court ruled that if there is no pari delicto
amorous relations between his wife and Ramos as when the husband can prove he did not allow the wife
constitutes consent [People v. Sensano and Ramos, to desecrate the home, the adulterous wife can be
G.R. No. L-37720 (1933)]. charged for adultery. Incidentally, while consent comes
before the act, and condonation comes after, to make
PEOPLE VS. SENSANO use of either, the same must be before the filing of the
58 Phil. 73 complaint. ITCAB, she did not enter into any agreement
with her husband allowing each other to marry or
Ursula Sensano and Mariano Ventura were married in cohabit with other persons. Also, Dr. Neri promptly filed
1919. Shortly after the birth of their child, Mariano went his complaint after discovering the illicit affair.
to the Province of Cagayan and remained there for three
years. During his three-year stay, he did not write to his COLLUSION between parties to obtain decree of
wife nor did he give support to her and the child. Ursula legal separation
was poor and illiterate and had no relatives upon whom
she could call. Then Marcelo Ramos took her and the Collusion in matrimonial cases is the act of married
child to live with him. persons in procuring a divorce by mutual consent,
whether by preconcerted commission by one of a
When Mariano returned in 1924, he filed a case against matrimonial offense, or by failure, in pursuance of
Ursula and Marcelo for adultery. They were sentenced agreement, to defend divorce proceedings [Brown v.
to four months and 1 day. After completing the service Yambao, G.R. No. L-10699 (1957)].
of the sentence, Ursula asked for forgiveness from
Mariano, to which the latter replied that she can do OCAMPO VS. FLORENCIANO
whatever she wants and that he wants nothing to do 107 Phil. 35
with her. Mariano then left for Hawaii where he stayed
for seven years. Jose de Ocampo filed an action for legal separation
against his wife on the ground of adultery. The wife all
He knew that his wife had lived again with Marcelo. Upon throughout the proceeding signified her conformity with
his return to the Philippines, he again filed a case for the petition of legal separation. She even admitted that
adultery. The court of first instance sentenced Ursula she had sexual relations with other men. The CA
and Marcelo to 3 years, 6 months, and 21 days in prison. declared that the legal separation could not be decreed
They contended that the court of first instance erred in on the ground of collusion. SC ruled that there would be
not considering that Mariano had already consented to collusion if the parties had arranged to make it appear
the adultery. The Solicitor General contended that that a matrimonial offense had been committed
Mariano’s absence from the Philippines made it although it was not, or if the parties had connived to
impossible for him to take any action. bring about a legal separation even in the absence of
grounds therefor. Mere fact of confession to the offense
Had Mariano consented to his wife’s adulterous acts? and failure to make a defense does not by itself
constitutes collusion. Here, the offense of adultery really
Yes. The fact that he told his wife that he had nothing took place thus no collusion among the parties.
to do with her and that she can do whatever she wants
is considered as consent to the adultery. He did not PRESCRIPTION of action for legal separation
interfere with his wife’s relations for seven years despite
knowing that the latter was staying again with her lover. Prescriptive period for filing a petition for legal
The Solicitor General’s contention has no merit. He could separation
still have taken actions despite his absence from the An action for legal separation shall be filed within five
country had he wanted to. years from the time of the occurrence of the cause (Art.
57, FC).
CONNIVANCE between the parties in the
commission of the crime The court can take judicial notice of prescription. If
prescription is apparent from the allegations in the
Connivance is present when the husband throws no complaint for legal separation, the court can dismiss it
protection around his wife nor warns her against motu proprio. Thus, even if prescription is not
intimacy with the driver. A husband who had reliable interposed as a defense but it becomes manifest after
reports for two months that gave him reason to suspect trial, the court may still dismiss the complaint motu
that his wife was having an affair with her driver yet did proprio (Brown vs. Yambao, 102 Phil. 168).
nothing to keep the latter away is guilty of connivance Failure to interpose prescription as a defense
[Sargent v. Sargent, 114 A. 428 (1920)]. When prescription was not interposed as a defense, the
courts can take cognizance thereof, because actions
MUTUAL GUILT OR RECRIMINATION between seeking a decree of legal separation, or annulment of
spouses in the commission of any ground marriage, involve public interest and itis the policy of
for legal separation our law that no such decree be issued if any legal
obstacles thereto appear upon the record.
ARROYO, JR. VS. CA
86
This is an exception to the Rules of Court provision that separation because the marriage is already dissolved by
defenses not raised in the pleadings will not be the death of one of the parties. [Lapuz Sy v. Eufemio,
considered since provisions on marriage are substantive G.R. No. L30977 (1972)].
in nature (Brown v. Yambao, G.R. No. L10699, October
18, 1957). Effect of Death of a Party (Rabuya, 2017)
1. If a party dies prior to the entry of judgment,
BROWN VS. YAMBAO the case shall be terminated.
102 Phil. 168 2. If a party dies after the entry of judgment, the
judgment shall bind the parties and their
In 1955, Brown filed a suit for legal separation against successors-in-interest. (Sec. 21, AM No. 02-
his wife Yambao on the ground of adultery, alleging that 11-11-SC (Rule on Legal Separation)
upon his release from internment in 1945 he learned
that his wife had an adulterous relation with another PROCEDURE
man and had a baby with the latter. Brown after the (ART. 58-60, FC) and A.M. NO. 02-11-12-SC,
liberation also lived with another woman and had RULES ON LEGAL SEPARATION
begotten with her. Brown’s cohabitation with another
woman bars him from claiming legal separation Who may file the action?
pursuant to Article 100 of the New Civil Code. Moreover, A petition for legal separation may be filed only by the
he filed the suit for legal separation (1945) only until 10 husband or the wife [Sec. 2, A.M. No. 02-11- 11-SC
years after he learned of his wife’s adultery (1945). (Rule on Legal Separation)].
Under Article 102 of the New Civil Code, action for legal
separation cannot be filed except within one (1) year Where to file the action?
from and after the plaintiff became cognizant of the The petition shall be filed in the Family Court of the
cause and within five years from and after the date province or city where the petitioner or the respondent
when such cause occurred. Even if the wife did not has been residing for at least six months prior to the
invoke the defense of prescription, it can still be date of filing “or in the case of a non-resident
considered since legal separation cases involve public respondent, where he may be found in the Philippines,
interest. Hence, petition is denied. at the election of the petitioner.” [Sec. 2, A.M. No. 02-
11-11-SC]
RECONCILIATION of parties during pendency of
action [Art. 66(1), FC] When to File Action?
An action for legal separation shall be filed within five
Article 65, FC. If the spouses should reconcile, a years from the time of the occurrence of the cause [Art.
corresponding joint manifestation under oath duly 57, FC and A.M. No. 02-11-11-SC].
signed by them shall be filed with the court in the same
proceeding for legal separation. Contents and Form of the Petition [Sec. 2, A.M. No.
02-11-11-SC]
Article 66, FC. The reconciliation referred to in the
preceding Articles shall have the following a. Allege the complete facts constituting the cause of
consequences: action;
1. The legal separation proceedings, if still pending, b. Names and ages of the common children of the
shall thereby be terminated at whatever stage; and parties, specify the regime governing their property
2. The final decree of legal separation shall be set aside, relations, the properties involved, and creditors, if any;
but the separation of property and any forfeiture of the c. Be verified and accompanied by a certification against
share of the guilty spouse already effected shall subsist, forum shopping; and
unless the spouses agree to revive their former property d. Be filed in six copies.
regime.
COOLING-OFF PERIOD (Art. 58, FC)
The court’s order containing the foregoing shall be
recorded in the proper civil registries. An action for legal separation shall be in no case tried
before 6 months has elapsed since the filing of the
Effects of Reconciliation petition, to enable the contending spouses to settle
differences. In other words, it is for possible
a. Proceedings for legal separation shall be
reconciliation (Art. 58, FC).
terminated at whatever stage [Art. 66(1), FC].
b. If there is a final decree of legal separation, it General Rule: The 6 months cooling-off period is a
shall be set aside [Art. 66(2), FC].
mandatory requirement. Petition shall not be granted if
c. The separation of property and forfeiture of it is not observed (Pacete v. Carriaga, G.R. No. L-53880,
share of guilty spouse shall subsist, unless the March 17, 1994).
spouses agree to revive their former property
regime or to institute another property regime Note: Matters other than the merits of legal separation
[Art. 66 cf. Art. 67, FC]. can be determined by the court without waiting for the
d. Joint custody of children is restored. lapse of the 6-month period.
e. The right to intestate succession by guilty
spouse from innocent spouse is restored. Exception: There is no cooling-off period if the grounds
f. The right to testamentary succession depends alleged are those under R.A. 9262 (Anti-Violence
on the will of the innocent spouse. against Women and Children Act). The Court can
immediately hear the case.
DEATH of either party during pendency of action
RECONCILIATION EFFORTS (Art. 59, FC)
Death of plaintiff before decree of legal separation
abates the action. There is no more need for legal
87
The Court is required to take steps toward the accounting and separation of property, alleging that her
reconciliation of the spouses and must be fully satisfied husband subsequently contracted marriage with de la
that, despite such efforts, reconciliation is highly Concepcion. The defendants filed a series of motions for
improbable (Art. 59, FC). extension to file an answer; thereafter, Alanis filed a
motion to declare the defendants in default, which the
Note: This is without prejudice to judicial determination RTC granted. The decision was then rendered in favor of
of custody of children, alimony, and support pendente Alanis. SC ruled that the default order was not legally
lite. rendered. Article 101 mandates the intervention of the
state attorneys in case of uncontested proceedings for
Courts can still resolve other issues, pending the waiting legal separation and of annulment of marriages.
period or cooling off period. In resolving other issues, Moreover, Article 58 mandates that an action for legal
courts should try not to touch, as much as possible, on separation must "in no case be tried before six months
the main issue (i.e. adultery if that is the ground used). shall have elapsed since the filing of the petition," in
However, Court must still receive evidence if just to order to provide the parties a "cooling-off" period.
settle incidental issues of support and custody [Araneta Lastly, Rule 18 of the Rules of Court provides that when
v. Concepcion, G.R. No. L9667 (1956)]. the defendant fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a
CONFESSION OF JUDGMENT (Art. 60, FC) collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it
Rule in rendering a judgment of legal separation based that the evidence submitted is not fabricated. Hence, no
upon a stipulation of facts or confession of judgment defaults in actions for annulments of marriage or for
legal separation
A decree of legal separation cannot be issued solely on
the basis of a stipulation of facts or a confession of OCAMPO VS. FLORENCIO
judgment. The grounds for legal separation must be 107 Phil. 35
proved. Neither confession of judgment nor summary
judgment is allowed. In any case, the court shall order De Ocampo filed an action for legal separation against
the prosecuting attorney or fiscal to take steps to his wife, Florenciano, on the ground of adultery.
prevent collusion between the parties and to take care Florenciano manifested her conformity to the petition on
that the evidence is not fabricated or suppressed (Art. the condition that she would not be criminally charged
60, FC). for adultery. The lower courts dismissed the case
holding that there was a collusion and confession of
What the law prohibits is a judgment based exclusively judgment, as prohibited by Article 101 of the New Civil
or mainly on defendant’s confession (Ocampo v. Code. The Supreme Court granted the petition for legal
Florenciano, G.R. No. L-13553, February 23, 1960). separation because aside from Florenciano’s admission
that she had sexual relations with another man, there
TUASON VS. CA was evidence of the adultery independent of such
256 SCRA 158 statement. The collusion that the law seeks to prevent
is one where the parties arranged to make it appear that
The wife filed a petition for annulment or declaration of a matrimonial offense had been committed, although it
nullity of her marriage to Emilio Tuason. The latter failed was not, or if the parties connived to bring about a case
to appear in two scheduled hearings, which prompted for legal separation even in the absence of grounds
the RTC to declare him to have waived his right to therefor.
present evidence and deemed the case submitted for
decision. RTC granted the petition and since no appeal COURT SHOULD ORDER FISCAL TO TAKE STEPS
was taken, the decision became final and executory. TO PREVENT COLLUSION
Tuason insists that his non-appearance was due to his
confinement/rehabilitation and that the trial court After the filing of the complaint for legal separation, the
should have ordered the prosecuting officer to intervene court will issue summons and require the defendant to
and inquire for his non-appearance pursuant to Article file his/her answer within fifteen (15) days from receipt
48 and Article 60 of the Family Code. The facts in the of the summons and the complaint. If no answer is filed,
case at bar do not call for the strict application of Articles the court shall order the assigned fiscal to investigate
48 and 60 of the Family Code. One, petitioner was not and determine whether or not there is collusion between
declared in default, in fact he participated in the the parties. The court cannot declare the defendant in
proceedings—he filed his Answer and other pleadings as default on motion of the plaintiff despite the fact that
well as cross-examine the witnesses. Secondly, the role he/she failed to file an answer (Macias vs. Judge
of the prosecuting attorney or fiscal in annulment of Ochotorena, July 30, 2004). If the defendant filed an
marriage and legal separation proceedings is to answer, the fiscal is still required by law to intervene
determine whether collusion exists between the parties and conduct his own investigation to determine the
and to take care that the evidence is not suppressed or presence or absence of collusion and to see to it that the
fabricated. Here, Tuason’s vehement opposition to the evidence is not fabricated or suppressed. After
petition negates collusion and there was no allegation conducting an investigation, the fiscal is mandated by
that evidence was suppressed or fabricated by the law to make a report to the court on the result of his
parties. investigation. If there appears to be no collusion, the
fiscal will submit a report of no collusion to the court.
PACETE VS. CARRIAGA
231 SCRA 321 The fiscal must actively participate in the proceedings
for legal separation. However, if the legal separation
Concepcion Alanis filed a complaint for declaration of case was vehemently opposed and heatedly contested
nullity of the marriage between her husband and one by the defendant, the non-intervention of the fiscal or
Clarita de la Concepcion, as well as for legal separation prosecuting attorney to assure lack of collusion between
(between her marriage with her husband), and for the contending parties is not fatal to the validity of the
88
proceedings in court. The fact that the litigation is shall be taken from the absolute community or conjugal
characterized by a no-holds barred contest is indicative partnership. If the court awards the custody of their
of no collusion. These kinds of situation do not call for minor children to one spouse, the other spouse should
the strict application of Articles 48 and 60 of the Family be given visitorial rights. Death of a party extinguishes
Code (Tuason vs. Court of Appeals, 256 SCRA 158). a pending action for legal separation.
NO HEARING WITHIN SIX (6) MONTHS FROM EFFECTS OF DECREE OF LEGAL SEPARATION
FILING
a. The spouses can live separately [Art. 63, FC] but
Before the court will commence the hearing of the case, the marriage bonds are not severed.
it should allow “a ―six months cooling off period” to b. The absolute community of property (ACP) or
elapse from the filing of the complaint. This is intended conjugal property of gains (CPG) shall be
to give the parties enough time to further contemplate dissolved and liquidated, and the share of the
their positions and allow the healing balm of time to aid guilty spouse shall be forfeited in favor of the
them in the process. The six months period is imposed common children, previous children, or innocent
to give them the opportunity for dispassionate spouse, in that order [Art. 63, FC; cf. Art. 43(2),
reflection, for during this period, there is the possibility FC].
that the smouldering ember of emotion and the passion c. Custody of the minor children shall be awarded
of the parties may subside by the persuasive to the innocent spouse [Art. 63, FC; cf. Art 213,
intervention of well-meaning friends and members of FC].
the family.
d. Guilty spouse shall be disqualified from
inheriting from the innocent spouse by intestate
The six-month cooling-off period is a mandatory
succession. The provisions in favor of the guilty
requirement and its noncompliance renders the decision
party in the will of the innocent spouse shall also
infirm. Thus, in the case of Pacete vs. Carriaga, 231
be revoked by operation of law [Art. 63, FC].
SCRA 321, the Supreme Court ruled that failure to
observe the six-month cooling-off period is a ground to e. Donations in favor of the guilty spouse may be
set aside a decision granting legal separation. However, revoked [Art. 64, FC] but this action prescribes
what is prevented from being heard during the six- after 5 years from the decree of legal
month period is only the hearing of the case on the separation.
merits. It does not involve the hearing of other incidents f. Innocent spouse may also revoke designation of
such as the custody of the minor children, support guilty spouse as beneficiary in an Insurance
pendente lite and alimony. Also, the court may entertain policy, even if such stipulations are irrevocable
a prayer for injunction within the said period or even a [Art. 64. FC; cf. Sec. 11, P.D. 612].
motion to dismiss. It must be noted, however, that the g. Obligation for mutual support ceases, but the
six-months cooling off period is required only in legal court may order the guilty spouse to support the
separation and not in annulment of marriage or innocent spouse [Art. 198, FC].
declaration of nullity of a void marriage. h. The wife shall continue to use the surname of
the husband even after the decree for legal
NO DECREE OF LEGAL SEPARATION MAY BE separation [Laperal v. Republic, G.R. No. L-
ISSUED UNLESS THE COURT HAS TAKEN STEPS 18008 (1992)].
TOWARDS THE RECONCILIATION
DEAN’S NOTES:
No decree of legal separation may be issued unless the The decree of legal separation does not dissolve the
court has taken steps towards the reconciliation of the marriage. Even if the husband and wife are already
spouses and is fully satisfied, despite such efforts, that living separately from each other, the marriage bond is
reconciliation is highly improbable. Likewise, the court not severed. Thus, a spouse can still be held criminally
cannot render judgment on the basis of stipulation of liable for bigamy if he/she contracts another marriage
facts or confession of judgment. However, in the case of or for adultery or concubinage if he or she commits the
Ocampo vs. Florencio, 107 Phil. 35, the Supreme act.
Court ruled that even if the wife has admitted the
adultery in the legal separation case filed against her by The absolute community of property or the conjugal
her husband, the decision granting legal separation may partnership shall be dissolved and liquidated. The
still stand if there is evidence of adultery independently offending spouse shall have no right to any share of the
of such statement. The decree issued is still valid since net 108 profits earned by the absolute community or
it is not based on the confession by the defendant wife, conjugal partnership. The share of the net profits of the
but upon evidence presented by the plaintiff. What the offending spouse shall be forfeited in favour of the
law prohibits is a judgment based exclusively or mainly common children, or if there be none, the children of the
on defendant’s confession. guilty spouse in the previous marriage or, in default
thereof, the innocent spouse (Article 43, par 2). The net
After the filing of the petition for legal separation, the profit refers to the increase in value between the market
parties are already entitled to live separately from each value of the community property at the time of the
other. In the absence of a written agreement between celebration of the marriage and the market value at the
the spouses, the administration of the absolute time of its dissolution (Article 102 par.4).
community or conjugal partnership property shall be
decided by the court. If neither of the party is fit to Custody of the minor children shall be awarded to the
administer it, the court may appoint a third person to innocent spouse, subject to the provisions of Article 213
manage the community properties. The administrator of the Family Code. This means that the court may even
appointed by the court shall have the same powers and deprive the innocent spouse of the custody of the child
duties, as those of a guardian under the Rules of Court. if the court finds the said spouse to be unfit to take care
During the pendency of the action for legal separation, of the child. The court may even award the custody of
the support of the parties and their common children
89
the child to a third person as the paramount Article 66, FC: The reconciliation referred to in the
consideration here is the best interest of the child. preceding Articles shall have the following
consequences:
The offending spouse shall be disqualified to inherit from
the innocent spouse by intestate succession. (1) The legal separation proceedings, if still pending,
Furthermore, if the innocent spouse has instituted the shall thereby be terminated at whatever stage; and
offending spouse as a beneficiary in his last will and (2) The final decree of legal separation shall be set
testament, the same is automatically revoked by aside, but the separation of property and any
operation of law. forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
Once the decree of legal separation becomes final, the revive their former property regime.
innocent spouse may or may not revoke the donations The court's order containing the foregoing shall be
made by him or her in favour of the offending spouse, recorded in the proper civil registries. (108a)
or he may or may not revoke the designation of the
offending spouse as a beneficiary in any insurance Article 67, FC: The agreement to revive the former
policy, even if such designation is irrevocable. Unlike in property regime referred to in the preceding Article
the case of annulment where the institution of the shall be executed under oath and shall specify:
offending spouse as an heir in the will of the innocent
spouse is revoked by operation of law, the revocation (1) The properties to be contributed anew to the
here of the donation and the insurance policy must be restored regime;
done at the instance of the innocent spouse. The (2) Those to be retained as separated properties of
revocation of the donations shall be recorded in the each spouse; and
registry of property of the place where the properties (3) The names of all their known creditors, their
are located. However, alienations, liens and addresses and the amounts owing to each.
encumbrances registered in good faith before the
revocation shall be respected. In case of the revocation The agreement of revival and the motion for its
of the designation of the offending spouse in the approval shall be filed with the court in the same
insurance policy, the same shall take effect only after proceeding for legal separation, with copies of both
written notification thereof to the insured. The action to furnished to the creditors named therein. After due
revoke the donation prescribes after five years from the hearing, the court shall, in its order, take measure to
time the decree of legal separation has become final. protect the interest of creditors and such order shall
be recorded in the proper registries of properties.
EFFECTS OF FILING THE PETITION FOR LEGAL
SEPARATION (Jurado, 2019) The recording of the ordering in the registries of
property shall not prejudice any creditor not listed or
a. The spouses are entitled to live separately, but not notified, unless the debtor-spouse has sufficient
the marital bond is not severed [Art. 61 (1), FC]. separate properties to satisfy the creditor's claim.
The wife can have a residence of her own
separate from his husband’s residence.
b. The husband has no more rights to have sexual DEAN’S NOTES:
intercourse with his wife and if he forces himself Should the spouses reconcile during the pendency of the
upon her, he can be charged criminally. action for legal separation or even after the decree has
c. Administration of community or conjugal been issued, they must file a joint manifestation of
property – If there is no written agreement reconciliation in the court which tried the case. If the
between the parties, the court shall designate case is still pending, it shall be terminated in whatever
one of them or a third person to administer the stage. If the decree has already been issued, it shall be
ACP or CPG (Art. 61, par. 2, FC). set aside. However, the separation of property and any
forfeiture of the share of the guilty spouse already
NOTE: No motion to dismiss the petition shall be effected by the decree shall subsist. The court’s order
allowed except on the ground of lack of jurisdiction over containing the reconciliation of the parties must be
the subject matter or over the parties; provided, recorded in the proper office of the local civil registrar.
however, that any other ground that might warrant a The parties may agree to revive the former property
dismissal of the case may be raised as an affirmative regime that binds them before the separation. The said
defense in an answer (Sec. 4, A.M. No. 02-11-11-SC). agreement must be executed under oath and shall
specify the following:
EFFECTS OF PENDENCY 1. Properties to be contributed anew to the
restored regime;
The Court shall provide for: [Art. 62, cf. Art. 49, FC] 2. Those to be retained by either spouse as their
a. Support of spouses separate properties; and,
b. Custody of children: The court shall give 3. The names of their respective 110 creditors,
custody of children to one of them, if there is no their addresses and the amounts owing to each.
written agreement between the spouses.
c. Visitation rights of the other spouse. The agreement of revival must be in writing and
attached to the motion to be filed in court trying the
RECONCILIATION (ART. 65-67, FC) legal separation case. Creditors of both parties must be
duly notified of the said motion by furnishing them
Article 65, FC: If the spouses should reconcile, a copies of both the agreement and the motion. Once the
corresponding joint manifestation under oath duly court approves the agreement and the motion after due
signed by them shall be filed with the court in the hearing, the order of the court must be recorded in the
same proceeding for legal separation. (n) proper registries of properties. Those creditors that were
not listed or not notified shall not be prejudiced by the
recording of the order in the proper registries.
90
1. The properties to be contributed anew to the

The Family Code allows the reconciling spouses to revive restored regime;
their original property regime after its dissolution by the 2. Those to be retained as separated properties
legal separation. However, the New Rules on Legal of each spouse; and
Separation, which is known as Supreme Court En 3. The names of all their known creditors, their
Banc Resolution A.M. No. 02-11-12, promulgated by addresses and the amounts owing to each
the Supreme Court on March 15, 2003 (Please refer to (Pineda, 2008.
Appendix “B), allows the spouses to adopt another
regime of property relations different from that which Question (Jurado): What steps shall be done by the
they had prior to the filing of the petition for legal reconciling spouses who have agreed to revive their
separation (see: Sections 23(e) and 24 of the Rule). former property regime to effect such agreement:
This new rule conflicts with the provision of the Family
Code considering that the said Code did not allow the Answer: The spouses shall execute under oath and
use of another property regime after the reconciliation. specify the following:
It is submitted that the new Rules cannot amend the (1) The properties to be contributed anew to the
provisions of the Family Code as the latter is a restored regime;
substantive law while the former is merely procedural. (2) Those to be retained as separated properties of each
It is an elementary rule that in case of conflict the Family spouse; and
Code which is the substantive law should prevail. (3) The names of all their known creditors, their
Moreover, allowing the use of another property regime addresses and the amounts owing to each (Art. 67, FC).
after reconciliation may result to a violation of Articles
88 and 107 of the Family Code which provide that the The spouses should then submit to the Court the above-
absolute community of property regime and the mentioned agreement of revival together with the
conjugal partnership of gains shall commence only at motion asking for its approval. The motion shall then be
the precise moment of the celebration of the marriage. submitted in the same proceeding for legal separation.
Any stipulation, express or implied, for the Copies of the agreement and motion furnished to the
commencement of either the absolute community or the creditors named therein. After due hearing, the court
conjugal partnership at any time other than at the shall, in its order, take measure to protect the interest
precise moment of the celebration of the marriage shall of creditors and such order shall be recorded in the
be void. proper registries of properties. (Art. 67, FC).
As to the Decree: The recording of the ordering in the registries of

✔ During the pendency of the case: property shall not prejudice any creditor not listed or not
LS proceedings terminated at whatever stage. notified, unless the debtor-spouse has sufficient
✔ After the issuance of the decree: separate properties to satisfy the creditor's claim (Art.
Final decree of LS to be set aside (FC, Art. 66). 67, FC).
As to the Property Regime: MODULE 8: RIGHTS AND OBLIGATIONS OF

General Rule: In case there had been already HUSBAND AND WIFE
separation of property and forfeiture of the share of the
guilty spouse, the same shall be maintained (Pineda, Article 68, FC: The husband and wife are obliged to live
2008). together, observe mutual love, respect and fidelity, and
render mutual help and support. (109a)
Exception: The parties, however, can come into an
agreement to revive their previous regime. Their Article 69, FC: The husband and wife shall fix the
agreement must be under oath and must contain a list family domicile. In case of disagreement, the court shall
of the properties desired to be returned to the decide.
community or conjugal property and those which will
remain separate, a list of creditors and their addresses. The court may exempt one spouse from living with the
other if the latter should live abroad or there are other
As to capacity to succeed: valid and compelling reasons for the exemption.
The Family Code does not provide for the revival of However, such exemption shall not apply if the same is
revoked provisions in a will originally made in favor of not compatible with the solidarity of the family. (110a)
the offending party as a result of the LS. This absence
gives the innocent spouse the right to choose whether Article 70, FC: The spouses are jointly responsible for
the offending spouse will be reinstituted. the support of the family. The expenses for such support
and other conjugal obligations shall be paid from the
As to the forfeited shares: community property and, in the absence thereof, from
Those given to the children cannot be returned since the the income or fruits of their separate properties. In case
spouses are no longer the owners of such. But those of insufficiency or absence of said income or fruits, such
given to the innocent spouse may be returned. Revival obligations shall be satisfied from the separate
of previous property regime after reconciliation. properties. (111a)
Reconciliation does not automatically revive the former Article 71, FC: The management of the household shall
property regime of the spouses. If the spouses want to be the right and the duty of both spouses. The expenses
revive the previous property regime, they must execute for such management shall be paid in accordance with
an agreement to revive the former property regime, the provisions of Article 70. (115a)
which agreement shall be submitted in court, together
with a verified motion for its approval (Art. 67, FC). Article 72, FC: When one of the spouses neglects his
or her duties to the conjugal union or commits acts
The agreement to revive must be under oath and which tend to bring danger, dishonor or injury to the
specify:
91
other or to the family, the aggrieved party may apply to purpose, vindicate justice and protect our laws and
the court for relief. (116a) State policies. Besides, a husband who feels aggrieved
by his indifferent or uninterested wife's absolute refusal
Article 73, FC: Either spouse may exercise any to engage in sexual intimacy may legally seek the
legitimate profession, occupation, business or activity court's intervention to declare her psychologically
without the consent of the other. The latter may object incapacitated to fulfill an essential marital obligation.
only on valid, serious, and moral grounds. But he cannot and should not demand sexual intimacy
from her coercively or violently (People v. Jumawan,
In case of disagreement, the court shall decide whether G.R. No. 187495, April 21, 2014).
or not:
Therefore:
(1) The objection is proper; and a. The right to sexual intercourse involves normal
(2) Benefit has occurred to the family prior to the intercourse. The wife may refuse to have sexual
objection or thereafter. If the benefit accrued prior to intercourse with the husband if he resorts to
the objection, the resulting obligation shall be enforced abnormal or perverse practices.
against the separate property of the spouse who has not b. The wife can also refuse to have sexual
obtained consent. intercourse with the husband if she is ill, if it
would endanger her health, or if he is suffering
The foregoing provisions shall not prejudice the rights of from some venereal disease.
creditors who acted in good faith. c. In the Philippines, a husband can be criminally
liable for raping his own wife.
These rights and duties are not subject to stipulation
between the spouses; and though they may voluntarily Marital Rape
agree to any change in their personal relations, this Under RA 8353, a husband can be charged for raping his
agreement will be void and have no legal effect. wife. The said law has now reclassified rape from crimes
against chastity to crimes against person. However, if
BASIC/ESSENTIAL OBLIGATIONS OF THE the wife has later on forgiven the husband, the criminal
HUSBAND AND WIFE liability is extinguished provided that their marriage is
not void ab initio.
The husband and wife are obliged to:
1. Live together THE OBLIGATION TO LIVE TOGETHER UNDER
2. Observe mutual love, respect, and fidelity ONE ROOF
3. Render mutual help and support
4. Procreate ● The court cannot force the spouses to live together
and render conjugal rights for each other because
Non-compliance due to psychological reasons are such rights are purely personal and voluntary.
possible grounds for the declaration of nullity of ● If a spouse does not want to live together without
marriage under Article 36. just cause, the other can withdraw spousal support
or file an action against the other.
OBLIGATION OF THE HUSBAND AND WIFE TO ● The right to live together refers to the right of
PROCREATE consortium which is not susceptible of precise or
complete definition but, broadly speaking,
Although it is the obligation of the wife to have sex with companionship, love, affection, comfort, mutual
the husband, the husband cannot force his wife to have services, sexual intercourse—all belonging to the
sex if she doesn’t want to. marriage state—taken together make up what we
refer to as consortium.
CHI MING TSOI VS. CA
G.R. No. 187498, April 21, 2014 ● Exceptions:
○ One spouse living abroad; or
The wife filed a petition for annulment of marriage on ○ There are valid and compelling reasons [Art.
the ground of psychological incapacity. Such petition 69(2), FC] - at the discretion of the court
was filed because her husband refused to have sexual
intercourse with her since the beginning of their ● Exception to the exceptions: Incompatibility with
marriage. One of the essential marital obligations under the solidarity of the family [Art. 69(2), FC]. If the
the Family Code is to procreate children through sexual wife abandons the family domicile with justifiable
cooperation between the spouses. The senseless and cause (i.e. being forced to perform lewd sexual
protracted refusal of one of the parties to fulfill this acts), the husband’s obligation to support her is not
marital obligation is equivalent to psychological terminated. The law will not permit the husband to
incapacity. Hence, the petition for annulment of terminate the obligation to support his wife by his
marriage was granted. own wrongful acts driving the wife to seek
protection in her parents’ home [Goitia v. Campos
NOTE: It is true that the Family Code, obligates the Rueda, G.R. No. 11263 (1916)].
spouses to love one another but this rule sanctions
● The only recourse of the husband from the wife who
affection and sexual intimacy, as expressions of love,
refuses to live together with the husband under one
that are both spontaneous and mutual and not the kind
roof without justifiable cause, is to deny the
which is unilaterally exacted by force or coercion.
spouse of support or file an action for damages
Further, the delicate and reverent nature of sexual
intimacy between a husband and wife excludes cruelty for her failure to comply with her marital obligation.
and coercion. When sexual intimacy is egoistically Should a spouse refuse to live with the other spouse
utilized to despoil marital union in order to advance a under one roof without justifiable cause, the latter’s
remedy is to deny the said spouse support or file an
felonious urge for coitus by force, violence or
action for damages against her. Thus, a wife who
intimidation, the Court will step in to protect its lofty
92
abandons her husband and secures an invalid would be safe to presume that she was dependent on
divorce abroad can be held liable for damages under the husband for support, unless it is shown that she is
Articles 19, 20, or 21 of the Civil Code (Tenchavez capable of providing for herself [SSS v. Aguas, G.R. No.
vs. Escano, 15 SCRA 355). 165546 (2006)].
Note: In Tenchavez, the spouse to be denied MANAGE THE HOUSEHOLD (ART. 71, FC)
support was rich; a consort who unjustifiably
deserts the conjugal abode can be denied support. The management of the household shall be the right and
And where the wealth of the deserting spouse duty of both spouses regardless of the property regime
renders this remedy illusory, there is no cogent involved in the marriage.
reason why the court may not award damages;
TO NOT NEGLECT DUTIES, OR COMMIT ACTS
○ In Ty v. CA, the SC said there can be no WHICH TEND TO BRING DANGER, DISHONOR, OR
action for damages merely because of a INJURY TO THE FAMILY (ART. 72, FC)
breach of marital obligation. It denied the
wife’s claim for damages against the husband. In the event that one of the spouses neglects his or her
She claimed to have suffered mental anguish, duties to the conjugal union or commits acts which tend
anxiety, besmirched reputation, social to bring danger, dishonor or injury to the other or to the
humiliation and alienation from her parents family, the aggrieved party may apply to the court for
because of her husband’s filing of a baseless relief.
complaint for nullity of marriage against her.
The relief may take on so many forms such as:
Granting the wife’s claim for damages would ● filing a case for legal separation if there are
result in a situation where the husband pays grounds for the same;
the wife damages from conjugal funds. To do ● nullifying the marriage based on Article 36
so would make the application of the law (psychological incapacity) if the neglect is such
absurd. Logic, if not common sense, militates that it does not create a functional marital life;
against such incongruity. Moreover, our laws ● petitioning the court for receivership;
do not comprehend an action for damages ● for judicial separation of property; or
between husband and wife merely because of ● for authority to be the sole administrator of
breach of a marital obligation. There are other the community property or the conjugal
remedies. partnership subject to such precautionary
conditions as the court may impose (Arts. 101,
ARROYO VS. VASQUEZ DE ARROYO 128).
The husband filed a petition for permanent mandatory NOTE: Injury contemplated here is physical, moral,
injunction to compel his wife to return to the emotional or psychological, not financial.
matrimonial home and live with him as a dutiful wife.
The petition was dismissed because although husband EITHER SPOUSE MAY PRACTICE ANY LEGITIMATE
and wife are duty bound to live together, it is not within PROFESSION/BUSINESS, EVEN WITHOUT THE
the province of the courts to attempt to compel one of CONSENT OF THE OTHER (ART. 73, FC)
the spouses to cohabit with and render conjugal rights
to the other. Consortium is purely a personal right, and NOTE: The other spouse may object on valid, serious
cannot be compelled by the courts. and moral grounds. In case of disagreement, the court
shall decide whether:
FIX THE FAMILY DOMICILE (ART. 69, FC)
1. Objection is proper; and
The fixing of the family domicile should be by agreement 2. Benefit has accrued to the family prior to the
between the husband and the wife. objection or thereafter.
2.1. If the benefit accrued prior to the
A spouse can validly live away or separately from the objection, the resulting obligation shall
other only if the latter should live abroad or there are be enforced against the community
other valid and other valid and compelling reasons for property.
the exemption. 2.2. If the benefit accrued thereafter, such
But the exemption will not apply if it is incompatible with obligation shall be enforced against the
the solidarily of the family. separate property of the spouse who has
not obtained consent (Art. 73, FC, as
In case of disagreement the Court shall decide. amended by R.A. 10572)
JOINTLY SUPPORT THE FAMILY (ART. 70, FC) The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
a. Expenses shall be paid from the community
property; OTHER OBLIGATIONS OF SPOUSES
b. In the absence thereof from the income or fruits
of their separate properties; 1. Exercise the duties and enjoy the rights of
c. In the absence or insufficiency thereof from parents;
their separate properties. 2. Answer for civil liability arising from injuries
caused by children below 18; or until 21, if still
Support is not just limited to financial support - includes living in their company;
emotional and moral support. In case of a de facto 3. Exercise parental authority over children’s
separation, if it is proved that the husband and wife property.
were still living together at the time of his death, it
93
ESSENTIAL MARITAL OBLIGATIONS CANNOT BE

COMPELLED BY COURT
General Rule: Performance of essential marital

obligation under Art. 68 of the FC cannot be compelled
by court because it will be a violation of personal liberty
(Arroyo v. Arroyo, G.R. No. L-17014, August 11, 1921).
Exception: Giving support.
BREACH OF MARITAL OBLIGATION; NO DAMAGES
There can be no action for damages merely because of

a breach of marital obligation. Our laws do not
comprehend an action for damages between husband
and wife merely because of breach of a marital
obligation. There are other remedies (Ty vs CA).
Note: See Tenchavez vs. Escano
USE OF SURNAME
For Married Women: A woman may use (Art. 370,

NCC):
1. Her maiden first name and surname and add her
husband’s surname; or
2. Her maiden first name and her husband’s
surname; or
3. Her husband’s full name, but prefixing a word
indicating that she is his wife, such as Mrs.
For Widows: A widow may use the deceased husband’s

surname as though he were still living, in accordance
with Art. 370 (Art. 373, NCC).
In case of Annulment (Art. 371, NCC)

1. If the wife is the guilty party, she shall resume
her maiden name and surname.
2. If the wife is innocent:
a. She may resume her maiden name and
surname; or
b. She may choose to continue employing her
former husband’s surname, unless:
i. The court decrees otherwise; or
ii. She or the former husband is married
again to another person.
For Legally Separated Spouses

The wife shall continue using her name and surname
employed before the legal separation (Art. 372, NCC).
In case of absolute divorce, the effect of divorce is more

akin to the death of the spouse where the widow can
continue using the surname or be referred as Mrs. of her
husband [Tolentino v. CA, G.R. No. L-41427 (1988)].
Note: From the foregoing provisions, it can be gleaned

that a woman is not mandated by law to adopt her
husband’s surname after marriage. Art. 370 is merely
directory since it provides that a woman may choose
any of the options provided.
94

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403 NOTES | PERSONS & FAMILY RELATIONS REVIEW | DEAN ALEX MONTECLAR | 2020-2021

NOTES COMMITTEE The great mass of disputes between private persons

4 BOOKS OF THE CIVIL CODE Civil Law, defined

Definition of Law CIVIL LAW DISTINGUISHED FROM OTHER LAWS

In its specific sense, it is a rule of conduct, just, CRIMINAL LAW

A codification may be necessary to provide for GEN: Publication is mandatory.

It depends on whether or not it has provided a specific TAÑADA VS. TUVERA

or parties believing in good faith, that such SUMMARY

WAIVER OF RIGHTS ARTICLE 2035, NCC. No compromise upon the

Some instances where waiver is considered void 3. Political rights;

Expressly Repealed Laws

ARTICLE 7, NCC. Laws are repealed only by

LAPSE OF LAWS DECIDING THE CONSTITUTIONALITY OF A

DOCTRINE: One cannot invoke equity as a ground for COMPUTATION OF A PERIOD

3. Co v. New Prosperity fact or event, or transaction that is so closely connected

What does “State” mean in Conflict of Laws?

by civilized under the UN

EFFECT OF FAILURE TO PLEAD OR PROVE DEAN: We used to have before an agreement

Doctrine of Processual Presumption (Presumed- Theory of Generality

THEORY OF TERRITORIALITY NATIONALITY THEORY

Examples: Capacity to Enter into Other Relations

b. Capacity to inherit – The national law of the RENVOI DOCTRINE

DOCTRINE OF LEX LOCI CELEBRACIONES Rule Respecting Prohibitive Laws

1. Extrinsic Validity SUPPLETORY NATURE OF THE CIVIL CODE

ELEMENTS OF ABUSE OF RIGHT VELAYO VS. SHELL CO. PHIL

he could not have suffered untold embarrassment in WASSMER VS. VELEZ

It is the remedy for unjust enrichment. It is an action EXTRAVAGANCE DURING EMERGENCY

DAMAGES AGAINST PUBLIC OFFICIALS AND FOR RULE 111, ROC

Section 6. Suspension by reason of prejudicial

bigamy, the second marriage must have had all the

Juridical Capacity distinguished from Capacity to CHAPTER 2: NATURAL PERSONS

COMMENCEMENT OF PERSONALITY Note: Article 43 applies when the case involves

Effects of Juridical Personality Nationality

1. Jus Sanguinis – citizenship by blood wherever REACQUISITION OF CITIZENSHIP

Article. 51, NCC. When the law creating or

FOR GREEN CARD STATUS

Rommel Silverio filed for a petition for a change of his

EFFECT OF SEX CHANGE ESSENTIAL REQUISITES

Silverio v. Republic Art. 3, FC. The formal requisites of marriage are:

In case of a marriage in articulo mortis, when the party Alcantara v. Alcantara

Madriejo v. De Leon A marriage of a party below 18 years old is void

EFFECTS BESO VS. DAGUMAN

Rodolfo G. Navarro filed charges against Municipal PERSONS AUTHORIZED TO SOLEMNIZE

Here, the consul acts not only as the solemnizing officer

DEAN: If the vessel is still docked in the port of Cebu, VICE-MAYOR

Parental Consent Posting of Notice

Parental Advice Effect of Knowledge of the LCR of any Impediment

MARRIAGE CERTIFICATE Marriage Certificate

QUITA V. CA PILAPIL VS. IBAY SOMERA

Articulo Mortis Both parties must be Muslims or members of the ethnic

Appeals, is a mere scrap of paper. The falsity of the

TUPAL V. ROJO Action to annul

Action to declare identity of other party, not merely a mistake in the

6. Those subsequent marriages that are void

VOID MARRIAGE b. The partition of the conjugal property between the

regardless of the number of grounds available to a 3. Sufficiently proven by experts; and

Example: A nymphomaniac or a homosexual. A Filing of the action of Incapacitated Person

1. A true inability to commit oneself to the Antonio vs. Reyes

Proof of Psychological Incapacity CASES DENIED BY THE SUPREME COURT

The Supreme Court ruled that failure of the wife to

Pepito and his first wife had separated in fact, and

Article 40, FC. The absolute nullity of a previous GOMEZ V. LIPANA

married to one Eliseo Portales on February 16, 1948