THE LAW ON PERSONS AND

FAMILY RELATIONS
LAW - an ordinance of reason given by Him
Who is in charge ( generic definition)
CIVIL CODE- compilation of existing civil laws,
scientifically arranged into books, titles, chapters
and subheads, and promulgated by legislative
authority.

 system of conduct which determines Art. 1. The Act shall be known as the Civil
what is right or wrong Code of the Philippines, (Republic Act No.
386).
 Essential Elements of Law:

1. reasonable rule of action Art. 2. Effectivity of Laws:

2. due promulgation
3. promulgated by competent
authority
4. generally, a sanction- in case of
disobedience.
 Human Positive law- reasonable rule
of action directly promulgated by competent
authority (Congress) for the common good.
 Substantive law- establishes rights
and duties
 Remedial law- prescribes the manner
of enforcing legal rights and claims.
 Civil law- branch of the law that
treats of the personal and family relations of an
individual, his property and successional rights and
the effect of his obligation and contract.
 Political law- deals with the relations
of the people and the government.
 Laws shall take effect after 15
days following the completion of their
publication in the Official Gazette, unless it is
otherwise provided. This Code shall take
effect 1 year after such publication.
 two kinds of laws:
1. ordinary law- takes effect on
the date it is expressly provided to take effect.
If no date is provided, then 15 days following the
completion of its publication in the Official Gazette
or newspaper of general circulation.
> requirement of publication is necessary in
compliance with due process. “Publication must
be in full or it is no publication at all since its
purpose is to inform the public of its contents”
(*Case: Tanada vs. Tuvera, 146 SCRA 446).

1

Executive Order 200 (1987)provides that:
publication maybe done not only in the Official
Gazette but also in a newspaper of general
circulation in the Philippines.
2. Others like the Civil Code
(Aug. 30,1950)- exactly one yr. from its
publication.
Other Suggested Cases to read: *Commissioner of
Internal Revenue vs. San Roque Power Corp. 707
SCRA 66; Rieta vs. People 436 SCRA 273
Art. 3. Ignorance of the Law excuses no one
from compliance therewith.
 founded on expediency, policy and
necessity so as to prevent evasion of law. It is
unfair to punish a person for the transgression
of a law of which he has no notice.
 applicable to all kinds of domestic or
local law whether civil or penal or substantive or
remedial.
 Ignorance of foreign law is not
ignorance of the law but ignorance of fact
because foreign laws should be pleaded and
proven as a fact in a forum, (Case: Adong vs.
Cheong Seng Gee, 43 Phil. 43) and Courts are
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not obliged to take judicial notice of a foreign law
or judgment.
Other Suggested Cases to read: Morales vs. Skills
International Company 500 SCRA 186; *In Re:
Petition to Sign in the Roll of Attorneys 706 SCRA
264
 DOCTRINE OF PROCESSUAL
PRESUMPTION - also known as the DOCTRINE
OF PRESUMED-IDENTITY APPROACH in
international law as expounded in the 2014 case
of Orion Savings Bank vs. Suzuki, 740 SCRA
345[2014]. It says that “ a foreign law if not
properly alleged and proved, the presumption
is that it is the same as our own laws”. Ex.
A divorce decree obtained in Japan and was
issued by a city mayor, could not be presumed
to be valid here unless it is proven that in Japan
a city mayor is authorized to issue a divorce
decree, otherwise, it is not valid here in the
Philippines because we do not recognize divorce
in this country.
Art. 4. Laws shall have no retroactive effect,
unless the contrary is provided.
Gen. Rule: Laws are prospective in operation.
 no ex post facto legislation
EXCEPTIONS:
1. when the law expressly majority). In the Family Code, (Art. 175)
provides for its retroactivity. illegitimate filiation may be proven only
during the lifetime of the putative father.
2. when the law is curative or The law could not deprive said child from
remedial in nature. Curative Law or curative proving his illegitimate filiation even after the
statutes are those which undertake to cure errors death of his father just because the Family Code
and irregularities, thereby validating judicial or says ”during the lifetime” otherwise, this will cause
administrative proceedings, acts of public officers, or impairment of right.
private deeds and contracts which otherwise would
not produce their intended consequences by reason
of some statutory disability or failure to comply with Art. 5. Violation of Mandatory or Prohibitory
some technical requirement. Laws:

3. when the law is procedural  Acts executed against the

provisions of mandatory or prohibitory laws
4. when the law is penal in shall be void, except when the law itself
character and favourable to the accused. authorizes their validity.

(Case: People vs. Patalin, et. al., GR No. Exceptions:

125539, July 27, 1999 -
SC said, the suspension of the death penalty by
the 1987 Constitution benefits those who are
charged of capital offenses and whose cases
are pending in Court. Its re imposition will not
also prejudice those whose cases are pending in
Court. At present, death penalty is abolished.
5. when a substantive right is
declared for the first time unless vested rights
are impaired. Example: Prior to the effectivity of
the Family Code, an illegitimate child can prove
his illegitimate filiation even after the death of
his father (i.e. within 4 yrs. from attaining
1. When the law makes the
act not void but merely voidable. Ex: consent
in marriage must be voluntarily given otherwise
marriage is void. But, if consent is vitiated by
fraud or intimidation, the marriage is only
voidable, (Art. 45 (3)FC).
2. when the law makes the act
valid, but the wrongdoer is subject to liability.
Ex. A widow is not allowed to marry within 300
days from the death of the husband but if she
marries, the marriage is valid as long as she has
marriage license without prejudice to her criminal
liability, (Art. 351 Family Code).

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3. when the law itself makes
the act valid when it should have been void.
Ex. Gambling is prohibited by law. But there are
certain forms of gambling which the law allows
like lotto, sweepstakes, jai alai etc.
4. when the law makes the
act void, but recognizes some legal effects.
Ex. Marriage with a party who is psychologically
incapacitated is void, (Art. 36, Family Code) but,
children born out of such marriage are legitimate,
(Art. 54, Family Code).
 Mandatory Laws- those which
require something to be done. Ex. Art. 804 of the
Civil Code, “ a will must be in writing” or Art. 124
of the Family Code, “ sale of conjugal property
must be with the consent of both spouses”,
otherwise such will or sale is void.
 Prohibitory Laws- those which
contain positive prohibition and requires that
certain acts should not be done. Ex. Art. 818 of
the Civil Code- prohibition on the making of joint
wills by two or more persons.
 Law is Directory- one may obey or
not and violation of such will not render the act
void or illegal.
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QUERY: Are legal provisions prescribing the period
within which a decision should be rendered
mandatory or directory?
ANSWER: not mandatory in nature
Reason: decisions are not void even when rendered
after the period given (90 days) but the officer
(judge) rendering it could be administratively
charged. Case: Phil. Association of Free Labor
Unions (PAFLU) et. al. vs. Secretary of Labor, L-
2228, February 27, 1967)
Art. 6. Waiver of Rights
Rights may be waived ( General Rule), unless
the waiver is contrary to law, public order,
public policy, morals or good customs, or
prejudicial to a third person with a right
recognized by law, (exceptions).
 WAIVER- intentional
relinquishment of a known right. To be valid, a
person must have such right and capacitated to
make the waiver.
 WHAT CANNOT BE WAIVED:
1. natural right to life
2. rights which do not exist yet TWO KINDS OF REPEAL:
(future inheritance)
1. Express- occurs when the
3. rights waiver of which will legislature passes a new law which expressly
violate public policy. Ex. Waiver in advance of declares the repeal of an old or existing law.
one’s right to be heard in court and waiver of a
scholar’s right to transfer to another school, Effect if new law is itself repealed:
(*Case: Cui vs. Arellano University, L-15127,
May 30, 1961)  the law first repealed shall not be
revived unless expressly so provided. (Case: US
4. political rights- contrary to law. vs. Soliman, 36 Phil 5).

2. Implied- takes place when a new law

Other Suggested Cases to Read: Gatchalian vs. contains provisions contrary to or inconsistent
Delim, 203 SCRA 126; Thomson vs. CA, 298 SCRA with the former without expressly repealing them.
280 Not looked upon with favor. (Case: US vs.
Palacio, 33 Phil. 208)

Art. 7. Repeal of Laws: Effect if the new law is itself repealed:

Laws are repealed only by subsequent one  the law first repealed shall be revived
and their violation or non observance shall or the repeal of the repealing law revives the
not be excused by disuse, or custom or prior law.
practice to the contrary.

When the courts declare a law to be

inconsistent with the Constitution (SC in the  LAPSE OF LAW (concept of)- if the
exercise of its power of judicial review), the law provides for a period within which it will be
former shall be void and the later shall effective, then, the lapse of the period stated by
govern. law will cause the death of such law without a
need of repeal. Ex. Law granting emergency
Administrative or executive acts, order and power to the President or the Annual
regulations shall be valid only when they are Appropriation Law.
not contrary to the laws or the Constitution.

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 note however that this premise applies only to
 CONSTITUTION VS. STATUTE decisions of the Supreme Court. Decisions of the
subordinate Courts are only persuasive in nature
* Constitution prevails being the supreme law of the and can have no mandatory effect. The
land. The Statute shall be declared decisions of the appellate Court [ Sandiganbayan,
unconstitutional. But, if only a part of the statute Court of Appeals and the Court of Tax Appeals]
is contrary to the Constitution, said portion will of still undecided cases may serve as JUDICIAL
be the only one to be declared unconstitutional if GUIDE to the inferior courts.
separable from the other provisions of the
Statute.  The SC has the last word on what the
law is; final arbiter of any justiceable controversy.
 WHEN CAN A LAW BE DECLARED (Case: Ang Ping vs. RTC, GR. No. 75860, Sept.
AS UNCONSTITUTIONAL 17.1987)

1. its enactment is not within the
legislative powers of the congress
2. arbitrary methods may have
been established.
3. the purpose or effect violates
the constitution or its basic principles.
Art. 8- Are judicial decisions laws:
*Judicial decisions applying or interpreting
the law or the constitution shall form part of
the legal system of the Philippines.
 while it is true that judicial decisions
(Supreme Court ) which apply or interpret the
Constitution are part of the legal system of the Phil.,
they are NOT laws otherwise Courts would be
allowed to legislate contrary to the principle of
separation of powers. Judicial decisions are
however EVIDENCE of what the law means, that
is why they are part of the legal system. Take
Take Note: of the instances when judicial
decisions may be abrogated:
1) when contrary ruling of the SC itself
2) by legislative act of Congress but it should
be stressed that, the CONGRESS cannot alter an
interpretation of the SC of a constitutional
provision, for this would be an unwarranted
assumption of judicial power. (Case: Endencia et.
al. vs. David, 49 OG 4822)
3) Other Suggested Cases to read: Ting vs.
Velez-Ting, 582 SCRA 694; Castro vs. Deloria, 577
SCRA 20; *Virtucio vs. Alegarbes, 679 SCRA 412
 CONCEPT OF STARE DECISIS - (let it
stand), for reason of stability. Or, known as
“adherence to precedents.” It says that, “once
a case has been decided one way, then another
case, involving exactly the same point of issue
should be decided in the same manner.”

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Q - Does it demand absolute adherence. NO.
Exception: when a case has been decided
erroneously, such an error must not be
perpetuated by blind obedience to the doctrine of
stare decisis. (Case: Rosales vs. CFI, GR No.
6277, Sept. 21, 1987)
 CONCEPT OF OBITER DICTA(um) -
opinions not necessary to the determination of a
case. They are not binding and cannot have the
force of judicial precedents. (Case: People vs.
Macaraeg, L-4316, May 28, 1952)
 Concept of Dissenting Opinion- it
affirms or overrules NO claim, right or obligation.
It merely expresses a view of the dissenter. (Case:
Tolentino vs. Ongsiako, L-17938, April
30,1963)
Art. 9- Duty of a Judge if the law is silent
*No judge or court shall decline to render
judgment by reason of the silence, obscurity
or insufficiency of the laws.
 The role of the judiciary is to apply or
interpret the law. It is not to legislate for this
belongs to Congress. However, because of Art. 9,
there exists an instance where the judiciary must
legislate to fill in the gaps in the law.
Art. 10- Interpretation of Laws
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*In case of doubt in the interpretation and
application of laws, it is presumed that the
lawmaking body intended right and justice
to prevail.
 primary function of the judiciary is to
apply the law. When the law is clear, the Court
has nothing to do but to apply it. It is only when
provisions of the law are ambiguous and vague
where the Court can interpret it but in interpreting
the law, Courts must bear in mind that the
intendment of Congress is for right and justice to
prevail, (Rule in Statutory Construction). Take
note: that Courts could not even apply principles
of equity where there is an express provision of
law which provides a remedy to a given case.
Art. 11 - Customs which are contrary to law,
public order or policy shall not be
countenanced.
Art. 12 - A custom must be proved as a fact,
according to the rules of evidence.
 Custom- rule of human action or
conduct established by repeated acts, and
uniformly observed or practiced as a rule of society
thru the implicit approval of the lawmakers, and
which, therefore, generally obligatory and legally
binding.
 Courts should not take judicial notice
of customs. A local custom can be a source of
right but it cannot be considered by a court of
justice unless it is properly established by the Civil Code] because of incompatibility. Take
competent evidence. Custom even if proven note: that under the Civil Code, year means
cannot prevail over a statutory rule or even a “365 days” making the number of days material,
legal rule established by SC. while under the Administrative Code, which was
promulgated later, year means “12 calendar
 Requisites before customs can be months”, making the number of days
considered by the Court. immaterial. Therefore, “year” should be
understood to mean twelve calendar months. A
1. they must be proved as a fact “calendar month” is, a month designated in the
according to the rules of evidence (parol and calendar irrespective of the number of days it
testamentary) may contain. [Case: Commissioner of Internal
2. must not be contrary to law, Revenue vs. Primetown Property Group
public order or public policy Inc.,531 SCRA 436; also cited in the cases of
3. there must be a number of Commissioner of Internal Revenue vs. Aichi
repeated acts Forging Company of Asia, Inc., 632 SCRA 442
4. the repeated acts must be (2010) and Co vs. New Prosperity Plastic
uniformly observed. Products, 727 SCRA 503 (2014).
5. there must be a juridical
intention to make it a rule of social conduct; and Example: if you are talking about the month
6. there must be sufficient lapse August 2018, it means from August 1, 2018 to
of time giving evidence that said custom exits. August 31, 2018 and one calendar month from
August 31, 2018 will be from September 1, 2018
to September 30, 2018. Thereby, solving issues
Art. 13- Computation of Periods when its a leap year where the month of
February has 29 days instead of the usual 28
days.
* When the law speak of years, months, days
or nights, it shall be understood that years are  Take note: however
of 365 days each; months of 30 days; days of that, in computing a period, the first day shall
24 hours; and nights from sunset to sunrise. be excluded and the first day shall be
included.
>**Take note: however of the implied
repeal of this article concerning the term “year”,  QUERY: When the last day is a Sunday
as contemplated by the provision of Sec. 31, or a legal holiday, is the act due that day or the
Chapter VIII, Book 1 of the Administrative following day?
Code of 1987[which was promulgated later than

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Answer: it depends on the source of the
obligation. If the source is an ordinary contract-
the act is due that day even if it is a Sunday or
holiday because, a contract has a force of law
between the parties, but, if the period refers to
one prescribed by the Rules of Court, by an order of
the court or by any applicable statute, the last day
will be the day after Sunday or legal holiday
(next day), best illustrated in the Case of :
Nactor vs. Intermediate Appellate Court, GR
No. 74122, March 15, 1988.
*Penal laws and those of public security and
safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to
the principles of public international law and
to treaty stipulations, (also known as the
Principle of Generality).
 simply put, penal laws and those of
public security and safety shall apply to all those
inside the Philippine Territory, whether a citizen or
an alien.

 reckoning time if pleadings are

mailed- Exceptions:

1. if filed through 1. those under the principles of public

registered mail, the date of mailing is the date international law (such as diplomatic courtesies and
of filing. immunities ex. Diplomat, agents-head of the
mission i.e., ambassador or a member of the
2. If filed through diplomatic staff of the mission). As specially
private courier, the date of actual receipt by the provided in the 1961 Vienna Convention on
Court, is the date of filing. Diplomatic Relations where the Philippines is a
[Case:_____________________________________ signatory
_____]

EXCEPTION: The Judicial Affidavit Rule which 2. those under the provisions of treaty
requires that Judicial Affidavits should be filed stipulation ex. Phil. US Military Bases Agreement
through private couriers. Rule is: the date of dated Mar. 14, 1947 but was abrogated in 1991
mailing through private courier is the date of by the Senate
filing. [____________]

Art. 14- Theory of Territoriality Art. 15. Nationality Theory

* Laws relating to family rights and duties

or to status, condition and legal capacity of

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persons are binding upon citizens of the Art. 16. Doctrine of Lex Rei Sitae
Philippines, even though living abroad. ( also known as Lex Situs)

>Thus, a Filipino married here in the Philippines is * Real property as well as personal property
married wherever he may go. A divorce decree is subject to the law of the country where it
obtained by a Filipino abroad does not dissolve is situated.
his marriage here in the Phil. because we do not
recognize divorce here in the Phil. (unless, he is However, intestate and testamentary
already a foreigner at the time he obtained the successions with respect to the order of
divorce. [ Art. 26 par. 2, Family Code]. succession and to the amount of
successional rights and to the intrinsic
>Take note: The nationality theory applies not validity of testamentary provisions, shall be
only to Filipinos living abroad but also to regulated by the national law of the person
foreigners who are living here in the Philippines. The whose succession is under consideration,
legal capacity of a foreigner to contract whatever may be the nature of the property
marriage here in the Philippines is primarily and regardless of the country wherein said
governed by HIS NATIONAL LAW and not by the property may be found.
Philippine Law, hence the need to show
CERTIFICATE OF LEGAL CAPACITY to marry * applicable to both real and personal
before contacting marriage. Take note however, property.
that since the production of a Certificate of Legal
Capacity to marry is not one of the essential * it covers all matters regarding the title
requisites of marriage, the marriage if still VALID, and disposition of real property. And, the rule on
even if this document is not shown or produced. lex rei sitae governs transfer, alienation, descent of
real properties and the validity, effect and
>Let it be noted however that, a foreigner could construction of wills and other forms of
not enforce his National Law in the Philippines if, conveyances. Hence, governs one’s capacity to
“said law is contrary to a sound and donate, sell or mortgage real and personal property.
established policy of our country”. [Case: Del
Socorro vs. Van Wilsem, 744 SCRA 516, Exceptions: (when rule is not applicable)
involving a Dutch National who divorces his
Filipina wife and refuses to support his son 1. order of succession, amount of successional
invoking Netherland’s law that parents are not rights and intrinsic validity of wills. NATIONAL
obliged to support their children]. LAW shall apply, (Art. 16 par.2) Case: Testate
Estate Of Amos Bellis, et.al., vs. Edward A.
Bellis, L-23678, June 6, 1967). A foreigner

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could not state in his LAST WILL AND TESTAMENT
that his properties
shall be disposed of in accordance with Philippine
Law because this is contrary to Art. 16. (Case:
Minciano vs. Brimo, 50 Phil. 867)
2. capacity to succeed- NATIONAL LAW OF
THE DECEDENT, not the heir, (Art. 1039, Civil
Code).
3. determination of matrimonial property
regime- NATIONAL LAW OF THE HUSBAND,
(Art. 1247). Under the Family Code, husband and
wife now jointly decide the matrimonial property
regime that shall govern their marriage. Absence
of such agreement, the default regime is
ABSOLUTE COMMUNITY OF PROPERTY.
Art. 17- LEX LOCI CELEBRACIONES
(Law of the place where it is celebrated)
*The forms and solemnities of contracts,
wills and other public instruments shall be
governed by the laws of the country in which
they are executed.
When the acts referred to are executed
before the diplomatic or consular officials of
the Republic of the Philippines in a foreign
country, the solemnities established by Phil.
laws shall be observed in their execution.
Prohibitive laws concerning persons, their
acts, property and those which have for their
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object public order, public policy and good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations of conventions agreed upon
in a foreign country.
* applicable only to extrinsic validity of contract.
* for acts done before Phil. diplomatic and consular
offices abroad, the solemnities provided for under
Phil. law shall be followed because these offices
are extensions of the Philippine territory. (This is
called as the Principle of Territoriality).
 Take note however that: the
capacity to get married abroad does not
generally depend on the national law of the parties
but on the law of the place where the marriage
was entered into, provided that the marriage is not
bigamous, polygamous, or incestuous, as
determined by Phil. law.
>By way of interpretation it should be noted that: a
DIVORCE OBTAINED ABROAD by Filipino citizens
could not be considered valid here nor the divorce
has the effect of nullifying a valid marriage here
between Filipinos). But this concept has been
changed by the Manalo case.
Art. 18. Suppletory Nature of the Civil Code
* In matters which are governed by the Code
of Commerce and special laws, their
deficiency shall be supplied by the provisions
of the Code.

 in case of deficiency in these laws, the Civil
Code is suppletory. In case of conflict between
these Special Laws and the Civil Code, the former
prevail being a Special Law, however there are
instances when the Civil Code expressly
declares itself to be superior to special laws
and these are:
1. Common Carriers - Code of Commerce supplies
the deficiency.
2. Insolvency - the Special Law supplies
deficiency.
HUMAN RELATIONS:
Art. 19. – Principle of Abuse of Rights
* Every person must, in the exercise of his
rights and in the performance of his duties,
act with justice, give everyone his due and
observe honesty and good faith.
 in essence it says, a person has the
right to exercise his rights but in doing so, he
must be mindful of the rights of others otherwise
he will be liable for damages.
>Elements of an abuse of rights under Art.
19.
1. there is a legal right or duty
2. which is exercised in bad faith
3. for the sole intent of prejudicing or causing
damage to others.
> Take Note: In Articles 19, 20, and 21- Malice or
Bad Faith is present. Malice implies a conscious
and intentional design to do a wrongful act for a
dishonest purpose or moral obliquity.
Art. 20- Every person who, contrary to law,
willfully or negligently causes damage to
another, shall indemnify the latter for the
the same.
>speaks of illegal acts whether done willfully or
negligently.
Negligence- failure to observe for the protection
of the interest of another person that degree of
care, precaution and vigilance which the
circumstances greatly demand whereby such other
person suffers injury.
CASES:
1. the fact that one is damaged by the act of
another, does not necessarily mean that he should
be indemnified if he could not show that he
has a right which was impaired. Verily, the
judiciary has no power to reverse an award of
the board of judges in an oratorical, literary or
beauty contest, even if the decision be wrong,
provided that the promulgated rules of the
contest were followed. (Case: Felipe vs.
Eleuterio et.al, GR. No. L-4606, May 30, 1955).
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But if the rules were not followed, by implication,
the decision may be changed.
2. a school can be held liable
for damages due to its negligence in including a
student in the list of candidates for graduation-
when the fact is, said student could not graduate
because he failed in the removal exam. The school
however is not liable for moral damages since the
said student did not suffer shock, trauma or
pain. Foremost, he could have verified if he is
eligible for graduation, ( Case: University of the
East vs. Jader, GR No. 132334, Feb. 7, 2000)
3. a telegraph corporation is
liable for the acts of their employees in the
performance of their duties otherwise this is
tantamount to deprivation of the general public of
availing its services.
(Case:Radio Communication of the Phils. vs.
CA, GR No. 44748, Aug. 29, 1986).
Art. 21- Not contrary to law but to Morals
* Any person who willfully causes loss or
injury to another in a manner that is
contrary to morals, good customs or public
policy shall compensate the latter for the
damages.
 as distinguished from Art. 20, the act
contemplated here is done willfully unlike Art.
20, which may be done willfully or negligently.
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The act is not necessarily against the law but is
contrary to morals, good customs and public
policy.
 this article was designed to fill in the
“countless gaps in the statutes which leave so
many victims of moral wrongs helpless, even
though they actually suffered material and moral
injury”, (as per report of the Code Commission).
Example: Breach of promise to marry
 Mere breach of a promise to marry is not
an actionable wrong ( due to omission in the Civil
Code of the proposed chapter on Breach of
Promise to marry) but to formally set a wedding
and go to through all the preparations, only to
walk out of it when the marriage is about to be
solemnized is different. This is contrary to good
customs and morals, hence one is liable for
damages, (Case: Wassmer v. Velez, GR No.
L20089, December 26, 1964). Generally, only
actual damages may be recovered but if the
promise is coupled with criminal or moral
seduction, moral damages may be recovered,
(Case: Hermosisima vs. CA et.al., L-14628,
Sept. 30, 1960 *in this case its the woman who
seduced the man). Thus, “a married man who
enticed a young woman to elope with him,
seducing her, making her fall in love with him and
always visiting the woman under the guise of
teaching her to pray the rosary” causes damage
and injury to the girl’s family in a manner
contrary to morals , customs and public policy
( Case: Cecilio Pe vs. Alfonso Pe, GR. No. L
17396, May 30, 1962). But if, the carnal
knowledge was due to mutual lust, no recovery
may be made, (Case: Batavia vs. Marcos, 7
Phil. 56).
 One who willfully dismisses an employee
without just cause breaks a contract and is both
morally and legally liable under this article,
(Case: Lirag Textile Mills vs. CA and
Alcantara, L-30736, April 14, 1975).
 Art. 21 applies where there is seduction or
carnal knowledge
* to constitute seduction, there must be sufficient
promise and inducement to which the woman has
yielded. (Case: Tanjoco v. CA, 18 SCRA 994
 Case: GASHEM v. SHOOKAT BAKSH v.
CA, 819 S 115
* court awarded damages because the man
employed fraud and deceit in obtaining the consent
of the woman to a sexual act, for here, the man has
no intention of marrying the woman and that the
promise to marry was only a subtle scheme or
deceptive device to entice her to the sexual act
 CONCEPT OF DAMNUM ABSQUE INJURIA
which means, damage without legal injury, [ in the
legitimate exercise of a person’s right, even if it
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causes loss to another, this does not automatically
result in an actionable injury]. NOT applicable:
1) where there is abuse of a person’s right
2) when the exercise of this right is suspended
or extinguished pursuant to a court order
Thus, in the exercise of one’s right, he must act
with JUSTICE, give everyone their due and observe
honesty and good faith.Case: AMONOY v.
Spouses Gutierez and Fernida, Feb. 15, 2001
 Take Note: DISTINCTION between
Articles 20 & 21. Art. 20 provides for a general
sanction for all other provisions of law which do not
provide for their own sanction. Art. 21 deals with
acts which are CONTRA BONUS MORES or acts
which are LEGAL but are contrary to morals, good
customs or public policy and they are done with
intent to injure.
Art. 22- Unjust Enrichment
*There is unjust enrichment when a person
unjustly retains a benefit to the loss of another,
or a person retains money and property of
another against the fundamental principles of
justice, equity and good conscience, as defined in
the case of Allied Banking Corporation vs.
Lim Sio Wan, 549 SCRA 504)
Art. 23- even when an act or event
causing damage to another ‘s property was
not due to the fault or negligence of the
defendant, the latter shall be liable for
indemnity if through the act or event he
was benefited.
>No one shall be enriched at the expense of
another person, (nemo cum alterius detriment
protest) thus, if one pays another by mistake,
the latter is duty bound to return it under the
principle of solution indebiti, BUT if
payment is done without mistake, this is
“accion en rem verso” defined as judicial action
instituted by an owner to recover something
unjustly or illegally possessed by another, such
possession being one of unjust enrichment at
another’s expense. Both are founded on equity
and there is unjust payment.
Art. 24- Courts should protect the underdog
* In all contractual, property or other
relations, when one of the parties is at a
disadvantage on account of his moral
dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the
courts must be vigilant for his protection.
> this finds meaning in the principle of “Parens
Patriae”,(father or parents of his country). This
refers to the sovereign power of the State in
safeguarding the rights of person under disability
such as the insane and the incompetent or “ the
obligation of the State to minimize the risk to
those because of their minority are as yet
unable to protect themselves fully, (as defined in
the case of People vs. Baylon, L-35785, May
29, 1974).
>courts must be vigilant for his protection- means
in case of doubt, the court resolves in favor of
the the underdog such as the case in labor contracts.
Art. 25- Prohibition on thoughtless
extravagance
* Thoughtless extravagance in expenses for
pleasure or display during acute public want
or emergency may be stopped by order of
the courts at the instance of any government
or private institution.
 Take note: only charitable institution,
whether government or private, may bring an
action to stop or prevent thoughtless extravagance
during acute public want. Reason: to avoid
chaos in the society because thoughtless
extravagance during emergency may incite the
passion of those who cannot afford to spend.
 QUERY: May a City Mayor stop a display
of extravagance by a social organization?. NO,
there must be a court order (in an action for
INJUNCTION) procured by a charitable institution.
15

Art. 26- Respect for Dignity and Privacy
* Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following
and similar act though may not constitute
a criminal offense, shall produce a cause of
action for damages, prevention and other
relief:
1. prying into the privacy of another’s
residence
2. meddling with or disturbing the private
life or family relations of another
3. intriguing to cause another to be
alienated from his friends.
4. vexing or humiliating another on account
of his religious beliefs, lowly station in life,
place of birth, physical defects and other
personal condition.
> verily, these are the instances when one can
sue for damages and this article intends to
enhance human dignity and personality.
>actions to be taken when these happen:
a. damages
b. prevention/ injunction
16
c. other reliefs such as criminal action if possible
like the filing of cases for unjust vexation,
slander or malicious mischief.
> kinds of damages: (acronym: MENTAL)
1. moral - compensatory
damages awarded for mental pain and suffering or
mental anguish resulting from wrong.
2. exemplary or corrective - imposed by way of
example or correction for the public good, in
addition to moral, temperate, liquidated or
compensatory damages.
3. nominal - trifling sum awarded to plaintiff in an
action, where there is no substantial loss or injury
to be compensated but still the law recognizes a
technical invasion of his rights or a breach of
defendant’s duty. Substantial- considerable in
amount and intended as a real compensation for a
real injury.
4. temperate-damages that compensate
pecuniary losses suffered but whose amount
cannot be proved with certainty
5. actual- real, substantial and just damages, or
the amount awarded to a complainant in
compensation for his actual or real loss or injury.
6. liquidated – amount to be recovered by one
party for the breach of the agreement by the other
party.
Art. 27- Refusal to perform official duty
*Any person suffering material or moral loss
because a public servant or employee
refuses or neglects without just cause, to
perform his official duty may file an action
for damages and other relief against the
latter, without prejudice to any disciplinary
administrative action that may be taken.
> dedicated to public officials or employees who
refuse to perform their official functions
> speaks of non performance of duty, not
negligence or misfeasance. Thus, “if during a town
fiesta organized by a municipal council, a interference with the fulfillment of a competitor’s
defectively- constructed and overloaded stage
collapses and a person dies, it is the municipality
which is liable and not the municipal councilors.
(Case: Torio vs. Fontanilla, L-30183, Oct. 23,
1978)
> ex: a president of a State College who in bad
faith refuses to graduate with honors, or give an
award to a student who rightfully deserved it,
despite directive from the Bureau of Public
Schools can be liable for damages on account of
his neglect of duty or callousness. Case:
(Ledesma vs. CA, 160 SCRA 449)
Art. 28- Damages for Unfair Competition
*Unfair competition in agricultural,
commercial or industrial enterprises or in
17
labor through the use of force, intimidation,
deceit, machination or other unjust,
oppressive or high handed method shall give
rise to a right of action by the person who
thereby suffers damages.
>this article outlaws unfair competition not only
among enterprises but also among the labor
force. Concomitantly, while competition is needed
in a system of free enterprise, it should not be
unfair. Therefore, no one has the right to deprive
another to engage in a business or earn a living.
**Unfair Competition-covers “even cases of
discovery of trade secrets of a competitor, bribery
of his employees, misrepresentation of all kinds,
contract or any malicious interference with the
latter’s business”. (Case: Willaware Products
Corporation vs. Jesichris Manufacturing Corp.,
734 SCRA 238 [2014]).
**>Take note: Characteristics for competition to
be considered unfair:
1.it must involve an injury to a competitor or
trade rival and,
2.it must involve acts which are characterized as
“contrary to good conscience, shocking to
judicial sensibilities or otherwise unlawful”,
(Willaware case).
Arts. 29, 30 and 35- Refer to Dependent and
Independent Civil Actions
 the text of the decision whether or not the
acquittal is due to that ground.
 Arts. 29, 30, and 35 of the Civil Code refer
to DEPENDENT CIVIL ACTION or that which
could not be tried separately or independently Art. 30- when a separate civil action is
from the criminal action i.e., once a criminal brought to demand civil liability arising from
case is filed, the civil action is deemed impliedly a criminal offense, and no criminal
instituted. proceedings are instituted during the
pendency of the civil action, a
 Take Note: Extinction of Criminal preponderance of evidence shall likewise be
Liability does not carry with it the civil liability sufficient to prove the act complained of,
UNLESS, it is included in the decision that the (quantum of proof in a civil case).
fact from which the civil action might arise does
not exist. If there is a pronouncement to this >This is actually a recognition of an alternative
effect, NO CIVIL ACTION may be instituted and separate civil action which may be brought
anymore. independently of a criminal action, [ Case: People
vs. Bayotas, 236 SCRA 229]. Thus, in an event
that NO criminal action is instituted during the
pendency of a civil case, the quantum of evidence
Art. 29- when an accused in a criminal to prove the criminal act should be that which is
prosecution is acquitted on the ground that compatible with civil liability i.e., preponderance
his guilt has not been proved beyond of evidence.
reasonable doubt, a civil action for the same
act or omission may be instituted. Such
Art. 35- when a person claiming to be
action requires only a preponderance of
injured by a criminal offense, charges
evidence. Upon motion of the defendant, the
another with the same, for which no
court may require the plaintiff to file a bond
independent civil action is granted in the
to answer for damages in case a complaint
(Civil) Code or any special law, but the
should be found to be malicious.
justice of the peace (JUDGE) finds no
reasonable ground to believe that a crime has
been committed, or the prosecuting attorney
 If in a criminal case the judgment of
(fiscal/prosecutor) refuses or fails to institute
acquittal is based upon reasonable doubt, the
criminal proceedings, the complainant may
Court shall so declare. In the absence of any
bring a civil action for damages against the
declaration to that effect, it may be inferred from
alleged offender. Such civil action may be
supported by preponderance of evidence.
18
Upon the defendant’s motion, the Court may
require the plaintiff to file a bond to
indemnify the defendant in case the complaint
be found malicious.
If during the pendency of the civil action, an
information should be presented by the
prosecuting attorney, the civil action should
be suspended until the termination of the
criminal proceedings.
 Under Art. 100 of the Revised Penal
Code, a person criminally liable is also civilly
liable. Or, once a crime is committed, the culprit
may be criminally and civilly liable. The criminal
aspect is concerned with social order while the
civil aspect refers to private rights (damages
caused to a person).
Quantum of Proof:
1. in Criminal Cases- Proof beyond reasonable
doubt- degree of proof which forms an abiding
moral certainty that the accused committed the
crime charged. It is not necessary that there
should be an absolute certainty, what is
important is, it creates a belief in an
unprejudiced mind that the accused committed
the crime.
2. in Civil Cases- preponderance of evidence-
means that, as a whole, the evidence adduced
by one side outweighs that of the adverse party,
19
(Case: Sarmiento vs. CA, GR. No. L-96740,
March 25, 1999).
> Take note: the general rule is, a person
criminally liable is also civilly liable. Criminal
liability will give rise to civil liability ex delicto, if
the same felonious act results in damage or
injury to another and is the direct or proximate
cause thereof, but, it is also possible that an
accused may be acquitted but could be made
civilly liable and this happens when his guilt is
not proven beyond reasonable doubt, which must
be declared in the Court’s decision. This is so
because, it is harder to prove criminal liability
than civil liability where INTENT, should be
likewise proven except in Homicide and Murder
cases when intent is presumed. “The judgment of
acquittal extinguishes the accused’ civil liability
only when it includes a declaration that the facts
from which the civil liability might arise did not
exist”, (*Case: Urbano vs. IAC, GR 72964,
Jan. 7, 1988).
> QUERY: Is an independent civil action for
damages barred by complainant’s failure in a
criminal case to reserve the filing of a separate
civil action and by his active participation in the
prosecution of the criminal case. ANSWER: YES.
The aggrieved party can file a civil action after the
acquittal of the accused only, if he did not
actively participate in the prosecution of the
criminal case by hiring a private lawyer,
thus the rule is, UNLESS, the complainant
intervenes and actively participates in the criminal
case, an acquittal of the accused would not bar
the institution of a separate civil action, (Case:
Ruiz vs. Ucol, GR No. L-45404, Aug. 7, 1987).
Moreover, take note that, Art. 29, does not
apply if the accused is absolved from any act of
negligence which prevents further recovery of
any damages, i.e., if the accused is completely
exonerated because the judgment of acquittal
carries with it, the extinction of his civil liability,
(Case: Heirs of the late Dr. Corazon Diaz Leuz
vs. Hernani Melvida, et.al. GR 77716, Feb. 8,
1988).
> Take note: Under Art. 30, when a crime is
committed, the offended party has the choice
whether to file a criminal case or a civil suit for
damages. Should he choose the latter, then all he
needs to prove his case is “preponderance of
evidence,” and if, later on he decides to file a
criminal action, the civil case he filed ahead of
the criminal case will have to be suspended as it
is not an independent civil action, ( Rule 110 of
the Revised Rules of Court).
INDEPENDENT CIVIL ACTION
>an independent civil action is one that is brought
distinctly and separately from a criminal case-
this is allowed for considerations of public policy.
This is an action for DAMAGES arising out of
the crime committed but which the offended
party can prosecute independently or
separately from the criminal case.
20
Art. 31- when the civil action is based on
an obligation not arising from the act or
omission complained of as a felony, such
civil action may proceed independently of the
criminal proceedings and regardless of the
result of the latter.
>In short, irrespective of the result of the criminal
case, an independent civil action may still be filed.
This is so because the basis of the civil action is
not the criminal case but on the other source of
obligation like contract, quasi-contract, or
quasi-delicts.
> in this article, the obligation does not arise
from a crime, but from some other act like a
contract or a legal duty. Example: Recovery of
accountable funds from authorized collecting
officers such as the postmaster, (Case:
Tolentino vs. Carlos, 39 O.G. No. 6, page
121).
> Illustrations:
a) In a Reckless Imprudence resulting to
Homicide case, the acquittal of a driver does not
bar the heirs from filing a culpa contractual case
against the operator of the bus because here, the
civil action is not based on a criminal case against
the driver but on the liability of the operator
based on contract- (Case: Nicasio Bermudez Sr.
vs. Bohol Land Transportation Inc., GR No. L-
18193, February 27, 1963). Also, in reckless
imprudence cases, a civil action for culpa aquiliana
(quasi delict or based on negligence) may be filed detention;
under Art. 2176 of the Civil Code, which may (5) Freedom of suffrage;
proceed independently from the criminal case (6)The right against deprivation of
because the action here is based on the Civil Code property without due process of
and not on the Revised Penal Code. The civil law.
liability arising from the crime is different from (7)The right to a just compensation
that arising from quasi delict. However, take when private property is taken
note: complainant cannot recover damages twice for
from the same act or omission of the defendants- public use;
as provided for under Art. 2177 of the Civil (8) The right to the equal protection the laws;
Code. See also, Sec. 3, Rule 111 of the Revised (9) The right to be secure in one’s
Rules of Criminal Procedure , effective Dec. 1, person, house, paper, and
2000. effects
against unreasonable searches
and
b) in Malversation cases where INTENT was not seizures;
proven, hence, the government can recover the (10) The liberty of abode and of
money disbursed without authority by the changing the same;
accountable officer. (11) The privacy of communication and
correspondence;
(12) The right to become a member
Art. 32- Any public officer or employee, or any of
private individual, who directly or indirectly associations or societies for
obstructs, defeats, violates or in any manner purposes not contrary to law;
impedes or impairs any of the following rights (13) The right to take part in a
and liberties of another person shall be liable peaceable assembly to petition the
to the latter for damages: [ talks about the government for redress or
violation of the constitutional rights of an grievances;
individual] (14) The right to free from
involuntary
(1) Freedom of religion: servitude in any form;
(2) Freedom of speech: (15) The right of the accused against
(3) Freedom to write for the press or excessive ball;
to maintain a periodical publication (16) The right of the accused to be
(4) Freedom from arbitrary or heard by himself and counsel, to be informed
illegal of the nature and the cause of the accusation

21
against him, to have a speedy and public trial,  basis of the civil action here is, the
to meet the witness face to face, and to have violation of the constitutional right of a
compulsory process to secure the attendance person, such as his FREEDOM. And those
of witness in his behalf; liable are, not only the culprits but also,
(17) Freedom from being compelled to be a their EMPLOYERS and/or their superiors who
witness against one’s self, or from could not wash their hands by claiming
being forced to confess guilt, or “good faith”, as this is NOT a defense under
from this article. To be liable, “it is enough that there
being induced by a promise of was violation of the constitutional rights of the
immunity or reward to make such plaintiffs and it is not required that the
confession except when the person defendants should have acted with malice or
confessing become a state witness; bad faith, (Case: Lim vs. Ponce de Leon, 66
(18) Freedom from excessive fines, or SCRA 299). Thus, military men who conducted
cruel and unusual punishment a raid, confiscated personal belongings using a
unless defective search warrant, illegally arrested
the same is imposed or infected in persons, depriving them of their visitorial rights
accordance with a status which has under the premise that habeas corpus was
not been judicially declared suspended at that time, are liable for damages.
unconstitutional; and And, the liability extends not only to the
(19) Freedom of access to the courts. actors but to their superiors, ( including the
officers and employees who are directly or
 Take Note: This article does not exempt indirectly responsible) for the violation of
military officers from responsibility. Only JUDGES constitutional rights, (Case: Alberca vs. Ver, 160
are excluded under this Article, provided their acts or SCRA 590).
omissions do not constitute a violation of the RPC or
other penal statutory law or do not constitute CRIME.  Query: If a prosecutor violates Art. 32
in good faith, is he liable for damages?.
ex. issuance of warrant of arrest or search warrant Answer: YES, thus, a prosecutor who ordered the
seizure of a motor launch without a search
 The article enumerates basic constitutional warrant after conducting a preliminary
rights, violation of which may either give rise to a investigation is liable for damages. His good faith
civil action or to a criminal action. Thus, even if is immaterial, (Case: Lim vs. de Leon, L-
violation of these rights do not amount to a crime, 22554, August 29, 1975).
the culprit may still be civilly liable.

22
Art. 33- * In cases of defamation, fraud
and physical injuries, a civil action for
damages, entirely separate and distinct from
the criminal action, may be brought by the
injured party. Such civil action shall proceed
independently of the criminal prosecution
and shall require only a preponderance of
evidence.
Take Note: There is a need to reserve independent
civil action in this case.
Purpose: To avoid the offended party from
recovering damages twice for the same act.
> defamation, fraud and physical injuries must be
understood in their ordinary sense. Defamation
includes libel, fraud includes estafa or
malversation, while physical injury may cover
death or the crimes of homicide and even
murder, (*Case: Dyogi vs. Yatco, GR No. L-
9623, January 22, 1957). This article however
does not include reckless imprudence resulting to
physical injuries or homicide, because here there is
no intent, only negligence.
> Take note however that under Sec. 1 of
Rule 111 of the Rules of Court, it states that:
the civil action for the recovery of the civil liability
arising from the offense charged shall be
deemed instituted with the criminal action
UNLESS the offended party:
a. waives the civil action
b. reserves his right to institute it separately; or
23
c. institutes the civil action prior to the criminal
action.
Hence, even in independent civil action, there is
a need for reservation, before one can institute
it independently from the criminal action. The
reservation shall be made before the prosecution
starts presenting its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such reservation.
 Take note: The ruling that the mere
appearance of a private prosecutor does not bar
the filing of an independent civil action is set aside
by Sec. 1, Rule 111 of the Rules of Court, where
there is now a need to reserve the right to file a
separate civil action even if an independent civil
action may be actually filed.
>Take Note: Outcome of criminal case is
INCONSEQUENTIAL in a civil action for damages
under Art. 33
Case: DIONG BI CHU v. CA, 192 S 554; so long
as it is predicated on a source of obligation other
than a delict, except, by statutory provision, an
independent civil action is authorized.
>Take Note: of the case of [YAKULT Phil. v. CA,
GR No. 91856, October 5, 1990 where a person
was side swept by a driver of Yakult. A criminal
action was filed without reservation of the civil
action. Then, a civil action is filed. The SC said,
even if there is no reservation of the civil aspect, but
if the civil action is FILED before the prosecution
starts presenting their evidence, the civil action can
proceed independently because actual filing of the > QUERY: In physical injury, if a criminal action
civil case is far better than compliance with the is brought first, is there a necessity to reserve the
requirement on reservation. civil action for damages, ANSWER: YES, even
(Art. 33) speaks of an independent civil action;
QUERY: if a civil action is brought ahead of a
Art. 34- When a member of the city or criminal action, is there a necessity to make a
municipal police force refuses or fails to reservation for a subsequent criminal action.
render aid or protection to any person in ANSWER: NO., for criminal actions need not be
case of danger to life or property, such peace reserved. QUERY: Will the civil action continue
officer shall be primarily liable for damages even if criminal action is subsequently filed.
and the city or municipality shall be ANSWER: YES, for the civil action is independent.
subsidiary responsible therefore. The civil
action herein recognized shall be independent
of any criminal proceedings and a >QUERY: In Robbery, if a civil action is
preponderance of evidence shall suffice to instituted first, may it continue even if
support such action. subsequently, a criminal action is filed. ANSWER:
NO, the Civil Code does not provide for an
> this refers to the damage caused to the independent civil action for robbery.
offended party because of the refusal or failure of
the policeman to render aid or protection to him
in case of danger to his life or property when
asked or requested. Primary liability is on the Art. 35. Already discussed. It speaks of
policeman, and subsidiary liability (in case of dependent civil action.
insolvency) is on the city or municipality.

Art. 36- Prejudicial Question

>QUERY: Is it necessary to reserve the filing of
civil actions (under articles 32, 33, 34 and 3176) in
case a criminal action has already been filed.
ANSWER: YES and they may proceed
independently but the offended party could not
recover damages twice (from the criminal action
and the civil action) . This requirement however is
PROCEDURAL and not substantive in character.
* Prejudicial questions, which must be
decided before any criminal prosecution may
be instituted or may proceed, shall be
governed by the Rules of Court which the
Supreme Court shall promulgate and which

24
shall not be in conflict with the provisions of >Examples of Cases where a prejudicial
the Code. question exists:

>Prejudicial Question- one that arises in a
case, the resolution of which is a logical
antecedent of the issue involved therein and the
cognizance of which pertains to another tribunal.
(*Case: People vs. Consing Jr., 395 SCRA
366) In other words, its resolution is vital to
the judgment in the criminal case.
>Take note: This is purely CIVIL in character.
Thus, a CIVIL CASE is considered a PREJUDICIAL
(QUESTION) to a criminal action as to cause the
suspension of the CRIMINAL CASE, pending its
determination must not only involve the same facts
upon which the criminal prosecution would be based
BUT also, that the resolution of the issue/s in the
civil case could necessarily be determinative of the
guilt of the accused. [ *Case: Mendiola v.
Macadaeng, 1 SCRA 593]
>Elements (as provided under Rule III, Sec. 7
of the Rules of Court)
1. the previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action.
a. In a case for damage to property (Malicious
Mischief), a civil action that involves the
ownership of said property should first be
resolved before the criminal action is continued
(*Case: de Leon vs. Mabanag, 70 Phil. 202)
Take note: it is the accused in a criminal
case who could raise the issue of prejudicial
question and move for the suspension of the
proceeding. It should not be the prosecution
otherwise this would be unfair to the accused
who is entitled to speedy trial. (*Case: People
vs. Judge Villamor, et.al. GR No. 13530, Feb.
28, 1962).
b. During the existence of the marriage between A
and B, A married C. Aggrieved, B filed a criminal
action for bigamy against A. Subsequently, A filed
an action for the annulment of his marriage to
B on the ground of force, intimidation, fraud
etc.. and prayed for the suspension of the
criminal action for bigamy. Is there a prejudicial
question here. YES, because the resolution of the
annulment of B’s marriage to A determines the
guilt or innocence of B. (*Case of Zapanta vs.
Montesa, GR No. L-14534, Feb. 28, 1962).

2. the resolution of such issue determines

whether or not the criminal action may proceed. c. Partition case is a prejudicial question to a
criminal case for Violation of the Anti-
>Take note: that a prejudicial question Squatting Law. Because here, ownership is a
presupposes a criminal prosecution. pivotal issue. Simply put, if the defendants are
proven to be squatters then there is violation of

25
the law but if not, as when they are found to be
co-owners, then they are not considered
squatters. (*Case: Apa et.al., vs. Fernandez,
et.al. GR No. 112381, March 20, 1995, 59
SCAD 759).
> Examples of Cases where prejudicial
question does not exist:
a.) action for declaration of marriage case on
the ground of psychological incapacity under
Art. 36 of the Family Code, is not a prejudicial
question to the bigamy case filed by the wife
against her husband. The same is true, in a case
when a husband filed a declaration of nullity of
marriage against his wife and the latter files a
case of concubinage against him and his
paramour. The Supreme Court ruled that the
civil case for declaration of nullity cannot be
a prejudicial question to the suspension of
the criminal case, because a subsequent
decision nullifying the marriage is not a
defense in concubinage. “As long as there is
no judicial declaration of nullity of marriage,
the presumption is, the marriage exists for
all intents and purposes.” (*Case: Te vs. CA,
GR No. 126746, Nov. 29, 2000).
b.) An action for nullity of marriage is not
also a prejudicial question to a frustrated
parricide case previously filed by the wife against
her husband. (*Case: Pimentel v. Pimentel,
GR No. 172060, Sept. 13, 2010)
26
>Take Note: In order that ANNULMENT OF
MARRIAGE be considered as prejudicial question in
the bigamy case against A, it must be shown that
petitioner’s consent to such marriage was obtained
by means of DURESS, FORCE and INTIMIDATION so
that his act on the said marriage was INVOLUNTARY
and cannot be the basis of his conviction to the
BIGAMY case otherwise, it is not prejudicial
question.
>Take Note: If the petitioner through his own fault
caused the ground for the nullification of his
marriage, the CIVIL ACTION for ANNULMENT or
NULLITY is NOT a prejudicial question. This is
consistent to the principle, HE WHO COMES TO
COURT MUST COME WITH CLEAN HANDS.
c.) An accused in a criminal case for estafa for
not returning the money he misappropriated to
buy a boat who subsequently filed a case
questioning the validity of the “receipt evidencing
receipt of money” whom he allegedly signed
through fraud or intimidation, cannot raise that the
issue on the civil case is prejudicial question to the
estafa case because the latter does not determine
the innocence or guilt of the accused. There are
still other pieces of evidence which could be used to
prove estafa. The accused’ contention could have
been tenable, had the charge be for falsification
of the said receipt. (*Case: Jimenez vs. Averia,
GR No. L-22759, March 29, 1968).
d.) An action for rescission of contract (ex.
Sale by installment where a Deed of Sale was
executed prior to completing the payment) is not
a prejudicial question in BP 22 cases (i.e, when the
checks used as payment bounced) because, the
issue in the civil case is not determinative of the
guilt or innocence of the accused.
> QUERY: If the existence of prejudicial
question is not raised, is there a presumption of
waiver? ANSWER: YES, take note that the
suspension of a criminal action due to
prejudicial question is a procedural matter, hence
can be deemed waived after all, the suspension is
for the benefit of the accused.
>As a final note, it is stressed that the doctrine
of prejudicial question comes into play when a
civil action and a criminal action are both
pending and there exists in the former an issue
which must be resolved first, before the criminal
action may proceed.
Other Suggested Cases to read: * Ardiente
vs. Pastorfide, 701 SCRA 389; Gregorio vs. CA,
599 SCRA 594; CBK Power Co. vs. CIR, 714 SCRA
46; Uy vs. Public Estates Authority, 589 SCRA 1;
Republic vs. CA, 596 SCRA 57; *Willaware
Product Corp. vs. Jesichris Manufacturing Corp.
734 SCRA 238;Yap vs. Paras, 205 SCRA 625; Po
Cham vs. Pizarro, 467 SCRA 1: *Dreamworld
Const. Inc., vs. Janiola, 591 SCRA 466
THE LAW ON PERSONS
PERSON- any being natural or artificial, capable
of possessing legal rights and obligations. ( 2
Sanchez Roman 110)
 Two kinds o f person:
1. Natural person- human beings created by God
thru the intervention of the parents.
a 2. Juridical person- those created by law (ex:
corporation)
Art. 37- Juridical capacity, which is the fitness
to be the subject of legal relations is inherent
in every natural persons and is lost only
through death. Capacity to act, which is the
power to do acts with legal effect, is acquired
and may be lost. [ must be taken in relation to
Articles 40, 41 and 42]
> Juridical capacity is inherent in every person and
it is acquired from the moment of birth and is lost
only upon death. ( ex: a newborn baby is already
fit to become a subject of legal relation but cannot
enter into contract because he has no capacity to
act yet). When juridical capacity and capacity to
act are possessed by one person, then he is
considered to be a person with full civil
personality.
>Distinctions between juridical capacity and
capacity to act
27
 (Case: Continental Steel Manufacturing Corp.
1. JC- the fitness to be the subject of a legal vs. Montano, 603 SCRA 621[2009]).
relation
CA- the power to do acts with legal effect.
Art. 38- Minority, insanity or imbecility, the
2. JC- passive state of being a deaf mute, prodigality and civil
CA- active interdiction are mere restrictions on the
capacity to act, and do not exempt the
3. JC- inherent incapacitated person from certain obligations,
CA- merely acquired as when the latter arise from his acts or from
property relations, such as easements.
4. JC- lost only through
death
CA- lost through death but maybe restricted by > talks about the restrictions on capacity to act.
other causes such as: Effect: see “underline word”.

a. minority
(below 18)
b. insanity or Art. 39- *The following circumstances, among
imbecility others, modify or limit capacity to act: age,
c. state of being insanity, imbecility, the state of being a deaf-
a deaf mute mute, penalty, prodigality, family relations (ex:
d. prodigality a husband and the wife cannot sell to each
(state of squandering money or property with a other) , alienage, absence, insolvency and
morbid desire to prejudice the heirs of a person); trusteeship. The consequences of these
e. civil circumstances are governed in this Code, other
interdiction codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of
>** Take note: there is no need to establish the religious belief or political opinion.
civil personality of the unborn child if his/ her
juridical capacity and capacity to act as a person A married woman, twenty-one years of age
are not in issue and the case is not whether the or over,(now 18) is qualified for all acts of civil
unborn child has acquired any rights or incurred life, except in cases specified by law.
any obligation prior to his/her death that were
passed on to or assumed by the child’s parents.

28
>speaks also of the restrictions on capacity to
act. Thus, even if a person has the capacity to
act under the law, there are certain acts which
he cannot do because of minority, or the fact
that he is insane or imbecile, prodigality or that he
is under civil interdiction.
>Take note: even a woman who got married
before the effectivity of the New Civil Code, her
capacity to execute acts and contracts are
governed by the New Civil Code.
Art. 40- *Birth determines personality, but
the conceived child shall be considered born for
all purposes that are favorable to it, provided it
be born later with the conditions specified in
the following article.
> answers the question, ”When does the
personality of a natural person begin”
*presumptive personality does not begin at
birth; it begins at conception. Birth determines
(not begins) personality i.e., birth should occur
later, under the conditions specified by law
otherwise, the fetus (conceived child) will be
considered as never having possessed legal
personality.
> TAKE NOTE: Some authors would say that
personality normally begins at the moment of
29
birth. However, a child in his mother’s womb may
be given presumptive personality but only for
purposes beneficial to him (like donation so long as
it is not subject to an onerous condition ) provided
that he be born later with the conditions specified
under Art. 41.
Art. 41- For civil purposes, the foetus is
considered born 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
born if it dies within twenty-four hours after its
complete delivery from the maternal womb.
>Two kinds of babies:
1. Ordinary- with an intra uterine life of at least
seven (7) months. It is enough that he is born
alive to acquire personality.
2. Extraordinary- if the intra uterine life is less
than seven (7) months, the child must have
lived for at least 24 hours after its complete
delivery from the maternal womb.
>Take note: A conceived child can be recognized
even before it is born, is entitled to be
supported and may be given donation. ( Case:
de Jesus vs. Syquia, 58 Phil.866).
> QUERY: if a doctor conducts abortion on a
woman at the latter’s request, will the father of the
child be entitled to damages? Normally, he can
recover moral damages (if he conducted
investigation on the cause of the abortion, if he
did not conduct investigation NO, on account
that his wife consented to the abortion), and
exemplary damages, when warranted. But, not
civil liability for the death of the fetus because
it is not endowed with personality (never been
born). (Case: Geluz vs. CA, L-16439, July 20,
1961)
Art. 42- *Civil personality is extinguished by
death. The effect of death upon the rights and
obligations of the deceased is determined by
law, by contract and by will.
> Death here refers to physical death, not civil
death, (Art. 42) for the latter merely restricts
civil personality.
>Take note of the following cases:
1. A person who was made as a voluntary heir
in the will of another cannot be represented by his
heirs, if he died before the testator by express
provision of law.
2. A special power of attorney executed by a
person in favor of another authorizing the latter to
sell his property is terminated at the moment of
death of said person. The sale after the death of
the principal is void especially so that the agent
knows of his principal’s death. This could be
invoked even against a buyer in good faith(does
not know about the principal’s death. (Case: Rallos
30
vs. Felix Go Chan, et.al., GR No. L- 24332,
January 31, 1978).
3. Criminal liability is extinguished by death but
the proceedings with regard to the civil liability of
the accused should continue (against his estate if
any). ( Case: People vs. Tirol and Baldesco,
GR No. L- 30538, January 31, 1981)
4. Service of summons against a defendant who
is already dead through his relative is not a valid
service because a dead man has lost his juridical
personality already and any judgment rendered
against him is null and void. Voluntary appearance
by co-defendants or estoppel (on the part of his
heirs) is not applicable. (Case: Dumlao vs.
Quality Plastic Inc., GR No. L- 27956, April
30, 1976).
Art. 43- *If there is doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of proof, it
is presumed that they died at the same time
[and there shall be no transmission of rights
from one to the other.] (bracketed portion not
found in Rule 131 of the Rules of Court)
> speaks of the RULES OF SURVIVORSHIP. Same
with Rule 131 Sec. 3(kk) of the Rules of Court
except that the former applies to two persons
only who are called to succeed each other and
there is doubt as to who died first while Rule 131,
covers all cases.
> Rule 131 - “If there is doubt , as between
two or more persons who are called to succeed
each other, as to which of them died first,
whoever alleges the death of one prior to the
other, shall prove the same; in the absence of
proof, they shall be considered to have died at the
same time.”
> Rule when two persons perish in the same
calamity such as wreck, battle or conflagration
and it is not known who died first, and there
are no particular circumstances from which it could
be inferred, the survivorship is presumed from the
probabilities resulting from the strength and
sexes, according to the following rules:
a. if both are under the age of 15, the older is
presumed to have survived.
b. if both were above the age of 60, the younger
is deemed to have survived.
c. if one is under 15 and the other is above 60,
the former is deemed to have survived.
d. if both be over 15 and under 60 and the sex
be different, the male is presumed to have
survived; and if the sexes be the same, then the
older.
e. if one be under 15 or over 60, the other
between those ages, the latter is deemed to have
survived.
31
Art. 44- *The following are juridical persons:
(1) The state and its subdivision;
(2) Other corporations, institutions and
entities for public interest or purpose, created
by law; their personality begins as soon as they
have been constituted according to law.
(3) Corporations, partnership and associations
for private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner
or member.
> Kinds of Juridical Persons:
1. Public Juridical Persons
a. the State
b. its political subdivisions
*municipal corporations consisting of provinces,
cities and municipalities.
c. Public corporations
* shall acquire personality the moment they are
constituted according to law i.e., the law creating
them
2. Private Juridical Persons
a. private
corporations (separate and distinct from its
stockholders. (Case: Remo, Jr. vs. IAC, et. al.,
GR 67626, April 18, 1989) Art. 45- *Juridical persons mentioned in Nos.
1 and 2 of the proceeding Article are governed
b. partnership by the laws creating or recognizing them.

c. associations for private interest or purpose Private corporations are regulated by laws
of general application on the subject.
* begin to exist from the moment a certificate of
Partnerships and associations for private
incorporation is granted by the Security and
interest or purpose are governed by the
Exchange Commission (SEC). Regulated by the
provisions of this Code concerning partnership.
laws of general application on the subject, such as
the Corporation Code. Partnership or association of
private interest are governed by the provisions of
> speaks of the governing laws
the Civil Code concerning partnership.

>The Roman Catholic Church is an example of a

Art. 46- *Juridical persons may acquire and
juridical person.
possess property of all kinds, as well as incur
obligations and bring civil or criminal actions,
> An office of the Government, such as the
in conformity with the laws and regulations of
Bureau of Printing has no personality of its own
the organization.
and so therefore cannot be sued. A suit against
it, is a suit against the State. And the rule is,
> speaks of the rights of a juridical person:
the State or the Government could not be sued
without its consent. ( Case: Bureau of Printing
a. acquire and possess property of all kinds
vs. Bureau of Printing Employees Asso., L-
b. to incur obligation
15751, Jan. 28, 1961)
c. to bring criminal or civil
action.
> a corporation could not form a partnership
with another because of the absence of trust and
confidence. It may however enter a joint venture
with another corporation where the nature of said Art. 47- * Upon the dissolution of
joint venture is in line with the business authorized corporations, institutions and other entities
by its charter. ( Case: Tuason Co. vs. Bolanos, for public interest or purpose mentioned in
L-4935, May 28, 1954).
32
No.2 of Art. 44, their property and assets
shall be disposed of in pursuance of law or
the charter creating them. If nothing is
specified on this point, the property and other
assets shall be applied to similar purposes
for the benefit of the region, province or
municipality which during the existence of
the institution derived the principal benefits
from the same.
> effect of dissolution:
*its property and other assets shall be disposed of
in accordance with:
1. the provisions of the law or charter
creating the public corporation;
2. if no such provision, the assets
shall be disposed of for the benefit of the place
(region, province municipality etc.) which was
already receiving benefits during the existence of
the corporation.
Art. 48- Citizenship and Domicile
* The following are citizens of the Philippines:
1.Those who are citizens of the Philippines at the
time of the adoption of the Constitution of the
Philippines (1987 Constitution). Take note: these
comprise the biggest bulk of Filipino citizens or the
largest group for they include the following:
33
a. those who are citizens under the provisions of
the Philippine Bill of 1902 and the Jones Law of
1916. (all inhabitants of the Phil. islands who were
Spanish subjects on the 11 th day of 1899 and
then resided in said islands and their children born
subsequent thereto shall be deemed and held
citizens of the Philippines EXCEPT, those who
elected to preserve their allegiance to the crown of
Spain ).
b. those who were naturalized as Filipinos prior to
the adoption of the 1935 Constitution
c. those declared as Filipino citizens by final
judgment ;
d. those who had elected Philippine citizenship.
e. those born in the Philippines of foreign
parents and had been elected to public office
before the adoption of the 1935 Constitution.
2. Those born in the Philippines of foreign parents
who, before the adoption of said constitution, has
been elected to public office in the Philippines.
4. Those whose fathers are
citizens of
the Philippines.
5. Those whose mothers are
citizens of the Philippines and, upon reaching the
age of majority, elect Philippine citizenship;
6. Those who are naturalized in
accordance with law.
>Take note of Art. IV of the 1987 Constitution
on who are citizens of the Philippines:
1. those who are citizens of the Philippines at the
time of the adoption of this Constitution;
2.those whose fathers and mothers are citizens of
the Philippines;
3.those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
4. those who are naturalized in accordance with
law.
> Citizenship- is the status of being a citizen, or
owing allegiance to a certain STATE for the privilege
of being under its protection. It is membership
in a democratic society or a political society.
Political in character while nationality refers to
membership in an ethnic, racial or cultural
group. Citizenship follows the exercise of civil and
political rights while nationality does not
necessary carry with it the exercise of political
rights.
> QUERY: Is it possible that a person can be a
citizen of one country and a national of another?
ANSWER: YES, because of the distinction. Ex: A
34
former Filipino citizen who became a naturalized
American, is considered as a CITIZEN of the
United States but, strictly speaking he is still a
Filipino national by virtue of his being a Filipino
by birth. Although in International Law, citizenship
and nationality are used interchangeably.
> Three kinds of citizens:
1.Natural born citizens- those citizens of the
Philippines from birth without having to perform
any act to acquire or perfect their Philippine
citizenship. These refer to those born in the
Philippines of Filipino parents (native born) AND
those born outside the Phil. of Filipino parents.
Thus, a child born in France of Filipino father is a
natural born Filipino but not native born.
2.Naturalized citizens- citizens who are made so
thru naturalization proceedings or judicial
proceedings.
3.Citizen by election- children born of Filipino
mother and an alien father under the 1935
constitution who, upon reaching the age of
majority elected Filipino citizenship. (Classic
Case: In re: Pet. Filed by Zita Ngo Burca,
L23252, Jan. 30,1967, BUT reversed by MOY-
YA LIM YAO vs. Commissioner of Immigration.
> Theories used to determine the citizenship
of a person:
1. Jus soli- basis is the
place of birth. (adopted by US and other western > QUERY: Does DUAL CITIZENSHIP exist.
nations) ANSWER: it depends on whose viewpoint- from
2. Jus sanguinis- basis is the country directly involved in the conflict, IT
the citizenship of a child’s parents. Citizenship by DOES NOT EXIST, but from the viewpoint of a third
blood. (followed in the Philippines.) state, IT DOES.

>Take note however that several civilist , would 2. Dual citizenship exists when:
say that there are three modes of acquiring
citizenship and these are: a. marriage
b. by combined application of jus soli and jus
1. Jus Soli sanguinis
2. Jus Sanguinis; and c. by failure of a naturalized citizen to comply with
3. Naturalization- an certain legal requirements in his country of origin;
artificial means or process. d. by legislative act of State;
e. voluntary act of the individual concerned.
> QUERY: Can there be a judicial declaration
that a person is a Filipino citizen. ANSWER: No. > Stateless individual- one who does not possess
He was to apply for naturalization. (Case: Yung any citizenship. It occurs when:
Uan Chu vs. Republic, GR No. 34973, April 14,
1988 and the case of Republic vs. Hon. Manolo 1.) a person is deprived of his citizenship by his
L. Maddela, L-21664, March 28, 1969). own country because he committed an act of
disloyalty like treason or any crime carrying the
> QUERY: What if a Filipino is compelled to penalty of deprivation of his nationality.
register as an alien, what is his remedy.
ANSWER: File a petition for Injunction in Court 2.) voluntary renunciation of one’s citizenship;
and prove therein that he is a Filipino ( Case: Lim
vs. de la Rosa, L-17790, March 31, 1964). 3.) by combined application of jus soli and jus
sanguinis
> QUERY: Can you deport a Filipino while in the
Philippines. ANSWER: No. >Effect of marriage to a foreigner on the citizenship
of a Filipino woman:
> Take note:
* shall remain Filipino unless by her act or
1. Citizenship is a matter to be exclusively omission, she is deemed to have renounce her
determined by the country’s own law.

35
Filipino citizenship. (contrary to the previous with, including a judicial hearing and approval of
ruling). the petition. “This is not a right but a
privilege”. The requisite conditions for
naturalization are laid down by Congress and the
> Effect of marriage of an alien woman to a courts cannot change or modify them” (Case:
Filipino man (whether native born or naturalized): Bautista vs. Republic, GR. No. L-3353,
December 29, 1950). Under current and existing
* she will automatically become a Filipino citizen laws there are three(3) ways by which an alien
provided she does not possess any disqualification may become a citizen by naturalization:
provided for by law. (Case: Moy Ya, reversing
the Burca doctrine)
a. administrative naturalization
>effect on the citizenship of minor children: pursuant to RA 9139 (An Act for the
Acquisition of Phil. Citizenship for certain
* children whose fathers OR mothers are citizens of aliens by administrative naturalization and
the Phil. are considered Filipino citizens. Thus, if other purposes, which took effect on June 8,
a child is born of a Filipina mother and a foreigner 2001).
father after the effectivity of the 1973
Constitution, which is, (Jan. 17, 1973) he is b. judicial naturalization pursuant to
considered from birth to be a Filipino citizen. No Commonwealth Act No. 473(Revised Naturalization
need for the child to elect Phil. Citizenship upon Law) as amended;
reaching the age of majority because he is
considered as natural born citizen from the moment c. legislative naturalization in the form of a law
of birth, (adapted in the 1987 constitution. enacted by Congress bestowing Filipino citizenship
to alien.

> Qualifications of an alien before he can be

Art. 49- *Naturalization and the loss and
reacquisition of citizenship of the Philippines
are governed by special laws.
>Naturalization- process of acquiring citizenship
of another country. It is a judicial process where
the formalities of the law have to be complied
naturalized.
1. Age- At least 21 years old at the time of the
election; [i.e, three years from reaching the age
of majority EXCEPT, if there is justifiable reason
for the delay as when the party thought all along
that he is a Filipino citizen. But, there can be
acquisition of citizenship under the doctrine of
implied election, by having exercised the right

36
of suffrage when he comes of age. “ Participation
in election and campaigning for certain candidates
are sufficient proofs for once preference for 1. he is opposed to an
Philippine citizenship.” ( Case: Re: Florencio organized government;
Mallare, 59 SCRA 45). 2. he is a believer in
violence as means to expose an idea;
2. Residence for 10 years or more in the 3. a polygamist or a
Philippines. Take note: This can be reduced if: believer in polygamy
4. he has been convicted
a. he was born in the Philippines. of a crime involving moral turpitude;
5. has incurable disease;
b. he is married to a Filipino 6. has not mingled
socially with Filipinos or has not embraced Filipino
c. he served in the government or held an office cultures, ideals and customs;
7. is a citizen or a
d. he has served as teacher in a private or public national of a country which the Philippines is at
school not limited to children of any nationality in was during time of such war;
any branch of education; 8. is a citizen or a
national of a country which does not grant same
e. he made a useful investment or industry in the naturalization to Filipinos. (no reciprocity).
Philippines.

3. Good Moral Character in that, he should have > STEPS in NATURALIZATION:

conducted himself in an irreproachable manner;
4. Property Qualification. He must have some
lucrative trade, profession or calling.
5. Education- He must be able to speak, write
English or Spanish or a principal dialect. He
must have enrolled his children in a recognized
school in the Philippines which teaches Philippine
history, civics and government.
> DISQUALIFICATIONS:
37
1. declaration of intention which must be filed
one year prior to the filing of the petition for
naturalization; (with the Office of the Solicitor
General). Take note: To be exempt from filing
notice of intention, the applicant must have
resided continuously in the Phil. for at least 30
years before the filing of the application and has
provided primary and secondary education to all his
children in the public or private schools recognized
by the government and not limited to any race or
nationality. Residence here is actual or physical
presence in the Philippines for said length of time
and not legal residence alone, (Case: Cua Sun Ke 3. subscribing to an oath of allegiance to support
vs. Republic, GR No. 29674, April8, 1988). In the Constitution or laws of a foreign country.
this case, the SC also ruled that, judgment Take note: To reacquire Phil. citizenship, there
granting naturalization is never final and can be must be a direct act of Congress or repatriation
revoked.

2. filing of the petition with the RTC covering the >Take note:
area where petitioner resides.
> Concept of derivative naturalization- if the
3. hearing of the petition; husband of the alien woman is naturalized, the
wife follows the Filipino citizenship of the husband,
4. after the approval of the petition , there will be provided she does not possess any of the
a rehearing two years for the promulgation of the disqualifications. The law does not require that
judgment. the woman should have all the qualifications. (
Case: Moy Ya LimYao vs. Commissioner of
5. taking of oath of allegiance to support and Immigration, 41 SCRA 292). All the wife
defend the constitution and the laws of the should do is to file a petition for cancellation of
Philippines. Take note: administration of the oath her alien certificate of registration with the Bureau
of allegiance on the same day the decision of Immigration alleging therein that she has no
granting naturalization makes the proceedings a disqualifications. Attached to the petition is her
nullity, ( Cua Sun Ke case). Affidavit and that of her husband that she does not
have any disqualification.

> How Phil. citizenship may be lost: > Naturalization of the father benefits his minor
children. Children who are of legal age
1. naturalization in a foreign country. already may apply for naturalization
themselves.

2. express renunciation of citizenship. [such

that, the mere filing of a certificate of candidacy
does not restore Filipino citizenship. Art. 50- Domicile

Case: Frivaldo vs. Comelec et.l., GR. No. *For the exercise of civil rights and the
87193, June 23, 1981 and the case of Labo vs. fulfillment of civil obligations, the domicile of
Comelec, GR No. 86564, Aug. 1, 1989]. natural persons is the place of their habitual
residence.

38
 one may possess his domicile in one State without
necessarily being a citizen or national thereof.
> Domicile- the place of a person’s habitual
residence. It is that place where he has his true, >Classification of Domicile:
fixed permanent home and principal establishment,
and to which place, he has, whenever he is absent, 1. domicile of origin-
the intention of returning and from which he has where one is born
no intention of moving, (Case: Ong Huan Tin vs. 2. domicile by choice- to
Republic, 19 SCRA 966). acquire this, there must be the concurrence of:

a. residence or bodily presence in the new locality

> DISTINCTIONS: b.the intention to remain there
c.an intention to abandon the old domicile
1. Domicile- more or less permanent. “ domicile
once acquired is retained until a new one is gained”. 3. domicile by operation
(Case: Imelda Marcos vs. Comelec, 248 SCRA of law
300)
>To effect change in domicile: There must be
Residence- more or less temporary. Factual an actual removal or actual change of
relation of an individual to a certain place. domicile( Case: Limbona vs. Comelec, 555 SCRA
391)
Hence, while a person may have one or more Requisites:
residences, she has only one domicile. (Case:
Utengsu vs. Republic. 50 O.G. 4781, Oct. 1. there must be animus manendi - bonafide
1954. intention of abandoning the former place of
residence establishing a new one, COUPLED by,

2. Domicile- speaks of one’s permanent place of 2. animus non revertendi-no intention to return
abode

Citizenship- refers to ties of allegiance and Art. 51- * When the law creating or
loyalty. recognizing them, or any other provision
does not fix the domicile of juridical persons,
Hence, a person may be a citizen or national of the same shall be understood to be the place
one country without being a domiciliary thereof or where their legal representation is

39
established or where they exercise their
principal functions.
> self explanatory
THE FAMILY CODE
Art. 1- DEFINITION OF MARRIAGE
“Special contract of permanent union between
a man and a woman entered into in accordance
with Law for the establishement of conjugal
and family life. It is the foundation of the
family and an inviolable social constitution
whose nature, consequences and incidents are
governed by law and not subject to stipulation
except that marriage settlement may fix the
property relations during the marriage within
the limits provided by this code.”
>Case: Acebedo vs. Arquero, 399 SCRA 10
 Take note: that the 1987 Constitution
recognizes the importance and sanctity of
marriage in this wise “Marriage, as an inviolable
40
social institution is the foundation of the
family and shall be protected by the State“
(Sec. 22, Art. XV).
> Take note: that the contracting parties should
be a man and a woman, thus making “gender”
important as it involves the legal capacity of the
parties. This is emphasized not only under this
article but also Articles 2 and 5 as well.
>Take note: Same sex between Filipinos
celebrated abroad is not valid in the Philippines even
if valid there.
>Take note:** “sex of a person is determined at
birth, visually done by the birth attendant(the
physician or midwife) by examining the genitals of
the infant and such determination, if not attended
by error, is immutable and may not be changed
by reason of sex reassignment as there is no law
recognizing the same (Case: Silverio vs.
Republic, 537 SCRA 373[2007]). Simply put,
sex reassignment surgery does not make a
man into a woman. ( Silverio case)
> ** Take note: that in the case of Republic
vs. Cagandahan, 565 SCRA 72[2008], the SC
had the occassion to discuss “intersexuality” – a
term adopted by medicine to apply to human
beings who cannot be classified as either
male or female because they have the
biological characteristics of a man and a
woman. However, in our jurisdiction, you can only 1.) As a STATUS- it is the civil status of one
be either a MALE or a FEMALE. Thus, when a man and one woman united for life for the following
person is biologically or naturally intersex, his purposes:
gender would be that on what he beleives he
is, (either a male or female) when he reaches a. reciprocal blessings of a domestic home life
the age of majority- i.e. when he has good (companionship) ; and
reason to think who he is. SC said in this case
that, “sexual development in cases of intersex b. for the birth, rearing and education of children
persons makes the gender classification at (procreation)
birth inconclusive- it is at maturity that the
gender of such persons are fixed”. **Thus, > it creates a social status which the State has
“when a person suffers from a biological condition an interest. Hence, you cannot just choose to end
known as “congenital adrenal hyperlasia”[CAH], your marriage.
where biologically, nature endowed such person
with a mixed [neither consistently and categorically
female nor consistently and categorically male] 2.) As an ACT- it is an act by which a man and
composition, in the absence of law on the matter, a woman unite for life, with the intent to discharge
the Court will not dictate on such person concerning towards society and one another those duties which
a matter so innately private as one’s sexuality and result from the relation of husband and wife.
lifestyle preferences, much less on whether or not
to udergo medical treatment to reverse the male
tendency due to CAH. ( also ruled in Cagandahan
case).  Marriage Distinguished from Ordinary
Contract:

1. M- both a contract and

>Take note that under this article, Marriage a social institution.
is regarded both: OC- merely a contract

2. M-generally, stipulations
are fixed by law- not by parties (except: marriage
settlement provisions)
41
OC- stipulations are fixed by parties. 2. What about a prohibition to
marry an employee of a competing company, is
3. M- the age requirement this valid? YES, relationship of employees of two
is 18 and above. competing companies may prejudice the interest of
OC- generally, the age of the company. (Case: Duncan vs. Glaxo, GR No.
of majority (18 yrs. Old) 162994, Sept. 17, 2004)

4. M- can be dissolved
only
by death or annulment, not Art. 2- ESSENTIAL REQUISITES OF MARRIAGE
mutual agreement.
* No marriage shall be valid unless these
OC- can be ended by mutual agreement or by essential requisites are present:
other legal causes.

5. M- two parties only, a 1.) Legal capacity of the contracting

male and a female; parties who must be a male and a female
OC- 2 or more parties. (18 years and above, ); and

2.) Consent freely given in the presence of

> QUERRIES:
1. Can a company prohibit its
employees to marry each other? NO, this is an
invalid exercise of management prerogative.
Unless, the company will show there is a necessity of
“No Spouse Employment Policy”. (Case:
Paper Corp. Vs. Simbol, GR No. 164774, April
12, 2006).
the solemnizing officer.(consent of the
contracting parties, not their parents, if there
is vitiation of consent, the marriage is
voidable. The same is true if the consent of
their parents is not obtained).
Star > Take note: Legal capacity means- parties must
be of opposite sex, 18 years of age and over
(this is also the age of majority under RA
6809), and must have no legal impediment to
marry each other under Arts. 37 (incestuous
marriages) and 38 (against public policy), of the

42
Family Code. No same sex marriage-even if one again. QUERY: What if in the meantime, they
had sex change or transplant (Silverio Ruling). The begot children, what is their status?
term “no legal impediment”- refers to a ILLEGITIMATE, and they cannot be elevated to
situation where there is no pre existing the status of legitimate children by the
marriage of either or both parties. QUERY: If subsequent marriage of their parents. The remedy
there is a prior existing marriage by anyone of if they want to make their children legitimate is to
the parties but it is VOID, can anyone of them ADOPT them, for even parents can adopt their
just get married. NO, there is a need to declare illegimate children, (Art. 185, Family Code).
the first marriage to be void first, because parties
could not decide for themselves the invalidity of
their marriage. So long as the first marriage is > Take note: Proxy marriages not allowed in the
not declared void, the presumption is, it is valid. Philippines because consent must be given
Thus, if anyone of the parties during the before the solemnizing officer. No force,
existence of their marriage marry without the intimidation, fraud, undue influence should be
marriage being declared void, assumed the risk exerted to obtain consent otherwise marriage is
of being prosecuted for bigamy, (Case: Weigel voidable under Art. 45.
vs. Sempio Dy, 143 SCRA 499; Atienza vs.
Brillantes, 60 SCAD 119). > **ON CONSENT: For consent to be valid, it
must be:

> Take note: If anyone or both of the parties
are below 18, and they married each other, the
marriage is void, even if with the consent
of their parents. The same is true even if the
marriage is celebrated abroad and valid there as
such because the law that determines the
validity of the marriage of a Filipino is his
national law. Remeber Art. 15 of the Civil Code.
QUERY: Will a subsequent marriage validate
their void marriage? NO, because a void
marriage cannot be validated but there is
nothing that could prevent them from marrying
43
1.freely given and,
2. made in the presence of the solemnizing
officer.
Thus, a “freely given consent” requires that the
contracting parties willingly and deliberately entered
into the marriage. In the (Case of Republic vs.
Albios, 707 SCRA 584[2013]), the Supreme
Court finds that consent was not lacking and that
in fact there was real consent, even if the sole
purpose of the marriage between the Filipino and
the American is for the acquisition of American
citizenship because it was not vitiated nor > Take note: Authority- refers to those
rendered defective by any of the vices of consent. enumerated under Art. 7 of the Family Code. A
Moreover, marriages entered into for other mayor however is authorized by the Local
Government Code. The authority of Justices, (SC,
purposes limited or otherwise, such as
CA, Sandiganbayan and CTA) to solemnize marriage
convenience, companionship, money, status and is all over the Philippines, for judges- must be
title provided that they comply with all the legal within their respective territorial jurisdiction. If
requisites, are valid. outside, VOID). Take note: that if it is only a
marriage ceremonious in character, ex. 25 th
 Take note: absence of any of the essential wedding anniversary or golden wedding
requisites- Marriage is VOID AB INITIO; while, anniversary, no need of compliance of the
requisites of marriage.
defect in any of the essential requisites- marriage
is VOIDABLE.
> Take note: Marriage license should be existing
at the time of the marriage. If not, marriage is
Art. 3- FORMAL REQUISITES void (Case: Cosca vs. Judge Palaypayon, 55
SCAD 759). Remember that the issuance of
*The formal requisites of marriage are: marriage license is the only indication of the
State’s demonstration of its involvement and
1) Authority of the solemnizing officer participation in every marriage. Query: What if
2) Valid marriage license except in the in the marriage contract there appears no
cases provided for in Chapter 2 of this Title; marriage license number, will this be tantamount
to no marriage license? No, it is only
3) A marriage ceremony which takes place
demonstrative of the non recording of the
with the appearance of the contracting marriage license number, unless that there exist
parties before the solemnizing officer and their sufficient evidence showing that there was no
personal declaration that they take each other marriage license issued, (Case: Geronimo vs.
as husband and wife in the presence of at CA, 43 SCAD, 311) or, the absence of the
least two witnesses. marriage license is apparent on the marriage
contract, as there is no entry to this effect
whatsoever, ( Case: Alcantara vs. Alcantara, GR
> can be proven by evidence aliunde or the
No. 167776, August 28, 2007). Take note: if
testimonies of those who were present the marriage license came or issued after the
solemnization of the marriage, the marriage is
void, (Case: People vs. Lara, L-12588, Feb.

44
15, 1955). Also, take note: A solemnizing
officer who signs a marriage contract before the
license is obtained and then postdates the same,
shall be administratively liable and should be
admonished, no matter how plausible the reason is
(Case: Negre vs. Rivera, Adm. Matter 343- MJ,
June 22, 1976) and lastly, take note also that
even if the marriage license is illegally obtained,
the marriage is still VALID, under the
presumption of regular issuance or regular
performance of duty of the issuing officer.
>**Take note: That Section 15 of Republic
Act No. 10354 [the Responsible Parenthood and
Reproductive Health Act of 2012] imposes as an
additional requirement for the issuance a marriage
license, a Certificate of Compliance issued by the
Local Family Planning Office that the parties had
received instructions and information on
responsible parenthood and family planning. The
Supreme Court said, the imposition of this
requirement is a reasonable exercise of police
power by the State, (Case: Imbong vs. Ochoa
Jr., 721 SCRA 146[2014]).
“ratification of marital cohabitation” under
Art. 34 of the Family Code; Take note: the falsity
of an affidavit of marital cohabitation like where
the parties did not actually live together for a
period of five(5) years renders the marriage void
ab initio [*Case: Republic vs. Dayot, 550 SCRA
435 (2008)]. Further, the SC also said that, the
falsity of an Affidavit of Cohabitation CANNOT
be used as a defense in a bigamy case.
Precisely, a party could not use his/her illegal act
to exonerate himself/herself of criminal liability.
[*Case: Santiago vs. People, GR No. 200233,
July 15, 2015].
2. marriage in articulo mortis (under Art. 27);
3. marriage in a remote place ( under Art. 28);
and
4. marriages between pagans or Mohammedans
who live in non Christian provinces, and who
marry in accordance with their customs (under Art.
33).

> QUERRIES:
> Exception where there is no need to
obtain marriage license: 1. Suppose in accordance with the Mohammedan
(Muslim) practice, a Muslim who is already married
gets married to a 2nd wife, can he be held guilty
1. if parties freely cohabited with each other for of bigamy. YES, the law does not permit him to
a continuous period of 5 years, exclusively with enter into a bigamous or polygamous marriage
each other and without impediment to marry each since this is punishable under the Revised Penal
other (all that is needed is the execution of Code, and there is no exception in the case of
Affidavit of Cohabitation) or, what you call, Mohammedan or pagans, (Case: People vs.

45
Bitdu, 58 Phil. 817). Take note however, that
Muslims can marry up to 4x so long as the other
wives give their consent and his resources allow
him to do so.
2. Suppose according to pagan practice, a girl
less than 14 years of age can get married to a
pagan male, may this marriage be recognized?.
NO, said marriage is void because a party is below
18- age being an essential requisite.
> Take note of the (Case of Ninal et. al vs.
Bayadog, Gr No. 133778, March 14,
2000) where issues on marriage license, annulment
etc. where resolved).
> **Take note: Marriage ceremony-
there is no specific form of ceremony required.
What is required are: 1) personal appearance of
the parties before the solemnizing officer and 2)
their declaration that they take each other as
husband and wife in the presence of two witnesses.
This notwithstanding, the Supreme Court held
that, the requirements should not be construed to
mean that the presence of at least two witnesses is
mandatory for a marriage ceremony to exist.
(*Case: Ronulo vs. People of the Philippines,
728 SCRA 675[2014]). What constitutes marriage
ceremony therefore is, the personal appearance of
the parties before a solemnizing officer and in the
presence of the latter they personally declare that
they take each other as husband and wife. It can
be at the chamber of the judge or in the
46
courtroom or elsewhere (as per request of the
parties in a sworn statement to that effect).
Suggested case to read: Trinidad vs, CA, 289
SCRA 188; *Macua Vda. De Avenido vs. Avenido,
714 SCRA 447
Art. 4- EFFECTS:
“ The absence of any of the essential
or formal requisites shall render the
marriage void ab initio, except as stated in
Art. 35(2) [those solemnized by any person
not legally authorized to perform marriages
unless such marriages were contracted with
either or both of the parties believing in
good faith that the solemnizing officer had
the legal authority to do so). * this is called
PUTATIVE MARRIAGE or one which is ordinarily
void because of the lack of authority of the
solemnizing officer but VALID because of the
Good Faith of the parties.
A defect in any of the essential
requisites shall render the marriage voidable
as provided for Under Art. 45
An irregularity in the formal requisite
shall not affect the validity of the marriage
but the party or parties responsible for the
irregularity shall be civilly, criminally and
administratively liable”.
>marriage is valid
1.) ABSENCE of essential requisites:
Examples:
*effect: Marriage is VOID
1. marriage solemnized in a place
other than the church
* this is a ground for DECLARATION OF NULLITY OF
2. absence of two witnesses who
MARRIAGE are of legal age or without the required supporting
papers
* same effect if there is absence of the formal 3. issuance of a license where
requisite. neither of the parties reside
4. absence of a marriage
contract
> take note: absence of marriage ceremony
5. issuance of a marriage license
renders the marriage void. Thus, a marriage where even without the party showing parental consent
the parties just made to sign the marriage or advice when required, or in the absence of
contract by the solemnizing officer who was in a posting of notice or publication
hurry for another appointment is void, (Case: 6. failure to undergo marriage
Morigo vs. People, GR. No. 145226 Feb. 6, counseling or payment of required fee for marriage
2004). license.

> Take Note: WHO MAY ATTACK VALIDITY OF

2.) DEFECT- in any of the essential requisites.
MARRIAGE:
>marriage is VOIDABLE
* For VOID marriage- anyone
-imprescriptible
> presence of the vices of consent (fraud, force,
intimidation, undue influence, violence, mistake)
For VOIDABLE marriage- only parties to the
marriage during their lifetime
>ground for annulment of
Marriage.
Art. 5- Parties to a marriage

3.) IRREGULARITY in the FORMAL Requisites:

47
“ Any male or female of the age of eighteen
(18) years or upwards not under any of the
impediments mentioned in Art. 37 (blood
relationship/incestuous) and 38 (against
public policy), may contract marriage.
> MALE and FEMALE; 18 years and above;
>under the Civil Code-14&16 (but this age is rather
young)
shall be signed by the contracting parties
and their witnesses and attested by the
solemnizing officer.
In case of a marriage in articulo mortis,
when the party at the point of death is
unable to sign the marriage certificate, it
shall be sufficient for one of the witnesses to
the marriage to write the name of the said
party, which shall be attested to by the
solemnizing officer.

> Take Note: marriage between first cousins who >appearance of parties before the solemnizing
are both Filipinos abroad is void as this is against officer is sufficient with their at least two witnesses.
our public policy, even if the marriage there is
valid.
>PROXY Marriage:
> Take note: Incestuous marriage is void-
whether the relationship between the parties is * between Filipinos or mixed
legitimate or illegitimate. As long as the
relationship is in the direct line, the marriage is a. if celebrated here- VOID
void. b. if celebrated abroad- VALID under the principle
of - LEX LOCI CELEBRATIONIS. Reason: because it
is not one of those marriages which are
Art. 6- Ceremony in Marriage celebrated abroad (provided for under Art. 26(1)
which is considered void). Inclusio unius est
exclusio alterius applies. Besides the rule is, in case
“ No prescribed form or religious rite for of doubt, the presumption is in favor of the
the solemnization of the marriage is required. validity of marriage.
It shall be necessary, however for the
contracting parties to appear personally before *between foreigners
the solemnizing officer and declare in the
presence of not less than two witnesses of
legal age that they take each other as >not possible in the Philippines but we consider
husband and wife. This declaration shall be proxy marriages between foreigners abroad
contained in the marriage certificate which as valid here.

48
 Registrar for the issuance of marriage license
He could not solemnize mixed marriage).
Art. 7- Solemnizing Officers

* Marriage may be solemnized by: >Take Note: mayors are excluded in the Family
Code but are authorized by RA 7160, The Local
1.) Any incumbent member of the judiciary Government Code). But, only within his territorial
within the court’s jurisdiction. jurisdiction. Otherwise, the marriage is void.

2.)Any priest, rabbi, imam, minister of any

church or religious sect duly authorized by his >Take note of the following:
church or religious sect registered with the
civil registrar general, acting within the limits 1. a vice mayor or
of the written authority granted him by this Sangguniang Bayan member acting as Mayor can
church or religious sect and provided that at solemnize marriage
least one of the contracting parties belongs
to the solemnizing officer’s church or 2. a marriage solemnized
religious sect; by a judge outside his jurisdiction results only in
“irregularity in the formal requisite”, which while
3.) any ship captain or airplane chief in it may not affect the validity of marriage, it may
cases mentioned in Art. 31 (Marriage in subject the officiating official with administrative
articulo mortis, between passengers and liability, (Case: Navarro vs. Judge Domagtoy,
crew, while in transit) 72 SCAD 328)

4.) any military commander of a unit to

which a chaplain is assigned, in the absence 3. ambassadors cannot
of the latter, during a military operation, solemnize marriage anymore.
likewise also in cases mentioned in Art. 32
(marriage in Articulo Mortis between persons 4. a Filipino consul
within the zone of military operation whether vacationing in the Philippines cannot solemnize
members of the armed forces or civilians) marriage here because it is outside of the area he
holds office. The marriage would be void for lack
5.) any consul general, consul or vice consul in of authority.
the case provided for under Art. 10 (between
both Filipino citizens abroad only and that 5. the nature of Putative Marriage
he could also act as the Local Civil

49
 marriage but subjects the solemnizing officer to
 A priest of the Roman Catholic Church, an an administrative charge.
imam of the Muslims, a rabbi of the Jews or a
minister or pastor may solemnize marriage
provided the following requisites are present:
Art. 9- Marriage License (who can issue)
1. must be authorized by his
church/ religious sect
“A Marriage license shall be issued by the
2. must act within the limits of Local Civil Registrar of the city or the
the written authority granted him municipality where either of the contracting
party habitually resides except in marriages
3. at least one of the where no license is required in accordance
contracting parties belongs to the solemnizing with Chapter 2 of this title”.
officer’s church or religious sect.
> This is a formal requisite, violation of which
does not affect the validity of marriage. But,
Art. 8- Venue of Marriages: the parties responsible for such irregularity can
be held liable.

“ The marriage shall be solemnized publicly in

the chambers of the judge or in open court, in
the church, chapel or temple, or in the office
of the consul general or vice consul as the
case may be and not elsewhere, except in the
cases of marriage contracted at the point of
death or in remote places in accordance with
Art. 29 of this Code, or where both of the
parties request the solemnizing officer in
writing in which case the marriage may be
solemnized at a house or place designated by
them in a sworn statement to that effect”.
Art. 10.
“ Marriages between Filipino citizens abroad
may be solemnized by a consul-general,
consul or vice consul of the Republic of the
Philippines. The issuance of the marriage
license and the duties of the local civil
registrar and of the solemnizing officer with
regard to the celebration of marriage shall be
performed by said consular official.”

> Take note: the requirement of venue is not >Only marriage between Filipinos may be
mandatory but directory in nature, hence violation solemnized by consuls and vice consuls.
of which does not affect the validity of the

50
 >if cannot be obtained- application & Sworn
Statement to that effect
Art. 11- Application for Marriage License
should be accompanied by:
Art. 16- Marriage counseling certificate

Art. 12- birth certificate or Baptismal Art. 17- Duty of the Local Civil Registrar
Certificate of the parties.
> upon receipt of the application, the LCR
>except when parties are accompanied by their prepares a notice to be posted at a bulletin
parents who would attest to their age or they board outside his Office for ten (10) consecutive
looked their age. days. The marriage license will be issued only
after the lapse of ten(10) days.

* mere formality only.

Art. 13- if either of the parties has been
previously married, the death certificate of the
Art. 18- where there is information of an
deceased spouse or the judicial decree of
impediment
absolute divorce, annulment of marriage or
declaration of nullity of marriage.
>The Local Civil Registrar will just take down of
the impediment but could not refuse issuance of
Art. 14- Parental Consent:
the marriage license unless ordered by a Court
not to do so.
> for 18-21 yrs. old - Parental Consent, otherwise
marriage is voidable
Must be attached to the application of marriage
Art. 19- Fees to be paid to the LCR
license

> P300.00 for the issuance of the Marriage

Art. 15- Parental Advice:
License. For indigents its free.

> for 21-25 yrs. old- Parental advice

>if none- Voidable
51
Art. 20- Life of the Marriage License
“ The license shall be valid in any part of the
Philippines for a period of 120 days from the
date of issue, and shall be deemed
automatically cancelled at the expiration of
said period if the contracting parties have
not made use of it. The expiry date shall be
stamped in bold characters on the face of
every license issued.
>marriage solemnized using an expired marriage
license is void.
Art. 21- Certificate of Legal Capacity to marry
“ When either or both of the contracting
parties are citizens of a foreign country, it
shall be necessary for them before a Marriages
marriage license can be obtained, to submit
a certificate of legal capacity to contract
marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from
other countries shall, in lieu of the certificate of
legal capacity herein required, submit an
affidavit stating the circumstances showing
such capacity to contract marriage.
52
> required where one or both are foreigners. The
foreigner need not present his birth certificate.
Query: What is the effect if marriage is
solemnized without the certificate, is the marriage
still valid. YES, because this is not one of the
essential requisites of marriage.
> The Certificate is issued by the foreigner’s
diplomatic or consular official and this ensures
that the foreigner is capacitated to marry. This is
so because the person’s capacity to marry is
governed by its national law. Take note: Thus,
even if a foreigner is below 18, he can
contract marriage here in the Philippines if
his national law allows him to marry at that
age.
> take note: if both parties are foreigners, and
they want to marry here before their consul
assigned in the country, they can marry even if
they have no marriage license if their law does
not require so. The marriage is VALID except:
1.) IMMORAL, BIGAMOUS and POLYGAMOUS
2.) UNIVERSALLY CONSIDERED INCESTUOUS
marriages such as:
a.) between ascendants and descendants of any
degree whether legitimate or illegitimate
b.) collateral line between, brothers and sisters of
the full or half blood whether the relationship is
legitimate or illegitimate.
 matter of Intestate Estate of Deceased Josefa
Art. 22- Marriage Certificate Delgado and Guillermo Rustia vs. Heirs of
Marciana Rustia vda. De Damian, et.al., 480
SCRA 334). Thus, he who alleges that parties
“ The marriage certificate, in which the are not in fact marriage should prove it. And,
parties shall declare that they take each more importantly, it is up to the person who is
other as husband and wife, shall also state: attacking the validity of marriage to show
satisfactory evidence to rebut the presumption of
1. the full name, sex and age of each validity. The evidence to prove the invalidity
contracting party; of marriage may even be presented for the
2. the citizenship, religion and first time on appeal. Such that, even if a party
habitual residence; failed to assert the absence of marriage license
3. the date and precise time of the in a nullity of marriage case, because his ground
celebration of the marriage; is psychological incapacity, the SC declared the
4. that proper marriage license has marriage void on the ground of a marriage
been issued according to law, except in license, if the evidence on record shows this fact.
marriages provided for under Chapter 2 (Case: Sy vs. Court of Appeals, GR No.
hereof; 127263, April 12, 2000).
5. that either or both of the
contracting parties have secured the parental
consent in appropriate cases.
6. that either or both of the Art. 23- Duty of the solemnizing officer.
contracting parties have complied with the
legal requirement regarding parental advice
in appropriate cases; and 1. to furnish either of the
7. that the parties have entered into contracting parties the original of the
a marriage settlement, if any, attaching a marriage certificate;
copy thereof.
2. to send the duplicate and
> the best evidence that a marriage took place triplicate to the LCR not later than 15 days
between the parties is the marriage certificate. after the marriage
However, its absence does not invalidate a
marriage because this is not a requisite for a 3. to retain on its file the
valid marriage. The rule is, parties apparently quadruplicate copy of the marriage
living together in marriage enjoy the presumption certificate, original of the marriage license
that they are in fact marriage. (Case: in the and affidavits of parties if any re: Art. 8

53
 Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a
Art. 24- Duty of the LCR: divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise
1. to prepare required documents have capacity to remarry under Philippine
2. to administer oath Re: affidavits law. (as amended by Executive Order No.
and other documents relative to the marriage 227, July 17, 1987)

>One of the most controversial and important

Art. 25- Duty of the LCR articles in the Family Code.

>Take Note: Rule for Validity of Marriage

1. to enter all applications celebrated abroad:
for marriage license in its registry book.
2. to enter in said book date
marriage license was issued and other matter > ( For: FILIPINOS)
in relation thereto.
General Rule: if valid where celebrated, it is
valid also here, except: Art. 35:
>Take note: Non compliance of these duties
does not invalidate the marriage. >par. (1) - Parties are below 18 even with consent
of parents and guardians.
>par. (4) - bigamous/polygamous
Art. 26- Lex Loci Celebraciones Rule in Marriages.
Marriage: >par. (5) - those contracted through mistake of one
contracting parties as to the identity of the others.
“ All marriages solemnized outside of the >par. (6) - those subsequent marriage that are void
Philippines, in accordance with the laws in under Art. 53 of the Family Code and thus is,
force in the country where they were *where after judgment of annulment or nullity of
solemnized, and valid there as such, shall also marriage, no registration of:
be valid in this country, except those a. judgment
prohibited under Articles 35(1), (4), (5) and b. decree of annulment
(6), 36, 37 and 38.” c. partition and distribution of property as well as
delivery of presumptive legitimes.

54
Art. 36 - refers to Psychological incapacity
3.) decree is obtained at the instance of foreigner
37 - Incestuous spouse
marriages
4.) the foreign spouse acquires capacity to remarry
38 - void marriages by reason of public policy. by virtue of divorce decree.

(BETWEEN FILIPINO and ALIEN, mixed
marriage)
>covered by the 2nd par. of Art. 26
> Rule is: if validly celebrated and divorce
is thereafter obtained by the alien spouse,
capacitating him/ her to remarry the Filipino spouse
shall have capacity to remarry. Take note: this is
applicable to former Filipino citizens. ** Take
note however that, only the Filipino spouse can
invoke the second paragraph of Art. 26, an alien
spouse cannot (Case: Corpuz vs. Sto Tomas, 628
SCRA 266) but this notwithstanding, an alien
spouse is allowed to file a petition for recognition
of foreign judgment on divorce in Philippine courts
(Case: Fujiki vs. Marinay, 700 SCRA 69,
[2013]).
>QUERRY: Is it applicable if the foreigner was once
a Filipino Citizen? YES, by implication- although
the law is silent. Reckoning period- citizenship at the
time divorce is obtained, (Case: Republic v.
Orbecido G.R. No. 154380- Oct. 5, 2005, wife is
the one who obtained divorce here)
> **Take note: IMPORTANT THINGS TO
KNOW ON ABSOLUTE DIVORCE OBTAINED
ABROAD:
 four(4) premises to consider:
a. divorce obtained abroad by an alien married to
a Philippine national may be recognized in the
Philippines, provided that the divorce decree is
valid according to the national law of the foreigner
(Case: Bayot vs. CA, 570 SCRA 472)

> Take note: The Four Requisites for Art. 26 to b. reckoning point is not the citizenship of the
apply: divorcing parties at birth or at the time of marriage,
but their citizenship at the time the valid divorce
is obtained and,
1.) the marriage must between a Filipino and a
foreigner
c.an absolute divorce secured by a Filipino married
2.) there must be valid foreign divorce decree to another Filipino is contrary to our concept of

55
public policy and morality and shall not be
recognized in this jurisdiction.
d.an absolute divorce obtained by a Filipino
spouse married to a foreigner is VALID even if it
is the Filipino spouse who filed the divorce. This is
so because, the divorce decree makes the
foreigner able to remarry. [*Case: Republic vs.
Marelyn Manalo, April 2018]. This now solves
the absurd situation where a Filipino is still
married to a foreigner who is no longer
married to him/her. This is now the exception
to the exception to par. 2 of Art. 26].
>**Notes on recognition of a foreign divorce
judgment by the Philippine Courts.
1. Philippine Courts do not
take judicial notice of foreign judgments and laws,
hence our law on evidence requires that both the
divorce decree and the national law of the alien
must be alleged and proven like any other fact.
(*Case: Ando vs. Department of Foreign
Affairs, G.R. No. 195432, Aug. 27, 2014)
Presentation of the divorce decree is insufficient,
(Case: Garcia vs. Recio, G.R. No. 138322,Oct.
2, 2001).
2. The recognition may
be made in an action instituted specifically for said
purpose or in another action where the party invokes
the foreign decree as an integral aspect of his
claim or defense. Thus, it could be made in a
special proceeding for cancellation or correction of
entries in the Civil Registry under Rule 108 of
the Rules of Court. (*Case: Corpuz vs. Sto.
56
Tomas, 628 SCRA 226). Same ruling was
adapted in the case of *Fujiki vs. Marinay,
700 SCRA 69 [2013]).
3.Registration of the foreign divorce decree in the
civil registry without the requisite judicial
recognition is patently void and cannot produce
any legal effect. ( Corpuz case).
4.AM No. 02-11-10 SC [or the rule on Declaration
of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages] does not apply
in a petition to recognition of foreign judgment
relating to the status of a marriage where one of
the parties is a foreign national. In short, the
petition does not require re litigation ( Fujiki case).
>QUERRY- is there a need for judicial declaration
for Filipino spouse to remarry – NONE (although
divorce decree must be proven in Philippine Court in
an action for Declaratory relief as in the Recio case)
- still debatable
> *CASE: (Van Dorn v. Romillo, G.R. No. 68470,
October 8, 1985, 139 SCRA 139) Ruling: a
Filipino married to a foreigner and the latter divorced
her. The Filipino came back here and then engaged
in business. Her foreigner spouse could not take
part in the profits/ properties of the Filipino spouse
because marriage is already severed.
> *CASE: (Quita v. Quita, 300 SCRA 406
Ruling: Foreign spouse could no longer be an heir to
the Filipino Spouse once a divorce is obtained.
> *CASE: (Pilapil vs. Ibay Somera, 174 SCRA
653) Ruling: Filipina is married to a German.
The German divorced her and then, the former
filed an adultery case against the Filipina. The SC
ruled, the German husband has no more standing
to file an adultery case against his former
Filipino wife because he is already considered
divorced under his national law .
> *CASE: (Llorente v. CA, 345 SCRA 592 take
note that in this case both parties are former
Filipino citizens and were married here ) Ruling:
*Prior to the Orbecido case, it was held that a
divorce obtained by Filipino against her foreigner
spouse is not valid here. But if the Filipino
spouse has already acquired the citizenship of her
husband by virtue of their marriage and thereafter
obtained a divorce against him, such divorce is
valid here not because of Art. 26 but because of
our adherence to the nationality principle in so far
as the status of a person is concerned. Take
Note: In this case, SC recognized only the validity
of the divorce ( even between Former Filipino
citizens) but it stopped there, saying that as far as
the share in the conjugal estate, status of the
children are concerned and the intrinsic validity of
will is concerned- still the courts will determine ( Art
15 & 26 Civil Code).
57
> *CASE: (ROEHR v. Rodriguez 404 SCRA
495) Ruling: Although foreign divorce is
recognized in the Philippines, its legal effect must
still be determined by our courts (ex: custody of
children) QUERY: Are our Courts bound to
recognize the effects of a foreign divorce decree?
NO – it is still our courts which will determine its
effects.
> *CASE: (Garcia Recio vs. Recio, G. R. No.
138322, October 2, 2001) Ruling: The divorce
obtained by a foreign spouse abroad does not
ipso facto entitle the Filipino spouse to remarry.
Before he/she can remarry, he/she must prove in
Court two things: 1) fact of divorce obtained by
foreign spouse and 2) the fact that said spouse is
capacitated by his national law to remarry after
the divorce. The action to be filed in Court is
Declaratory Relief.
> *CASE: (Bayot vs. CA, GR Nos.
155635/16379, November 7, 2008) Ruling:
The divorce obtained by a former Filipino citizen is
valid here and so therefore, once this is
established as a fact, there is no need for said
spouse to file annulment of marriage on the
ground of psychological incapacity. Hence, the
dismissal of the petition for annulment of marriage.
Other Suggested Cases to read: Catalan vs.
Catalan-Lee, 665 SCRA 487; Barnuevo vs. Foster,
29 Phil. 606; Juliano Llave vs. Republic, 646 SCRA
637; *Iwasawa vs. Gangan, 705 SCRA 699
Art. 27- Marriage in articulo mortis Art. 29- “ refers to the execution of an
affidavit by the solemnizing officer and its
“ In case either or both of the contracting contents”
parties are at the point of death, the
marriage may be solemnized without the
necessity of a marriage license and shall
remain valid even if the ailing party Art. 30- “refers to the sending of the
subsequently survives.” Affidavit to the LCR and the original copy of
the Marriage contract- which must be within
>marriage in articulo mortis is when one of the 30 days from the solemnization of the
parties is at the point of death. No need to have a marriage.”
license and can be solemnized by any of the
authorized solemnizing officers.

Art. 31- “ refers to the authority of ship

Art. 28- Marriage in a far and remote place captain and airplane pilot to solemnize
marriage in articulo mortis not only while the
“ If the residence of either party is so ship is at sea or the plane is in flight, and also
located that there is no means of during stopovers or ports of call.
transportation to enable such party to appear
personally before the local civil registrar, the
marriage will be solemnized without the
necessity of a marriage license”. Art 32- “refers to the authority of the
commander of a military court or commissioned
>this is allowed but the solemnizing officer must officer to solemnize marriage in articulo mortis
execute an affidavit after the celebration of during military operations.”
marriage stating that he solemnized a marriage at
a far and remote place and he ascertained the age, Art 33- “ marriages among Muslims or
and relationship of the parties and that there is no among members of the ethnic cultural
legal impediment to marry. communities may be performed without the
necessity of marriage license, provided they
> purpose: to legitimize the union of people living are solemnized in accordance with their
in a far and remote place. customs, rights or practices.”

58

> applicable also to marriage among members of
the ethnic cultural communities.
>Code of Muslim Personal Laws of the
Philippines dated February 4, 1977- is the
governing law on persons and family relation
between Muslims.
> Take note: Under this law, marriage license is not
required for the validity of Muslim’s marriages. But
this has been qualified by the Family Code by
imposing requirements:
a. marriage must be in accordance with their
customs, rites or practices
b. both parties must be Muslims because of
the word “among”.
c. if it is a mixed marriage, the requirement of
marriage license cannot be dispensed with.
Art. 34 – Ratification of Marital Cohabitation
“ No license shall be necessary for the
marriage of man & woman who have lived as
husband and wife for at least five (5) years
and without implement to marry each other.
The contracting parties shall state the
foregoing facts in an affidavit before any
59
person authorized by law to administer oaths.
The solemnizing officer shall also state under
oath that he ascertained the qualification of
the contracting parties and found no legal
impediment to the marriage.”
> Only an Affidavit of Cohabitation is needed.
Purpose of the law: to avoid exposing the parties
to humiliation, shame and embarrassment that may
come with publication relative to the issuance of
marriage license.
>Two requisites must concur:
c. the husband and the
wife must have live together for a continuous period
of five years and exclusively with each other
d. there must be no legal
impediment for them to marry each other.
> Take note: There are different views to this
because of the ruling in Manzano vs. Sanchez,
Administrative Matter No. MTJ 001329, March
8, 2001, to this effect, Under Art. 34 of the Family
Code, while these two requisites must concur,
they do not qualify each other unlike under the
Civil Code, meaning- during the 5 year cohabitation
period, it is not necessary that they have no legal
impediment to marry each other, it is enough
that they had no legal impediment at the time
they decide to marry each other. Simply put, the
absence or presence of legal impediment should
only be considered at the time of the celebration of
marriage. [This is NOT plausible otherwise, we will
be sanctioning immorality and encouraging parties
to have common law relationship and placing them
on the same footing with those who lived faithfully
with their spouse consistent with the ruling in Ninal
vs. Bayadog.] Take note though of the Case of
Republic vs. Dayot, 550 SCRA 435, wherein SC
said, the 5-year cohabitation period under Art. 76 of
the Civil Code (Art. 34 of the Family Code),
means, a five year period computed back from
the date of the celebration of marriage and
refers to a period of legal union had it not
been for the absence of a marriage. Be that
as it may, take note that the marriage
contemplated in the Dayot case took place before
the effectivity of Family Code and decided in the
light of Art. 76 of the Civil Code. Hence it is not
safe to say that the Manzano ruling is abandoned
by the ruling in the Dayot case.
>** Take note: The judge who will solemnize the
marriage cannot notarize the Affidavit of
Cohabitation, his only duty is to solemnize the
marriage and to determine whether the parties
actually lived together as husband and wife for a
period of five(5) years prior to the marriage without
legal impediment, (Case: Tupal vs. Rojo, 717
SCRA 236[2013]). If the five year cohabitation
requirement is not met, the marriage is void for
lack of marriage license, (Case: Republic vs.
Dayot, 550 SCRA 435). ** Take note further
that: the falsity of the Affidavit of Cohabitation
cannot be considered as a mere irregularity in the
formal requisite of marriage, ( Case: De Castro
vs. Assidao- de Castro, 545 SCRA 162 [2008].
And lastly, take note that, the falsity of the
60
Affidavit of Cohabitation cannot be used as a
defense in a Bigamy Case, (Case: Santiago vs.
People, G.R. No. 200233, July 15, 2015).
** THE COVERAGE OF A.M. No. 02-11-10-SC
[Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages] which took effect on March 15,
2003.
1.applies only to marriages covered by the Family
Code, which took effect on August 3, 1988.
2.Covers only proceedings that took place after
March 15, 2003. It does not cover the following:
a.marriages celebrated during the effectivity of the
Civil Code
b. petitions for nullity of marriages filed prior to
March 15, 2003
 **WHO CAN FILE PETITION FOR
DECLARATION OF NULLITY and/or
ANNULMENT OF MARRIAGE
>under the Civil Code (i.e., prior to the effectivity
of the Family Code
*though the law is silent on who is the
proper party, the Supreme Court in the case of
Carlos vs. Sandoval (574 SCRA 116[2008]) said
that the silence of the Civil Code cannot be
construed to mean anyone can bring the action-
the better rule is, the plaintiff must still be the
party who stands to be benefited by the suit for it
is basic that the action must be prosecuted or
defended in the name of the real party in interest.
>**Under A.M. No. 02-11-10-SC
*only the husband or wife of the
subsisting marriage can file except if the ground
is bigamy, (Case: Juliano Llave vs. Republic, 646
SCRA753[2010], same ruling was reiterated in
the case of Fujiki vs. Marinay
**Lastly, take note that: in cases where A.M.
No. 02-11-10 SC applies, the ruling allowing the
children of a former marriage can file petition
for declaration of nullity of marriage even after
the death of their father applies. Said ruling was
laid down in the cases of Ninal vs, Bayadog and
was confirmed in the case of Garcia- Quiason
vs. Belen, 702 SCRA 707 [2013]).
>**WHERE TO FILE
>In the Regional Trial Court where the plaintiff
resides. It will be tried by the Family Court.
>Restriction: “the trial Court has no jurisdiction to
nullify marriages” in a Special Proceeding for
cancellation or correction of entry under Rule 108
of the Rules of Court. (Case: Braza vs. The City
Civil Registrar Himamaylan City, Negros
Occidental, 607 SCRA 638 [2009]).
61
>** Take note however: of the ruling in the case
of Republic vs. Olaybar, 715 SCRA 605[2014])
where the Court allowed the Petition for the
Cancellation of Entry [ re:wife portion] in the
marriage contract of Melinda Olaybar because here,
the case is one of identity theft, hence in reality,
there was no marriage that took place making
correction of entry (under Rule 108) applicable.
Art. 35- Void Ab Initio Marriage
(Articles 35, 36, 37 and 38)
“ The following marriages shall be void from
the beginning:
1) those contracted by any party below 18
years of age even with the consent of parents
& guardians
2) those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the
solemnizing officer had the legal authority to
do so.
3) those solemnized without a license, except
those covered by the preceding chapter.
4) those bigamous or polygamous marriage
not falling under Art. 41
5) those contracted through mistake of one the parties not waiting for the needed three
contracting party as to the identity of the months.
other; and

6) those subsequent marriages that are void >Take note: Two kinds of defective
under Art. 53. marriages:

>Take note: the law requires that the following 1. Void- defective from
should be registered in the proper civil registry or the very start. Those enumerated under this Article
the registry of property, because if they are not, are defective because they fail to comply with
the marriage is void. Further, it should be the essential and formal requisites of marriage
noted that even if the marriage is celebrated under Art. 2 and 3 of the Family Code.
abroad and valid there as such (between
Filipinos), once this is not complied with, the
marriage is void. 2. Voidable- valid until it
is annulled.

1. Judgment
2. Annulment decree > DISTINCTIONS:
3. partition/ distribution of property of spouses and
delivery of presumptive legitime, (otherwise it does 1. V- can never be ratified. *This is the reason
affect 3rd person) why an action to declare a marriage void is
imprescriptible.

VD- can generally be ratified by free cohabitation.

> Take note: Two kinds of impediments in *An action to annul marriage prescribes.
marriage:
2. V- always void.
1. Diriment impediments- they make the VD- valid until it is
marriage void. Ex: blood relationship, prior existing annulled.
marriage;
3. V- needs judicial declaration that it is void for
2. Prohibitive impediments- they do not affect purposes of remarriage
the validity of marriage, but criminal prosecution VD- needs judicial decision annulling it.
may follow. Ex: unfavorable parental advice with

62
 4. V-can be attacked directly 6. V- the children are called illegitimate children,
or collaterally except under Art. 54

>means that the nullity of a void marriage can VD- * if conceived BEFORE the annulment, the
be raised even after the death of the parties. children are legitimate.
And, could be brought up by the heirs.
* if conceived AFTER Annulment they are
>as a general rule, void marriage can only be illegitimate.
assailed by the parties to the marriage as per (AM
No. 02-11-10 SC, Sec. 2 (a).
> Take note: Once an action for nullity of
> collateral attack-means the nullity of the marriage on the ground of psychological
marriage is not the principal or main issue in a incapacity is DENIED, a petitioner could not go
case but it is necessary in the resolution of the to the Court and file an action to declare his
main issue. Hence, the nullity of a marriage can marriage void on the ground of lack of
be brought up in a case of SETTLEMENT OF marriage license. He is already barred by res
ESTATE, (Case: Domingo vs. CA, 226 DCRA judicata. The different grounds for nullity of
572) and in an action for SUPPORT, HEIRSHIP, marriage did not mean different causes of action,
LEGITIMACY or Illegitimacy, DISSOLUTION of ( Case: Mallion vs. Alcantara, GR No. 141528,
PROPERTY REGIME, CLAIM FOR DEATH BENEFITS October 31, 2006).
etc. (Case: Ninal vs. Bayadog; de Castro vs.
de Castro, GR No. 160172, Feb. 13, 2008).
>Take note: A party could not invoke good faith
> but, direct attack is necessary for purposes of in saying that his marriage is valid. Good faith in
remarriage hence, it is only the party seeking entering a marriage is immaterial and it does not
remarriage who can file an action for nullity of his validate a marriage. Hence, one could not say, I
marriage. believe that I was 18 when I got married, therefore
my marriage is valid”. Only one instance where
VD- there must always be a direct proceeding; good faith of the parties made their marriage valid,
such marriage could not be assailed collaterally. i.e., when the parties believed that the solemnizing
officer is authorized when in fact he is not, (Art.
5. V- there is no absolute community of property. 35(2).

VD- there is community property.

63
Other Suggested Cases to read: Santos vs.
Santos, 737 SCRA 637, Republic vs. Cantor, 712
SCRA 1; Republic vs. Granada, 672 SCRA 432
Art. 36. Void by reason of Psychological
Incapacity [ based from Canon 1095 par. 3]
with the essential marital obligations because of
psychological reason- not insanity or mental
illness because an insane does not know what
he is doing while a psychologically incapacitated
person knows or is aware of what he is doing but
simply, he cannot perform his marital obligations
because of psychological reasons.

>Take note: Three essential characters for

“ A marriage contracted by any party, who, at Psychological Incapacity to exist:
the time of the celebration, is
psychologically incapacitated to comply with 1. Juridical antecedent- it must
the essential marital obligations of marriage, be existing at the time of celebration of marriage.
shall likewise be void even if such incapacity Rooted in the history of the party, antedating the
becomes manifest only after the marriage though made manifest only during the
solemnization. (as amended by E.O. No. 227, marriage.
July 17, 1987)
2. Gravity- must be serious. Incapable of
> Take note: the Family Code did not give performing his ordinary marital obligations.
specific definition of what psychological incapacity
is. This is to give leeway for the Courts to 3. Incurability- not curable; or even if curable, it is
appreciate the case on a “case to case” basis. beyond the means of the party involved. (Case:
Jurisprudence and civilists confined psychological Santos vs. CA, G.R. No. 112019 Jan. 4, 1995,
incapacity to “the most serious cases of 58 SCAD 17) [i.e. wife’s failure to come home and
personality disorders clearly demonstrative of communicate does not constitute psychological
an utter insensitivity or inability to give incapacity]
meaning and significance to the marriage”.
Moreover, it refers to no less than mental (not
> In a more recent case, the SC said, “for
physical) incapacity that causes a party to be truly
psychological incapacity to serve as a ground to
incognitive of the basic marital covenants (as
nullify the marriage, the incapacity must consist
provided for under Art. 68-71 as well as Art. 220,
of the following: 1) true inability to commit
221 and 225 of the Family Code) that
oneself to the essentials of marriage; 2) this
concomitantly must be assumed and discharged by
inability to commit oneself must refer to the
the parties to a marriage. In short, it refers to
essential obligations of marriage, the conjugal act,
the inability of a party to the marriage to comply
the community of life and love, rendering of
64
mutual help, the procreation and education of
children ; and 3) the inability must be tantamount
to psychological inability”, (Case: Yambao vs.
Republic and Yambao, GR No. 184063, January
24, 2011). In the more recent [*case of Kalaw
vs. Fernandez, 745 SCRA 512, (2015), SC
relaxes once again the appreciation of
“psychological incapacity” by applying the
parameters set forth in the [*Case of Ngo Te-
vs. Yu Te, 579 SCRA 190, Feb. 13, 2009].
> Take note: that even the incapacitated person
can file an action to nullify his marriage. And one
who is declared psychologically incapacitated can
still marry again because psychological incapacity is
relative. The pari delicto rule does not apply here,
(*Case: Halili vs. Halili and Republic, GR No.
165424, June 9, 2009). [in this case the RTC
granted the petition but was reversed by CA and
CA’s decision was affirmed by SC but upon MR, SC
declared the marriage void] In relation to this,
take note also of the (*Case: Velasco vs.
Velasco, GR No. 36075, February 16, 1995)
where the SC nullified the marriage when both
parties are at fault but the defendant’s (wife) fault
is graver.
> Take note: Expert testimonies of psychiatrist or
psychologist is not a requirement or is not a
condition sine qua non in the determination of
psychological incapacity. The Court may or may not
consider said testimony and may base its findings
on the totality of evidence presented, (*Case:
Marcos vs. Marcos, GR No. 136490, October 19,
65
2000). But, the SC also said, in a more recent
case that, expert testimonies evaluating the
behavioral pattern of the person alleged to be
psychologically incapacitated are extremely
helpful, hence though not required, it is
nonetheless helpful to the Court, (*Case: Matias
vs. Dagdag, GR No. 109975, February 9, 2001).
> Take note: No need for a Certification (stating
his agreement or opposition to the petition) from
the OSG before a case under Art. 36 be decided
by the Court. This requirement laid down in the
Molina doctrine ( how psycho incapacity should be
appreciated), was already removed by the New
Rules on Marriage, (Case: Rumbaua vs.
Rumbaua, GR No. 166738, August 14, 2009).
But, prosecutors still participate for purposes of
determining whether collusion exists between the
parties and to determine that the evidence
presented by petitioner are true and not fabricated.
>Take Note: of cases where SC granted the
petition under Art. 36
1. Chi Ming Tsoi vs. CA, 266 SCRA 325- where
the SC ruled, the refusal of the husband to have
sex with his wife even if he is physically capable
of doing so is a manifestation of psychological
incapacity. The same ruling in Tsoi vs. CA, 78
SCAD 57, where SC said “ten months without sex is
enough evidence of serious personality disorder for
union without sex is useless.”
2. Antonio vs. Reyes, GR No. 155800, March
10, 2006, where SC ruled, wife’s defect of being a
congenital liar is a form of psychological incapacity.
3. Te vs. Te, GR No. 161793, February 13,
2009, where SC declared the marriage of a wife
suffering from dependent personality disorder
while the husband is suffering from narcissistic and
anti social personality disorder.
4. Socorro Reyes vs. Reyes, GR No. 185286,
August 18, 2010- lack of personal examination
and interview of the respondent or any person
sought to be declared as psychologically
incapacitated do not per se invalidate the
testimonies of the doctors. Neither do their
testimonies constitute hearsay especially where
there are other sources of information such as the
child, siblings and in laws.
> Take note: of cases where the SC found
that psychological incapacity does not exist.
1. Choa vs. Choa, GR No. 143376, Nov. 26,
2002- “mere showing of irreconcilable differences
and conflicting personalities in no wise constitute
psychological incapacity.”
2. Dedel vs. CA, GR No. 151867, January 29,
2004- “disordered personality is not a ground for
declaring marriage void. Sexual infidelity or
66
perversion and abandonment do not constitute
psychological incapacity.
3. Siayngco vs. Siayngco, GR. No. 158896, Oct.
27, 2004,-“an unsatisfactory marriage is not a
void marriage. Whether or not psychological
incapacity exists depends crucially on the facts of
the case.”
4. Republic vs. Hamano, GR No. 149498, May
20, 2004- “the rule on psychological incapacity
applies even if the spouse is a foreigner. The
husband’s act of abandonment is doubtlessly
irresponsible but it was not proven to be due to
some kind of psychological illness.
5. Republic vs. CA and Molina, GR No.
108763, February 13, 1997- “where SC laid
down the guidelines in determining psychological
incapacity. The guidelines were relaxed in the
recent case of Ngo Te vs. Yu Te, GR No. 161793,
February 13, 2009.
6. Ting vs. Ting, GR No. 166562, March 31,
2009- No case can be in “all fours” with another
case. Here there was failure of the petitioner to
prove the defects of the party at the time of
celebration of marriage.
7. So vs. Valera, GR No. 150667, June 5, 2009,-
“psychologist’s testimony and conclusion are not
sufficiently in depth comprehensive to warrant the
finding of psychological incapacity. The facts were
derived solely from the testimony of the petitioner
whose bias cannot be doubted.
8. Paz vs. Paz, GR No. 166579, February 18,
2010- “being a mama’s boy is not indicative of
psychological incapacity”.
9. Lim vs. Lim, GR No. 176464, February 24,
2010, -the witness’ “global conclusion” was not
supported by psychological tests properly
administered by clinical psychologist specially
trained in the test’ use and interpretation.
10. Ligeralde vs. Patalinghug, GR No. 168796,
April 15, 2010- Sexual infidelity, emotional
immaturity and irresponsibility do not constitute
psychological incapacity within the contemplation of
the law because the psychologist failed to identify
the root cause thus was not medically or clinically
proven to be incurable and permanent.
11. Toring vs. Toring, GR. No. 165321, August
3, 2010- failure to manage the family’s finances
resulting in the loss of the house intended for the
family does not constitute psychological incapacity-
for it is still essential –although from sources other
than the respondent’s spouse to prove the root
cause of the inability to perform marital obligations.
12. Marable vs. Marable, GR No. 178741,
January 17, 2011, where SC said, quarrels,
financial difficulties and womanizing are not
manifestation of psychological incapacities. Same
67
is true with, sexual infidelity of the wife when not
shown to be existing before the marriage, (Case:
Ochosa vs. Alano, GR No. 167459, January 26,
2011).
Art. 37- Incestuous Marriage, hence Void
“ Marriages between the following are
incestuous and void from the beginning,
whether the relationship between the parties
be legitimate or illegitimate:
1) between ascendants and descendants of
any degree; and
2) between brothers and sisters whether of
the full or half blood.
> this marriage is void because:
1. it would tend to create confusion of rights
and duties incident to family relations; 2) it is
abhorrent to the nature, not only of civilized men
but of barbarous and semi-civilized people and 3)
such intermarriages very often result in deficient
and degenerate offspring, which might amount to
the deterioration of the race.
> refers to marriages between closely related by
blood in the direct line whether legitimate or
illegitimate. Ex: parent-child; grandfather-grand
daughter and between siblings, even if they
marry abroad and valid there as such. Take
note of Art. 15.
> Take note: marriages between uncles and nieces
and aunties and nephews are not incestuous but
void because they are against public policy.
Art. 38- Marriages against public policy
“ The following marriages shall be void from the
beginning for reasons of public policy:
1. between collateral blood relatives, whether
legitimate or illegitimate up to the 4 th civil degree;
(first cousins)
2. between step parents & step children;
3. between parents-in –law and children in law;
4. between the adopting parent & the adopted child
5. between surviving spouse of the adopting parents
& the adopted child
6. between surviving spouse of the adopted child &
the adopter
7. between an adopted child and a legitimate child
of the adopter ;
8. between the adopted children of same adopter
68
9. between parties where one, with the intention to
marry the other, killed that other person’s spouse or
his or her own spouse. [from criminal motive to
dispose one’s spouse so the surviving spouse can
marry again]
> Take note: the nullity of marriage under this
relationship hinges on the relationship of the parties
to the marriage. Against public policy because
public policy frowns upon those who are closely
related by blood or artificial relationship such as
adoption [where an artificial relationship between
adopter and adopted child is created] from marrying
each other.
> the enumeration is exclusive. Hence, those not
enumerated therein are VALID marriages such as:
1. between the adopted and the parents of his
adopter. [because Adoption creates a relationship
between the adopter and the child alone]
2. between adopted and the illegitimate children of
his adopter.
3. between adopter and the relatives of his adopted
child
4. between the adopted and the former spouse of
his adopter OR between the adopter and the former
spouse of his adopted child.
5. between step brother and step sister
>Take note: Marriage between first cousins is no
longer an incestuous marriage but a marriage
against public policy.
> Take note: in the 9 th instance, the killing should
be animated by the intention to marry another
person. No need of criminal conviction. Mere
preponderance of evidence is sufficient.
Art. 39 – Prescriptive Period
“ The action or defense for the declaration of
absolute nullity of marriage shall not
prescribe. (amended by EO 227 dated Juy 17,
1987 and further amended by RA No. 8533
dated Feb. 23, 1989)
>No prescriptive period to declare a void marriage
void because a void marriage produces no effect
at all. In fact, the judicial decree merely confirms
the nullity, non existence or incipient invalidity of
the marriage.
> Take note: A subsequent marriage of one of the
spouses of a prior void marriage is itself void if
contracted before the prior marriage is declared
void, ( Case: Wiegel vs. Sempio Diy, 143 SCRA
499).
> Take note: That before this provision was
amended by RA No. 8533, when the ground
for declaration of nullity is psychological incapacity,
there is a prescriptive period of ten (10) years if the
69
marriage was celebrated before the enactment
of the Family Code in Aug. 3, 1988, if after, no
prescriptive period was given. NOW, with RA
8533, there is no more prescriptive period to
declare the marriage void on the ground of
psychological incapacity even if the marriage
is solemnized before Aug. 3, 1988.
> Take note also: NOW, only the husband or the
wife can file an action to declare their marriage void
in view of Supreme Court Resolution AM No.
02-11-12 SC, which took effect on March 15,
2003 and even the party who is at fault may bring
the action to nullify his marriage because the pari
delicto rule will not apply in nullity cases.
Therefore, the ruling in [Cojuangco vs. Romillo,
167 SCRA 751], that a father can file action to
nullify the bigamous marriage of his daughter to a
married man is no longer controlling.
Art. 40- Void Subsequent Marriage
“The absolute nullity of a previous marriage
may be invoked for purposes of remarriage
on the basis solely of a final judgment
declaring such previous marriage void.” [refers
to final judgment not to remarriage]
>** Take note: this rule [judicial
declaration of marriage as void first before
remarriage] is applicable only to remarriages
entered into AFTER the effectivity of the Family
Code, regardless of the date of the first
marriage, (Case: Atienza vs. Brillantes, Jr., 243
SCRA 32[1995]). This rule DOES NOT apply to
marriages prior to the effectivity of the Family
Code [Case: Castillo vs. de Leon Castillo, 789
SCRA 403] otherwise, it would impair vested
rights.
HISTORICAL BACKGROUND:
> The ruling of several cases relative to this
provision was like a pendulum. At one time, the SC
said, there is no need to declare a marriage void
in order to contract a second marriage(Case:
People vs. Mendoza and People vs. Aragon
decided in 1954 and 1957 respectively) and
then on a later case, SC said there is a need to
declare a void marriage void, ( People vs.
Lipana, 33 SCRA 614). On a later case (Odayat
vs. Amante, 77 SCRA 338 decided in 1977), SC
went back to the ruling in the Mendoza and
Aragon case. Till, the popular Wiegel case saying,
there is a need for judicial declaration of marriage.
Unfortunately, the ruling in said case was
abandoned once more by the ruling in the case of
Yap vs. CA, 145 SCRA 229. And this prompted the
framers of the Family Code to put to rest the
issue. TODAY, the prevailing doctrine is, if the
marriage is void, the only way that the party
can marry again is to have the first marriage
declared void, consistent to the ruling in the
Wiegel case.
70
> The meaning of Art. 40, was explained
thoroughly in the case of Domingo vs. CA, GR No.
104818, Sept. 17, 1993), where it made precise
that a judicial declaration of a void marriage is
necessary for remarriage. It clarified also that the
action is not only necessary for “remarriage”, it is
also necessary for other purposes such as,
liquidation, partition, distribution and separation of
property between the spouses. The word “solely”
in the provision refers to “final judgment “ and not
for “remarriage”.
> Take note: A person who contracts a subsequent
marriage without his first marriage judicially
declared void is guilty of bigamy, (Case: Carino
vs. Carino, GR. No. 132529, Feb. 2, 2001).
(Take note: also of the Bobis vs. Bobis case,
336 SCRA 747, lack of marriage license also)
Besides, in a more recent case, the SC said
“declaration of nullity of marriage on the ground of
psychological incapacity under Art. 36, will not save
the respondent from the crime of bigamy if the
second marriage was contracted before the
declaration of nullity of the first marriage, (Case:
Myrna Antone vs. Leo Beronilla, GR No. 183824,
December 8, 2010). ** Moreover, do not forget
the ruling in the case of Go-Bangayan vs.
Bangayan Jr., 700 SCRA 702, where the Supreme
Court ruled that Benjamin Bangayan Jr., did not
commit the crime of bigamy because the parties
to the second marriage just signed a purported
marriage contract without a marriage license.
However, in the more recent case of Santiago
vs. People, G.R. No.200233, July 15, 2015, the
Supreme Court found Leonila Santiago guilty of the
crime of Bigamy as an accomplice, even if her
subsequent marriage was without a marriage
license because she and Nicanor Santos when
they contracted marriage lied in their Affidavit
of Cohabitation that they live as husband and
wife for a period of five(5) years when
actually they had known each other for less
than four(4) years. The Supreme Court said, it
“cannot countenance petitioner’s illegal act of
feigning a marriage and, in the same breath,
adjudge her innocent of the crime”.
> In sum and in view of Art. 40, an action for
declaration for nullity of marriage is NOT a
prejudicial question in a bigamy case unless
the ground is, any of the vices of consent,
because of the involuntariness of one party to
enter into the first marriage.
>Take note: Distinction between a “bigamous
void” and “bigamous voidable marriage”.

*in “bigamous void marriage”, one spouse marries

> TAKE NOTE: of the distinctions made by SC in
the case of Morigo vs. People, GR No. 145226,
Feb. 6, 2004, [absence of marriage ceremony] and
the case of Mercado vs. Tan, 337 SCRA 122,
[absence of marriage license was just adjudged as
evidenciary in nature]
Distinctions:
Morigo case: No bigamy was committed because
the SC found that not all the elements of bigamy
are present i.e., no first valid marriage,**(just the
signing of a marriage contract) while in the
Tan case, the SC said, all the elements of bigamy
are present, **(no marriage license therefore
void). In short, what could be understood in those
cases are, if the ground for nullity is “absence
of ceremony”, then it is as if no marriage took
place or no marriage at all, but if the ground is
“absence of marriage license”, there is
marriage but it is void.
again knowing fully well that his/her own
wife/husband is still alive. The good faith or bad
faith of the second wife/husband is immaterial, i.e.,
from the civil law aspect. While in “bigamous
voidable marriage”, one spouse marries again,
thinking in good faith that his/her wife/husband is
already dead, when as a matter of fact he/she is
alive.
> Take note: of bigamous marriage or the
existence of prior marriage:
>who may sue and when: by the returning spouse-
during his or her lifetime. OR, by either party of
the second marriage- during the lifetime of the
other.
Art 41. Declaration of Presumptive Death
a
“A marriage contracted by any person during the
subsistence of a previous marriage shall be null

71
and void, unless before the celebration of the
subsequent marriage, the prior spouse had > Take note: effect of reappearance, i.e., the
been absent for four(4) consecutive years subsequent marriage is terminated (but) only
and the spouse present had a well founded upon the execution of an Affidavit of
belief that the absent spouse was already Reappearance of the reappearing spouse to be
dead. In case of disappearance where there is registered with the Office of the Local Civil
danger of death under the circumstances set Registrar where the present and the subsequent
forth under the provisions of Art. 391 of the spouse reside. This is what you call “bigamous but
Civil Code, an absence of only two(2) years valid marriage”. Bigamous because of the
shall be sufficient.” subsistence of the first marriage but valid because,
of the judicial declaration of presumptive death.
For purposes of contracting the
subsequent marriage under the preceding > Take note: concept of “well founded belief
paragraph, the spouse present must institute a that the absent spouse is already dead.” “Well
summary proceeding as provided for in this Court founded belief” means, the exercise of that
for the declaration of presumptive death of degree of due diligence required in searching a
the absentee, without prejudice to the missing spouse, (Case: Republic vs. Nolasco,
reappearance of the absent spouse”. 220 SCRA 20, petition of a seaman was denied
because of his failure to conduct a search for his
missing wife ). Same is true where only a brgy.
*Art. 391 - The following shall be presumed dead Captain was presented, without even presenting
for all purposes, including the division of estate his in –laws who knew of the whereabouts of the
among heirs: wife, or the persons whom he made inquiries.
(Case: Republic vs. CA, GR No. 159614,
1. a person on board a vessel lost during a sea December 9, 2005).
voyage or an aeroplane which is missing, who has
not been heard for four years (now two years in
the Family Code) since the loss of the vessel or > Take note: the judicial declaration of
aeroplane. presumptive death is mandatory only for
2. a person in the armed forces who has taken purposes of remarriage. The requirement of
part in a war, and has been missing for (4) years “well founded belief” that the absent spouse
(now two years in the FC) ; must have already been dead will apply only if
3. a person who has been in danger of death under the marriage took place after the effectivity
other circumstances and his existence has not of the Family Code on Aug. 3, 1988 and the
been known for four (4) years, ( now two (2) disappearance also took place during such
years in the Family Code). period. If the marriage took place before the

72
effectivity of the Family Code and the
disappearance also happened during said
period, the applicable law is the Civil Code.
Under Art. 390 of the Civil Code, judicial
declaration of presumptive death is NOT
necessary for remarriage, but only for the
taking of necessary precautions for the
administration of the estate of the absentee, (Case:
Angelita Valdez vs. Republic, GR No. 180863,
Sept. 8, 2009). For remarriage, what the Civil
Code requires only are: 1) the spouse has been
absent for seven(7) consecutive years at the time
of the second marriage; and 2) the present spouse
does not know his/her former spouse to be living
such that said spouse is reputed to be dead and
he/she believes him to be so at the time of the
celebration of the second marriage.
> In the Case of Republic v. Pulanco GR No.
94053 Mar 17, 1993, SC provided for the
REQUISITES for a spouse to be declared presumed
dead:
1. absentee spouse missing for four (4) consecutive
years or two (2) consecutive years as the case
maybe.
2. present spouse rushes to marry
3. present spouse has a well founded belief that the
absentee is dead and has exerted his best to search
with diligence the absentee spouse
4. present spouse initiates a summary proceeding for
the declaration of presumptive death of the
deceased.
73
>Take note: the decision of the RTC declaring a
spouse “presumptively dead” under this Art. is not
appeallable and immediately executory because
this falls under the Summary Judicial Proceedings
in the Family Law, (Case: Republic vs. Bermudez-
Lorino, GR No. 160258, January 19, 2005) and
there is no reglementary period to perfect an
appeal consistent with Art. 247 of the Family Code.
If at all, an aggrieved party can file a petition for
Certiorari (for grave abuse of discretion) with the
Court of Appeals and the decision of CA can be
raised to the Supreme Court on petition for review
on certiorari under Rule 45 of the Rules of
Court, (Case: Republic vs. Tango, GR No.
161062, July 31, 2009)
** Take note: the mere reappearance of the
absentee spouse does not terminate the
subsequent marriage, (Case: SSS vs. Jarque
Vda, de Bailon, 485 SCRA 376[2006]). The
reappearance of the presumptively dead spouse
will cause the termination of the subsequent
marriage when all the conditions enumerated
under Art. 42 of the Family Code are present
as enunciated in the case of Santos vs. Santos,
737 SCRA 637[2014]). These requisites are:
1.the non existence of a judgment annulling the
previous marriage or declaring it as void ab initio.
2.recording of an Affidavit of Reappearance, [stating
the fact and circumstances of reappearance with
the Civil Registry- where the parties of the
subsequent marriage reside.
3.due notice to the spouses of the subsequent
marriage of the fact of reappearance and,
4. fact of reappearance must either be undisputed
or judicially determined.
Art 42- “The subsequent marriage ( referring
to art. 41) is automatically terminated by the
recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment
annulling the previous marriage or declaring
it void ab initio.”
>the operative act that terminates the subsequent
marriage is the recording of the affidavit of
reappearance executed by the reappearing
spouse or any interested party such as their
children, parents of both spouses or even by
the subsequent spouse. No recording, the
subsequent marriage remains valid and subsisting.
>Take note: Subsequent marriage is valid if:
(requisites)
1. 1st spouse must be absent for 4 years or 2 years
as the case may be.
2. present spouse must not know the whereabouts
of the 1st spouse.
3. well founded belief that the absent spouse is
already dead.
74
4. there must be summary action of declaration of
presumptive death
5. there must be final judgment declaring the absent
spouse “presumptively dead”.
**>Query: What is the remedy of a spouse who
was declared presumptively dead when in fact
he/she is not dead and there was fraud in declaring
him/her as such. ANSWER: to file an action to
annul the judgment declaring him/her as presumed
dead. The execution of an affidavit of
reappearance is not sufficient, (Santos vs. Santos
case). Query: Supposing the spouse in bad faith
has contracted a subsequent marriage, will he be
liable for bigamy. Answer: YES.
Art 43- effects of termination of subsequent
marriage
“ The termination of a subsequent marriage
referred to in the preceding article shall
produce the following effects:
1. the children of the subsequent marriage
conceived prior to its termination shall be
considered legitimate and their custody and
support in case of dispute shall be decided by
the Court in a proper proceedings.
2.the absolute community of property or the
conjugal partnership as the case may be, shall
be dissolved and liquidated, but if either
spouse contracted such marriage in bad faith,
his or her share of the net profits of the
community property shall be forfeited in
favor of :
a. common children
b. or if there are none, the children of the
guilty spouse by a previous marriage or
c. if in default, given to the innocent spouse
3. donations by reason of marriage remain
valid, except if the donee contracted the
marriage in bad faith, such donations made to
said donee are revoked by operation of law.
4. the innocent spouse may revoke the
designation of the other spouse who acted in
BF as beneficiary in any insurance policy, even
if such designation be stipulated as
irrevocable.
5. the spouse who contracted the 2 nd marriage
in BF shall be disqualified to inherit from the
innocent spouse by testate or intestate
succession.
> the right to dispute reappearance is given to the
2nd spouse.
> Take note: If both parties to the subsequent
marriage are in Bad faith, the marriage shall be
void ab initio and all donations propter nuptias
75
and testamentary dispositions made by one in
favor of the other will be revoked by operation of
law. And, since the marriage is void, there will be
no dissolution and liquidation of the conjugal
partnership or absolute community as the property
relations will be governed by the rules on co-
ownership under Art. 147 or 148 of the Family
Code.
Art 44- self explanatory
“If both spouses of the subsequent marriage
acted in Bad faith , said marriage shall be void
ab initio, and all donations given by reason of
marriage and testamentary depositions made
by one in favor of the other are revoked by
operation of law.
Art 45- Grounds for Annulment of Marriage
(6) (speaks of Voidable Marriages or those which
are valid until annulled). The GROUNDS are
exclusive, i.e., only those which are mentioned
under Art. 45 and 46 of the Family Code
“ A marriage may be annulled for any of the
following causes, existing at the time of the
marriage: (if not existing, they could not be
considered grounds)
1. That the party in whose behalf it is sought
to have the marriage annulled was 18 yrs. of
age or over but below 21, and the marriage constituting the fraud, freely cohabited w/ the
was solemnized w/o the consent of other as husband and wife

a. parents > who may sue and when: the injured party-
b. guardian or within five(5) years after the discovery of the
c. persons having substitute parental authority over fraud.
the party (in this order) > if both are in pari delicto, none of them can sue

unless upon attaining the age of 21, such party

freely cohabited w/ the other and both lived 4. that consent of either party was obtained by
together as husband and wife; force, intimidation or undue influence, unless
the same having disappeared or ceased, such
> refers to non age persons party thereafter freely cohabited with the other
as husband & wife;
> Who may sue and when:

a. before party becomes 21- her or his parent > who may sue and when: the injured party-
b. after reaching 18 or 20- the partyconcerned - within five (5) years from the time the force or
within 5 years after reaching the age of 21 intimidation ceased.

> Take note of the (case of Villanueva vs. CA,

2. that either party was of unsound mind,
unless such party after coming to reason,
freely cohabited w/ the other as Husband and
Wife
> refers to unsoundness of mind
> who may sue and when: the spouse who does
not know of the other’s insanity or the relatives or
guardians of the insane- at anytime before the
death of either party
GR. No. 132995, October 27, 2006)- where a
security guard said, his consent was vitiated
because of fear that he might be harmed by NPA
if he will not marry a girl, is found by SC to be
unfounded.
5. that either party was physically incapable of
consummating the marriage with the other,
and such incapacity continues and appears to
be incurable; or

> refers to impotency or the inability to copulate

3. that the consent of either party was as distinguished from sterility- which is the inability
obtained by fraud unless such party to procreate. It must be existing already at the
afterwards, with full knowledge of the facts

76
time of marriage. If not, as when it happened only
after marriage, then it is not a ground.
>who may sue and when: the injured party-
within five(5)years after the celebration of
marriage
> Take note of the Doctrine of Triennial
Cohabitation- which says “if the wife remains a
virgin after living together with her husband for
THREE (3)YEARS, the presumption is that the
husband is impotent, and he will overcome such
presumption (because the general rule is, potency is
presumed).
6. that either party was afflicted with sexually
transmissible disease found to be serious and
appears to be incurable.
>sexually transmissible disease found to be serious
and appears to be incurable ex: AIDS, syphilis etc.
> who may sue and when: the injured party-
within five (5) years after the celebration of the
marriage.
> Take note: drug addiction, habitual alcoholism,
homosexuality and lesbianism can be a ground for
annulment of marriage only when it already existed
at the time of marriage and was concealed by
the other party. Otherwise, they are not.
Art. 46- what constitutes fraud
77
“ Any of the following circumstances shall
constitute fraud referred to in number 3 of
Art. 45:
1. Non disclosure of a previous conviction by
final judgment of the other party of a crime
involving moral turpitude-(or crimes where
penalty imposed is more than 6 years of
imprisonment).
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.
> could be appreciated as fraud only when
concealment of the pregnancy is still very
possible. Not when it is very obvious or
apparent that the woman is already pregnant
(Case to case basis as when a woman is
naturally plump then her pregnancy at four
months could still be concealed.)
3.concealment of a sexually transmissible
disease regardless of its nature, existing at the
time of the marriage.
4. concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism
existing at the time of marriage
No other misrepresentation or deceit as to
character, health, rank, fortune or chastity
shall constitute such fraud as will give grounds
for action for the annulment of marriage.”
 State to take steps to prevent collusion
>the manifestation of fraud contemplated by law is between the parties and to take care that
exclusive- it does not include misrepresentation as to evidence is not fabricated or suppressed.
character, health, rank, fortune or chastity/
In the cases referred to in the preceding
> pathological lying is now considered as paragraph, no judgment shall be based upon
psychological incapacity, (Case: Antonio v. Reyes a stipulation of facts or confession of
Mar 10 2006) judgment.”

>concealment of premarital sex w/ another is

not included. >Take note: that the present procedural rules in
annulment and declaration of nullity of marriage are
governed by A.M. No. 02-11-10-SC, the New
Rules on Marriage which took effect on
Art 47- period of prescription and who may file March 15, 2003.

> discussed already in Art. 45 > Full blown trial should be had. Summons must
be given to the respondent who is required to file
his ANSWER within 15 days from receipt of the
> take note that the suing parties are, the parties complaint. If he does not file any answer, the
or the in some cases their parents, their guardians Court will order the Public Prosecutor to conduct
or others who exercise substitute parental authority an investigation whether there exists collusion
over anyone of the parties. (in that order): between the parties. If Answer id filed, set the
Prevalent period – 5 years case for preliminary conference and pre trial.
Order of trial should be followed. No default in
these cases. The Court could not also
render judgment based on stipulation of facts
and confession of judgment.
Art 48- Rules of Procedure in Annulment
and Nullity of Marriage
> Participation of the State through the Public
Prosecutor.
“ In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall 1. to represent the State;
order the prosecuting attorney or fiscal 2. to conduct collusion investigation
assigned to it to appear on behalf of the

78
3. to participate during the hearing in order to see
to it that evidence is not fabricated or suppressed,
(Case: Republic vs. Iyoy, GR No. 152577, Sept.
21, 2005) and the )Case of: Corpus v.
Ochoterena 453 SCRA 446)
>Take note: partial voluntary separation of
property agreed through a compromise agreement
during the pendency of the case is valid. The
participation of the fiscal is not necessary here and
this in itself is not an indication of collusion,
(Case: Maquilan vs. Maquilan, G.R. No. 155409,
June 8, 2007).
>During the pendency of the case, the support of
the spouses and the custody and support of the
children shall be governed by:
a. agreement of the parties
b. in the absence of an agreement, then from the
conjugal property or absolute community. Visitation
rights should also be given. Provisional orders
and protection orders may be issued by the Court,
with or without hearing.
Art 49- Outline on what the court should do
during the pendency of the action for
annulment and declaration of nullity.
“During the pendency of the action and in the
absence of adequate provisions in a written
agreement between the spouses, the Court
shall provide for the support of the spouses
79
and the custody and support of their common
children. The Court shall give paramount
consideration to the moral and material
welfare of said children and their choice of
the parent with whom they wish to remain
as provided for in Title IX. It shall also
provide for appropriate visitation rights of the
other parent.”
>Take Note of the following Rules on custody
of children:
1. below 7 yrs. old- children cannot be separated
from the mother except If there is a compelling
reason to separate the child from mother. (Art. 213
Family Code) Take note: adultery is a compelling
reason.
2. if 7 yrs old and above- child has the right to
choose w/c of his/her parents (not absolute) because
the court can disapprove the choice.
> court can exercise its discretion taking into
consideration the best interest of the child.
Art. 50. Decree of Annulment and Nullity of
Marriage:
“The effects provided for in paragraphs (2),
(3), (4) and (5) of Art. 43 and in Art. 44 shall
also apply in proper cases to marriages which
are declared void ab initio or annulled by final the spouses because it ceases already but the
judgment under Art. 40 and 45. children should be supported by them.

The final judgment in such cases shall provide

for the liquidation, partition and distribution
of the properties of the spouses , the custody
and support of the common children, and the
delivery of their presumptive legitimes, unless
such matters has been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the
absolute community or the conjugal
partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and
the lot on which it is situated, shall be
adjudicated in accordance with the provisions
of Art. 102 and 129. [ provide for inventory
of properties and what are those left to be the
exclusive properties]
> Take note: Decree of annulment or nullity of
marriage is issued only after the decision becomes
final. It shall provide for : liquidation, partition and
distribution of properties, support of spouses,
custody and support of children and delivery of
prospective legitime or [ that part of the testator’s
property which could not be disposed of because
the law has reserve it for the compulsory heirs].
> The partition and distribution of the properties
and the delivery of presumptive legitimes must be
recorded in the Office of the Local Registrar and in
the Register of Deeds otherwise, 1) it will not bind
3rd persons and 2) the subsequent marriage of the
parties will be void, consistent with Art. 53 of the
Family Code. Take note however that the rules
provided under art. 50 and 51 are applicable
only in marriages declared void under Art. 40
and 45. Rules on partition and liquidation do
not apply in marriages declared void under
Art. 36. Moreover, it should be noted that “it is
not necessary to liquidate the properties of the
spouses in the same proceedings for declaration of
nullity of marriage”, (Case: Dino vs. Dino, GR No.
178044, January 19, 2011).
>Instances where void marriage may produce
legitimate children and these are the children
conceived and born under the following
instances:
1. before the annulment of voidable marriage
became final;
2. before declaration of nullity of marriage under
Art. 36 became final;
3. born of subsequent void marriage under Art. 53.

> Query: Does the obligation to give support > Query: Who pays for attorney’s fees and other
subsist when a marriage is annulled. No, between expenses in annulment cases : It depends. If the

80
action prospers, the absolute community but if the Art. 52- “the judgment of annulment or of
marriage is not annulled, whoever brought the absolute nullity of marriage, the partition and
action. distribution of the properties of the spouses,
and the delivery of the children’s
> Query: Can damages be awarded in these presumptive legitimes shall be recorded in
cases: Yes, but only in the following cases: the appropriate civil registry and registries of
property; otherwise, the same shall not affect
1. if there is fraud, force third person.”
and intimidation.
2. where marriage is
annulled/declared void on the ground of impotency, > import of registration
insanity,
3. in bigamous or
polygamous marriages or incestuous marriages
4. if the solemnizing Art. 53- “Either of the former spouses may
officer has no authority and one party knows marry again after complying with the
about it but concealed the same from the other requirements of the immediately preceding
party. article; otherwise, the subsequent marriage
shall be null and void.”

Art. 51.- “In said partition, the value of the

presumptive legitimes of all common children, Art. 54 - “Children conceived or born before
computed as of the date of the final judgment the judgment of annulment or absolute
shall be delivered in cash, property or sound nullity of the marriage under Art. 36 has
securities, unless the parties, by mutual become final and executory, shall he
agreement judicially approved, had already considered legitimate. Children conceived or
provided for such matters.” born of subsequent marriage under Art. 53
shall likewise be legitimate.”

> answers how presumptive legitime be delivered

to the children. Other Suggested Cases to read: Castillo vs. de
Leon-Castillo, 789 SCRA 503; Domingo vs. CA, 226
SCRA 572; Jarillo vs. People, 622 SCRA 24; Chan-
Tan vs. Tan, 613 SCRA 592; Lasanas vs. People, 727
SCRA 98

81
 > Take note: Under this law, the rule is: 1) if
granted validly before Aug.30, 1950 (effectivity of
the Civil Code)- it is still valid until today. 2) if
pending merely on Aug. 30, 1950, the same would
LEGAL SEPARATION continue until final judgment, even if the final
judgment was rendered after Aug. 30, 1950.

3. During the Japanese occupation- Executive Order

> TWO KINDS OF DIVORCES 141 broadened the grounds for absolute divorce.
This law was effective until Oct. 23, 1944- when
1. Absolute divorce- the Commonwealth government was established.
(divorce a vinculo matrimonii- here marriage is During the commonwealth government, EO 141
dissolved. was repealed and Act. No. 2710 was revived.
2. Relative divorce-
(divorce a mensa et thoro – marriage is not > Take note of the Rule: 1) if absolute divorce
dissolved. is granted validly before Oct. 23, 1944, it
continues to be valid. 2) if merely pending on
Oct.23, 1944, the action would not be allowed to
continue except if the ground is adultery on the
BRIEF HISTORY OF DIVORCE AND LEGAL part of the wife and concubinage on the part of
SEPARATION IN THE PHILIPPINES: the husband.

4. The Old Divorce Law (Act 2710) was in turn

1. Under the Siete Partidas- this is our law until repealed by the New Civil Code.
Mar. 11, 1917 when Act No. 2710 (the Old
Divorce ) was enacted. It merely provided for 5. VALIDITY OF ABSOLUTE DIVORCE obtained
Legal Separation. by Filipinos before the New Civil Code, (Aug. 30,
1950)
2. Under Act 2710- recognized only two grounds
for absolute divorce and impliedly ruled out
relative divorce, and these are: a) adultery on the RULES:
part of the wife and b.) concubinage on the part
of the husband. In both instances there should be 1. if obtained in the Philippines-
criminal conviction. valid provided the courts had proper jurisdiction.
2. if obtained abroad:

82
1. VALID-provided that the foreign court has
jurisdiction over the parties and over the subject
matter and the grounds are adultery on the part
of the wife and concubinage on the part of the
husband.
2. VOID- if either or both of the conditions are
absent.
6. ABSOLUTE DIVORCE TODAY (without
prejudice to Muslim Divorce Law)
RULES: If the action is brought in a FOREIGN
COURT:
1. between Filipinos- it will not be recognized in
the Phil. even if allowed by said foreign court on
whatever grounds. (Take note of our conflict
rules, Arts. 15 and 17)
2. between foreigners- the foreign decree will be
recognized here if these two conditions concur 1.)
the foreign court has jurisdiction to grant absolute
divorce and 2) said divorce is recognized as valid
by the personal law of the parties involved.
Art 55- Grounds for Legal Separation : (10)
83
“ A petition for legal separation may be filed
on any of the following grounds:
1. repeated physical violence, grossly abusive
conduct directed against the petitioner, a
common child or child of the petitioner.
2. Physical violence or moral pressure to
compel the petitioner to change religious or
political affiliation
3. attempt of respondent to corrupt or induce
the petitioner, a common child, or a child of
the petitioner to engage in prostitution, or
connivance in such corruption or
inducement;
4. Final judgment sentencing the respondent
to imprisonment of more than 6 years even
pardoned;
5. drug addiction or habitual alcoholism;
> can be a ground only if they occur during
the marriage. If not, then it could not be a
ground. If concealed, then it is fraudulent.
6. lesbianism or homosexuality of the
respondent.
> must occur during marriage. If known prior
thereto, it is not a ground. If it is concealed, it
is a ground for annulment of marriage as this
constitutes fraud and this could also be a ground
for declaration of nullity of marriage under Art.
36 of the FC, if existing before the marriage –
anchored on psychological incapacity which is 10. abandonment of petitioner by respondent
both grave and incurable. without justifiable cause for more than one
year

7. contracting by the respondent of a

subsequent bigamous marriage whether in the > legal separation is otherwise known as relative
Philippines or abroad; divorce. Marriage is not dissolved and there is
nothing more than a separation from board and
8. sexual infidelity or perversion (adultery and bed (a mensa et thoro).
concubinage under the Civil Code) > grounds are exclusive and need not exist prior
to the marriage as they usually occur after the
*criminal conviction of adultery or concubinage is marriage.
not required for legal separation and this could > child here means child w/c are by nature and by
be proven by mere preponderance of evidence, adoption
(Case: Gandionco vs. Hon. Penanranda et.al.
GR No. L-72984, Nov. 27, 1987). Take note: > Take Note: Distinctions between Annulment and
other acts of sexual infidelity short of adultery or Legal Separation:
concubinage are enough so long as said act
constitute a clear betrayal of the trust of one 1. AN- the marriage is defective at the very
spouse. A single act of sexual intercourse with beginning.
another woman is already a ground for legal
separation. LS- there was at the beginning NO DEFECT in the
marriage.

9. attempt by the respondent against the life 2. AN- the causes must already be existing at the
of petitioner time of marriage.

> criminal conviction is not required but it should LS- causes arise AFTER the marriage celebration.
be seen to it that said attempt is not justified by 3. AN- there are 7
self defense or that the spouse attacked was grounds
caught in flagrante delicto having carnal LS- there are 10
knowledge with another man or woman. grounds

4. AN-it dissolves the marital bond. Parties are

free to marry again

84
LS- the marriage remains
5. AN- from the viewpoint of Private International
Law, the grounds are generally those given by
the law where it was celebrated (lex loci
celebrationis).
LS- the grounds are those provided by the
National Law of the parties.
> Query: If a wife filed a case for legal
separation against her husband on the ground of
concubinage, can she during the pendency of the
case, file likewise a criminal case for concubinage?
Ans. YES. Query: What will happen to the legal
separation case? Ans. It will be SUSPENDED until
there is judgment on the concubinage case .
Reason: Her cause of action in the legal
separation case arises from the crime charged,
which is bigamy. Take note: This is different in
the case of a PREJUDICIAL QUESTION- because in
the latter, the civil action should be resolved first,
before the criminal action is resolved. In short, in
suspension of action, the CRIMINAL CASE should
be resolved first, while in the case of Prejudicial
question, the CIVIL CASE is resolved first. Thus,
inorder not to be confused, the general rule is,
“where both a criminal and civil case arising
from the same facts are filed in court, the
CRIMINAL case will always take precedence.”
The exceptions are: 1.) the civil case is
independent civil action under Art. 32, 33, 34 and
2177 of the Civil Code and 2.) where there exists
a prejudicial action in the civil case.
Art. 56- Defenses in legal separation
“The petition for legal separation shall be
denied on any of the following grounds:
1. when the aggrieved party has condoned the
offense or act complained of.
> condonation-is the act of forgiving and is given
after the fact.
> Take note: having sexual intercourse with one’s
spouse after he gave a ground for legal separation
is condonation, (Case: Bugayong V Ginez (100
Phil. 616)
2. When the aggrieved party has consented to the
commission of the offense or act constituting the
grounds for legal separation;
> consent is given before the commission of the
act that gives rise to the ground for legal
separation.
3. where there is connivance (corrupt consenting)
between the parties in the commission of the
ground for legal separation;
> there is connivance when the spouse
participated in the downfall of the other, like
an providing actively the opportunity for the wrong
doing directly or indirectly.
4. where both parties have given ground for legal
separation (in pari delicto). This is also called
recrimination.
85
> there is recrimination when both parties are at
fault or have given ground for legal separation.
5. where there is collusion between the parties to
obtain the decree of legal separation or;
> collusion- refers to the arrangement between
the spouses to obtain a decree of legal separation
by secret maneuvers or pretensions to make it
appear that a valid ground appears even if there
is none.
6. where the action is barred by prescription.
( action prescribes in 5 yrs. after the occurrence of
the cause)
> prescription- refers to the loss or extinction of the
right to file an action due to the lapse of time fixed
by the law.
> Take note: if prescription is apparent from the
allegations in the complaint, the Court can motu
propio dismiss the case. The same is true when
prescription becomes manifest during the trial,
even when not raised as a defense, (Case: Brown
vs. Yambao, 102 Phil 968)
> Take note: death of a party abates an action for
legal separation, this is so- because this is purely a
personal action (separation from board & bed)
Case: Lapuz Sy vs. Eufemio 43 S 177).
86
Art. 57 – Prescriptive period.
“ An action for legal separation shall be
filed within five (5) years from the
occurrence of the cause.”
Art. 58 – “An action for legal separation shall
in no case be tried before six months shall
have elapsed since the filing of the petition”
> this is what you a call the “six month cooling
off period. And, it is a mandatory requirement,
non compliance of which renders the decision
infirm, (Case: Pacete vs. Carriaga, 231 SCRA
321). Take note though that what is prevented
from being heard is the merits of the case.
During the cooling off period, the Court can hear
other incidents to the marriage such as custody of
children, support pendente lite of the children
and alimony.
> this is to allow parties to reflect or
contemplate their positions, reflect and allow
themselves to heal.
> Rule: if within this period, the parties reconcile-
petition will be dismissed. Even after a decree of
legal separation or judgment is made, parties can
reconcile and the court can set aside the said >speaks of the two task of the prosecutors.
decree.

> Summons and a copy of the Complaint shall be

furnished to the defendant, who is directed to file
Art 59- What the Court should do his/her Answer within fifteen days from receipt
thereof. If he/she does not answer, no
“No legal separation may be decreed unless the declaration of default, (Case: Macias vs. Judge
court has taken steps towards the Ochotorena, July 30, 204). Instead, the Court
reconciliation of spouses and is fully satisfied, should direct the public prosecutor to conduct
despite such efforts, that reconciliation is whether collusion exists between the parties and
highly improbable.” submit a report to the Court regarding this matter.
The fiscal whether or not the defendant appears
> to preserve the marriage should take part in the trial.

Art. 60 –
Art. 61 –
“ No decree of legal separation shall be
based upon a stipulation of facts or a “After the filing of the petition for legal
confession of judgment.” separation the spouse shall be entitled to live
separately from each other.
In any case, the Court shall order the
prosecuting attorney or fiscal assigned to it The Court, in the absence of a written
to take steps to prevent collusion between agreement between the spouses, shall
the parties and to take care that the designate either of them or a 3 rd person to
evidence is not fabricated or suppressed.” administer the absolute community or conjugal
partnership property. The administration
appointed by the Court shall have the same
> Take Note: But, if there are other evidence apart powers & duties of a guardian under the Rules
from the confession of judgment, legal separation of Court.”
decree may be issued. (Case: de Ocampo vs.
Serafina Florenciano GR No. K13553 Feb. 25,
1960
Art. 62 – this is in connection w/ Art 49

87
”During the pendency of an action for legal consideration, especially the choice of the
separation, the provisions of Art. 49 (support child over 7 years of age, unless the parent
of the spouse and the children), shall chosen is unfit. No child under 7 years of
likewise apply to the support of the spouses age shall be separated from the mother
and the custody and support of their common unless the Court finds compelling reason to
children”. order otherwise.

4. The offending spouse shall

be disqualified to inherit by intestate
Art 63- effects of legal separation succession. Moreover provisions in favor of
the offending spouse in the will of the
“ The decree of legal separation shall have innocent spouse shall be revoked.
the following effects:

1. The spouses shall be

entitled to live separately from each other,
but the marriage bond shall not be severed;
2. The absolute community or
the conjugal partnership shall be dissolved
and liquidated but the offending spouse
shall have no right to any share of the net
profits earned by the absolute community or
conjugal partnership which shall be forfeited
in accordance with the provisions of Art.
43(2); i.e., [in favor of the common children
or if there be none, the children of the
guilty spouse by a previous marriage or in
default of children, the innocent spouse]
3. The custody of the minor
children shall be awarded to the innocent
spouse subject to the provisions of Art. 213
of this Code; [ parental authority shall be
exercised by the parent designated by the
Court –taking into account relevant
>Take note: that each of the spouses can still
be charged of bigamy/ adultery/concubinage if
said acts are committed.
> Take note: the revocation of donation or
designation of the offending spouse as a beneficiary
in the insurance policy is VOLUNTARY [ in
annulment of marriage, the institution of the guilty
spouse as an heir in a Will is revoked by operation
of law] the donation is on the part of the
innocent spouse. If he/she does not, then be it.
The revocation should be recorded in the Office
of the Register of Deeds of the place where the
properties are located and that, the revocation of
offending spouse as the beneficiary in the
insurance policy must be upon a WRITTEN
NOTIFICATION to the insured. The action for
revocation prescribes after five years from the
time the Decree of Legal Separation becomes
final.

88

Art. 64 – Other effects of legal separation
“ After the finality of the decree of legal
separation, the innocent spouse may revoke
the donations made by him/her to the
offending spouse as well as the designation of
the latter as the beneficiary in any insurance
policy even if much designation is stipulated as
irrevocable. The revocation of the donations
shall be recorded in the registries of property
in the place where the properties are located.
Alienations, liens and encumbrances
registered in GOOD FAITH before the
recording of the complaint for revocation in
the registries of property shall be respected.
The revocation of or change in the
designation of the insurance beneficiary shall
take upon written notification thereof to the
insured.
The action to revoke the donation
under this Article must be brought within five
years from the time the decree of legal
separation has become final.”
*already explained in the preceeding article
Art 65 – Effects of Reconciliation
89
“If the spouses should reconcile, a
corresponding joint manifestation under oath
duly signed by them shall be filed with the
Court in the same proceedings for legal
separation.
> Anytime the spouses can reconcile
Art 66- Consequences:
“The reconciliation referred to in the
preceding article shall have the following
consequences:
1. The legal separation proceedings if still
pending shall be terminated in whatever stage
2. The final decree shall be set aside but the
separation of property and any forfeiture of
the share of the guilty spouse already
effected shall subsist, unless the spouses
agree to revive their former property regime.”
[ Take note however of the provision found in the
New Rules on Marriage (SC En Banc Resolution No.
02-11-10-SC i.e., Sec. 23(e) and Sec. 24 thereof,
which took effect on March 15, 2003) which allows
the spouses to adopt another property regime of
property relations different from that which they
have prior to the filing of the Petition for Legal
0Family Code. No provision of the Family Code
sanctions the use of another property regime after
reconciliation. It is opined that the New Rules
cannot amend the Family Code because the latter
is a substantive law while the former is a
procedural law- consistent with the Rules on
Statutory Construction. Besides, to allow the
parties to enter into another property regime after
reconciliation will run in conflict with Articles 88 and
107 of the Family Code providing- that the
regime of absolute community and the conjugal
partnership of gains shall commence only at the
precise moment of the celebration of the
marriage- any stipulation, express or implied is
void).
hearing) approving the Motion should be recorded
with the Office of the Register of Deeds where the
properties are located. Creditors who are not
named in the Agreement shall not be prejudiced.
Art. 67 – “ The agreement to revive the
former property regime ( if they prefer) must
be executed under oath and shall specify:
a. the properties to be contributed anew to the
restored regime;

> the Decree of Legal Separation can be set aside b. properties to be retained as separate
even after the preparation of the ground to appeal or properties of each spouse; and
even if the decision has become final and
executory. Reason: marriage bond is not severed. c. the names of all creditors / addresses and
Joint manifestation of Reconciliation is the only amounts owing to each.
thing needed. Take note: The court order
containing the reconciliation of the parties shall be xxx xxx xxx
recorded with the proper Office of the Local Civil
Pegistrar.
> succeeding paragraph is explained above.

> Take note: that the parties may AGREE to

REVIVE the property regime that binds them prior
to the legal separation. The said agreement which ESSENTIAL MARITAL OBLIGATIONS
must be under oath should contain the following:
1) properties to be contributed anew to the
restored regime 2) those properties retained by Art. 68- Rights and Obligations of the
them as their separate properties and 3) the names Husband and the Wife
of their respective creditors, their addresses and
the amounts owing to each. A motion to Revive “ The husband and the wife are obliged to
the Former Property Regime should be filed with live together, observe mutual love, respect
the Court for its approval. The Court Order (after

90
and fidelity and render mutual help and
support.”
>Take note: failure to comply with these
obligations due to psychological causes could be
considered as a ground in declaring one’s marriage
a nullity under Art. 36 of the Family Code, thus if
a spouse could not maintain his obligation of
fidelity because he/she is a nymphomaniac or
satyriasis, then his/her marriage could be nullified.
(Case: Chi Ming Tso vs. CA, 266 SCRA 324)
> these basic obligations were also expounded in
the case of (Santos vs. CA).
> Take note: of the acts which are highly
personal and voluntary on the part of the spouses.
Example: to cohabit and render conjugal rights to
each other, wife’s duty to give her husband
domestic assistance and conjugal companionship
which they could not be compelled to do. Thus, a
husband cannot by mandatory injunction compel
his wife to return to the conjugal dwelling. (Case:
Arroyo vs. Arroyo, 42 Phil. 54). His remedy is to
refuse to support her or file an action for damages
against her under Art. 19, 20 and 21 of the Civil
Code. (Case: Tenchavez vs. Escano, 15 SCRA
355). A husband likewise cannot compel his wife
to have sexual intercourse with him during the
pendency of a legal separation case , much more
after a decree is issued, otherwise he could be
sued for Rape unless his act is condoned.
91
Art 69 – “The Husband and Wife shall fix the
family domicile. In case of disagreement, the
court decides.”
>Domicile- permanent place of abode.
> The court may exempt one spouse from living with
the other in the following cases:
a. one spouse shall live
abroad
b.there are other valid compelling reasons for the
exemption. ( case to case basis)
* the exemption shall not apply if the same is not
compatible with family solidarity.
Art 70 – “ The spouses are jointly responsible
the support of the family. The expenses for
such support and other conjugal obligations
shall be paid from the community property
and, in the absence thereof, from the income
or fruits of their separate properties. In case
of insufficiency or absence of said income
or fruits, such obligation shall be satisfied
from their separate properties.”
* self explanatory
Art 71 – “The management of household shall 1. the objection is proper
be the right and duty of both spouse. The 2. benefit has accrued to the
expenses for such management shall be paid family[out of such profession, occupation, business
in accordance with the provisions of Art. 70.” or activity, the resulting obligation shall be
chargeable either to the absolute
* self explanatory community/conjugal partnership of gains or the
separate property of the spouse who did not
obtain consent of the other depending on when the
Art 72 – “When one of the spouses neglects benefit has accrued.] prior to the objection or
his or her duties to the conjugal union or thereafter. If the benefit accrued prior to the
commits acts which tend to bring danger, objection, the resulting obligation shall be
dishonor or injury to the other or to the enforced against the separate property of
family, the aggrieved party may apply to the spouse who has not obtained consent.
the Court for relief.”
The foregoing provisions shall not prejudice
> based on the spouse’ duty to protect the family the rights of creditors who acted in good
from danger or harm. faith.”

> The Court may grant the aggrieved party

reliefs- such as injunction, legal separation or >**this article has been amended by R.A.
PROTECTION ORDER. 10572, approved on May 24, 2013.

> this is a departure from Art. 117 of the Civil

Code where only the husband has the right to
Art 73 – This is amended by RA 10572, May object.
24, 2013.
> Where will the accrued benefits go and which
“Either spouse may exercise any legitimate shall be liable.
profession, occupation, business or activity
without the consent of the other. The latter  before objection. – the
may object only on valid, serious and moral absolute community because all benefits will go to
grounds. it. ** And, the liability if any, is chargeable to the
absolute community or conjugal partnership.
In case of disagreement, the Court shall Note, that this is the amendment introduced
decide whether or not: by R.A. No. 10572 in 2013. Before the
amendment, the liability is chargeable to the

92
separate property of the spouse who did not
obtain the consent of the other.
 after objection – the
separate property of the spouse because he / she
acted without consent. ** The liability shall be
chargeable to the separate property of the spouse
who did not obtain the consent of the other. This
is an exception to the general rule that the
absolute community/conjugal partnership of gains
shall be liable for obligations which redounded to
the benefit of the family.
> Query: If the wife engages in business, what
property will be liable.
 if the husband gave
his consent- ** the community property will be
liable.
 3). by local customs
If there was no consent- only the separate
properties of the wife will be liable.
>** Query: Is the husband’s consent
necessary when: a) wife becomes an
incorporator of a corporation, b). transfers her
share to another person and c) exercises her
voting rights as an incorporator.
 With the advent of the
Family Code- NO. But, since money is involve to
become an incorporator and she will be using
conjugal funds, then the husband should give his
consent. If she uses her separate property, NO.
93
Thus, it goes without saying that if a wife is an
incorporator of a corporation, her ACTS must be
with the consent of the husband, because of the
premise that she is using conjugal fund- and this
is true even if shares are originally in her own
name while still single because they become part
of the community property when she got married
sans marriage settlement.
Art 74. Marriage Settlement:
“ The property relations between husband
and wife shall be governed in the following
order:
1). by marriage settlement executed before the
marriage
2). by the provisions of the Civil Code
> Marriage Settlement- agreement entered into
by the parties about to be married for the
purpose of fixing the terms and conditions of
their property relation during the marriage. Also
known as, PRENUPTIAL AGREEMENT. It must be in
writing, signed by the parties and entered
before the celebration of the marriage. As a
contract, it is governed by the rules on contract
and in order to bind third persons, it must be
registered with the Office of the Local Civil
Registrar and the Register of Deeds. Modifications/
changes/amendments on the Marriage Settlement
must be made before the marriage. After the
marriage, no changes shall be allowed except in the stipulations are not contrary to law, morals,
the following cases: public policy and custom.

1) those provided for under Art. 66 and 67- revival * if no marriage settlement, the provision of the
of property relation by legally separated spouses Family Code applies stating- absolute community
once they reconciled; and of property.

2) Art. 128, 135 and 136 of the Family Code

referring to judicial separation of property either
upon a valid cause or voluntary agreement of the Art. 75 – “The future spouses in the marriage
parties. settlement, agree upon the regime of
absolute community, conjugal partnership of
gains , complete separation of property or any
>**Query: Can the property relation of spouses other regime. In the absence of marriage
without marriage settlement under the Civil Code settlement, or the regime agreed upon is
(i.e., conjugal partnership of gains) be changed to void, the system of absolute community of
absolute community of property with the effectivity property as established in the Code shall
of the Family Code. ANSWER: No, even if there is govern.
no impairment of vested rights. Let it be noted that
the Supreme Court did not agree with the ruling of
the RTC and the Court of Appeals on automatic  Absolute Community Regime- provides
conversion. (Case: Pana vs. Heirs of Jose that all properties owned by the spouses BEFORE
Juanite, Sr. 687 SCRA 414 [2012]). the marriage and those that they may acquire
during the marriage including the fruits thereof,
> Parties can agree on the following shall form part of the absolute community,
Property Regimes: regardless of how these properties were acquired
except if they were excluded in the Marriage
1. Absolute Community Settlement or by the Family Code.
of Property;
2. Conjugal Partnership of Exceptions:
Gains; and
3. Complete Separation 1. those acquired during the
of Property marriage by gratuitous title, including the fruits
and income thereof.
* parties may also enter a modified regime or a 2. those for personal and
combination of any or all of the above so long as exclusive use of either spouse except jewelry;

94
3. those acquired before the
marriage by either spouse who has legitimate
descendant by a former marriage; and
4. those that are expressly
excluded in the marriage settlement.
 Conjugal Partnership of Gains- only
those acquired DURING the marriage through the
efforts and industry of either or both spouses as
well as the income or fruits of their exclusive
properties shall accrue to the conjugal partnership.
 Complete Separation of Property-
provides that all properties present and future are
exclusively owned by the spouse concerned.
Art 76 – “In order that any modification in the
marriage settlement may be valid, it must be
made before the celebration of the marriage
subject to Art. 67, 68, 128, 135 and 136 of
the Family Code.”
* already discussed above
Art. 77 – “The marriage settlement and any
modification thereof shall be in writing,
signed by the parties and executed before
the celebration of the marriage. They shall
not prejudice third persons unless they are
registered in the local civil registry where
95
the marriage contract is recorded as well as
in the proper registries of property.”
*already discussed above.
Art. 78 – “ A minor who according to law
may contract marriage may also execute
his/her marriage settlements but they shall
be valid only if the persons designated in
Art.14 to give consent to the marriage are
made parties to the agreement subject to the
provisions of Title IX of the Code.”
 To date this is no longer applicable because
this article is already repealed by R.A. 6809,
which lowered the age of majority from 21 years
old to 18.
Art. 79 –“ The validity of any marriage
settlement executed by a person upon whom
a sentence of civil interdiction has been
pronounced or who is subject to any other
disability, it shall be indispensable for the
guardian appointed by a competent court to
be made a party thereof.”
>guardian appointed must also sign the marriage
settlement in order to be valid. Reason:. Because a
convict of these crimes cannot execute a document Art 81- Effect of Non Celebration of
intervivos. marriage

Query: What is civil interdiction- this is an “ Everything stipulated in the settlements or

accessory penalty to a crime which carries a contracts referred to in the preceding articles
penalty of reclusion temporal and reclusion in consideration of a future marriage,
perpetua. including donations between the prospective
spouses made therein, shall be rendered void
if the marriage does not take place. However,
Art. 80 – “in the absence of contrary stipulations that do not depend upon the
stipulation in a Marriage Settlement, the celebration of marriage shall be valid.”
property relations of the spouses shall be
governed by Philippine Laws regardless of the  Example: recognition of a natural child
place of celebration of marriage and their
residence.
DONATION by REASON of MARRIAGE
This rule shall not apply:

1. Where both spouses are aliens; Art. 82. “ Donation by reason of marriage
are those made before its celebration, in
2. with respect to extrinsic validity of consideration of the same, and in favor of
contracts affecting property not situated in the one or both of the future spouses”. [other
Philippines and executed in the country where than mutual promise to marry].
the property is located; and

>REQUISITES:
3. with respect to extrinsic validity of contract
entered into the Philippines but affecting a. must be made before the celebration of the
property situated in a foreign country whose marriage
laws regime different formalities for its b. must be made in consideration of the same.
extrinsic validity c. must be made in favor of one or both of the
future spouses.
* this article recognizes the nationality theory
 all these requisites
should concur otherwise it could not be
considered donation propter nuptias.

96

 the donation can be incorporated in the
marriage settlement or in a separate document.
Take note: however of the limitation when
made in the marriage settlement where the
spouses agree on another property regime other
than absolute community: it must not be
more than 1/5 of the present property.
Reason: to avoid possibility of duress or undue
influence. But if done in a separate paper, the
limitation will not apply.
Art 83. “These donations are governed by the
rules on ordinary donations established in Title
III of Book III of the Civil Code, insofar as
they are not modified by the following
articles.”
> if made to one spouse – it belongs to his exclusive
prop. Except if the donor provides that it shall form
part of the absolute community. ( Art 92 Family
Code)
>if it consists of a real property, it must be in a
public instrument and as in the case of donation,
ACCEPTANCE is a requisite to be valid.
Art 84. “If the future spouse agree upon a
regime other than the absolute community
of property, they could not donate to each
other in their marriage settlements more than
97
1/5 of their present property. Any excess
shall be considered void”.
Donation of future property shall be
governed by the provisions on testamentary
succession and the formalities of will.
> Take note: if they adopt absolute community :
there is NO limit or to the extent of donation by
future spouses ( before marriage) but if another
property regime is agreed upon in the marriage
settlement, take note of the limitation.
> Future property- anything which the donor could
not dispose of at the time he makes the donation.
Art 85. “Donations by reason of marriage of
property subject to encumbrance shall be
valid. In case of foreclosure of the
encumbrance and the property is sold for
less than the total amount of the obligation
secured, the donee shall not be liable for
the deficiency. If the property is sold for
more than the total amount of the obligation,
the donee shall be entitled to the excess.”
> ex: mortgage
Art 86. Grounds for Revocation:
“ A donation by reason of marriage may be
revoked by the donor in the following cases:
a. if the marriage is not celebrated or judicially
declared void ab initio except donations made
in the Marriage settlement which shall be
governed by Art 81; [donation propter nuptias]
b. when the marriage takes place without
consent of parents or guardian as required by
law;.
c. when marriage is annulled and the donee
acted in bad faith;
d. upon legal separation, donee being the
guilty spouse;
was declared presumed dead and (44) (both
spouse are in bad faith in contracting a
second marriage where the first spouse is
not dead), the revocation of donation is by
operation of law.
>When to file action for revocation: ( no
mention in the Family Code thus the provisions of
the Civil Code are applicable).
Rule:
1. if donation is in writing must be brought w/in 10
years ( art 1144 CC)
2. if made orally- 6 years from time of donation
(usually personal properties)

e. if it is with resolutory condition and the 3. in legal separation – where innocent spouse gave
condition is complied with; donation prior to marriage – 5 years from finality of
decision
f. when the donee has committed an act of
ingratitude as specified by the provisions of
the Civil Code on donations in general.
Art 87. “ Every donation or grant of
gratuitous advantage, direct or indirect,
>Query: if the marriage is not celebrated, will between the spouses during the marriage
the donation be automatically revoked. NO, it is shall be void, except moderate gifts which
merely revocable, meaning, if there is no action the spouses may give each other on the
to revoke, it remains subsisting. Query: what if occasion of any family rejoicing. The
the marriage is void. Still, it is merely prohibition shall apply to persons living
revocable, i.e., the marriage should be declared together as husband and wife without a valid
VOID first and then an action to revoke should be marriage.”
filed. Take note however that in marriages
under Articles (40), (bigamous), (42)
(subsequent marriage where the first spouse

98
>moderate- depends on the financial status of the
couple.
> Reasons for the prohibition:
a. to protect creditors
b. to prevent undue influence on the weaker
spouse
c. to avoid violation of the rule on modification of
the marriage settlement during the pendency of
marriage.
> Applicable cases:
Case: Matabuena v. Cervantes ( 38 SCRA 284)-
*prohibition applies to common law relationship
Case: Agapay v. CA ( GR No. 116668, July 28
1997, 85 SCAD 145) * if H donates to his other
woman (VOID) and the latter derives benefit from
the property, such benefit and the property will
revert to the 1st marriage.
> Query: Who can question the donation:
a. stranger – NO
b. State or the BIR. YES, or only those who will be
prejudiced.
> Take note: if the spouse is made beneficiary in
life insurance – this not donation. CASE: Gercio v.
99
Sunlife Assurances Co. of Canada (48 Phil. 53).
Take note: the article is not applicable if the
donation is made several moments before the
marriage for this is no doubt donation propter
nuptias, (Case: Garcia vs. Sangil, 53, Phil. 968).
SYSTEM OF ABSOLUTE COMMUNITY
Art. 88. “ The absolute community of
property between spouses shall commence the
precise moment that the marriage is
celebrated. Any stipulation, express or
implied, for the commencement of the
community regime at any other time shall
be void.”
> self explanatory.
> in the Civil Code the prevailing property regime
is conjugal partnership of gains. In the Family
Code, the default regime is Absolute Community
of Property.
> the rule on co-ownership is applied in "common
law relationship” where there is no marriage that
took place or the union is void.
Art 89. “ No waiver of rights, interest, shares
and effects of the absolute community of
property during the marriage can be made
except in case of judicial separation of
property.
 When the waiver takes place upon
judicial separation of property, or after the
marriage has been dissolved or annulled, the
same shall appear in a public document and
shall be recorded as provided for in Article
77. The creditors of the spouse who made
such waiver may petition the Court to rescind
the waiver to the extent of the amount
sufficient to cover the amount of their
credits.”
>Take note: [*Case: Hapitan vs. Spouses
Lagradilla, 780 SCRA 288], a husband cannot
enter into an amicable settlement with another
party recognizing the validity of a sale of an
absolute property previously declared void, because
by doing so, he is in fact waiving his right to the
property subject of the sale which is prohibited by
law (Article 124 FC).
Art 90. “ The provisions on co-ownership
shall apply to absolute community of
property between the spouses in all matters
not provided under this Chapter.
> Property regime in case of common law
relationship: CO- OWNERSHIP
> Distinction in the distribution:
*if spouses have no legal impediment to marry each
other 50-50 sharing irrespective whether there is
100
actual contribution or not. (Case: Agapay v. CA ,
GR no. 122 749, July 31, 1996)
* if the partners have legal impediment to marry
each other or where the marriage is void, the law in
(50%-50%) ownership does not apply because of
the impediment hence the rule is : division is in
accordance with actual contribution (Case: Uy v.
CA GR No. 102726, May 27, 1994, 51 SCAD
428)
WHAT CONSTITUTES COMMUNITY PROPERTY
Art 91. “ Unless otherwise provided in this
Chapter or in the marriage settlements, the
community property shall consist of all the
property owned by the spouses at the time
of the celebration of marriage or acquired
thereafter.
>what consist community property:
1. consist of all the properties owned by the spouses
at the time of the celebration of marriage and;
2. all properties acquired by the spouses after the
celebration of the marriage
Unless:
a. contrary agreement is embodied in the Marriage
Settlement and;

b. those provided under by Art. 92
[ EXCLUDED from community property]
1. property acquired during the marriage by
gratuitous title by either spouses and the fruits as
well as the income thereof, if any, unless it is
expressly provided by the donor, testator or
grantor that they shall form part of the community
property; [the wish of the giver must be
respected]
2. property for the personal and exclusive use of
either spouse; however, jewelry shall form part of
the community property; [ because of the
inherently high value of jewelry]
3. property acquired before the marriage by either
spouse who has legitimate descendants by a former
marriage and the fruits as well as the income, if
any, of such property. [ to protect the
legitimes of children of a previous marriage,
hence should be LEGITIMATE children].
> Take note: that even in absolute community
regime, there are properties which the spouses
separately own.
>Query: What about if a spouse sold his exclusive
property during the marriage, how do you
characterize the proceeds? EXCLUSIVE PROPERTY.
Query: what if he uses the proceeds to buy
another property during the marriage? The property
forms part of the COMMUNITY PROPERTY
101
because it was bought during the marriage.
Reason: no provision on the chapter on absolute
community similar to Art. 109 (4) re: conjugal
partnership.
Art. 92. already discussed above
Art 93 – “Property acquired during the
marriage are presumed to belong to the
community property, unless it is proved that it
is one of those excluded therefrom.” [ see Art.
92]
>Take note: evidence should be shown that the
property was acquired during the marriage.
>Cases:
1.Orient Savings Bank vs. Suzuki, 740 SCRA
345, under our laws, if the property is in the
name of one of the spouses, with description that
he or she is “married to” the other spouse, the
same is merely descriptive of the civil status of
the registered owner.
2.Dela Pena vs. Avila, 665 Scra 553, in conjugal
partnership, when the property is registered in the
name of only one spouse and there is no
indication when the property is acquired, it
indicates that the property belongs to the
registered owner.

3.Lim vs. Equitable PCI Bank, 713 SCRA 555,
when there is no indication when the property is
acquired, the presumption in favor of conjugal
partnership cannot prevail when the title is in
the name of only one spouse and the rights of
third parties are involved.
4.Mathews vs. Taylor, GR No. 164584, June 22,
2009, the presumption of conjugality does not
apply even if the property was acquired during
the marriage with respect to private lands if one
of the spouses is an alien.
CHARGES UPON AND OBLIGATIONS OF THE
ABSOLUTE COMMUNITY
Art 94. “The absolute community of property
shall be liable for:
1. the support of the spouses, their common
children and legitimate children of either
spouse; however, the support of the
illegitimate children shall be governed by the
provision of this Code on support. ( Art 197
Family Code);
2. all debts and obligations contracted during
the marriage by the designated administrator-
spouse for the benefit of the community, or
by both spouses, or by one spouse with the
consent of the other.
102
3. debts and obligations contracted by other
spouse without the consent of the other to the
extent that the family may have been
benefited.
4. all taxes, liens, repairs, expenses including
major or minor repairs, upon the community
property;
5. all taxes and expenses for mere preservation
made upon the separate property of either
spouse used by the family;
6. expenses to enable either spouse to
commence or complete a professional or
vocational course, or other activities for self-
improvement;
7. Ante nuptial debts of either spouse in so far
as they redounded to the benefit of the family;
8. the value of what is donated or promised by
both spouses in favor of their common
legitimate children for the exclusive purpose
of commencing or completing a professional
or vocational course or other activity for self
improvement;
9. Antenuptial debts of either spouse other
than those falling under par. (h) of this Article,
the support of illegitimate children of either
spouses and liabilities incurred by either
spouse by reason of a crime or a quasi-delict,
in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the
payment of which shall be deducted from the
share of the debtor-spouse upon liquidation

10. expenses of litigation between spouses OWNERSHIP, ADMINISTRATION, ENJOYMENT

unless the suit is found to be groundless. and DIPOSITION OF THE COMMUNITY
PROPERTY

If the community property is insufficient, to

cover the foregoing liabilities, except those Art 96. “ The administration and enjoyment
falling under par. (9), the spouse shall be of the community property shall belong to
solidarily liable for the unpaid balance with both spouses jointly. In case of
their separate properties.” disagreement, the husband’s decision shall
prevail, subject to recourse to the Court by
>Take note: There are three personal obligations the wife for a proper remedy, which may be
of a spouse which the absolute community may availed of within five years from the date of
be compelled to pay on the condition that: 1) the contract implementing such decision.
insufficiency of property or money on his part and
2) payment is considered as advance to his share In the event that one spouse is
from the absolute community. And these are: a) incapacitated or otherwise unable to participate
ante nuptial debt which did not redound to the in the administration of common properties, the
benefit of the family b) support of illegitimate other spouse may assume sole powers of
children and c) civil liability for a crime administration. These powers do not include the
committed. powers of disposition or encumbrance
without authority of the Court or the
written consent of the other spouse. In the
absence of such authority or consent, the
Art. 95. “Whatever may be lost during the disposition or encumbrance shall be void. However
marriage in any game of chance, betting, the transaction shall be considered as a
sweepstakes or any other kind of gambling, continuing offer on the part of the consenting
whether permitted or prohibited by law, shall spouse and the third person, and may be
be borne by the loser and shall not be charged perfected as a binding contract upon the
to the community but any winnings shall form acceptance by the other spouse or authorization
part of the community property.” by the Court before the offer is withdrawn by
either or both offerors. “

>self explanatory

103
> the 2nd par. applies only in case of incapacity or
unavailability of one spouse and it should be
emphasized that the power to administer does not
include the power to dispose or encumber where
1) consent of the other spouse or 2)
authorization by the Court is necessary.
> Causes of incapacity, could either be a) spouse
is absent; b) spouse has abandoned the other
and c) spouses are separated in fact. ACTION
to be taken: The other spouse shall file a
summary proceeding for appointment as
sole administrator under Art. 153 of the Family
Code. BUT, if the inability or incapacity is due
to a) comatose b) victim of stoke and the like
rendering the other spouse incompetent, the
ACTION is, to file a petition for JUDICIAL
GUARDIANSHIP under Art. 93 of the Rules of
Court. (Case: Uy vs. CA, GR No. 109557,
November 29, 2000).
>Take note: if the wife sold a common property
without the consent of the husband, the sale is
VOID but, it could be RATIFIED by either the
other spouse subsequently giving his consent or
by Court’s authorization. Reason: because the
sale can be considered as a CONTINUING OFFER
between the consenting spouse and the buyer and
may be perfected by the acceptance of the other
spouse or authorization by the Court BEFORE
the offer is withdrawn by either or both offerors.
104
> Query: Can the husband annul the sale? YES
and the action does not prescribe in view of the
nullity of the contract. The only problem is “what
if the buyer is in Good Faith”. The husband could
no longer annul the sale and his remedy
would be to let his wife account for the
proceeds of the sale. This is especially true
where the property is by nature conjugal but
registered in the name of one spouse only.
(Case: PNB vs. CA, 153 SCRA 435). Take
note: however that under the Civil Code,
(Art. 173 thereof) the sale of common
property by a husband without the wife’s
consent is merely VOIDABLE and could be
annulled within ten (10) years, otherwise it
prescribes. Take note also that, under the Civil
Code - wife’s consent is required only if the
conjugal property is acquired before its effectivity
(Aug. 30, 1950), if acquired after its effectivity,
wife’s consent is not required. (Case: Villaranda
vs. Villaranda, GR No. 153447, Feb. 23, 2004).
Under the Family Code, the rule is that which is
enunciated above.
> Take note: The case of Nicolas vs. CA, 154
SCRA 635 saying, mere awareness of the other
spouse of such sole is not consent (it must be in
writing) which was adopted in the case of
Tinitigan vs. Tinitigan, 100 SCRA 619.
Art 97. “Either spouse may dispose by will
his/her interest in the community property.”

> RATIONALE :
1. this is in exercise of an act of ownership
2. need not be consented by the other spouse
because the disposition takes effect after death of
the testator
3. what is disposed here is the spouse interest on
the property, not the property itself
Art 98. “Neither spouse may donate any
community property without the consent of
the other. However either spouse may, without
the consent of the other, make moderate
donations from the community property for
charity or on occasion of family rejoicing or
family distress”.
> because the other spouse may be prejudiced by
the generosity of the other, which might lead to the
diminution of the common property.
DISSOLUTION OF THE ABSOLUTE COMMUNITY
REGIME
Art 99. “The absolute community terminates:
1. upon death of either spouse;
105
2. when there is a decree of legal separation;
3. when the marriage is annulled or declared
void; or
4. in case of judicial separation of property
under Articles 134 to 138
Example:
1. where there is a an agreement of complete
separation of property in the marriage settlement.
(Art. 134)
2. any of the grounds under Art. 135 exist like,
where one is convicted of a crime which carries a
penalty for civil interdiction.
Art. 100. “The Separation in fact between
husband and wife shall not affect the regime
of absolute community except that:
1. the spouse who leaves the conjugal home or
refuses to live therein without just cause,
shall not have the right to supported;
2. when consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be obtained in a
summary proceeding;
3. In the absence of sufficient community
property, the separate property of both of
the spouses shall be solidarity liable for the
support of the family. The spouse present
shall, upon summary proceeding be given A spouse is deemed to have abandoned
judicial authority to administer or encumber the other when he or she has left the conjugal
any specific separate property of the other dwelling without intention of returning. The
spouse and use the fruits or the proceeds spouse who has left the conjugal dwelling
thereof to satisfy the latter’s share. for a period of three months or has failed
within the same period to give any
> abandonment- implies a departure by one information as to his or her whereabouts
spouse with the avowed intent not to return, shall be prima facie presumed to have no
followed by a prolonged absence without just intention of returning to the conjugal
cause. A spouse is presumed to have dwelling.”
abandoned the family home if she left the
same for a period of three (3) months and
did not give any information of her >Remedies available to the present or
whereabouts thus giving the impression that aggrieved spouse:
he is not returning anymore. [take note, of the
difference in the period of absence when invoking 1. file an action for
abandonment as a ground for legal separation- receivership;
which is one(1) year.
2. file an action for
judicial separation property; and

Art. 101-“ If a spouse without just cause 3. seek appointment as

abandons the other or fails to comply with sole administrator of the community property.
his/her obligations to the family, the
aggrieved spouse may petition the court for
receivership, for judicial separation of > When is there abandonment:
property or for authority to be the sole
administrator of the absolute community, *when spouse left the conjugal dwelling without
subject to such precautionary conditions as intention of returning and when he/she no longer
the Court may impose. complies with his/her marital, parental & property
relations with the family.

The obligations to the family mentioned in

the preceding paragraph refer to marital, > When can a spouse presumed to have
parental or property relations. abandoned the family:

106
1. he/she left the conjugal dwelling for a period of 3 balance with their separate properties in
months or; accordance with the provisions of the second
par. of Art. 94.
2. when he/she failed with in 3 months to give any
information as to his/her whereabouts 3. Whatever remains of the exclusive
properties of the spouses shall thereafter
delivered to them.
> Take note: (Case: Partosa-Jo CA 216 SCRA
692) where the Supreme Court said, 4. The net remainder of the properties of the
*abandonment is defined as not limited to departure absolute community shall constitute its net
of one spouse from the conjugal dwelling with no assets, which shall be divided equally between
intention to return but it encompasses the act of husband and wife, unless a different
rejecting or preventing the other spouse of proportion or division was agreed upon in the
returning to the conjugal dwelling marriage settlements or unless there has
been a voluntary waiver of such share as
provided in this Code. For purposes of
computing the net profits subject to
LIQUIDATION OF THE ABSOLUTE forfeiture in accordance with Art. 43, No.(2)
COMMUNITY, ASSETS AND LIABILITIES: and 63 No. (2), the said profits shall be the
increase in value between the market value of
the community property at the time of the
celebration of the marriage and the market
Art. 102. “ Upon the dissolution of the value at the time of its dissolution.
absolute community regime, the following
procedure shall apply: 5. The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance with Art. 51;
1. an inventory shall be prepared,
listing separately all the properties of the 6. Unless otherwise agreed upon by the
absolute community and the exclusive parties in the partition of the properties, the
properties of the spouse. conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse
2. The . debts and obligations of the absolute with whom majority of the common children
community shall be paid out of its assets. In choose to remain. Children below the age of
case of insufficiency of said assets, the seven (7) years are deemed to have chosen
spouses shall be solidarily liable for the unpaid the mother, unless the Court has decided

107
otherwise. In case there is no such majority,
the court shall decide, taking into >take note: of the importance of liquidation.
consideration the best interest of the said And this should be done in the same proceedings
children. for the settlement of estate which could be done
judicially or extra judicially- to be done within one
year from death of the deceased spouse. Any
> NET PROFITS- refer to the increase in the disposition of property without complying to this
value of the community property at the time of requirement is void.
the celebration of the marriage and dissolution. (the Book of Justice Paras, mentioning the
6-month period is without basis)

Art. 103. “ Upon the termination of the > Take note: ( Case : Ledesma vs. Intestate
marriage by death, the community property Estate of Cipriano Pedrosa, 219 SCRA 808,
shall be liquidated in the same proceeding for where SC said, distribution of properties may be
the settlement of the estate of the in accordance with the rules on intestate
deceased. succession.

If no judicial settlement proceeding is > Take note: upon the death of the deceased
instituted, the surviving spouse shall spouse, the community property will be co-owned
liquidate the community property either by the surviving spouse and the children, hence
judicially or extra-judicially within one (1) sale should not be made by the former without
year from the death of the deceased spouse. the consent of the latter.
If upon the lapse of the said period, no
liquidation is made, any disposition or
encumbrance involving the community > If no settlement of Estate is done and the
property of the terminated marriage shall be surviving spouse remarries, the subsequent
void. marriage shall be governed by mandatory regime
of COMPLETE SEPARATION OF PROPERTY.
Should the surviving spouse contract a [ this is an exception to the rule that where no
second marriage without compliance with the property regime is agreed in the marriage
foregoing requirements, a mandatory regime settlement, absolute community should govern the
of complete separation of property shall family relation]
govern the property relations of the
subsequent marriage. “
Reasons:

108
 determine by PROOF/ Evidence when were (either
1. to avoid confusion of the properties of the 1st or 2nd marriage) then allocate. In case of
first marriage and second marriage. doubt, get proportion of :

2. to prevent prejudice to compulsory heirs of

the first marriage. 1. capital, and
2. duration of each marriage.
3. to prevent fraud to creditors.

Art. 104. APPLICABLE ONLY TO MARRIAGES

BEFORE THE EFFECTIVITY OF THE FAMILY CODE.
“ Whenever the liquidation of the community
properties of two or more marriages CONJUGAL PARTNERSHIP OF GAINS:
contracted by the same person before the
effectivity of this Code is carried out
simultaneously, the respective capital, fruits Art 105. “ In case the future spouse agree in
and income of each community shall be the marriage settlements that the regime of
determined upon such proof as may be conjugal partnership of gains shall govern
considered according to the rules on their property relations during marriage, the
evidence. In case of doubt as to which provision of this Chapter shall be
community the existing properties belong, supplementary application.”
the same shall be divided between the
different communities in proportion to the > this is possible only where there is
capital and duration of each.” marriage settlement. And, it also commence at
the precise moment of the celebration of
marriage. No other period could be a subject of
stipulation in the marriage settlement.
> applicable only to those marriages contracted
before the Family Code because under the >-this provision is also applicable to conjugal
latter, a void marriage must be declared void partnership of gains already established under the
first before remarriage. Civil Code without prejudice to vested rights already
acquired.

>Nonetheless, if confronted with such a situation, > CONJUGAL PARTNERSHIP OF GAINS- formed
all that is done is gather all the properties and when husband and wife place in a common fund

109
the fruits of their separate property and the
income from their work or industry, the same to be 1. CP- no juridical
divided between them equally (generally) upon the personality
dissolution of the marriage or the partnership. OP- with juridical personality
Or, upon the dissolution of the marriage, the net
gain shall be divided equally between the spouses 2. CP- regulated by law
unless otherwise agreed upon in the marriage OP- regulated by agreement between the parties
settlement. and only subsidiarily by law
> Also known as : “ganantial regime” and
“relative community of property”. 3. CP- generally managed
by the husband.
OP- management depends upon the agreement of
> Duration: the parties

a. until the dissolution of the marriage like death 4. CP- purpose is not
or annulment; profit
OP- purpose is profit
b. until dissolution of the partnership, like legal
separation or judicial separation of property. 5. CP- only have few
grounds for dissolution
OP- there are so many ways to dissolve it.
> Take note: During the marriage, what
husband and wife have over the conjugal
partnership is an INCHOATE RIGHT or a MERE
EXPECTANCY because, it might be that during the
liquidation, there is no conjugal property to Art. 106. Definition of Conjugal Partnership
divide. But, if the cause of dissolution is death of of Gains
one spouse, then this inchoate right turns into
ACTUAL, because of the ½ share of a surviving
spouse. Besides, becoming a co-owner with the “ Under the regime of conjugal partnership
children if any. gains, the husband and the wife place in a
common fund the proceeds, products, fruits
and income from their separate properties
> DISTINCTIONS between CONJUGAL [CP] and those acquired by either or both
Partnership and the ordinary PARTNERSIP spouses through their efforts, or by chance,
[OP]: and, upon dissolution of the marriage or of

110
the partnership, the net gains or benefits
obtained by either or both spouses shall be
divided equally between them unless
otherwise agreed upon in the marriage
settlement.”
> Properties Covered:
1. the proceeds, products, fruits and income
from the separate properties of the spouses; and
2. those acquired by either or both spouses
through their EFFORTS or BY CHANCE.
Art 107. “The rule provided for under
Articles 88 & 89 shall apply also to Conjugal
Partnership of Gains.”
> what are these rules:
a. starts at the precise moment of marriage,
stipulation to the contrary is void. (Art. 88)
b. no waiver of rights, interest shares, effects etc,
unless there is judicial separation of property and
that waiver must be in writing, (Art. 89).
Art 108. “The conjugal partnership shall be
governed by the rules on the contract of
Partnership in all that is not in conflict with
what is expressly determined in this Chapter
or by the spouses in their marriage
settlements.
> Take note: that in partnership, partners are
liable pro rata for the satisfaction of partnership’s
indebtedness. While under conjugal partnership,
“if the conjugal partnership is insufficient to
cover the liabilities, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties” as provided for under Art.
121, last paragraph).
> Take note: however of the ruling in the case of:
the case of (Jessie V. Pisuena vs. Heirs of
Petra Unatig et al, GR NO, 132803 Aug 31,
1999 III SCAD 540) where SC said “even if the
property is presumed conjugal during the
marriage, if it could be over turned by contrary
evidence, the rule is, paraphernal/exclusive
in character.
any
> Take note of the Cases of: (Mendoza vs
Reyes, 124 SCRA 154) and Carita de Reyes vs.
Reyes de Ilano 73 Phil. 620) where the SC said
“it is sufficient to prove that the property is acquired
during the marriage inorder that the same may be
deemed conjugal.” Also consider the case of
(Estonia vs. CA SCRA 627) where SC also said,
“presumption under the law that all properties of
the marriage belong to the conjugal partnership
applies only when there is proof that they are
acquired during the marriage.”
111
 4. that which is a purchased with exclusive
>Take note of the following money of the wife or of the husband.”
rulings:

1. In conjugal partnership, when the property > Two kinds of separate property of each
is registered in the name of only one spouse, spouses:
and there is no showing as to when it is
acquired, this is an indication that the property a. Property by direct acquisition (described in par. 1
belongs exclusively to the said spouse[ Case: de and 2) or those which are originally exclusive
la Pena vs. Avila, 665 SCRA 553(2012].
b. property by substitution (described in par. 3
2. It should be noted however, that when and 4)
the property is registered in the name of only one
spouse does not negate the possibility of it being
conjugal or community property, when there is >Take note of the following:
proof that indeed it is conjugal or community
property[ Case: Orient savings Bank vs. Suzuki, 1. in the case of redemption using conjugal funds,
740 SCRA 345]. the matter to be considered is, “who has the
right to redeem” and not the source of the
money because this is immaterial, the rule is, “the
property is still exclusive but the spouse who was
Art. 109: “ The following shall be the the property should reimburse the conjugal
exclusive property of each spouse; partnership”, (Case: Santos vs. Bartolome, 44
Phil 76). Moreover, in case the husband
1. that which is brought to the marriage as his redeems the paraphernal property of his
or her own (unless brought to the marriage as deceased wife using his own money, the rule is,
part of the absolute community); “husband does not become the exclusive owner of
the property, instead, the property shall belong to
2. that which each acquires during the the heirs i.e, the husband and the children,”
marriage by gratuitous title; (Case: Alvarez vs. Espiritu, L-18833, August
14, 1965). Take note also that; exclusive
3. that which is acquired by right of redemption properties of spouses which were mortgaged
by barter or by exchange with property before the marriage but redeemed only during
belonging to only one of the spouses; and the marriage, remains exclusive even if the
money used to redeem comes from the conjugal
fund- this is without prejudice however to

112
reimbursement of the money used by the owner for example, the NEW PROPERTY (that which is
thereof who will be considered as DEBTOR of the exchanged) is traded in, and there is a need for
conjugal partnership hence, if he/she does not pay, additional money to get the property traded in, the
then the same shall be considered as his/her NEW PROPERTY becomes conjugal without
advance from the conjugal partnership. prejudice to the trade in value of the old
property. Example: a car exclusively owned was
2. if property is acquired by donation or gratuitous traded in to get a new car of higher value.
title, the property acquired is still exclusive. (Case: Abella de Diaz vs. Erlanger and
Galinger, 59 Phil. 326)
3. if property is acquired by exchange/ barter
using the exclusive property of the spouse, the
rule is “ the property is still exclusive.” (Case: 8. the description or reference to marriage ( ex. in
Lim vs. Garcia, 7 Phil 320) the name of X- wife of Y), this is merely
descriptive of the marital status of X, hence
4. awards for damages re: in an accident, if the a property acquired by X is exclusive unless
husband/wife is awarded with hospitalization shown that conjugal fund was used to acquire
expenses, medical assistance and/or loss of income, the property. ( Cases: Gonzales v. Miller, 69
these are conjugal properties but moral damages Phil 340 ) and (Case of Magallon vs. Mantejo,
are exclusive. 146 SCRA 282).

5. monetary benefits given gratuitously by the
government because of a persons’ work gratuity,
are exclusive. Same is true with retirement
benefits if given gratuitously. In short, the
determining point here is, “the nature of the
benefit or how it was acquired”, i.e., if
acquired gratuitously then EXCLUSIVE but if it is
acquired onerously, then it is CONJUGAL.
6. if property was purchased partly using exclusive
property and partly conjugal fund, the rule is,
“‘the property is partly conjugal and partly
exclusive. ”
7. if an exclusive property is exchanged with
another, the latter property is still exclusive but if
9. property acquired by lucrative title is exclusive.
10. if a suit involves the exclusive property of a
spouse, only the latter will litigate without
including the other spouse and any decision on
the case will not bind the other spouse.
11. if a Filipino who is married to a foreigner
buys real property during their marriage, the
foreigner could not have any interest on the
property as the same could not be considered
conjugal. To rule otherwise would be
circumventing the prohibition on aliens acquiring
property in the Philippines ( Case: Matthews vs.
Taylor, GR No. 164584, June 22, 2009).

113

OWNERSHIP, ENJOYMENT, and
ADMINISTRATION OF EXCLUSIVE PROPERTY
Art 110– “ The spouses retain the ownership,
possession, administration and enjoyment of
their exclusive properties.
Either spouse may, during marriage transfer
the administration of his/her exclusive
property to the other by means of a public
instrument, which shall be recorded in the
registry of property where the property is
located.”
>Take note: that if administration of the
property is transferred to the other spouse by the
owner-spouse, the latter is not precluded from
disposing his/her property without the consent of
the administrator-spouse. If this is done, what the
other spouse means only is, he/she is terminating
the administration.
Art. 111 – Amended by Sec. 2 of R.A. No.
10572 and it now reads as follows:
“Either spouse may mortgage, encumber,
alienate or otherwise dispose of his or her
exclusive property.”
> Take note: This article speaks of Conveyance
which could be done by either spouse regarding
their separate properties. – which is an act of
114
ownership. And, this is applicable even if the
property is under administration because
administration is different from ownership. Take
note: that the amended article does not mention
anymore of “without the consent of the other
spouse”.
Art. 112 –“ The alienation of any exclusive
property of a spouse administered by the
other automatically terminates the
administration over such property and the
proceeds shall be turned over to the owner-
spouse.”
> self explanatory
Art 113 – “Property donated or left by will to
the spouses jointly and with designation of
determinate shares, shall pertain to the
donee- spouse as his or her own exclusive
property and in the absence of designation,
share and share alike without prejudice to the
right of accretion.”
>Take note: this is an exception to Art.
753 of the New Civil Code. Reason: because there
is no right of accretion in case a donation is made to
several persons jointly as a rule.
> Accretion - occurs when a beneficiary of the
person who died gets more of the estate than he/she
was meant to because another beneficiary or heir
dies or rejects the gift.

Art. 114.- “ If the donations are onerous,
the amount of the charges shall be borne by
the exclusive property of the donee-spouse,
whenever they have been advanced by the
conjugal partnership of gains.”
Art. 115 – “Retirement benefits, pensions,
annuities, usufructs and similar benefits shall
be governed by the rules on gratuitous or
onerous acquisitions as may be proper in each
case.”
* discussed earlier. As a recap,
> Retirement benefits ( Exclusive) – payment or
services provided after reaching the age of
retirement or upon withdrawal from one’s position
occupation and are separate and distinct from
salaries received. Retirement benefits do not
become conjugal property but should belong to the
beneficiary designated by the deceased member,
( Case: Sarmiento v. IAC GR no. 75409, august
17 1987).
>Pension ( exclusive) – amount given regularly to an
official or employee by the government out of
liberality and as an expression of its appreciation for
past services. (underline refers to gratuity, defined
115
as a reward for past services , a bounty, a tip).
Take note: when pension is not given as a gratuity
( ex. from a fund or organization as the case
maybe), the same is conjugal)
>Salary ( exclusive ) – an amount paid during the
time when the officer or employee entitled thereto is
still in service.
>annuity – given after payment of an annual pension
or income during the life of one or more determinate
persons in consideration of a capital consisting of
money or other property whose ownership is
transferred to him at once with the burden of the
income. Example: A gives B a building with a
condition that B gives her an income of Php. 100.00
a day as long as A lives. Here, the ownership of
building is transferred at once.
> Take note: If a buiding is exclusive property, the
annuity of Php. 100.00 is also exclusive.
> To simplify, a distinction has to be made “whether
the property is exclusive or conjugal.” If exclusive,
then annuity is exclusive, if conjugal, then annuity is
conjugal.
> Usufructs – right to use and to the fruits. *if the
usufruct is acquired by gratuitous title, it is exclusive
but the fruits are conjugal.

> Life Insurance Benefits. The rule is:
a. if the beneficiary is somebody other than the
insured or his estate, the beneficiary is the owner of
the insurance benefit, regardless of whether or not
the premiums were taken from exclusive or conjugal
fund.
b. if the beneficiary is the insured’s estate, and the
premiums are paid by conjugal fund then the
proceeds would become conjugal.
> Benefits from the Social Security System:
(SSS benefits) As a rule: “benefits under the SSS is
to be given to the beneficiary as a rule. The heirs
will be the ones to receive only if:
a. the beneficiary is the estate
b. no beneficiary is designated
c. if the designation is void
> Take note: even a non relative or third person
may become beneficiary.
CONJUGAL PARTNERSHIP PROPERTY
Art.116- “ All property acquired during the
marriage, whether the acquisition appears to
have been made, contracted or registered in
the name of one or both spouses, is
116
presumed to be conjugal unless the contrary
is proved.”
> Take note: the above provision applies even
the spouses are living separately, (Case: Wong
vs. IAC, 200 SCRA 292), hence, for the
presumption to apply, the acquisition of the
property should be proven to have taken place
during the marriage, (Case: Jocson vs. CA, 170
SCRA 333).
 **Take note: however of the ruling in the
case of (Mathews vs. Taylor, G.R. No. 164584,
June 22, 2009) where the Supreme Court said”
in conjugal partnership, even if the property was
acquired during the marriage, the presumption in
favor of conjugality cannot be applied with respect
to private lands if one of the spouses is an alien
for this will be in violation of Sec. 7, Art. XII of the
1987 Constitution, which prohibits aliens from
acquiring private lands in the Philippines”.
Art. 117. The following are conjugal
partnership properties:
1. those acquired by onerous title during
marriage at the expense of the common
fund, whether the acquisition be for the
partnership or for only one of the spouses;
2. those obtained from the labor, industry,
work or profession of either or both of the
spouses;
 even if the spouses are living separately. (Case:
3. the fruits, natural, industrial or civil due or Wong vs. IAC, 200 SCRA 792)
received during the marriage from the
common property, as well as the net fruits > Take note: Special Rule for Insurance: If
from the exclusive property of each spouse; the beneficiary is a person OTHER THAN the
insured or his estate, the irrevocable beneficiary
4. the share of either spouse in the hidden has a vested right to the insurance indemnity
treasure which the law awards to the finder except, when the insured reserved the right to
or owner of the property where the change the beneficiary . This is true regardless
treasure is found; of whether the premiums were paid from the
insured’s separate property or from conjugal funds.
5. those acquired through occupation such (Case: del Val vs. del Val, 29 Phil. 534)
as fishing and hunting;

6. livestock existing upon the dissolution of

the partnership in excess of the number of Art. 118- Property brought on installments paid
each kind brought to the marriage by either partly from exclusive funds from either or both
spouse; and spouses and partly from conjugal funds belong
to the buyer or buyers if full ownership was
7. those which are acquired by chance, vested before the marriage and to the
such as winnings from gambling or betting. conjugal partnership if such ownership was
However, losses therefrom shall be borne vested during the marriage. In either case,
exclusively by the loser-spouse. any amount advanced by the partnership or by
either or both spouses shall be reimbursed by the
owner or owners upon liquidation of ownership.
> Take note: property acquired during the
marriage with conjugal funds pertain to the
conjugal partnership regardless of the form in >Take note: Rule when improvement is
which the title is then or thereafter taken. (Case: introduced by the conjugal partnership on the land
Flores and Flores vs. Flores , 48 Phil. 288) belonging to either spouse:

> Take note: all properties acquired by either * either conjugal or exclusive
spouse during the marriage are presumed
conjugal even if declared in the name of one
spouse only. And this presumption holds true

117
Verily, a) when the cost of improvement is more
than the value of the land at the time of the
improvement- the entire property shall belong to
the conjugal partnership subject of course to
reimbursement upon liquidation of the conjugal
partnership.
b.) but if, the land is more valuable than the
improvement, then the land and the improvement
shall belong to the owner-spouse subject again to
reimbursement upon liquidation. Thus, ownership
is transferred only upon liquidation of the
conjugal partnership. (Case: Francisco Munoz
Jr. vs. Ramirez, GR No. 156125, August 25,
2010)
Art. 119- Whenever an amount or credit
payable within a period of time belongs to
one of the spouses , the sums which may
be collected during the marriage in partial
payments or by installments on the principal
shall be exclusive property of the spouse.
However, interests falling due during the
marriage on the principal shall belong to the
conjugal partnership.
> Take note: installments paid by creditor during
marriage- owned by the owner-spouse. But,
interest on the installments collected shall belong
to the conjugal partnership. Reason: interests are
fruits.
118
Art. 120- The ownership of improvements
whether for utility or adornment, made on
the separate property of the spouses at the
expense of the partnership or through the
acts or efforts of either or both of the
spouses shall pertain to the conjugal
partnership or to the original owner- spouse,
subject to the following rules:
When the cost of improvement made
by the conjugal partnership and any
resulting increase in the value of the
property are more than the value of the
property at the time of the improvement, the
entire property of one of the spouses shall
belong to the conjugal partnership subject to
the reimbursement of the value of the
property of the owner-spouse at the time of
the improvement; otherwise said property
shall be retained in ownership by the owner
spouse, likewise subject to reimbursement of
the cost of the improvement.
In either case, the ownership of the
entire property shall be vested upon the
reimbursement, which shall be made at the
time of liquidation of the conjugal
partnership.
> explained in Art. 118
CHARGE UPON and OBLIGATIONS OF THE
CONJUGAL PARTNERSHIP
 7. Ante nuptial debts of either spouse in so far
Art. 121- The conjugal partnership shall be as they redounded to the benefit of the family;
liable for:
8. the value of what is donated or promised by
both spouses in favor of their common
1. the support of the spouses, their common legitimate children for the exclusive purpose
children and legitimate children of either of commencing or completing a professional
spouse; however, the support of the or vocational course or other activity for self
illegitimate children shall be governed by the improvement;
provision of this Code on support. ( Art 197
Family Code); 9. expenses litigation between spouses unless
the suit is found to be groundless.
2. all debts and obligations contracted during
the marriage by the designated administrator-
spouse for the benefit of the conjugal If the conjugal partnership is insufficient, to
partnership of gains, or by both spouses, or cover the foregoing liabilities, the spouses
by one spouse with the consent of the other. shall be solidarily liable for the unpaid
balance with their separate properties.”
3. debts and obligations contracted by other
spouse without the consent of the other to the
extent that the family may have been >* Take note: same as Art. 194 or the
benefited. obligation of the absolute community except that
Par. 9 (refers to the three personal obligations of
4. all taxes, liens, repairs, expenses including the spouses i.e., antenuptial debts which did
major or minor repairs, upon the conjugal not redound to the benefit of the family,
partnership of property; support of illegitimate children and, civil
liabilities arising from crime committed) is not
5. all taxes and expenses for mere preservation reproduced because it is treated by Art. 122
made upon the separate property of either separately. Personal debts or obligations are
spouse; tackled under Art. 123.

6. expenses to enable either spouse to

commence or complete a professional or > Take note of the following cases:
vocational course, or other activity for self-
improvement; * Ayala Investment and Development Corp.
vs. CA, GR No. 118305, Feb. 12, 1998- a surety

119
agreement or an accommodation contract entered Art. 122- The payment of personal debts
into by a husband in favor of his employer could contracted by the husband or the wife
not be said to be within the “context of before or during the marriage shall not be
obligation for the benefit of the family”. charged to the conjugal partnership except in
so far as they redounded to the benefit of
* Spouses Buado vs. CA and Nicol, GR No. the family.
145222, April 24, 2009- personal debts
contracted by the husband and the wife before Neither shall the fines and pecuniary
or during the marriage shall not be charged to the indemnities imposed upon them be charged to
conjugal partnership except in so far as they the partnership.
redounded to the benefit of the family.
However, the payment of personal
* Johnson and Johnson Phil. Inc. vs. CA and debts contracted by either spouse before
Alejo Vinluan, GR No. 102692, Sept. 23, 1996, the marriage, that of fines and indemnities
“debts without marital consent are not chargeable imposed upon them, as well as the support
to the conjugal partnership except when they of illegitimate children of either spouse, may
redounded to the benefit of the family”. be enforced against the partnership assets
after the responsibilities enumerated in the
**Buado vs. CA, 586 SCRA 397, where it was preceding article have been covered , if the
ruled “ that the conjugal partnership was not liable spouse who is bound should have no
for the obligation of the wife arising from criminal exclusive property or if it should be
liability because there was no showing that the insufficient; but at the time of the liquidation
responsibilities enumerated in Art. 121of the Family of the partnership, such spouse shall be
Code have been covered out of the partnership charged for what has been paid for the
assets.” Simply put, the payment of the purposes above mentioned.
responsibilities covered by Art. 121 is a
condition sine qua non before the partnership
assets will be used to pay criminal indemnities. > explained in the preceding article.
Same ruling was adapted in the cases of Dewara
vs, Lamela, 647 SCRA 483[2011]) and Pana >Case: Dewara vs. Lamela, 647 SCRA 483,
vs. Heirs of Jose Juanite, Sr., 687 SCRA Art. 122 allows the payment of criminal
414[2012]. indemnities even prior to liquidation of the
conjugal partnership, so long as the liabilities
covered by Art. 121 have been covered.

120
Art. 123- Whatever may be lost during the
marriage in any game of chance or in
betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by
law, shall be borne by the loser and shall
not be charged to the conjugal partnership
but any winnings therefrom shall form part of
the conjugal partnership property.
> self explanatory
Art. 124 - The administration and enjoyment
of the conjugal partnership shall belong to
both spouses jointly. In case of
disagreement, the husband’s decision shall
prevail, subject to recourse to the Court by
the wife for a proper remedy, which may be
availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of conjugal
properties, the other spouse may assume
sole powers of administration. These powers
do not include the powers of disposition or
encumbrance without authority of the Court
or the written consent of the other spouse.
In the absence of such authority or consent,
the disposition or encumbrance shall be void.
However the transaction shall be considered
as a continuing offer on the part of the
consenting spouse and the third person, and
may be perfected as a binding contract upon
121
the acceptance by the other spouse or
authorization by the Court before the offer
is withdrawn by either or both offerors.”
> same as Art. 96. The only difference is, the
latter refers to absolute community while the
former refers to conjugal partnership of property.
> Take note of the following cases:
1. Spouses Ravina vs. Villa Abrille, et.al., GR
No. 160708, October 16, 2009[604 SCRA 120]-
if the husband, without the knowledge and
consent of the wife, sells conjugal property,
the sale is void. If the sale is with the
knowledge but without the approval of the
wife, thereby resulting in disagreement, such
sale is annullable at the instance of the wife
within five (5) years from the date of the contract
implementing the decision of the husband- to
institute the case.
2. Fuentes vs. Roca, GR No. 178902, April 21,
2010- If the sale without the consent of the wife
was made [after the effectivity of the Family
Code] , the sale is VOID, even if the spouses were
married before the Family Code. But, if the
sale is [before the effectivity of the Family
Code], it is only VOIDABLE. The spouse can
question the sale within a period of TEN (10)
years, otherwise the action prescribes.
3.**The cases of Bautista vs. Silva, 502 SCRA
334 [2006] and Aggabao vs. Parulan, G.R. No.
165803, Sept. 1, 2010, where the Supreme Court
laid down the two kinds of requisite diligence [to
determine good faith] to be observed by buyers
of conjugal property: a) the diligence in verifying
the validity of the title covering the property and
b) the diligence in inquiring into the authority of
the transacting spouse to sell the conjugal
property in behalf of the other spouse, i.e., whether
or not the husband/wife obtain the consent of the
other.
Art. 125. “Neither spouse may donate any
conjugal partnership property without the
consent of the other. However either spouse
may, without the consent of the other, make
moderate donations from the community
property for charity or on occasion of family
rejoicing or family distress”.
> self explanatory
DISSOLUTION OF CONJUGAL PARTNERSHIP
REGIME
Art. 126 – The conjugal partnership terminates:
1. upon death of either spouse;
(will result to co-ownership of the conjugal
partnership property between the surviving spouse
and children)
122
2. when there is a decree of legal separation;
3. when marriage is annulled declared void; or
4. in case of judicial separation of property during
marriage under Articles 134-138. ( separation of
property of spouses & administration of property
by one spouse during the marriage)
(Note: same as Art. 99, just a change
in the property regime)
> self explanatory
Art 127. The separation in fact between
husband and wife shall not affect the regime
of conjugal partnership, except that:
1. the spouse who leaves the
conjugal home or refuses to live therein,
without just cause, shall not have the right
to be supported;
2. when the consent of one spouse
to any transaction of the other is required
by law, judicial authorization shall be
obtained in a summary proceeding;
3. in the absence of sufficient
conjugal partnership property, the separate
property of both spouses shall be solidarily
liable for the support of the family. The
spouse present shall, upon petition in a
summary proceeding, be given judicial
authority to administer or encumber any > talks of the concept of abandonment
specific separate property of the other > remedies of the present spouse
spouse and use the fruits or proceeds thereof
to satisfy the latter’s share.

> effects of separation in fact between the LIQUIDATION OF THE CONJUGAL

spouse. PARTNERSHIP ASSETS AND LIABILITIES

Art. 128- If a spouse without just cause

abandons the other or fails to comply with Art. 129. “ Upon the dissolution of the
his or her obligation to the family, the conjugal partnership regime, the following
aggrieved spouse may petition the Court for procedure shall apply: [ almost same
receivership, judicial separation of property, with Art. 102]
or for authority to be the sole administrator
of the conjugal partnership property, subject
to the precautionary conditions as the Court 1. an inventory shall be prepared,
may impose. listing separately all the properties of the
conjugal partnership and the exclusive
properties of the spouse.
The obligations to the family
mentioned in the preceding paragraph refer 2. amounts advanced by the conjugal
to marital, parental or property relations. partnership in payment of personal debts and
obligations of either spouse shall be credited
to the conjugal partnership as an asset
The spouse is deemed to have thereof.
abandoned the other when he or she has
left the conjugal dwelling without the 3. Each spouse shall be reimbursed
intention of returning. The spouse who left for the use of his or her exclusive funds in
the conjugal dwelling for a period of three the acquisition of property or for the value
months or has failed within said period to of his or her exclusive property, the
give any information as to his or her ownership of which has been vested by law
whereabouts shall be presumed to have no in the conjugal partnership.
intention of returning in the family dwelling.

123
4. The . debts and obligations of the conjugal with whom majority of the common children
partnership shall be paid out of the conjugal choose to remain. Children below the age of
assets. In case of insufficiency of said seven (7) years are deemed to have chosen
assets, the spouses shall be solidarily liable for the mother, unless the Court has decided
the unpaid balance with their separate otherwise. In case there is no such majority,
properties in accordance with the provisions the court shall decide, taking into
of paragraph (2) of f Art. 121. consideration the best interest of the said
children.
5. Whatever remains of the exclusive
properties of the spouses shall thereafter
delivered to each of them. Art. 130 - “ Upon the termination of the
marriage by death, the conjugal partnership
6. Unless the owner has been indemnified property shall be liquidated in the same
from whatever source, the loss or proceeding for the settlement of the estate
deterioration of movables used for the of the deceased. [same with Art. 103, differs
benefit of the family, belonging to either only on the property regime].
spouse, even due to fortuitous event, shall be
paid to said spouse from the conjugal funds, If no judicial settlement proceeding is
if any. instituted, the surviving spouse shall
liquidate the community property either
7. The net remainder of the conjugal judicially or extra-judicially within one (1)
partnership properties shall constitute the year from the death of the deceased spouse.
profits, which shall be divided equally between If upon the lapse of the said period, no
husband and wife, unless a different liquidation is made, any disposition or
proportion or division was agreed upon in the encumbrance involving the community
marriage settlements or unless there has property of the terminated marriage shall be
been a voluntary waiver of such share as void.
provided in this Code.
Should the surviving spouse contract a
8. The presumptive legitimes of the common subsequent marriage without compliance with
children shall be delivered upon partition, in the foregoing requirements, a mandatory
accordance with Art. 51; regime of complete separation of property
shall govern the property relations of the
9. In the partition of the properties, the subsequent marriage. “
conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse

124
>**Take note: of the case of the Heirs of
Patricio Go, Sr. and Marta Barola vs. Servacio, Art. 133- From the common mass of property
657 SCRA 10, where the Supreme Court ruled support shall be given to the surviving
that “the disposition by sale of a portion of the spouse and to the children during the
conjugal property by the surviving spouse without liquidation of the inventoried property and
the prior liquidation mandated by Art. 130 of the until what belongs to then is delivered ; but
Family Court is not necessarily void if said from this shall be deducted that amount
portion has not yet been allocated by judicial or received for support which exceeds the fruits
extrajudicial partition to another heir of the or rents pertaining to them.
deceased spouse”. [please note that in this case,
the sale was made prior to the Family Code]

Art. 131- “ Whenever the liquidation of the

conjugal partnership property of two or
more marriages contracted by the same
person before the effectivity of this Code is
carried out simultaneously, the respective
capital, fruits and income of each community SEPARATION OF PROPERTY OF THE SPOUSES
shall be determined upon such proof as may AND ADMINISTRATION OF COMMON
be considered according to the rules on PROPERTY BY ONE SPOUSE DURING THE
evidence. In case of doubt as to which MARRIAGE
partnership the existing properties belong,
the same shall be divided between the
different communities in proportion to the
capital and duration of each.” [same as Art. Art. 134- In the absence of an express
104] declaration in the marriage settlement, the
separation of property between spouses
during the marriage shall not take place
Art. 132- The Rules of Court in the except by judicial order. Such judicial
administration of estates of deceased separation of property may either be
persons shall be observed in the appraisal voluntary or for sufficient cause.
and sale of property of the conjugal
partnership, and other matters which are not
expressly determined in this Chapter. > Take note: applies also even if the property
regime between the spouses is other than
complete separation of property.

125
 judgment against the guilty or absent spouse
shall be enough basis for the grant of the
decree of judicial separation of property.
Art. 135- Any of the following shall be
considered sufficient cause for judicial
separation of property. > Take note: these grounds are exclusive.

1. that the spouse of the petitioner has Art. 136- The spouses may jointly file a
been sentenced to a penalty which carries verified petition with the Court for the
with it civil interdiction. voluntary dissolution of the absolute
community or the conjugal partnership of
2. that the spouse of the petitioner has been gains, and for the separation of their
judicially declared an absentee; common properties.

3. that the loss of parental authority of the All creditors of the absolute
spouse of the petitioner has been declared by community or the conjugal partnership of
the Court; gains, as well as the personal creditors of
the spouse, shall be listed in the petition and
4. that the spouse of the petitioner has notified of the filing thereof. The Court shall
abandoned the latter or failed to comply with take measures to protect the creditors and
his or her obligations to the family as other persons with pecuniary interest.
provided for in Art. 101;

5. that the spouse granted the power of > Take note: the petition must be verified.
administration in the marriage settlement has
abused that power;
Art. 137- Once the separation of property
6. that at the time of the petition, the has been decreed, the absolute community
spouses has been separated in fact for at or the conjugal partnership of gains shall be
least one year and reconciliation is highly liquidated in conformity with this Code.
improbable;
During the pendency of the
proceedings for separation of property, the
In cases provided for in Numbers (1), (2) absolute community or the conjugal
and (3), the presentation of the final

126
partnership shall pay for the support of the
spouses and their children.
> self explanatory
Art. 138 - After the dissolution of the
absolute community or the conjugal
partnership, the provisions on complete
separation of property apply.
> self explanatory
Art. 139 - The petition for separation of
property and the final judgment granting the
same shall be recorded in the proper local
civil registries of property.
> What are to be recorded:
1. the petition for separation of property
2. the final judgment granting the same.
Art. 140 – The separation of property shall not
prejudice the rights previously acquired by
creditors.
> self explanatory
127
Art. 141- The spouses may, in the same
proceedings where separation of property
was decreed, file a motion in court for a
decree reviving the property regime that
existed between them before the separation
of property in any of the following
instances:
1. when the civil interdiction terminates;
2. when the absentee spouse reappears;
3. when the court, being satisfied that the
spouse granted the power of administration
in the marriage settlement will not again
abuse that power, authorizes the resumption
of said administration;
4. when the spouse who has left the conjugal
home without a decree of legal separation
resumes common life with the other;
5. when parental authority is judicially
restored to the spouse previously deprived
thereof;
6. when the spouses who have separated in
fact for at least one year, reconcile and
resume common life; or
7. when after voluntary dissolution of the
absolute community of property or conjugal
partnership has been judicially decreed upon
joint petition of the spouses, they agree to
the revival of the former property regime. No
voluntary separation of property may
thereafter be granted.
The revival of the former property regime
shall be governed by Art. 67. [ i.e., should be
registered]

>simply put: when any of the grounds for judicial
separation of property ceases to exist.
Art. 142- The administration of all classes of
exclusive property of either spouse may be
transferred by the court to the other spouse:
1. when one spouse becomes the guardian of
the other;
2. when the spouse is judicially declared an
absentee;
3. when one spouse is sentenced to a penalty
which carries with it civil interdiction; or
4. when one spouse becomes a fugitive from
justice or is in hiding as an accused in a
criminal case.
If the other spouse is not qualified by reason
of incompetence, conflict of interest, or any
other just cause, the court shall appoint a
suitable person to be the administrator.
>deals with administration by the wife alone or by
the husband alone of the separate properties.
128
REGIME OF SEPARATION OF PROPERTY
Art. 143 – Should the future spouses agree
in the marriage settlements that their
property relation during marriage shall be
governed by the regime of separation of
property, the provisions of this Chapter shall
be suppletory.
> Take note: this is based on distrust.
> System of Separation of property defined- it is
that matrimonial property regime agreed upon in
the marriage settlement by the future spouses
whereby each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate
estate and earnings without the consent of the
other, with each spouse proportionately bearing the
family expenses in accordance to their earnings and
profits.
> take note: once complete separation of
property is agreed in the marriage settlement, this
could not be converted into conjugal partnership
of gains however the conjugal partnership of
gains can be converted into complete separation of
property during the marriage, provided there is
judicial approval.
Art. 144- Separation of property may refer to
present or future property or both. It may be
total or partial. In the latter case, the a void marriage, their wages and salaries shall
property not agreed upon as separate shall be owned by them in equal shares and the
pertain to the absolute community. property acquired by both of them through
their work or industry shall be governed by
the rules on co-ownership.
Art. 145 - Each spouse shall own, dispose of,
possess, administer and enjoy his or her own In the absence of proof to the
separate estate, without need of the consent contrary, properties acquired while they lived
of the other. To each spouse shall belong all together shall be presumed to have been
earnings from his or her profession, business obtained by their joint efforts, work or
or industry and all fruits, natural, industrial or industry, and shall be owned by them in equal
civil, due or received during the marriage from shares. For purposes of this article, a party
his or her separate property. who did not participate in the acquisition by
the other party of any property shall be
deemed to have contributed jointly in the
Art. 146- Both spouses shall bear the family acquisition thereof if the former’s efforts
expenses in proportion to their income, or, in consisted in the care and maintenance of
case of insufficiency or default thereof, to the the family and household.
current market value of their separate
properties. Neither party can encumber or dispose
by acts inter vivos of his or her share in the
The liability of the spouses to property acquired during cohabitation and
creditors for family expenses shall, however, owned in common, without the consent of the
be solidary. other, until the termination of their
cohabitation.

When one of the parties to a void

PROPERTY REGIME OF UNION WITHOUT marriage is in good faith, the share of the
MARRIAGE party in bad faith in the co-ownership shall be
forfeited in favor of their common children.
In case of default of or waiver by any or all
of the common children or their descendants,
Art. 147- When a man and a woman who are each vacant share shall belong to their
capacitated to marry each other, live respective surviving descendants. In the
exclusively with each other as husband and absence of descendants such share shall
wife without the benefit of marriage or under belong to the innocent party. In all cases,

129
the forfeiture shall take place upon that the decree of absolute nullity or decree of
termination of the cohabitation. annulment shall be issued by the Court only
after compliance with Art. 50 and 51 of the
Family Code as implemented under the Rule on
> Take note: of the requisites for this article to Liquidation, Partition and Distribution of Properties”.
apply:

1. both parties must be capacitated to marry each Art. 148- In cases of cohabitation not falling
other. under the preceding article, only the
(talks about legal capacity, ex: age and properties acquired by both of the parties
gender) NOT the impediment as provided for through their actual joint contribution of
under Arts. 37 and 38 of the Family Code) money, property or industry shall be owned
by them in common in proportion to their
2. there is no marriage or the marriage is void. respective contributions. In the absence of
proof to the contrary, their contributions and
> presumption of equal shares between the parties corresponding shares are presumed to be equal.
and properties acquired during their cohabitation The same rule and presumption shall apply
shall be governed by the rules on co-ownership. to joint deposits of money and evidences of
(Case: Valdez vs. RTC- QC (Br. 102) and credit.
Consuelo Valdez, GR No. 122749, July 31,
1996, 72 SCAD 967) If one of the parties is validly
married to another, his or her share in the co-
> not applicable in bigamous marriage. ownership shall accrue to the absolute community
or conjugal partnership existing in such valid
> when the spouses were married before the marriage. If the party who acted in bad faith
effectivity of the Family Code, the provisions of the is not validly married to another, his or her
Civil Code apply. (Case: Castro vs. Miat, 397 share shall be forfeited in the manner
SCRA 271) provided in the last paragraph of the
preceding article.
**> Take note: Sec. 19(1) of A.M. No. 02-11-10-
SC does not apply to cases governed under Articles The foregoing rule on forfeiture shall
147 and 148. (Case: Dino vs. Dino, 640 SCRA likewise apply even if both parties are in bad
178[2011]). This section states that: faith.

Sec.19. Decision- (1) if the Court renders a

decision granting the petition, it shall declare therein

130
> the rule is applicable in bigamous marriage and 2. equally protect the life of the mother and the
in cases of incestuous union, even if the unborn from conception.
marriage did not take place.
3. support the primary right and duty of parents in
>Case: Adriano vs. CA, 385 Phil 474, rearing the youth
the fact that the property in issue is in the name of
the parties to an adulterous relationship is not Other provisions of the constitution
sufficient proof of co-ownership absent evidence recognizing family life:
of actual contribution in the acquisition of said
property. sec. 1 – recognizes the Filipino family as of the
foundation of the nation

sec. 2 – marriage as an inviolable social institution,

foundation of the family and shall be protected by
the state
THE FAMILY
sec. 3 – the state shall defend:

Art 149 – the family being the foundation of 1. right of spouse to form a family in
the nation is a basic social institution w/c accordance of religious conviction and demands of
public policy services and protects. responsible parenthood.
Consequently, family relation are governed by
law and no action, practices or argument
destructive of the family shall be recognized or 2. right of the children to assistance including
given effect. ( consideration of Art. 216 – 218 of proper case and retirement special protection for all
the CC) forms of neglect, abuse , cruelty and other
conditions prejudiced their development ( reason for
RA 7610)
 Take note: of the importance of the family
as emphasized under sec. 12, art II, 1987
constitution where it states the following: 3. right of the family to a family living wage and
income and;

1. recognizes the sanctity of family life

131
4. the right of families or family associations to
participate in the planning &implementation of
prospects affecting them.
5. sec. 4 – the family has the duty to take care of
its elderly members but the state may also do so
through programs of social security (senior citizens)
Art. 150 – family relations include those:
1. between husband and wife.
2. between parents and children
3. among other ascendants
descendants and
4. among brothers and sisters whether of the
full of half blood.
*does not include brother in law or sister in law
Art. 151 – no suit between members of the
same family shall prosper unless it would
appear from the verified compliant or petition
that earnest efforts towards a compromise
have been made, but that the same failed. If it
is shown that no such efforts were in fact
made, the case be dismissed.
*not applicable to cases which may not be subjected
to a compromise agreement
FAMILY HOME:
Art. 152 – the family home, constituted jointly
by the husband and the wife or by an
unmarried head of a family – is the dwelling
home where they and their family reside and
the land on which it is extended.
>once it is resided – it becomes automatically a
family home – no more judicial constitution of family
home.
and
 it is exempt from executions, forced sale or
attachment as a general rule
Case : Valdez v. RTC of QC, et. al.
GR No. 122749 July 31, 1996
*concept of family home remains in force and effect
regardless of the property regime of the spouses.
Not a family home when:
a. none of the family members reside therein as it is
merely used as bodega or store
132
b. even if they sleep there but do not use it as 3. The increased value exceeded the
their homes maximum allowed by law under Art. 157.

Case: Manacop vs. CA, et al Art. 154 – Beneficiaries of a family home

GR No. 97898 august 11 1997
1. the husband and wife or an unmarried
Take Note: In-laws (included in the family home. person who is a head of a family and
Actual occupancy of the family home either by the
owner or by any of the beneficiaries must be actual. 2. their parents, ascendants, descendants,
brothers and sisters whether the relationship
be legitimate or illegitimate who are living in
 Take note: If the increase in the value of the family home and who depend upon the
the family home is by reason of involuntary head of the family for legal support.
improvement, [like the conversion into a
residential area or the establishment of roads] the
one establishing the family home should not
be punished by making his home liable to Art. 155 – the family home shall be exempt
creditors [Case: Eulogio vs. Bell Sr., 762 SCRA from execution, forced sale or attachment
103]. It remains free from attachment and except:
forced sale.
1. non payment of taxes
 If the increase in the value is
VOLUNTARY [improvement ], thereby 2. for debts insured prior to the
exceeding the maximum amount, Art. 160 construction of the family home
applies. To apply Art. 160, the following
requisites must be present: 3. for debts secured by mortgage on the
premises before or after such construction and

1. There was an increase in its actual
value
2. The increase resulted from voluntary
improvements on the property introduced by
the persons constituting the family home, its
owners or any of its beneficiaries;
4. for debts due to laborers, mechanics,
architects, builders, material men and others
who have rendered services or furnished
materials for the construction of the building.

133
Art. 156 – the family home is a part of the
property of the absolute community or the
conjugal partnership. It can also be a part of
the exclusive property of the husband and
wife.
Art. 157 – talks about the value of the family
home depending upon its location.
 does not exceed Php.300,000 in the urban
areas and Php 200,000 in rural areas at the time of
its construction.
Art. 158 – family home may be sold, alienated,
donated, assigned or encumbered by the owner
or owners thereof with the written consent of
the person constituting the same, the latter’s
spouse and a majority of the beneficiaries of
legal age. In case of conflict, the court
decides.
Art. 159 – Lifetime of Family Home
 the family home should continue despite the
death of one or both of the spouses or of the
unmarried head of the family for a period of 10
years for as long as there is a minor
beneficiary.
>no partition except there is a compelling reason to
justify the same.
134
Art. 160 – contemplates a situation where a
person has to claim against owners of a family
home but not falling under the cases where the
Family Home can be attached or levied and the
Family Home is more than 300,000 or 200,000
as the case may be:
 Take Note : *creditors can go against
the Family Home
Conditions:
1. there must be a suit for collection
2. apply to the court for a judgment directing the
sale of the Family Home
3. Family home must exceed the maximum amount
provided by the law
4. proceeds must be distributed as follows:
a. maximum value of Family Home
b. credit
c. excess be given to Family Home owners
Art. 161 – one person can only have one family
home
>the rest of his houses and lots could not be
considered as family home.
Art 162 – simply means:
 all existing family
residences at the time the Family Home was Art 164 – refers to legitimate children or those
constituted are prospectively entitled to the benefits conceived and born during marriage
accorded to a family home.
 even those born of
marriages which are absolute nullity so long as they
are born prior to their declaration as such.

* final judgment is the reckoning incident here.

PATERNITY and FILIATION:

Rules on Artificial Insemination

Definition: refers to the relationship between
parent and the child.
> created either by nature or imitation of nature
( ex: adoption)
the
1. children are legitimate – regardless of whose
sperm he/she comes from or who the donor is.
Requirements for valid insemination:

Paternity- civil status of the father with regard to 1. must be authorized by both husband and wife.
the child [this should be done before insemination]

Maternity- civil status of the mother with regard 2. or must be ratified by the one who did not or
to the child. was not able to give his authority before the
insemination took place. [should be done after
insemination or before the birth of the child]

Legitimate Children 3. authorization and ratification must be in a written

instrument signed by both parents before the birth
of the child.
Art 163 – children may be by nature or by adoption
4. the written instrument must be registered with
 Natural filiation may be legitimate or the civil registry together with the birth certificate.
illegitimate Otherwise, the child is illegitimate

135

Take note of the following situations:
1. children born of marriages under Art. 54 (or
before the marriage is annulled) are LEGITIMATE.
1) under Art 35. – marriages which are void
from the very beginning. [ even if not declared as
such]
2) under Art. 37 – incestuous marriages

2. children born of marriages under Art. 36 (or 3) under Art. 38 – void by reason of public policy
before the declaration of nullity of marriage ) are
LEGITIMATE. Art. 166 – Grounds for impugning legitimacy

3. children born of marriages under Art. 53 ( or
subsequent marriages) - or where there is failure to
partition the property of previous marriage are
PRESUMED LEGITIMATE. The same is true if
there is failure to record the decree of
annulment or the decree of nullity of marriage.
Reason: the law is in favor of LEGITIMACY.
1. that it is physically impossible for the Husband to
have sexual intercourse with his Wife within the
first 120 days of the 300 days which immediately
preceded the birth of the child because:
a. of physical incapacity/ impotency
b. the husband and wife are living separately in
such a way that sexual intercourse is not possible

Art. 165 – refers to Illegitimate Children c. of serious illness of the husband which absolutely
prevented sexual intercourse.

> those conceived and born outside a valid 2. if it is proved that for biological or scientific
marriage reasons, the child could not have been that of the
husband except in the instance provided for in the
Take note: * all children born under marriages that 2nd part of Art. 164.
are void, except those marriages which produce
legitimate children ( under Art 36, 53, 54 and 55). 3. in case of artificial insemination, the written
authorization or ratification of either parent was
Take note: the following marriages produce obtained through fraud, mistake, violence,
illegitimate children: intimidation and undue influence.

136
>the father can impugn but not the mother
even if she declared said child as such or has been
sentenced as adulteress.
>** CASES RELATIVE TO THE ISSUE ON
PATERNITY:
1. De Aparicio v. Paraguya, L299771, May 29,
1987 [syphilis is a serious illness]
2. Jao v. CA, GR No. L 49162, July 28 1987,
[blood grouping test may be conclusive as to non
paternity not conclusive as to paternity.
3.Agustin vs. Court of Appeals, 460 SCRA 315,
where the Court ruled that DNA testing is a valid
means of determining paternity.
4.** Estate of Rogelio Ong vs. Diaz, G.R. No.
171713, December 17, 2007, where the Court
ruled that the death of the claimed father does not
ipso facto negate the application of DNA testing for
as long as there exists appropriate biological
samples of his DNA.
5.**Lucas vs. Lucas, 650 SCRA 667[2011],
where the Court ruled that, to warrant the
issuance of the DNA testing order, there must be
a show cause hearing where the applicant
should show sufficient evidence to establish a prima
facie case or a reasonable possibility of paternity
or good cause for the holding of the test.
137
Art. 167 – the child may be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced adulteress.
Art 168 –
General Rule: law prohibits a woman whose
marriage with a man has been terminated by death
from marrying within 300 days after its
termination to prevent doubtful paternity.
Except: if the woman remarries within 300days,
but prior to the marriage she has already given birth
to a child conceived prior to the death of the
husband.
But if this happens, the rules are:
1. child born before 6 months after solemnization
of the subsequent marriage is considered to have
been conceived during the former marriage provided
it be born within 300 days after the termination of
the former marriage.
2. a child born after 100 days following the
celebration of the subsequent marriage is considered
to have been conceived during such marriage even
though born within 300 days after the termination
of the former marriage.
Art. 169 – the legitimacy / illegitimacy of a
child born after 300 days following the
termination of the marriage shall be proven by
whoever alleges such legitimacy or illegitimacy
*Reason: legitimacy is presumed
Art. 170 – prescriptive period within which to
impugn the legitimacy of a child by the
husband or any of his heirs.
Rules:
1. within one (1) year from knowledge of the
birth or its recording in the civil registry if the
husband or any of his heirs are residing in the
municipality where the birth took place.
2. within two(2) years if the husband or any of
his heirs are not residing in the place where the
birth is recorded. [i.e. if they are residing in the
Philippines].
3. within three (3) years if the husband or any of
his heirs are living abroad.
Art. 171 – the heirs of the husband may impugn
the filiation of a child within the period (1, 2, 3
yrs)
Only in the following cases:
138
1. if the husband should die before the expiration of
the period fixed for bringing the action
2. if husband should die after the filing of the
complaint without having desisted there from
3. if the child was born after the death of the
husband
Take note: only in these instances because the
right to contest legitimacy is transmissible to the
heirs who are affected in so far their legitime and
successional rights are concerned.
Art. 172 – Proof of Filiation
1. record of birth appearing with the Office of the
Local Civil Registrar or in a final judgment.
Take note: it must be signed by the putative father
to be admissible
*Case: Baluyot v. Baluyot, 186 SCRA 506
[unsigned birth certificate is not enough to establish
filiation].
>Take note however that in the case Ilano v CA 48
SCAD 43 (1994), the Supreme Court ruled that:
[even if an unsigned Birth Certificate is inadmissible
in evidence, if it is the father was the one who
supplied the data appearing therein, it can be
admissible in evidence]. Hence, a concrete proof is
needed. This ruling is sustained in the case of
Rodriguez v. CA et. al., 245 SCAD 150 where the
Supreme Court further stated that [the Family Code
now allows the establishment of illegitimate filiation
in the way and with the same evidence as legitimate
children].
2. admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the concerned.
Take note: In the absence of numbers 1 and 2,
legitimate filiation may be proven by:
a. open and continuous possession of the status of
legitimate child
b. any other means allowed by the Rules of Court
and Special Laws.
Examples:
a) Court order in an action to compel recognition
b) authentic writing which may be public or private
(ex: will). Take note however ; that private
writing must be in handwriting of the father and
must be signed by him.
>**Take note of the: case of Dela Cruz vs.
Gracia, 594 SCRA 648, where the Supreme Court
laid down the rules with respect to the requirement
of affixing the signature of a parent in a private
handwritten instrument where the admission of
filiation of a legitimate or illegitimate child is made:
139
1.where the private handwritten instrument is the
lone piece of evidence submitted to prove filiation,
there should be strict compliance with the
requirement that the same be signed by the
acknowledging parent; and
2.where the private handwritten instrument is
accompanied by other relevant and competent
evidence, it suffices that the claim of filiation therein
be shown to have been made and handwritten by the
acknowledging parent as it is merely corroborative of
such evidence. [ruled in the case of Aguilar vs.
Siasat, G.R. No. 200169, January 28, 2015].
>** Take note however, that in the case of Salas
vs. Matusalem, 705 SCRA 560[2013], the Court
ruled that, handwritten notes between the parties
showing their exchange of affectionate words and
romantic trysts are not sufficient to establish
filiation because they were unsigned and contain
no statement/ admission of paternity. Same ruling
was adapted in the case of Nepomuceno vs.
Lopez, 616 SCRA 145[2010]. Take note
further that: if the Birth Certificate of the
child was registered AFTER the death of the
putative father, thru “delayed registration”,
the same is not a competent proof of
paternity against the putative father because
he was not involved nor had a hand in its
preparation. [ Ara vs. Pizarro, 2017 case
___________]
>Take note: Baptismal Certificate or Photographs
are NOT evidence of filiation because there is no
showing that the father participated in
preparation.
>Take note of the following:
 filiation of illegitimate
children must be proven during the lifetime of
the father.
 Blood test not
evidence of filiation. Thus, in criminal prosecution for
rape, its evidenciary value is limited only to the
determination that anyone of the accused might be
the father. [Case: People v. Tumimpad 235 SCRA
483 (1994)]
 Unusual closeness to a
child is not a convincing proof of filiation [Case: Tan
v. Trocio, 191 SCRA 764
 For voluntary recognition
to be equivalent to filiation in the Family Code, it
must be exposed and expressed. [Case: Colorado
v. CA GR No. 39948, Feb. 28, 1985]
 open manifestation of the
deeds of a father is itself acknowledgement that a
child is his son / daughter. [Case: Reymond Pe
Lim vs. CA, 80 SCAD 685 (1997)].
* legitimacy of a child cannot be questioned
collaterally, it must be by a direct attack [Case:
Tison v. CA et. al., 85 SCAD (1997 case).
its Absolutely, not in an action for reconveyance of
property.
Degree of proof:
>open and continuous possession of the status of
illegitimacy meaning: uninterrupted and
consistent but does not require a particular length of
time but it must be complied w/ permanent intention
to consider the child as his illegitimate child
an
Art. 173 – action to claim legitimacy may be
bought by the child during his or her lifetime
and shall be transmitted to the heirs should the
child die during minority or in the state of
insanity. In this case, the heirs have a period of
five years within which to constitute the
action:
>Take note of the: condition and/or requirement
for this article to apply:
* it must be commenced by the child prior to her
death or that of his father.
Art. 174 – rights of legitimate children
1. to bear the surnames of the father and the
mother;
140
2. to receive support from their parents, ascendants
and descendants, brothers and sisters ;
3. to be entitled to legitime and other successional
rights;
 compulsory recognition is
governed by Art. 284 of the Civil Code thus, if the
Father or the Mother died during the minority of the
Child, the action may be brought within four (4)
years from the child becomes of age.

> 2. if the action is brought under the Family

Art 175 – period within which to establish Code
legitimacy

* must be brought during the lifetime of the father

 within the child’s lifetime
 transmissible to his heirs
( must be brought w/in 5 yrs from death or
becoming insane).
 Actions survives even
after the death of the child or of the father.
 Period w/in w/c to establish
illegitimacy: [ during the lifetime of the father ]
Take note however of the case of [Marquino et. al.,
v. IAC et. al., 52 SCAD 425] where the Supreme
Court ruled that [an action to establish filiation of
an illegitimate child, if the father died, survives the
death of the father.
 Take note of the following:
> 1. if the action is brought before the Family
Code:
 may be brought during
the lifetime of the child but it could be transmitted to
his heirs
**Art. 176- illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be
entitled to support in conformity with this
Code. The legitime of each illegitimate child
shall consist of one – half of the legitime of
a legitimate child. [amended by R.A. 9255].
>**Take note: that R.A.9255 gives illegitimate
children the right to decide if they want to use
the surname of their father or not. The
choice is with the child and the latter is not
under compulsion to use the surname of his
illegitimate father even if acknowledged or
recognized. The father could not insist. (Case:
Grande vs. Antonio, 716 SCRA 698 [2014].
Take note further that, the Supreme Court

141
declared as null and void the provision of the
Implementing Rules and Regulation ( IRR) of RA
9255, Office of the Local Civil Registrar Art. 181 – the legitimation of children who died
Administrative Order No. 1, Series of 2004 issued before the celebration of the marriage shall
by the NSO which makes it mandatory on the benefit their descendants
part of illegitimate children to use the
surname of their father upon recognition.
 even if the child is already dead, if the
parents would get married, the marriage could
redound to the benefit of his children
LEGITIMATED CHILDREN

Art. 177 – only children conceived and born Art. 182 – who can impugn legitimation
outside of wedlock of parents who at the time
of the conception of the former, were not
disqualified by any impediment to marry each  only those who are prejudiced of their rights
other may be legitimated.

> when
Art. 178 – legitimation shall take place by a
subsequent valid marriage between parties. * within five (5) years from the time their cause of
action accrues.
-
 if marriage is void, NO legitimation will
take place.
ADOPTION
 the annulment of a voidable marriage shall
not affect legitimation.
Defined: it is the judicial act that creates
between two persons certain relations, purely
Art. 179 – legitimated children shall enjoy the civil, of paternity and filiation. Process of
same rights as that of the legitimate children making a child whether related or not to the
adopter, possess in general, the rights accorded
Art. 180- the effects of legitimation shall to a legitimate child.
retroact to the time of child’s birth

142

Nature: proceeding in rem, hence publication is
Needed.
Old concept: to benefit the adopter
> for them to experience the feelings of parenthood.
Modern concept: for the benefit of children
to be adopted
Consideration: paramount or best interest of
the child
Hence: an adopted child becomes the child of the
adopters but not to become the relative of the
adopter’s relatives.
> Take note: the relationship established by
adoption is limited to the adopting parents and does
not extend to their other relatives except as
expressly provided by law. Thus, the adopted child
cannot be considered as a relative of the ascendants
and collateral relatives of the adopting parents nor
of the legitimate children which they may have
after the adoption, except that: the law imposes
certain impediments to marriage by reason of the
adoption ( ex. Adopter and adopter, adopted and
legitimate child of adopter, adopted or illegitimate
child of adopted), neither are the children of the
adopted considered as descendants of the
143
adopter. (Case: Santos v. Republic 21 S 379 ,
Teotico v. de Val 13 S 406).
Art 183 – qualifications of an adopter
a. must be of age ( at least 18 yrs old)
b. must be in possession of full civil capacity and
legal rights.
c. at least 16 yrs of age older than the adopter
unless the adopter is the parent by nature of
the adopted or is the spouse of the legitimate
parent of the person to be adopted.
> Take note of the General rule: only minors
may be adopted. However even if of age, he can be
adopted if the person sought to be adopted is the
child by nature of the adopter or of his or her
spouse and prior to the adoption said person has
been consistently considered and treated by the
adopter as his/her own child during minority.
Art 184 – the following persons may not adopt.
1. the guardian with respect to the ward prior to
the approval of the final accounts rendered
upon the termination of their guardianship relation ;
2. any person who has been convicted of a crime
involving moral turpitude; and
3. an alien
Except:

a. a former Filipino citizen who seeks to adopt a
relative by consanguinity;
b. one who seeks to adopt the legitimate child of
his/her Filipino spouse ; and
c. one who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse a relative by
consanguinity of the latter.
> aliens not included in the exception may adopt
Filipino children in accordance with the rules on
Inter Country Adoption (RA 8043)
> Take note: Art 184 – must be read together
with Art. 185 because Art. 185 is applicable/
mandatory if one of the adopters is an alien.
Art 185 – Husband and Wife must jointly adopt
except:
1. when one spouse seeks to adopt his own
illegitimate child and;
2. when one spouse seeks to adopt the
legitimate child of the other
>**this is mandatory because of the use of the
word must in the provision itself and “the word
shall in Sec. 7 of the Domestic Adoption Act.
144
(Case: Petition for Adoption of Michelle P. Lim
and Michael Jude P. Lim, 588 SCRA 98[2009]).
>**Take note: An exception to the rule that
spouses must jointly adopt is when one spouse
seeks to adopt his or her illegitimate child. The
following conditions must however be complied as
they are mandatory:
1.the adopting spouse must obtain the consent of
his/her spouse. (Case:Castro vs. Gregorio, 738
SCRA 415[2014]); and
2.the other spouse and other legitimate children
must be personally notified through personal
service of summons and it is not enough that they
are deemed notified through constructive service,
(Castro case)
**Query: What is the effect if the requirement on
personal notice is not complied. ANSWER: the
Court does not acquire jurisdiction over the
proceedings and the decision of the Court is null
and void.
Art 186 – provides that joint parental authority shall
be exercised by the spouses.
> Take note: case of the following cases:
1). Republic v. Hon Rodolfo Toledano et al. 52
SCAD 124 (1994), where the SC reversed the
decision of the RTC allowing the adoption of a minor
(brother of wife-petitioner Evelyn Clouse) SC said:
Art. 185 is all too clear and categorical such
that, there is no room for interpretation only
application, notwithstanding the fact that the
alien spouse had given his consent and
testified in court.
2. Republic v. CA et. al. Jan 24, 1992, GR No.
92326, where the SC allowed the adoption even if
the husband did not join his wife because the
petition was filed prior to the effectivity of the Family
Code, on the ground that though laws must not
be given retroactive effect, they must not be applied
as to defeat procedural steps completed before its
enactment.
2. Sayson v. CA , 205 SCRA 24, where it is
ruled that, any challenge to the validity of the
adoption cannot be made collaterally, as for example
in an action for partition, but it must be in a direct
proceedings finally addressing the issue.
RA No. 8043 – Inter Country Adoption Act of 1995
 this law was enacted by way of exception to
the rule that aliens cannot adopt in the Philippines: (
this is an exception to the exception)
> Basic policy:
* to provide every neglected and abandoned child
with a family that will provide such child with love
145
and care as well as opportunities for growth and
development.
> Nature:
* it allows aliens to adopt a Filipino child when the
latter cannot be adopted by a qualified Filipino
citizen or alien. Take note that: it singles out
neglected and abandoned child as priorities.
> Concept of inter-country adoption
*it is a social legal process of adopting a Filipino
child by a foreigner or a Filipino citizen permanently
residing abroad 1) where the petition is filed, 2) the
supervised trial custody is undertaken, and 3) the
decree of adoption is issued.
> child here means below 15
> Mechanics:
1. child must first be placed under adoption in the
Philippines before he is placed for inter country
adoption.
2. only legally free child (or one) who has been
voluntarily or involuntarily committed to the DSWD
in accordance with The Child and Youth Welfare
Code, PD 603), may be the subject of inter country
adoption.
> Who can adopt

* an alien or a Filipino citizen permanently
residing abroad who is:
a. at least 27 yrs. of age and at least 16 yrs. older
than the adoptee at the time of the application
unless the adopter is the parent by nature of
the child to be adopted or the spouse of such
parent
b. if married, husband and wife must jointly file
c. has the capacity to act and assume all rights and
responsibilities of parental authority under his
natural laws and has undergone counseling from
accredited counselor in his/her country.
d. not convicted of a crime involving moral turpitude
e. eligible to adopt under his own laws
f. can provide proper case, support and give
necessary moral value and example to all his
children to include the adopted.
g. agrees to uphold basic rights of a child and under
the Convention on the rights of the child
h. comes from a country with whom the Philippines
has diplomatic relation
i. has in possession of all the qualifications and
none of the disqualifications provided for under the
law and other applicable Philippine Laws
146
> where to file: EITHER
1. with the Philippine Regional Trial Court which
has jurisdiction over the child or;
2. with Inter Country Adoption Board through an
intermediate agency whether government or an
authorized accredited agency in the country of the
prospective adoptive parents.
> family selection matching:
*no child shall be matched to a foreign adoptive
family unless satisfactorily shown that a child cannot
be adopted locally.
> ** On the Requirement of a Certification
Declaring a Child Legally Available for
adoption issued by the DSWD:
>**Things to remember:
1. the process of obtaining it is entirely
administrative in nature in view of the amendment
of Sec.8 of R.A. 9523,( An Act requiring
Certification of the DSWD to Declare a Child
Legally Available for Adoption), which provides
that the process may be administrative or judicial.
2.applies only to surrendered, abandoned, neglected
and dependent child, ( Sec. 4, IRR of R.A. 9523).
3. no certification is needed in the following cases
which can be filed directly in Court:

a. adoption of an illegitimate child by any of
his/her biological parent;
b. adoption of a child by his/her step-parent
c. adoption of a child by a relative within the
4th degree of consanguinity or affinity.
> Sec 7: who may adopt
a. filipino citizen (same as FC)
b. any alien possessing same qualifications as that
of a Filipino national provided:
1. that his country has diplomatic relation with the
Philippines;
2. living in the Philippines for at least three(3) years
3. continuous stay prior to the filing of
application for adoption
4. maintains residence until the adoption decree is
entered
5. that he has been certified by his diplomatic or
consular office or any appropriate agency that he has
legal capacity to adopt in his / her country
6. that his government allows the adoptee to enter
his/her country of his/her adopted child
Provided further, that the requirement on
residency and certification may be waived in the
following cases:
a. a former Filipino citizen who seeks to adopt a
relative w/in the 4th degree of consanguinity or
affinity
b. one who seeks to adopt a legitimate son/
daughter of his/her Filipino spouse;
c. one who is married in a Filipino citizen and seeks
to adopt jointly w/ his/her spouse a relative w/in 4 th
degree of consanguinity or affinity of the Filipino
spouse.
> Husband and wife shall jointly adopt except in the
following cases:
the a. if one spouse seeks to adopt the legitimate
daughter or son of the other;
b. of one seeks to adopt his/her own illegitimate
child provided that the other spouse has signified
his/her consent. The consent of the latter is
mandatory, [Case: Castro vs, Gregorio, 738
SCRA 415(2014). The consent of the other
legitimate children is also needed and consent
must not be constructive. There is a need that
they be personally notified through personal
service of summons otherwise, the Court does
not acquire jurisdiction over the case and the
proceedings if any will be null and void.
147
c. spouses are legally separated from each other. c. the legitimate and adopted children or
descendant/s, ten (10) yrs of age or over of the
adopter/s
*Effect: joint parental authority
d. illegitimate children or descendant/s, ten (10)
> Sec. 8 – who may be adopted ( RA 8552) yrs of age or over of the adopter if living with the
adopter and the latter’s spouse if any;
a. any person below 18 yrs who has been
administratively or judicially declared available for e. the spouse, if any, of the adopter or the
adoption adoptee

b. the legitimate descendant/s of one spouse by the

other spouse
Art. 187 – the following may not be adopted:
c. an illegitimate descendant/s by a qualified adopter
to improve his/her right. a. a person of legal age unless (see prior
qualification)
d. any person of legal age who prior to the adoption
has been treated by the adopters as their own during b. an alien, whose government the Philippines has
his/her minority; no diplomatic relation;

e. a child whose adoption has been previously c. a person who was already adopted unless such
revoked; adoption has been previously is revoked or
rescinded.
f. a child whose biological or adoptive parents has
died provided no proceeding shall be initiated within
a month from the time of death.
Art. 188 – who can give consent (written)

Sec. 9 – whose consent is necessary : *same with Sec. 9 of RA 8552

a. adoptee; if 10 yrs on over

Art. 189- effects of adoption
b. biological parents, if none, guardians or the
custodian of the child

148
1. adopted shall become legitimate child of the Art. 190 – Rules on legal or intestate
adopter w/ reciprocal rights and obligations arising succession to the estate of the adopted
from the relationship of parent and child;

 2. parental authority of natural parents shall *legal or intestate succession shall be governed by
be terminated and shall be vested to adopters the following rules :
except if the adopter is the spouse of the parent by
nature in which case, joint parental authority will be
exercised. Take note however that: When the 1. legitimate and illegitimate children and
adopter dies during the minority of the adopted descendants and the surviving spouse of the adopted
child, the parental authority is restored to the shall inherent from the adopters in accordance
natural parents, applying by analogy the provisions with the ordinary rules
of Sec. 20 of the Domestic Adoption Act, [Case:
Bartolome vs. SSS, 740 SCRA 78(2014)]. * adopter does not share

2. when the parents, legitimate and illegitimate,

or the legitimate ascendants of the adopted concur
3. the adopted shall remain an intestate heir of with the adopters they shall divide the entire estate,
his parents and other blood relatives. one half to be inherited by the parents or
ascendants and one half by the adopters.

>Take note: of the retroactive effect of adoption 3. when surviving spouse or the illegitimate children
[date the petition for adoption] was filed i,e., the of the adopted concur w/ the adopters they shall
adopted shall enjoy the rights and privileges of a divide the entire estate, (1/2 sharing)
legitimate child. No retroactive effect however for
the purpose of attaching liability (derived from 4. when the adopter concurs with the
torts] to the adopting parents for acts committed illegitimate children and spouse of the adopter –
by the child prior to the latter’s adoption. (1/3 each)
Rationale: practically they do not have actual or
physical custody of the child or the control and 5. when only the adopters survive they shall inherit
supervision over the child yet. [Case: Tamargo the entire estate
vs. CA, 209 SCRA 518].
6. when only the collateral relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply

149
> Take note: natural parents are heirs of adopted
and the adoptive parents are likewise heir of adopted
> Take note: unlike the legitimate children, an
adopted shall not inherit from the ascendants
and other collateral relatives of adopting
parents, (Case: Sayson v. Sayson, 205 SCRA
321. * there is also no right of representation.
Art 191 – rescission of adoption
> by the adopted if of age already or by any
person authorized by the court or any government
instrumentality on his behalf. (Take note:
Rescission of adoption under the new rules can be
brought only by the adopted)
Art. 192 – grounds for rescission by adopters
(NO LONGER APPLICABLE)
Art. 193 – Effects of Judicial Rescission
1. the rights and obligations between the
adopter and the adopted arising from the
adoptive relationship cease.
2. the adopted loses the right to use the
adopter’s surname and shall resume the use of
his/her surname prior to the adoption.
150
3. parental authority shall be given back to the
parents by nature or if disqualified, then to a
court appointed guardian.
>**Query: What is the remedy if the adoption is
found to be obtained fraudulently:
Answer: Annulment of judgment. Prescriptive
Period: within four(4) years from the discovery of
extrinsic fraud. (Case: Castro vs. Gregorio, 738
SCRA 415[2014]).
>Take note of the other matters in adoption:
>When a child is placed under the foster care
[provision of planned temporary substitute
parental care to a child by a foster parent] of
foster parents [pursuant to the provisions of
RA10165] the latter shall have the rights, duties
and liabilities of persons exercising substitute
parental authority. As regards the right to
discipline the children under their foster care,
they have the right of a person exercising
special parental authority because the law
prohibits the infliction of corporal punishment
upon these children otherwise, it might result in
the revocation of the Foster Family Care License
and Termination of Foster Placement
Authority pursuant to Sec. 8, RA 10165 and
Rule 8, Part III, IRR of RA No. 10165].

Art . 194 – SUPPORT
Definition: comprises everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation in
keeping with the financial capacity of the
family.
> Take note: Education shall include his schooling
or training for some profession, trade or vocation
even beyond the age of majority
> Take note: grand children not included (Case:
Estate of Hilario M. Ruiz, et. al. v. CA 67 SCAD
20
Art. 195 – the following are obliged to support
each other:
a. spouses
b. legitimate ascendant and descendant.
c. parents and their legitimate children or the
legitimate and illegitimate children of the latter
d. parents and their illegitimate children and
the legitimate and illegitimate children of the
latter
e. legitimate brothers and sisters whether full
or half blood.
151
Art. 196 – brothers and sisters not legitimately
related whether of the full or half blood are
likewise bound to support each other.
Except: only when the need for support of the
brother or sister being of age is due to a cause
imputable to the claimant’s fault or negligence
Art 197 – self explanatory
Art 198 – this is in conformity w/ art 149
> Where to get support during proceedings for legal
separation, annulment of marriage and declaration of
nullity
> Take note: after finality of decision – the mutual
obligation to support each other ceases
> Take note: in case of legal separation , the court
may order the guilty spouse to give support to the
innocent one.
Art 199 – order of liability in matters of support
1. the spouse
2. the descendant in the nearest degree
3. the ascendants in the nearest degree
4. the brothers and sisters
Art 200, 201, 202, 203, 204 – obligation of
several obligors (to give support) is JOINT and not
SOLIDARY.
>Take Note: before support is paid, there must be
judicial or extra judicial demand
Art. 205 – the right to receive support is
exempt from attachment or levy
Articles 206, 207 – 3rd person may furnish support
to a person and has the right to reimbursement
unless the contrary is provided
PARENTAL AUTHORITY
Art 209 – concept parental authority
> sum total of the rights of parents over the
person and property of their children
Art 210 – parental authority and responsibility
may not be renounced or transferred except in
cases authorized by law like in adoption and
guardianship [if renounced it is void].
152
Art 211 – Joint parental authority of the husband
and wife. In case of disagreement the husband’s
decision prevail unless there is a judicial order to
the contrary.
Art. 212 – In case of death of one spouse, the
surviving spouse exercises parental authority. If the
surviving spouse remarries, his/her parental
authority over the children remains unless the
court appoints another as guardian of the person and
property of the children.
Art. 213 – take note:
In case of legal separation of spouses, parental authority shall be
exercised by the parent designated by the court, taking into account
relevant considerations, especially, the choice of the child over
7yrs of age unless the parent chosen is unfit.
 No child 7 yrs of age or below shall be
separated from the mother unless the mother is
unfit or the court finds compelling reasons to order
otherwise. This is known as the “tender age
presumption”. [Case: Gamboa –Hirsch vs. CA,
GR No. 174485, July 11, 2007].
Example of compelling reasons:
* Insanity, prostitution, and philandering.
 Take note: (Case: Luna v. IAC, June 18 ,
1985) *child’s best interest can overrule procedural
rules and even parental right.
 Case: Cervantes v. Fajardo, GR. No.
79955, Jan. 27, 1989 * common law relationship
of a mother with a married man is a ground to
separate the child.
 Case: Espiritu v. CA et. al., 242 S 362
Mar. 15 1995- * in matters of the custody of a
child, his best interest is to be uphold.
>** Case: Dacasin vs. Dacasin, 611 SCRA
657[2010], SC ruled that the statutory awarding of
sole parental custody to the mother under the
second paragraph of Art. 213 of the Family Code is
mandatory and any agreement to the contrary is
void. (this is called the exclusive maternal
custody regime).
Art. 214 – in case of death, absence or
unsuitability of the parents, substitute parental
authority shall be exercised by the surviving
grand parents. In case several survive, the one
designated by the court, taking into account all
consideration – (ie. Best interest of the child), shall
exercise the authority.
Art. 215 – No descendant shall be compelled in a
criminal case to testify against his parents and
grand parents except when such testimony is
153
indispensable or by one parent against the other.
[But if voluntary, the child can].
> Take note: said privilege does not include or
extend to civil case.
>Cases on Parental Authority in case of Legal
Separation: Sy vs. CA, 541 SCRA 371; Gamboa-
Hirsch vs. CA, 527 SCRA 380
Art. 216 – who can exercise substitute
parental authority
1. surviving grand parent
2. the oldest brother or sister, over 21 yrs of
age, unless unfit or disqualified
3. the child’s actual custodian over 21 yrs of
age unless unfit or disqualified
> whenever the appointment of a judicial guardian
over the property of the child becomes necessary,
the same order of preference shall be followed.
Art. 217 – in case of foundlings, abandoned,
neglected or abused children and other children
similarly situated, parental authority shall be
entrusted in summary judicial proceedings to
heads of children’s homes, orphanages and
similar institutions duly accredited by proper
government agency.
> Foundling – is an abandoned child whose
parents are unknown
> Abandoned child- one who has no parental care
or guardianship or whose parents or guardians have
deserted him for at least six (6) months
Art 218 – special parental authority
> Who can exercise:
* the school, its administrators and teachers or
individual entity or institution engaged in child care
over minor under their supervision, instruction or
custody.
> Take note: applicable to all authorized activities
whether inside or outside school premises.
Art. 219 – Solidary liabilities of those mentioned in
Art. 218; subsidiary liability of parents, judicial
guardians or those exercising substitute parental
authority.
> Defense: evidence of proper diligence
Art. 220 – rights and obligations of parents
Art. 221 – Civil liability of those persons exercising
parental authority over injuries and damages caused
by the omission of the unemancipated children living
under in their company and under their parental
authority.
154
> Take note: this is applicable even if a child is
over 18 but below 21 as provided for in RA 6809 in
relation to Art. 2180 of the Civil Code.
Art. 222 – appointment of guardian or guardian ad
litem when the best interest of the child requires.
 Guardian ad litem- one appointed by the
Court to prosecute or defend a case for the
minor child’s interest.
Art. 223 and 224 – self explanatory.
Art. 225 – Joint legal guardianship of the father
and mother over properties of their unemancipated
common children.
 Take note: no need for appointment by the
court but in case of disagreement, the father’s
decision prevails unless there is a judicial order to
the contrary.
 Requirement: to post a bond if the value of
the property is more than P50,000 at an amount
determined by the court but not less than 10% of
the value of the property. But if the value of the
property or the annual income of the child is
less than 50,000, no bond is required. Go to the
court for the approval of the bond but if another
person petitions, the court requires a bond
irrespective of the value of the property or annual
income of the child. Art . 229. Temporary termination of parental
authority

1. adoption ( if recorded, while child is still a minor)

Art. 226- refers to the property acquired by
the child either from his work or industry or
from onerous or gratuitous title.
 Query: Who owns it – the child
 How will it be used? – for the support
and education of the child unless provided
otherwise by title or the transferor.
2. appointment of general guardian
3. upon judicial declaration of abandonment of the
child
4. final judgment of a competent court divesting
parental authority
5. judicial declaration of absence or incapacity of the
person exercising parental authority.

Art. 230, 231 – suspension of parental

Art. 227 – Rule when the child is the one authority
managing the properties of his parent.
>GROUNDS:
> Take note: the child is entitled to a reasonable
compensation and is not chargeable to its legitime. a. conviction of a crime involving moral turpitude till
after serving sentence or pardon and; ( as provided
Art. 228 – grounds of terminating parental under Art. 231)
authority (patria potestas)
Art. 231 –
> Either:
1. excessive harshness in treating a child
a. permanent 2. giving the child corrupting orders, counsels or
examples;
1. death of parents 3. compels the child to beg
2. death of the child 4. allows the child to be subjected to acts of
3. emancipation of the child lasciviousness

b. temporary (under Art.

229)

155
Art. 232 – permanent deprivation of parental
authority when the child was allowed or
subjected to sexual abuse. Art. 240 – Judicial authorization for transactions
where spouses are separated in fact or in case of
abandonment.
Art. 233 – same authority of those exercising > ex: claims for damages
substitute parental authority.
Art. 241 – proof of notice to the other spouse is
needed in cases when petition is filed
Art. 234 – emancipation takes place only upon
reaching of the age of majority (18 yrs. old)
Art. 242 - notice coming from the RTC re:
> Take note: marriage is no longer a ground petition filed.
because of the imposing of age to marry – to at
least 18 years old.
Art. 243 – If needed a preliminary conference
may be conducted by the judge (no counsel is
Art. 235 – repealed allowed)

Art 236 – effect of emancipation

Art. 244 – In case of non appearance of the
> terminates parental authority and the child shall spouse whose consent is sought, the Court
now manage his person and his affairs but take inquires the reason and may require his/her
note that PARENTAL CONSENT is still needed till appearance.
the age of 21 for purposes of marriage

Art. 245 – if efforts are exhausted by the court but

Art 237 – repealed proved futile, ex parte presentation of evidence
follows:

SUMMARY PROCEEDINGS UNDER THE FAMILY

CODE: Art. 246 – if issue is not revealed during
preliminary conference, it must be resolved in
summary hearing.
Art. 239 – Separation in fact between Husband
and Wife: - affidavit

156
 - oral testimonies shall be preferred. In case of ascendants, the
- documentary evidence paternal relatives shall have the better right.

Art. 247 – judgment is final and executory > Take note: Every funeral shall be in keeping
with the social position of the deceased OR, in
accordance with the expressed wishes of the
Art. 248 – PETITION FOR JUDICIAL deceased. In the absence of such wish, then the
AUTHORITY to administer separate property of funeral rites will be in accordance with his
abandoning spouse religious belief or affiliation. (Art. 307)

 Take note: The law limits the right

Art. 249 – petition may or may not be verified. ( it
can be verified at any stage of the proceeding)
Art. 250 – filed with the court where the child
resides or if abroad, the place where the property is
located
Art. 251 – notice to parties
CONTINUATION OF THE CIVIL CODE
and duty to make funeral arrangement to the
members of the family. The common law wife
does not have the right to make funeral
arrangements over the objection of the legal
wife, [Case: Valino vs. Adriano, 723 SCRA
1(2014)] Therefore, if a man wishes to be
buried in a mausoleum of the paramour’s family,
said wish shall not prevail over the right of his
legitimate family.
Art. 308- No human remains shall be retained,
interred or exhumed without the consent of the
persons mentioned in Art. 294 (now Art. 199 of
the Family Code. [spouse, ascendants, descendants,
brothers or sisters]

FUNERALS:

Art. 309- Any person who shows disrespect

Art. 305 and 306- Talk about funeral to the dead or wrongfully interferes with a
arrangements which is both a duty and a funeral shall be liable to the family of the
right. In case of descendants belonging to the deceased for damages, material and moral.
same degree or brother or sisters, the oldest

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USE OF SURNAMES
Art 362 to 367 ( repealed)
> take note: that even illegitimate children can
now use the surname of the father so long as he is
acknowledged. (RA 9255).
Art 370 – family name to be used by a married
woman
1. her maiden first name, surname and add the
family name of her husband;
2. her maiden first name and her husband’s surname
3. her husband’s full name prefixing the word “mrs.”
> Take note: it is not mandatory to use the
Surname of the husband
Art 371 – in case of annulment of marriage :
1. if wife is guilty – resume using her maiden name
and surname
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2. if wife is innocent – resume her maiden name
and surname. However, she may choose to continue
employing her husband’s surname unless:
1. the court decrees otherwise
2. she and her former Husband marry again
> Take note: no court order is needed to resume /
use of maiden name.
Art. 372- 375 – self explanation.
Art 376 – no one can change his name without
judicial authority
> substantial change
> Case: Republic v. Avila 122 S 48* changing
one’s name or surname is not a matter of right but a
matter of privilege
> Under RA 9048- clerical or typographical errors
in an entry or change of FIRST NAME or
SURNAME may now be done through
administrative proceedings with the LCR. In case
of denial, Appeal may be made with the CIVIL
REGISTRAR GENERAL which shall decide the appeal
in thirty (30) days from receipt of appeal.
Art 377 to 378 – self explanatory. Art 393 to 395 – self explanatory. Already
discussed

Art 381 – 383 – self explanatory

CIVIL REGISTER
Art 384 to 386 – talks of absence

CORRECTION OF ENTRIES:
Art 387 to 389 – self explanatory

> Take note: only clerical errors may be

Art. 390 – after the absence of 7 yrs, it being
unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes except for
those succession
>The absentee shall not be presumed dead for the
purpose of opening his succession till after an
absence of ten (10) years. If he disappears after
the age of 75yrs, 5 yrs shall be sufficient in order
that succession may be opened.
Art 391 to 392 – self explanatory. Already
discussed
 Art. 390- ordinary absence * death is
presumed on the last day of the period.
 Art. 391- refers to qualified or extra
ordinary absence. * death is presumed on the first
day of the period
corrected.
> Take note: substantial alterations affecting
status and citizenship of a person are not
allowed.
>Correction of Birth Certificates [RA 9048 as
amended by R.A. No. R.A. No. 10172] AN ACT
FURTHER AUTHORIZING THE CITY OR MUNICIPAL
CIVIL REGISTRAR OR THE CONSUL GENERAL TO
CORRECT CLERICAL OR TYPHOGRAPHICAL
ERRORS IN THE DAY AND MONTH IN THE
DATE OF BIRTH OR SEX OF A PERSON
APPEARING IN THE CIVIL REGISTER WITHOUT
NEED OF JUDICIAL ORDER. [which took effect on
Aug. 15, 2012]
> File a Petition for this purpose. In case of
denial, appeal may be made with the CIVIL
REGISTRAR GENERAL which shall decide the appeal
in thirty (30) days from receipt of appeal.

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 the information, it does not verify. (Case: People
> Take note: only clerical errors may be corrected. vs. Vellor, 105 SCRA 797)

> Take note: substantial alterations affecting status

and citizenship of a person are not allowed. It has * Case: Republic v. Avila 122 S 48 changing one’s
to be a judicial process. name or surname is not a matter of right but a
matter of privilege
 Take note: In case the person has
migrated or not practical for a person by reason of * Case of Republic vs. Dr. Norma Lugsanay-Uy,
[transportation, time and effort] to appear in person G.R. No. 198010, August 12, 2013, where it is
before the LCR, petition may be filed with the LCR of ruled that in a petition for cancellation or
the place he is presently residing or domiciled. correction of an entry in the civil register
Filipino citizens presently residing or domiciled involving substantial and controversial alterations,
abroad may file the petition with the nearest including those of (citizenship, legitimacy of
Philippine Consulate. Take note further that all such marriage), a strict compliance with the
petitions may be availed only once. requirements of Rule 108 of the Rules of
Court is enjoined.

> Take note also that: effective August 2012,

petition for correction of typographical errors on END OF LECTURE
FIRST name may be done directly with the
National Statistics Office. (RA No. 9048 as
amended by RA 10172) and its for free.

Take note of the following rulings:

*Correction of civil status and citizenship could

not be made in summary proceedings. (Tan vs.
Republic, 102 SCRA 666)

* A certificate of live birth is not conclusive

evidence of birth, it is only prima facie or
disputable; this is so because LCR merely receives

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