2019 Persons and Family Relations Bar Q and A

A.2.

The judicial declaration of presumptive is only necessary for purposes of remarriage under
Article 41 of the Family Code. The present spouse who has a well-founded belief that the absent
spouse is already dead and wishes to remarry must first file a petition for declaration of
presumptive death of the absent spouse.

No, the contention of the AFP is not correct. In the case of Tadeo-Matis v. Republic, the
Supreme Court ruled a petition whose sole purpose is to declare a person presumptively dead is
not an authorized suit in this jurisdiction and no court should take cognizance of the same. The
presumption of death under Art. 390 or 391 of the Civil Code arises by operation of law without
the need of judicial declaration once the factual conditions is said articles are established.

A.3.

a. No, Mr. Reyes should not be granted custody of C. C is an illegitimate child since he was
born outside of wedlock to Mr. Reyes and Ms. Cruz. An illegitimate child shall be under the
sole parental authority of the mother unless the mother is unfit to have custody of her child.
Here, there appears to be no allegation or showing that Ms. Cruz is suffering from disability
or disqualification to have custody and exercise parental authority over her child. Mr. Reyes’
recognition of the child may be a good ground to support C, but not to grant him custody.
b. No, Mr. Reyes cannot compel the change or correction of C’s surname from Cruz to Reyes.
In Grande v. Antonio, the Supreme Court ruled that an illegitimate child recognized by the
father may use the surname of the latter. The use of word “may” under Republic Act of 9255
indicates the use of the surname of the father by an illegitimate child is not mandatory.
Thus, there is no compulsion for the illegitimate for the illegitimate child to use the surname
of his father even if he was duly recognized by the latter.

A.4.

Yes, the divorce obtained by F in Japan may be recognized her in the Philippines and capacitate
F to remarry provided that she files the appropriate petition before the Philippines courts for
the recognition of the divorce decree. In Morisono v. Morisono, the Supreme Court rules there
is no real and substantial difference between a Filipino who initiated a foreign divorce
proceeding and a Filipino who obtained a divorce decree upon the instance of his or her alien
spouse. Hence, to make a distinction between them based merely on the superficial difference
of whether they initiated the divorce proceedings or not is utterly unfair. Foreign divorce
decrees obtained to nullify marriages between a Filipino and an alien citizen may already be
recognized in this jurisdiction, regardless of who between the spouses initiated the divorce;
provided of course, that the party petitioning for the recognition of such foreign divorce decree
– presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it.
 A.5.

a. No, the donation to Z is not valid. A child although unborn has a presumptive personality for
purposes favorable to it and may be a recipient of a donation. The law provides that donations made to
conceived and unborn children may be accepted by those persons who would legally represent them if
they were already born. However, the law provides that if the value of the movable property donated
exceeds five thousand pesos it must be in writing otherwise, it is void. Since the value of the property
donated is P 250,000.00 the donation and acceptance must have been reduced into writing.

b. On the assumption that the donation is valid, X’s parents may not revoke the donation on the
ground of the non-celebration of the marriage between X and Y. The donation may not be considered a
donation propter nuptias or a donation by reason of marriage because it was not made in favor of one
or both the contracting parties but in favor of Z. Hence, even if the marriage did not push through, the
donation cannot be subject to revocation based on Article 86 which only pertains to grounds for
revocation of donation by reason of marriage.

A.6.

a. Under Article 92 of the Family Code, the following are excluded from the absolute community
property:

1. Property for personal or exclusive use of either spouse, except jewelry;

2. Property acquired by gratuitous title by either spouse during the marriage including
the fruits as well as the income thereof, if any, unless expressly provided by the testator
or grantor that it shall form part of the community property;

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.

b. On the other hand, the following are excluded from the conjugal partnership of gains:

1. Property which is brought into the marriage as his or her own;

2. That which is purchased with the exclusive money of the wife or the husband;

3. Those acquired by gratuitous title during the marriage;

4. That which is acquired by right of redemption, by barter or by exchange with property

belonging to only one of the spouses.
 2020/2021 B and Q

1. No, the contract is not valid. A pre-nuptial agreement or marriage settlement is a contract
between the future spouses where they agree on the property relationship that would govern
them during the marriage. In the problem, the prenuptial agreement contains nothing about the
property relationship of the parties and instead provides the term of the marriage. The
stipulation providing for the termination of the marriage based on the will of the contracting
parties is void for being contrary to law. A marriage is a special contract of permanent union
between a man and a woman and is an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation except that marriage
settlements may fix the property relations during the marriage within the limits provided by this
Code. Thus, the contract is not valid.
2. No, the position of the corporation is not tenable. A person may be natural or juridical. A
corporation is a juridical person vested with the personality as soon as it is duly constituted in
accordance with law. As such, it may acquire property and incur obligations and may sue and be
sued in its corporate name. Moreover, in medical malpractice cases, the duty of providing
quality medical service is no longer the sole prerogative and responsibility of the physician
based on vicarious liability of the hospitals under the respondeat superior, apparent authority,
or agency by estoppel.
3. No, the mere reappearance of the first husband shall not automatically terminate the second
marriage contracted by the wife. The law provides that the subsequent marriage is
automatically terminated by the recording of the affidavit of reappearance of the absent spouse
in the civil registry of the residence of the parties to the subsequent marriage at the instance of
any interested person. Hence, the first husband’s reappearance will not suffice to terminate the
second marriage. Also, the Court in SSS v. Vda. De Bailon ruled that if the absentee spouse
reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or
court action, such absentee’s mere reappearance, even if made known to the spouses in the
subsequent marriage will not terminate such marriage.
4. No, the position of the couple is not legally tenable. Under the Family Code, a marriage may be
solemnized among others by any incumbent member of the judiciary within the court’s
jurisdiction. It must be mentioned that the authority of a Supreme Court Justice to solemnize
marriages is all over the Philippines. Although the law provides that the marriage shall be
solemnized publicly in the chambers of the judge or in open court, or in the church, chapel or
temple and not elsewhere, it is submitted that the solemnization of the marriage by a member
of the judiciary inside the Roman Catholic church shall not affect the validity of the marriage
because the venue of the celebration of the marriage is neither an essential nor a formal
requisite of marriage.
5. No, the motion to dismiss filed by the parents should not be granted. The argument that no
liability attached to them because they were not the ones who shot the bully does not hold
water. Under the Family Code, parents and other persons exercising parental authority shall be
civilly liable for the injuries and damages caused by the acts or omissions of their
unemancipated children living in their company and under their parental authority subject to
the appropriate defenses provided by law. The Civil Code on quasi-delict provides that the
obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but
also for those of persons for whom one is responsible. However, since the shooting happened
 inside the school, the child was under the special parental authority of the school, it could be
argued that the liability of the school is primary while that of the parents is subsidiary.
6. No, the university cannot be held liable for the injuries suffered by the bar candidate. The facts
clearly state that despite the efforts of the university to maintain the strength of the roots of the
tree, it was still blown away due entirely to the occurrence of a fortuitous event which is the
super typhoon. Under the law no person shall be liable for those events which could not be
foreseen or even if foreseen were inevitable. The event which caused damage to the bar
candidate was entirely independent of human will and neither was there participation of the
university in the aggravation of the injury. To be liable for the damages caused, there must be
fault or negligence concurring with the fortuitous event which is absent in this case.
7. Yes, the court should allow the partition of the property. As a rule, no co-owner shall be obliged
to remain in the co-ownership. Each co-owner may demand at any time the partition of the
thing owned in common, insofar as his share is concerned.
Also, each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign, or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership. The retail
conglomerate who bought the undivided shares of the three siblings stepped into the shoes of
the latter and may therefore ask for partition of the property.