University of San Agustin

College of Law
First Semester
Academic Year 2020-2021
Civil Law Review I
JD- 4C

Pre-Lim Exam

Persons & Family Relations

By: Atty. Eduardo T. Reyes III

17 November 2020

I. In her petition for judicial recognition of foreign divorce, Marina alleged and proved
that she is a Filipino citizen who was married to Miagi, a Japanese, but their
marriage ended in a divorce which Marina and Miagi procured in Japan by mutual
agreement. The Solicitor General opposed the petition by contending that pursuant
to a textual reading of Article 26, par. 2 of the Family Code, the divorce must have
been obtained by the foreigner husband abroad and not by the Filipino spouse much
less by “mutual agreement” which is in the nature of collusion between the parties
that the Philippine civil law system frowns upon. If you were the lawyer for Marina,
how would you rebuke the main argument of the Solicitor General? Discuss. (5%)

The divorce decree abroad was procured by the foreign spouse and Marina in Japan
by virtue of mutual agreement. If the divorce obtained by the parties is valid under
the national law of the foreign spouse, the same may be recognized under the
Philippine law.

II. Briefly discuss your understanding of the legal value or efficacy of the following
concepts/ doctrines: (1% each)

II.1. Pro hac vice ruling applies only to a particular case. It can be used as a
precedent to govern other cases.

II.2. Separate opinion. It is an opinion not necessarily contrary to the majority

ruling but uses a distinct application of law. It may serve as additional legal
basis in justifying the rulings of the Court.

II.3. Dissenting opinion is viewed as the minority opinion as it is the opposite view
of the majority. It serves as a guide when the Court tries to abandon the
present ruling.

II.4. Obiter dictum is not the legal basis in arriving to a particular ruling or decision.
This is a mere incidental statement made in the course of discussing the
rulings of the Court.

II.5. Res judicata is a final ruling that may no longer be disturbed.

 II.6. Stare decisis requires an application of the same ruling or legal basis when
the court is resolving another controversy with similar scenarios and set of
facts.

II.7. Doctrine of operative fact applies only in a particular case wherein reliance on
or consequences of a statute are considered valid prior to the declaration of
its unconstitutionality.

II.8. Doctrine of processual presumption applies only when the foreign statute
cannot be proved in the local forum. When the foreign is proved under the
rules of evidence, the foreign law finds application in the local forum.

II.9. Nationality principle application is only with respect to rights and duties or to
the status, condition, and legal capacity of persons.

II.10. Territoriality principle applies only to penal laws and those of public security
and safety and is subjected to the principles of international law and treaty
stipulations.

II.11. Lex loci celebrationis requires that forms and solemnities of contracts, wills,
and other public instruments are governed by the laws of the country in
which they are executed.

II.12. Lex rei sitei pertains to real property as well as personal property is subject to
the law of the country where it is situated

II.13. Access rights are limited to the rights of a parent to spent time to a child in a
limited period of time.

II.14. Visitation rights pertain to the right of a noncustodial parent to visit the child.

II.15. Ne exeat right is consistent or fully align with custody right of a child. It allows
the right to decide where the child shall reside. When a child has been
wrongfully taken, the country to which he has been taken must order that he
be returned to his country of habitual residence. Wrongful removals violates
of right of custody.

III. X, a foreign national who resides in the Philippines, was charged with violation of RA
9262 for economic abuse (ie, failure to provide support to his son) and physical
abuse (ie, he allegedly hit his ex-wife, Y, with a closed fist). X comes to you to seek
legal advice because according to him, he had already obtained a valid divorce
decree abroad prior to the incident in question and that based on his own national
law, he is not obliged to give support to his son upon divorce. What would be your
legal advice to X? Explain fully. (5 %)
 I would advise X to file a petition for recognition of foreign divorce decree before the
Philippine Courts. Second paragraph of Article 26 of the Family Code extend to
aliens the right to petition for the recognition of a foreign divorce decree provided the
authenticity and conformity with the alien’s national law be proven according to the
rules of evidence.

IV. Don Juan is a very wealthy man. He was so elated upon hearing that his son, Peter,
got his girlfriend pregnant and thus Don Juan would become a grandfather soon.
Because of his advanced age, Don Juan wanted to donate a valuable piece of
property to his would-be grandson while it is still in its mother’s womb. If Don Juan
comes to you for legal advice on the legal efficacy of his planned donation, what
would your advice be to him? Explain. (5%)

I will advise Don Juan that he can validly donate in favor of his would-be grandson.

Under Art. 5 of PD No. 603, the civil personality of the child shall commence from the
time of his conception, for all purposes favorable to him, subject to the requirements
of Art. 41 of the New Civil Code.

V. Give at least five (5) statutory laws that would be affected and discuss what would be
the legal repercussions if only Articles 1 and 2 of the Family Code are changed from
“male and female” to “any sexual orientation”. (5%)

The following are statutory laws that would be affected once Artocles 1 and 2 of the
Family Code are changed from “male and female” to “any sexual orientation”, to wit:

1) Art. 211 of the New Civil Code. “The father and the mother shall jointly exercise
parental authority over the persons of their common children. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to
the contrary.”

In case the spouses of same sex agreed to adopt a child and granted thereafter,
it would be hard to determine who will be the father who shall exercise parental
authority over the adopted in case of disagreement between the spouses prior to
judicial order.

2) Art. 213 of the New Civil Code. “In case of separation of the parents, parental
authority shall be exercised by the parent designated by the Court. The Court
shall take into account all relevant considerations, especially the choice of the
child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.”

The second paragraph of the aforementioned article would be rendered nugatory

in cases of same sex couples.

3) Republic Act No. 11210, or the 105-Day Expanded Maternity Leave Law. For same
sex couples particularly the females, there is a need to amend the law with respect to
 the other female spouse who by operation of law, entitled also similar to that of
paternity leave.

4) Art. 34 of the Family Code. “No license shall be necessary for the marriage of a
man and a woman who have lived together as husband and wife for at least five
years and without any legal impediment to marry each other.”

This provision may thereafter be declared unconstitutional for being violative of

the equal protection clause under the Constitution considering that it favors only
a man and a woman.

5) Art. 147 of the Family Code. “When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages and salaries shall
be owned by them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on co-ownership.”

This provision may be amended as it pertains only to a man and a woman.

VI. Gina is a Filipina who is engaged to be married to Jorge. While processing their
marriage license, Gina was surprised to learn that in the Civil Registry, she appeared
to be already married to a certain Dong Kee Kong, a Korean. Upon an examination
of the purported signature on the Certificate of Marriage, it is glaringly clear that the
signature that appears to be hers, is a forgery. To be sure, the marriage is a nullity.
Gina consults you and engages your legal services to file a petition for correction/
cancellation of the Certificate of Marriage as it is clearly an erroneous entry which
she had no hand or participation in, in the execution. What would be your legal
advice to Gina? Is a petition for correction/ cancellation of entry under Rule 108 a
legally viable remedy? Or is it absolutely necessary for Gina to file a petition for
declaration of nullity of marriage? Dispense legal advice by giving clear-cut
distinctions between the two remedies. (5%)

Gina may file a petition for correction/cancellation of entries under Rule 108 to cancel
her existing marriage certificate before the Civil Registry. This is the remedy
available to the petitioner considering that there is no marriage at all from the
beginning.

A petition for declaration of nullity of marriage is available only when there exists a
marriage that needs to be nullified. In the case of Gina, it was established that no
marriage actually took place and that her signature on the marriage certificate was
forged.

VII. Bert and Zorayda married when they were still Filipinos. They both emigrated from
the Philippines to the US and embraced US citizenship. On account of irreconcilable
differences, they divorced, and then Bert returned to the Philippines. Bert brought
with him the authenticated copies of the divorce documents as well as the pertinent
Family law in California which is his place of domicile and filed a petition for judicial
recognition of foreign divorce before the RTC of Iloilo City. In the course of his
presentation of documentary evidence, the trial court judge was not satisfied with the
 authenticated copies of the divorce decree, the certificate of naturalization of Bert
from the US Immigration Office, as well as the authenticated copy of the Family law
of California which allows its citizens to remarry after a divorce. The RTC trial court
judge asked Bert for proof of his and Zorayda’s certificate of legal capacity to remarry
to be issued by the State of California or by the US Government. If you are the
lawyer for Bert, what legal argument will you put forward? Is such certificate of legal
capacity to remarry essential in Bert’s case? What about if Bert were a Filipino, what
reliefs should he ask from the RTC? Compare the reliefs to be asked for between the
Filipino spouse and the foreigner spouse in a Rule 108 petition and discuss. (5%)

Considering that both Bert and Zorayda are no longer Filipino citizens at the time of
divorce, the requirement of legal capacity to remarry is not essential in order for Bert
to file a petition for judicial recognition of foreign divorce before the Philippines
courts, in RTC of Iloilo City in this case.

Petition for judicial recognition of foreign divorce does not capacitate a person to
remarry. It merely recognizes a divorce decree. For purposes of remarriage, petition
under Rule 108 is required as it is the cancellation of certificate of marriage
capacitates a person to contract another marriage.

VIII. A and B are married. During the subsistence of their marriage, B marries C. Born
during their marriage is E. Then, A dies. B marries D and to them is born, F. (10%)

VIII.1. What is the status of the marriage of B and C? Why?

The marriage is void. A bigamous marriage contracted during the existince of

another marriage.

VIII.2. What is the status of the marriage of B and D? Why?

The marriage is voidable. The void marriage between B and C must be

judicially declared null and void before B can contract another marriage.

VIII.3. Is E a legitimate child? Why?

E is an illegitimate child being born to a bigamous marriage.

VIII.4. Is F a legitimate child? Why?

F is legitimate child. The ground for the voidable marriage will not affect the
legitimacy of the child.

VIII.5. What if D turns out to be psychologically incapacitated, would you

recommend that her marriage with B be declared void under Article 36 of the
Family Code? Why? What difference will it make, if any?

Yes, psychological incapacity is one of the grounds to declare a marriage

void.
IX. In the wake of the Edsa Revolution in 1986, Don Pepe made a donation propter
nuptias of a house and lot embodied in a notarized deed of donation in favor of his
godson Bart and his fiancée Charrie. The latter did not sign nor execute any express
acceptance of the donation; but instead, they utilized the deed of donation to transfer
the title over the house and lot in their names. Is the donation propter nuptias valid?
What about if the donation propter nuptias was made in 1999 by Bart to Charrie
consisting of ½ of his entire wealth, will the same be valid? Explain. (5%)

The donation propter nuptias is not valid. Although at the time of the donation, the
Family Code is not yet effective, the Civil Code requires that acceptance of donation
of an immovable property must be made in a public instrument. Lacking such
requisite will render the donation void.

Donation propter nuptias made in 1999, or during the effectivity of the Family Code,
between Bart to Charrie consisting of ½ of his entire wealth is valid provided that
their marriage regime shall be governed by absolute community of property.
Otherwise, the donation is valid only up to 1/5 of his wealth, the excess shall be void.
This is expressly provided under Article 84 of the Family Code.

X. In the preceding question, if Bart and Charrie will seek your legal advice on whether
the house and lot donated to them may be constituted as their family home, what
would be your advice to them on how they are to go about constituting the same as
their family home? Discuss. (5%)

Yes, the property donated to Bart and Charrie may be constituted as their family
home. Under Article 153 of the Family Code, the family home is deemed constituted
on a house and lot from the time it is occupied as a family residence.

XI. Still on the preceding question, suppose the marriage of Bart and Charrie is later
declared void, what happens to the donation propter nuptias:

9.1. If the ground for nullity is psychological incapacity of either Bart or Charrie?(5%)

Under Article 86 of the Family Code, the donation may be revoked by the donor if the
marriage is judicially declared void ab initio. A marriage may be declared void if any
party thereto at the time of the celebration of the marriage, was psychologically
incapacitated, even if such incapacity becomes manifest only after its solemnization.

9.2. If the ground for nullity is because Bart had entered the marriage with Charrie
during the subsistence of his previous void marriage to Adela? (5%)

The donation may still be revoked by the donor considering the marriage between
Bart and Charrie is bigamous, a ground for declaration of its nullity. Under Article 40
of the Family Code, the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void.

XII. F and M are the parents of C, now a 19-year old college student who had joined the
Anakbayan party-list. F and M filed a petition for writ of habeas corpus seeking
custody of C back to them on the ground that since she was 16 years of age until
now, she had been under the indoctrination and mind-conditioning by the leaders of
 the Anakbayan party-list. If you were the judge, how would you rule on the petition?
Discuss. (5%)

The petition for writ of habeas corpus will be denied, C is now of legal age. In the
eyes of law, C is entitled to make independent choices or decision. The
emancipation terminates parental authority over C who is now considered qualified
and responsible for all acts of civil life, save the exceptions established by existing
laws.

XIII. Dan, a successful vlogger who had amassed some fortune through his vlogs, has
two (2) brothers, Boy and Jun. Boy is a legitimate brother while Jun, an illegitimate
one. Both Boy and Jun are now 25 years old and without a job as both have attitude
problems at work. Is Dan obliged to provide support to his brothers? Explain. (5%)

Dan is not obliged to provide support to his brothers. As a rule, brothers and sisters,
be legitimately or illegitimately related, are bound to support each other. However, if
the need for support of an age brother or sister is due to the cause imputable to the
claimant’s fault or negligence, support is not obligatory. In this case, being jobless
due to attitude problem at work may be considered as cause imputable against Boy
and Jun.

XIV. In an adoption petition, what middle name shall be accorded to the adopted child: A.
In cases of joint adoption?; and B. When a widower adopts his illegitimate love-child
with his former lover? Discuss. (5%)

In case of joint adoption, the adopted child shall be accorded the middle name of the
adopting mother. An adopted child is entitled to all the rights provided by law to a
legitimate child without discrimination of any kind, including the right to bear the
surname of the father and the mother.

When, a widower adopts his illegitimate love-child with his former lover, the child
may use the surname of her biological mother as her middle name. There is no law
that prohibits a child to use the surname of her mother as middle name.

XV. Fred and Vina are a well-to-do couple. They lived an ideal life with their children
Fred, Jr., Ving and Aimee. Fred died and a few days later, Vina likewise died. During
the joint wake, Alex, a robust 64- year old man, came and proclaimed that he was
born to Fred and Vina right after their marriage but they deliberately concealed him
from the public as he is ugly-looking.

A. Given that Alex is already 64 years old, Alex claims that his legitimate filiation
cannot anymore be impugned as the periods allowed by the Family Code had
already long prescribed. Is this claim tenable? Why? (5%)

The claim of Alex is untenable. His legitimacy may be impugned by the heirs and
the prescriptive period shall be counted from the knowledge of birth considering
that birth was concealed.

B. Would a previous declaration by Vina that aside from Fred, Jr., Ving and Aimee,
she bore no other child and that should anyone make such a claim, then that
person is not her legitimate child, be admissible in evidence? Discuss. (5%)
No, as a rule, only the husband can impugn the legitimacy of the child unless the
circumstances fall under the exceptions allowed by law.

FRANCISCO, CYRIL C.
JD 4C