Persons and Family Relations 1D 2014 Judge Bonifacio

Persons Family Code Article 51 In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the reinforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or bothof the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. Presumptive Legitimes a. Computation: value as of the date of the final judgment of the trial court b. To be delivered in: cash, property or sound securities; UNLESS parties mutually agree and have already provided for such matters Article 52 The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. Article 53 Either of the former spouses may marry again after complying with the requirements of the immediately preceding article; otherwise, the subsequent marriage shall be null and void. Article 54 Children conceived or born before the judgment of annulment or absolute nullity of marriage under Art36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Art53 shall likewise be legitimate Article 36 psychological incapacity; incapable of complying with the essential marital obligations which renders a marriage void Article 53 as long as the subsequent marriage is not null and void because all the requirements have been complied with Two Kinds of Divorce 1. Absolute divorce (divorce a vinculo matromonii) marriage is dissolved 2. Relative divorce or Legal Separation (divorce a mensa et thoro) marriage not dissolved; parties are merely separate from bed and board. Absolute Divorce 1. Old Divorce Law Act 2710, valid until March 1, 1917) a. Allowed only absolute divorce b. 2 grounds o Adultery on the part of the wife o Concubinage on the part of the husband o With previous criminal conviction for either case as the only proof for conviction c. Under the Old Divorce Law some Filipino couples went to foreign countries to obtain a divorce. Their divorce is considered valid if the following conditions concur: o Foreign court has jurisdiction over the parties o The ground for the divorce is one of the grounds provided for in the Old Divorce Law. o If either or both are absent, divorce obtained not valid in the Phils.

Tiu, Jaclyn Christy

Page 1

Persons and Family Relations 1D 2014 Judge Bonifacio

2. Divorce during the Japanese Occupation effective until Oct. 23, 1944 a. Enlarged grounds o Adultery or concubinage o Attempt on the life of the other spouse o A second or subsequent attempt to remarry before previous marriage has been legally dissolved o Loathsome contagious diseases o Incurable insanity when intellectual community has ceased o Crim conviction of either with min penalty of not less than 6 years imprisonment o Repeated bodily violence o Intentional or unjustifiable desertion o Intentional absence from the last conjugal abode for 3 consecutive years prior to filing of action o Slander by deed or gross insult, making further living together impossible. Relative Divorce came in with the repeal of the old Divorce Law by the New Civil Code Transitional Rules 1. Absolute divorce under Art2710 a. If validly granted before effectivity of New Civil Code (Aug30, 1950), same remains to be valid today b. If pending by Aug30, 1950, will be allowed to continue till final judgment even if final criminal judgment on adultery or concubinage was only made after Aug30. What is important is that crime was committed before Aug 30. 2. Absolute divorce under EO 141, Japanese rule a. If validly granted before Gen. MacArthurs proclamation of re-establishing the Phil Govt (Oct.23, 1944), divorce will be considered valid. b. If merely pending by Oct.23, 1944, will not be allowed to continue until final judgment UNLESS Tiu, Jaclyn Christy Page 2 based on adultery of wife or concubinage of husband Reason: EO141 had more grounds Rules for Absolute Divorce Today 1. Action brought in the Philippines a. Filipinos will NOT prosper b. Foreigners will NOT prosper c. Fil + Foreigner will NOT prosper 2. Action brought in Foreign country a. Filipinos will NOT be recognized in Phils. b. Foreigners will be recognized in Phils only if 1) Foreign court has jurisdiction to grant absolute divorce and if 2) valid under personal law of parties involved (either national law or law of domicile, depending on the theory adopted by their countries) c. Fil + Foreigner if divorce obtained by foreigner and valid according to his personal law then it is valid for both foreigner and Fil

Persons and Family Relations 1D 2014 Judge Bonifacio

6. Lesbianism or homosexuality 7. Contracting by the respondent of a subsequent bigamous marriage, whether in Phils or abroad 8. Sexual infidelity or perversion 9. Attempt by the respondent against the life of the petitioner 10.Abandonment of petitioner by respondent without justifiable cause for more than 1 year Child child by nature or adoption Mere preponderance of evidence is sufficient to prove the existence of any of the grounds; guilt beyond reasonable doubt is not necessary. Except Ground No. 4 (more than 6 yrs imprisonment) where previous criminal conviction is essential Sexual infidelity either adultery or concubinage Civil action suspended until after final judgment is rendered in criminal case Action is personal and death of one party causes death of the action Article 55 A petition for legal separation may be filed on any of the following grounds: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child or a child of the petitioner 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliations 3. Attempt of respondent to corrupt or induce the petitioner, 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 yrs, even if pardoned 5. Drug addiction or habitual alcoholism of the respondent Tiu, Jaclyn Christy Duty of court to try to reconcile - Court must take steps in every case toward reconciliation before granting final judgment. Court must be fully satisfied that such reconciliation is highly improbable. Legal separation on the ground of infidelity does not require a conviction of the criminal offense because mere preponderance of evidence is sufficient. Article 56 The Petition for legal separation shall be denied on any of the following grounds: 1. Aggrieved party has condoned the offense or act complained of

Page 3

Persons and Family Relations 1D 2014 Judge Bonifacio

2. Aggrieved party has consented to the commission of the offense or act complained of 3. There is connivance between the parties in the commission of the offense or act constituting the ground for legal separation 4. Both parties have given ground for legal separation (mutual guilt) 5. There is collusion between the parties to obtain decree of legal separation 6. Action is barred by prescription (order of the court) 1. Condonation o Forgiveness o Express or implied (voluntary sexual intercourse) o Sleeping together after full knowledge counts o Must come after not before the offense *each sexual intercourse of wife outside of marriage are considered different and separate acts of adultery; condonation of 1 does not mean condonation of others 2. Consent o Express of implied o Must come prior to the act o NOT entrapment 3. Connivance 4. Mutual guilt o Both parties are pari delicto (in equal fault), there is no offended party who deserves to bring the action 5. Collusion o Agreement where one will pretend to commit the ground relied upon 6. Prescription Tiu, Jaclyn Christy Effect of death if one party dies during the pendency of the case, case should be dismissed. Article 57 An action for legal separation shall be filed within 5 years from the time of the occurrence of the cause Non-necessity of alleging prescription general rule is that prescription should be alleged; not so in legal separation or annulment proceedings. Article 58 An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition. - Action for legal separation cannot be tried within 6 months after the filing of the petition - Reason: cooling-off period o Enable parties to cool off for a possible reconciliation - Custody alimony and support pendente lite will not be suspended/overruled - Pendente lite: pending the lawsuit Article 59 No legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable Article 60 No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed - Law requires proof, not mere stipulation of facts or a confession..there must be a trial Page 4

Persons and Family Relations 1D 2014 Judge Bonifacio

Proof may be direct or circumstantial evidence Case may prosper even if defendant does not appear Court may issue a decree of legal separation based upon facts stipulated by the spouses IF there are other evidences of the existence of a ground for legal separation. The decree will not be issued based solely on the stipulation of facts. shall have no rights to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43 (2); 3. Custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this code 4. Offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. Dissolution and liquidation of conjugal partnership upon issuance of the decree of legal separation shall be automatic. Continued existence of marriage: - Neither can have a paramour - Couple cannot insist on sexual intercourse with each other - Wife may continue to use her maiden name, even if she is the guilty party Article 64 After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Allocations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

Article 61 After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court - After filing of petition of legal separation, spouses may live separately but not required - Third person may manage the property who may be designated by the Court Article 62 During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children - Article 49: court will provide for the support of the spouses and the custody and support of the common children during the pendency of the action for the declaration of nullity of marriage Article 63 The decree of legal separation shall have the following effects: 1. Spouses shall be entitled to live separately but marriage bonds shall NOT be severed 2. Absolute community or conjugal partnership shall be dissolved and liquidated but the offending spouse Tiu, Jaclyn Christy

Page 5

Persons and Family Relations 1D 2014 Judge Bonifacio

The action to revoke the donation under this Article must be brought within 5 years from time the decree of legal separation has become final. Two things that may be revoked by innocent spouse: 1. Donations made in favor of the offending spouse 2. Designation of the offending spouse as beneficiary in the insurance contracts of the innocent spouse Article 65 If the spouses should reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation In case of reconciliation, joint manifestation under oath is required.

Tiu, Jaclyn Christy

Page 6